S. Freedman & Sons, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 2016

364 NLRB No. 82 (N.L.R.B. 2016)

364 NLRB No. 82
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
S. Freedman & Sons, Inc. and Drivers, Chauffeurs
and Helpers Local Union No. 639, a/w Interna-
tional Brotherhood of Teamsters. Cases 05–CA–
121221, 05–CA–132227, and 05–CA–138025
August 25, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On March 31, 2015, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings1 and conclusions in
part, to reverse them in part, and to adopt the recom-
mended Order as modified and set forth in full below.2
I. INTRODUCTION
The Respondent, S. Freedman & Sons, Inc., is a corpo-
ration based in Landover, Maryland, where it is engaged
in the distribution of paper products and restaurant sup-
plies to companies from Delaware to Virginia. The Re-
spondent employs approximately 135 employees, includ-
ing about 28 drivers. Drivers, Chauffeurs and Helpers
Local Union No. 639, a/w International Brotherhood of
Teamsters (the Union) has been the exclusive bargaining
representative of the Respondent’s drivers and ware-
housemen for approximately 50 years. The most senior
driver, Richard Saxton, has worked for the Respondent
for 26 years and has been chief union steward for nearly
17 years.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language. In accord-
ance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016), we shall modify the judge’s recommended tax compensa-
tion and Social Security reporting remedy. We shall substitute a new
notice to conform to the Order as modified.
The complaint alleges that the Respondent violated
Section 8(a)(1), (3), and (4) of the Act by suspending and
terminating Saxton on four separate occasions because
he engaged in protected concerted activity and participat-
ed in unfair labor practice proceedings against the Re-
spondent. The complaint further alleges that the Re-
spondent violated Section 8(a)(1) of the Act by requiring
Saxton to sign a settlement agreement that contained a
confidentiality clause in exchange for reinstatement.
We adopt the judge’s conclusion that the Respondent
violated Section 8(a)(4) and (1) by terminating Saxton on
July 3, 2014, and subsequently converting the termina-
tion into a suspension. As explained below, we do not
adopt the judge’s entire rationale. In particular, we find
that the termination and suspension were separate viola-
tions. We also adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by terminating Saxton
on September 29, 2014, for invoking his right under the
collective-bargaining agreement to refuse overtime work,
pursuant to NLRB v. City Disposal Systems, 465 U.S. 822
(1984). We reverse the judge’s finding that the Re-
spondent violated Section 8(a)(1) by conditioning Sax-
ton’s reinstatement on signing a settlement agreement
that included a confidentiality clause.
II. DISCUSSION
A. Confidentiality/Settlement Agreement
On November 8, 2013, Saxton received a traffic ticket
for following another vehicle too closely and causing an
accident in his company truck. Following an investiga-
tion, the Respondent determined that the damages ex-
ceeded $8900, and it terminated Saxton pursuant to bar-
gaining unit rule 1(a), which authorizes termination for
damages exceeding $2000. Subsequently, after meeting
with the Union’s president and business agent, the Re-
spondent agreed to reinstate Saxton and provide him with
gift cards as compensation for lost income.
When Saxton reported for work after the agreement to
reinstate him, the Respondent’s vice president, James
Thompson, met him and stated that Saxton would have to
sign a “last chance agreement” before returning to work.
Saxton refused. The Union contacted the Respondent,
which eventually proposed to convert the termination
into a suspension for time served if Saxton would agree
not to discuss the terms of the settlement agreement me-
morializing the arrangement. Union President Tommy
Ratliff agreed to consider the settlement agreement, but
the Respondent presented it directly to Saxton when he
next reported for work. Saxton signed the agreement.
The Union was not a party to the agreement, which stat-
ed, in relevant part:
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I have accepted a suspension of four days in lieu of my
termination as a result of my accident on November 8,
2013. By accepting this suspension I waive my right to
file a grievance against the Company regarding this
termination or suspension. . . . I understand and agree
that the terms of this agreement will remain confiden-
tial and that any disclosure of this Agreement may lead
the Company to take disciplinary action against me, up
to and including the termination of my employment.
As the judge observed, it is beyond dispute that em-
ployees have a Section 7 right to discuss their discipline
with one another for the purpose of mutual aid and pro-
tection. Banner Estrella Medical Center, 362 NLRB No.
137, slip op. at 2 (2015).3 Under the circumstances here,
however, we find that the Respondent did not violate
Section 8(a)(1) by conditioning the settlement on Sax-
ton’s limited waiver of that right.
The Board favors “private, amicable resolution of la-
bor disputes, whenever possible.” Hotel Holiday Inn De
Isla Verde, 278 NLRB 1027, 1028 (1986). The Board
has found that an employer may condition a settlement
on an employee’s waiver of Section 7 rights if the waiver
is narrowly tailored to the facts giving rise to the settle-
ment and the employee receives some benefit in return
for the waiver. See, e.g., Coca-Cola Bottling Co. of Los
Angeles, 243 NLRB 501, 502 (1979) (settlement reduc-
ing employee discipline in exchange for employee waiv-
er of future litigation concerning that discipline held law-
ful); Regal Cinemas, 334 NLRB 304, 305–306 (2001)
(settlement conditioning employees’ receipt of severance
pay on waiver of right to file Board charges over termi-
nations held lawful), enfd. 317 F.3d 300 (D.C. Cir.
2003).
The Board has found unlawful, however, settlements
that prevent a signatory employee from exercising rights
that are unrelated to the facts giving rise to the settle-
ment. See Clark Distribution Systems, Inc., 336 NLRB
747, 748 (2001) (severance package barring employees
from participating in the prosecution of any claims
against the employer held unlawful); Metro Networks,

3 Member Miscimarra agrees that Sec. 7 protects employees when
they discuss discipline with one another, provided that such a discus-
sion constitutes concerted activity—that is, the discussion is not “mere
griping” but rather “look[s] toward group action,” Mushroom Trans-
portation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)—for the
purpose of mutual aid or protection. See Banner Estrella, 362 NLRB
No. 137, slip op. at 16 fn. 58 (Member Miscimarra, dissenting in part).
However, Member Miscimarra notes his continuing disagreement with
the Board’s decision in Banner Estrella, which concerned a different
type of situation than is presented here, namely, a request for confiden-
tiality during an ongoing workplace investigation, not a voluntary con-
fidentiality agreement in connection with a completed disciplinary
decision.
336 NLRB 63, 67 (2001) (an employee severance
agreement prohibiting voluntary assistance to other em-
ployees with claims arising under the Act held unlawful).
We find that the confidentiality agreement here con-
tained a narrowly tailored waiver and that Saxton re-
ceived a benefit in return for the waiver, namely rein-
statement for a terminable offense. The prospective
waiver was limited to resolving this one incident: the
agreement prohibited Saxton from discussing only the
terms of this settlement, not any future discipline. Noth-
ing in the agreement limited Saxton’s right to discuss
discipline, file grievances, or pursue litigation concerning
unrelated matters.4 Finally, although it is arguable that
the confidentiality provision could conceivably affect
Saxton’s right to assist other employees with future
claims (in his capacity as a shop steward), the Union
itself retained the ability to share the terms with employ-
ees, as it was not bound by the confidentiality clause.5
Accordingly, we reverse the judge and dismiss the com-
plaint allegation.6
B. The July 3 Discharge and July 23 Suspension
On July 1, 2014,7 Saxton informed Supervisor Ernest
Henson that he was taking the day off “to get a license.”
Henson, in turn, notified Saxton’s direct supervisor, Ellis
Brown, who informed Vice President Jeff Thompson.
Brown also told Thompson that he had reminded Saxton

4 The dissent’s reliance on Metro Networks, supra, is misplaced. In
Metro, the Board found unlawful a severance agreement that prohibited
an employee from assisting other employees with regard to “any matter
arising under the National Labor Relations Act and/or disclosing any
information to the Board with regard to any and all investigations and
proceedings.” 336 NLRB at 67. By contrast, the settlement here is
tailored to the facts giving rise to the settlement and restricts only Sax-
ton’s ability to discuss with others the terms of his reinstatement.
5 Our dissenting colleague suggests that the Union was potentially
subject to liability under the agreement or that Saxton could be termi-
nated if the Union disclosed information about the settlement. We
disagree. The Union was not a party to the agreement and therefore
was not bound by it. It is also noteworthy that the Respondent consult-
ed the Union about the agreement before presenting it to Saxton, and
the Union raised no objections to Saxton’s execution of it. Finally, as
the Union represented Saxton in all disciplinary meetings prior to the
settlement, it was privy to the facts of his case and could share that
information with other employees without restriction, rendering Sax-
ton’s participation unnecessary.
6 In finding the agreement unlawful, the judge relied on cases in-
volving overbroad work rules, confidentiality instructions, and manda-
tory arbitration policies that favor the right to pursue class or collective
action. Those cases are inapposite. The issue here does not involve a
broadly applicable rule or a confidentiality instruction during an inves-
tigation where the sole beneficiary of confidentiality is the employer,
nor does it involve a broad prospective waiver like the one at issue in
Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in rele-
vant part 808 F.3d 1013 (5th Cir. 2015). Rather, the issue is whether an
employer can require an employee to keep confidential the terms of a
settlement agreement in exchange for reinstatement.
7 All dates hereinafter refer to 2014 unless otherwise stated.
S. FREEDMAN & SONS, INC. 3
several months earlier to renew his license prior to its
June 27 expiration date. Thompson immediately began
investigating whether Saxton had been driving with an
expired license.
On July 2, Thompson and Human Resources Director
Phillips met with Saxton and his union representative,
Antwoine Drayton. After handing Saxton a written
warning for failing to give adequate notice before calling
out on July 1, Thompson asked Saxton to explain his
absence. Saxton explained that he needed to get a license
after he realized on June 30 that his license was lost.
Thereafter, Thompson repeatedly badgered Saxton to
admit that he had driven on an expired license, calling
him a “liar” when he refused to do so.
The judge found that Thompson’s insistence that Sax-
ton was lying “took [Saxton] over an emotional edge.”
Saxton slammed the table and stated that if Thompson
insisted on the accusations, “then [they] must be true.”8
Drayton then attempted to show Thompson and Phillips
that the “D” designation on Saxton’s license stood for
“duplicate.” Thompson and Phillips refused to look at the
license or concede its validity.
Immediately after the meeting, Phillips contacted an
outside investigatory service to procure Saxton’s driving
record from the Motor Vehicle Association. The records
indicated that Saxton renewed his license on June 4 and
obtained a duplicate on July 1. Nevertheless, on July 3,
Thompson terminated Saxton for driving with an expired
license.9
The Union immediately filed a grievance over Sax-
ton’s termination. The Union also filed charges alleging
that the termination violated Section 8(a)(3) and (4) of
the Act.10 The termination occurred 5 days before a
scheduled July 8 hearing on unrelated unfair labor prac-
tice allegations involving Saxton.11 That hearing was
rescheduled from July 8 to October 6.

