VOITH INDUSTRIAL SERVICES, INC.

National Labor Relations Board - Administrative Judge Opinions

Jan 23, 2014

09-CA-097589 (N.L.R.B. Jan. 23, 2014)

JD–02–14
Louisville, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VOITH INDUSTRIAL SERVICES, INC.
and Case 9-CA-097589
GENERAL DRIVERS, WAREHOUSEMAN &
HELPERS, LOCAL UNION NO. 89,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Jonathan Duffey, Esq.,
for the General Counsel.
Gary A. Marsack, Esq., and
Stephen Richey, Esq.,
of Milwaukee, Wisconsin, and Cincinnati, Ohio,
for the Respondent.
James F. Wallington, Esq., and
Robert M. Colone, Esq.,
of Washington, D.C., and Louisville, Kentucky,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried in Louisville, Kentucky,
on June 18-19 and August 20-21, 2013. General Drivers, Warehousemen & Helpers, Local
Union No. 89, affiliated with the International Brotherhood of Teamsters (the Charging Party, the
Union, or Teamsters Local 89) filed the charge on February 4, 2013, and the Regional Director
for Region 9 of the National Labor Relations Board (NLRB or Board) filed the complaint on April
15, 2013. The complaint alleges that Voith Industrial Services, Inc., (the Respondent or Voith),
discriminatorily disciplined and discharged two employees, Patti Murphy and Kelly Stein, in
violation of Section 8(a)(1), 8(a)(3), and 8(a)(4) of the National Labor Relations Act (the Act).
The complaint further alleges that the Respondent violated Section 8(a)(5) and (1) by making
unilateral changes to policies regarding attendance and loading rail cars in the dark. In addition,
the complaint alleges that the Respondent violated Section 8(a)(1) by threatening employees
with unspecified reprisals for making complaints to the NLRB and engaging in other protected
concerted activities. The Respondent filed a timely answer in which it denied that it had
committed any of the violations alleged.
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2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following findings of fact and conclusions of law.
FINDINGS OF FACT5
I. JURISDICTION
The Respondent, a corporation, provides cleaning, transportation and logistical services
to customers in the automobile manufacturing industry. It has an office and place of business in 10
Louisville, Kentucky, where it annually purchases and receives goods valued in excess of
$50,000 directly from points outside the Commonwealth of Kentucky. The Respondent admits,
and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5)
of the Act. 15
II. PRIOR LITIGATION AND MOTION IN LIMINE
On February 13 and March 1, 2012, the Respondent entered into agreements to provide
vehicle processing and yard management services to Ford Motor Company (Ford) at Ford’s20
Louisville Assembly Plant (LAP). Prior to that time, this work had been performed by Auto
Handling, Inc., a subsidiary of Jack Cooper Transport (Cooper Auto Handling). The Teamsters
have been the exclusive bargaining representative of the vehicle processing and yard
management employees at the LAP for a period of about 60 years, including during the period
when Cooper Auto Handling was providing those services. This status has been recognized in 25
successive collective-bargaining agreements, the most recent of which was executed between
Teamsters Local 89 and Cooper Auto Handling, and sets forth effective dates of June 1, 2011 to
August 31, 2015. After the Respondent took over the vehicle processing and yard
management work at the LAP in 2012, Teamsters Local 89 demanded continued recognition as
the collective bargaining representative of the employees. The Respondent, however, declined 30
to recognize Teamsters Local 89, and instead granted recognition to the International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO and
Local 862 (UAW), which already represented a group of the Respondent’s janitorial and
cleaning workers at the LAP.
35
In 2012, a 13-day unfair labor practices trial was held before Administrative Law Judge
Bruce D. Rosenstein.1 Among the questions presented in that litigation were whether the
Respondent was a successor to Cooper Auto Handling for purposes of the vehicle processing
and yard inventory work and whether the Respondent had an obligation to recognize and
bargain with Teamsters Local 89. Approximately nine Teamsters-affiliated employees testified 40
at the trial, including Murphy and Stein – the two alleged discriminatees in the proceeding
before me. Jason Miller, a supervisor with the Respondent, also appeared to testify in the prior
proceeding. When Jason Wilson, the facility manager at the LAP, discovered that Miller was
present as a witness, he sent a text message to Bret Griffin, regional manager for vehicle
processing, in which he stated that “Fukin Miller is here to testify on behalf of the Teamsters.” 45
The Respondent subsequently terminated Miller’s employment in early December 2012, but

