RELCO LOCOMOTIVES, INC.

National Labor Relations Board - Administrative Judge Opinions

Oct 19, 2011

18-CA-019720 (N.L.R.B. Oct. 19, 2011)

JD−64−11
Albia, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
RELCO LOCOMOTIVES, INC.
and
MARK BAUGHER, an Individual Case 18–CA–19720
and
CHARLES NEWTON, an Individual Case 18–CA–19721
and
RICHARD PACE, an Individual Case 18–CA–19744
and
NICHOLAS RENFREW, an Individual Case 18–CA–19745
David Biggar and Catherine Homolka, Esqs.,
for the Acting General Counsel.
L. Steven Platt and Paul Starkman and Svetlana Zavin, Esqs.,
of Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case was tried in Albia,
Iowa, on August 9–10, 2011. Mark Baugher filed the charge in Case 18–CA–19720 on March
21, 2011, and filed an amended charge on May 27, 2011. 1 Charles Newton filed the charge in
Case 18–CA–19721 on March 22, 2011, and filed an amended charge on May 27, 2011. Richard
Pace filed the charge in Case 18–CA–19744 on April 6, 2011. Nicholas Renfrew filed the
charge in Case 18–CA–19745 on April 6, 2011. The Acting General Counsel issued a
consolidated complaint (covering all four cases) on June 8, 2011.
The complaint alleges that Relco Locomotives, Inc. (Relco or Respondent) violated
Section 8(a)(3), (4) and (1) of the National Labor Relations Act (the Act) by taking the following

1 All dates are from 2010, unless otherwise indicated.
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steps because Baugher engaged in union or other protected concerted activities and/or because
Baugher gave testimony at an unfair labor practice hearing in Case 18–CA–19175 issuing
written warning to Baugher on November 1, 2010; suspending Baugher for 2 days on November
1, 2010; issuing an unfavorable performance evaluation to Baugher on or about December 22,
2010; placing Baugher on probation on or about December 22, 2010; and terminating Baugher 5
on March 11, 2011.
Regarding Newton, the complaint alleges that the Respondent violated Section 8(a)(3),
(4) and (1) of the Act by taking the following steps because Newton engaged in union or other
protected concerted activities and/or because Newton gave testimony at an unfair labor practice 10
hearing in Case 18–CA–19175: threatening Newton on November 29, 2010, that he was being
watched; issuing a verbal warning to Newton on November 29, 2010; issuing an unfavorable
performance evaluation to Newton on or about December 22, 2010; placing Newton on
probation on or about December 22, 2010; and terminating Newton on March 11, 2011.
15
As for Pace and Renfrew, the complaint alleges that the Respondent violated Section
8(a)(1) of the Act by terminating them on December 23, 2010, because they engaged in protected
concerted activities in the form of discussing their concerns about the possible discharge of a
coworker.
20
The Respondent filed a timely answer denying each of the alleged violations in the
complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make the 25
following
FINDINGS OF FACT
I. JURISDICTION30
The Respondent, a corporation, repairs and rebuilds locomotives at its facility in Albia,
Iowa, where it annually purchases and receives goods and materials valued in excess of $50,000
directly from suppliers located outside of the State of Iowa, and sells and ships goods and
materials valued in excess of $50,000 from its Albia, Iowa facility directly to customers located 35
outside the State of Iowa. The Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Brotherhood
of Railroad Signalmen (the Union) is a labor organization within the meaning of Section 2(5) of
the Act.
40
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
This case follows on the heels of another trial involving Relco that was conducted by 45
Administrative Law Judge William Schmidt. See Relco, Inc., Cases 18–CA–19175, 18–CA–
19350, 18–CA–19367 and 18–CA–19499, slip op. (March 28, 2011). Although my analysis
does not depend on the findings that Judge Schmidt made in his decision (which is still pending
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before the Board), I have summarized portions of Judge Schmidt’s findings below because they
provide some useful background for the complaint allegations that are at issue in my case.
1. Overview of Relco’s operations
5
Relco maintains a facility in Albia, Iowa where it employs approximately 100 workers in
its mission of repairing and rebuilding locomotives. GC Exhibit (Exh.) 36 at 2–3 (Relco, Inc.,
Cases 18–CA–19175, 18–CA–19350, 18–CA–19367 & 18–CA–19499, slip op. (J. Schmidt
2011)); Transcript (Tr.) 95.
10
2. Welding tests and the responsibilities of fabricators
Several of Relco’s employees work as fabricators (including charging parties Mark
Baugher and Charles Newton). Although fabricators handle a variety of tasks ranging from
creating parts, using blow torches, cutting and grinding, welding is an important aspect of their 15
responsibilities. Tr. 193, 384. In light of that fact, Relco encourages its fabricators to become
certified as welders (although such certification is not mandatory), and provides opportunities for
fabricators to initiate their welding certification tests at the facility. Tr. 384.
Project Manager Cliff Benboe handled the welding tests that Relco conducted before 20
approving the tests to be reviewed by an outside firm.2 Tr. 321. As Benboe explained, Relco
asked new employees to take the welding test within 30 days of their date of hire. Employees
who failed that initial test could retake the examination after the waiting period expired (30 days
after the first unsuccessful attempt, and 90 days after the second unsuccessful attempt), but Relco
did not have formal deadlines for employees to retake or pass the test if their initial attempts 25
failed.3 Tr. 330, 407, 414.
3. Performance reviews
Relco conducts annual performance reviews at the end of the year, and often grants raises 30
at that same time to certain employees. Tr. 437. To complete the reviews, Relco’s foremen
complete questionnaires to rate employees in 26 areas,4 with each area assigned a score between

2 To administer the welding test, Benboe prepared a “coupon” for the employee to demonstrate their
vertical-up and overhead welds. If the employee’s welds passed Benboe’s visual inspection, Relco would
send the coupon to an outside agency to determine if the coupon met the strength test requirements for
certification. Tr. 320–321, 345. In this case, the employees who failed the welding test generally failed
because their welds did not pass Benboe’s visual inspection.
3 I have not credited Benboe’s assertion that Relco lacked sufficient work to assign to fabricators
who had not passed the welding certification test. See Tr. 322. To the contrary, Relco employed several
fabricators (including charging parties Baugher and Newton) for well over a year even though they did
not pass the welding certification test. In addition, Operations Manager David Crall was not able to
identify any occasion when it was difficult to find work for Baugher because Baugher was not a certified
welder. Tr. 404.
4 Employees are rated in the following 26 areas: stays on task; attendance; has required
tools/equipment; safety practices; operation and care of equipment; organization of work station; job
knowledge; job skills; attitude (respectful, positive); problem solving; proactive; contingency planning;
volume of acceptable work; quality of work; planning and organization; judgment and decisions; meets
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1 (outstanding) and 5 (unacceptable).5 The foremen then meet with Relco’s Chief Operations
Officer Mark Bachman to discuss their ratings and make changes or additions as deemed
necessary. Tr. 51–52, 386; see also GC Exhs. 6–18 (example performance reviews).
In addition to the numerical ratings, Relco’s performance reviews provided opportunities 5
for Relco to indicate the employee’s strengths and weaknesses, as well as areas where the
employee was in process of improving their skills. See GC Exhs. 6–18. Specifically, in section
D of the review, Relco listed goals “that the employee needs to work towards as a growing
employee.” GC Exh. 4, p. 4; see also GC Exhs. 6–18. By contrast, in section C of the review,
Relco listed required areas of improvement, defined as “items that are unacceptable and must be 10
improved, else disciplinary action up to and including discharge may apply.” GC Exh. 4, p. 4;
see also GC Exhs. 6–18.
Relco also rated employees for their growth potential. Specifically, in the growth
potential section of the performance review, Relco rated employees as: (1) Performance Growth: 15
an employee who is learning and developing new job skills and knowledge; (2) Performance
Plateau: an employee who has learned basic job skills and knowledge and is actively working on
refining that skill and knowledge; and (3) Performance Peaking: an employee who has been
performing similar tasks for an extended period of time and shows little sign of improvement or
desire to expand his/her job knowledge or skill diversity. GC Exh. 4, p. 3; GC Exhs. 6–18.20
In 2008 and 2009, Relco did not do performance reviews for its entire staff, in part
because the poor economy made it difficult to give any raises.6 Tr. 170–171, 218–219, 403, 422,
437. In 2010, however, Relco resumed doing performance reviews for its entire staff (regardless
of whether raises would also be given), in part because the economy began to improve, and in 25
part because it had been a long time since the previous reviews. Tr. 422. Accordingly, Relco’s
foremen filled out performance evaluation questionnaires for the employees they supervised, and
then discussed them with Bachman before the reviews were finalized. Tr. 51–52, 386.
Operations Manager David Crall then met with the individual employees one-on-one to discuss
their performance review. Tr. 386 (noting that Crall occasionally took notes about what 30
happened in the performance review meeting).
4. Events leading to litigation in Relco, Inc., Cases 18–CA–19175,
18–CA–19350, 18–CA–19367 and 18–CA–19499
35

deadlines; accepts responsibility; accepts direction; oral communication; print reading/job understanding;
recognize and facilitate improvements; fulfillment of goals; improvement in job knowledge/skill;
supervisor interaction; and effective working relationships. See, e.g., GC Exhs. 6–18; see also GC Exh. 4
(performance review instructions, including definitions of each of the rating areas noted herein).
5 The specific scores that Relco could give to employees in each rating area were: ‘1’ = outstanding;
‘2’ = exceeds expectations; ‘3’ = satisfactory; ‘4’ = below expectations; and ‘5’ = unacceptable. See, e.g.,
G.C. Exhs. 6–18.
6 Because economic conditions caused Relco to limit the number of raises that it gave to employees
in 2008 and 2009, I am not persuaded by Relco’s argument (see R. Posttrial Br. at 24–25) that it put
Baugher and Newton on notice that their performance was subpar in 2008 and 2009 by not giving them
raises those years.
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5
In early 2009, some of Relco’s employees began exploring the possibility joining a
union, and to that end began communicating with the Brotherhood of Railroad Signalmen. GC
Exh. 36 at 4–5. A Union representative met with Relco employees at an offsite meeting in April
2009, and shortly thereafter, employees (including Jeffery Smith, Ronald Dixon and Timothy
Kraber) began soliciting their coworkers to sign Union cards and support the Union organizing 5
campaign. GC Exh. 36 at 5.
Bachman learned of the Union organizing campaign (at the latest) in May 2009, and
responded by contesting the merits of unionization in a 1-hour meeting with employees on May
15, 2009 staff meeting, and in a letter sent to employees on or about August 28, 2009. GC Exh. 10
36 at 7.
In early 2010, employees objected to Relco’s relatively new (since early 2009) practice of
charging employees a $36 monthly fee for a uniform cleaning service. GC Exh. 36 at 7. In an
employee meeting held on March 4, 2010, about the uniforms, Kraber questioned management 15
about the actual cost that Relco paid a contractor to clean the uniforms. Later in the day, Dane
See communicated with the uniform cleaning service directly about the cost of cleaning Relco
uniforms. The cleaning service forwarded See’s e-mails to Relco. GC Exh. at 8.
Between June 8, 2009 and March 9, 2010, Relco terminated Smith, Dixon, See and 20
Kraber, citing various infractions of company policy. GC Exh. 36 at 8–12. Specifically, Relco
provided the following justifications for the terminations: Smith – terminated for a gross safety
violation (failing to wear steel-toed boots); Dixon – terminated for insubordination (violating
instructions to stop working with his feet hanging off the side of a locomotive he was repairing);
See – terminated for inappropriate interaction with a vendor (alleged repeated harassing 25
telephone calls); and Kraber – terminated for poor attendance. GC Exh. 36 at 9–14.
In July 2010, Relco asked its employees to sign a revised nondisclosure agreement that,
among other provisions, barred employees from disclosing to any third party information about
compensation, payments, correspondence, job history, reimbursements or personnel records 30
without Relco’s authorization. GC Exh. 36 at 15. Employees were advised at the staff meeting
that anyone who refused to sign the revised agreement would have to speak with Bachman. Id.
5. Trial in Relco, Inc., Cases 18–CA–19175,
18–CA–19350, 18–CA–19367 and 18–CA–1949935
On August 19, 2010, the Acting General Counsel (based on charges filed by the Union)
issued a complaint alleging, inter alia, that Relco violated Section 8(a)(3) and/or (1) of the Act
when it discharged Smith, Dixon, See and Kraber. The complaint also alleged that Relco
violated Section 8(a)(1) of the Act by maintaining an unlawful nondisclosure agreement and by 40
coercing employees to sign that agreement. GC Exh. 36 at 1.
On September 14–16, 2010, Relco, the Union and the Acting General Counsel
participated in a trial before Judge Schmidt concerning the allegations in the complaint for Cases
18–CA–19175, 18–CA–19350, 18–CA–19367 and 18–CA–19499. GC Exh. 36 at 1. Two of the 45
individual charging parties in my case (Mark Baugher and Charles Newton) testified as
witnesses for the Acting General Counsel in Judge Schmidt’s case. Baugher provided testimony
that conflicted with Relco’s assertion that Dixon was observed working on top of a locomotive
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with his feet dangling off of the edge. See GC Exh. 34 at 358–359; see also GC Exh. 36 at 11.
Newton testified about the nondisclosure agreement and the warnings that employees received
about needing to speak with Bachman if they refused to sign the agreement. GC Exh. 33 at 344–
347; see also GC Exh. 36 at 15 (noting that Newton denied seeing a memorandum that Relco
asserted that it posted in August 2010 to rescind the nondisclosure agreement).5
On March 28, 2011, Judge Schmidt issued his decision in Cases 18–CA–19175, 18–CA–
19350, 18–CA–19367 and 18–CA–19499. GC Exh. 36 at 27.
B. Mark Baugher10
1. Baugher’s protected activities
Mark Baugher began working as a fabricator at Relco on March 7, 2007. Tr. 146. In
2009, Baugher attended Union meetings and signed a Union card in connection with the Union’s 15
efforts to organize the employees at Relco. Tr. 146.
In the morning on September 13, 2010, Baugher contacted supervisor Shawn Shaffer and
requested a personal day. Baugher needed time off to testify as a witness in the trial regarding
Smith, Dixon, Kraber and See’s discharges, but he did not communicate that reason to Shaffer. 20
Shaffer advised Baugher that he only had a half-day available to use. Tr. 148–149, 197.
Baugher then asked about taking a vacation day instead, but Shaffer expressed doubt that such a
request would be approved given that Baugher did not provide 2 weeks notice. Baugher decided
to table the issue for the day, without telling Shaffer that he needed time off to testify at the
unfair labor practice trial. Tr. 149, 197.25
2. Relco considers warning Baugher for a safety violation
Later on September 13, Bachman sent Operations Manager David Crall an e-mail with
the instruction to prepare a letter of reprimand to Baugher for not wearing his hard hat (a/k/a PPE 30
– personal protective equipment) while on duty that day.7 R. Exh. 2; see also Tr. 86, 328, 374

