Hogan Transports, Inc.

National Labor Relations Board - Board Decisions

May 19, 2016

363 NLRB No. 196 (N.L.R.B. 2016)

363 NLRB No. 196
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hogan Transports, Inc. and Teamsters Local 294,
International Brotherhood of Teamsters and
Mansfield Teetsel. Cases 03–CA–107189, 03–
CA–108968, and 03–CA–111193
May 19, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On February 26, 2014, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief, an
answering brief to the General Counsel’s cross-
exceptions, a reply brief, and a motion to reopen the rec-
ord. The General Counsel filed cross-exceptions, a sup-
porting brief, and an answering brief to the Respondent’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions,1 cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings,2 and
conclusions except as specifically set forth below, and to

1 We find no merit in the Respondent’s contention that our review
of the judge’s decision violates the Respondent’s due process rights
because the Board authorized the General Counsel, under Sec. 10(j) of
the Act, to seek an injunction against the Respondent in Federal district
court. The Board’s 10(j) procedures do not deny a respondent due
process. Kessel Food Markets, 287 NLRB 426, 426 fn. 2 (1987), enfd.
868 F.2d 881 (6th Cir. 1989), cert. denied 493 U.S. 820 (1989); Hol-
land Rantos Co., 234 NLRB 726, 726 fn. 3 (1978), enfd. 583 F.2d 100
(3d Cir. 1978).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We adopt, for the reasons stated in his decision, the judge’s finding
that the Respondent violated Sec. 8(a)(1) of the Act by interrogating
employees Steven Ianno and Shane McDonald about their support for
the Union. We find it unnecessary to pass on the judge’s additional
finding that the Respondent unlawfully interrogated employee Robert
Sansone, as any such finding would be cumulative and would not affect
the remedy. There are no exceptions to the judge’s finding that the
Respondent did not violate Sec. 8(a)(1) by interrogating employees
Mansfield Teetsel, James Young, and Alan Field.
We also adopt the judge’s dismissal of the complaint allegations that
the Respondent violated Sec. 8(a)(1) by moving the employees’ work
location and by assisting employees in revoking their union authoriza-
tion cards.
adopt the recommended Order as modified and set forth
in full below.3
The facts, which are more fully set out in the judge’s
decision, are summarized here. The Respondent pro-
vides trucking services throughout the United States uti-
lizing a nationwide workforce of 1300–1400 drivers. In
May 2013,4 the Union began organizing the drivers at the
Respondent’s operation in West Coxsackie, New York,
where the Respondent provides dedicated trucking ser-
vices for the Save-A-Lot chain of discount supermarkets.
On June 3, the Union filed an election petition with the
Board. By June 13, the Union had obtained signed au-
thorization cards from 18 of the 29 West Coxsackie driv-
ers.
On June 19, the Respondent’s management held three
meetings with employees to discuss the union situation.
One meeting was held on each of the three shifts in order
to cover all of the Respondent’s employees. The main
speaker at the meeting was President David Hogan. Ho-
gan told the employees:
I can tell you Save-A-Lot made this clear to me, we
don’t have any transportation providers who will deliv-
er to our stores in the country that are union so they
said you need to keep in mind when you guys are
working through the issue here. I don’t know how to
be—I don’t know how to be more direct, but I think
our business here is in jeopardy if the union comes in.
It’s not a threat, it’s just my opinion with my discus-
sions with Save-A-Lot when they remind me of how
they operate. They don’t want to operate in union envi-
ronment, all that stuff.
Employee: If we go union, we’re all out of a job.
Hogan: I agree 110% with that and I am just being
honest with you. If it’s organized here I think Save-A-
Lot goes in a different direction. And you know, I
think we can do a great job for Save-A-Lot but let’s
face it, we are not irreplaceable.

3 We shall amend the judge’s conclusions of law and remedy to con-
form to our findings. In addition, we find merit in the General Coun-
sel’s cross-exception to the judge’s failure to order the Respondent to
cease and desist from refusing to recognize and bargain with the Union.
We shall modify the judge’s recommended Order accordingly. See,
e.g., Stevens Creek Chrysler Jeep Dodge, 357 NLRB 633, 640–641
(2011), enfd. sub nom. Mathew Enterprise, Inc. v. NLRB, 498
Fed.Appx. 45 (D.C. Cir. 2012). In addition, in accordance with our
decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
we shall modify the judge’s recommended tax compensation and Social
Security reporting remedy, and we shall further modify the Order to
reflect this remedial change. We shall also substitute a new notice to
conform to our modified Order and in accordance with our decision in
Durham School Services, L.P., 360 NLRB No. 85 (2014).
4 All dates are in 2013, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
I have said a lot about Save-A-Lot today. I’m not here
to bash Save-A-Lot because again they could easily
pull the business from us at any time. Over the years
they have that right for whatever reason. It’s one of our
longer-term customers. But again they have always
made it clear the environment they want to work in.
And they said what’s this about the Union? And when
they select their carrier that’s always one of the ques-
tions they ask. So you know, they’re concerned about
it. When they hear about drivers talking about work
stoppages, that doesn’t go over well.
Again, my opinion is we got to continue to work to-
gether because if you guys organize there is a strong
possibility we lose the business. I do not want anyone
to tell me two months down the road why didn’t you
mention that to us.
Hogan also told employees that they would receive a
raise of 2 cents per mile on July 1. This raise amounted
to an increase of between $40 and $60 per week.
A number of employees asked questions at the June 19
meetings, including Charging Party Mansfield Teetsel.
Teetsel complained that when he returned to work at the
Respondent after a period working for another company,
the Respondent rehired him at the mileage-compensation
rate for new drivers. Teetsel stated, “You want people to
be loyal, which I’m still you know . . . but that makes me
bitter. I mean, I can see you keeping me down to the
bottom for a year; it’s going on two years now. So it
makes you real bitter.” Later at that meeting, Hogan told
the employees that the Respondent did not have any un-
ion drivers, to which Teetsel replied, “Hmm, not now.
Not yet.”
On June 24, the Union filed an unfair labor practice
charge over the pay increase announced on June 19. On
June 29, the Respondent distributed a document to em-
ployees stating:
We are pleased to announce that the 2 cent per mile in-
crease that was announced earlier this month is in effect
starting 7/1/13. Please understand however, that the
Teamsters have challenged Hogan’s ability to give this
increase and they have asked the National Labor Rela-
tions Board to seek an injunction forcing Hogan to re-
scind it.
On July 8, the Respondent held an offsite meeting with
its employees. Hogan told the employees:
Somebody asked at the end of the last meeting well,
what can the Union do for us and what would change if
the Union got in here? And I said well, you know, first
of all, any wages or benefits, we have to agree to any
changes in the wages and benefits. The Union can’t
just arbitrarily change them; get them all that stuff. But
to me that’s all a moot point, because I think again, if
the Union comes in here I feel like there’s probably not
much to talk about because there won’t be jobs. We’ve
got one customer here and that customer, in my opin-
ion, is going to go down the road and find an alterna-
tive solution.
At the hearing, Hogan testified that Save-A-Lot con-
tracts only with nonunion carriers and that all of Save-A-
Lot’s distribution centers and owned-and-operated stores
are nonunion. Hogan also testified that: in 1992, Save-
A-Lot outsourced delivery operations in St. Louis to rid
itself of the union; in 2003, Save-A-Lot was prepared to
shut down its operations in Lansing, Michigan, if em-
ployees unionized; in 2010, after employees in Muncie,
Indiana, began to organize, Save-A-Lot fired its distribu-
tion manager for failing to develop a good working rela-
tionship with his employees; and in 2010, Save-A-Lot
and Hogan conducted a joint seminar informing employ-
ers how to remain union free.
1. Hogan’s June 19 and July 8 Statements About Job
Losses
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act by threatening employees
with the loss of their jobs if they joined or assisted the
Union. The judge found that the “principal message that
management conveyed to its employees was that its only
customer in the area was Save-A-Lot; that this customer
was nonunion and operated with nonunion carriers at
other locations; and that if the employees chose union
representation there was a high likelihood that Save-A-
Lot would cancel its contract with Hogan thereby caus-
ing the employees in Coxsackie to lose their jobs.” The
judge further found that there was no evidence that any-
one from Save-A-Lot ever informed the Respondent that
it would cancel the contract if employees voted to union-
ize, or that anyone from the Respondent ever asked Save-
A-Lot whether it would; that, at most, Save-A-Lot ex-
pressed concern about the possibility of future work
stoppages. Applying NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969), the judge concluded that the
statements made by the Respondent’s representatives
were “mere speculation and not based on objective
facts.”
We agree with the judge that the Respondent’s predic-
tions at the June 19 and July 8 meetings—that, if the Un-
ion came in, Save-A-Lot might terminate its contract, in
which case the West Coxsackie drivers would lose their
jobs—were not “carefully phrased on the basis of objec-
HOGAN TRANSPORTS, INC. 3
tive fact to convey an employer’s belief as to demonstra-
bly probable consequences beyond his control.” Id. at
618. The burden of proof is on the employer to demon-
strate that its prediction is based on objective fact. See
Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995).
Moreover, as the Supreme Court has explained, in as-
sessing the Respondent’s statements we “must take into
account the economic dependence of the employees on
their employer[], and the necessary tendency of the for-
mer, because of that relationship, to pick up intended
implications of the latter that might be more readily dis-
missed by a more disinterested ear.” Gissel, 395 U.S. at
617.
Here, the purportedly objective facts cited by the Re-
spondent show, at most, that Save-A-Lot does not like
unions, does not currently employ unionized carriers, and
may have taken steps in the past to avoid unions at other
locations. But, as the judge pointed out, there is no evi-
dence that anyone from Save-A-Lot ever informed the
Respondent that it would—or even might—cancel its
contract with the Respondent if its employees unionized.5
Nor is there any evidence that Save-A-Lot had ever can-
celed a contract with a carrier when its employees union-
ized. Indeed, when Hogan contacted John Gerber, Save-
A-Lot’s executive vice president, to inform him of the
Union’s petition, Gerber merely indicated that Save-A-
Lot would be willing to “support” the Respondent. Our
dissenting colleague contends that, in context, Gerber’s
promise of support could only have referred to support in
opposing the union drive. But even accepting the dis-
sent’s interpretation, Gerber’s promise to support efforts
to oppose the Union is a far cry from a threat—even an
implicit one—to cease doing business with the Respond-
ent if its employees unionized. In any event, Hogan ad-
mitted that employees are unionized at some of Save-A-
Lot’s franchised stores (including at least one to which
the Respondent delivers) and at some stores operated by
Save-A-Lot’s parent corporation, SuperValu, which un-
dercuts the Respondent’s assertion that Save-A-Lot does
not do business with unionized employees or companies.
The dissent also contends that Hogan explained to em-
ployees the “context of and basis for his predictions”
when he “accurately referred to Save-A-Lot’s ability to
cancel its contract with the Respondent by stating that
Save-A-Lot ‘could easily pull the business from us at any
time . . . . [T]hey have that right for whatever reason.’”
But contrary to the dissent, Hogan’s explanation was not
accurate. The Respondent’s contract with Save-A-Lot
provides for termination by either party with “at least
three (3) months’ prior notice of such termination to the

5 No Save-A-Lot representative testified at the hearing.
other Party and [if] the date set forth as the effective ter-
mination date is an anniversary of the Commencement
Date (the ‘Effective Date’).”6 In other words, the con-
tract automatically renews each year unless either party
opts to provide notice of termination 3 months before the
anniversary date.7 As the anniversary date of the Re-
spondent’s contract with Save-A-Lot is February 21, the
earliest that Save-A-Lot could have terminated the con-
tract, with 3 months’ notice, was February 21, 2014—
approximately 8 months after Hogan made his predic-
tions. Hogan did not simply fail to provide employees
with the “context of and basis for his predictions” of job
loss when he told them that Save-A-Lot could “easily
pull the business from [the Respondent] at any time”; he
misled them as to the “probable consequences” of union-
ization by misrepresenting the contract. See DTR Indus-
tries, 350 NLRB 1132, 1133 (2007) (employer’s predic-
tion that unionizing would result in the loss of customers
and a decrease in business violated the Act where, among
other things, the employer did not provide employees
with the “context and basis for” its prediction), enfd. 297
Fed.Appx. 487 (6th Cir. 2008); More Truck Lines, 336
NLRB 772, 773, 777 (2001) (where two rival unions
were competing to represent employees, employer un-
lawfully threatened employees by telling them that the
contract with the incumbent union would be “null and
void” if a new union was selected because the statement
“misrepresented” the employer’s legal obligations), enfd.
324 F.3d 735 (D.C. Cir. 2003).
All we are left with is speculation about what Save-A-
Lot might do based on Hogan’s testimony about Save-A-
Lot’s supposed desire to remain union free and the fact
that Save-A-Lot could conceivably terminate its contract
with the Respondent 8 months later.8 But Hogan did not
merely tell the Respondent’s employees that Save-A-Lot

6 Nothing in the contract expressly allows Save-A-Lot to void the
contract because employees unionized.
7 The dissent relies on TNT Logistics North America, 345 NLRB
290, 291 (2005). In that case, the majority, in finding the employer’s
statements protected by Sec. 8(c), examined the statements “in context,
together with the comments the following day” by a higher-ranking
official, who expressed uncertainty about what the employer’s custom-
er would do if employees unionized. The majority found that this un-
certainty “would have underscored to all employees” that the custom-
er’s actions “were entirely outside the Employer’s control.” No subse-
quent expressions of uncertainty were made here, and Hogan’s remarks
were emphatic: when an employee asked if unionization would mean
“we’re all out of a job,” Hogan stated, “I agree 110% . . . .” Further,
Hogan repeated this clear, unequivocal message to employees on July 8
when he stated that “if the Union comes in here I feel like there’s prob-
ably not much to talk about because there won’t be jobs.”
8 Under the dissent’s theory, a customer’s history of antiunionism
coupled with a contract that is silent on unionization but terminable at
some future date would supply an objective basis for virtually any
employer prediction as to the effects of unionization.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
desired to be union free and could terminate the contract
in 8 months. Rather, he predicted that “if the Union
comes in here I feel like there’s probably not much to
talk about because there won’t be jobs” and he agreed
“110%” with an employee who said, “[i]f we go union,
we’re all out of a job.” For the foregoing reasons, we
agree with the judge that Hogan’s predictions were not
“carefully phrased on the basis of objective fact to con-
vey an employer’s belief as to demonstrably probable
consequences beyond his control.” Gissel, 395 U.S. at
618.
2. The Wage Increase
We also affirm the judge’s finding that the Respondent
violated Section 8(a)(1) by promising and granting em-
ployees a wage increase in order to dissuade them from
supporting the Union.9 The judge rejected the Respond-
ent’s contention that the increase had been planned be-
fore the Union filed the election petition and was there-
fore lawful. Rather, he found that the Respondent did
not decide to give a wage increase to the West Coxsackie
drivers until after the Union filed the petition.
In determining whether a grant of benefits during a un-
ion organizing campaign is unlawful, the Board draws an
inference of unlawful motivation and interference with
protected rights. See Holly Farms Corp., 311 NLRB
273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995). An
employer may rebut the inference by “coming forward
with an explanation, other than a pending election, for
the timing of the grant or announcement of such bene-
fits.” Lampi, L.L.C., 322 NLRB 502, 502 (1996) (cita-
tions omitted).
Here, the Respondent claims that it faced labor short-
ages at various facilities caused, in part, by the wage
rates being offered to current and prospective drivers,
which had not been increased in 3 years; in response, it

9 We find merit in the General Counsel’s cross-exception to the
judge’s failure to find that the Respondent’s promise and grant of the
wage increase also violated Sec. 8(a)(3). We agree with the General
Counsel that this omission was “inadvertent” in light of the judge’s
finding, which we affirm, that the Respondent promised and granted the
increase “in order to dissuade employees from supporting the Union.”
See, e.g., Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961–962,
965 (2004) (employer violated Sec. 8(a)(3) and (1) by “[g]ranting wage
increases designed to undermine the employees’ support for the
[u]nion”).
We also find merit in the General Counsel’s cross-exception to the
judge’s failure to find that the Respondent violated Sec. 8(a)(5) and (1)
by granting the July 1 wage increase without affording the Union notice
and an opportunity to bargain. Unilateral changes made after a Gissel
bargaining obligation has attached violate Sec. 8(a)(5) and (1). See,
e.g., Stevens Creek, supra, at 639, citing Parts Depot, Inc., 332 NLRB
670, 674 (2000), enfd. 24 Fed.Appx. 1 (D.C. Cir. 2001). Here, the
judge found, and we agree, that a bargaining order was warranted retro-
active to June 13, the date the Union obtained majority status.
decided to give wage increases at certain locations
throughout the country. The Respondent announced the
increase for West Coxsackie drivers on June 19 and im-
plemented it on July 1. It also granted increases to em-
ployees at some other locations on May 1, June 1, June 5,
June 29, and July 1.10 Employees at most of these loca-
tions, including West Coxsackie, received an increase of
2 cents per mile, but employees at other locations re-
ceived different amounts.
As the judge acknowledged, it is clear that the Re-
spondent began to consider granting wage increases at
various facilities, including West Coxsackie, before it
became aware of the Union’s organizing drive at West
Coxsackie. But there is no documentary evidence or
credited testimony supporting the Respondent’s conten-
tion that it had decided, before the Union filed the peti-
tion on June 3, that the West Coxsackie drivers would
receive an increase, the amount of the increase, or when
the employees would receive it.11
The Respondent and the dissent point to Hogan’s tes-
timony that he decided in May to grant a wage increase
to employees at three locations, including West Coxsack-
ie. The judge did not explicitly address this testimony,
but his findings make clear that he implicitly discredited
it. In any event, even assuming its truth, Hogan’s testi-
mony establishes only that the Respondent made a gen-
eral decision in May to grant an increase to the West
Coxsackie employees. Nothing in his testimony estab-
lishes that he decided in May when the increase would be
implemented or the amount of the increase. Indeed, im-
mediately after stating that he made the decision to grant
an increase in May, Hogan added that the “next step”
was to “figure out when we’re going to institute the in-
crease” and “work up an analysis on the impact to the
company.”12
The dissent and the Respondent also point to a June 13
email by Director of Operations Charles Johnson, which
set forth three possible wage increases—from 1 cent to 3
cents per mile—and their cost to the Respondent. But
that document actually proves that the Respondent did
not finalize its decision to give a wage increase to the