8 Although the Respondent construed this statement as an admission
by Saxton that he had lied about driving on an expired license, the
judge did not make such a finding.
9 In the termination letter, the Respondent asserted that Saxton “ad-
mitted that, even though your license expired on June 27, and it was
thereafter illegal for you to drive, you nevertheless ran your Company
route in your Company truck on June 30, 2014 without a valid license.”
The letter further asserted that this was the “third major offense in a
period of just over eight months,” and that the Respondent was termi-
nating Saxton pursuant to work rule 6(h) (allowing discharge for two
major offenses in 18-month period).
10 Subsequently, the Union withdrew the 8(a)(3) charge with respect
to the July 3 termination.
11 The Union filed a charge with the Board on January 24, alleging
that the Respondent violated Sec. 8(a)(3) and (1) by issuing Saxton a
verbal warning for failing to clock out immediately at the end of his
shift. The Union filed an amended charge on March 28, alleging that
the Respondent violated the Act by terminating Saxton on November
18, 2013, requiring Saxton to sign a confidentiality agreement in ex-
During a grievance meeting on July 8, Saxton present-
ed his Motor Vehicle Administration records showing
that he renewed his license on June 4 and obtained a du-
plicate on July 1. Saxton explained that he had been re-
luctant to explain the circumstances of losing his license
because he had lost it during a visit to the Board and did
not want to admit that to the Respondent. Phillips and
Thompson refused to accept the records or reinstate Sax-
ton.12
On July 23, Thompson reinstated Saxton and convert-
ed his termination to a suspension for a “major offense,
for dishonesty.” The Respondent’s letter stated: “Alt-
hough it is now unclear to us whether Richard drove
without a license on June 30, it is clear to us that Richard
was dishonest during the course of our investigation. . . .”
Saxton returned to work on July 23 and grieved the sus-
pension.
Analysis
1. July 3 discharge
Under Section 8(a)(4) of the Act, an employer may not
discriminate against an employee for participating in the
Board’s processes, including filing charges, testifying, or
being subpoenaed to testify at a Board proceeding. Met-
ro Networks, Inc., 336 NLRB 63, 66 (2001). To deter-
mine whether an adverse employment action was for
prohibited reasons, the Board applies the analysis set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
Under that framework, the General Counsel must
prove that an employee's union or other protected activity
was a motivating factor in the employer's action against
the employee. The elements required to support such a
showing are union or other protected concerted activity,
employer knowledge of that activity, and union animus
on the part of the employer. See, e.g., Consolidated Bus
Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d
467 (2d Cir. 2009). Discriminatory motive may be
demonstrated by circumstantial evidence, and a pretextu-

change for reinstatement, and disciplining Saxton on December 20.
The General Counsel issued a complaint on April 25, and a hearing was
initially set for July 8 before being rescheduled to October.
12 On July 17, Phillips submitted a response to Saxton’s claim for
unemployment benefits with the Maryland Department of Labor. In
that statement, despite having seen documentary evidence that Saxton
had renewed his license on June 4, Phillips wrote that Saxton “drove
without a valid license on Sat. 6/28 and Monday 6/30.” In a July 18
follow-up statement to the Maryland Department of Labor, Phillips
stated that Saxton “drove without a valid license” and then contradicto-
rily stated that Saxton would be brought back to work because he had
proven his license had not expired. The Maryland Department of Labor
determined that the Respondent provided insufficient evidence of mis-
conduct and awarded Saxton unemployment benefits.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
al explanation of the employer’s action will support an
inference of discriminatory motivation. See All Pro
Vending, Inc., 350 NLRB 503, 508 (2007).
If the General Counsel carries the initial burden, 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 protected activity. Consolidated Bus
Transit, above at 1066. If, however, the evidence estab-
lishes that the reasons given for the Respondent’s action
are pretextual—that is, either false or not in fact relied
upon—the Respondent fails by definition to show that it
would have taken the same action for those reasons, and
its defense necessarily fails. See Golden State Foods
Corp., 340 NLRB 382, 385 (2003), citing Limestone
Apparel Corp., 255 NLRB 722 (1981).13
It is undisputed that Saxton was a union steward who,
over the years, had filed scores of grievances and unfair
labor practice charges against the Respondent, both on
behalf of himself and others. The timing of the July 3
discharge, just before a Board hearing scheduled for July
8 on one of those charges, supports a finding of animus,
as does the Respondent’s inadequate investigation.
The Respondent asserts that it discharged Saxton for
driving on an expired license. The overwhelming evi-
dence, however, establishes that the Respondent’s reason
is false. The judge credited Saxton’s testimony that he
maintained a valid license throughout his employment.
And, as the judge found, on three separate occasions, the
Respondent was presented with documentary evidence
corroborating Saxton’s assertion that he renewed his li-
cense on June 4 and obtained a duplicate on July 1.14
Nevertheless, the Respondent terminated Saxton on July
3 for driving on an expired license, thereby evidencing
its improper motive. See Active Transportation, 296
NLRB 431, 432 (1989) (Respondent’s continued reliance
on the false reason for discipline is “indicative of illegal
motivation”), enfd. 924 F.2d 1057 (6th Cir. 1991).
Indeed, even after the Respondent knew that Saxton
did not drive with an expired license, it continued to as-
sert publicly that he had done so. Although Respondent
had previously confirmed with the Department of Motor

13 Member Miscimarra does not agree with his colleagues’ statement
of the legal principles applicable to determining whether Saxton’s July
3 discharge and July 23 suspension were unlawful. He agrees, howev-
er, based on the facts set forth in this decision, that the Respondent
discharged and suspended Saxton because of his participation in the
Board’s processes in violation of Sec. 8(a)(4) and (1) of the Act.
14 The Respondent excepts to the judge’s credibility finding that Sax-
ton consistently maintained that he did not drive on an expired license,
asserting that he lied during the July 2 meeting. Although there were
some inconsistencies in Saxton’s testimony, ultimately none of the
inconsistencies undercut the judge’s finding, corroborated by documen-
tary evidence, that Saxton repeatedly asserted that he did not drive on
an expired license.
Vehicles that Saxton renewed his license prior to its ex-
piration, it continued to assert in its July 17 statement to
the Maryland Department of Labor that Saxton drove on
an expired license. In its July 18 supplemental statement
to the Maryland Department of Labor, Respondent stated
both that it would retract Saxton’s discharge because
Saxton had proven he had not driven on an expired li-
cense, and that Saxton “knowingly drove his company
truck without a valid driver’s license.” These statements
are flatly contradictory and further undermine the asser-
tion that Saxton was terminated for driving on an expired
license.
Having established that the Respondent’s reason for
terminating Saxton was false, we find that the Respond-
ent failed to show that it would have taken the same ac-
tion absent the protected conduct. Golden State Foods
Corp, 340 NLRB at 385. Thus, we adopt the judge’s
finding that the Respondent’s July 3 termination of Sax-
ton violated Section 8(a)(4) and (1) of the Act.
2. July 23 suspension
Turning to the July 23 suspension issued to Saxton for
lying during the investigation, we find that this disci-
pline, too, violated the Act.15 Once again, it is uncon-
tested that the Union filed charges with the Board on
Saxton’s behalf and that the Respondent had knowledge
of those charges. The Respondent’s unlawful discharge
of Saxton demonstrates animus, as does the timing of the
July 23 discipline, only 2 weeks after the first scheduled
Board hearing.
The Respondent asserts that it suspended Saxton be-
cause he lied during the investigation.16 We find that the
Respondent’s stated reason is false. The credited evi-
dence supports the judge’s finding that Saxton did not lie

15 The judge analyzed the July 23 discipline as part of the July 3 ter-
mination and as evidence of “shifting reasons” for the termination. We
separately analyze the July 23 event, as it was independently alleged
and had a separate disciplinary consequence (i.e., conversion of his
prior discharge to a suspension).
16 Although the Respondent asserts that Saxton was suspended for
“dishonesty,” the dishonesty alleged was never consistently described.
Thus, at various times and in its brief to the Board, the Respondent
accused Saxton of (1) lying about the fact that he drove with an expired
license; (2) lying by admitting to driving with an expired license (when
he had not); and (3) lying about the circumstances surrounding the loss
of his license. The Respondent’s reliance at various times on three
different varieties of “dishonesty” further evidences its unlawful mo-
tive. See Approved Electric Corp., 356 NLRB 238, 239 (2010) (citing
City Stationery, Inc., 340 NLRB 523, 524 (2003)) (nondiscriminatory
reasons for discharge offered at the hearing were found to be pretextual
where different from those set forth in the discharge letters); GATX
Logistics, Inc., 323 NLRB 328, 335 (1997) (“Where . . . an employer
provides inconsistent or shifting reasons for its actions, a reasonable
inference can be drawn that the reasons proffered are mere pretexts
designed to mask an unlawful motive.”), enfd. 160 F.3d 353 (7th Cir.
1998).
S. FREEDMAN & SONS, INC. 5
about driving on an expired license. We see no reason to
overturn the judge’s credibility finding. See FedEx
Freight East, Inc., 344 NLRB 205, 205–206 (2005)
(Board rejected employer’s assertion that employee was
discharged for lying where credited evidence showed
employee did not lie), enfd. 431 F.3d 1019 (7th Cir.
2005). Thus, we find that the Respondent has failed to
show that it would have taken the same action absent the
protected conduct. Golden State Foods Corp, 340 NLRB
at 385.
Accordingly, we find that the Respondent’s suspension
of Saxton for “dishonesty” violated Section 8(a)(4) and
(1) of the Act.
C. September 29 and October 2 Events
On September 29, Saxton and three coworkers re-
turned to the facility after completing their delivery
routes. When Saxton attempted to clock out for the day,
Supervisor Brown (at Vice President Thompson’s direc-
tion) asked Saxton to take a truck to Ryder for repair.
Saxton refused on the grounds that he was already on
overtime and, under the collective-bargaining agreement,
he was entitled to refuse the job if a junior driver was
available to perform the task.17 Thompson then got in-
volved in the argument and the two men raised their
voices as Thompson insisted that Saxton take the truck
because, he asserted, no other drivers were available.
Saxton again refused, lacing his refusal with profanity.
Thereafter, Thompson told Saxton to punch out and not
return the next day. As Saxton was walking out into the
parking lot, he spotted a more junior driver and yelled
into the warehouse that “Wade was available to take the
fucking truck to Ryder.” Moments later, when Union
Representative Drayton asked him what was wrong, Sax-
ton responded, “this motherfucker fired me again.”
After the Union intervened, Saxton was told to return
to work the next day. On September 30, when Saxton
returned from his route (plus 2 hours of overtime),
Brown asked Saxton to talk to Thompson. Saxton re-
sponded that he was advised against talking to Thompson
without his union representative and that his shift was
over. He clocked out and left. After leaving the ware-
house, he saw Drayton and told him that Thompson was

17 Article 3—Seniority, section D, of the collective-bargaining
agreement provides, in pertinent part: “The Employer shall offer over-
time to the most senior employee available at work, in accordance with
classification seniority. The most senior employee available at work
will be given the right to refuse to cover an assignment with the under-
standing that if the employer exhausts its seniority list and there still
remains jobs to be covered, junior employees will be required to cover
these assignments in order of reverse shift and classification seniority.
Overtime is defined as work to be performed outside the normal sched-
uled work hours.”
looking for him. Drayton attempted to find Thompson
but could not locate him.
On October 2, when Saxton arrived at work, Thomp-
son handed him a termination letter referencing his re-
fusal to take the truck to Ryder and his insubordination
for refusing to meet with Thompson. The letter conclud-
ed that this was Saxton’s “third major offense in a period
of just over ten months” and that he was terminated.
The judge found that the Respondent violated Section
8(a)(1) by terminating Saxton on September 29 for his
protected concerted activity. We agree. See United
States Postal Service, 332 NLRB 340, 343–344 (2000)
(employees who invoked their collective-bargaining
rights to refuse overtime were engaged in protected con-
certed conduct), enfd. 25 Fed. Appx. 41 (2d Cir. 2001).18
As an initial matter, the Respondent challenges the
judge’s finding that Saxton’s invocation of his right to
refuse overtime was reasonable, attempting to character-
ize Saxton’s refusal as an unprotected work stoppage.
Here, however, there were at least three junior drivers
available to perform the work, and but for the Respond-
ent’s refusal to assign the overtime to one of them, the
work would have continued uninterrupted. On these
facts, Saxton’s refusal to accept the overtime assignment
did not remotely fall within the contract’s prohibition of
an unprotected work stoppage.19
As to the Respondent’s assertion that Saxton engaged
in insubordination by refusing to meet with his supervi-
sors between September 29 and October 2, we adopt the
judge’s finding that Saxton was fired on September 29.
The undisputed testimony (from both Saxton and other
employee witnesses) was that Thompson told Saxton to
“punch out and not return the next day.” Although Sax-
ton reported to work on September 30, the judge found
that this was only a “temporary reprieve,” because
Thompson did not retract his statement and was prepar-
ing the termination documents in the interim. A reason-
able employee, when instructed to leave and not return,

18 The judge properly applied NLRB v. City Disposal Systems, 465
U.S. 822 (1984), in which the Supreme Court affirmed the Board’s
finding that an employer violates Sec. 8(a)(1) when it disciplines an
employee for asserting a reasonably perceived right grounded in a
collective-bargaining agreement. The judge also found that the Re-
spondent’s conduct violated Sec. 8(a)(3) and (4). We find it unneces-
sary to pass on those additional findings, as they would not materially
affect the remedy.
19 We also agree with the judge that Saxton’s use of profanity on the
warehouse floor did not cause him to lose the protection of the Act.
Saxton’s comments were uttered in a loud warehouse where vulgar
language was not uncommon, at the end of the day with few employees
present, and in response to being deprived of his contract rights. See
Corrections Corp. of America, 347 NLRB 632, 636 (2006) (finding no
loss of protection based on employee’s profanity where similar lan-
guage was common among employees and supervisors alike).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would construe that instruction to be a termination. See
FiveCAP, Inc., 331 NLRB 1165, 1201 (2000) (statement
to employee that if he left, he should not come back,
coupled with subsequent instructions to leave are suffi-
cient to lead a prudent person to believe that he had been
terminated), enfd. 294 F.3d 768 (6th Cir. 2002); Romar
Refuse Removal, 314 NLRB 658, 670 (1994) (statement
to employee to “get out of here, . . . we don’t need you
anymore,” coupled with refusal to assign the employee
work that day, was “more than sufficient to lead a pru-
dent person to believe” he had been terminated). This is
especially true in light of the fact that the Respondent
had twice previously attempted to terminate Saxton.
Thus, we find that the Respondent violated Section
8(a)(1) by terminating Saxton on September 29.19
CONCLUSIONS OF LAW
1. The Respondent, S. Freedman & Sons, Inc. is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, Drivers, Chauffeurs and Helpers Local
Union No. 639, a/w International Brotherhood of Team-
sters, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent violated Section 8(a)(4) and (1) of
the Act by terminating Saxton on July 3, 2014, and by
suspending Saxton on July 23, 2014, for filing or partici-
pating in charges and proceedings with the National La-
bor Relations Board.
4. The Respondent violated Section 8(a)(1) of the Act
by terminating Saxton on September 29, 2014, for engag-
ing in protected concerted activities.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent unlawfully discharged Rich-
ard Saxton, we shall order the Respondent to offer him
full reinstatement to his former job or, if that job no
longer exists, to a substantially similar position, without
prejudice to his seniority or any other rights or privileges