7 The witnesses who addressed this incident provided conflicting testimony about precisely what (if
anything) happened on September 13. Baugher denied working on the locomotive (a Herzog B-cab)
where Bachman and Crall reported seeing him without a hard hat, but his testimony is undermined by the
fact that he did not remember the events of September 13 when Relco disciplined him on November 1
(though Baugher asserted that he later was able to remember what happened). Tr. 198–200. I have not
credited Baugher’s account because of those memory issues, and also because Baugher’s time card does
show that he worked on a B-cab on September 13 (though the record does not demonstrate that it was the
specific B-cab where Crall and Bachman reported observing Baugher’s conduct, and there is a 2-hour
time discrepancy between the time card entry showing that Baugher worked on a B-cab and the time that
Relco asserts the violations occurred). See GC Exh. 2.
As for Relco’s witnesses, Benboe testified that he observed Baugher’s conduct on September 13,
but later admitted during cross-examination that he did not see the September 13 incident. Compare Tr.
326–328 with Tr. 336. Crall also provided detailed testimony about Baugher’s conduct on September 13
(see Tr. 375–376), but Crall’s September 13 e-mail to Bachman indicates that Crall in fact relied on
Bachman for specifics about Baugher’s actions. See R. Exh. 2. I also note that Crall erroneously testified
that he, rather than Bachman, supplied the detail for the reprimand letter (prepared later) for the
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(noting that Bachman and Crall made their observations from a conference room approximately
50 yards away from the B-cab where Baugher was working) . When Crall responded by asking
Bachman to provide him with details to use in the letter, Bachman indicated that he was
occupied with court hearings (in Judge Schmidt’s case) and suggested that he and Crall handle
the matter the following week. Id. No one in management spoke to Baugher on September 13 5
about any infractions that he allegedly committed that day. Tr. 79–80, 378–379.
3. Baugher testifies as a witness in Judge Schmidt’s case
The following day (September 14), Baugher asked project manager Cliff Benboe for a 10
vacation day for September 15. When Benboe expressed doubt that Baugher’s request would be
approved, Baugher showed Benboe his subpoena, prompting Benboe to say “Oh, you’re
involved in this too?” and to place a call to Crall. Tr. 149–150. Baugher was granted time to
appear and testify in the trial. Tr. 196–197.
15
Baugher testified on September 15 as a witness for the Acting General Counsel in the
unfair labor practice trial handled by Judge Schmidt. Tr. 150. As previously noted, Baugher
provided testimony that conflicted with Relco’s assertion that Dixon was observed working on
top of a locomotive with his feet dangling off of the edge. See GC Exh. 34 at 358–359; see also
GC Exh. 36 at 11. Consistent with the Board Rules, Bachman was present in the courtroom 20
when Baugher testified, and had an opportunity to listen to Baugher’s testimony and (along with
Relco’s attorneys at the time) review a statement that Baugher provided to the Union and the
affidavit that Baugher provided to the Acting General Counsel. Tr. 150–152; see also GC Exhs.
19, 24.
25
4. Union election held at Relco
On October 20, the Board held an election at Relco to assess whether a sufficient number
of employees supported the Union. Tr. 36. A majority of employees voted against bringing the
Union to Relco. 30
5. Baugher’s blue flag policy violation
On October 26, Baugher and a coworker (employee D.F.) were assigned to work on a
locomotive together. Tr. 156. As required by company policy, both Baugher and D.F. placed

September 13 incident. Compare Tr. 377–378 with R. Exh. 2. I therefore have not credited Benboe’s or
Crall’s testimony about the events of September 13.
Finally, Bachman testified briefly about the September 13 incident, but did not explicitly testify
that he saw Baugher engage in any misconduct on that date. See Tr. 86, 90, 428–429 (describing the B-
cab and its status of repair, stating that he saw Baugher going in and out of the B-cab to perform
miscellaneous repairs, and asserting that he did not see Baugher doing any welding). However, Bachman
did imply that Baugher improperly was working without his hard hat, and his implied testimony is
corroborated by the September 13 e-mail that Bachman sent to Crall to write Baugher up for not wearing
his hard hat. See Tr. 429; R. Exh. 2. I have credited Bachman’s September 13 e-mail to Crall as the
most reliable source of information about Baugher’s conduct on September 13, because Bachman
prepared the e-mail on the same day as the events of September 13 (and before Baugher notified Relco
that he would be testifying in the trial before Judge Schmidt).
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blue flags on the locomotive to indicate that the locomotive was currently being serviced.8 Tr.
156, 347. When Baugher completed his shift, however, he neglected to remove his blue flag
from the locomotive.9 Tr. 156. Relco personnel attempted to locate Baugher, and when those
efforts failed, personnel verified that the locomotive was clear and then removed Baugher’s blue
flag.10 Tr. 382. When Baugher returned to work the next day, he was unable to find his blue flag 5
in his toolbox or on the locomotive that he last serviced. Baugher therefore notified Benboe that
he did not have his blue flag. Tr. 157.
6. Relco disciplines Baugher and places Baugher on probation
10
On November 1, Relco suspended Baugher for 2 days without pay and placed him on
probation, citing “multiple policy infractions” that Baugher had committed. Tr. 159; GC Exh.
25; see also GC Exhs. 26–27 (noting that Relco also was giving Baugher a written warning for
the September 13 infractions, and a verbal warning for the October 26 infraction). As indicated
in documentation that Relco provided to Baugher,11 Relco specifically relied on alleged 15
infractions that occurred on September 13 and October 26. See GC Exhs. 26, 27; see also Tr.
382–383. Relco described the September 13 infractions in an undated and unsigned document as
follows:
On Monday, September 13th, between the approximate hours of 1430 and 1530, Mark 20
Baugher was observed working on the Herzog “B-Cab.” During this time period, Mark
exhibited poor job performance, smoking in an enclosed area and disregard for the
Personal Protective Equipment (PPE) policy of Relco Locomotives.
Poor job performance was demonstrated by long lapses in production work. Mark would 25
do a small task, then, he would stand, smoke and loiter for 3–5 minutes before moving to
the next task.
Mark was observed smoking inside the “B-Cab,” which is classified as a non-smoking
area.1230

8 The blue flag policy is essentially a safety measure. If a locomotive is marked with a blue flag,
Relco personnel are prohibited from moving the locomotive or removing the flag until the worker who
placed the blue flag can be located. Tr. 84, 347, 380–381.
9 Baugher suggested that D.F. also left his blue flag on the locomotive. Tr. 156. I have not credited
that testimony because Baugher offered it in a tentative manner, and because it is not corroborated by any
other evidence.
10 Baugher did write his cell phone and home phone numbers on the back of his blue flag to facilitate
being contacted in the event he left his blue flag on a locomotive. Tr. 157. However, no one called
Baugher on October 26 about the blue flag. Tr. 157.
11 The record includes an unsigned and undated summary of Baugher’s infractions that was
apparently not given to Baugher. See GC Exh. 37(v). The additional summary generally contains the
same information as the documents that Relco provided to Baugher (GC Exhs. 26 and 27), but identifies
Crall and Bachman as the managers who observed Baugher’s conduct on September 13, and identifies the
specific policies that Baugher allegedly violated on September 13. See GC Exh. 37(v).
12 Bachman testified that Iowa law prohibits smoking in a confined space. Bachman added that
locomotives are considered confined spaces, and noted that the State had cited Relco twice for employees
who violated the law by smoking in confined spaces. Tr. 431; see also Tr. 397 (Crall testimony that the
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Disregard for the company’s PPE policy was demonstrated by the fact that Mark was
working for an extended period without his head protection (Helmet) while either
loitering or performing tasks that would not be an interference with his protective head
gear.5
This written warning is for the documentation of the above described infractions and may
be considered progressive discipline. Any recurrence of the incidents listed above or
other incidents in conflict with company policies or procedures will result in further
disciplinary action, up to and including discharge.10
GC Exh. 26.13 Regarding the October 26 blue flag violation, Relco described the incident in an
undated and unsigned document as set forth below:
Documentation of verbal warning:15
Blue Flag Policy
The “Blue Flag” policy was initially rolled out to the Relco Locomotives, Inc. Albia
Facility in the Spring of 2010. The final written policy became documented and effective 20
August 6, 2010. The key line of the policy states, (Blue) “Flags will be applied at all
times when working on a unit and removed when not.”
On the evening of October 26, 2010, Mark Baugher’s Blue Flag was found left on a unit
by Relco Locomotives, Inc. management. After validation that Mark was not on 25
company property, the Blue Flag was removed.
On the morning of October 26, 2010, Mark Baugher started work on the Amtrak 200 as
assigned. It was noted by Dave Crall, Cliff Benboe and Shawn Shaffer that he proceeded
to the job without applying his Blue Flag or notifying his Supervisor that his Blue Flag 30
was not in his possession.