10 Employees at five additional locations received increases between
July 11 and October 1.
11 Tom Lansing, the Respondent’s vice president, admitted that
there was no “nationwide” increase, and agreed with the judge’s char-
acterization of the Respondent’s increases as “depend[ing] upon the
circumstances at [each] location, a[nd] supply and demand circum-
stances.”
12 With regard to the amount of the raise, the Respondent’s brief
points to page 722 of the hearing transcript, which it claims shows that
“the Company had previously determined to implement a 2-cent/mile
increase at Coxsackie.” But Hogan’s testimony there is that “[i]t
wasn’t a firm decision.”
HOGAN TRANSPORTS, INC. 5
West Coxsackie drivers until, at the earliest, 10 days af-
ter the Union filed the petition. For the foregoing rea-
sons, we agree with the judge that the Respondent has
failed to rebut the inference that the wage increase an-
nounced on June 19 was unlawfully motivated.13
We further find, contrary to the judge, that the Re-
spondent violated Section 8(a)(1) by blaming the Union
for attempting to take away the unlawful wage increase
announced by the Respondent on June 19. The judge
found that the Respondent’s communication “truthfully
announced that the Union had filed charges with the
NLRB challenging the legality of the increases.” Find-
ing that, “[a]t most, it may have misrepresented the rem-
edy” because the Board does not typically require a com-
pany to rescind a wage increase in such cases, the judge
concluded that the Respondent’s conduct did “not rise to
the level of unlawful interference.” We disagree. As
explained above, we adopt the judge’s finding that the
Respondent’s June 19 announcement of the wage in-
crease violated the Act. By accusing the Union of trying
to take the increase away, the June 29 message would
reasonably tend to coerce employees to refrain from vot-
ing for the Union to avoid placing their unlawful raises in
jeopardy.14 See Wellstream Corp., 313 NLRB 698, 707
(1994).
3. Teetsel’s Effective Discharge
We also adopt, for the reasons stated in his decision,
the judge’s finding that the Respondent violated Section
8(a)(3) and (1) by effectively discharging Teetsel by re-
fusing to allow him to rescind his resignation. On excep-
tions, the Respondent argues that the General Counsel
did not carry his initial burden under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), because he failed to
prove that the Respondent knew of Teetsel’s alleged un-
ion activity. The Respondent also contends that, even
assuming it had such knowledge, it did not violate the
Act because it had a legitimate, nondiscriminatory reason
for its conduct. Specifically, the Respondent points to

13 We do not agree with the judge to the extent that he found the
violation based solely on the fact that the Respondent had not decided
the amount of the wage increase before the union filed the petition on
June 3. As explained above, the credited evidence and the weight of
the judge’s findings support our finding that the Respondent did not
make a final decision to grant the increase to the West Coxsackie driv-
ers until after that date.
14 Citing Midland National Life Insurance Co., 263 NLRB 127, 133
(1982), the dissent contends that the Respondent’s statement was lawful
because the Board does not “probe into the truth or falsity of the par-
ties’ campaign statements.” But the Midland rule, which holds that the
Board will not set aside an election because of a party’s misleading
campaign propaganda, does not apply where, as here, the campaign
statement contains a “threat of reprisal or force or promise of benefit.”
Gissel, 395 U.S. at 618.
testimony by Vice President Lansing that “it was very
common knowledge that [Teetsel] was unhappy [with his
pay] . . . . So I thought [the company] would be better
off on getting someone new in there that would appreci-
ate the job they had and would want to stay.”15
We find no merit in the Respondent’s contentions. A
representation election was to take place on July 12. At a
captive-audience meeting on June 19, where Hogan told
employees that he was “strongly against” the Union and
asked them to “vote no,” Teetsel complained that he was
“bitter” about his pay because the Respondent rehired
him at the new employee wage rate when he returned to
the Respondent in 2011 after working for another com-
pany. Later at that meeting, after Hogan mentioned that
the Respondent did not have any union drivers, Teetsel
replied, “Hmm, not now. Not yet.” Given the antiunion
theme of the meeting, the Respondent would reasonably
have interpreted Teetsel’s comments as prounion senti-
ments. Moreover, the timing of the Respondent’s refusal
to allow Teetsel to rescind his resignation—only 6 days
before the scheduled election—suggests that it was moti-
vated by Teetsel’s protected activity. See Masland In-
dustries, 311 NLRB 184, 197 (1993), citing NLRB v.
Rain-Ware, Inc. 732 F.2d 1349, 1354 (7th Cir. 1984).
For these reasons, we find that the General Counsel met
his initial burden under Wright Line by proving that
Teetsel engaged in protected or union activity, that the
Respondent was aware of that activity, and that the Re-
spondent’s action was motivated by antiunion animus.
We further find that the Respondent has not proved
that it would have discharged Teetsel in the absence of
his union activity. As detailed in the judge’s decision,
when Teetsel attempted to rescind his resignation, the
Respondent had a shortage of drivers at the West Cox-
sackie location and was offering bonuses to new drivers
and any employee who referred a new driver. These
facts undermine the Respondent’s assertion that it
“would be better off on getting someone new in there

15 The dissent contends that Teetsel’s June 19 comments did not
constitute protected activity because “there is no evidence that any
other employees were in Teetsel’s predicament or even expressed sup-
port for his personal gripe.” This argument was not raised by the Re-
spondent on exceptions and it is therefore not properly before us. We
would reach the same result, however, even if our colleague’s argument
were properly before us. As mentioned, the Respondent held the June
19 captive-audience meetings to make clear that it opposed the Union.
In such circumstances, Teetsel was engaged in concerted prounion
activity when, at one of those meetings, he told Hogan that he was
“bitter” because the Respondent rehired him at a lower wage rate and
then said “not yet” after Hogan mentioned that the Respondent did not
have any union drivers. See NLRB v. City Disposal Systems, 465 U.S.
822, 831 (1984) (Sec. 7 of the Act “defines both joining and assisting
labor organizations—activities in which a single employee can en-
gage—as concerted activities”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that would appreciate the job.” Moreover, it is notewor-
thy that the Respondent’s own stated reason for refusing
Teetsel’s request—that it was “common knowledge” that
he was “unhappy”—is consistent with the judge’s find-
ing that the Respondent suspected Teetsel would be vot-
ing for the Union.
4. The Bargaining Order
The judge found that the Board’s traditional remedies
cannot alone erase the coercive effects of the Respond-
ent’s conduct, and that a bargaining order is therefore
necessary. We agree.
In Gissel Packing, 395 U.S. at 613–614, the Supreme
Court identified two categories of employer misconduct
that warrant imposition of a bargaining order. Category I
cases are “exceptional” and “marked by ‘outrageous’ and
‘pervasive’ unfair labor practices.” Id. at 613. Category
II cases are “less extraordinary” and “marked by less
pervasive practices which nonetheless still have a ten-
dency to undermine majority strength and impede the
election processes.” Id. at 614. In category II cases, the
“possibility of erasing the effects of past practices and of
ensuring a fair election . . . by the use of traditional rem-
edies, though present, is slight and . . . employee senti-
ment once expressed through cards would, on balance, be
better protected by a bargaining order[.]” Id. at 614–615;
California Gas Transport, Inc., 347 NLRB 1314, 1323
(2006), enfd. 507 F.3d 847 (5th Cir. 2007).
Although the judge did not state which Gissel category
this case falls under, we find that it meets the standard
for category II.16 In reaching this conclusion, we have
examined the “seriousness of the violations and the per-
vasive nature of the conduct, considering such factors as
the number of employees directly affected by the viola-
tions, the size of the unit, the extent of the dissemination
among employees, and the identity and position of the
individuals committing the unfair labor practices.”
Intermet Stevensville, 350 NLRB 1349, 1359 (2007) (ci-
tations omitted).
The Respondent argues that the Board’s traditional
remedies could adequately remedy the violations and that
the case relied on by the judge, Stevens Creek Chrysler
Jeep Dodge, supra, 357 NLRB 633, is distinguishable.
Specifically, the Respondent argues that, unlike the “ex-
tensive list of unfair labor practices” in that case, its
“‘most egregious’ action consisted of its President giving
his heart-felt opinion as to what its sole customer might
do in the event of unionization”; its “second ‘most egre-
gious’ action is Hogan’s decision to continue implement-
ing a pay increase it decided upon before it had

16 The Respondent does not dispute the judge’s finding that the Un-
ion had achieved majority status by June 13, 2013.
knowledge of organizing”; and it did not target the Un-
ion’s main organizer, as, “[w]ithout question, Teetsel
quit his job of his own volition and the Company acted
properly in not permitting him to rescind [his resigna-
tion].” The Respondent also points out that the unit in
this case is twice as big as the unit in Stevens Creek.
Contrary to the Respondent’s contention, however,
Stevens Creek is on point, and the Respondent’s conduct
is well within the bounds of what the Board has found to
warrant a category II Gissel order. The Respondent here
committed three “hallmark” violations, the coercive ef-
fects of which tend to “destroy election conditions, and .
. . persist for longer periods of time than other unfair
labor practices.” Evergreen America Corp., 348 NLRB
178, 180 (2006), enfd. 531 F.3d 321 (4th Cir. 2008), cit-
ing Gissel, 395 U.S. at 611 fn. 31.
First, like the employer in Stevens Creek, the Re-
spondent threatened employees with job loss. “Threats
of plant closure and job loss . . . ‘are among the most
flagrant of unfair labor practices and are likely to affect
the election conditions negatively for an extended period
of time.’” 348 NLRB at 380, quoting Cardinal Home
Products, 338 NLRB 1004, 1011 (2003).
Second, the Respondent unlawfully discharged an em-
ployee for union activity. Teetsel was not a leader of the
Union’s campaign. But like the discharged employee in
Stevens Creek, the Respondent refused to allow him to
rescind his resignation after he challenged the Respond-
ent’s president in front of other employees at a captive-
audience meeting, and because it suspected that he would
be voting for the Union in the upcoming election. In
these circumstances, Teetsel’s discharge would likely
“have a lasting inhibitive effect on a substantial percent-
age of the work force.” Stevens Creek, above, at 638,
quoting NLRB v. Jamaica Towing, Inc., 632 F.2d 208,
212–213 (2d Cir. 1980).
Third, like the employer in Stevens Creek, the Re-
spondent granted employees a wage increase in order to
dissuade them from supporting the Union. This violation
has “a particularly longlasting effect on employees and
[is] difficult to remedy by traditional means not only
because of [its] significance to the employees, but also
because the Board’s traditional remedies do not require a
respondent to withdraw the benefits from the employ-
ees.” Evergreen America, 348 NLRB at 180, quoting
Gerig’s Dump Trucking, 320 NLRB 1017, 1018 (1996),
enfd. 137 F.3d 936 (7th Cir. 1998).
Furthermore, the Respondent accentuated the coercive
effect of these violations by unlawfully interrogating
employees about their support for the Union and by
blaming the Union for attempting to take away the un-
lawful wage increase. Finally, the gravity and coercive
HOGAN TRANSPORTS, INC. 7
impact of all the violations are heightened by the rela-
tively small size of the unit (29 employees), by the fact
that two of the three “hallmark” violations occurred at
captive-audience meetings involving all employees, and
by the involvement of the Respondent’s highest man-
agement officials. See Stevens Creek, above, at 639.
In evaluating the appropriateness of a Gissel order, we
have considered the inadequacy of the Board’s traditional
remedies to remedy the Respondent’s conduct in this
case. Given the severity of the violations, the possibility
of erasing the effects of the Respondent’s unfair labor
practices and of ensuring a fair election by the use of
traditional remedies is slight. Merely requiring the Re-
spondent to refrain from unlawful conduct in the future,
to reinstate Teetsel with backpay, and to post a notice
would not, in our view, be sufficient to dispel the coer-
cive atmosphere that this Respondent has created.
We have also duly considered the Section 7 rights of
all employees involved. As the Board has stated previ-
ously, “the Gissel opinion itself reflects a careful balanc-
ing of the employees’ Section 7 rights ‘to bargain collec-
tively’ and ‘to refrain from’ such activity.” Mercedes
Benz of Orland Park, 333 NLRB 1017, 1019 (2001),
enfd. 309 F.3d 452 (7th Cir. 2002). The rights of the
Respondent’s employees favoring unionization, who
expressed their views by signing authorization cards, are
protected by the bargaining order. The rights of those
employees opposing the Union are safeguarded by their
access to the Board’s decertification procedure under
Section 9(c)(1) of the Act, following a reasonable period
of time to allow the collective-bargaining relationship a
fair chance of success. Id. For all of these reasons, we
agree with the judge that a Gissel order is warranted.17

17 On December 2, 2014, the Respondent filed a motion to reopen
the record for the purpose of adducing evidence of alleged substantial
employee turnover and expansion of the workforce since the judge
imposed the bargaining order, which, it contends, renders that order
presently inappropriate. According to the affidavit of Vice President
Lansing and attached exhibits, only 18 of the Respondent’s 48 current
employees (37.5%) were employed in June 2013 when the Union filed
its petition, and only 9 of the 18 employees who signed union-
authorization cards are presently employed.
Having duly considered the matter, we deny the Respondent’s mo-
tion to reopen the record. The Board traditionally does not consider
turnover among bargaining unit employees in determining whether a
Gissel order is appropriate. See Garvey Marine, Inc., 328 NLRB 991,
995 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001), citing Salvation Army
Residence, 293 NLRB 944, 945 (1989), enfd. mem. 923 F.2d 846 (2d
Cir. 1990). Rather, the Board has consistently held that the validity of a
bargaining order depends on an evaluation of the situation as of the
time the unfair labor practices were committed, and that to hold other-
wise would reward rather than deter unlawful conduct. See State Mate-
rials, Inc., 328 NLRB 1317, 1318 (1999), citing Highland Plastics,
Inc., 256 NLRB 146, 147 (1981), and cases cited there. Consistent
with this policy, the Respondent’s evidence of alleged employee turno-
ver and expansion of the workforce since the unfair labor practices
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 2.
“2. By promising and granting wage increases in order
to dissuade employees from voting for the Union, the
Respondent has violated Section 8(a)(3) and (1) of the
Act.
2. Insert the following as Conclusions of Law 5 and 6
and renumber the subsequent paragraphs.
“5. By blaming the Union for attempting to take away
the wage increase announced by the Respondent on
June 19, the Respondent has violated Section 8(a)(1) of
the Act.”
“6. By granting the July 1 wage increase without af-
fording the Union notice and an opportunity to bargain,
the Respondent has violated Section 8(a)(5) and (1) of
the Act.”
AMENDED REMEDY
In addition to the remedies provided in the judge’s de-
cision, we shall order the Respondent, on request, to
meet at reasonable times and bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
ORDER
The National Labor Relations Board orders that the
Respondent, Hogan Transports, Inc., West Coxsackie,
New York, its officers, agents, successors, and assigns
shall
1. Cease and desist from

were committed is irrelevant to the issuance of the Gissel bargaining
order.
Nevertheless, even if we were to consider the Respondent’s evi-
dence, it would not change the result. As explained above, the Re-
spondent committed three hallmark violations of the Act, which are
likely to affect election conditions in the bargaining unit for an extend-
ed time. Although some of the employees who were employed at the
time of the Respondent’s unlawful conduct may have left the workforce
for reasons unrelated to that conduct, a substantial number (18 out of
48) of unit employees who would recall those events remain in the
Respondent’s employ. Those remaining employees are likely to have
conveyed to any new employees what transpired during the Union’s
organizing campaign in June and July 2013. See State Materials, 328
NLRB at 1317–1318. As the United States Court of Appeals for the
Fifth Circuit has observed, “Practices may live on in the lore of the
shop and continue to repress employee sentiment long after most, or
even all, original participants have departed.” Bandag, Inc. v. NLRB,
583 F.2d 765, 772 (5th Cir. 1978). Accordingly, even if we were to
accept the facts asserted by the Respondent concerning employee turn-
over, those facts would not require a different result.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
(a) Threatening employees with the loss of their jobs
because they joined or assisted Teamsters Local 294,
International Brotherhood of Teamsters.
(b) Promising and granting wage increases in order to
dissuade employees from supporting the Union.
(c) Interrogating employees about their union mem-
bership or support.
(d) Discharging employees because of their union
membership or support or for engaging in concerted pro-
tected activity protected by Section 7 of the Act.
(e) Blaming the Union for attempting to take away the
unlawful wage increase announced on June 19, 2013.
(f) Refusing to recognize and bargain in good faith
with Teamsters Local 294, International Brotherhood of
Teamsters, as the exclusive collective-bargaining repre-
sentative of its employees in the following appropriate
unit:
All full-time and regular part-time drivers employed by
Respondent at its West Coxsackie, New York location;
excluding all guards and all professional employees
and supervisors as defined in the Act.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) On request by the Union, rescind the unlawful
wage increase granted to unit employees on or about July
1, 2013.
(b) Within 14 days from the date of this Order, offer
Mansfield Teetsel full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Mansfield Teetsel whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him.
(d) Compensate Mansfield Teetsel for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 3,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Mansfield Teetsel, and within 3 days thereaf-
ter, notify him in writing that this has been done and that
the unlawful actions will not be used against him in any
way.
(f) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative,
retroactive to June 13, 2013, of employees in the above-
described appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its West Coxsackie facility copies of the attached Notice
marked “Appendix.”18 Copies of the notice, on forms
provided by the Regional Director for Region 3, after
being signed by Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 10, 2013.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 19, 2016