19 We need not rely on the judge’s findings that Thompson had
known for a week that the truck needed repair, but instructed Brown to
insist that Saxton deliver the truck that day in order to provoke a con-
frontation with Saxton. Moreover, although the judge found that there
were seven available drivers, we find that the record shows that three
drivers returned to the warehouse at the same time as Saxton (and thus
were available to work). Finally, having found that Saxton was termi-
nated on September 29, we find it unnecessary to pass on the judge’s
finding that the Respondent’s conduct on October 2 also constituted
separate 8(a)(3) and (4) violations, as such findings would not material-
ly affect the remedy.
previously enjoyed, and to make him whole for any loss
of earnings and other benefits suffered as a result of his
discharge. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In
addition, we shall order the Respondent to compensate
Richard Saxton for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and to file with
the Regional Director for Region 5, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar years. See AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016). Finally, we
shall order the Respondent to post a notice in accordance
with our decision in Durham School Services, 360 NLRB
No. 85 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, S. Freedman & Sons, Inc., Landover, Mary-
land, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Discharging, suspending or otherwise discriminat-
ing against employees for filing charges or participating
in proceedings before the National Labor Relations
Board.
(b) Discharging or otherwise discriminating against
any employee for engaging in protected concerted activi-
ty.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Richard Saxton full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Richard Saxton whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate Richard Saxton for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 5,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
S. FREEDMAN & SONS, INC. 7
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and unlawful discharges of Richard Saxton, and within 3
days thereafter, notify Richard Saxton in writing that this
has been done and that the suspension and discharges
will not be used against him in any way.
(e) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after Service by the Region, post at
its facility in Landover, Maryland, copies of the attached
notice marked “Appendix.” Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, 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 cur-
rent employees and former employees employed by the
Respondent at any time since July 3, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 25, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting in part.
After employee Richard Saxton was fired for a No-
vember 2013 traffic accident, the Respondent agreed to
reinstate him—if Saxton agreed not to disclose the terms
of the agreement, on penalty of termination. The agree-
ment was presented directly to Saxton —the Union was
not a party—who signed it. Saxton, as the Board’s opin-
ion today points out, “was a union steward who, over the
years, had filed scores of grievances and unfair labor
practice charges, both on behalf of himself and others.”
My colleagues find the agreement lawful, describing it as
a “narrowly tailored waiver” for which Saxton received a
benefit: reinstatement for a terminable offense. But to
my mind, the agreement plainly interfered with the Sec-
tion 7 rights of Saxton and his coworkers to discuss
workplace discipline and to act together to address disci-
plinary issues. No other purpose for the nondisclosure
requirement is articulated or apparent here. In turn, the
agreement was not narrowly tailored in the sense that
Board precedent demands, nor is it saved by the benefit
that Saxton himself received.1 Certainly, an employer
may condition the settlement of a grievance on the
agreement not to litigate the particular matter further,
even though the right to do so is protected by Section 7.
See Coca-Cola Bottling Co. of Los Angeles, 243 NLRB
501, 502 (1979). It is just as clear, however, that a set-
tlement agreement is unlawful if it reaches too far, by
preventing an employee from assisting coworkers with
claims against the employer and from communicating
with others, including the Board, about his employment.
See Metro Networks, 336 NLRB 63, 67 (2001). Unlike
my colleagues, I would find that the settlement agree-
ment here does reach too far.
In Metro Networks, the Board held that the nondisclo-
sure provision of a severance agreement unlawfully
chilled the Section 7 rights of all employees and could
have prevented the immediately affected employee from
providing information to the Board. Id. at 67.2 Like-
wise, here, as a quid pro quo for a lesser punishment, the

1 For the reasons stated in the Board’s opinion, I join my colleagues
in finding that the Respondent violated the Act by discharging Saxton
on July 3, 2014, suspending Saxton on July 23, 2014, and discharging
Saxton again on September 28, 2014.
2 As my colleagues point out, the nondisclosure provision in Metro
Networks was more broadly written, as it prevented the employee from
discussing any aspect of his employment. But that does not alter the
essential fact that Saxton, who had been the chief union steward for
nearly 17 years, was required to keep confidential information that very
likely could be relevant in future legal disputes between employees and
the employer. As such, the confidentiality requirement burdened rights
that existed for the benefit of the entire unit and sought to influence the
resolution of future disputes unrelated to the facts that gave rise to the
settlement.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nondisclosure requirement prevented Saxton from dis-
cussing his discipline with his coworkers, the Union, or
the Board. That has an impermissible chilling effect on
the Section 7 rights of all employees. As the Board has
explained, “[i]t is important that employees be permitted
to communicate the circumstances of their discipline to
their coworkers so that their colleagues are aware of the
nature of discipline being imposed, how they might
avoid such discipline, and matters which could be raised
in their own defense.” Verizon Wireless, 349 NLRB 640,
658 (2007). The nondisclosure provision of course barred
Saxton from exercising his Section 7 right to share the
terms of the settlement with his coworkers. Just as im-
portant, however, the provision consequently impaired
his coworkers’ Section 7 right to call upon Saxton for
support in seeking a lesser punishment should they find
themselves in similar circumstances. In that way, the
nondisclosure provision tends to undermine the “solidari-
ty” principle that underlies employees’ right to act con-
certedly for their “mutual aid or protection.” See gener-
ally Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op. at 6 (2014) (explaining that the scope of
the “mutual aid or protection” clause of Sec. 7 must be
understood in light of the “solidarity” principle, which
holds that a single aggrieved individual’s coworkers
“have an interest in helping the aggrieved individual—
even if the individual alone has an immediate stake in the
outcome—because ‘next time it could be one of them
that is the victim.’”) (citations omitted). Thus, contrary
to my colleagues’ view, the settlement agreement does
interfere with the Section 7 rights of Saxton and his
coworkers in future, unrelated situations.
Unlike my colleagues, moreover, I am not persuaded
that the Board’s favorable disposition toward the private
resolution of labor disputes outweighs those fundamental
Section 7 rights. It is telling that here (in contrast to Co-
ca Cola, supra) the Union was not even a party to the
agreement. That Saxton received a benefit from the
agreement, meanwhile, is not enough to save it. Section
7 rights are public rights, which employees generally are
not free to trade away. See, e.g., Metro Networks, supra,
336 NLRB at 66, citing Mandel Security Bureau, Inc.,
202 NLRB 117, 119 (1973).
Likewise, I do not agree that the Union’s supposed
ability to discuss Saxton’s discipline nullifies the impact
of the non-disclosure provision. First, the confidentiality
agreement says that any disclosure– not just disclosure
by Saxton— “may lead . . . to termination” of Saxton.
That broad language seemingly would bar Saxton from
discussing the settlement even when acting in his capaci-
ty as a union steward. Second, even if the Union were
free to discuss the settlement of Saxton's discipline, it
could not draw on Saxton to do so—and Saxton himself
may have information to which only he is privy and only
he could share with his coworkers or introduce into evi-
dence in a future disciplinary proceeding, my colleagues’
speculation notwithstanding.
If the Respondent’s goal here was to ensure that Sax-
ton’s settlement would be non-precedential, it surely
could have pursued an agreement to that effect with the
Union. But whatever the Respondent’s goal was, the
means it used cannot be squared with Board precedent.
I therefore respectfully dissent from my colleagues’
finding that the confidentiality provision in the settle-
ment does not violate the Act
Dated, Washington, D.C. August 25, 2016
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, suspend or otherwise discrim-
inate against any of you for filing charges or participat-
ing in proceedings before the National Labor Relations
Board.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
order, offer Richard Saxton full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
S. FREEDMAN & SONS, INC. 9
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Richard Saxton whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Richard Saxton for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 5, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharges of Richard Saxton, and WE
WILL, within 3 days thereafter, notify Richard Saxton in
writing that this has been done and that the suspension
and discharges will not be used against him in any way.
S. FREEDMAN & SONS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/05–CA–121221 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Brendan Keough, Esq. for the General Counsel.
Scott Kamins, Esq. (Offit Kurman), Maple Lawn, Maryland, for
the Respondent.
Lauren P. McDermott, Esq. (Mooney, Green, Saindon, Murphy,
& Welch, P.C.), Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Washington, D.C. on January 21–23 and 26, 2015.
The complaint is based on timely-filed charges by the Drivers,
Chauffeurs and Helpers Local Union No. 639, a/w International
Brotherhood of Teamsters (the Union) alleging that S. Freed-
man & Sons, Inc. (the Company) violated Sections 8(a)(1), (3)
and (4) of the National Labor Relations Act (the Act)1 by retali-
ating against employee and union steward Richard Saxton by
suspending and terminating him because of his membership in

1 29 U.S.C. §§ 151–169.
and activities on behalf of the Union, and for his participation
in charges filed against the Company with the National Labor
Relations Board (NLRB). Additionally, the complaint alleges
that the Company unlawfully restricted Saxton’s Section 7
rights by conditioning his reinstatement on a confidentiality
agreement that precluded him from discussing his discipline
and the related grievance settlement. The Company denies the
allegations and alleges that the discipline was appropriately
issued in response to Saxton’s misconduct and Saxton waived
his rights by signing a narrowly tailored confidentiality agree-
ment.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Union and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, provides paper products and
maintenance supplies from its facility in Landover, Maryland
(the facility), where it annually sells and ships goods valued in
excess of $50,000 directly to points located outside the State of
Maryland. The Company admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company
The Company delivers paper and restaurant products to hos-
pitality providers from its facility to customers from Newark,
Delaware to Tidewater, Virginia. It has approximately 135
employees, including 25 truck drivers and 30 warehousemen.
The facility includes a warehouse, which includes administra-
tive offices, an adjacent parking lot, and leased delivery trucks.
The Company’s owner, Jeff Freedman, has delegated over-
sight responsibility for the Company warehouse and delivery
operations, and collective bargaining operations to James
Thompson, vice president of finance and operations. Meg Phil-
lips, the Company’s human resources director, reviews disci-
plinary decisions for compliance with applicable regulations
and prepares the applicable documentation. In the end, howev-
er, she essentially implements Thompson’s determinations.
Ellis Brown, as transportation supervisor, oversees the delivery
truck drivers. Joe Smith, the warehouse manager, is responsible
for the daily operations of the warehouse. 2
B. Richard Saxton
Richard Saxton, the discriminatee, was employed 26 years
by the Company as a truck driver delivering Company products
to customers. In that capacity, he possessed a commercial driv-
er’s license from the State of Maryland.3