State could impose penalties on Relco if employees smoked in confined spaces).
Regarding enforcement of the no-smoking policy, Baugher testified that in March 2011, Benboe
smoked while inside of a 200 Amtrak locomotive. Tr. 179–200. However, Bachman testified that
Benboe did not violate the no-smoking policy because the 200 Amtrak was a wrecked train and was not a
confined space since its top had been removed. Tr. 430. I have credited Bachman’s explanation, which
was not challenged with any rebuttal evidence.
13 Bachman testified that Relco held off on disciplining Baugher for the September 13 incident
because the company’s former attorneys advised that Relco should avoid actions (such as giving raises or
reprimands) that might influence the Board election that was scheduled for (and held on) October 20. Tr.
80; see also Tr. 382–383. However, in the same pre-election time frame (on September 24), management
(Benboe) spoke to another employee (employee K.S.) about driving recklessly on company property, and
notified K.S. that disciplinary action would be forthcoming. GC Exh. 37(p) (signed and dated statement
prepared by Benboe on September 27). Relco did wait until November 1 to formally suspend K.S. and
place him on probation. See GC Exh. 37(q); see also GC Exh. 37(o) (disciplinary letter for K.S. was
initially dated October 4, 2010).
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GC Exh. 27.14 Relco also provided Baugher with a copy of the blue flag policy to sign on
November 1. Baugher signed and returned blue flag policy to Relco on the same date.15 GC
Exh. 28.
In early December 2010, Baugher contacted Crall at the end of his shift and asked when 5
his probation might be lifted. Tr. 168. A few days later (after conferring with Bachman), Crall
told Baugher that he would remain on probation until he demonstrated no further problems
would arise. Crall did not identify any specific steps (such as obtaining a welding certificate)
that Baugher needed to take to demonstrate that his probation should be lifted. Tr. 169.
10
7. Baugher’s December 2010 performance review
On December 22, Crall met with Baugher to discuss Baugher’s performance review.16
Tr. 171, 387; GC Exh. 18. Relco gave Baugher “satisfactory” ratings in 16 areas, and an
“exceeds expectations” rating in 1 area, but indicated that Baugher was performing “below 15
expectations” in the following 8 areas: staying on task; organization of work station; problem
solving; proactive; contingency planning; judgment and decisions; accepts responsibility;
recognizing and facilitating improvements; and fulfilling goals. GC Exh. 18 at 1. For
weaknesses, Relco identified Baugher’s focus on job assignments and his lack of a welding
certification, and stated more broadly that Baugher was on probation for poor job performance 20
and that Baugher had not bettered himself since joining the company. Relco set goals for
Baugher to obtain his welding certification and to keep his work area clean and organized.17 GC
Exh. 18 at 2–3. Crall’s notes describe the actual review as follows:

14 Relco customarily issued verbal warnings to employees who committed blue flag violations for the
first time. Tr. 399–400; GC Exh. 37(g), (h). Relco has suspended employees who violate the blue flag
policy on multiple occasions. See GC Exh. 37(z).
I have given little weight to Baugher’s testimony that Relco did not follow the blue flag policy
when employees were assigned to work on a TRE project in February 2011. Tr. 177–178. Baugher
acknowledged that Relco had an alternate practice of placing blue flags on the rails (because the TRE cars
were aluminum and could not accommodate the magnetic blue flag holders), and Baugher could not state
that Relco failed to place blue flags on the rails. Tr. 208.
Similarly, I have given little weight to Baugher’s testimony that Crall did not take issue with a
group of employees who were not wearing hard hats while on duty in February 2011. Tr. 178–179.
While Baugher testified that Crall did not speak to the employees on the shop floor, Baugher did not have
information about whether Crall later warned or disciplined those employees for not wearing hard hats as
required. Tr. 179.
15 Although Baugher did not sign the blue flag policy until November 1, he was aware of the policy
before October 26 because the policy was discussed at a safety meeting that he attended shortly after
returning to work (after an excused absence) in August 2010. Tr. 153–154.
16 Benboe, who served as Baugher’s direct supervisor for 60 percent of Baugher’s time at Relco,
completed the initial paperwork for Baugher’s performance review. Tr. 336–337. Relco did not obtain
input from Foreman Jim Cronin, who supervised Baugher for 6 months in 2010 when Baugher was
assigned to the night shift. Tr. 171. Crall did not show Baugher the actual performance review
paperwork during the meeting. Tr. 172.
17 I do not credit Bachman’s assertion that Baugher had a 60 to 90 day period to obtain his welding
certificate. See Tr. 76–77. No such timetable is stated in Baugher’s performance review.
JD−64−11
11
Spoke to Mark about his productivity incident that he was written up & placed on
probation for. Mark insists that he always works & shares his knowledge and always has.
We also spoke about self improvement. Mark has never proactively taken steps to
improve himself. We spoke about certifying & Mark thought he would certify just after 5
the start of the New Year.
We spoke about his probation & when he would come off of it. I told him that it would
be determined by his performance, self improvement & attitude.
10
We spoke about his attitude and that it needed to improve. Mark had an angry attitude
throughout the review.
GC Exh. 18 at 4.
15
8. Baugher’s early 2011 work assignments
In January 2011, Baugher re-took the welding certification test, but did not pass the
overhead welding portion of the test because the beginning and end of the welds were not
completely filled in.18 Tr. 175. Baugher did not attempt to retake the certification test, in part 20
because he had trouble finding times when both he and Benboe were available. Tr. 176 (noting
that Benboe switched to the night shift a few days after Baugher failed the welding test in
January 2011). Nevertheless, between January and March 2011, Relco assigned Baugher to
work 60–70 percent of his time repairing an Amtrak 200, an assignment that required Baugher to
perform welding tasks. Tr. 181–182. Relco managers also did not speak to Baugher again about 25
the weaknesses or goals listed on his performance review, or otherwise indicate that they were
unhappy with his performance.19 Tr. 184, 338.
9. Relco terminates Baugher
30
On March 11, Benboe asked Baugher to come to the office, where Crall notified Baugher
that Relco was terminating Baugher’s employment because he did not make sufficient
improvement on the deficiencies listed in his performance review.20 Tr. 69, 182, 389; GC Exh.
29. As Baugher was leaving the office, he asked Benboe if he had any problems with Baugher’s

18 This was not the first time that Baugher failed the welding certification test, as he failed the test on
three other occasions between 2007 and September 2010. Tr. 196; see also Tr. 173 (noting that as in
January 2011, Baugher passed the vertical-up portion of the welding test in late 2008, but did not pass the
overhead welding part of the test). Relco management did not advise Baugher to retake the welding
certification test at any point between Baugher’s late 2008 attempt and the 2010 performance evaluation.
Tr. 173–174.
19 Also in this time frame, Baugher began attending meetings regarding the possibility of bringing
another union (the IBEW) to Relco. Tr. 186–187. There is no evidence, however, that Relco supervisors
or agents were aware of this renewed union activity.
20 Bachman made the decision to terminate Baugher after speaking informally with some supervisors,
but did not consult with Benboe or review any of Baugher’s time sheets to gain a sense of the work that
Baugher did after his performance review. Tr. 70, 73, 339.
JD−64−11
12
performance. Benboe replied “No Mark. I didn’t know they [were] going to do this myself until
about a half hour ago.” Tr. 185, 339.
Baugher applied for unemployment compensation after he was terminated. Tr. 187–188.
During the unemployment compensation hearing, Crall (who participated to represent Relco) 5
asserted that Baugher had until the end of the 1st quarter of the year to complete his weld test.
Tr. 190. Baugher had never heard about such a deadline before. Tr. 190.
C. Charles Newton
10
1. Newton engages in protected activities and testifies in Judge Schmidt’s case
Charles Newton began working as a fabricator at Relco on November 24, 2008. GC Exh.
17; Tr. 95. In 2009, Newton attended meetings in connection with the Union’s efforts to
organize the employees at Relco. Tr. 98. Newton also shared his opinion about the Union with 15
his supervisor, Foreman Jim Cronin, stating that Relco’s rough-handed tactics probably had a lot
to do with the Union coming to the company. Tr. 100.
Shortly before the unfair labor practice trial handled by Judge Schmidt, Crall approached
Newton (who had previously requested a day off because of the trial) and asked if he would be 20
willing to speak to Relco’s attorney. Newton agreed, and met with Relco’s attorney and Crall for
5 minutes about Newton’s involvement in the case and what he might address in his testimony.
Tr. 101.
On September 15, Newton testified as a witness for the Acting General Counsel in the 25
unfair labor practice trial handled by Judge Schmidt. Tr. 100; GC Exh. 33. As previously noted,
Newton testified about a nondisclosure agreement that Relco asked employees to sign, and the
warnings that employees received about needing to speak with Bachman if they refused to do so.
Tr. 105; GC Exh. 33 at 344–347; see also GC Exh. 36 at 15 (noting that Newton denied seeing a
memorandum that Relco asserted that it posted in August 2010 to rescind the nondisclosure 30
agreement). Bachman was present in the courtroom when Newton testified, and had an
opportunity to listen to Newton’s testimony and (along with Relco’s attorneys at the time) review
a statement that Newton provided to the Union and the affidavit that Newton provided to the
Acting General Counsel. Tr. 102–104; see also GC Exhs. 19, 20.
35
2. Union election held at Relco
On October 20, the Board held an election at Relco to assess whether a sufficient number
of employees supported the Union. Tr. 36. Newton served as an observer for the Union at the
election, and in that capacity attended a briefing with Crall, Foreman Jeff Dalman and an NLRB 40
agent about the procedures that would be used during the election. Tr. 106–107. A majority of
employees voted against bringing the Union to Relco.
3. Relco disciplines Newton for lack of productivity
45
On November 29, Newton received a work order to make a rear headlight (for a cab)
similar to the front headlight on a locomotive. Since the work order was unclear, Newton
discussed it with Cronin, who suggested that Newton look at the locomotive headlight, which
JD−64−11
13
was located in a different part of the shop (approximately 150 feet away from where the cab was
located). Tr. 108. Accordingly, Newton walked from the locomotive to the cab to compare the
headlights, and back again, passing Crall twice along the way. Tr. 109, 387–388. Crall asked
Newton what he was doing, and Newton responded that he was building a headlight. Tr. 405
(noting that Crall also asked Cronin about Newton’s assignment, but Cronin only told Crall the 5
locomotive that Newton was working on).
A few minutes later, Cronin warned Newton that he needed to be careful and should not
walk around any more because Newton was being watched. When Newton responded that he
was simply walking over to inspect the cab headlight, Cronin responded, “I know but . . . be 10
careful, they’re watching you.” Tr. 109.
Later in the day, a coworker asked Newton for assistance with bending a remote box.
Newton agreed, and went to get his work gloves, which were located with Newton’s tools
approximately 50 feet away.21 Tr. 109–110. While Newton was on his way to get his gloves, 15
Benboe approached him and asked what he was doing. When Newton explained that he was
going to assist a coworker, Benboe responded that Crall had observed Newton walking around
too much. Newton advised Benboe that he was willing to list his steps on a piece of paper to
prove what he was doing, prompting Benboe to tell Newton to drop the matter because the
discussion wouldn’t work out well for Newton. Tr. 112.20
When Newton completed his shift and was clocking out, Cronin handed him a piece of
paper that read as follows:
This letter is to document the verbal warning you received on November 29, 2010, in 25
regards to your lack of productivity.
Any further occurrences will result in disciplinary actions, up to and including
termination.
30
GC Exh. 21; Tr. 112. Relco also prepared a memorandum (signed by Crall, Benboe and Cronin)
that asserted that Newton took 5 hours to complete tasks that should have taken 2 hours, and
noted that Crall and Benboe observed Newton walking around the shop. R. Exh. 1 (listing the
tasks of fixing 3 cracks on a batter box lid, straightening the side of a battery box, and pulling 2
windows; the headlight assembly task was not listed). Newton had never before been disciplined 35
while employed at Relco, or told by any supervisor that he needed to speed up or increase his
productivity. Tr. 113, 118.
4. Newton’s December 2010 performance review
40
On December 22, Crall met with Newton to give Newton his performance review.22 Tr.
113; GC Exh. 17. Relco gave Newton “satisfactory” ratings in 22 areas, but indicated that

21 It was not uncommon for Relco employees to assist each other with certain jobs. If a foreman was
not available to assign someone, employees approached each other directly to ask for assistance. Tr. 110–
111.
22 Newton did not receive a performance review in 2008 or 2009. Tr. 114.
JD−64−11
14
Newton’s attendance was “unacceptable” and that Newton was performing “below expectations”
in the following 3 areas: attitude; volume of acceptable work; and meeting deadlines. GC Exh.
17 at 1. Relco stated that Newton’s speed, welding and quality of work were very poor, and
added that Newton needed to stay on task and not walk around the shop. Relco set goals for
Newton to improve his attendance, obtain his welding certification and stay on task. GC Exh. 17 5
at 3. Crall advised Newton that he would not be receiving a raise. Tr. 116. Crall’s notes
describe the actual review as follows:
Spoke to Charley about some questionable attendance and he challenged that his
attendance was better than reported. 10
We talked about work ethic & the previous write up for wandering & lack of
productivity. Charley claims that he does not wander & is always working. This needs
to be monitored & improved immediately.
15
We spoke about the need to have proper tools so he can do his job correctly and he
needed them for the New Year.
We spoke about the need for Charley to continue bettering himself & that he needed to
weld certify in the 1st quarter of the year.2320
Charley’s attitude was defensive but not rude.
GC Exh. 17 at 4.
25
Newton contested parts of his review when he met with Crall. First, Newton maintained
that his attendance record was inaccurate, as he had fewer absences than the amount stated by
Relco. Tr. 114–115, 131. Crall subsequently confirmed that Newton was correct, and agreed
that Newton’s attendance rate was acceptable. Tr. 406. Second, Newton contested Crall’s
claims that he had a bad attitude and welded poorly.24 Crall did not provide Newton with any 30
examples of those alleged deficiencies. Tr. 115. Newton did agree that he needed to make more
of an effort to notify a supervisor before helping coworkers on the shop floor. Tr. 116.
5. Newton’s early 2011 work assignments
35
From January to March 2011, Newton primarily worked on the TRE DART project. In
connection with that project, Relco employees refurbished two-story passenger rail cars,
including the interiors, sidewalls, ceiling, floors, seats, air conditioning, brakes and electrical
components. Tr. 96; see also Tr. 119 (noting that several employees were assigned to the TRE
DART project). Newton also spent 4 or 5 days doing electrical work on another project. Tr. 97. 40