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
HOGAN TRANSPORTS, INC. 9
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I part ways with my colleagues on several issues in
this case. Specifically, and for the reasons explained
below, I believe that the Respondent engaged in lawful
conduct when it (1) predicted, based on objective facts,
that its only customer might terminate its contract with
the Respondent if the Union prevailed in an upcoming
election; (2) granted employees at multiple facilities a
wage increase that was decided upon before the Re-
spondent learned of the union organizing drive at the
facility at issue here, at a time that happened to coincide
with the preelection period; and (3) refused the eleventh-
hour request of an employee who expressed a desire to
rescind his resignation after he resigned, was rehired, and
then resigned a second time. Accordingly, I would dis-
miss these complaint allegations, along with others relat-
ed to them as detailed below.1
1. Respondent’s lawful predictions about the impact of
unionization
The Respondent is engaged in the trucking industry
and employs a nationwide workforce of between 1300
and 1400 drivers. This case involves the Respondent’s
29 drivers at its facility in West Coxsackie, New York,
where they provide trucking services for Save-A-Lot, a
nationwide chain of discount supermarkets.2 Save-A-
Lot’s West Coxsackie distribution center warehouses
food products for its retail stores throughout the North-
east. To service its contract with Save-A-Lot, the Re-
spondent maintained a facility adjacent to the distribution
center. Save-A-Lot is the Respondent’s only customer in
West Coxsackie.
The record clearly supports the judge’s finding that
Save-A-Lot maintained an “expressed hostility to unioni-
zation.” Respondent’s president, David Hogan, testified

1
I agree with my colleagues that the Respondent violated Sec.
8(a)(1) by coercively interrogating employees Steve Ianno and Shane
McDonald. I further agree with my colleagues that it is unnecessary to
pass on the judge’s additional finding that the Respondent unlawfully
interrogated employee Robert Sansone.
2
Charles Johnson, Respondent’s director of operations, testified
without contradiction that Save-A-Lot owns and operates 1200 stores
and 16 distribution centers. The Respondent provides trucking services
at eight of Save-A-Lot’s distribution centers.
that since 1988, Save-A-Lot has repeatedly expressed to
him its intent that it—and its transportation providers—
remain union free. Hogan explained that Save-A-Lot has
boasted to him that its employee handbook states that
Save-A-Lot wants “to be a union free environment.”
There is no record evidence that any of the Respondent’s
facilities have ever been unionized.
Hogan testified without contradiction about multiple
instances when Save-A-Lot has made good on its stated
intent to remain union free. In 1992, Save-A-Lot sub-
contracted trucking services at a St. Louis location after
employees there unionized. In 2003, a union com-
menced an organizing campaign at Save-A-Lot’s Lan-
sing, Michigan distribution center. At that time, a direc-
tor of transportation for Save-A-Lot told Hogan that “de-
pending on how far the organizing attempt goes,” Save-
A-Lot intended to either close that distribution center or
consolidate it with a nonunion facility in Muncie, Indi-
ana, where the Respondent provided nonunion trucking
services.3 In 2010, an executive vice president for Save-
A-Lot told Hogan that Save-A-Lot terminated a Muncie
distribution center manager for failing to establish a good
working relationship with employees because a union
attempted to organize there. Also in 2010, the Respond-
ent and Save-A-Lot conducted a joint seminar for other
employers on how they could remain union free.4 It is
thus no surprise that none of the 1200 stores owned and
operated by Save-A-Lot has unionized employees. Even
more to the point for purposes of the instant case, Save-
A-Lot only uses nonunion carriers.5

3
Hogan further testified that the director of transportation explained
to him that “[i]f we have an issue where we think that there’s an organ-
izing attempt, we can’t be union. So we’re going to have a back up
plan. And they said that Muncie was their back up plan for . . . Lan-
sing. They were very outspoken.”
4
At the December 2013 hearing in this case, Director of Operations
Johnson testified that within the prior 6 months, a Save-A-Lot regional
manager had told him that Save-A-Lot had initiated anti-union cam-
paigns at several of its stores.
5
Save-A-Lot also acts as a franchisor, and employees at a very
small number of franchised Save-A-Lot stores—owned and operated by
franchisees, not by Save-A-Lot—are unionized. (Hogan testified that
“one or two” franchisee stores were unionized; Johnson testified a
“handful” were unionized.) In addition, Super Valu, the parent compa-
ny of Save-A-Lot, had some union operations. There is no allegation or
record evidence that Save-A-Lot is a single or joint employer with any
of its franchisees or Super Valu. Nor is there any evidence that Save-
A-Lot controls or has the right to control its franchisees’ labor relations
or that Super Valu controls or has the right to control Save-A-Lot’s
labor relations or its choice of carriers. Thus, the fact that Super Valu
and “one or two” or a “handful” of franchised Save-A-Lot stores have
some union-represented employees is irrelevant. As to operations
directly within Save-A-Lot’s control (the 1200 stores it owns and oper-
ates) and carriers with which Save-A-Lot chooses to contract, Save-A-
Lot has met its explicit goal of remaining union free.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
In May 2013, the Union began an organizing campaign
at the Respondent’s West Coxsackie facility.6 The Re-
spondent learned of that campaign on June 3, when the
Union filed an election petition. The parties scheduled
an election for July 12. Around this time, Hogan notified
Save-A-Lot Executive Vice President John Gerber about
the upcoming election. Gerber asked that Hogan update
him about the progress of the campaign and stated,
“We’ll support you any way that we can. If there’s any-
thing that we need to do.” Because the Respondent’s
trucking operations were located on the same property as
Save-A-Lot’s distribution center, Hogan expressed to
Gerber a concern that campaign-related labor disputes
might disrupt Save-A-Lot’s operations, and Hogan sug-
gested moving the Respondent’s operations to property
across the street. Gerber agreed.7
The issue here is whether the Respondent made lawful
predictions or unlawful threats about the effect that un-
ionization would have on its West Coxsackie operations.8
This issue centers on the following remarks made by
Hogan during a June 19 employee meeting:9
Hogan: I can tell you Save-A-Lot made this clear to
me, we don’t have any transportation providers who
will deliver to our stores in the country that are union.
So they said you need to keep that in mind when you
guys are working through the issue here. I don’t know
how to be more direct, but I think our business here is
in jeopardy if the union comes in. It’s not a threat, it’s
just my opinion with my discussions with Save-A-Lot
when they remind me of how they operate. They don’t
want to operate in union environment, all that stuff.
Employee: [I]f we go union, we’re all out of a job.
Hogan: I agree 110% with that and I am just being
honest with you. If it’s organized here I think Save-A-
Lot goes in a different direction. And you know, I
think we can do a great job for Save-A-Lot but let’s
face it, we are not irreplaceable. I have said a lot about
Save-A-Lot today. I’m not here to bash Save-A-Lot

6
All subsequent dates are in 2013 unless otherwise indicated.
7
I join my colleagues in adopting the judge’s dismissal of the alle-
gation that the Respondent violated Sec. 8(a)(1) of the Act by moving
its operations across the street. I also join my colleagues in adopting
the judge’s dismissal of the allegation that the Respondent helped em-
ployees revoke their union authorization cards.
8
The distinction between lawful “predictions” and unlawful
“threats” is based on the analysis of the Supreme Court in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969), quoted in the text accompa-
nying fn. 11, infra.
9
An employee recorded the meeting on his cell phone, so we have a
verbatim record of what Hogan said.
because again they could easily pull the business from
us at any time. Over the years they have that right for
whatever reason. It’s one of our longer term custom-
ers. But again they have always made it clear the envi-
ronment they want to work in. And they said what’s
this about the Union? And when they select their carri-
er that’s always one of the questions they ask. So you
know, they’re concerned about it. When they hear
about drivers talking about work stoppage, that doesn’t
go over well. [A]gain, my opinion is we got to contin-
ue to work together because if you guys organize there
is a strong possibility we lose the business. I do not
want anyone to tell me two months down the road why
didn’t you mention that to us.
In addition, at a July 8 meeting with employees, Hogan
briefly reiterated his earlier remarks, stating that “if the Un-
ion comes in here I feel like there’s probably not much to
talk about because there won’t be jobs. We’ve got one cus-
tomer here and that customer, in my opinion, is going to go
down the road and find an alternative solution.”
The judge found that Hogan was “careful to couch
[his] message in terms of what could happen” and that
“this is what they [the Respondent] believed the custom-
er [Save-A-Lot] would do if the employees voted for the
Union.” The judge noted that the Respondent did not tell
employees that it would cease operating the facility if
employees voted for the Union or that it would discharge
employees for supporting the Union. Nevertheless, the
judge found that Hogan’s assertions were not based on
objective facts but on mere speculation. Accordingly, he
found that Hogan’s remarks tended to interfere with,
restrain or coerce employees in the exercise of their Sec-
tion 7 right to unionize in violation of Section 8(a)(1) of
the Act. My colleagues agree with the judge’s finding. I
do not. Having carefully reviewed the entire record, I
would find that Hogan’s remarks were predictions based
on objective facts and thus did not violate the Act.
The applicable standard is firmly grounded in the Act
itself. NLRA Section 8(c) protects the free-speech right
of all parties that are subject to the Act. It provides that
“[t]he expressing of any views, argument, or opinion . . .
shall not constitute or be evidence of an unfair labor
practice . . . if such expression contains no threat of re-
prisal or force or promise of benefit.”10 In NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969), the Supreme
Court explained how an employer may remain within the
protection of Section 8(c) when it predicts the effects it
believes unionization will have on its company. The
Court said this:

10
Sec. 8(c) (emphasis added).
HOGAN TRANSPORTS, INC. 11
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a “threat of reprisal or
force or promise of benefit.” He may even make a pre-
diction as to the precise effects he believes unionization
will have on his company. In such a case, however, the
prediction must be carefully phrased on the basis of ob-
jective fact to convey an employer’s belief as to demon-
strably probable consequences beyond his control.11
Thus, the question we must answer is whether Hogan’s
predictions concerning what Save-A-Lot—the only cus-
tomer the Respondent serviced out of its West Coxsackie
facility—might do if the Respondent’s drivers unionized
were based on objective fact to convey Hogan’s belief as
to demonstrably probable consequences beyond his con-
trol. I believe they were, and closely applicable prece-
dent supports my conclusion that Hogan’s remarks were
lawful.
In TNT Logistics North America, Inc., 345 NLRB 290
(2005), the Board found that the respondent trucking
company did not violate the Act when its supervisors
told an employee that its primary customer, Home Depot,
would cancel its contract if employees voted to unionize.
Id. at 290–291. The supervisors stated that “Home De-
pot doesn’t like the Union; that if the Union comes in we
wouldn’t have a job with Home Depot,” and they ex-
plained that “Home Depot does not have any union carri-
ers doing home delivery services.” Id. at 290. The
Board found that the supervisors had an objective basis
for their prediction based on three uncontroverted facts:
(1) Home Depot did not like using unionized carriers, (2)
Home Depot did not use unionized carriers, and (3) the
company’s contract with Home Depot was set to expire
in five months. Id. at 291. The Board noted that Home
Depot’s actions “were beyond the Employer’s control”
and that the prediction did not include “threats . . . or
comments against the [u]nion.” Id.
The uncontroverted facts here are strikingly similar to
those in TNT Logistics. It is undisputed that Save-A-Lot
does not like using unionized carriers and has never used
unionized carriers. Hogan testified without contradiction
that since 1988—i.e., over the course of 25 years as of
the time of the events at issue in this case—Save-A-Lot
had consistently communicated to him that it would not
permit unionization among its employees and will only
work with nonunion carriers. When Hogan reported the
organizing campaign to Save-A-Lot, Save-A-Lot neither
said nor did anything to contradict this oft-repeated and

11
395 U.S. at 618 (emphasis added).
consistent message. Its executive vice president prom-
ised to “support [the Respondent] in any way that we
can” (a promise that, in context, could only have meant
support in opposing the union drive), he requested that
Hogan keep him updated concerning the union cam-
paign, and he agreed that the Respondent should take the
significant step of relocating its facility to avoid the pos-
sibility of disrupting Save-A-Lot’s operations. Save-A-
Lot’s well-established “hostility to unionization,” in the
judge’s own words, is further confirmed by Director of
Operations Johnson’s testimony that a Save-A-Lot re-
gional manager told him that Save-A-Lot had initiated
anti-union campaigns at several of its stores. And, like
the situation faced by TNT Logistics in its relationship
with Home Depot, where the parties’ contract was set to
expire in 5 months, the record here establishes that Save-
A-Lot could easily terminate its business relationship
with the Respondent. Under the parties’ contract, Save-
A-Lot could provide notice of termination, without
cause, at any time.12 In this regard, Hogan testified with-
out contradiction that if Save-A-Lot moved to terminate
the West Coxsackie contract, the Respondent would have
little leverage to negotiate with Save-A-Lot given the
competitive nature of the trucking industry and the Re-
spondent’s desire to maintain its other Save-A-Lot con-
tracts. Finally, as the judge correctly noted, Hogan’s
remarks did not include any threats that the Respondent
would close the facility or discharge employees for sup-
porting the Union.
There are additional facts here that further strengthen
the rationale for finding Hogan’s June 19 and July 8 re-
marks lawful, making this an even clearer case than TNT
Logistics. Hogan provided specific examples of occa-
sions when Save-A-Lot has done more than merely
communicate a general dislike of unions and a disinclina-
tion to use unionized carriers. He testified that in 1992,
Save-A-Lot outsourced trucking services after drivers at
a St. Louis facility unionized. He testified that in 2003,
Save-A-Lot told Hogan that if employees at its Lansing,
Michigan distribution center unionized, it was prepared

12
Although Save-A-Lot could give notice of termination at any
time, the contract provides that any termination would be effective on
its anniversary date, so long as at least 3 months’ written notice had
been given. In this regard, the contract states that it “continues until
either Party terminates this Agreement,” and termination is accom-
plished “if the terminating Party gives at least three (3) months’ prior
written notice of such termination to the other Party and the date set
forth as the effective termination date is an anniversary of the Com-
mencement Date.” Aside from these temporal limitations, the contract
places no limits on either party’s ability to terminate it. Thus, if the
Respondent’s employees unionized, Save-A-Lot was free to give notice
of termination immediately, and contract termination would be effec-
tive the following February.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
to shut down that facility. He testified that in 2010,
Save-A-Lot terminated a manager because employees at
his location attempted to organize. Finally, Hogan testi-
fied that Save-A-Lot had conducted a seminar with the
Respondent to teach other employers how to remain un-
ion free.
Moreover, in his remarks to employees, Hogan fur-
nished support for his predictions regarding the probable
consequences if employees unionized. He referred to his
“discussions with Save-A-Lot when they remind me of
how they operate.” He accurately explained that Save-A-
Lot has no “transportation providers who will deliver to
[their] stores in the country that are union,” and that
Save-A-Lot does not “want to operate in [a] union envi-
ronment.” He referred to the 2003 Lansing, Michigan
incident by noting that “[w]hen they hear about drivers
talking about work stoppage, that doesn’t go over well.”
Hogan also accurately referred to Save-A-Lot’s ability to
cancel its contract with the Respondent by stating that
Save-A-Lot “could easily pull the business from us at
any time . . . . [T]hey have that right for whatever rea-
son.” Thus, Hogan explained to employees the context
of and basis for his predictions. Cf. DTR Industries, 350
NLRB 1132, 1133 (2007) (finding that employer’s pre-
diction of job loss violated the Act where, among other
things, the employer did not provide employees with the
“context and basis for” its prediction).
In sum, I believe that these undisputed facts furnished
an objective basis for Hogan’s June 19 statements that
“our business is in jeopardy if the union comes in” and
“[i]f it’s organized here I think Save-A-Lot goes in a
different direction.”13 These were not threats, but rea-
sonable predictions based on objective facts of all-too-
probable consequences entirely within Save-A-Lot’s
control and beyond Hogan’s control.14 Accordingly, I