2 The weight of the credible evidence strongly suggests that Thomp-
son, with Freedman’s approval, usually makes the final determinations
in disciplinary matters. (Tr. 330-331, 343-344, 560-562, 571.)
3 There is no evidence to dispute Saxton’s credible testimony that he
consistently maintained a valid driver’s license while employed by the
Company. (Tr. 123-124.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the time of his termination on October 2, Saxton was the
most senior truckdriver. After clocking in, Saxton typically
started his shift by picking up his customer manifest, truck keys
and Company cellular telephone from the warehouse area. Af-
ter inspecting his vehicle and completing an inspection report,
Saxton would exit the facility and start his delivery route. Upon
finishing his delivery route, Saxton returned to the facility.
After preparing his truck for the next work day by cleaning,
refueling and restocking it, Saxton took the manifest to Crystal
Moore, the accounting clerk. Her window was located next to
the transportation office where Brown, Saxton’s immediate
supervisor, was situated. After she approved it, Saxton clocked
out.4 He frequently worked overtime beyond the end of his shift
at 2:15 p.m.5
B. The Union
The Union has been the exclusive bargaining representative
of the Company’s drivers and warehousemen for approximately
50 years. The current collective-bargaining agreement, (CBA)
is effective from March 1, 2013, to February 28, 2017.6
Tommy Ratliff is the Union’s president. Wayne Settles, the
Union’s business agent for the Company’s drivers and ware-
housemen, represents the bargaining-unit in contract negotia-
tions and grievances. For the past several years, Saxton, Ant-
woine Drayton and Henry Davis served as the Union shop
stewards. In that capacity, they filed grievances, and participat-
ed in grievance meetings and contract negotiations. Saxton was
the senior steward, having served for nearly 17 years. He filed
approximately seven grievances a year and most recently par-
ticipated in bargaining during February 2013.7
D. The October 25th Suspension
The downward spiral in Thompson’s relationship with the
Company began on October 25, 2013,8 when Thompson sus-
pended him for refusing to obey a supervisor’s order.9 The
suspension notice stated Saxton violated rule 2(h). Rule 2(h) of
the bargaining-unit work rules authorizes termination for refus-
ing a supervisor’s order.10 Saxton filed a grievance regarding
his suspension and a grievance meeting was scheduled for No-
vember 18.11
E. The November 18th Termination
Prior to the November 18 grievance meeting, Saxton was in-
volved in an accident while driving a Company truck. He was
issued a citation for following too closely and a court date was

4 Thompson expressed his concerns with Settles at the time about
the amount of time that Saxton took before starting his route and after
completing it. (Tr. 496-497.)
5 The CBA defines overtime as work performed in excess of an 8-
hour shift. (GC Exh. 2 at 6.)
6 GC Exh. 2.
7 Saxton had extensive involvement as a steward, but there is no ev-
idence of preexisting animosity between him and management. (Tr. 61–
66.)
8 All dates are between October 25, 2013, and October 2, 2014, un-
less otherwise indicated.
9 GC Exh. 7.
10 GC Exh. 3 at 2.
11 GC Exh. 8.
scheduled for January 23.12 The case was resolved with no
points assessed, but the citation remained on Saxton’s driving
record.13
On November 11, Thompson issued Saxton a pending inves-
tigation letter concerning his accident.14 The investigation letter
refers to section 1(a) of the bargaining-unit rules which states
that a driver could be terminated if damages exceed $2000.15
Shortly before the November 18 grievance meeting, Thompson
received a damage estimate for Saxton’s accident indicating
damage to the other vehicle in excess of $2000.16
On November 18, Saxton, accompanied by Settles, met with
Thompson and Phillips for a scheduled meeting relating to his
grievance of the October 2013 suspension for disobeying a
supervisor’s order. Thompson changed course at the beginning
of the meeting, however, by informing Saxton and Settles that
he was going to address Saxton’s November accident. Thomp-
son said the damages exceeded $8000 and he was inclined to
terminate Saxton. However, Thompson offered to forego such
drastic action if the Union agreed to withdraw several unrelated
arbitrations involving other employees. Saxton and Settles re-
fused the offer, with Settles insisting that he would address
each grievance separately. Thompson responded by informing
Saxton that he was terminated. Saxton asked Thompson if
Freedman knew about this action. Thompson said Freedman
approved Saxton’s termination.17 On November 19, Saxton
received a termination notice,18 making him the first employee
ever terminated by the Company as a result of a motor vehicle
accident.19
After Saxton left the meeting, he immediately went to
Freedman’s office and informed him that Thompson fired him
after Settles refused to settle pending unrelated arbitrations.
Freedman, who was unaware that Saxton had been terminated,
spoke with Thompson and, later that afternoon, called Saxton
and arranged a meeting with him and the Union for the follow-
ing day. The next morning, Saxton met with Freedman and

12 R. Exh. 2.
13 Saxton conceded that the infraction remains on his record. (Tr.
237–238, 300–301, 642–645; GC Exh. 17; R. Exh. 2.).
14 GC Exh. 9.
15 The Company subsequently modified bargaining-unit work rule
1(a) by increasing the damage amount to $5000. (GC Exh. 3 at 1.)
16 The General Counsel contests Thompson’s estimate of $9,000 in
damages, but Saxton did not deny that they exceeded $2000. (GC Exh.
9; R. Exh. 3; Tr. 240–241, 643–648, 674–676.)
17 I credit the fairly consistent and credible versions by Settles and
Saxton of this meeting over that provided by Thompson. (Tr. 69–73,
87–90, 259–269, 484–487, 533–536.) Thompson conceded that other
grievances were discussed, but denied offering to reduce Saxton’s
termination in exchange for the Union withdrawing pending arbitra-
tions. The notion that Thompson terminated Saxton and then discussed
other grievances while Saxton was still there was not credible. (Tr.
674–677.)
18 GC Exh. 10.
19 The Company concedes the disparity in its lesser discipline of
Gregory Johnson for a previous accident exceeding $5,000 in damages,
but distinguishes it on the basis that Johnson was a supervisor and not
subject to the CBA. (GC Exh. 32; Tr. 579–580.) Johnson was subse-
quently involved in another motor vehicle accident, but was discharged
only after failing a drug test. (GC Exh. 33.)
S. FREEDMAN & SONS, INC. 11
Phillips. They discussed Thompson’s recent change of work
rule 3(c), which indicates the amount of time a driver has to
start his delivery route.20 Then they discussed Thompson’s
offer to reduce Saxton’s termination in exchange for the Union
withdrawing arbitrations. Freedman suggested Saxton speak to
the Union about setting up a meeting between the Company
and the Union to discuss the pending arbitrations. Saxton de-
clined, but suggested Freedman call the Union about the arbi-
trations.21
On November 20, with Saxton waiting outside, Settles met
with Freedman in Phillips’ office. Settles told Freedman he
would not withdraw pending arbitrations in exchange for Sax-
ton’s reduced discipline. Referring to his affinity for Saxton, as
well as his longtime relationship with the Company, Freedman
indicated that the termination resulted from a misunderstanding
and would get back to him. The next day, after speaking with
Settles and Ratliff, Freedman agreed to reinstate Saxton on
November 22 and provide him with gift cards as compensation
for any lost income.22
F. The November 25th Confidentiality Agreement
Saxton reported to work on November 22. Before clocking
in, however, Thompson handed him a last-chance agreement
and said that Saxton needed to sign it before he could be rein-
stated. Saxton was familiar with such agreements, having pre-
viously signed similar documents as a steward. As such, he
expressed surprise that the agreement was not already signed by
a Union representative. Thompson reiterated that Saxton could
not return to work unless he signed the document. Saxton left
the facility and informed Settles, who was did not know about
the agreement. Saxton then called Freedman and asked if he
was aware of the agreement. Freedman was also unaware of it,
but told Saxton to return the next work day.23
At some point later that day, Ratliff and Settles called
Freedman. Freedman proposed to convert Saxton’s discipline to
a suspension for time served if he signed an agreement not to
discuss the terms of his reinstatement. Ratliff agreed to consid-
er such an agreement, but wanted to review it first. Rather than
provide a draft to the Union, however, Thompson surprised
Saxton with a confidentiality agreement when he returned to
work on November 25. Although Settles had not yet seen the
confidentiality agreement, Saxton signed the document and
returned to work.24 The agreement stated:

20 GC Exh. 3 at 3.
21 This finding is based on Saxton’s credible and undisputed testi-
mony. (Tr. 90-100.)
22 This finding is based on Settles’ credible testimony. (Tr. 488-491,
531-541.)
23 This is a rare instance in which Freedman and Thompson were not
on the same page. (Tr. 101–107, 241–244, 492–493.) Moreover, given
the subsequent interaction between Settles and Freedman about the last-
chance agreement, I did not credit Thompson’s testimony that he told
Settles about such a document before presenting it to Saxton. (Tr. 648–
650, 654–656; GC Exh. 12; R. Exh. 4.)
24 Settles confirmed discussing the agreement with Freedman, but
there is no credible evidence that he was shown the document before it
was presented to Saxton. Moreover, Thompson's denial of knowledge
as to the source of the agreement further detracted from his credibility.
(Tr. 107–109, 249, 491–493, 542–546, 551; GC Exh. 61.)
I, Richard Saxton, have entered into an agreement this day,
November 25, 2013 with S. Freedman & Sons (the Company)
regarding my return to work after my termination on Tuesday,
November 19, 2013.
I have accepted a suspension of four days in lieu of my termi-
nation as a result of my accident on November 8, 2013. By
accepting this suspension I waive my right to file a grievance
against the Company regarding this termination or suspen-
sion.
I also understand and agree that this resolution is a one-time
agreement and is not precedent setting.
I understand and agree that the terms of this agreement will
remain confidential and that any disclosure of this Agreement
may lead the Company to take disciplinary action against me,
up to and including the termination of my employment, even
if I do not personally benefit from the violation. I understand
and agree that if I breach this Agreement, the Company re-
serves the right to avail itself of all legal or equitable remedies
to prevent the impermissible use of Confidential Information
or to recover damages incurred as a result of the impermissi-
ble use of Confidential Information.25
G. The December 20th Warning
On December 20, Saxton had just returned to the yard at the
end of his shift and was met by Brown, who proceeded to issue
Saxton a verbal warning for failing to clock-out immediately at
the end of work the previous day in violation of work rule 4(c).
The warning stated that Saxton returned to the warehouse at
4:42 p.m. and clocked-out 1 hour and 40 minutes later.26 Bar-
gaining-unit work rule 4(c) sets forth the Company’s discipline
for, “failure to begin work immediately upon clock-in; or to
clock-out immediately at the end of work.”27 This was the first
instance, however, in which a Company driver had ever been
disciplined for delay in clocking-out at the end of a shift.28
On December 27, Saxton filed a grievance over the Decem-
ber 20th verbal warning.29 During the January 6 grievance
meeting with Thompson and Philips, Saxton, accompanied by
Settles, attributed the departure delay on December 19 to the
significant wait time to refuel and attending, at the request of an
unspecified supervisor, a disciplinary meeting relating to a
coworker. Thompson did not accept Saxton’s explanation and

25 GC Exh. 13.
26 GC Exh. 14.
27 The General Counsel contends that neither the bargaining-unit
work rule, nor the collective bargaining agreement, identify the amount
of time a driver has to clock-out “at the end of work.” (GC Exh. 2; 3 at
6.) However, based on Saxton’s explanation, the last task before clock-
ing out is handing in the manifest.
28 Saxton’s warning was one of 14 issued to drivers for violating
similar work rules between October 2013 and August 2014. Two verbal
warnings were issued prior to December 20, while 12 warnings were
issued after that date. Saxton’s warning pursuant to work rule 4(c) was
unique, however, since it dealt with a delay in clocking-out at the end
of the day. The other 13 warnings pertained to work rules 3(b) and (c),
which address delays in starting one’s shift after clocking in. (R. Exh.
5–6; 572–574, 659–661.)
29 GC Exh. 15.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the grievance was not resolved.30
G. The Union Files Charges
On January 24, the Union filed charge 05–CA–121221 with
Region 5 of the NLRB alleging the Company violated Section
8(a)(3) and (1) by disciplining Saxton on December 20 due to
his union activities.31 On January 27, the Company received the
charge.32 On March 28, the Union amended that charge to in-
clude allegations relating to the November 18th refusal to re-
scind Saxton’s termination unless the Union withdrew unrelat-
ed grievances and arbitrations, and the Company’s November
25th requirement that Saxton sign a confidentiality agree-
ment.33 On March 31, the Company received the amended
charge.34 On April 25, Region 5 issued a complaint based on
the aforementioned charges, with notice of hearing for July 8.35
Freedman, Thompson, and Phillips were subpoenaed to testify
by counsel for the General Counsel.36
H. Saxton Accused of Driving with an Expired License
One week before the hearing, Thompson saw an opportunity
to retaliate. On July 1, Saxton called Ernest Henson, a supervi-
sor, at approximately 4:30 a.m. and left a voicemail message
that he was taking off “to get a license.”37 The message was
conveyed to Brown, who proceeded to inform Thompson.
Brown, who keeps copies of licenses on file, also shared that he
reminded Saxton several months earlier, prior to going out on
medical leave, about renewing his driver’s license prior to June
27. Thompson immediately decided to investigate.38
Brown’s report to Thompson omitted the fact that he did not
follow up with Saxton about his driver’s license at any time
after the latter returned from medical leave on June 9. Had
Brown followed up, he would have learned that Saxton re-
newed his driver’s license on June 4. In any event, after calling
out on July 1, Saxton proceeded to get a “duplicate” license
from the Maryland Department of Motor Vehicles and called
Brown to let him know. Brown suggested that Saxton’s license
expired on June 27, but Saxton denied it.39
On July 2, Saxton arrived at the facility but, before he could
start his shift, Thompson pulled him into a meeting with Phil-
lips and Drayton, acting as his steward. Saxton was immediate-