23 There is no evidence that Crall shared his notes with Newton. In any event, Newton did attempt
the weld certification test in 2010 (at some point before his performance review), but the test was voided
due to an equipment failure. Tr. 120, 136–137.
24 Newton denied that Crall told him that he needed to pass a weld certification test, and also denied
that Crall specified a deadline for obtaining such a certification. Instead, according to Newton, Crall
merely stated that Newton’s welds needed to improve. Tr. 115, 117.
JD−64−11
15
No welding was required for either assignment. Tr. 96, 120. Foreman Dragan Jankovic
complimented the electrical work that Newton and his colleagues performed in this time period.
Tr. 140–141. Newton did not receive any negative feedback or criticism from his supervisors at
any point after his December 2010 performance review. 25 Tr. 121.
5
6. Relco terminates Newton
On March 11, 2011, Cronin contacted Newton during his shift and advised that Newton
was needed in Crall’s office. Tr. 123. Crall told Newton that he was being terminated because
his production did not increase despite being on probation since his performance review.26 10
Newton responded that he had remained busy and did not stand around and talk like half of the
employees in the shop were doing, but Crall reiterated that Newton did not meet production
standards. Tr. 124, 390–391. Crall did not mention any examples of poor performance that
occurred between Newton’s performance review and the date of Newton’s discharge. Tr. 124.
Crall gave Newton a termination letter that stated as follows:15
On December 22, 2010, you were put on probationary employment because of specific
deficiencies as noted in your evaluation of the same date. As of today sufficient
improvement has not been made on these deficiencies, and consequently your
employment is hereby terminated. 20
GC Exh. 22.
D. Disparate Treatment Evidence – Baugher and Newton
25
As evidence of disparate treatment, the Acting General Counsel presented a variety of
records from Relco’s personnel files. Below, I have described the patterns that are apparent in
those records regarding certain types of employment actions.
1. Verbal warnings for productivity30
Relco has a very limited track record of giving employees verbal warnings for poor
productivity (or conduct that would result in poor productivity). In June 2009, Relco issued a
verbal warning to Nicholas Renfrew for engaging in horseplay that raised concerns about
employee safety and shop productivity. GC Exh. 36(r); see also GC Exh. 36(s) (Renfrew’s 35
statement, asserting that he did not engage in horseplay as alleged). In March 2011 (and thus
after most of the relevant events in this case), Relco gave verbal warnings to two employees for
poor productivity or inconsistent performance. See GC Exhs. 37(a) (employee J.R., on March
14, 2011); (m) (employee C.M., on March 9, 2011).
40

25 Also in this time frame, Newton attended meetings regarding the possibility of bringing another
union (the IBEW) to Relco. Tr. 121–123. There is no evidence, however, that Relco supervisors or
agents were aware of this renewed union activity.
26 Newton had never before been told that he was on probation. Tr. 125, 140. I credit Newton on
this point because his testimony is corroborated by his performance review, which does not indicate that
Relco was placing Newton on probation. See GC Exh. 17.
JD−64−11
16
2. Suspensions for safety violations
Consistent with the testimony presented during trial, Relco has an established track
record of issuing verbal warnings to employees who violate its blue flag policy. See GC Exh.
37(g)–(h) (employees D.G. and W.D.); but see GC Exh. 37(z) (employee M.D. was suspended 5
for 3 days in July 2011 for committing a second blue flag violation).
There is no clear pattern of discipline for other safety violations, as Relco has addressed
some safety violations by issuing verbal warnings,27 and has addressed other safety violations
with suspensions.28 The record does not include an example of formal discipline issued to an 10
employee (other than Baugher) for smoking in an enclosed space or for failing to wear a hard
hat.
3. Discharges for poor productivity and lack of a welding certification
15
When Relco discharged Baugher and Newton, it cited their poor productivity and their
failure to obtain their welding certifications.29 See GC Exh.29 (citing deficiencies listed in
Baugher’s performance review, found at GC Exh. 18); GC Exh. 22 (same, regarding Newton’s
performance review, found at GC Exh. 17). Specifically, Baugher’s and Newton’s performance
reviews state as follows in section C (required improvement or correction needed) and D (goals20
set for the next performance period) of the review:
Employee
Hire Date
Growth Potential (GP)
Required Improvement
(Section C)
Goals (Section D)
Mark Baugher
Hired – March 2007
GP: Performance Plateau
Received suspension for job
performance
Certify for welding requirements
Keep work are clean and
organized

27 See GC Exhs. 37(c), (t) (warnings to employee M.Dr. and to Richard Pace for crossing tracks
without permission while switching was occurring); (k) (warning to employee G.J. for performing paint
repairs in an improper location and near employees who might not be wearing protective equipment);
(l) (warning to employee C.B. for not following procedure in the water treatment building; and
(r) warning to Nicholas Renfrew for horseplay in the shop).
28 See GC Exh. 37(b) (employee S.D. suspended for 3 days for not wearing a safety harness while
operating the JLG lift); (i) (employee D.J. suspended for 2 days for not following switching procedures
(in the form of not properly clearing a unit)); and (q) (employee K.S. suspended for 3 days for reckless
driving on company property). I have also considered the fact that Relco suspended employee M.D. for 3
days in July 2011 for committing a second blue flag violation, but that suspension carries less weight in
my analysis since it occurred after Baugher and Newton were discharged.
29 Although Baugher’s performance review stated that he was on probation for poor job performance,
I note that Relco’s assessment of Baugher’s performance was at least in part based on Baugher’s alleged
poor productivity. See GC Exh. 18 (rating Baugher “below expectations” in areas such as staying on task,
organization of work station, problem solving, being proactive, judgment and decisions, recognize and
facilitate improvements, and fulfillment of goals); GC Exh. 26 (in connection with Baugher’s November
1 suspension, Relco identified alleged lapses in Baugher’s production work on September 13).
JD−64−11
17
(see GC Exh. 18)
Charles Newton
Hired – November 2008
GP: Performance Plateau
(see GC Exh. 17)
None Attendance30
Weld test
Stay on task
I identified 4 employees who received performance reviews in December 2010 that
identified deficiencies similar to Baugher’s and Newton’s. The records for those employees state
as follows:
5
Employee
Hire Date
Growth Potential
Required Improvement
(Section C)
Goals (Section D)
S.C.
Hired – June 2009
GP: Performance Plateau
(see GC Exh. 6)
None Become a certified welder
Improve attendance
Speed up production level
J.R.
Hired – June 2010
GP: Performance Plateau
(see GC Exh. 9)
None Become a certified welder
Improve attendance
Improve speed of production
J.N.
Hired – April 2010
GP: Performance Plateau
(see GC Exh. 10)
None Drastically improve attendance
Be more proactive in workplace
Become a certified welder
M.D.
Hired – April 2010
GP: Performance Plateau
(see GC Exh. 15)
Stay on assigned work task Work on fabrication skills
Become a certified welder
Unlike Baugher and Newton, none of the 4 employees listed above was discharged because of
the deficiencies identified in their performance reviews.31
10
In addition, although Relco attempted to distinguish Baugher and Newton from these 4
employees by asserting that Baugher and Newton had been employed at Relco for a longer time
period without improving their skills, that argument is undermined by the growth potential

30 As previously noted, Relco later confirmed that Newton’s attendance was at an acceptable level.
Tr. 406.
31 Of the employees that Relco discharged between 2008 and March 2011 (excluding the
discriminatees in this case and in Judge Schmidt’s case), the majority of those employees were discharged
for absenteeism (see GC Exhs. 38(a)–(e), (h), (k)–(q), (s)–(t), (v)–(aa), (cc)–(ff), (jj)–(kk), (mm)–(pp),
(rr), (uu)–(ww)) or for leaving their shift without authorization (see GC Exhs. 38(i)–(j)). One employee
was discharged for each of the following reasons: poor performance and lack of job safety (see GC Exh.
38(u)); not having skills that met Relco’s needs (see GC Exh. 38(hh)); evidence of using a controlled
substance (see GC Exh. 38(ll); and inability to perform assigned duties (see GC Exh. 38(qq).
JD−64−11
18
assessments that Relco made in its December 2010 performance reviews. In those reviews,
Relco indicated that Baugher, Newton and the 4 employees I have identified were similarly
situated in their skill development because Relco gave each employee (including Baugher and
Newton) performance plateau growth potential ratings. Perhaps a misnomer, a performance
plateau growth potential rating is given to an employee who has “learned basic job skills and 5
knowledge and is actively working on refining that skill and knowledge.” See GC Exh. 4 at 3
(also explaining, in another misnomer, that the performance peaking rating is appropriate for an
employee who has been performing similar tasks for an extended period of time and shows little
sign of improvement or desire to expand his/her job knowledge or skill diversity).
10
4. Treatment of other employees who testified as witnesses for the Acting General Counsel
in Judge Schmidt’s case
Five employees testified as witnesses in the Acting General Counsel’s case-in-chief in the
trial handled by Judge Schmidt: Mark Baugher; Jonathan Graber; Charles Newton; Jamie 15
McKim; and Richard Purdun. See GC Exhs. 32–35. Of those 5 witnesses, only Newton and
Baugher have been discharged. Tr. 420.
Although that fact allows for a somewhat superficial argument that the Respondent did
not target all of the Acting General Counsel’s witnesses for termination, the evidentiary record 20
shows that Newton and Baugher’s actions before and during trial were materially different than
the actions of the other 3 employee witnesses.
Specifically, Baugher and Newton were the only employee witnesses who signed a
statement for the Union regarding comments that Bachman allegedly made in a May 2009 staff 25
meeting. See GC Exh. 19. Two discriminatees in Judge Schmidt’s case (Ron Dixon and Jeffrey
Smith) also signed the statement. Id. As previously noted, the Respondent received a copy of
the statement to review before cross–examining Baugher and Newton in Judge Schmidt’s case.
Tr. 102–104, 150–152.
30
In addition, Graber and Perdun were openly reluctant witnesses for the Acting General
Counsel in Judge Schmidt’s case. Both Graber and Perdun declined to meet with Board agents
or attorneys before trial until compelled to do so by subpoena. See GC Exh. 32 at pp. 264
(Perdun) and 305 (Graber); see also GC Exhs. 30–31. Graber openly opposed the Union, and
admitted that he periodically apprised Relco managers about the union organizing campaign. 35
See GC Exh. 32 at pp. 308–312. As for Perdun, Judge Schmidt permitted the Acting General
Counsel to question him as a hostile witness under Rule 611(c) of the Federal Rules of Civil
Procedure. See GC Exh. 32 at p. 267. Baugher and Newton, by contrast, did not demonstrate
any comparable reluctance to support the Acting General Counsel (and the Union) in litigating
against Relco in Judge Schmidt’s case.3240

32 The Respondent missed the mark when it contended in its posttrial brief that I should have denied
the Acting General Counsel’s request to admit the transcripts of Baugher, Graber, McKim, Newton and
Perdun’s testimony (from Judge Schmidt’s case) into evidence. See R. Posttrial Br. at 36–38. First, the
Respondent asserts that the testimony is hearsay because the Acting General Counsel did not show that
the 5 witnesses were unavailable (per Rule 804(b)(1) of the Federal Rules of Evidence regarding
admitting prior testimony into evidence as an exception to the hearsay rule). That argument fails because
JD−64−11
19
E. Richard Pace and Nicholas Renfrew

Richard Pace began working as an electrician for Relco in February 2009. Tr. 244–245.
Nicholas Renfrew also worked for Relco as an electrician, joining the company in March 2006. 5
Tr. 275.
1. Rumors circulate that coworker Chris Kendall was fired
In the morning on December 22, 2010, both Pace and Renfrew reported to work and 10
attended an employee meeting. Tr. 245–246, 277. Pace did not see coworker Chris Kendall at
the meeting. Tr. 246.
Later that morning, Pace overheard two employees (Richard Purdun and another
employee) talking about Chris and opining that he had been fired. Pace stopped and asked, “Do 15
you mean Chris Kendall?”, and Purdun answered yes and repeated his belief that Kendall had
been fired. Tr. 246. Pace was shocked to hear this rumor because Kendall seemed like a good
employee who did a lot around the shop. 33 Tr. 246.
Pace walked to his unit, where he encountered another employee (employee D.K.). Pace 20
asked D.K., “What’s this I hear about Chris?” D.K. replied that he had just heard from employee
B.C. that Kendall had been fired, and wondered if Kendall had been fired for absenteeism