13
I also believe that these same undisputed facts furnished an ob-
jective basis for Hogan’s subsequent July 8 statement to employees,
which included the prediction that Save-A-Lot would “go down the
road and find an alternative solution” if employees unionized. As the
judge found, the import of Hogan’s July 8 statement was “the same as
[Hogan’s statement at] the previous meeting held on June 19.”
14
In finding Hogan’s predictions unlawful, my colleagues say there
is no evidence that anyone from Save-A-Lot ever told the Respondent
that it would cancel the contract if Respondent’s employees unionized.
Such a declaration is not necessary to render Hogan’s statements law-
ful. See TNT Logistics, supra (finding respondent’s prediction that
employees “wouldn’t have a job with Home Depot” if they unionized
lawful, absent evidence that Home Depot told respondent it would
cancel their contract if the union came in). If Save-A-Lot had told
Hogan that it would cancel their contract, Hogan could have made an
announcement to the drivers regarding the certain consequences of
unionization. Under the applicable standard, however, the issue is
whether Hogan’s predictions were based on objective fact to convey his
belief as to probable consequences beyond his control. Gissel, supra.
Probability, not certainty, is the standard; and for the reasons set forth
would reverse the judge’s finding of an unfair labor prac-
tice.15
2. The wage increase
During the three years prior to 2013, the Respondent
did not increase wages at any of its facilities. By the
spring of 2013, the Respondent faced labor shortages at
many of its facilities, including West Coxsackie, in part
because its wages were not competitive. Director of Op-

in the text, I believe Hogan’s predictions were based on objective facts,
and the consequences if the drivers unionized were all too probable.
My colleagues also emphasize two isolated portions of Hogan’s re-
marks: that Save-A-Lot could “pull the business . . . at any time,” and
that Hogan agreed “110%” with an employee’s statement that “if we go
union, we’re all out of a job.” I disagree that these statements warrant
an unfair labor practice finding. As to the first statement, although any
termination of the relationship by Save-A-Lot would be effective on the
anniversary date of the contract (not “at any time”), Save-A-Lot could
give notice of termination at any time. The contract requires that Save-
A-Lot give “at least” 3 months’ notice of its intent to terminate the
contract. Thus, if the Respondent’s drivers unionize, Save-A-Lot could
immediately announce its intent to “pull the business” from the Re-
spondent. Hogan also stated that Save-A-Lot can terminate the contract
for any reason, which is corroborated by the absence from the contract
of any “cause” requirement for termination on at least 3 months’ notice.
As to Hogan’s “110%” remark, he did not offer it independently but
rather in response to a statement made by an employee, and he sur-
rounded that remark with more qualified statements: “I think Save-A-
Lot goes in a different direction”; “I think our business here is in jeop-
ardy”; “it’s just my opinion”; and there is “a strong possibility we lose
the business” (emphasis added). In this context, it was lawful for Ho-
gan to give an affirmative answer to the question posed by the employ-
ee, and his expression of opinion is not rendered unlawful merely be-
cause he said that he agreed “110%” rather than providing some other
affirmative response. Regardless of the precise language he used, it is
uncontroverted that Hogan carefully qualified any suggestion that un-
ionization would automatically lead to job loss. Particularly when
viewed in context—i.e., Hogan’s more nuanced statements—the isolat-
ed remarks emphasized by my colleagues do not render unlawful Ho-
gan’s reasonable and objectively based predictions.
15
See also Curwood, Inc., 339 NLRB 1137 (2003), enfd. in part,
vacated in part and remanded 397 F.3d 548 (7th Cir. 2005); Tri-Cast,
Inc., 274 NLRB 377 (1985). In Curwood, an employer sent employees
a preelection letter stating: “Being unionized is also viewed negatively
by our customers. They are concerned about potential work stoppages
and product interruptions, which would harm their business. That’s
why we say remaining union-free affects our business and our liveli-
hood.” 339 NLRB at 1137. The Board found the letter lawful because,
consistent with their past practice, several of the employer’s customers
raised concerns about the impact of potential work stoppages, under-
scoring “just how much of a concern such disruptions really are for
those customers.” Id. at 1137–1138. In Tri-Cast, an employer told
employees that if, as a result of unionization, it had to “bid higher or
customers feel threatened because of delivery cancellations (union
strikes) we lose business—and jobs.” 274 NLRB at 378. The employ-
er also stated that it could not “stay healthy with union restrictions” and
would “lose the flexibility we need to . . . beat the competition.” Id.
The Board found no objectionable conduct in “[m]aking these reasona-
ble possibilities known to employees,” explaining that “[h]igher bids or
customer feelings of dissatisfaction because of problems caused by
union strikes can lead to lost business and lost jobs.” Id. (emphasis in
original).
HOGAN TRANSPORTS, INC. 13
erations Johnson testified that because the Respondent
was having difficulty recruiting and retaining drivers at
its West Coxsackie facility, it began offering several in-
centives there, including bonuses for employees who
referred new drivers and sign-up bonuses for new driv-
ers. Hogan testified that in late April to early May, the
Respondent decided to increase wages at various loca-
tions throughout the country, including West Coxsackie.
The judge found that there was “no doubt that the Re-
spondent began to seriously consider wage increases for
employees at its various facilities before May 2013,” but
the Respondent did more than simply “seriously consid-
er” wage increases. It is undisputed that on May 1, it
began implementing wage increases at multiple facilities.
St. Louis, Missouri drivers received a 2-cents-per-mile
increase on May 1; Austinburg, Ohio drivers received a
1-cent-per-mile increase on June 1. A May 4 e-mail
from Operations Manager Jim Lauda to Director of Op-
erations Johnson reveals that a West Coxsackie driver
was aware of the Austinburg wage increase nearly a
month before it happened. Hogan testified that the Re-
spondent decided before June 3, when it learned of the
union organizing drive, to grant a wage increase at West
Coxsackie. By June 13, the Respondent was determining
the amount of that increase: a June 13 email shows
Johnson considering an increase of 1 to 3 cents per mile.
On June 19, the Respondent formally announced a 2-
cents-per-mile increase at West Coxsackie, which it im-
plemented July 1. After July 1, the Respondent contin-
ued to implement wage increases at additional facilities.
The record includes a September 17 email showing that
the Respondent granted wage increases at a total of 13
facilities. For the most part, employees received either a
2 percent or 2-cents-per-mile increase.
The judge found that the Respondent promised and
granted the West Coxsackie wage increase to dissuade
employees from supporting the Union, in violation of
Section 8(a)(1). He acknowledged Hogan’s testimony
that the Respondent decided to grant the West Coxsackie
wage increase prior to June 3, and he did not discredit
that testimony. He faulted the Respondent for not offer-
ing documentary evidence to corroborate Hogan’s testi-
mony, but the mere fact that more evidence regarding the
timing of the decision was not introduced does not render
Hogan’s sworn, uncontradicted testimony insufficient to
support a finding that the decision was made before June
3. And the judge apparently accepted Hogan’s testimony
regarding the timing of the decision to grant the West
Coxsackie increase, since he based his unfair labor prac-
tice finding on evidence that the Respondent settled on
the precise amount of the West Coxsackie increase after
June 3. The relevant question, however, is when the de-
cision to grant the increase was made, not when the
amount of the increase was determined. An employer
confronted with a union organizing campaign must de-
cide whether to grant or withhold benefits precisely as it
would if the union were not on the scene. See, e.g.,
United Airlines Services Corp., 290 NLRB 954, 954
(1988).16 If a wage increase is “part of an already estab-
lished company policy and the employer did not deviate
from that policy upon the advent of the Union,” the em-
ployer’s announcement and implementation of the in-
crease prior to the election is lawful. American Sunroof
Corp., 248 NLRB 748, 748–749 (1980) (finding employ-
er’s announcement of pension plan the day before the
election lawful, where the pension plan “was conceived
prior to the campaign and it covered employees at other
locations not involved in the election”), modified on oth-
er grounds 667 F.2d 20 (6th Cir. 1981). Indeed, an em-
ployer that has already decided to grant a wage increase
before learning of an organizing drive would violate the
Act if it withheld the increase. See, e.g., Famous-Barr
Co., 174 NLRB 770, 770 (1969) (finding that employer
violated Section 8(a)(1) when it granted wage increase to
other employees but withheld increase from unit em-
ployees who “were still involved in the representation
campaign”).17 There is no basis in law or logic to apply a
different rule where an employer had already decided to
grant a wage increase before learning of a union organiz-
ing drive but had yet to determine the precise amount of
the increase. That employer’s duty would be to grant the
increase, regardless of the fact that the amount of the
increase necessarily would have to be determined after it
learned of the union drive.18 That employer is the Re-
spondent.

16
United Airlines Services Corp., supra, was a representation case,
but the same principle applies in unfair labor practice cases. See, e.g.,
SBM Management Services, 362 NLRB No. 144, slip op. at 1 (2015).
17
Although a wage increase decided upon before the employer
learns of union activity must be granted, an employer may postpone
granting the increase until after the election provided it informs its
employees that (i) the increase is being postponed until after the elec-
tion to avoid creating the appearance of interfering with the employees’
free choice, and (ii) the increase will be given after the election regard-
less of its outcome. See, e.g., Uarco Inc., 169 NLRB 1153, 1154
(1968). However, the law does not require employers to postpone the
increase.
18
One could, of course, imagine a situation where the amount de-
cided upon, in light of the relevant circumstances, would support an
inference of intent to discourage union support. See, e.g., Lampi,
L.L.C., 322 NLRB 502, 502–503 (1996) (finding that preelection wage
increase violated the Act where, among other things, it was three times
larger than the increase given the previous year). But that is not the
situation here: as explained above, the 2-cents-per-mile increase grant-
ed to employees at West Coxsackie was right in line with the increases
the Respondent granted at 12 other facilities within the same time
frame.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
The judge relied on timing alone to find the increase
presumptively unlawful. Contrary to the judge, when an
employer announces and/or grants employees increased
wages or benefits during a union organizing campaign,
the Board does not rely on any presumption that the an-
nouncement or grant is unlawful. Holly Farms Corp.,
311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir.
1995), affd. 517 U.S. 392 (1996). Rather, the Board de-
termines whether “an inference of improper motivation
and interference with employee free choice” is to be
drawn “from all the evidence presented.” Id. In making
this determination, the Board examines the size of the
benefit conferred, the number of employees receiving it,
the timing of the benefit, and how employees reasonably
would view the purpose of the benefit. STAR, Inc., 337
NLRB 962, 962–963 (2002). Moreover, the employer
may rebut any inference of coercive intent by establish-
ing a legitimate business reason for the timing and grant
of the benefit. Id. at 962.
I would find that the Respondent has proven a legiti-
mate business reason for the timing and grant of the West
Coxsackie wage increase. Hogan testified without con-
tradiction that the Respondent had already decided to
grant a wage increase at West Coxsackie before it
learned of the Union’s organizational campaign. While
the judge and the majority note the absence of documen-
tary corroboration,19 the totality of the circumstances
support Hogan’s testimony by making clear that the West
Coxsackie wage increase was simply part of a broader
wage increase program, which the General Counsel does
not allege to be unlawful. Undisputed evidence estab-
lishes that because its wages had become uncompetitive,
the Respondent faced a shortage of drivers at many of its
locations, including West Coxsackie. The undisputed
evidence also demonstrates that the Respondent decided
to address this issue at multiple locations by increasing
wages, and that it began increasing wages well before it
learned of the organizing drive at West Coxsackie on
June 3, beginning with the May 1 increase in St. Louis
and the June 1 increase in Austinburg, Ohio. The evi-
dence also establishes that at least one West Coxsackie
driver was aware as early as May 4 that wages were
about to be increased in Austinburg, putting additional
pressure on the Respondent to follow suit promptly in
West Coxsackie. In all, the Respondent granted wage

19 Our statute requires that Board findings be supported by a “pre-
ponderance” of the evidence. Sec. 10(c). As I have stated elsewhere,
the Board must base its findings on the record evidence that has been
admitted, and we may not properly disregard uncontroverted evidence
“merely because it could have been stronger, more detailed, or support-
ed by more specific examples.” Cook Inlet Tug & Barge, 362 NLRB
No. 111, slip op. at 3 (2015) (Member Miscimarra, dissenting).
increases at 13 locations in 2013, and the West Coxsack-
ie 2-cents-per-mile increase was right in line with the
increases drivers at other facilities received.20 Thus, the
size of the benefit and the number of employees receiv-
ing it both run counter to any inference that the increase
at West Coxsackie was motivated by a purpose to inter-
fere with employee free choice, and the temporal proxim-
ity of that wage increase to the union campaign was mere
happenstance.
Moreover, the record supports a conclusion that the
West Coxsackie drivers would have reasonably viewed
their wage increase as part of the Respondent’s lawful,
multi-facility initiative to address wage stagnation and
understaffing, not as a response to the election petition.
Prior to any union activity, the Respondent implemented
sign-on and referral bonuses in West Coxsackie in an
attempt to increase the number of drivers there. Because
employees already knew that the Respondent was pursu-
ing fiscal efforts to address its driver shortage, they
would have reasonably viewed the Respondent’s subse-
quent announcement of a wage increase as another step
in that process. Indeed, at least one West Coxsackie
driver was aware that the Respondent was implementing
wage increases elsewhere before the election petition was
even filed. In sum, I would find the Respondent lawfully
announced and granted the wage increase.21
On a related issue, and contrary to my colleagues, I
would adopt the judge’s dismissal of the allegation that
the Respondent violated Section 8(a)(1) by telling em-
ployees that the Union had challenged the West Cox-
sackie wage increase and asked the Board to seek an in-
junction forcing the Respondent to rescind it. This
statement was accurate. The Union had challenged the
West Coxsackie wage increase: it had filed a charge
with the Board alleging that the wage increase was un-

20 Contrary to my colleagues’ assertion that Vice President Tom
Lansing admitted that the Respondent did not implement a “nation-
wide” wage increase, Lansing simply admitted that the Respondent did
not grant wage increases at different locations “at the same time.” The
facts plainly demonstrate that the increase at West Coxsackie was part
of a broader plan to increase wages at multiple facilities.
21 My colleagues’ finding to the contrary puts the Respondent in a
difficult situation. Had it withheld the increase at West Coxsackie, the
evidence that a series of increases had been decided upon and was
already underway before the Respondent learned of the union organiz-
ing drive at West Coxsackie almost certainly would have elicited a
charge and complaint alleging a violation of the Act for withholding the
increase. As I have stated elsewhere, it is unfair to interpret the Act in
such a manner as to place a party in violation of the Act no matter what
it does. See Arc Bridges, Inc., 362 NLRB No. 56, slip op. at 6–7
(2015) (Member Miscimarra, dissenting); see also First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 678–679 (1981) (a party
must have “certainty beforehand as to when it may proceed to reach
decisions without fear of later evaluations labeling its conduct an unfair
labor practice”).
HOGAN TRANSPORTS, INC. 15
lawful, which became the basis for the Board’s injunc-
tion proceedings against the Respondent pursuant to Sec-
tion 10(j) of the Act.22 And rescission of the wage in-
crease was a potential outcome of the injunction proceed-
ing: the Regional Director’s petition for injunctive relief
under Section 10(j) asked the district court to order re-
scission of the wage increase upon the Union’s request.
In any event, the Respondent’s statement was campaign
speech, and under the well-established Midland standard,
I believe the employer’s statement about the Union’s role
in the pending injunction proceeding and the potential
consequences of the litigation must be considered lawful.
See Midland National Life Insurance Co., 263 NLRB
127, 133 (1982) (the Board does not “probe into the truth
or falsity of the parties’ campaign statements”).23
The case cited by my colleagues, Wellstream Corp.,
313 NLRB 698 (1994), is distinguishable. There, an
employer violated the Act by telling employees that it
would have to withhold a promised wage increase be-
cause the Board would not permit such action during a
union dispute. Id. at 707. The Board reasoned that when
an employer “attributes to the Union its failure to grant a
pay raise, it violates Section 8(a)(1).” Id. As the judge
in this case found, the Respondent’s statement did not
fall within the narrow category of cases like Wellstream
because it did not add “insult to injury” by blaming the
Union for a refusal to grant an earlier-promised benefit.
Here, the Respondent promised and granted a wage in-
crease.
3. Teetsel’s resignation
Mansfield Teetsel worked for the Respondent from
2004 until June 2011, when he resigned after finding
work with another employer.
In December 2011, Teetsel asked the Respondent to
rehire him. The Respondent agreed, but set Teetsel’s