30 This finding is based on the undisputed testimony of Saxton and
Settles. (Tr. 111–112, 117–118, 495–497, 573.)
31 GC Exh. 1(A).
32 GC Exh. 1(B) at 3.
33 GC Exh. 1(C).
34 GC Exh. 1(D) at 3.
35 GC Exh. 1(E)-(F).
36 Freedman, Thompson and Philips knew that the case involved
Saxton. (Tr. 39, 360, 569.)
37 There is no dispute regarding the message that Saxton left for
Brown. (Tr. 124–125, 128–132, 209.)
38 Notwithstanding Brown’s alleged concern, there is no indication
he attempted, on June 30, to ascertain whether Saxton drove on an
expired license that day. (Tr. 623, 663, 667, 800–803, 815.)
39 The motor vehicle record of the June 4 renewal provides critical
corroboration of Saxton’s assertion that he lost his license sometime
after June 27. Construing the “duplicate” designation any other way
does not make sense since it is incomprehensible that an expired license
would be duplicated as opposed to simply renewed. (Tr. 123, 132–133,
135; GC Exhs. 17 at 5, 19–20, 52.)
ly handed a written warning for calling out on July 1 without
sufficient leave time. Thompson then asked Saxton why he
called out on July 1. Saxton said he had to get a license.
Thompson said Brown told him Saxton’s license expired. Sax-
ton denied that and explained that he lost his license. Thompson
asked Saxton when he realized he lost his license. Saxton ex-
plained that he realized on June 30 that he lost his license, but
denied ever driving a Company truck on an expired license. He
insisted that he was merely obtaining a duplicate license to
replace the one he lost. Thompson accused Saxton of lying.40
Saxton denied lying, but Thompson’s persistent accusations
took Saxton over an emotional edge. He slammed the table and
capitulated, stating that if Thompson insisted Saxton was lying
and the license expired, then the accusations must be true. Sax-
ton then refused to say anything further and referred Thompson
and Phillips questions to Drayton.41
Drayton then provided Thompson and Phillips with Saxton’s
license and explained the D-1, or duplicate, designation.42
However, Thompson and Philips refused to concede its validity
as proof that Saxton’s license had not expired prior to July 1.
They followed up on that allegation by obtaining a copy of
Saxton’s driving record, which also confirmed that his CL li-
cense was renewed on June 4 and he was subsequently issued a
duplicate license on July 1.43
After the meeting, Saxton drove his route. Later that day,
Drayton again attempted to explain to Thompson the various
codes on Saxton’s Virginia driver’s licenses, including the
meaning of a "D" as a duplicate. Thompson, still focused on
Saxton’s frustrated remark that the license had expired on June
27, did not want to hear it.44
J. The July 3rd Termination
Notwithstanding the documentary proof provided by Saxton
and Drayton on July 2, Thompson was determined to capitalize

40 Thompson and Phillips confirmed testimony by Saxton and Dray-
ton that Saxton initially maintained that his license never expired. (136,
138, 211, 227, 341, 393–397, 440, 617, 620, 664.)
41 Notwithstanding Saxton’s rambling response that state law afford-
ed drivers seven days after a license expires to get one, (Tr. 217–218.),
it was evident that he made the alleged concession out of frustration
and feeling insulted, he deferred to Drayton for the remainder of the
discussion. (Tr. 139, 213, 305, 398, 442–444, 452.) Drayton initially
testified that he did not hear the remark, but later conceded on cross-
examination that it was made. (Tr. 402, 447.)
42 The Company’s attempt to impeach Saxton with his Board affida-
vit about lying during the July 2 meeting did not detract from the fact
that he produced solid proof at that meeting that his license had not
expired. (Tr. 217–218, 221, 234, 305.) Neither Thompson, who provid-
ed inconsistent testimony and generated unreliable “notes” at some
point after the meeting, nor Phillips, who was evasive and nonrespon-
sive in many of her responses, disputed testimony by Saxton and Dray-
ton that Saxton produced a duplicate license on July 2. (Tr. 140–141,
365, 398–399, 617–618, 620, 664, 704; GC Exh. 47.)
43 The explanation by Thompson, an experienced manager of a regu-
lated interstate transportation company, as to why or how he misinter-
preted the information on Saxton’s license status on July 2, was simply
not credible. (338-340, 345, 352, 616, 621–622, 623, 625, 665; GC
Exh. 52.)
44 Thompson did not dispute this portion of Drayton’s testimony.
(Tr. 400–401.)
S. FREEDMAN & SONS, INC. 13
on Saxton’s remark at the meeting. As Saxton arrived at work
on July 3, Thompson handed him a letter terminating his em-
ployment:
On Wednesday, July 2, 2014, we met with you regarding your
call out on Tuesday, July 1, 2014. During this meeting, you
claimed that you called out because you needed to obtain a
new license. When questioned further, you acknowledged that
although you had been notified by the Company, as a courte-
sy, of the need to renew your license weeks ago, you had not
done so, and it had expired on June 27, 2014. You admitted
that, even though your license expired on June 27, and it was
thereafter illegal for you to drive, you nevertheless ran your
company route in your company truck on June 30, 2014,
without a valid driver’s license. This was a violation of appli-
cable law, and exposed the company (not to mention you) to
serious penalties. This is considered a major offense. . . .
Work rule 6(h) provides that the penalty for any combination
of two (2) major offenses in an eighteen (18) month period is
termination. In your case, the most recent infraction is your
third major offense in a period of just over eight months. Ef-
fective today, July 3, 2014, your employment is terminated.45
Even assuming that Saxton had driven with an expired li-
cense on June 30, such discipline was unprecedented.46 Moreo-
ver, the letter omitted any reference to the documentary proof
provided by Saxton at the July 2 meeting and misconstrued the
timeframe (several months earlier) in which Brown reminded
Saxton to renew his license.47
On July 3, Settles filed a grievance on Saxton’s behalf re-
garding Saxton’s termination for driving with an expired li-
cense.48
K. The Union Files a Charge Over Saxton’s
July3 Termination
On July 3, the Union filed charge 05–CA–123327 with Re-
gion 5 alleging that the Company violated Sections 8(a)(3) and
(4) by terminating Saxton on July 3 in retaliation for engaging
in protected-concerted activities, and filing and participating in
charges filed against the Company.49 On July 3, Region 5 re-
scheduled the hearing from July 8 to October 6.50 On July 8,
Region 5 served the Company with charge 05–CA–123327.51

45 GC Exh. 23.
46 Although not specified in the letter, Thompson testified that Sax-
ton’s “violation of applicable law” was analogous to conduct prohibited
in work rule 2(o), which authorizes termination if a driver is convicted
of reckless driving or has his license is revoked for any reason. (Tr.
665,667; GC Exh. 3 at 2.) In any event, the Company provided no
evidence that a driver has ever been disciplined under such a work rule.
47 Thompson’s representation that Saxton was reminded about the
renewal is belied by Brown’s testimony that he reminded Saxton sever-
al months earlier. (Tr. 663, 802.) Moreover, Thompson never changed
the discipline to a charge that Saxton knowingly drove his company
vehicle on June 30 without a valid license. (Tr. 664.)
48 GC Exh. 24.
49 GC Exh. 1(H).
50 GC Exh. 1(K).
51 GC Exh. 1(I) at 4.
L. The July Grievance Meetings
On July 8, Settles and Saxton met with Thompson and Phil-
lips to discuss Saxton’s July 3 termination. Settles asked
whether they were now convinced that Saxton had, in fact,
renewed his driver’s license on June 4. Philips responded that
her copy of Saxton’s records indicated only that he received a
license on July 1. Saxton then produced copies of his Maryland
motor vehicle records indicating renewal on June 4 and issu-
ance of a duplicate license on July 1. However, Phillips and
Thompson still refused to budge, maintaining that Saxton was
terminated because of his July 2 statement that his license ex-
pired. Saxton then explained that he omitted any reference to
losing his license because he lost it while visiting Region 5 staff
and did not want to divulge such activity. Thompson responded
that he and Philips were misled, but Settles rejected that claim,
again referring to the documentary proof provided to them prior
to terminating Saxton.52
The July 8 meeting concluded with Thompson still refusing
to reinstate Saxton and telling Saxton that he would get back to
him. After several attempts by Thompson to set up a meeting
with the Union, one was finally scheduled for July 16 to further
discuss Thompson’s concerns with the “inconsistencies” in
Saxton’s statements. 53
Prior to that meeting, however, Thompson attempted to ex-
pedite matters without Settles present by approaching Drayton
in his truck and urging him to contact Saxton. While still insist-
ing that Saxton admitted at the July 2 meeting that his license
expired, Thompson suggested that the three of them meet so
Saxton could return to work. Drayton declined to convene such
a meeting without Settles present.54
On July 16, Saxton, Settles and Drayton met with Thompson
and Phillips to discuss Saxton’s July 3 termination. Thompson
again questioned Saxton about his license. Settles refused to
allow Saxton to answer any questions, reiterating his position
that Saxton neither permitted his license to expire nor drove a
Company truck on an expired license. At Thompson’s insist-
ence, Saxton left the room and Thompson sought to have Dray-
ton admit that Saxton said that his license expired during the
July 2 meeting. After Drayton denied that Saxton made such an
admission, Drayton and Settles got into an extensive discussion
about the July 2 meeting. Drayton and Settles concluded by

52 This finding is based on the testimony of Settles, Thompson
and Saxton. (Tr. 149–151, 155–157, 231–232, 449, 498-501, 503, 523–
525, 628, 667–668.) Thompson incredibly posited that he learned for
the first time on July 8 that Saxton had did not driven on an expired
license after Settles showed him the Maryland motor vehicle record.
Yet, Thompson admitted the information contained in Settles’ copy of
Saxton’s driving record was the same as the information in his July 2
copy of Saxton's driving record. (Tr. 630; GC Exh. 17 at 4; GC Exh.
52.)
53 While I credit Thompson’s undisputed testimony that he attempt-
ed to set up earlier meetings on July 9 and 10, I do not credit his hear-
say testimony, which continued to conflict with the weight of the credi-
ble evidence, that a “vendor” gave him less than certain information as
to whether Saxton renewed his license on June 4. (GC Exh. 64; Tr. 632,
635, 668, 673.)
54 This finding is based on Drayton’s credible and undisputed testi-
mony. (Tr. 405-406.)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
again relying on the fact that Thompson and Philips should
have been able to confirm that Saxton’s commercial driver’s
license was renewed on June 4. Thompson and Philips, howev-
er, continued to challenge the validity of the information, sug-
gesting that it was either not entirely understandable, vague or
possibly falsified. Settles ended the meeting by asking for the
Company’s written position.55
M. The Company Opposes Saxton’s Unemployment
Benefits Claim
On July 17, one day after the final grievance meeting, Phil-
lips responded to Saxton’s claim for unemployment benefits
with the Maryland Department of Labor. In her online submis-
sion to the state agency, Philips continued to espouse the Com-
pany’s position that Saxton knowingly drove a Company truck
without a valid driver’s license.56
In a followup statement on July 18, Phillips provided the
Maryland Department of Labor with additional false state-
ments:
The clmt’s license expired on 6/27/14. That was a Friday.
Then he drove without a valid license on Sat. 6/28 and Mon-
day, 6/30. He called on Tuesday and said he would not be in,
because he had to renew his license. When he came back on
Wed, we interviewed him. At first he admitted it had expired,
and he knew it. However, during the course of the investiga-
tion, he changed his story to say that he had lost his license,
and it hadn’t expired.
However, I keep track of all the driver’s licenses, and had no-
tified the clmt about a month in advance, that his license was
expiring on his birthday, 6/27/14. It is the driver’s responsibil-
ity to make sure they renew their licenses on time, so I hadn’t
rechecked to see if he had actually renewed it. When he told
us he had to renew it, we realized he had driven for 2 days on
an expired license, putting the company at risk, so he was dis-
charged.
We had a meeting with the clmt and the union rep and the
clmt proved that his license had been renewed on 6/4/14, as
he stated. He had not been driving on an expired license, but
three of us in that first meeting with him, when he was termi-
nated, heard him say his license had expired. Then he changed
his story and ever since has been saying he had just lost his li-
cense.
We are bringing him back to work, effective this next Mon-
day, 7/28/14, as he proved his license had not expired, and we
could not prove that he had knowingly driven without a li-