I did not admit the transcripts for the truth of the testimony offered therein, but rather for the non-hearsay
purpose of showing that the Relco was on notice of the nature of the testimony that the 5 witnesses
provided in Judge Schmidt’s case (and thus received information that may supplied a motive for Relco to
react negatively to the testimony of some witnesses, but not others).
Second, the Respondent argues that my decision to admit the transcripts violated its due process
rights. That argument also fails, because the Respondent was a litigant (indeed, the Respondent) in Judge
Schmidt’s case, and therefore had an opportunity to cross-examine each of the 5 witnesses for which I
admitted transcripts. Moreover, since I only admitted the transcripts for the limited purpose of showing
that the Respondent was aware of the nature of each witness’ testimony in Judge Schmidt’s case, the fact
that the Respondent had an opportunity to cross-examine the 5 witnesses is somewhat beside the point,
since the truth of the testimony is not at issue. Instead, what matters is the undisputed fact that the
Respondent heard what each witness said in Judge Schmidt’s case, regardless of how truthful the
testimony was.
Third, the trial transcripts from Judge Schmidt’s case (and Judge Schmidt’s decision itself – see
GC Exh. 36) are not evidence of propensity that would be excluded under Rule 404(b) of the Federal
Rules of Evidence. To the contrary, the trial transcripts are relevant to show notice (as explained above),
and Judge Schmidt’s decision was admissible to the extent that it may contain factual findings that
provide background for the allegations in my case (as well as findings that could serve as evidence that
Relco acted with animus in this case, though I did not rely on Judge Schmidt’s decision for that purpose).
As the trier of fact, I have adhered to those limitations, and I have taken into account the fact that Judge
Schmidt’s decision has been appealed to the Board, and thus is only persuasive, nonbinding, authority.
33 Kendall worked as a switchman at Relco, joining the company in October 2008. In that capacity,
Kendall was responsible for switching locomotives in and out of the main facility or paint blast booth.
Tr. 221. In the paint blast booth, employees use hot water to blast paint and primer off of locomotives so
they can be repainted. Tr. 222.
JD−64−11
20
(noting that Kendall had been off work the previous day because he played Santa Claus for his
child’s school). Tr. 247.
Renfrew also heard the rumor that Kendall had been discharged, first hearing the rumor
from Pace and another employee (employee W.L.) who stated that Kendall had been “fired for 5
playing Santa Claus.” Tr. 278. Like Pace, Renfrew was surprised to hear the rumor because
Kendall was a friend, and also because Kendall had a reputation as Foreman Jeffrey Dalman’s
go-to person for assignments. Tr. 279. Renfrew and Pace shared their concern that if Relco
could fire an employee as well-regarded as Kendall, then Relco could fire anyone. Tr. 279.
10
Kendall, who was actually at work, but in the paint blast booth (a separate building from
the main facility), got wind of the rumors that he had been fired when he received a text message
from his cousin (employee N.B.) at 9:00 a.m. Tr. 222–223 (noting that Kendall’s first break
occurred at 9:00 a.m.). Employee D.K. also texted Kendall to ask if he had been fired. Kendall
sent reply text messages during his 9:00 a.m. break to both N.B. and D.K. to state that he had not 15
been fired. Tr. 224.
Meanwhile, other employees continued to chatter about Kendall’s status. Pace and
Renfrew spoke to 2 to 3 other employees about Kendall during the lunch break (from 12:00 to
12:30 p.m.), expressing their surprise that Kendall had been fired. Tr. 248, 261, 280–281. Pace, 20
Renfrew and many other employees felt that it was wrong that Kendall had been fired, and some
thought that Kendall’s discharge was a sign that Relco was cutting back its operations because it
did not have as much work lined up for the next year.34 Tr. 249–250. In an effort to ascertain
Kendall’s status, Pace sent Kendall a text message during his (Pace’s) lunch break to ask Kendall
if indeed he had been fired.35 Tr. 250–251; see also Tr. 224–225 (noting that Renfrew did not 25
send any text messages to Kendall).
2. Pace and Renfrew learn that the rumor of Kendall’s discharge is incorrect
A while after the lunch break, employee D.K. advised Pace that Kendall was at work and 30
was simply working in the paint blast booth. Tr. 251; see also Tr. 221–222 (noting that the paint
blast booth is a separate facility from the main shop). Kendall responded to Pace’s text message

34 Pace and Renfrew admitted that employees did not talk specifically about working together to
address their concerns about Kendall’s termination. Tr. 263, 293–294.
35 Relco policy prohibits employees from sending text messages or using their cell phones while on
duty. Employees may, however, use their cell phones while on break. Tr. 264–265.
Bachman testified that when he inspected Kendall’s phone, the text message from Pace was time-
stamped as being received at 1:06 pm. Tr. 425, 439. Pace, however, insisted that he sent the text message
during his lunch break (between 12:00 and 12:30 p.m.), and added that on prior occasions, there was a
delay before his text messages reached the intended recipient. Tr. 271.
I have credited Pace’s explanation regarding when Pace sent the text message to Kendall. Relco
did not suggest in its termination letter that Pace improperly sent a text message while on duty. To the
contrary, Relco merely asserted that Pace violated Relco’s standards of conduct. See GC Exh. 5. In
addition, the inherent probabilities relating to the time stamp on Pace’s text also support Pace’s testimony.
Bachman inspected Kendall’s phone, not Pace’s. It stands to reason that Kendall’s phone would show
when the text was received (not sent), since Kendall was the message recipient.
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21
at approximately 3:00 p.m., stating that if Relco did fire him, they were “playing a hell of a cruel
joke on me, sticking me over here in blast.” Tr. 226, 251.
Renfrew, meanwhile, spoke to maintenance man E.C. about Kendall’s status, and learned
from E.C. that Kendall had not been fired and was on duty in the paint blast booth. Tr. 225–226, 5
279–280. After speaking with E.C., Renfrew made a point of telling other employees that
Kendall had not been fired, and was simply working in the blast booth. Tr. 280, 281–282.
3. Relco management learns about the rumor and reassures Kendall
10
Towards the end of Kendall’s shift, Foreman Jeffrey Dalman noticed that Kendall
seemed agitated and asked him what the problem was. Kendall replied, “If I’m going to be fired,
I would like for a supervisor to be the one to tell me.” Tr. 365, 370 (noting that Kendall
mentioned receiving a text message). Dalman notified Crall about Kendall’s concerns. Tr. 366.
15
Crall, who had planned on giving Kendall his performance review that day, met with
Kendall. Initially, Kendall was upset and told Crall that, “If you’re going to fire me, let’s get it
over with.” Tr. 239, 392. Crall assured Kendall that he was not going to be fired (to Crall’s
knowledge), and once Kendall calmed down, gave Kendall his performance review. As part of
the performance review, Crall advised Kendall that he would be receiving a raise in salary. Tr. 20
226–227, 239–240, 242–243, 392. Kendall thereafter concluded his shift and went home. Tr.
240 (noting that Kendall calmed down by the time he left work on December 22).
Both Crall and Dalman notified Bachman about their interactions with Kendall. Crall
also mentioned that Kendall had been upset about the rumors that he was going to be fired. Tr. 25
366–367, 392. At Bachman’s request, Dalman called Kendall and asked him to save the text
messages on his cell phone because Bachman wished to meet with him (Kendall) and see the
messages the next morning. Tr. 227, 367.
In the early morning on December 23, Bachman, Crall and Dalman met with Kendall, 30
who showed Bachman the text messages on his cell phone (including Pace’s), and mentioned
that Renfrew had asked employee E.C. if Kendall had been fired. Tr. 228–230, 394. Bachman
reiterated that Kendall was doing a good job and was not going to be fired, and stated that he
would take care of the matter. 36 Tr. 229–231, 394.
35
4. Pace and Renfrew discharged for spreading malicious rumors
Later on December 23 (at approximately 8:30 a.m.), Dalman contacted Pace and
instructed him to report to Bachman’s office (where Bachman and Crall were waiting). Tr. 252–

36 Kendall was reluctant to show Bachman his cell phone because he viewed it as his personal phone,
and also because he felt the matter had been resolved. Tr. 227–228. Although Crall and Bachman
testified that Kendall was still upset on December 23 (see Tr. 394), I have credited Kendall’s testimony
that he calmed down after meeting with Crall on December 22 (see Tr. 239). Since Crall reassured
Kendall on December 22 that he was not going to be terminated, and also advised him that he would be
receiving a raise, it stands to reason that Kendall would not have been upset when he returned to work on
December 23.
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22
253. Bachman asked Pace to tell him about the rumors involving Kendall, and Pace replied that
everyone in the shop knew about the rumor. Tr. 254. Pace acknowledged that he sent Kendall a
text message to ask if he (Kendall) had been fired. When Bachman asked Pace if he thought it
was right to send Kendall the message, Pace answered that he did not see a problem with it
because Kendall was a friend and Pace wanted to find out if the rumor of Kendall’s discharge 5
was true or not. Tr. 254. Bachman disagreed, asserting that spreading malicious rumors messed
with employees’ livelihoods and their families’ well being. Bachman added that he would not
tolerate the spreading of malicious rumors, and informed Pace that his employment with Relco
was terminated. Tr. 255; see also GC Exh. 5 (December 23, 2010 letter given to Pace, stating
that he was being terminated for violating Relco’s standard of conduct); R. Exh. 76 at p. 20, par. 10
13 (Relco employee manual, identifying spreading malicious rumors as unacceptable conduct
that can result in disciplinary action up to and including termination).
Similarly, Renfrew’s supervisor (Shawn Shaffer) contacted him on the shop floor and
instructed him to report to Bachman’s office, where Bachman and Crall were waiting. Tr. 283. 15
Bachman asked Renfrew about the rumors concerning Kendall, and Renfrew explained that once
he learned from employee E.C. that the rumor was false, he tried to stop the rumors by telling
employees that Kendall had not been fired.37 Tr. 283–284. Bachman responded that in his view,
Renfrew had potentially destroyed Kendall’s life by continuing to spread malicious rumors. Tr.
284. Bachman then informed Renfrew that he was terminated and should collect his tools and 20
leave the property. Tr. 284–286; see also GC Exh. 23 (December 23, 2010 letter given to
Renfrew, stating that he was being terminated for violating Relco’s standard of conduct); Tr.
287–288 (noting that in a telephone hearing regarding Renfrew’s request for unemployment
compensation, Crall reiterated that Renfrew was discharged spreading malicious rumors and
violating Relco’s code of conduct). 3825
COMPLAINT ALLEGATIONS
The consolidated complaint alleges that Relco violated the National Labor Relations Act
by:30
1. threatening Charles Newton, on or about November 29, 2010, that he was being
watched (in violation of Section 8(a)(1) of the Act);
2. discharging Richard Pace and Nicholas Renfrew on or about December 23, 2010,35
because they engaged in protected concerted activities by discussing their concerns
that a coworker (Chris Kendall) had been fired (in violation of Section 8(a)(1) of the
Act);