22 Sec. 10(b) of the Act authorizes the Board to investigate any
charges that allege a party has engaged in an unfair labor practice as
defined in the Act and to issue a complaint “stating the charges in that
respect,” which becomes the basis for the Board’s subsequent unfair
labor practice proceedings. In turn, Sec. 10(j) authorizes the Board,
“upon issuance of a complaint . . . charging that any person has en-
gaged in or is engaging in an unfair labor practice,” to seek an injunc-
tion for “appropriate temporary relief or [a] restraining order.”
23 My colleagues claim that the Midland rule does not apply here
because the Respondent’s statement contained a threat of reprisal or
force or promise of benefit. In my view, this contention makes no
sense. The statement concerned what the Union had done, not what the
Respondent would do. A statement about what another party has done
cannot constitute a threat or promise, for two reasons. First, a state-
ment concerning what has been done concerns the past, and threats and
promises are statements about what may or will be done in the future.
Second, a statement concerning action by another party cannot consti-
tute a threat or promise, since threats and promises are statements con-
cerning what the speaker may or will do (or cause to be done).
salary at the then-current starting rate, which was less
than Teetsel was earning when he resigned.
At Hogan’s June 19 meeting with employees, Teetsel
complained about his pay. The judge found that Teetsel
stated as follows: “You want people to be loyal, which
I’m still you know . . . but that makes me bitter. I mean,
I can see you keeping me down to the bottom for a year;
it’s going on two years now. So it makes you real bit-
ter.”
Around that same time, Teetsel resigned from the Re-
spondent a second time after giving notice that he had
accepted a position with another company. Teetsel ad-
vised the Respondent that his last day would be July 5.
On July 5, Teetsel told the Respondent that he had
changed his mind and wanted his job back. The Re-
spondent refused to rescind its acceptance of Teetsel’s
second resignation, and Vice President Lansing testified
that he did so because “he thought that the company
would be better off with a new employee who would
appreciate the job instead of Teetsel who had resigned
once before.” Lansing added that it was “common
knowledge” that Teetsel was “bitter” about his pay.
My colleagues find that the Respondent violated the
Act by refusing to permit Teetsel to rescind his second
resignation. In finding that the General Counsel met his
initial burden under Wright Line24 to prove that protected
activity was a motivating factor in the Respondent’s de-
cision, the majority finds that Teetsel engaged in protect-
ed activity during the June 19 employee meeting.
I disagree with my colleagues because the record does
not establish that Teetsel engaged in protected concerted
activity, which is a prerequisite to any finding that the
General Counsel has satisfied his initial burden under
Wright Line. As I explained in Fresh & Easy Neighbor-
hood Market,25 the presence or absence of protected ac-
tivity turns on whether Section 7’s statutory requirements
are met—i.e., whether there is “concerted” activity by
two or more employees engaged in “for the purpose of
collective bargaining or other mutual aid or protection.”26

24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). As to the judge’s characterization of the
Wright Line standard, I would adhere to the formulation I described in
Starbucks Coffee Co., 360 NLRB No. 134, slip op. at 6 fn. 1 (2014)
(Member Miscimarra, concurring), and Libertyville Toyota, 360 NLRB
No. 141, slip op. at 9 fn. 5 (2014).
25 See 361 NLRB No. 12, slip op. at 13 (2014) (Member
Miscimarra, dissenting in part).
26 Sec. 7 of the Act states in relevant part that employees “shall have
the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also
have the right to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring mem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
And as the Third Circuit explained in Mushroom Trans-
portation, “[a]ctivity which consists of mere talk must, in
order to be protected, be talk looking toward group ac-
tion . . . . [I]f it looks forward to no action at all, it is
more than likely to be mere ‘griping.’”27
Applying these long-settled principles, I believe that
Teetsel’s June 19 comments did not constitute protected
activity. When Teetsel sought to return to the Respond-
ent after his first resignation, the Respondent agreed to
rehire Teetsel and did so at the wage rate for new hires.
Teetsel’s statement that he was “bitter” due to the Re-
spondent “keeping me down to the bottom” plainly re-
ferred to his unhappiness with his own wage rate. The
statement was not forward-looking, and there is nothing
to suggest that Teetsel had an object of initiating, induc-
ing, or preparing for group action. Indeed, there is no
evidence that any other employees were in Teetsel’s pre-
dicament or even expressed support for his personal
gripe. See Meyers II, supra (for mere conversation be-
tween a speaker and listeners to constitute concerted ac-
tivity, it must have “‘some relation to group action in the
interest of the employees’”) (quoting Mushroom Trans-
portation, 330 F.2d at 685). In addition, given the indi-
vidualized nature of Teetsel’s wage gripe, I disagree with
my colleagues that the Respondent would have interpret-
ed it as demonstrating that Teetsel harbored “prounion
sentiments.”28
In the absence of unlawful discrimination or retaliation
based on protected concerted activities, nothing in the
NLRA creates a statutory right for an employee to resign,
get reemployed, exhibit bitterness about his treatment by
the employer, resign again, and then insist on being
reemployed. At some point—which I believe has been
reached in this case—an employer can accept an em-
ployee’s resignation(s) at face value, resulting in the ter-
mination of his employment. In this regard, Section
10(c) of the Act states that “[n]o order of the Board shall
require the reinstatement of any individual as an employ-
ee who has been . . . discharged, or the payment to him
of any backpay, if such individual was . . . discharged for

bership in a labor organization as a condition of employment as author-
ized in section 8(a)(3).”
27 Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964). The Board adopted the Mushroom Transportation standard
in Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988).
28 Contrary to my colleagues, I do not believe that the Respondent
would have concluded that Teetsel was prounion from the fact that
Teetsel said “not yet” after Hogan remarked that the Respondent did
not have any union drivers. This retort simply reflected the drivers’
current nonunion status and the possibility that their status might
change. Without more, I do not believe it can reasonably be interpreted
as expressing support for the Union’s efforts to organize drivers.
cause.” In the circumstances presented here, the em-
ployer had reasonable “cause” to believe that Teetsel, an
unhappy employee, meant it when he tendered his resig-
nation for the second time. Our statute prohibits unlaw-
ful discrimination or retaliation based on protected con-
certed activity, but it does not require an employer to
disregard multiple resignations by an individual who has
repeatedly expressed unhappiness about and dissatisfac-
tion with his personal treatment.
Because the General Counsel has failed to establish
that Teetsel’s comments constituted protected activity, I
would find that he has failed to establish his initial bur-
den under Wright Line.29 Accordingly, I would reverse
the judge and find no violation.
In the ways and for the reasons set forth above, I re-
spectfully dissent.
Dated, Washington, D.C. May 19, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

29 Even if the General Counsel had met his initial Wright Line bur-
den, I would find that the Respondent did not violate the Act because it
would have refused to rescind Teetsel’s resignation even in the absence
of any protected activity. Teetsel had a history of working for the
Respondent, resigning, and then asking the Respondent for re-
employment. Teetsel tried to do it again here. I thus find persuasive
Lansing’s testimony that he refused to accept Teetsel’s rescission of his
resignation because he felt that the Respondent “would be better off []
getting someone new in there that would appreciate the job they had
and would want to stay.” While the General Counsel presented evi-
dence that the Respondent had permitted other employees to work on a
casual basis—which Teetsel requested after the Respondent refused to
rescind its acceptance of his resignation—there is no evidence that any
of those employees had a similar history of repeated resignations or that
they engaged in unprotected mere griping about wages.
Because I would find that the Respondent’s sole violation of the Act
was its unlawful interrogation of employees Ianno and McDonald, I
believe a Category II Gissel bargaining order is unwarranted. Accord-
ingly, I find it unnecessary to reach the Respondent’s request to reopen
the record to consider employee turnover. In appropriate cases, howev-
er, I would apply Douglas Foods Corp. v. NLRB, 251 F.3d 1056 (D.C.
Cir. 2001), in which the court pertinently held that “where only catego-
ry II abuses are found . . . the Board must carefully consider employee
turnover.” Id. at 1066 (emphasis in original) (internal quotation marks
omitted).
HOGAN TRANSPORTS, INC. 17
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with the loss of your job
because you joined or assisted Teamsters Local 294, In-
ternational Brotherhood of Teamsters.
WE WILL NOT promise and/or grant wage increases in
order to dissuade you from supporting the Union.
WE WILL NOT interrogate you about your union mem-
bership or support.
WE WILL NOT discharge any of you because of your
union membership or support or for engaging in concert-
ed protected activity protected by Section 7 of the Act.
WE WILL NOT blame the Union for attempting to take
away the unlawful wage increase announced on June 19.
WE WILL NOT fail and refuse to recognize and bargain
in good faith with Teamsters Local 294, International
Brotherhood of Teamsters, as the exclusive collective-
bargaining representative of our employees in the follow-
ing appropriate unit:
All full-time and regular part-time drivers employed by
Respondent at its West Coxsackie, New York location;
excluding all guards and all professional employees
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request by the Union, rescind the unlaw-
ful wage increase granted to unit employees on or about
July 1, 2013.
WE WILL, within 14 days from the date of this Order,
offer Mansfield Teetsel full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Mansfield Teetsel whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him.
WE WILL compensate Mansfield Teetsel for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 3, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Mansfield Teetsel, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the unlawful actions will not be used against him
in any way.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive, retroactive to June 13, 2013, of employees in the
above-described appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
HOGAN TRANSPORTS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-107189 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Greg Lehmann, Esq., for the General Counsel.
Alan I. Model, Esq. and Jason J. Silver, Esq., for the Respond-
ent.
Bruce Bramley, Esq., for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard
these consolidated cases in Albany, New York, on September
24, 26, and 27, and December 17 and 18, 2013. The charge and
the amended charge in Case 03–CA–107189 were filed by the
Union on June 14 and 24, 2013. The charge in Case 03–CA–
108968 was filed by Mansfield Teetsel, on June 12, 2013. The
charge in Case 03–CA–111193 was filed by the Union on Au-
gust 14, 2013. The consolidated complaint that was issued on
August 30, 2013, and amended at the hearing, alleged as fol-
lows:
1. That on or about June 11, 2013, the Respondent by
Charles Johnson and Tom Lansing, interrogated employees
about their union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
2. That on various dates between June 11 and early July
2013, the Respondent by David Hogan, Charles Johnson, and
Tom Lansing threatened employees with job loss if they select-
ed the Union.
3. That on June 17, 2013, the Respondent moved the em-
ployees’ work location in order to discourage union or protect-
ed activities.
4. That on or about July 1, 2013, the Respondent gave a
wage increase to its employees in order to discourage them
from engaging in union or concerted activities.
5. That on or about July 6, 2013, the Respondent, for dis-
criminatory reasons, discharged Mansfield Teetsel.
6. That on or about July 8, 2013, the Respondent blamed the
Union for trying to take away the wage increase granted on July
1, 2013.
7. That the Union requested recognition on June 3, 2013 af-
ter it had obtained a majority of the Respondent’s employees in
a unit of all full-time and regular part-time drivers employed at
the Respondent’s West Coxsackie, New York location, exclud-
ing guards, professional employees and supervisors as defined
in the Act.
8. That because of the unfair labor practices described
above, the Respondent has made a fair election impossible and
that a bargaining order is an appropriate remedy.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(1), (6),
and (7) of the Act. It also is admitted and I find that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Hogan Transport is engaged in the trucking industry. Its
headquarters are in St. Louis, Missouri, and its president is
David Hogan. (A descendent of the person who founded the
company, 93 years ago.) Unlike a typical common carrier,
Hogan provides what is called “dedicated customer services.”
This means that Hogan enters into contracts to provide exclu-
sive trucking services for particular customers on a local or
regional basis. In this case, Hogan is the dedicated service
provider for a company called Save-A-Lot which is a retail
chain of discount supermarkets. Save-A-Lot has a number of
distribution centers, but the one involved in this case is located
in West Coxsackie, New York. In order to perform its services,

1 During the hearing, the Respondent objected to certain documents
being turned over to the General Counsel based on attorney-client
and/or attorney work product privileges. Counsel also objected to the
trier of fact, (me), being the person to review these documents in cam-
era on the grounds that if they were deemed to be excludable, they
nevertheless might unduly influence the person deciding the case. I
agreed and with the consent of Judge Fish, the documents were submit-
ted to him for in camera inspection and ruling. I am attaching his Order
to this Decision as appendix A.
Hogan maintains a facility next to the customer’s warehouse
and it employs a group of drivers who transport food stuffs
from Save-A-Lot’s West Coxsackie distribution center to its
retail stores in the Northeast.2 This means that these Hogan
employees only transport goods for Save-A-Lot. It also means
that Hogan’s only customer in this geographic area is Save-A-
Lot. Hogan’s work force at this location consists of about 29
drivers. Its nationwide work force includes about 1300–1400
drivers.
There was testimony that Hogan is not the only company
that provides dedicated trucking services to various customers.
Its principle competitors are J.B. Hunt, Swift Transportation,
Werner, U.S. Express, and Snyder. All of these companies,
which apparently do not have collective-bargaining agreements,
employ many more truckdrivers than Hogan.
Jim Lauda is the operations manager at the West Coxsackie
facility and he reports to Charles Johnson, the director of opera-
tions. Tom Lansing, a vice president, is also involved in this
case. As noted above, David Hogan is the company’s presi-
dent.
It seems that about 3 years ago, there was a previous failed
attempt by a union to organize the truckdrivers at the West
Coxsackie location. At that time, Charles Johnson visited the
facility and was in some way involved in that campaign.
The Union’s organizing drive started in May 2013. The pri-
mary employee involved in this effort was Robert Sansone who
also intended to leave the company in June. Sansone solicited
union authorization cards from his fellow employees and he
was assisted in this process by James Young, Mansfield
Teetsel, Steven Ianno, and Timothy Mabee. An initial meeting
between union representatives and employees was held on June
2.
On June 3, 2013, the Union filed an election petition in Case
3–RC–106334 with the Board’s Albany office. Simultaneous-
ly, it delivered a letter requesting recognition on behalf of the
West Coxsackie drivers. Thus, the Respondent became aware
of union activity amongst its employees no later than June 3.
By June 3, 2013, the Union had obtained signed cards au-
thorizing union representation from 14 employees. Thereafter,
from June 7 to 13, the Union obtained cards from four other
employees. The parties stipulated that there were 29 drivers
who comprised the appropriate unit. Thus, the evidence shows
that by June 13, the Union had obtained signed authorization
cards from 18 employees.
With respect to the authorization cards, I note that Bob
Sansone, who signed a card on June 7, resigned from the com-
pany on June 14. With respect to Mansfield Teetsel, who
signed a card on May 10, the Respondent asserts that he re-
signed before June 3, whereas the General Counsel contends
that Teetsel changed his mind and that the Respondent, for
discriminatory reasons, decided to accept his resignation. Em-
ployees Brian Pennick, Antonio Rogers, and June Glennon all
signed union cards before June 3, but they retracted their cards
in August 2013.