55 Drayton conceded that Saxton admitted at the July 2 meeting that
his license expired, but did so out of frustration. (Tr. 447.) Otherwise,
the testimony by Saxton, Drayton and Thompson about this meeting
was fairly consistent. (Tr. 158, 328, 407–411, 505, 509–510, 673; R.
Exh. 9.)
56 Given her testimony and the documentary proof provided to her,
Phillips’ assertion that Saxton drove a Company vehicle on an expired
license was a fabrication. (Tr. 335, 337; GC Exh. 55, 60 at 5-6.) She
testified she became convinced Saxton did not drive with an expired
license after the July 8 grievance meeting. (Tr. 335-338.) However,
after the July 8 and 16 grievance meetings, Phillips gave a different
story to the Maryland Department of Labor.
cense. I am changing his separation reason to an unpaid sus-
pension, with the rtw of 7/28/2014.
He kept insisting that he had lost his license, and didn’t realize
it until he had to show it at a security checkpoint, as he told
you. He will be brought back to work on 7/28/14, but will not
receive back pay for the weeks he was suspended, as we still
feel he lied to us about his license being expired.57
The Maryland Department of Labor determined that the
Company provided insufficient evidence of Saxton misconduct
and awarded him unemployment benefits.58
N. Saxton’s Termination is Converted to an
Unpaid Suspension
On July 23, Thompson reinstated Saxton. The letter, which
was addressed to Settles, stated in pertinent part:
By the conclusion of the meeting on July 8, it was not clear,
per Richard’s changing stories, what actually happened . . .
We have decided to reinstate Richard effective immediately,
and to treat his time off from work as an unpaid suspension,
and a major offense, for dishonesty. Although it is now un-
clear to us whether Richard drove without a license on June
30, it is clear to us that Richard was dishonest during the
course of our investigation…59
Saxton returned to work on July 23. On July 24, Settles
grieved the suspension.60 On September 10, Region 5 served
the Company with a consolidated complaint, compliance speci-
fication, and notice of hearing for October 6. In addition to the
allegations contained in the previous complaint, the new com-
plaint included allegations relating to the July 3 termination and
its reclassification to a suspension on July 23.61 On September
16, Freedman, Thompson, and Phillips were, once again, sub-
poenaed by the General Counsel for the upcoming hearing.62
O. The September 29 Termination
Between 2:30 and 3 p.m. on September 29, Saxton and three
coworkers—Leroy Goodman, Harry Bowie and Steve Wil-
liams—returned to the facility after completing their delivery
routes. Around that time, Thompson instructed Brown to direct
Saxton to take a Company truck to be serviced at a nearby re-
pair shop. At that point, the truck had already been parked on

57 Contrary to the representations in her statement, Phillips testified
that she does not keep track of truckdriver’s licenses. Nor did she notify
Saxton that his license was expiring. (GC Exh. 60 at 5–6; 328–329,
338, 340–341, 353.)
58 The State agency’s determination, governed by a different stand-
ard, has no bearing on the merits of this proceeding. (GC Exh. 54, 60 at
7.)
59 Thompson’s assertion that he believed that Saxton lied during the
investigation was contradicted by Philips testimony that they were
really confused all along. (Tr. 345; GC Exh. 25.)
60 GC Exh. 26.
61 GC Exh. 1(L)-(M).
62 Freedman, Philips and Thompson again conceded knowing that
the subpoenaes related to Saxton’s discipline. (Tr. 40, 360–361, 568–
569.)
S. FREEDMAN & SONS, INC. 15
the lot with a broken window for 6 days.63
After parking his vehicle, Saxton went to turn in his manifest
at the transportation office. As he arrived, Goodman had just
turned in his manifest. Saxton did the same and then Brown,
sitting about six feet away, asked if Saxton could do him a fa-
vor and take a truck to Ryder for window repairs.64 Saxton told
Brown his eight hours were up and he was on overtime. Saxton
insisted Brown get a junior driver to take the truck to Ryder. He
had a point, since there was no shortage of junior drivers that
afternoon. There was no yelling during this initial conversa-
tion.65
After Saxton declined the request, Brown walked up to Sax-
ton and continued the conversation next to the transportation
window. After Brown asked for an explanation, Saxton insisted
he had the contractual right to refuse because he was the senior
driver and had a right to refuse overtime. He took out the CBA
and urged Brown to read it. As Brown and Saxton continued
arguing, their voices got progressively louder. Thompson heard
the noise and joined Brown in demanding that Saxton take the
truck to Ryder for repair.66 Thompson insisted that Saxton
could not refuse the assignment because he was the only driver
available.67 Shortly thereafter, Smith approached and the three
supervisors surrounded Saxton. Saxton maintained that, as the
senior man, he was entitled under the CBA to refuse overtime
work. The incident was witnessed by two warehousemen, Da-
vid Wallace and Kem Singh, standing 20 and 50 yards away,
respectively, who heard Saxton yell, “[n]o, I’m not going to do
it!”68 Thompson told Saxton to punch out and not return the

63 I do not credit testimony by Thompson that he suddenly noticed,
on a day when no rain was forecast, a damaged window on a vehicle
that had been parked on the lot for six days. The credible evidence
suggests that they were aware that the other four drivers were complet-
ing their shifts around the same time as Saxton. (Tr. 163–164, 603–604,
677–678, 709–710, 787, 804, 829.) Moreover, four other drivers
clocked out during the same time period. (GC Exh. 36.)
64 Brown did not dispute credible testimony by Saxton and Drayton
that Goodman arrived around the same time and was present when he
turned in his manifest. (Tr. 163–166, 412–414.)
65Approximately seven truckdrivers were available during the period
of time after Saxton finished his regular shift. (Tr. 173–174, 605; GC
Exh. 36, 40, 63.)
66 Thompson’s denials that he told Saxton to take the truck to Ryder
and then told Saxton to punch out and not to return the following day
are undermined by the weight of the credible evidence, the subsequent
termination letter, and the Company’s position statement. Moreover,
Thompson’s immediate response to the incident, coupled with the lack
of explanation as to why he did not ask a less senior employee to take
the truck to Ryder, further confirms his motivation to target Saxton.
(Tr. 166–167, 173, 273, 375, 584, 587, 609, 611, 679, 782, 789–790,
804, 806–807; GC Exh. 27, 39, 40 and 46 at 2.)
67 Thompson was obviously aware that a driver has a right to refuse
an overtime assignment when a junior driver is not available. (GC Exh.
59 at 6.)
68 Although received in evidence as a record allegedly obtained by
Phillips in the regular course of business pursuant to FRE 803(6), I
gave the statement, which was prepared by Phillips for Wallace a few
days before an NLRB hearing, no weight as both unreliable and pre-
pared for the ensuing litigation. (R. Exh. 12–13; Tr. 751–755.) Instead,
I rely on my credibility assessment of Wallace’s testimony. (Tr. 749.)
next day. Saxton clocked out at 3:07 p.m.69
Saxton clocked-out, walked to the parking lot and, upon see-
ing driver Dennis Wade, yelled into the warehouse that Wade
was available to take the “fucking truck” to Ryder. Thompson
did just that and had Wade take the truck to Ryder. Shortly
thereafter, Thompson, Wade, and Wallace provided Philips
with emails describing the incident.70 Thompson’s statement
said that Saxton refused the order to take the truck because
overtime was not guaranteed. That was inaccurate since Saxton
simply refused and insisted that a junior driver be asked to do
it.71
Drayton, seeing Saxton walking in the parking lot visibly up-
set, walked up to him and asked what was wrong. Referring to
Thompson, Saxton said that “this motherfucker fired me
again.” They were approximately 20 yards from the warehouse
entrance during at this point. After further discussion, Saxton
and Drayton went to Phillips’ office. Saxton left to speak with
Freedman, while Drayton insisted that Saxton’s discharge vio-
lated Article 3(D) of the CBA. At that point, Thompson joined
the discussion and asked Drayton if he heard Saxton curse at
Thompson. Drayton confirmed that Saxton cursed in the park-
ing lot, but then sought to change the discussion back to the
applicable CBA provision. Thompson was not interested.
Meanwhile, Saxton approached Freedman about the discharge.
Freedman was unaware of that development and urged Saxton
to discuss it with Thompson. Saxton returned to Philips’ office,
but Thompson refused to speak with him. At that point, Saxton
and Drayton left. Shortly thereafter, Saxton informed Settles of
his termination. Settles told Saxton that he would speak with
Thompson. Approximately 30 minutes later, Settles told Saxton
to return to work the next day.72

69 The weight of the credible evidence indicates that Saxton and
Brown were talking loudly at the outset, followed by Saxton and
Thompson yelling after the latter joined the fray. Saxton and Thompson
were yelling during much of their heated exchange, so loud that an
employee operating heavy machinery nearby heard Saxton’s voice. (Tr.
166-167, 171-172, 174, 273, 277, 285, 611, 679–680, 749, 776, 782,
789–790, 804; GC Exh. 27, 34, 39–40, 63.) I found Singh and Wallace
credible in their assessments of the loudness of the voices. (Tr. 372–
373, 749-750, 765.) I also credit the testimony of Brown that Saxton
used profanity. (Tr. 790, 807.) A professed “religious” man and friend
of Saxton before the incident, Brown credibly explained the failure to
mention that in his written statement. (Tr. 790, 807; GC Exh. 39.)
70 Smith and Wallace omitted any reference in their written state-
ments to Saxton’s use of profanity, but I found their testimony credible
with respect to Saxton yelling and cursing during the argument with
Thompson. (Tr. 173, 473–475, 606–607, 680, 777; R. Exh. 12; GC
Exh. 36, 40, 63.)
71 I do not place much significance in the fact that Thompson’s
statement also omitted any reference to Saxton yelling in the transporta-
tion office or using profanity. (GC Exh. 4, 39, 63; Tr. 607, 679–680.)
There is no doubt that both were yelling. However, Thompson’s testi-
mony that he offered to have someone drive Saxton back was not cred-
ible. That was omitted from his statement and was inconsistent with the
testimony of Brown and Smith.
72 Saxton, Thompson and Drayton provided fairly consistent testi-
mony regarding the discussions after Thompson discharged Saxton.
(Tr. 174–178, 414–417, 422–426, 611–612.)
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
P. Saxton’s October 2 Termination
Saxton returned to work on September 30 and drove his de-
livery route, which ended after two hours of overtime. As he
delivered his manifest to Moore in the warehouse, Brown
called out to him. Saxton replied, “[w]hat is that, Mr. Remus?”
Brown said that Thompson wanted to see him. Saxton replied
that his shift was over and he would not speak with Thompson
because he was advised against it by the Union. He clocked-out
at 4:43 p.m. and left the facility.73
After leaving the warehouse, Saxton found Drayton in the
parking lot waiting to carpool home. After telling Drayton that
Thompson wanted to meet with him, Drayton noted that
Thompson wanted to meet with him as well. Drayton then
asked Saxton to wait in the parking lot while he went to meet
with Thompson. Drayton returned to the facility and searched
for Thompson between 4:45 and 5 p.m., but could not locate
him. He returned to the parking lot, informed Saxton that
Thompson could not be found and suggested they leave. Before
doing so, however, Saxton called and spoke with Brown at 5
p.m. Saxton asked Brown if Thompson was around and to con-
firm that Saxton was working the next day. Brown told Saxton
that he had a route the next day, and to tell Drayton that
Thompson did not need to see him anymore. During this con-
versation, Brown did not instruct Saxton to return to the facility
to meet with Thompson. The conversation concluded and Sax-
ton and Drayton left.74
Thompson, evidently ensconced in his office while Drayton
went looking for him, was preparing a paper trail of the earlier
incident with Brown. Brown sent Thompson an e-mail at 4:45
p.m. stating, “I told him you needed to talk to him, I don’t think
he is going to wait, you may want to come out now and catch
him.” Thompson responded approximately 35 minutes later and
instructed Brown to “[p]lease email me exactly what Richard
said to you.” At 5:23 p.m., Brown responded that he told Sax-
ton that Thompson wanted to talk to him and Saxton responded
that his shift was over and would not talk to Thompson because
he was advised to refrain from such communication.75
On October 1, Saxton had an uneventful work day, which in-
cluded communicating with Thompson about maintenance
issues with his truck. Upon arriving to work on October 2,
however, Thompson pulled him aside. Thompson initially indi-