1
The prior trial was held on August 21 to 24, 27, 28, and 30, September 19 to 21, and October 1 to 3,
2012.
JD–02–14
3
there is no allegation in this case that Miller’s termination was unlawfully based on his testimony
in the prior proceeding.
Judge Rosenstein issued his decision on December 21, 2012. He held, inter alia, that
the Respondent was a successor to Cooper Auto Handling because “Voith conducted 5
essentially the same business at the same location as [Cooper] Auto Handling and the majority
of the newly constituted bargaining unit employees would have consisted of former employees
of the predecessor” if Voith had not unlawfully discriminated against the predecessor’s
employees “because of their affiliation with [Teamsters Local 89].” Judge Rosenstein found that
the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain 10
with Teamsters Local 89 with respect to the unit of employees who the Teamsters represented
at Cooper Auto Handling.2 He further found that the Respondent had violated Section 8(a)(5)
and (1) when it unilaterally imposed initial terms and conditions of employment on those
employees. The Respondent has filed exceptions to Judge Rosenstein’s decision, and the
Board has yet to rule on those exceptions.15
In the instant matter, the General Counsel filed a Motion in Limine asking that I adopt
Judge Rosenstein’s findings of fact and conclusions of law regarding the issues of
successorship and obligation to bargain, and prohibit the Respondent from raising or relitigating
those issues. The Respondent opposed the motion. On May 31, 2013, I granted the General 20
Counsel’s motion and issued an order adopting Judge Rosenstein’s findings of fact and
conclusions of law as they relate to the issues of the Respondent’s status as successor to
Cooper Auto Handling and the Respondent’s duty to bargain with Teamsters Local 89, and
precluding the parties from relitigating those issues. I noted that the Board has precluded a
party from relitigating determinations of successorship and bargaining obligation reached in a 25
prior proceeding where, as here, the parties in the two proceedings are the same and the
factual findings are necessary to support the judgment in the prior proceeding. See Great
Lakes Chemical Corp., 300 NLRB 1024, 1024-1025 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992).
The parties do not dispute that once the Board rules on the pending exceptions to Judge
Rosenstein’s decision, that ruling will be determinative of the successorship and bargaining 30
obligation issues presented to me – meaning that relitigating those issues in this proceeding
would be a waste of judicial resources. See Wynn Las Vegas, LLC, 358 NLRB No. 81, slip op.
at 3-4 (2012) (affirming that a judge may preclude a party from relitigating an issue that was
decided in a prior case even where the prior case is still pending before the Board). Moreover,
the parties’ representations regarding the motion indicated that allowing relitigation of those 35
issues was likely to increase the length of trial by 7 days or more.
Consistent with my ruling on the Motion in Limine, I find that the Respondent is a
successor to Cooper Auto Handling at the LAP, and at all relevant times has had an obligation
to recognize and bargain in good faith with Teamsters Local 89 as the exclusive collective 40
bargaining representative of its employees in the bargaining unit described in Judge
Rosenstein’s decision.