2 On occasion, the drivers located in Coxsackie will take goods from
that distribution center to another Save-A-Lot distribution center locat-
ed in Austinburg, Ohio.
HOGAN TRANSPORTS, INC. 19
During the week of June 10, Charles Johnson came to the fa-
cility in order to talk to the employees on an individual basis.
(Obviously for the purpose of dissuading them from voting for
the Union.) The question here is whether his conversations
stayed within, or crossed the line of legality.
James Young testified that when Johnson approached him he
asked Johnson; “What’s up?” According to Young, Johnson
replied; “What’s going on?” When Young said he didn’t know,
Johnson said that the Union had filed a petition and that if the
Union comes in, Save-A-Lot was already prepared to bring in a
third party carrier. According to Young, he understood this to
mean that if Save-A-Lot terminated its contract with Hogan, the
drivers would lose their jobs.
Virgil Smith testified that he had a conversation with John-
son who said that Save-A-Lot did not want the union, that Ho-
gan didn’t want the union and that if they did go union, the
drivers would probably not have jobs because Save-A-Lot
would throw them out.
Robert Sansone testified that when he met Johnson at the fa-
cility, he was asked what he thought was going on. According
to Sansone, he replied that the company was not paying enough
and that the benefits were sub-par. Sansone states that he told
Johnson that he was soon going to leave the company so this
didn’t affect him one way or the other, but that the company
wasn’t treating the other employees right. Sansone testified
that later in the day, he overheard Johnson tell employee Bill
Gates; “You know Bill, if they get the Union in here . . . the
Company will lose the work at the Save-A-Lot Coxsackie loca-
tion.”
Sansone left the company on June 14, 2013.
Steve Ianno testified that he spoke to Johnson and Tom Lan-
sing and that Johnson asked him; “How did we come to this?
What’s going on? Why are we back here again?” Ianno states
that he responded; “It’s the same old story that a lot of guys are
not happy. All the favoritism. Things that have been going on.
It’s been three years and you’ve done nothing about it.” Ac-
cording to Ianno, Johnson said; “You know Save-A-Lot doesn’t
want the Union here. We don’t want the Union here.” Ianno
testified that Tom Lansing interjected by saying; “You know, if
the Union comes in then . . . all you guys are going to be out of
work. Where are you going to be?” Ianno nonplused, replied
he didn’t care because there was a company right up the road
that would hire him right away. “If you want to pull out, go
ahead.”
Shane McDonald testified that he had just returned to work
when he had a conversation with Johnson who welcomed him
back to the company. He states that Johnson told him that he
wanted to give an update on what was going on; that a petition
had been filed and he wanted to explain the company’s posi-
tion. According to McDonald, Johnson said that Save-A-Lot is
a nonunion company that did didn’t want to do business with
anybody that has anything to do with a union. McDonald testi-
fied that Johnson said that he thought that this would put our
contract with Save-A-Lot at risk and that there was a possibility
that you could lose your job if we lose that contract. According
to McDonald, Johnson said; “What do you think about this
whole thing? McDonald responded that he had just gotten back
and didn’t even know what was going on.
Alan Field testified that he too had a conversation with John-
son within this time period. His testimony was, however,
somewhat confused. Although he related that a part of the
conversation dealt with Save-A-Lot’s contract with Hogan and
the possibility that Save-A-Lot could hire a new carrier, it is not
clear from his testimony whether he or Johnson brought this
possibility up.
On June 13, a Stipulated Election Agreement was signed and
an election was scheduled for July 12, 2013. It is agreed that as
of June 13, there were a total of 29 drivers who worked at the
West Coxsackie facility.
On June 15, the Respondent notified the drivers that instead
of reporting to the property of Save-A-Lot, they had to check in
and park their vehicles across the street on a property owned or
leased by Hogan. David Hogan explained that when the elec-
tion petition was filed, Save-A-Lot was told of it and he sug-
gested that the trucking operation be moved across the street so
that there would be no possible disruption of Save-A-Lot’s
operations in the event of a labor dispute. John Gerber, Save-
A-Lot’s Executive Vice President, agreed and the move was
made. Although there was some testimony that the lot across
the street had some pot holes, was a bit dirtier, and more con-
gested, it seems to me that the effect of this move on the drivers
was insignificant. To the extent that this is alleged as a viola-
tion of the Act, I recommend that it be dismissed.
Virgil Smith testified that on June 18, he had another conver-
sation with Johnson who told him that the drivers were going to
get a raise on July 1. Smith testified that he had not heard any-
thing about a raise before this conversation.
On June 19, 2013, management held three meetings with
employees to discuss the union situation. These meetings were
arranged at different times in order to cover all of the drivers.
James Young made a recording of the meeting that he attended
and a transcript was introduced into evidence. The employees
who testified as to the other two meetings, basically related the
same types of statements. The main speaker for the company
was James Hogan. There were two themes that were empha-
sized during these meetings. First, the probability that if the
union came in, Save-A-Lot would terminate the contact at Cox-
sackie and the drivers could lose their jobs. The second point
was that the employees would be receiving on July 1, a 2 cent
per mile increase in their compensation. In the latter regard,
this would amount to between a $40 to $60 increase per week.
In pertinent part, the transcript reads;
I can tell you Save-A-Lot made this clear to me, we don’t
have any transportation providers who will deliver to our
stores in the country that are union so they said you need to
keep in mind when you guys are working through the issue
here. I don’t know how to be—I don’t know how to be more
direct, but I think our business here is in jeopardy if the union
comes in, it’s not a threat, it’s just my opinion with my dis-
cussions with Save-A-Lot when they remind me of how they
operate. They don’t want to operate in union environment, all
that stuff.
Employee: “If we go union, we’re all out of a job.”
Hogan: “I agree 110% with that and I am just being honest
with you.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
If its organized here I think Save-A-Lot goes in a different di-
rection. And you know, I think we can do a great job for
Save-A-Lot but let’s face it, we are not irreplaceable.
I have said a lot about Save-A-Lot today. I’m not here to
bash Save-A-Lot because again they could easily pull the
business from us at any time. Over the years they have that
right for whatever reason. It’s one of our longer term custom-
ers. But again they have always made it clear the environ-
ment they want to work in. And they said what’s this about
the Union? And when they select their carrier that’s always
one of the questions they ask. So you know, they’re con-
cerned about it. When they hear about drivers talking about
work stoppages, that doesn’t go over well. Again, my opinion
is we got to continue to work together because if you guys or-
ganize there is a strong possibility we lose the business. I do
not want anyone to tell me two months down the road why
didn’t you mention that to us.
At the June 19 meeting, a number of employees asked ques-
tions including Mansfield Teetsel. Basically, he complained
that when he returned to the company (after a hiatus), he was
hired as a new employee at the mileage compensation rate that
is given to new drivers. He stated; “You want people to be
loyal, which I’m still [am] you know . . . but that makes me
bitter. I mean, I can see you keeping me down to the bottom
for a year; it’s going on two years now. So it makes you real
bitter.”
On June 24, 2013, the Union held a meeting with employees
and they decided to file an unfair labor practice charge and to
cancel the upcoming election.
On June 29, a document was handed out announcing an in-
crease of 2 cents per mile effective on July 1. This stated:
We are pleased to announce that the 2 cent per mile increase
that was announced earlier this month is in effect starting
7/1/13. Please understand however, that the Teamsters have
challenged Hogan’s ability to give this increase and they have
asked the National Labor Relations Board to seek an injunc-
tion forcing Hogan to rescind it.3
With respect to this announced increase, I note that there was
nothing said at the June 19 meeting and there is nothing in the
notice to indicate that this wage increase had been planned or
decided upon before the Union filed the election petition.
On or about July 5, Teetsel, who had previously notified
Lauda that he had gotten another full-time job, told Lauda that
he had changed his mind and that he wanted to keep his full-
time job at Hogan. Lauda told Teetsel that this would be fine
because he hadn’t yet filed his papers in St. Louis. Lauda also
told Teetsel that he shouldn’t do this again, because he might
not have a job to come back to.
On July 6, Teetsel was informed that the company had ac-
cepted his resignation notwithstanding his change of mind.
Tom Lansing testified that he made the decision to not ac-
cept Teetsel’s change of mind because he thought that the com-

3 The Union had filed a charge that alleged, in part, that the Re-
spondent had promised wage increases in order to dissuade employees
from joining or supporting the Union.
pany would be better off with a new employee who would ap-
preciate the job instead of Teetsel who had resigned once be-
fore. Lansing also testified that it was common knowledge that
Teetsel was bitter about his pay. It therefore would be surpris-
ing if the company did not consider that Teetsel would likely be
voting in favor of the Union in the election that was scheduled
for the following week. (July 12). Thus, accepting Teetsel’s
resignation would mean one fewer vote for the union.
On July 8, the company held a meeting with its employees at
Red’s restaurant. Basically, the remarks made here were the
same as at the previous meeting held on June 19. In substance,
Hogan told employees that it was his strong opinion that if they
went union, Save-A-Lot would terminate the contract and the
employees would lose their jobs. A recording of this meeting
has Hogan making the following statements:
Somebody asked at the end of the last meeting well, what can
the Union do for us and what would change if the Union got
in here? And I said well, you know, first of all, any wages or
benefits, we have to agree to any changes in the wages and
benefits. The Union can’t just arbitrarily change them; get
them all that stuff. But to me that’s all a moot point, because I
think again, if the Union comes in here I feel like there’s
probably not much to talk about because there won’t be jobs.
We’ve got one customer here and that customer, in my opin-
ion, is going to go down the road and find an alternative solu-
tion.
At this same meeting, the company distributed to the em-
ployees, a leaflet that read in part:
As you know, the [NLRB] will be conducting an election on
Friday, July 12 at which you will be asked to decide whether
or not you wish to be represented by Teamsters Local 294.
As I have already explained, I think that having the Teamsters
here would be one of the worst things that could happen to
Hogan employees. In my opinion, the Teamsters cost em-
ployees money and put employees’ jobs at risk by making
companies inefficient. . . .
Many people without realizing the mistake they were making
signed Teamsters authorization cards. Just because you
signed a Teamsters’ card does not mean you have to vote for
the Teamsters. You are perfectly free to vote against the
Teamsters, even if you signed a card. Now is the time to clear
up your mistake by voting NO!
I think that everyone eligible to vote should take advantage of
that opportunity. It is not enough to just stand by and do noth-
ing. Don’t let a few people decide your future and that of
Hogan. Give the Teamsters a clear message and vote NO!
In August 2013, several employees indicated to company su-
pervisors or managers that they wanted to retract their union
authorization cards. The testimony regarding these conversa-
tions was basically that the employees were told that they could
contact either the Union or the NLRB. They were then given a
piece of paper that had the names, addresses, and phone num-
bers of the Union and the NLRB. To me this doesn’t amount to
illegal conduct and I recommend that this allegation be dis-
missed. R. L. White, 262 NLRB 575, 576 (1982).
HOGAN TRANSPORTS, INC. 21
The recitation of events described above does not fully dis-
close the Respondent’s position on these allegations and I will
address its arguments and the facts relevant thereto in the Anal-
ysis Section of this Decision.
III. ANALYSIS
A. Predictions v. Threats
In the present case, the evidence shows that the principle
message that management conveyed to its employees was that
its only customer in the area was Save-A-Lot; that this custom-
er was nonunion and operated with nonunion carriers at other
locations; and that if the employees chose union representation
there was a high likelihood that Save-A-Lot would cancel its
contract with Hogan thereby causing the employees in Cox-
sackie to lose their jobs. The company’s management and su-
pervisors were careful to couch this message in terms of what
could happen and were careful to state that this is what they
believed the customer would do if the employees voted for the
Union. No one on behalf of management told the employees
that Hogan would cease operating the facility if the employees
voted for the union or that the Respondent would discharge
employees for supporting the union. The closest thing to a
definitive statement was when an employee at the June 19
meeting stated that if the employees went union, “we’re all out
of a job,” and David Hogan replied that he agreed 110 percent.
The Respondent elicited testimony from its witnesses to the
effect that Save-A-Lot was, except for one franchise store, a
nonunion operation that used nonunion carriers throughout the
United States.4 As an example of Save-A-Lot’s expressed hos-
tility to unionization, the Respondent cited an incident back in
1992 when that company subcontracted transportation work at
its St. Louis distribution center when the employees at that
location unionized. Hogan also testified that back in 2003,
when employees at Save-A-Lot’s Lansing Michigan distribu-
tion center starting unionizing, he was told that they (Save-A-
Lot), had a plan to close that facility and combine it with anoth-
er facility, “depending on how far the organizing attempt goes.”
Based on these comments and the fact that Save-A-Lot basical-
ly operates in a nonunion environment, the Respondent con-
tends that its management had a reasonable basis to believe that
Save-A-Lot would terminate its contract with Hogan if Hogan’s
employees voted for the Union.
The General Counsel points out, and it is conceded, that no
one from Save-A-Lot ever actually told any representative of
the Respondent that the contract would be cancelled if the em-
ployees went union. Moreover, the evidence shows that no one
from the Respondent chose to ask. And I suspect that the rea-
son they didn’t ask is because if the wrong answer was given, it
would constrain the Respondent from making the “predictions”
that are the subject matter of this case.
There has been a great amount of spilled ink and substantial
disagreement about where to draw the line between what is an
illegal threat of job loss and what is merely an opinion regard-
ing the consequences of unionization. If statements are con-