37 Renfrew explained that he asked employee E.C. about the rumor because E.C. works in multiple
buildings, and thus Renfrew thought E.C. would know what was happening. Tr. 284.
38 Both Pace and Renfrew noted that on other occasions when rumors circulated around the shop
(about the Union or other issues), Bachman responded by appearing at a staff meeting to talk about the
issue. Bachman did not follow that approach to address the rumors that Kendall had been discharged. Tr.
260–261, 289-290. Renfrew was not aware of any employees ever being disciplined or terminated for
spreading rumors. Tr. 290.
JD−64−11
23
3. issuing a written warning to Mark Baugher on or about November 1, 2010, for
workplace misconduct that allegedly occurred on September 13, 2010 (in violation of
Section 8(a)(1), (3) and (4));
4. suspending Baugher on or about November 1, 2010, for workplace misconduct that 5
allegedly occurred on September 13 and October 26, 2010 (in violation of Section
8(a)(1), (3) and (4));
5. issuing a documented verbal warning to Newton on or about November 29, 2010, for
alleged lack of productivity (in violation of Section 8(a)(1), (3) and (4));10
6. issuing unfavorable performance evaluations to Baugher and Newton on or about
December 22, 2010 (in violation of Section 8(a)(1), (3) and (4));
7. placing Baugher and Newton on probation on or about December 22, 2010 (in 15
violation of Section 8(a)(1), (3) and (4)); and
8. discharging Baugher and Newton on or about March 11, 2011 (in violation of Section
8(a)(1), (3) and (4)).
20
See GC Exh. 1(m), pars. 5–9.
LEGAL STANDARDS
A. Witness Credibility25
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 30
NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)),
enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); see also Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006) (noting that an ALJ may draw an adverse inference from a party’s
failure to call a witness who may be reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its version of events, particularly when the 35
witness is the party’s agent). Credibility findings need not be all-or-nothing propositions —
indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not
all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622.
B. Section 8(a)(1) Violations40
Under Section 7 of the Act, employees have the right to engage in concerted activities for
their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer (via
statements, conduct, or adverse employment action such as discipline or discharge) to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. See 45
Brighton Retail, Inc., 354 NLRB No. 62, slip op. at 7 (2009).
The test for evaluating whether an employer’s conduct or statements violate Section
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24
8(a)(1) of the Act is whether the statements or conduct have a reasonable tendency to interfere
with, restrain or coerce union or protected activities. KenMor Electric Co., 355 NLRB No. 173,
slip op. at 4 (2010) (noting that the employer’s subjective motive for its action is irrelevant);
Yoshi’s Japanese Restaurant., Inc., 330 NLRB 1339, 1339 fn. 3 (2000) (same); see also Park N’
Fly, Inc., 349 NLRB 132, 140 (2007). 5
The discipline or discharge of an employee violates Section 8(a)(1) of the Act if the
employee was engaged in activity that is “concerted” within the meaning of Section 7 of the Act,
the employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the discharge was motivated by the employee’s protected, concerted 10
activity. Correctional Medical Services, 356 NLRB No. 48, slip op. at 2 (2010) (citing Meyers
Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). If the
General Counsel makes such an initial showing of discrimination, then the respondent may15
present evidence, as an affirmative defense, demonstrating that it would have taken the same
action even in the absence of the employee’s protected activity. See Timekeeping Systems, Inc.,
323 NLRB 244, 244 (1997).
Regarding activities that qualify as concerted activities, false and inaccurate employee 20
statements are protected under the Act unless they are malicious. However, knowingly false
statements are defined as malicious, and are therefore not protected. Central Security Services,
315 NLRB 239, 243 (1994).
C. Section 8(a)(3) and (4) Violations25
The legal standard for evaluating whether an adverse employment action violates Section
8(a)(3) or (4) of the Act is generally set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). To sustain a finding of
discrimination, the General Counsel must make an initial showing that a substantial or 30
motivating factor in the employer’s decision was the employee’s union or other protected
activity. Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003). The elements commonly required
to support such a showing are union or protected concerted activity by the employee, employer
knowledge of that activity, and animus on the part of the employer. Consolidated Bus Transit,
Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). If the General Counsel 35
makes the required initial showing, then the burden shifts to the employer to prove, as an
affirmative defense, that it would have taken the same action even in the absence of the
employee’s union or protected activity. Id. at 1066; Pro-Spec Painting, 339 NLRB at 949;
Bally’s Atlantic City, 355 NLRB No. 218, slip op. at 3 (2010) (explaining that where the General
Counsel makes a strong initial showing of discriminatory motivation, the respondent’s rebuttal 40
burden is substantial), enfd. 646 F.3d 929 (D.C. Cir. 2011). The General Counsel may offer
proof that the employer’s reasons for the personnel decision were false or pretextual. Pro-Spec
Painting, 339 NLRB at 949 (noting that where an employer’s reasons are false, it can be inferred
that the real motive is one that the employer desires to conceal — an unlawful motive — at least
where the surrounding facts tend to reinforce that inference.) (citation omitted). However, 45
Respondent’s defense does not fail simply because not all the evidence supports its defense or
because some evidence tends to refute it. Ultimately, the General Counsel retains the burden of
proving discrimination. Park N’ Fly, Inc., 349 NLRB at 145 (citations omitted).
JD−64−11
25
The Wright Line standard does not apply where there is no dispute that the employer took
action against the employee because the employee engaged in activity that is protected under the
Act. In such a single motive case, the only issue is whether the employee’s conduct lost the
protection of the Act because the conduct crossed over the line separating protected and 5
unprotected activity. Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. 63 Fed. Appx.
524 (D.C. Cir. 2003). Specifically, when an employee is disciplined or discharged for conduct
that is part of the res gestae of protected concerted activities, the pertinent question is whether
the conduct is sufficiently egregious to remove it from the protection of the Act. Aluminum Co.
of America, 338 NLRB 20 (2002). In making this determination, the Board examines the 10
following factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the
nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an
employer’s unfair labor practice. Stanford Hotel, 344 NLRB 558, 558 (2005) (citing Atlantic
Steel Co., 245 NLRB 814, 816 (1979)).
15
DISCUSSION AND ANALYSIS
A. Credibility Findings
My credibility findings are generally incorporated into the findings of fact that I set forth 20
above. My observations, however, were that the Acting General Counsel’s witnesses were
poised, forthright and composed when they testified. To the extent that the Acting General
Counsel’s witnesses were inconsistent in their testimony, the inconsistencies related to collateral
matters or matters beyond the scope of their personal knowledge39 that did not undermine their
overall credibility. 25
The Respondent’s witnesses, by contrast, had trouble squaring their testimony with
documentation (such as disciplinary records and performance reviews) that they prepared or
approved (Bachman and Crall), and also had trouble recalling details without the assistance of
leading questions (Benboe).40 In the instances where Relco’s own documentation failed to 30
corroborate the testimony that Relco’s witnesses provided about a particular issue, Relco’s
witnesses offered post hoc rationalizations for the inconsistencies that were not believable and
thus undermined the witnesses’ credibility.
B. Mark Baugher35

39 As indicated in my findings of fact, Baugher occasionally strayed into testifying about matters
beyond his personal knowledge. I did not credit certain portions of Baugher’s testimony for that reason.
However, Baugher’s testimony as a whole was credible.
40 Benboe also had to backtrack from his testimony that he observed Baugher commit safety
infractions on September 13, 2010, after he was confronted with his admission (found in his affidavit)
that he did not see the alleged infractions on September 13 and simply signed the disciplinary paperwork.
JD−64−11
26
1. The November 1, 2010 written warning, suspension and probation41
As previously noted, the Acting General Counsel alleges that Relco unlawfully
discriminated against Baugher by giving him a written warning (for the September 13 incident),
suspending him and placing him on probation on November 1, 2010 (citing violations that 5
allegedly occurred on September 13 and October 26) because Baugher supported the Union and
gave testimony under the Act. Those allegations are covered by the familiar Wright Line
standard, which requires the Acting General Counsel to make an initial showing that Baugher’s
union or other protected activity was a substantial or motivating factor in Relco’s decision to
discipline Baugher.10
I find that the Acting General Counsel did make an initial showing of discrimination.
Relco managers learned that Baugher was going to testify in Judge Schmidt’s case when
Baugher (on September 14) asked Benboe for time off so he could testify. Further, when
Baugher did testify the next day (on September 15), Bachman was present and was able to hear 15
Baugher’s testimony, review the affidavit that Baugher provided to the NLRB, and also review a
statement that Baugher submitted to the Union regarding an incident involving Bachman that
occurred in May 2009. Based on that sequence of events, there is no dispute that Baugher
engaged in Union and protected activities, and there is no dispute that Relco had knowledge of
those activities. The Acting General Counsel also presented sufficient evidence of animus, as the 20
record shows that Relco provided shifting reasons for giving Baugher a written warning for the
September 13 incident, and disciplined Baugher less than 2 months after learning of his union
and protected activities, and less than 2 weeks after the Union election was held. See Medic
One, Inc., 331 NLRB 464, 475 (2000) (“Evidence of suspicious timing, false reasons given in
defense, failure to adequately investigate alleged misconduct, departures from past practices, 25
tolerance of behavior for which the employee was allegedly fired, and disparate treatment of the
discharged employees all support inferences of animus and discriminatory motivation.”); see also
North Carolina License Plate Agency #18, 346 NLRB 293, 294 (2006), enfd. 243 Fed. Appx.
771 (4th Cir. 2007) (suspicious timing of adverse employment action can provide strong evidence
of an employer’s animus); Master Security Services, 270 NLRB 543, 552 (1984) (animus 30
demonstrated where an employer used a multiplicity of reasons to justify disciplinary action).
Turning to Relco’s affirmative defense, I find that Relco failed to show that it would have
taken the same adverse action against Baugher even in the absence of Baugher’s union and
protected activities. The blue flag violation that Baugher committed on October 26 is essentially 35
undisputed,42 and standing alone would have supported a verbal warning based on Relco’s past

41 In the complaint, the Acting General Counsel alleged that Relco placed Baugher on probation on
December 22 (the same date as Baugher’s performance review). However, the trial testimony established
that Relco began Baugher’s probation on November 1. Although the Acting General Counsel did not
amend its complaint to correct the date of Baugher’s probation, that oversight is not fatal because the
validity of Baugher’s probation was fully litigated during the trial. Accordingly, I have considered the
Acting General Counsel’s allegation that Baugher’s probation was unlawful on its merits (and using the
correct date of November 1). See Pergament United Sales, 296 NLRB at 335 (“It is well settled that the
Board may find and remedy a violation even in the absence of a specified allegation in the complaint if
the issue is closely connected to the subject matter of the complaint and has been fully litigated.”).
42 Baugher admitted his own blue flag violation, but suggested that his coworker also committed a
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27
practices and its admissions during trial.43 I also found that Relco believed that Baugher
committed a safety violation on September 13 by failing to wear his hard hat, and planned to
issue a separate warning for that violation.
With that being stated, however, I still find that Relco fell short in establishing its 5
affirmative defense, primarily because the alleged workplace misconduct that Relco ultimately
cited in support of its ultimate decision to warn and suspend Baugher and place him on probation
is not credible.44 Specifically, between Bachman’s September 13 e-mail to Crall (which only
mentioned Baugher’s failure to wear a hard hat on the same day) and Relco’s decision to
discipline Baugher on November 1, Relco’s description of Baugher’s September 13 misconduct 10
transformed significantly. Indeed, instead of consistently maintaining that Baugher failed to
wear his hard hat, Relco added new claims that Baugher improperly smoked in a confined space
(inside the B-cab) and demonstrated poor performance by repeatedly loitering while on duty.
Furthermore, the credibility of Relco’s claims about Baugher’s misconduct on September 13 is
undermined by the fact that no one in management bothered to speak to Baugher about the 15
alleged misconduct (among other things, in the interest of safety and avoiding penalties that can
be imposed on Relco when employees violate Iowa’s smoking regulations).45 In short, I find that
Relco embellished its account of Baugher’s misconduct on September 13 to justify the written
warning, suspension and probation that it imposed. Because of that fact, Relco’s affirmative
defense fails, and I find that the Acting General Counsel demonstrated that Relco discriminated 20
against Baugher in violation of Section 8(a)(3), (4) and (1) when it warned Baugher for
misconduct that allegedly occurred on September 13, suspended Baugher and placed him on
probation.
2. Baugher’s December 22, 2010 performance review25
The complaint also alleges that Relco violated the Act by giving Baugher a negative
performance review on December 22. I agree. In Baugher’s performance review, Relco cited