73 Notwithstanding Thompson’s request that Brown, Moore and
Smith provide second, more detailed reports of what Saxton said on
September 30, I found their testimony fairly credible regarding Sax-
ton’s demeaning reference to a fictional character. (178-182, 293, 302,
307, 738, 741, 769, 771–772, 778, 780, 791–793; R. Exh. 7–8, 11; GC
Exh. 34, 65–66.) Their additional emails were also received pursuant to
FRE 803(6) on the representation that it was customary for the Compa-
ny to obtain such information in similar circumstances. Although con-
sidered for the potentially inconsistent nature of the statements consid-
ered therein, I did not consider them reliable and, thus, did not accord
them any weight.
74 Brown did not dispute the credible testimony by Saxton and Dray-
ton regarding this conversation. (Tr. 182-184, 186-187, 194, 208, 298,
429, 431–434, 436–437; GC Exh. 65.)
75 Thompson did not provide a credible explanation as to why he ig-
nored Brown’s suggestion that he catch Saxton while he was still there.
(Tr. 595–596.; GC Exh. 65.)
cated that he would wait for Drayton, but then asked another
driver, Harry Bowie, to serve as Saxton’s representative. In an
open setting witnessed by several other drivers, Thompson
informed Saxton he was terminated and handed him a termina-
tion letter. Saxton replied that Thompson would regret that
action, leading Thompson to ask if Saxton was threatening him.
Saxton explained that he was merely referring to the upcoming
NLRB hearing.76 The letter, stated, in pertinent part:
On Monday, September 29th, after you returned from your
route, and while you were still on the clock, Transportation
Supervisor Ellis Brown asked you to return a truck to Ryder
for repair. Although Ryder is only around one mile away from
our facility, the truck needed to be transported there, you were
the only driver present who was on the clock; and it would
have only taken you a few minutes, you refused. I approached
you and Ellis while you were refusing to perform this task. I
explained to you that we needed you to take the truck to Ry-
der for us, and that you were the only driver who was at the
facility at the time. In response, you began screaming at us
that you had seniority and did not have to take the truck. Sev-
eral times I asked you to calm down, and to reconsider your
refusal. You continued yelling that you did not have to do so,
that you weren’t going to take the truck, all while using pro-
fanity. After you refused at least four or five times; I finally
told you to punch out and leave.
On Tuesday, September 30, I asked Ellis to direct you to
come to speak with me and Meg after you returned from your
route. Before making a final decision on how to address your
conduct the prior day, we wanted to speak with you to provide
you with the opportunity to explain your actions. When Ellis
directed you to come to see me, you refused. You punched
out, told Ellis that you would not speak with me, and left. On
September 29 and 30 you repeatedly refused to follow a su-
pervisor’s order, and also engaged in insubordination to man-
agement. Work rule 2(h) of the bargaining unit work rules
provides that the penalty for “refusal to follow a supervisor’s
order” is “Termination.” Work rule 2(d) provides that the
penalty for “insubordination to management” is “Termina-
tion” for a 2nd offense. Violations of these work rules are
considered “Major Offenses”… Work rule 6(h) provides that
the penalty for any combination of two (2) major offenses in
an eighteen (18) month period is termination.
In your case, the most recent infractions comprise your third
major offense in a period of just over ten months. Effective
today, October 2, 2014, your employment is terminated.77
Thompson’s termination letter added an additional insubor-
dination charge based on Saxton’s refusal to meet with Thomp-
son when initially directed to do so by Brown. However, Sax-
ton responded in similar fashion in February 2014 by refusing
to attend an impromptu disciplinary meeting without a steward
present when Thompson sought to meet with him about a work
rule 4(c) violation. On that occasion, Saxton was not disci-

76 I base this finding on Saxton’s credible and undisputed testimony.
(Tr. 195–197.)
77 GC Exh. 27.
S. FREEDMAN & SONS, INC. 17
plined.78
After being terminated on October 2, Saxton filed for unem-
ployment benefits with Maryland’s Unemployment Insurance
Office. The Company opposed the application on the grounds
that Saxton’s termination resulted from misconduct, but the
State agency determined on November 21, 2014 that there was
insufficient evidence to support such a finding.79
Q. Comparable Prior Disciplines
Prior to Saxton’s termination on October 2, the Company
disciplined three employees for insubordination during the
previous four years. None, however, involved a refusal to work
overtime or meet with a supervisor.
On June 6, 2012, James Harley, a truck driver, was issued a
final warning for insubordination. Harley refused to go out on
delivery and argued with management over the issue. There is
no indication that overtime was an issue. On May 2, 2013, Har-
ley was issued another warning for hanging up his Company-
issued cellular telephone on Brown while Harley was making
deliveries. Although Harley has hung up on Brown several
times, this is the first time that he was disciplined for such in-
subordination. 80
On June 16, 2011, Billy Little was terminated for refusing
Thompson’s order to work in the warehouse and threatening to
punch him in the face. Despite Little’s threat to assault Thomp-
son, Little returned to work.81
On June 15, 2010, Al Hamilton was terminated for refusing a
supervisor’s order to take a Department of Transportation-
mandated (DOT) drug and alcohol test.82
Legal Analysis
I. CONFIDENTIALITY PROVISION
The General Counsel alleges that the Company’s condition-
ing Saxton’s reinstatement on his signing of a confidentiality
agreement restrained Saxton’s Section 7 rights. The Company
argues that Section 7 rights can be waived, and that the provi-
sion was mutually agreed upon, narrowly tailored and, thus,
lawful.
Employees have a well-established right to discuss disci-
pline; therefore, a confidentiality rule, even when individual-
ized, is valid only when the employer’s substantial and legiti-
mate business justification outweighs any attending infringe-
ment upon the employee’s rights. See Inova Health System, 360
NLRB No. 135, slip op. at 9, fn.16 (2014).
After Saxton informed the Union that he had been presented

78 It is undisputed that Saxton refused to meet with Thompson and
Brown in February 2014, that Thompson requested to speak with Dray-
ton on September 30, and that Thompson did not discipline Drayton for
failing to meet with him on September 30. (Tr. 20, 121–122.)
79 The “fact finding” in the report is a mere compendium of state-
ments submitted by the Saxton, Thompson, Philips, Settles and Brown
which are fairly consistent with their testimony. (GC Exh. 59.) In any
event, the State agency eventually determined, under standards that are
inapplicable in our case, that there was insufficient evidence to support
make a finding of disqualifying misconduct. (GC Exh. 53.)
80 Brown confirmed the nature of Harley’s repeated insubordination.
(R. Exh. 10 at 1; Tr. 808-809.)
81 Id. at 2.
82 Id. at 3.
with a last-chance agreement, the Union contacted the Compa-
ny, who then proposed to convert Saxton’s discipline to a sus-
pension for time served if he signed a confidentiality provision.
The Union agreed to consider such a provision. The Company
then submitted the agreement quickly and directly to Saxon,
however, without the Union’s knowledge. Saxton signed the
document and returned to work.
The Company offered no business justification for condition-
ing reinstatement on the confidentiality agreement and it is hard
to fathom one. Whether the Company was seeking to keep con-
fidential information relating to how it disciplines employees
for causing property damages or refusing to sign a last-chance
agreement, it is unclear as to what the agreement accomplished.
Saxon caused significant damage to a Company vehicle, was
suspended for 4 days and out of work as a result, and subse-
quently returned to work. As such, to the extent that the agree-
ment sought to preclude Saxton, a steward, from discussing his
discipline with coworkers, it infringed on his Section 7 rights
and, thus, was facially unlawful. See Philips Electronics North
America Corporation, 361 NLRB No. 16, slip op. at 3 (2014)
(employees have a Section 7 right to share their disciplinary
information with coworkers and any rule prohibiting such
communication violates Section 8(a)(1) of the Act).
The Company’s additional argument that Saxton waived his
rights by signing the confidentiality provision also fails.83 In
support of this position, the Company cites well-established law
which holds that a union may waive certain rights. See, e.g., 14
Penn Plaza v. Pyett, 556 U.S. 247 (2009); Mastro Plastics v.
NLRB, 350 U.S. 270 (1956); Coca Cola Bottling Co. of L.A.,
243 NLRB 501 (1979). However, the fact that a union may
consent to the waiver of Section 7 rights through the collective-
bargaining process does not entail that an individual employee
may do the same. On the contrary: individual employee-
employer agreements cannot waive employees’ Section 7
rights. See Murphy Oil, 361 NLRB No. 72, slip op. at 1 (2014).
Under the circumstances, the Company bypassed the Union as
an unlawful means by which to achieve a waiver for its unlaw-
ful imposition of a facially invalid agreement precluding an
employee from exercising his Section 7 rights in violation of
Section 8(a)(1) of the Act.
II. DISCIPLINE ATTRIBUTABLE TO SAXTON’S PARTICIPATION IN
THE BOARD PROCESSES
The General Counsel alleges that the Company initially dis-
criminated against Saxton by disciplining him because of his
participation in Board processes. The Company denies the alle-
gations, refers to Saxton’s long history with the Company as a
driver and union steward, and insists Saxton misled Thompson
and engaged in misconduct warranting disciplinary action.
Discipline allegedly precipitated by participation in Board
processes is analyzed under the framework established
in Wright Line, 251 NLRB 1080 (1980), enfd. 662 F.2d 889