4 The General Counsel showed however, that Save-A-Lot’s parent
corporation, operates a number of supermarkets which have unionized
employees.
strued as a threat of job loss or plant closure, they would violate
Section 8(a)(1) of the Act. If merely an opinion or reasonably
based prediction, such statements would be protected by Sec-
tion 8(c) of the Act.
The main case on this subject is NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1968), in which the Supreme Court stated:
It is well settled that an employer is free to communicate to
his employees any of his general views about unionism or any
of his specific views about a particular union so long as the
communications do not contain a “threat of reprisal or force
or promise of benefit.” He may even make a prediction as to
the precise effect he believes unionization will have on the
company. In such a case, however, the prediction must be
carefully phrased on the basis of objective fact to convey an
employer’s belief as to demonstrably probable consequences
beyond his control.
Because the test for legality may depend on a statement’s
context and whether it is based on “objective fact,” it is there-
fore possible for the same words to be either legal or illegal.
That is, one cannot predict that a statement of this sort will be
legal, simply by looking up words or phrases in a form book.
There have been a number of cases dealing with employer
statements in the context of organizing or election campaigns,
where employees were told of the possibility, probability, or
certainty that a major customer(s) would cease doing business
if they chose to be represented by a union.
One of the cases cited by the Respondent is TNT Logistics
North America, 345 NLRB 290 (2005). In that case, the em-
ployer during preelection speeches, told employees that its
main customer didn’t like unions and that the company could
lose its contract if the employees voted for the Union. A major-
ity on the Board concluded that these statements were predic-
tions and not threats. They stated:
Our colleague says that “nothing in the record substantiates
the prediction” that Home Depot would cancel its contract
with the Employer if the Employer’s employees voted to un-
ionize. We disagree. The uncontroverted facts are that (1)
Home Depot does not like using unionized carriers; (2) Home
Depot does not use any unionized carriers; and (3) the Em-
ployer’s contract with Home Depot would expire in October
2005. Although there was no certainty that Home Depot
would not renew its contract with the Employer if the Em-
ployer’s employees voted for unionization, we think that the
above unrefuted facts furnished an ample basis for a reasona-
ble prediction that Home Depot would so act.
Furthermore, even assuming, as our dissenting colleague con-
tends, that Haynes’ prediction had some threatening aspect
when uttered to Cook on May 26, it would have lost this as-
pect the very next day, when General Manager Gundlach—an
official of higher authority than Haynes—indicated to em-
ployees, including Cook, that it was not certain that Home
Depot would terminate it’s relationship with the Employer, if
the employees unionized.
The Respondent also cites Curwood Inc., 339 NLRB 1137
(2003), a case in which the employer, in a letter, told employ-
ees:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Being unionized is also viewed negatively by our customers.
They are concerned about potential work stoppages and prod-
uct interruptions, which would harm their business. That is
why we say remaining union-free affects our business and our
livelihood.
In deciding that the employer in Curwood did not violate the
Act, a majority on the Board concluded that the statement con-
stituted a legitimate prediction instead of a threat of reprisal.
The Board stated:
In conveying its customers’ concerns about possible unioniza-
tion, the Respondent’s June 30 letter contained no threat of
reprisal. Furthermore, the Respondent provided objective ma-
terial reflecting its customers’ concerns. . . . The material
consisted of written inquiries from large customers such as
Nestle, Nabisco, Kraft, and Minute Maid, asking whether the
Respondent’s products were produced in unionized plants.
Some of the inquiries specifically raised concerns about “pos-
sible interruption in receipt of materials” and “continuity of
supply” in the event of a work stoppage. Contrary to the
judge, the fact that the Respondent’s customers also sent simi-
lar letters to other suppliers cuts against the violation finding,
not in favor of it. That the Respondent’s customers routinely
and generally ask their suppliers about their contingency plans
in the event of union-related supply disruptions underlines just
how much of a concern such disruptions really are for those
customers.
The Board’s decision in Tri-Cast, Inc., 274 NLRB 377
(1985), makes clear that the Respondent’s statement here was
lawful. In Tri-Cast, the employer told employees that if, as a
result of unionization, it had to bid higher or customers felt
threatened because of strikes, the company would lose busi-
ness and jobs. The Board found that the employer had accu-
rately represented what others outside its control might do. . . .
The facts in the instant case militate even more strongly
against finding the Respondent’s statement unlawful. In Tri-
Cast, supra, the employer had not actually received concerns
from customers. Here, the Respondent received expressions
of concern from various customers.
Seeking to distinguish Tri-Cast, our dissenting colleague em-
phasizes that the employer there phrased its statements in
terms of what its customers might do if employees unionized.
But Tri-Cast does not stand for the proposition that the only
permissible statements about customer loss are those ex-
pressed in the conditional. In Tri-Cast, the employer reasona-
bly talked about what its customers might do because it had
not actually received concerns from customers. Here, the Re-
spondent had received such concerns, and, thus, reasonably
dispensed with the conditional mood.
On the other hand, the General Counsel cites a number of
other cases, some more recent, where the Board has found simi-
lar statements to constitute 8(a)(1) threats. See UPS Supply
Chain Solutions, 357 NLRB No. 106, 108 (2011); DTR Indus-
tries Inc., 350 NLRB 1132 (2007); Contempora Fabrics, Inc.,
344 NLRB 851 (2005); Adworth Co. & Dunking Donuts Mid-
Atlantic Distribution Center, 338 NLRB 137, 142–143 (2002);
and Holly Farms Corp. 311 NLRB 273, 300 (1993).
In UPS Supply Chain Solutions, 357 NLRB No. 106, the
employer told employees that some of its contracts required
that it maintain a nonunion work force and that the employees
could lose their jobs by supporting a union because the Re-
spondent could lose those clients. The Board stated inter alia:
The judge found lawful [the] statements regarding the possi-
bility of job loss due to client contracts requiring the mainte-
nance of a nonunion work force, because the statements were
couched in terms of business necessity and did not imply that
the Respondent would terminate employees simply for voting
in favor of the Union. Contrary to the judge, we find that the
statements . . . were unlawful. . . . At the hearing, [she] could
name only one client that allegedly imposed such a contractu-
al provision. She was, however, unfamiliar with even the
general terms of that contract and admitted a general lack of
knowledge of any of the Respondent’s current client con-
tracts, including the named client. Moreover, it is impossible
to determine whether the contract of the named client actually
provides support for [her] claim, because the Respondent
failed to offer it into evidence. In short, because the record
does not provide objective support for [her] prediction or, al-
ternatively, indicates that, at most, only one named client had
a contract that required the Respondent to remain nonunion,
[her] statement that multiple clients’ contracts require a non-
union work force was overbroad, unsupported by objective
fact, and therefore not protected as a lawful expression of
opinion under Section 8(c).
In DTR Industries Inc., 350 NLRB 1132 (2007), the Board
held that similar statements were violative of the Act because
the employer had not shown that they were based on objective
considerations. It stated:
In DTR Industries v. NLRB, supra, the Sixth Circuit, inter alia,
reversed the Board’s finding that in a pre-election letter to
employees, the Respondent’s then president, Yuji Kobayashi,
unlawfully threatened plant closure. Reviewing the 4-page
letter, the court determined that Kobayashi provided an objec-
tive context and explained the reasons why he believed cus-
tomers who had been using the Respondent as their sole
source for parts “were likely to split their business in order to
have an alternative supply source in the event of a strike.”
The court reasoned that because the letter explained that Ko-
bayashi’s perspective was based upon his industry experience
and knowledge of the Respondent’s customer base, he was
entitled to make those statements. The court held that once an
employer provides such rationale, the violation can be found
only if it is shown that the prediction falls outside Section 8(c)
as either not objective in nature or untruthful. Absent evi-
dence that the statements in the letter were subjective or false,
the court concluded that no violation of the Act had occurred.
In this case, by contrast, the statements provided no objective-
ly-based rationale. Employee Rita McVetta testified that
King said that if the Union got into the plant, customers
“wouldn’t probably do business with us and we wouldn’t
have jobs.” This mirrored the substance of McVetta’s affida-
HOGAN TRANSPORTS, INC. 23
vit, which referred to a statement that “customers would not
want to deal with us because of the Union.” Testifying about
another of King’s meetings, employee James Lehman said
King told them they “would lose sole supplier source from
Honda and Toyota and if this happened there would be a re-
duction of jobs”; that if customers became concerned about
the reliability of DTR’s production flow, they “would look for
other sources” which “would mean there would be less work
and fewer jobs at DTR.” Finally, employee Daniel Gahman
testified that King said, “if the UAW was to get into DTR we
would lose that sole supplier status,” and with customers al-
lowing other companies to compete with DTR to provide
parts, “it would result in layoffs” and DTR’s longstanding no-
layoff policy “would have to change.” Thus, based on the
credited testimony of these employees, the consistent message
of King’s remarks was that unionizing would result in the Re-
spondent’s loss of customers and a decrease in business, lead-
ing inevitably to the loss of work and the jobs. Unlike the ear-
lier case, where the context and basis for Kobayashi’s predic-
tion were part of his remarks, King’s statements offered no
support for his prediction. In these circumstances, we find that
the Respondent unlawfully threatened employees in violation
of Section 8(a)(1). (Footnotes omitted.)
These cases illustrate a divergence of views about where to
draw the line for determining whether a statement constitutes a
permissible prediction versus a threat of reprisal. Of course,
from the perspective of a “reasonable” employee, such state-
ments, whether based on “objective” facts or not, would no
doubt be viewed as cautions that voting for a union would
probably result in the loss of their jobs. That is, unlike those of
us in the legal profession, employees as lay people, are not so
adept at counting angels on the heads of pins.
In my opinion, the statements in the present case were not
supported by objective evidence. The assertions of manage-
ment that they knew of Save-A-Lot’s hostility to unions were
based on statements allegedly made at least 10 years ago. In
this case, when the Respondent made Save-A-Lot aware of the
union’s organizing drive, Save-A-Lot’s management merely
indicated that it would be happy to assist the Respondent. They
did not say that if the Union won the election, Save-A-Lot
would terminate the contract. In fact, it is admitted that no one
from the customer ever told anyone from the Respondent that
the contract would be cancelled if the employees chose the
Union. At most, Respondent was told that Save-A-Lot was
concerned about the possibility of future work stoppages.
Moreover, if cancellation of the contract was a real concern to
the Respondent, it could have asked but chose not to. In short,
the statements made by Respondent’s representatives to the
effect that unionization would probably cause Save-A-Lot to
cancel the contract were, in my opinion, mere speculation and
were not based on objective facts. As such, it is my opinion
that this case is more closely analogous to the cases cited by the
General Counsel and I conclude that these statements, made
individually by management to employees or in the meetings
held on June 19 and July 8, 2013, violate Section 8(a)(1) of the
Act.
B. Promising and Granting a Wage Increase
Wage increases or other benefits granted upon the advent of
a union organizing campaign (assuming the Employer is aware
of it), creates a presumption that they are granted to influence
employees to withhold their support for unionization. Yoshi’s
Japanese Restaurant & Jazz House, 330 NLRB 1339, 1344
(2000); B & D Plastics, 302 NLRB 245 (1991); Speco Corp.,
298 NLRB 439, 443 (1990). To rebut this presumption, an
Employer must establish a legitimate explanation for the timing
of the grant of benefits and this usually consists of evidence
that they were part of an existing practice or that they were
planned beforehand. NLRB v. Exchange Parts Co., 375 U.S.
405 (l963); Baltimore Catering Co., 148 NLRB 970 (l964). An
employer cannot grant benefits when an election is pending
without facing the presumption that it has violated the Act.
Moreover, even where benefits have been previously
planned, an employer may violate the Act if the timing of the
announcement is designed to influence an election. Mercy
Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002).
The Respondent asserts that the increase in mileage compen-
sation (a wage increase), that was formally announced on June
19 and became effective on July 1, had been planned before the
election petition was filed.
The last group of wage increases that were given to employ-
ees at any location occurred more than 3 years ago. Because of
the great recession, the company decided to halt any further
wage increases until economic conditions improved. For ex-
ample, in 2009, despite the terms of the existing contract, Save-
A-Lot basically forced the Respondent to lower its rates for the
services provided. Thus, the company did not have an existing
practice of granting wage increases on a regular basis.
The Respondent claims that in the spring of 2013, it faced at
various of its facilities, labor shortages, in part caused by the
wage rates being offered to existing and prospective drivers.
That is, current drivers were leaving for other jobs (as in the
case of Teetsel), and job applicants were hard to find. The
testimony was that a decision was made between Hogan and
Dave Stock to start giving wage increases at various locations
throughout the country. The first increases were given in St.
Louis on May 1, 2013. The next wage increases were respec-
tively given in Austinburg, Ohio, on June 1; Fulton, Missouri,
on June 5; and Indianapolis, Illinois, on June 29. As described
above, the wage increase for the Coxsackie employees was
announced on June 19, and was implemented on July 1. Also
on July 1, the employees at Lexington, North Carolina received
an increase. Employees at five other locations received wage
increases from July 11 through October 1, 2013. Although
employees at most locations, including Coxsackie received an
increase of 2 cents per mile, some locations received different
amounts.
I have no doubt that the Respondent began to seriously con-
sider wage increases for employees at its various facilities be-
fore May 2013, and therefore before it became aware of the
union organizing drive at Coxsackie. This is demonstrated by
the fact that employees in St. Louis received a 2 cent per mile
increase on May 1, 2013, and the employees at Austinburg
received a somewhat different raise on June 1, 2013. Not so
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
convincing is its claim that the Respondent decided, before the
election petition was filed, to give a raise to the Coxsackie em-
ployees, or that it made a decision regarding the amount to be
given, or when it would be implemented.
The Respondent provided no documentary evidence to sup-
port its claim that the decision to grant a wage increase to the
Coxsackie employees was made before the petition was filed.
(June 3, 2013). To the extent that there are documents relating
to this wage increase, one is an email dated May 4, from Facili-
ty Manager Lauda to Johnson stating that one of his drivers told
him that increases had been given to the Austinburg drivers.
The heading of the email states; “Austinburg raises?” The
other document is one prepared by Johnson on June 13, 2013
setting forth three possible increases, (from 1 to 3 cents per
mile), and their cost to the company.
Therefore, the decision as to how much of an increase would
be given to the Coxsackie employees was made on or after June
13, almost 2 weeks after the petition had been filed.5 Accord-
ingly, as I conclude that a decision had not been made regard-
ing the amount of any wage increase to the Coxsackie employ-
ees before June 3, when the petition, was filed, I find that this
wage increase violated Section 8(a)(1) of the Act.
The General Counsel contends that the Respondent also vio-
lated the Act by telling employees that the Union had chal-
lenged the increase and had asked the National Labor Relations
Board to seek an injunction forcing Hogan to rescind it. It is, of
course true, that the Union did file an unfair labor practice
charge alleging that the announced increase violated Section
8(a)(1) of the Act. But it is also true that a typical remedy for
this type of violation does not require a company to rescind a
wage increase already given.
The General Counsel cited some cases where the Board
found violations in circumstances where companies, for anti-
union reasons, threatened to withhold expected wage increases
or changed existing conditions, and then blamed the union for
their own actions. See for example Valerie Manor Inc., 351
1306, 1317 (2007), and Centre Engineering, Inc., 253 NLRB
419, 421 (1980). But those cases are distinguishable. In Va-
lerie, the company told employees that it was going to withhold
a scheduled wage increase because the union had filed an unfair
labor practice. The threat to withhold a scheduled raise because
a union files a charge with the Labor Board is, by itself, a viola-
tion of the Act. By blaming the Union for its own violation of
the law, the employer was adding insult to injury. In Centre
Engineering, the employer told its employees that it was with-
holding a scheduled wage increase because of the pending elec-
tion. The employer did not tell the employees that it was defer-
ring the increase in order to avoid the appearance of election
interference; instead blaming the union for its unlawful with-
holding of the expected wage increase.

5 Before the decision was made to give the Coxsackie employees a
raise, the Respondent, at this location, implemented $500 and $1000
bonuses to be given to employees who referred new full-time or part-
time drivers. Also, it offered a $4000 sign up bonus for new drivers.
These bonuses were offered and given because by the start of 2013, the
driver complement at Coxsackie was understaffed and management
was having difficulty recruiting and retaining drivers.
This is not the case here. The communication truthfully an-
nounced that the Union had filed charges with the NLRB chal-
lenging the legality of the increases. At most, it may have mis-
represented the remedy that would be appropriate in the event
that a violation of the Act was found. In my opinion, this does
not rise to the level of unlawful interference. I therefore rec-
ommend that this allegation be dismissed.
C. Mansfield Teetsel
Teetsel had previously worked at the West Coxsackie facility
from 2004 to 2011. At that time, he resigned and got another
job.
In December 2011, he asked to be rehired and was rehired,
but as a new employee at a lower pay rate than what had previ-
ously received. Although not the main union activist, Teetsel
did solicit union cards from two other employees.
As noted above, at the June 19 meeting, Teetsel stated that
he was bitter because he was hired at a lower rate when he re-
turned to work.
In June, Teetsel accepted another job and told Lauda about
it. He also testified that he told Lauda that he wanted to con-
tinue to work for Hogan on a casual basis when he was availa-
ble. To me, this is tantamount to a resignation by Teetsel of his
full-time driver’s position.
On or about July 5, Teetsel told Lauda that he had changed
his mind and wanted to remain employed on a full-time basis.
He testified that Lauda responded that his papers hadn’t yet
been submitted so this was fine, but that Teetsel shouldn’t do
this again because he might not have a job.
On July 6, Teetsel received a phone call from Lauda inform-
ing him that his resignation had been accepted.
Lansing who testified that he made the decision to accept
Teetsel’s resignation, said that he did so because he thought the
company would be better off with a new employee who would
appreciate the job instead of Teetsel who had resigned once
before. Lansing also testified that it was common knowledge
that Teetsel was bitter about his pay.
As of July 6, 2013, the Respondent admits that it did not
have, at the Coxsackie location, enough truckdrivers to effi-
ciently perform the services required for the Save-A-Lot ac-
count. Moreover, this situation was a chronic one that went
back at least to the start of 2013. At the time that Teetsel’s
resignation was accepted, the company was advertising for
truckdrivers, was offering new drivers a $4000 bonus, and was
offering bonuses to any employee who referred a new driver.
I don’t buy the company’s explanation for refusing to allow
Teetsel to remain on as a full-time driver. Perhaps if there was
not such a pressing need to hire new drivers and retain its exist-
ing work force, it would have made sense to allow Teetsel to
resign for a second time. But in this case, I believe that Lan-
sing figured that Teetsel would likely be voting in favor of the
Union in the election that was scheduled for the following
week. (July 12.) Thus, accepting Teetsel’s resignation would
mean one fewer vote for the union. Accordingly, I conclude
that by the de facto discharge, the Respondent violated Section
8(a)(1) and (3) of the Act.
HOGAN TRANSPORTS, INC. 25
D. Interrogation or Greeting
The General Counsel alleges that on several occasions in
June, the Respondent’s agents interrogated employees about
their union support or activities. All of these incidents involved
Charles Johnson, either alone, or with Tom Lansing.
As previously noted Johnson and Lansing visited the Cox-
sackie facility a week after the petition was filed in order to
speak to the employees and to present the company’s views on
unionization. In doing so, they basically approached and spoke
to each employee on an individual basis. The primary message
was the possibility or probability that choosing the union would
cause the Respondent’s only customer in the area to terminate
its contract. (Discussed above.) Johnson’s last visit to this site
occurred 3 years before when there was a previous union or-
ganizing drive. From the employees’ point of view, there was
no surprise as to why Johnson was there. This obviously was
not a casual visit nor was it about something other than the
union campaign.
The evidence presented by the General Counsel’s witnesses
does not indicate that Johnson or Lansing directly asked em-
ployees about the union. Employees were not asked if they
signed union cards. They were not asked if they supported the
union. They were not asked how they felt about the union. The
approach was indirect and in some cases would be indistin-
guishable from a typical greeting such as, “what’s up?”
Mansfield Teetsel credibly testified that on June 10, Johnson
approached him and said; “How’s it going?” Teetsel replied
that he was thinking about leaving the company and that John-
son asked him not to leave. According to Teetsel, Johnson
introduced him to Lansing and they spoke about how trucking
had gotten harder and how the company would like to give
Teetsel a raise but couldn’t because “of that,” pointing to the
NLRB poster. According to Teetsel’s testimony, he told John-
son that he couldn’t say who was going to join the union and
that Johnson said; “Well, that’s fine.”
Robert Sansone credibly testified that on or about June 10,
Johnson came out to greet him and said; “What do you think
about what’s going on?” He states that he replied; “Charlie, I
don’t know where you’ve been for three years. . . .” Sansone
testified that after that opening he was a bit sarcastic with John-
son and they spoke about wages and other benefits that he felt
were lacking.
Steven Ianno credibly testified that on June 11, he was ap-
proached by Johnson and Lansing who asked to talk to him.
According to Ianno, Johnson said; “What’s going on? Why are
we back here again?” Ianno states that he told them that it’s the
same old story; that a lot of guys are not happy and that it’s
been 3 years and the company hadn’t fixed anything.
James Young credibly testified that Johnson asked to speak
to him and he asked Johnson; “What’s up?” Young testified
that they went outside where Johnson said: “What’s going on?”
He responded that he didn’t know and again asked Johnson;
“What’s up?” According to Young, Johnson said that the union
had filed a petition and he told Johnson that he didn’t know
anything about it. (This sounds a bit like the dialogue in an
Abbot and Costello movie.) Following this interchange, John-
son told Young that if the Union came in, Save-A-Lot was
prepared to bring in a third party carrier.
Shane McDonald credibly testified that in June, he had a
conversation with Johnson in the hallway and that Johnson said
he wanted to introduce himself and welcome McDonald back.
He states that Johnson said that he was glad to have him back,
that he hoped that everything was going well and that he want-
ed to give McDonald an update about what was going on. Ac-
cording to McDonald, Johnson said that a petition had been
filed by a union and proceeded to talk about the relationship
between the Respondent and Save-A-Lot. McDonald states
that after some further discussion about the possibility that the
drivers could lose their jobs, Johnson asked; “What do you
think about this whole thing?” McDonald replied that he just
got back to work and didn’t know what was going on.
Alan Field testified that on June 13, he had a conversation
with Johnson and that he told Johnson that his family were
members of a Union. (There is no indication that he was
asked.) Field also testified that he told Johnson that it was his
opinion that Save-A-Lot was nonunion and that they could just
hire another carrier to replace us. From what I can gather from
Field’s testimony, Johnson didn’t say much if anything because
Field had apparently already adopted the company’s view on
the matter. (By June 13, Johnson had already met with many of
the other drivers.)
Under Board law, not all interrogations are automatically
considered to be coercive. Rossmore House, 269 NLRB 1176
(1984). See also Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964).
In the Board’s view of the law, interrogation of employees will
violate the Act if, considering the totality of the circumstances,
it is deemed coercive. Rossmore House Hotel, 269 NLRB 1176
(1984), affd. sub nom Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985); Raytheon Co., 279 NLRB 245
(1986). In Bloomfield Healthcare Center, 352 NLRB 252, the
Board stated:
The test for whether an unlawful interrogation occurred is
“whether under all the circumstances the interrogation rea-
sonably tends to restrain, coerce, or interfere with rights guar-
anteed by the Act.” Rossmore House, 269 NLRB 1176, 1178
fn. 20 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). The Board considers such factors
as whether the interrogated employee is an open or active un-
ion supporter, the background of the interrogation, the nature
of the information sought, the identity of the questioner, and
the place and method of the interrogation. Id.; Stoody Co.,
320 NLRB 18, 18–19 (1995). The Board has held that ques-
tioning employees about whether they attended a union meet-
ing and what occurred at the meeting is an unlawful interroga-
tion. Resolute Realty Management Corp., 297 NLRB 679,
685 (1990), and cases cited therein.
In my opinion the conversations between Johnson, Teetsel,
Young, and Field do not constitute unlawful interrogations.
The statement by Johnson to Teetsel; “how’s it going?” is, in
my opinion, simply a normal greeting and cannot be construed
as an illegal interrogation. And the exchange of “what ups”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
between Johnson and Young do not, in my opinion, warrant the
conclusion that Young was being interrogated about the union.
On the other hand, I am going to conclude that the conversa-
tions with McDonald, Sansone, and Ianno crossed the line. In
context, they could reasonably be construed as inquiries into
the employees’ union activities. Moreover, because I have
already concluded that the statements regarding the possible
cancellation of the Save-A-Lot contract should be deemed as
coercive, these interrogations coupled with the Save-A-Lot
comments, are also deemed to be coercive.
E. Is a Bargaining Order Warranted?
In NLRB v. Gissel Packing Co., supra at 395 U.S. 575, the
Supreme Court distinguished between three categories of situa-
tions insofar as the propriety of granting a bargaining order to
remedy an employer’s unfair labor practices. The first category
involved the “exceptional” case where “outrageous” and “per-
vasive” unfair labor practices are committed. The second cate-
gory involves “less pervasive practices” that have a tendency to
undermine majority strength and impede the election process.
As to this second category, the Court held that a bargaining
order would be proper to remedy an employer’s unlawful con-
duct which had the effect of making a fair election unlikely
where at some point the Union had majority support amongst
the employees. The third class of cases, concern those where
minor or less extensive unfair labor practices have been com-
mitted which would have a “minimal impact” on an election.
The Court held that in the third category of cases, a bargaining
order would be inappropriate to remedy an employer’s unfair
labor practices.
The first thing to consider is whether the Union ever ob-
tained majority status within an appropriate bargaining unit. In
this regard, the evidence shows that the Union, having obtained
14 signed cards authorizing the union to bargain on behalf of
employees, did not obtain a majority by the date (June 3), that it
demanded recognition and filed an election petition with the
Board. Nevertheless, four additional cards were signed be-
tween June 3 and 13. (I note that Sansone quit on June 14.)
Inasmuch as it was stipulated that the unit consisted of 29
truckdrivers, the Union had reached majority status by June
13,6 the date that parties executed a Stipulated Election Agree-
ment. Moreover, this majority status would not be affected by
the disaffection of three employees, who in August, tried to get
their cards back. This is because it reasonably could be con-
cluded that they were motivated, at least in part, by the unfair
labor practices committed by the Respondent in June and July.
The next question is whether the unfair labor practices found
to have been committed are sufficiently serious to make the
holding of a fair and free election improbable. I think the an-
swer is yes.
The Respondent, in my opinion, crossed the line and essen-
tially threatened employees with job loss by indicating, without
an objective basis, that its sole customer at West Coxsackie
would terminate its contract with the Respondent and thereby
cause all of the jobs to be lost. Second, I have concluded that