blue flag violation on the same date. I did not credit that aspect of Baugher’s testimony because Baugher
was not in fact certain that his coworker failed to remove his blue flag, and no other evidence supported
the proposition that another coworker committed a blue flag violation on October 26.
43 Indeed, the Acting General Counsel does not contend that the verbal warning for the blue flag
violation was unlawful. The Acting General Counsel does, however, challenge the validity of Baugher’s
suspension and probation (which were also predicated, in part, on the blue flag violation).
44 I emphasize that I am not ruling that Relco could never discipline (via warning, suspension and/or
probation) an employee for the types of workplace violations that it alleged Baugher committed. Rather, I
have found that Relco’s claims that Baugher committed workplace violations on September 13 are not
credible and thus cannot establish an affirmative defense under Wright Line.
45 I do not credit Relco’s explanation that decided not to speak to Baugher because its former
attorneys warned against taking disciplinary action with the union election approaching. While perhaps
Relco did delay taking formal disciplinary action against employees (such as employee K.S., see GC
Exhs. 37(o)–(q)) until after the election, it defies logic that Relco would adopt any anything goes attitude
towards safety violations (or smoking violations that could result in penalties) in the workplace and
refrain from taking even the basic step of verbally correcting employees about ongoing misconduct.
Consistent with my analysis (and contrary to Relco’s explanation), Benboe did speak to employee K.S.
about driving recklessly in a company parking lot shortly before the election, and also advised K.S. that
Relco would take some sort of corrective action to address the misconduct. See GC Exh. 37(p).
JD−64−11
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Baugher’s November 1 suspension and probation explicitly, and relied on that prior (unlawful)
discipline to justify its decision to deny Baugher a pay raise and to support its assertion that
Baugher needed to improve his job performance. See GC Exh. 18 at p. 3 (sections C and E).
The performance review that Relco gave Baugher is tainted by its reliance on the unlawful
November 1 discipline, and thus also violates the Act. See Care Manor of Farmington, Inc., 318 5
NLRB 725, 726 (1995) (explaining that a decision to discipline or discharge an employee is
tainted if the decision relies on prior discipline that was unlawful); Dynamics Corp., 296 NLRB
1252, 1253–1254 (1989) (same), enfd. 928 F.2d 609 (2d Cir. 1991).
A brief analysis using the Wright Line framework supports my conclusion. As 10
summarized above (in section B(1)), Baugher engaged in Union and protected activities, and
Relco was aware of those activities. Animus is established not only by the circumstantial
evidence regarding the suspicious timing of Relco’s actions, but also by the unlawful disciplinary
actions that Relco took against Baugher on November 1. The Acting General Counsel therefore
made an initial showing of discrimination. 15
As for an affirmative defense, Relco’s argument that it would have given Baugher a
negative performance review irrespective of his Union and protected activities fails (as stated
above) because Relco explicitly relied on the unlawful November 1 discipline as a significant
predicate for giving Baugher a negative performance review. I therefore find that Relco 20
unlawfully discriminated against Baugher (in violation of Section 8(a)(3), (4) and (1)) by giving
him a negative performance review on December 22.
3. Baugher’s termination on March 11, 2011
25
Finally (as to Baugher), the complaint alleges that Relco unlawfully discriminated against
Baugher in violation of the Act by terminating him on March 11, 2011. Once again, the Acting
General Counsel made an initial showing of discrimination. Relco was aware of Baugher’s
Union and protected activities (see section B(1), supra), and the Acting General Counsel
presented sufficient evidence of animus insofar as (among other things) Relco unlawfully 30
disciplined Baugher on November 1, and unlawfully gave Baugher a negative performance
review on December 22.
In light of the initial showing of discrimination, the burden shifted to Relco to show that
that it would have terminated Baugher even in the absence of his Union and protected activities. 35
On that issue, Relco maintained that it terminated Baugher because he did not address
deficiencies (job performance and the lack of a welding certification) that Relco identified when
it placed him on probation.46
The evidentiary record shows that Relco’s proffered reasons for terminating Baugher are 40
pretexts for discrimination. First, Relco’s decision to discharge Baugher based on ongoing
deficiencies identified in his performance review is tainted because as previously noted, the
performance review (and the November 1 discipline on which it relied) was unlawful. Second,

46 In Baugher’s termination letter, Relco stated that Baugher was placed on probation on December
22 in connection with his performance review. See GC Exh. 29. Trial testimony established, however,
that Baugher was placed on probation on November 1, the same date of his suspension and warning.
JD−64−11
29
Relco’s assertion that Baugher was terminated because he did not obtain his welding certification
does not ring true because Relco did not suggest in Baugher’s performance review that the
welding certification required immediate attention or could serve as a basis for some sort of
adverse employment action if it was not obtained. Instead, Relco merely listed the welding
certification as a goal that Baugher should work toward.47 Third, although Relco’s performance 5
reviews identify 4 other employees who had both poor job performance/productivity and lacked
welding certifications in December 2010, none of those employees were placed on probation or
discharged because of those deficiencies. See findings of fact, section D(3), supra. And fourth,
there is no evidence that Baugher’s performance was substandard, or that he committed any
workplace infractions during the time period between the start of his probation (November 1) 10
and the date of his discharge (March 11, 2011). Accordingly, I find that Relco failed to establish
an affirmative defense regarding Baugher’s discharge, and I find that the Acting General Counsel
met its burden of proving that Relco unlawfully discriminated against Baugher by discharging
him in violation of Section 8(a)(3), (4) and (1) of the Act.
15
C. Charles Newton
1. The November 29, 2010 threat and verbal warning
The Acting General Counsel alleges that on November 29, 2010, Relco unlawfully 20
threatened Newton by telling him that he was being watched, and also unlawfully discriminated
against Newton by giving him a documented verbal warning because Newton supported the
Union and gave testimony under the Act.
On November 29, Newton’s supervisor (Jim Cronin) assigned him a work task (building 25
a headlight) that required Newton to walk back and forth between two locations in the main
shop. While Newton was in the midst of completing that assignment, Cronin advised him that he
should be careful and not walk around the shop because he was being watched. Newton also
testified that later in the day, Benboe challenged Newton to explain what he was working on at
the time, noting that Crall had advised him (Benboe) that Newton was walking around the shop 30
too much. See findings of fact, section C2. Notably, Newton’s account of both conversations
was unrebutted, because the Respondent did not call Cronin as a witness, and Benboe (who was
called by Relco as a witness) did not testify about the conversation with Newton.
I agree with the Acting General Counsel that Cronin’s remark to Newton (to be careful 35
because he was being watched) ran afoul of Section 8(a)(1) of the Act. Although Cronin may
have been a friendly messenger, the message to Newton was that Relco management was giving
additional scrutiny to Newton’s activities at work. Cronin’s remark had a reasonable tendency to
interfere with, restrain or coerce Newton (or any reasonable employee) in the exercise of his
Section 7 rights, because the logical inference was that Newton was being targeted because of his 40
recent Union activities and testimony as a witness for the Acting General Counsel in Judge
Schmidt’s case. See Golden State Foods Corp., 340 NLRB 382, 385 (2003) (employer’s remark

47 To be sure, Baugher suggested that he might try to obtain his welding certification in early 2011,
but that was Baugher’s suggested timetable, rather than Relco’s. See GC Exh. 18 at 4 (Crall’s notes from
performance review). Relco did not have any strict deadlines for Baugher (or other employees) to obtain
a welding certification, and continued to assign Baugher welding jobs even though he was not certified.
JD−64−11
30
that a union supporter should watch his step because “the eyes are on you” violated Section
8(a)(1)).
As for the documented verbal warning that Newton received later in the day on
November 29, the Wright Line standard governs whether that warning was discriminatory in 5
violation of the Act. I find that the Acting General Counsel made an initial showing of
discrimination. Relco managers were aware that Newton was going to testify in Judge Schmidt’s
case in early September 2010, a fact that prompted Crall to ask Newton if he would be willing to
discuss the case with one of Relco’s former attorneys. When Newton testified on September 15,
Bachman was present and heard Newton’s testimony, reviewed the affidavit that Newton10
provided to the NLRB, and also reviewed a statement that Newton submitted to the Union
regarding an incident involving Bachman that occurred in May 2009. In addition, Relco
management was aware that Newton served as an observer for the Union during the election on
October 20. Based on that sequence of events, it is clear that Newton engaged in Union and
protected activities, and it is also clear that Relco had knowledge of those activities. The Acting 15
General Counsel also presented sufficient evidence of animus, in the form of Cronin’s threat to
Newton on November 29, as well as the short time frame between Relco learning of Newton’s
Union and protected activities (in September and October 2010) and the November 29 discipline.
See North Carolina License Plate Agency #18, 346 NLRB at 294 (explaining that the timing of
an adverse employment action in relation to protected concerted activity can provide strong 20
evidence of an employer’s animus).
Turning to Relco’s affirmative defense, Relco asserts that its verbal warning to Newton
was warranted because Newton lacked productivity in his work. Once again, however, Relco’s
proffered explanation for the discipline suffers from significant credibility problems. First, 25
Relco chose not to call Cronin as a witness, even though Cronin was Newton’s immediate
supervisor and would have been able to testify about Newton’s assignments on November 29, as
well as what he (Cronin) said to Newton that day. Given Relco’s failure to call Cronin as a
witness to rebut Newton’s testimony, I have inferred that Cronin’s testimony would not have
supported Relco’s defense regarding the November 29 allegations involving Newton. See 30
Roosevelt Memorial Medical Center, 348 NLRB at 1022 (noting that an ALJ may draw an
adverse inference from a party’s failure to call a witness who may be reasonably be assumed to
be favorably disposed to a party, and who could reasonably be expected to corroborate its
version of events, particularly when the witness is the party’s agent).
35
Second, a finding of pretext is supported by the fact that Relco made (at best) a bare-
bones investigation of Newton’s productivity before deciding to discipline him. When Crall had
concerns after seeing Newton walking in the main shop, he did not obtain any information from
Cronin about Newton’s assignment beyond the locomotive associated with the assignment.
Similarly, when Benboe confronted Newton later in the day about what assignment Newton was 40
doing, Benboe did nothing to verify Newton’s explanation that he was assisting a coworker.
Such a failure to investigate is strong evidence of pretext. See Rood Trucking Co., 342 NLRB
895, 899 (2004); Golden State Foods Corp., 340 NLRB at 385. Because of those shortcomings
in Relco’s explanation for its actions, I find that Relco failed to establish an affirmative defense,
and I find that Relco did discriminate against Newton in violation of Section 8(a)(3), (4) and (1) 45
of the Act when it disciplined Newton on November 29.
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2. Newton’s December 22, 2010 performance review and probation
The complaint also alleges that Relco violated the Act by giving Newton a negative
performance review and placing Newton on probation on December 22. In Newton’s
performance review, Relco repeated the claims that it used to discipline Newton on November 5
29, asserting that Newton worked at a slow speed and needed to stay on task and not walk
around the shop. In addition, Relco relied on those claims to justify its decision to deny Newton
a pay raise, and its decision to place Newton on probation. See GC Exh. 17 at pp. 3–4 (sections
D and E, as well as Crall’s notes, discussing Newton’s productivity); see also GC Exh. 22
(termination letter, asserting that Newton was placed on probation on December 22 based on 10
deficiencies in his performance review). The performance review and probation that Relco gave
Newton are tainted by Relco’s reliance on the unlawful November 29 discipline, and therefore
violate the Act. See Care Manor of Farmington, Inc., 318 NLRB at 726 (explaining that a
decision to discipline or discharge an employee is tainted if the decision relies on prior discipline
that was unlawful); Dynamics Corp., 296 NLRB at 1253–1254 (same).15
The Wright Line framework supports my conclusion. As summarized above (in section
C(1)), Newton engaged in Union and protected activities, and Relco was aware of those
activities. Animus is established not only by the circumstantial evidence regarding the timing of
Relco’s actions, but also by the unlawful threat and disciplinary action that Newton received 20
from Relco on November 29. The Acting General Counsel therefore made an initial showing of
discrimination.
Relco’s affirmative defense that it would have given Newton a negative performance
review and placed him on probation because of poor productivity and his lack of a welding 25
certification (and thus irrespective of Newton’s Union and protected activities) also falls short.
Contrary to Relco’s proffered defense, the evidence shows that Relco explicitly relied on the
unlawful November 29 discipline as a significant predicate for giving Newton a negative
performance review. I also note that although Relco maintains that it placed Newton on
probation on December 22, Newton credibly testified (without rebuttal) that Relco managers 30
never told him that he was on probation, and Newton’s testimony on that point is corroborated
by his performance review and Crall’s notes from that review, neither of which state that Newton
was being placed on probation. The assertion in Newton’s termination letter that Newton was
placed on probation on December 22 therefore does not ring true, and in fact suggests that the
probation was imposed without Newton’s knowledge at a later date to serve as a springboard for 35
Newton’s subsequent discharge. Since Relco’s affirmative defense falls well short of the mark, I
find that Relco unlawfully discriminated against Newton (in violation of Section 8(a)(3), (4) and
(1)) by giving him a negative performance review December 22 and placing him on probation
(whenever that in fact occurred).
40
3. Newton’s termination on March 11, 2011