83 The General Counsel alleges that the Company did not plead in its
answer that Saxton waived his Section 7 rights when he signed the
confidentiality agreement. (GC Exh. 1(Y) at 2.) However, the Compa-
ny’s second affirmative defense does include a general waiver defense.
Although not specifically mentioning the confidentiality agreement, the
General Counsel was well aware of the Company’s argument relating
to Saxton’s waiver and the matter was litigated. (Tr. 255.)
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). See Taylor & Gaskin, 277 NLRB 563, 563 n.2 (1985)
(noting application of Wright Line framework to 8(a)(4) analy-
sis). That framework provides that the General Counsel has the
initial burden to show that protected conduct was a motivating
factor in the employer's decision. This burden is met by demon-
strating protected activity, the employer's knowledge of such
activity, and evidence of animus. Hawaiian Dredging Con-
struction Co., 362 NLRB No. 10, slip op. at 1 (2015). Estab-
lishment that protected conduct was a motivating factor in the
employer’s decision does not require an additional showing of
particularized motivating animus towards the employee's own
protected activity or to further demonstrate some additional,
undefined “nexus” between the employee's protected activity
and the adverse action. Libertyville Toyota, 360 NLRB No.
141, slip op. at 5 fn. 10 (2014). When the General Counsel has
met this standard, the burden then shifts to the employer to
demonstrate that it would have taken the same action even in
the absence of the employees' activity. Id.
The General Counsel alleges that the Company discriminated
against Saxton for his participation in Board processes both by
terminating him on July 3 and subsequently converting it to a
suspension on July 23. The Company denies any animus and
asserts that it reasonably responded to Saxton’s evasive behav-
ior. In addition, the General Counsel alleges that the Company
discriminated against Saxton for his participation in Board
processes by discharging him on September 29 and October 2.
The Company denies that Saxton was terminated on September
29 and argues that the October 2 termination resulted from
insubordination.
Following Saxton’s grievance on December 27, the Union
filed charges and amended charges with Region 5 of the NLRB.
The Region, in turn, notified the Company of the initial and
amended charges on January 27 and March 31, respectively. On
April 25, the Region issued a complaint with notice of hearing
for July 8. On July 1, Saxton left a message, which was con-
veyed to Thompson, that he was not coming into work because
he had “to get a license.” On July 2, Thompson pulled Saxton
into a meeting and handed him a written warning for calling out
on July 1 without sufficient leave time. The meeting included a
heated discussion questioning the validity of Saxton’s license,
culminating in Saxton providing documentary proof. On July 3,
Thompson handed Saxton a letter terminating his employment.
After failing, for three weeks to conduct a meaningful investi-
gation, Thompson reinstated Saxton on July 23, stating, “We
have decided…to treat his time off from work as an unpaid
suspension, and a major offense, for dishonesty.” On July 24,
following his reinstatement, Saxton grieved his suspension.
The aforementioned disciplinary sequence of events resulted
in charges that were included in the consolidated complaint,
compliance specification, and notice of hearing for October 6
served on the Company by Region 5 on September 10. A few
weeks after receiving that complaint, and one week before the
hearing, on September 29, Thompson targeted Saxton with an
overtime task that Saxton refused based on the CBA and which
led to his termination on October 2. The fact that Saxton was
told to return to work on September 30 after Settles intervened
with Thompson is of no consequence since Thompson never
retracted his statement to Saxton to clock out and not return. It
was a temporary reprieve while Saxton prepared a termination
letter.
The record establishes that the Company was well aware of
Saxton’s grievances, the accompanying complaints and notices
of hearing. In at least two instances, the Company disciplined
Saxton less than a week prior to a scheduled hearing: first, Sax-
ton was disciplined on July 3 prior to a hearing scheduled for
July 8; second, Saxton was disciplined on September 29 prior
to a hearing scheduled for October 6. This suspicious timeline
of events raises a strong inference that the Company exhibited
discriminatory animus toward Saxton’s participation in Board
processes. See Success Village Apartments, 348 NLRB 579,
579 fn. 5 (2006).
Pretext evidencing animus is initially demonstrated by
Thompson’s decision to seize upon secondhand information to
initiate an investigation of Saxton’s license and then continuing
to favor such secondhand information even in the face of clear
documentary evidence to the contrary. See Clinton Food 4
Less, 288 NLRB 597 (1988). This failure to evenhandedly in-
vestigate the charges against Saxton is further demonstrated by
the Company’s failure to adduce evidence of past discipline for
similar allegations. See Golden State Foods Corp., 340 NLRB
382, 385 (2003).
Second, the Company’s shifting reasons for disciplining Sax-
ton, by first accusing him of driving a Company vehicle on an
expired license and then accusing him of dishonesty, strongly
suggests that the July 23 suspension was a recalibration based
upon pretext. See Naomi Knitting Plant, 328 NLRB 1279
(1999).
Third, the grounds advanced by Thompson for terminating
Saxton on September 29 and October 2 were contrived.
Thompson knew or should have known on September 29 that
there were approximately 7 junior drivers available at or around
the time that he and Brown directed Saxton, the senior driver
and on overtime, to take a truck for repairs. Thompson sudden-
ly made this decision after the truck had already been parked on
the lot for nearly a week. He ignored the applicable CBA rule
as Saxton tried to show it to him and, instead, engaged Saxton
in a shouting match which included profanity from Saxton dur-
ing the argument, as well as a short time later when he yelled
into the warehouse. The other basis for discharging Saxton –
refusing to meet with Thompson on October 2 as directed by
Brown – was also baseless. Saxton initially insulted Brown
with the “Mr. Remus” comment and refused to meet with
Thompson in the absence of union representation. However, a
short time later, Drayton went looking for Thompson and Sax-
ton called Brown. However, Thompson decided at that point to
lay low, avoid further communication with Saxton and Dray-
ton, and begin a paper trail of the earlier instance of insubordi-
nation by Saxton.
Since the General Counsel met his burden of establishing
that Saxton’s termination and suspensions were directly moti-
vated and caused by his participation in Board processes, the
burden shifted to the Company to demonstrate that Saxton
would have been terminated in the absence of such conduct.
However, there was no such showing. Prior to Saxton’s termi-
S. FREEDMAN & SONS, INC. 19
nation on October 2, the Company disciplined three employees
for insubordination during the previous four years. One em-
ployee, after repeated instances of insubordination, received a
warning. Another employee was initially terminated for refus-
ing work and threatening to assault Thompson, but was rein-
stated. The third employee was terminated for refusing a State-
mandated drug and alcohol test. None of these instances come
close to a contractually justified refusal to work overtime or
meet with a supervisor without a union represent present.
Considering the suspicious timing, the conclusory investiga-
tion, the lack of previous similarly situated discipline, and the
shifting justifications provided, the evidence demonstrates that
the Company discriminated against Saxton for participating in
Board processes in violation of 8(a)(4) and (1).
II. DISCIPLINE RESULTING FROM SAXTON’S PROTECTED
CONCERTED ACTIVITIES
The complaint includes overlapping charges alleging that the
Company also discriminated against Saxton for engaging in
protected concerted activity by discharging him on September
29 and October 2. The specific activity alleged is his refusal to
take an overtime assignment based on his seniority rights under
the CBA.
Employees have the right to engage in concerted activities
for the purpose of mutual aid or protection. See Eastex v.
NLRB, 437 U.S. 556, 563 (1978) (quoting Section 7, 29 U.S.C.
§ 157). The concepts of concerted activity and mutual aid or
protection are analytically distinct. See Summit Regional Medi-
cal Center, 357 NLRB 1614, 1616 (2011). Concertedness refers
to the manner of the act, while mutual aid or protection refers to
its goal. See Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op. at 3 (2014). An activity is concerted when con-
ducted “with or on the authority of other employees and not
solely by and on behalf of the employee himself.” Myers Indus-
tries, 268 NLRB 493, 497 (1984) (Myers I), remanded sub
nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. de-
nied 474 U.S. 948 (1985). An activity is for mutual aid or pro-
tection when it seeks to “improve terms and conditions of em-
ployment or otherwise improve [employees'] lot as employ-
ees.” St. Rose Dominican Hospitals, 360 NLRB No. 126, slip
op. at 4 (2014) (quoting Eastex, 437 U.S. at 565). Analysis of
whether activity is concerted for mutual aid or protection is
objective. See Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op. at 4.
An individual activity is conducted with or on the authority
of other employees when seeking to initiate or prepare for
group action, or when bringing truly group complaints to the
attention of management. See Myers Industries, 280 NLRB
882, 887 (1986) (Myers II), enfd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
An individual employee’s invocation of a collective-bargaining
agreement in support of a reasonable and honest refusal to per-
form a requested task is concerted activity. See NLRB v. City
Disposal Systems, 465 U.S. 822, 837 (1984).
On September 29, Brown asked Saxton to take a truck for
window repairs. Saxton told Brown he was in overtime and
insisted Brown assign the task to a junior driver. Brown left the
transportation office, walked up to Saxton and continued the
conversation next to the transportation window. Saxton insisted
he had the contractual right to refuse because he was the senior
driver and on overtime. He took out the contract and urged
Brown to read it. Notwithstanding any debate over the accuracy
of his interpretation, Saxton’s invocation of the contract
demonstrated a reasonable and honest refusal to perform the
requested task and was thus a concerted activity. See White
Electrical Construction, 345 NLRB 1095, 1095 (2005); Tillford
Contractors, 317 NLRB 68, 68–69 (1995).
As Brown and Saxton argued about the assignment, their
voices got progressively louder. Thompson and Smith joined
the argument and the three supervisors surrounded Saxton.
Saxton reiterated his interpretation of the contract, lacing his
refusal to do the task with profanity. In the end, Thompson told
Saxton to punch out and not return the next day.
Discharge for conduct that is part of the res gestae of pro-
tected concerted activities is unlawful unless such conduct is
sufficiently egregious to remove it from the protection of the
Act. See Aluminum Co. of America, 338 NLRB 20
(2002). Activity is not protected when “so violent or of such
serious character as to render the employee unfit for further
service.” St Margaret Mercy Healthcare Centers, 350 NLRB
203, 204–205 (quoting NLRB v. Illinois Tool Works, 153 F.2d
811, 815 (7th Cir. 1946)). Analysis of the character of conduct
examines: (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 em-
ployer’s unfair labor practice. Atlantic Steel Co.,
245 NLRB 814, 816 (1979).
With respect to the place of discussion, the incident took
place both inside and outside the transportation office and with-
in hearing distance of other employees. The discussion there-
fore was not private, a factor which counsels against protection;
however, this factor carries less weight given that the Company
selected the setting of the confrontation. See Brunswick Food &
Drug, 284 NLRB 663 (1987).
The subject matter of the discussion entailed Saxton’s inter-
pretation of and reliance upon a contractual right. Discharge for
activity which is itself concerted is in and of itself unlawful to
the extent such activity has not lost its protected status. See
Atlantic Scaffolding Co., 356 NLRB 835, 839 (2011).
As to the nature of Saxton’s outburst, he yelled and cursed at
least several times during his shouting match with Thompson.
Outbursts lose protection when they “exceed the bounds of
lawful conduct in a moment of animal exuberance or in a man-
ner not motivated by improper motives and those flagrant cases
in which the misconduct is so violent or of such a character as
to render the employee unfit for further service.” Prescott In-
dustrial Products Co., 205 NLRB 51, 51–52 (1973). Thus,
impulsive outbursts carry more protection than those which are
planned. See Kiewit Power Constructors Co., 355 NLRB No.
150, slip op. at 4 (2010). In this regard, profanity is typically
evaluated not for its content, but rather for its quantity. See
Daimler Chrysler Corp., 344 NLRB 1324, 1329–1330 (2005).
Moreover, raising one’s voice does not render concerted activi-
ty unprotected. See Goya Foods, Inc., 356 NLRB 476, 481
(2011). Under the circumstances, with Saxton and Thompson
both yelling in the midst of a warehouse populated by a rela-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tively small number of employees towards the end of the work
day, I do not find that Saxton’s inclusion of profanity raised his
yelling to a level sufficient enough to render his concerted ac-
tivity unprotected.
As to whether the outburst was provoked, Saxton responded
to a directive which he believed contravened his interpretation
of the contract. However, there is no allegation that Thomp-
son’s directive was, in and of itself, unlawful. Thus, this factor
counsels against protection. See Tampa Tribune, 351 NLRB
1324, 1325 (2007). On the other hand, the fact that Saxton’s
outburst was elevated in response to a display of overt hostility,
as he was surrounded by three supervisors, counsels against
placing too much emphasis upon this factor. See Felix Indus-
tries, 339 NLRB 195, 195–196 (2003).
Although Thompson’s directive was not unlawful, the loca-
tion of the incident was controlled by the Company and the
subject matter went directly to the terms and conditions of em-
ployment. Under the circumstances, the impulsiveness, profane
nature and volume of Saxton’s discourse did not cause him to
lose the protection of the Act and his discipline by the Compa-
ny for engaging in protected concerted activity also violated
8(a)(3) and (1).
CONCLUSIONS OF LAW
1. The Respondent, S. Freedman & Sons, Inc. is an employ-
er engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, Drivers, Chauffeurs and Helpers Local Union
No. 639, a/w International Brotherhood of Teamsters, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Company violated Section 8(a)(1) of the Act by con-
ditioning Richard Saxton’s reinstatement on a waiver of his
Section 7 rights to discuss discipline, grievances and settle-
ments with coworkers on November 25, 2013.
4. The Company violated Section 8(a)(3) and (1) of the Act
by terminating Saxton on September 29 and October 2, 2014
for engaging in protected concerted activities.
5. The Company violated Section 8(4) and (1) of the Act by
terminating Saxton on July 3, 2014, suspending Saxton on July
23, 2014, and terminating Saxton on September 29 and October
2, 2014, for filing or participating in charges and proceedings
with the National Labor Relations Board
REMEDY
Having found that the Company has engaged in certain un-
fair 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 Company, having discriminatorily discharged, and sus-
pended Richard Saxton, must offer him reinstatement and make
him whole for any loss of earnings and other benefits. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
The Company shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. The Company shall also compensate the discrimi-
natee(s) for the adverse tax consequences, if any, of receiving
one or more lump-sum backpay awards covering periods longer
than 1 year. Tortillas Dan Chavas, 361 NLRB No. 10 (2014).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended84
ORDER
The Company, S. Freedman & Sons, Inc., Landover, Mary-
land, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting the Drivers, Chauffeurs and Helpers Lo-
cal Union No. 639, a/w International Brotherhood of Teamsters
or any other union.
(b) Suspending, discharging or otherwise discriminating
against any employee for participating in charges relating to or
proceedings before the National Labor Relations Board.
(c) Suspending, discharging or otherwise discriminating
against any employee for engaging in protected concerted ac-
tivity.
(d) Restricting employees’ Section 7 rights by prohibiting
them from discussing their disciplines, grievances, and settle-
ments.
(e) Coercing employees by conditioning their reinstatements
on waivers of Section 7 rights, including the right to discuss
disciplines, grievances, and settlements.
(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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Richard Saxton full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Richard Saxton whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and suspension, and within 3 days thereafter notify the employ-
ee in writing that this has been done and that the discharges will
not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored

84 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
S. FREEDMAN & SONS, INC. 21
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 fa-
cility in Landover, Maryland copies of the attached notice
marked “Appendix.”85 Copies of the notice, on forms provided
by the Regional Director for Region 5 after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous 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 Company customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Company to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Company has
gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Company at any time since
July 2, 2014.
(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
Company has taken to comply.
Dated, Washington, D.C. March 31, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, suspend or otherwise discriminate
against any of you for supporting Drivers, Chauffeurs and
Helpers Local Union No. 639, a/w International Brotherhood of
Teamsters or any other union.
WE WILL NOT discharge, suspend or otherwise discriminate
against any of you for seeking assistance from, or cooperate in
investigations or proceedings conducted by, the National Labor

85 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Relations Board.
WE WILL NOT discharge, suspend or discipline employees be-
cause they exercise their right to bring issues and complaints to
us on behalf of themselves and other employees.
WE WILL NOT require that you keep confidential your disci-
plines or the terms of grievance settlements.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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
Richard Saxton full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Richard Saxton whole for any loss of earn-
ings and other benefits resulting from his discharges, and sus-
pension, less any net interim earnings, plus interest compound-
ed daily.
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
WE WILL compensate Richard Saxton for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges, and
suspension, of Richard Saxton, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that
the discharges will not be used against him in any way.
S. FREEDMAN & SONS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05–CA–121221 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.