6 Even if we don’t count Sansone’s card, the Union had obtained 17
other cards, which is more than half of 29.
the Respondent promised and granted a substantial wage in-
crease in order to dissuade the employees from voting for the
Union in the upcoming election. Third, it is my opinion that
the Respondent effectively discharged Mansfield Teetsel, an
active union supporter, because it believed that he likely would
vote for the Union. And finally, but less seriously, I have con-
cluded that the Respondent coercively interrogated some of its
employees.
In Stevens Creek Chrysler Jeep Dodge, Inc., 357 NLRB No.
57, enfd. by the D.C. Cir. on December 14, 2012, under the
name Mathew Enterprise, Inc. v. NLRB, the Board held that a
bargaining order was warranted under similar circumstances.
The Board stated inter alia:
Threats of job loss and plant closure are “hallmark” viola-
tions, long considered by the Board to warrant a remedial
bargaining order because their coercive effect tends to “de-
stroy election conditions, and to persist for longer periods of
time than other unfair labor practices.” Evergreen America
Corp., 348 NLRB 178, 180 (2006) (citing, inter alia, Gissel,
supra, 395 U.S. at 611 fn. 31), enfd. 531 F.3d 321 (4th Cir.
2008).
The Respondent then discharged Rocha, whom it perceived to
be the leader of the organizing effort. This, too, is a “hall-
mark” violation, perhaps the most flagrant, “because no event
can have more crippling consequences to the exercise of Sec-
tion 7 rights than the loss of work.” Mid-East Consolidation
Warehouse, 247 NLRB 552, 560 (1980). In NLRB v. Jamai-
ca Towing, Inc., 632 F.2d 208, 212–213 (2d Cir. 1980), the
seminal case defining “hallmark violations,” the Second Cir-
cuit Court of Appeals noted, in enforcing the Board’s Order,
that the discharge of an active union adherent would likely
“have a lasting inhibitive effect on a substantial percentage of
the work force,” and would remain in employees’ memories
for a long time.
The Respondent committed a third hallmark violation later in
the organizing campaign by awarding eight employees wage
increases on May 14. Grants of wage increases have long
been held to be a substantial indication that a bargaining order
is warranted because they have “a particularly long lasting ef-
fect on employees and are difficult to remedy by traditional
means not only because of their significance to the employ-
ees, but also because the Board’s traditional remedies do not
require a respondent to withdraw the benefits from the em-
ployees.” Evergreen America, supra, 348 NLRB at 180
(quoting Gerig’s Dump Trucking, 320 NLRB 1017, 1018
(1996)); see also Pembrook Management, 296 NLRB 1226,
1228 (1989) (discussing cases in which bargaining orders
were given based solely on the grant of wage increases).
In my opinion, the violations in this case would make a fair
election unlikely. Therefore, because the Union obtained ma-
jority status by June 13, 2013, I am going to recommend the
granting of a Gissel bargaining order effective on that date.
CONCLUSIONS OF LAW
1. By threatening employees with the loss of their jobs be-
cause they joined or assisted Teamsters Local 294, International
HOGAN TRANSPORTS, INC. 27
Brotherhood of Teamsters, the Respondent has violated Section
8(a)(1) of the Act.
2. By promising and granting wage increases in order to dis-
suade employees from supporting the Union the Respondent
has violated Section 8(a)(1) of the Act.
3. By interrogating employees about their union member-
ship or support, the Respondent has violated Section 8(a)(1) of
the Act.
4. By effectively discharging Mansfield Teetsel because of
his union support, the Respondent has violated Section 8(a)(1)
and (3) of the Act.
5. Because the Union obtained majority status by June 13,
2013, and the violations found above have made a fair and free
election improbable, a bargaining order effective retroactive to
June 13, 2013 is an appropriate remedy for these violations.
6. The aforesaid violation affects commerce within the
meaning of Section 2(6) and (7) of the Act.
7. Except as found herein, the other allegations of the com-
plaint are dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having concluded that the Respondent unlawfully dis-
charged Mansfield Teetsel, it must offer him reinstatement, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB No. 8 (2010), enfd. denied on other grounds sub.
nom. Jackson Hospital Corp. v. NLRB, 647 F. 3d 1137 (D.C.
Cir. 2011). The Respondent shall also be required to expunge
from its files any and all references to the unlawful discharge
and to notify the employee in writing that this has been done
and that the unlawful discharge will not be used against him in
any way. The Respondent shall file a report with the Social
Security Administration allocating backpay to the appropriate
calendar quarters. The Respondent shall also compensate
Teetsel for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer
than 1 year. Latino Express, Inc., 359 NLRB No. 44 (2012).
In addition, as I have concluded that the Respondent has
committed “hallmark” violations sufficient to make a fair and
free election improbable, it shall be required to recognize and
bargain with the Union in the following appropriate unit.
All full-time and regular part-time drivers employed by Re-
spondent at its West Coxsackie, New York location; exclud-
ing all guards and all professional employees and supervisors
as defined in the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Hogan Transports Inc., its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Threatening employees with the loss of their jobs because
they joined or assisted Teamsters Local 294, International
Brotherhood of Teamsters.
(b) Promising and granting wage increases in order to dis-
suade employees from supporting the Union.
(c) Interrogating employees about their union membership or
support.
(d) Discharging employees because of their union member-
ship or support or for engaging in concerted protected activity
protected by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mans-
field Teetsel full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Mansfield Teetsel whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Mansfield
Teetsel, and within 3 days thereafter, notify him in writing that
this has been done and that the unlawful actions will not be
used against him in any way.
(d) Recognize and, on request, bargain with the Union as the
exclusive collective-bargaining representative, retroactive to
June 13, 2013, of employees in the above-described appropriate
unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
(f) Within 14 days after service by the Region, post at its
West Coxsackie facility copies of the attached notice marked
“Appendix B.”8 Copies of the notice, on forms provided by the

7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional labor Relations Board” shall read “Posted Pursuant to a Judgment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Regional Director for Region 3, after being signed by Respond-
ent’s authorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other elec-
tronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 10, 2013.
(g) 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 Re-
spondent has taken a comply.
Dated, Washington, D.C. February 26, 2014
APPENDIX A
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
HOGAN TRANSPORTS, INC. Case Nos. 03–CA–107189
and 03–CA–111193
TEAMSTERS LOCAL 294,
AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
and Case No. 03–CA–108968
MANSFIELD TEETSEL, an Individual
ORDER
On November 6, 2013, Administrative Law Judge Raymond
P. Green ordered that Respondent submit to the undersigned for
ruling documents that it claimed to be privileged as well as a
privilege log. Judge Green also provided the General Counsel
the opportunity to state objections or comments to the under-
signed. General Counsel submitted his comments and objec-
tions, which I have carefully considered.
The attorney-client privilege protects communications be-
tween client and counsel, where such communications are made
for the purpose of seeking or providing legal advice and are
intended to be and are, in fact, kept confidential. Upjohn Corp.
V U.S., 449 U.S. 383, 398 (1981); Fisher v. United States, 425
U.S. 391, 403 (1976); U.S. v. Construction Products Research,
Inc., 73 F.3d 464, 473 (2nd Cir. 1996). The burden of estab-
lishing the existence of an attorney-client privilege in all its

of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
elements rests with the party asserting it. US. v. Int. Bros. of
Teamsters, AFL–CIO, 119 F.3d 210, 214 (2nd Cir. 1997).
Documents sent from one corporate officer to another with a
copy sent to an attorney do not automatically qualify, as attor-
ney-client communications. Simon v. G.D. Searle & Co., 816
F.2d 397, 403 (8th Cir. 1987); United States Postal Service v.
Phelps Dodge Refining Corp., 852 F.Supp. 156, 163–164 (ED.
New York 1[]994). The attorney-client privilege does not pro-
tect client communications that relate only business or technical
data. Simon v. G.D. Searle, supra at 403; SCM v. Xerox Corp.,
70 F.R.D. 508, 515 (D. Conn 1978) (“legal departments are not
citadels in which public business or technical information may
be stored to defeat discovery and thereby ensure confidentiali-
ty”).
While it is essential that communications between client and
attorney concern legal assistance and advice in order to be priv-
ileged, it is not essential, however, that the request for advice
be expressed. Client communications intended to keep the
attorney apprised of continuing developments may be privi-
leged if they embody an implied request for legal advice based
thereon. Simon v. G.D. Searle, supra at 404; Hercules v. Exxon
Corp., 434 F.Supp 136 (D. Delaware 1977); Jack Winter v.
Kranton Co., 54 FRD 44, 46 (ND. California 1971).
I have attempted to reconcile the somewhat conflicting prin-
ciples set forth in the above precedent to determine whether the
commutations, here, from various officials of Respondent to
each other with copies to its attorney or directly to its attorney,
constitute business communications or communications im-
pliedly requesting legal advice by keeping the attorney advised
of business developments.
I am guided by Patrick Cudahy Inc., 288 NLRB 968 (1988),
where the Board applied these principles to documents in-
volved in collective bargaining negotiations.
The Board reversed an ALJ, who had refused to recognize
the attorney-client privilege, in part, because he viewed the
nature of the work performed by the law firm as more in the
nature of affording business assistance than rendering legal
advice to the client. The Board disagreed, noting that the pres-
ence of business considerations intertwined with legal advice
does not necessarily destroy the privileged nature of communi-
cations between attorney and client. 288 NLRB at 970. The
Board further observed that the ALJ failed to recognize that
“the process of collective bargaining invites the contributions
of legal advice at all of its stages and that a primary purpose of
the law firm’s employment by Cudahy was to render legal ad-
vice throughout contract negotiations with the Union.” Id. at
971.
Therefore, the Board found, contrary to the judge, that the at-
torney-client privilege applied to advice rendered by the law
firm in connection with negotiations and preparations for op-
erations of the plant in the event of a strike. It further held
consistent with Upjohn, supra, and other cases that the privilege
extends to the giving of information to the lawyer to enable him
to give sound and informed advice. Id. at 971.
I find the reasoning of Patrick Cudahy applicable to the in-
stant matter. Here, it appears that Jon Bierman, Respondent’s
outside counsel, has been retained to represent it with respect to
all matters relating to the organizing campaign by the Union at
HOGAN TRANSPORTS, INC. 29
its facility in Coxsackie, New York. I conclude that such repre-
sentation likely had business and economic aspects as well as
legal aspects. Therefore, where the communications relate to
matters involving the union campaigning and issues related to
potential advice concerning Respondent’s response thereto, the
communications are privileged. Further, even though some of
the communications do not expressly contain or seek legal ad-
vice, I find that most of the communications from Respondent’s
officials to each other and to its attorney represent “the giving
of information to the lawyer to enable him to give sound and
informed advice.” Id at 971.
Accordingly, I conclude that the vast majority of the items
included in the privilege log, which I have carefully examined,
fall within the attorney-client privilege in that they either ex-
pressly relate to legal advice or are communications intended to
keep the attorney apprised of business matters, which embody
an “implied request for legal advice based thereon.” Simon v.
G.D. Searle, supra, 816 F.2d at 404.
General Counsel argues that Respondent acknowledges that
some of the documents relate to the Union’s organizing cam-
paign and management’s impressions and beliefs regarding
employee support for the Union. Therefore, since such evi-
dence concerning Respondents knowledge, beliefs or possible
animus concerning employee support for the Union and their
union activities is clearly relevant to the merits of the com-
plaint, these documents must be produced. However, the fact
that such information may be relevant to the allegations of the
complaint does not end the inquiry. As I have explained above,
the communications need not expressly request legal advice in
order to become privileged as long as it embodies an implied
request for advice based on the communications keeping the
attorney apprised of business matters. Here, the privilege log
and the underlying documents contain a number of communica-
tions, email attachments on various dates from Charlie Johnson,
Respondent’s director of operations, and David Stock, vice-
president of dedicated operations, to each other and to Tom
Lansing, vice-president of safety and driver servicers, with ccs
to David Hogan, president of Respondent, and to Attorney
Bierman. Tracey Miller, Respondent’s director of recruitment
and personnel, was also the recipient of some of these emails as
was Jim Lauda, manager at the West Coxsackie, New York
facility. The log states that the subject was “Albany Excelsior
List: Updated,” and relates to various dates in June and July of
2013. The log further states, under the column privilege, “at-
torney-client communications re revision to draft documents.”
These comments are not entirely clear since the official Excel-
sior list does not get updated (other than providing home ad-
dresses) over the course of the various dates involved in the
communications. The updated “Excelsior list” also contained
information concerning the perceived union sympathies and
voting intentions of each of the unit employees on the list on
the various dates of the emails. While no legal advice is ex-
pressly asked for in these communications, it is reasonable to
conclude, which I do, that this information was provided to
counsel to enable him to give sound and informed legal advice.
Patrick Cudahy, supra (i.e. advice on how to conduct Respond-
ent’s campaign in regard to the pending election).
I, therefore, conclude that these communications are all priv-
ileged and need not be disclosed, pursuant to the subpoena.
General Counsel also objects to the designation of the July 1,
2013 email, relating to “Manny Teetsel/Albany Not Leaving,”
as privileged, asserting that unless it seeks legal advice, it
should be produced. This email is from Johnson to Stock, Lan-
sing, Hooper and Bierman, and the subject is as related above.
The privilege log states as a description “attorney-client com-
munication re Teetsel matter.” While this email does not ex-
pressly seek legal advice, it is a report detailing Respondent’s
notification of Teetsel’s desire not to leave Respondent’s em-
ploy, which in my view is privileged as a communication in-
tended to keep the attorney apprised of business matters that
embodies an implied request for legal advice based thereon.”
Simon v. G.D. Searle, supra; Patrick Cudahy, supra. Teetsel
was terminated on July 6, 2013, and it is likely that Respond-
ent’s attorney provided legal advice concerning this action and
that the facts communicated to the attorney in this email was
considered and evaluated by him before providing such legal
advice.
I have concluded based on the foregoing analysis and prece-
dent that nearly all of the communications detailed in the privi-
lege log were subject to the attorney-client privilege and need
not be produced.
There are some exceptions, however, and they include the
following items. Emails from Stock to Bierman, cc to Hogan,
Lansing and Johnson and from Stock to Lauda, cc to Bierman,
both dated June 29, 2013 with attachments as well as an email
from Stock to Johnson and Lauda, cc to Bierman and Lansing,
with attachments, dated July 16, 2013. These communications
related to documents that were posted at the Coxsackie facility
by Respondent, and the emails instructed the supervisors to
post and distribute these items. While the attorney undoubtedly
was involved in preparing or, at least, reviewing these docu-
ments before they were posted, they cannot be deemed privi-
leged since they were not intended to be confidential. Indeed,
the attachments were intended to and, in fact, were distributed
to third parties (i.e. the employees), U.S. v. White, 970 F.2d
328, 334 (7th Cir. 1992). Therefore, there can be no privilege
and these documents must be disclosed to General Counsel,
pursuant to its subpoena.
Dated: New York, New York December 6, 2013
APPENDIX B
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT threaten employees with the loss of their jobs
because they joined or assisted Teamsters Local 294, Interna-
tional Brotherhood of Teamsters.
WE WILL NOT promise or grant wage increases in order to
dissuade our employees from supporting the Union.
WE WILL NOT interrogate our employees about their union
membership or their support for the Union.
WE WILL NOT discharge employees because of their union
membership or support.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Mansfield Teetsel full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Mansfield Teetsel whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against him and we will remove from our files any reference to
the unlawful discharge of Mansfield Teetsel, and within 3 days
thereafter, notify him in writing that this has been done and that
the unlawful actions will not be used against him in any way.
WE WILL recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative, retroac-
tive to June 13, 2013, of employees in the appropriate unit con-
cerning terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement.
HOGAN TRANSPORTS, INC.