Finally, the complaint alleges that Relco unlawfully discriminated against Newton in
violation of the Act by terminating him on March 11, 2011. Once again, the Acting General
Counsel made an initial showing of discrimination. Relco was aware of Newton’s Union and 45
protected activities (see findings of fact section C(1), supra), and the Acting General Counsel
present sufficient evidence of animus insofar as (among other things) Relco unlawfully
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32
threatened and disciplined Newton on November 29, and unlawfully gave Newton a negative
performance review on December 22 and placed Newton on probation.
Given the initial showing of discrimination, Relco needed to show that that it would have
terminated Newton even in the absence of his Union and protected activities. On that issue, 5
Relco maintained that it terminated Newton because he did not address deficiencies (work
speed/productivity and the lack of a welding certification) that Relco identified in Newton’s
performance review.
The evidentiary record shows that Relco’s proffered reasons for terminating Newton are 10
pretexts for discrimination. First, Relco’s decision to discharge Newton based on ongoing
deficiencies identified in his performance review is tainted because as previously noted, the
performance review and probation (and the November 29 discipline on which they relied) were
unlawful. Second, Relco’s assertion that Newton was terminated because he did not obtain his
welding certification does not ring true because Relco did not suggest in Newton’s performance 15
review that the welding certification required immediate attention or could serve as a basis for
some sort of adverse employment action if it was not obtained. Instead, Relco merely listed the
welding certification as a goal for Newton to shoot for in the next evaluation period.48 Third,
although Relco’s performance reviews identify 4 other employees who had both poor job
performance/productivity and lacked welding certifications in December 2010, none of those 20
employees were placed on probation or discharged because of those deficiencies. See findings
of fact, section D(3), supra. And fourth, there is no evidence that Newton’s performance was
substandard, or that he committed any workplace infractions during the time period between his
receiving his performance review on December 22 his discharge on March 11, 2011. To the
contrary, the only feedback that Newton received (from supervisor Jankovic) about his 25
performance was positive. Accordingly, I find that Relco failed to establish an affirmative
defense regarding Newton’s discharge, and I find that the Acting General Counsel met its burden
of proving that Relco unlawfully discriminated against Newton by discharging him in violation
of Section 8(a)(3), (4) and (1) of the Act.
30
D. Richard Pace and Nicholas Renfrew
The complaint alleges that Relco violated Section 8(a)(1) of the Act by discharging
Richard Pace and Nicholas Renfrew on or about December 23, 2010, because they engaged in
protected concerted activities in the form of discussing their concerns that coworker Chris 35
Kendall had been fired. To make an initial showing of such a violation, the Acting General
Counsel needed to show that: Pace and Renfrew engaged in activity that is “concerted” within
the meaning of Section 7 of the Act; Relco knew of the concerted nature of Pace and Renfrew’s
activity; the concerted activity was protected by the Act; and Relco’s decisions to discharge Pace
and Renfrew were motivated by Pace and Renfrew’s protected, concerted activity. See 40
Correctional Medical Services, 356 NLRB No. 48, slip op. at 2.
Relco’s leading challenge to the Acting General Counsel’s initial showing of
discrimination is that Pace and Renfrew’s discussions (and texts, as to Pace) with other

48 Relco did not have any strict deadlines for Newton (or other employees) to obtain a welding
certification.
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employees do not count as “concerted” activities. The Board has broadly defined concerted
activities as “circumstances where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bringing truly group complaints to the
attention of management.” Meyers Industries, 281 NLRB 882, 887 (1986), affd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). In Meyers, the 5
Board also recognized that at its inception, concerted activity only involves a speaker and a
listener, and added that the initial conversation is an “indispensable preliminary step to employee
self-organization,” provided that the conversation had some relation to initiating, inducing or
preparing for group action in the interests of employees. Id. (quoting Root-Carlin, Inc., 92
NLRB 1313, 1314 (1951) and Vought Corp., 273 NLRB 1290, 1294 (1984), enfd. 788 F.2d 1378 10
(8th Cir. 1986)). Notably, the object or goal of initiating, inducing or preparing for group action
does not have to be stated explicitly when employees communicate. See Whittaker Corp., 289
NLRB 933, 933 (1988) Instead, a concerted objective may be inferred from a variety of
circumstances in which employees might discuss or seek to address concerns about working
conditions, including, but not limited to: a single employee speaking out at a staff meeting about 15
the lack of wage increases (see Whittaker Corp., 289 NLRB at 934); an employee talking with
coworkers and a manager about his belief that the employer gave preferential treatment to some
employees when making driving assignments (see Rock Valley Trucking Co., 350 NLRB 69, 69
(2007)); or an employee discussing recent disciplinary action with coworkers (see Bryant Health
Center, Inc., 353 NLRB 739, 749 (2009). 20
Based on the preceding authority, I find that Pace and Renfrew were indeed engaged in
concerted activities when they communicated with other employees about their concern that
Kendall had been discharged. Among other purposes, Pace’s and Renfrew’s discussions about
Kendall’s discharge related to the collective employee concern about job security at Relco, 25
because if Kendall (by all accounts, a good employee) could be fired, then all employee jobs
were at risk. It matters not that Pace and Renfrew had not yet taken their concerns to
management – their discussions with coworkers were indispensable initial steps along the way to
possible group action.49
30
I also find that the Acting General Counsel met its burden of proving the remaining
elements of its initial showing that Relco discharged Pace and Renfrew in violation of Section
8(a)(1). It is undisputed that Pace and Renfrew spoke to other employees about their (incorrect)
belief that Kendall had been fired. The record also shows that Relco was aware of Pace’s and
Renfrew’s activities (having confirmed them through Kendall, Pace and Renfrew), and in fact 35
decided to discharge Pace and Renfrew because Relco believed that their discussions about
Kendall’s perceived discharge violated Relco’s standards of conduct (specifically, the policy
against spreading malicious rumors).50 And, the record shows that Pace and Renfrew’s

49 Recently, the Board determined that an employer may not nip concerted activity in the bud by
preemptively discharging an employee before the employee has discussions with coworkers about
working conditions. See Parexel Int’l, LLC, 356 NLRB No. 82, slip op. at 3–4 (2011) (employee
discharged before she could speak to coworkers about perceived wage disparities). That recent authority
underscores the fact that preliminary conversations between employees about working conditions are
indispensable steps towards group action, and thus are themselves concerted activities.
50 During trial, Relco suggested that it also discharged Pace because he sent a text message to
Kendall while he (Pace) was on duty. Although there is some suggestion that Relco has abandoned that
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34
communications with their coworkers were protected by the Act. While the rumors about
Kendall’s discharge turned out to be false, there is no evidence that either Pace or Renfrew were
aware of that fact when they spoke about the issue with other employees. See Central Security
Services, 315 NLRB at 243 (explaining that while knowingly false statements are malicious and
thus not protected, false statements standing alone (i.e., statements that are not knowingly false) 5
are protected under the Act). Further, once Pace and Renfrew learned that Kendall was still
employed, they stopped spreading the rumor and Renfrew took the additional step of correcting
other employees who continued to believe that Kendall had been fired.
Since Relco’s only reason for discharging Pace and Renfrew was their protected 10
concerted activities (discussing the concern that Kendall had been fired), the Acting General
Counsel’s initial showing of discrimination stands and no further analysis is required. See
Correctional Medical Services, 356 NLRB No. 48, slip op. at 2–3. I therefore find that Relco
violated Section 8(a)(1) of the Act when it discharged Pace and Renfrew on December 23
because of their protected concerted activities.15
CONCLUSIONS OF LAW
1. By issuing a written warning to, suspending, and placing Mark Baugher on probation
on or about November 1, 2010, Relco violated Section 8(a)(3), (4) and (1) of the Act. 20
2. By threatening Charles Newton on or about November 29, 2010, that he was being
watched, Relco violated Section 8(a)(1) of the Act.
3. By issuing a documented verbal warning to Newton on or about November 29, 2010,25
for alleged lack of productivity, Relco violated Section 8(a)(3), (4) and (1) of the Act.
4. By issuing unfavorable performance reviews to Baugher and Newton on or about
December 22, 2010, Relco violated Section 8(a)(3), (4) and (1) of the Act.
30
5. By placing Newton on probation on or about December 22, 2010, Relco violated
Section 8(a)(3), (4) and (1) of the Act.
6. By discharging Richard Pace and Nicholas Renfrew on or about December 23, 2010,
because they engaged in protected concerted activities by discussing their concerns that a 35

position (see R. Posttrial Br. at 35–36, arguing that Pace was discharged for spreading false rumors; but
see id. at 10, 34, asserting that Pace violated company policy by texting Kendall while on duty), I note
that I did not credit the explanation that Relco discharged Pace because he sent his text while on duty.
Relco did not mention any texting violation in the termination letter that it gave to Pace, or in the
subsequent hearing concerning Pace’s request for unemployment compensation. See findings of fact
section E(4), supra. In addition, Bachman’s testimony did not establish that he (or Relco) ever
determined that Pace indeed sent his text message to Kendall while he was on duty. While Bachman did
inspect Kendall’s phone (noting that the message was received at 1:06 p.m.), Bachman did not inspect
Pace’s phone, which may have contained some information about when Pace sent the text to Kendall.
See findings of fact section E(1), supra. Relco’s failure to investigate the timing of Pace’s text is strong
evidence that this proffered rationale for discharging Pace is a pretext. See Rood Trucking Co., 342
NLRB at 899; Golden State Foods Corp., 340 NLRB at 385.
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35
coworker (Chris Kendall) had been fired, Relco violated Section 8(a)(1) of the Act.
7. By discharging Mark Baugher and Charles Newton on or about March 11, 2011,
Relco violated Section 8(a)(3), (4) and (1) of the Act.
5
8. The unfair labor practices stated in conclusions of law 1–7 above are unfair labor
practices that affect commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
10
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent having unlawfully disciplined Baugher (on November 1, with a written 15
warning,51 suspension and probation) and Newton (on November 29, with a documented verbal
warning), and having unlawfully given unfavorable performance reviews to both Baugher and
Newton (on December 22), I shall require the Respondent to rescind the disciplinary actions and
performance reviews and post an appropriate notice.
20
The Respondent, having discriminatorily discharged employees Mark Baugher, Charles
Newton, Richard Pace and Nicholas Renfrew, must offer them reinstatement and make them
whole for any loss of earnings and other benefits. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky 25
River Medical Center, 356 NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended52
30
ORDER
The Respondent, Relco Locomotives, Inc., Albia, Iowa, its officers, agents, successors,
and assigns, shall
35
1. Cease and desist from
(a) Discharging, disciplining or otherwise discriminating against any employee for
supporting the Brotherhood of Railway Signalmen or any other union.

51 As previously noted, the written warning that Relco issued to Baugher (regarding alleged
misconduct on September 13) is unlawful because it contains assertions that are not credible. The
warning must therefore be rescinded even though I credited Relco’s initial claim that Baugher violated
company policy by failing to wear a hard hat on September 13.
52 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD−64−11
36
(b) Discharging, disciplining or otherwise discriminating against any employee for
giving testimony under the Act.
(c) Discharging, disciplining or otherwise discriminating against any employee for 5
engaging in concerted activities protected by Section 7 of the Act.
(d) Threatening employees to be careful because they are being watched because they
support the Union or gave testimony under the Act.
10
(e) Giving employees unfavorable performance reviews because they support the Union
or gave testimony under the Act.
(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.15
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Mark Baugher, Charles
Newton, Richard Pace and Nicholas Renfrew full reinstatement to their former jobs or, if their 20
jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(b) Make Mark Baugher, Charles Newton, Richard Pace and Nicholas Renfrew whole
for any loss of earnings and other benefits suffered as a result of the discrimination against them, 25
in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful disciplinary actions, performance reviews and discharges, and within 3
days thereafter notify the employees in writing that this has been done and that the disciplines, 30
performance reviews and discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 35
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.
(e) Within 14 days after service by the Region, post at its facilities in Albia, Iowa, copies
of the attached notice marked “Appendix.”53 Copies of the notice, on forms provided by the 40
Regional Director for Region 18, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in

53 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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37
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by 5
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 November 1, 2010.
10
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. October 19, 2011 15
_______________________
GEOFFREY CARTER20
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, discipline or otherwise discriminate against any of you for
supporting the Brotherhood of Railroad Signalmen or any other union.
WE WILL NOT discharge, discipline or otherwise discriminate against any of you for giving
testimony under the National Labor Relations Act (the Act).
WE WILL NOT discharge, discipline or otherwise discriminate against any of you for engaging
in concerted activities that are protected under Section 7 of the Act.
WE WILL NOT threaten employees that they should be careful and that they are being watched
because they support the union or gave testimony under the Act.
WE WILL NOT give employees unfavorable performance reviews because they support the
union or gave testimony under the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Mark Baugher, Charles Newton,
Richard Pace and Nicholas Renfrew full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Mark Baugher, Charles Newton, Richard Pace and Nicholas Renfrew whole
for any loss of earnings and other benefits resulting from their discharge, less any net interim
earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful disciplines, performance reviews and discharges of Mark Baugher, Charles Newton,
Richard Pace and Nicholas Renfrew, and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the disciplines, performance reviews and
discharges will not be used against them in any way.
RELCO LOCOMOTIVES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.