2
Judge Rosenstein’s decision stated that the bargaining unit was “All employees as set forth in
Article 3 of the National Master Automobile Transporters Agreement, Central and Southern Area
Supplemental Agreements and the Job Descriptions provisions of the Local Rider.” This is the same unit
definition set forth in the complaint in the instant case. Complaint Paragraph 8. The Respondent’s
answer admits that this constitutes a unit appropriate for bargaining and was recognized by Cooper Auto
Handling, but denies that it has any application to work performed by the Respondent at the LAP.
JD–02–14
4
III. ALLEGED UNFAIR LABOR PRACTICES
A. BACKGROUND FACTS
Since about April 2012, the Respondent has employed a bargaining unit of employees 5
who perform vehicle processing and yard inventory services for Ford at the LAP. There are
approximately 70 to 75 employees in the unit. Some of these employees are assigned to “yard
work” crews and drive newly produced vehicles to assigned parking spaces around the facility.
Other employees are assigned to “rail work” crews and load the new vehicles onto rail cars.
During the relevant time period, the Respondent operated two 12-hour shifts. The majority of 10
the unit employees work on the day shift, which starts at 6 am and ends at 6 pm. The others
work on the night shift – from 6 pm to 6 am.
Eleven of the unit employees were identified by management as openly Teamsters-
affiliated.3 These individuals frequently wore clothing that bore messages referencing their 15
affiliation with the Teamsters. Alleged discriminatees Murphy and Stein began working for the
Respondent on April 10 and 11, 2012, respectively. They were assigned to perform vehicle
processing work at the LAP, a type of work that both had previously been performing for the
Respondent’s predecessor Cooper Auto Handling. When the Respondent hired them it was
aware that Murphy and Stein were affiliated with Teamsters Local 89. The Respondent 20
recruited a significant percentage of its other bargaining unit employees from the ranks of its
UAW-represented janitorial and cleaning employees.
The Respondent’s highest ranking on-site official at the LAP is Jason Wilson, the facility
manager. Supervisors who worked under Wilson at the LAP during the relevant time period 25
include Tom Baker, Charlie Calhoun, Elizabeth Dawson, Dennis Frank, Laura Kitchen4 Jason
Miller, and Jeremy Spears. Wilson himself reports to Bret Griffin, the Respondent’s regional
manager for vehicle processing.
Miller, who the Respondent employed from April 2012 until the first part of December 30
2012, was called as a witness by the General Counsel. He testified that when he first started
working at the LAP he participated in a manager’s meeting at which Wilson stated that the
Respondent was at “war against the Teamsters” and was “in this facility to uproot them.”
Another manager, who is identified in the record only by the last name Barrett, told Miller during
the initial hiring that the Respondent “wanted to keep the majority of their employees UAW.” 35
Supervisor Dennis Frank expressed the opinion that the Teamsters employees “would lay down
on you” and that “if there’s anything going wrong with the vehicles in the yard it’s more than
likely something that they’re doing to hit Voith in the pocketbook.” I considered the
Respondent’s argument that Miller should not be credited because he was involuntarily
terminated and therefore is biased against the Respondent. Nevertheless, I credit his testimony 40
that these statements were made by Wilson, Barrett and Frank since that testimony was not
contradicted by other witnesses, was given in a clear and certain manner, and was not
undermined on cross-examination. I also note that, over two months before the Respondent
terminated his employment, Miller was present to give testimony adverse to the Respondent in
the prior trial before Judge Rosenstein. Thus Miller’s testimony about alleged misconduct by 45

3
Those identified on-the-record as Teamsters-affiliated employees were: Tweety Bernard, Deborah
“Suzie” Cheatham, James Flanagan, Brenda Helm, Gregory Johnson, Timothy McCory, Patti Murphy,
Sandra Rhodes, Aaron Schott, Kelly Stein, and Brenda Swift.
4
This individual’s last name is sometimes spelled “Ketchum” in the transcript.
JD–02–14
5
the Respondent cannot be easily discounted as the product of nothing more than ill-will
stemming from his discharge.
For a brief period of time after taking over the vehicle processing operation at the LAP,
management required Teamsters-affiliated employees to wear “Voith UAW clothing.” In an 5
email dated December 15, 2012, the Respondent’s vice president of operations, Darrin McElroy,
commended Griffin and Wilson on the job they were doing at the LAP given the “Teamster
nonsense.”

10
B. RESPONDENT BEGINS REQUIRING EMPLOYEES TO
LOAD RAIL CARS DURING NON-DAYLIGHT HOURS
AND EMPLOYEES COMPLAIN THAT THIS IS UNSAFE
Prior to July 31, 2012, the unit employees were not required to load vehicles onto rail 15
cars during non-daylight hours. This had been the case since at least 1997 under a variety of
employers including Cooper Auto Handling and, at least initially, the Respondent. Employees
were not required to load rail cars during non-daylight hours even when they were working on
shifts that encompassed such hours. This rule was established because the yard area at the
LAP is not equipped with “night loading lights” – that is, lights situated between the rows of 20
railroad tracks that provide both overhead, and mid-level lighting. Although these special lights
are not provided at the LAP, some lights are present in the yard area.
On the night shift that began on July 31 and ended on August 1, supervisor Calhoun
reassigned one of the crews from yard work to rail car loading work. This meant that the crew25
members would, for the first time, load rail cars during non-daylight hours. Teamsters-affiliated
employees Murphy, Stein and Rhodes, were on this crew and discussed among themselves
their concerns that the new practice was unsafe. According to Murphy’s uncontradicted and
credible testimony, when an employee exits a vehicle after driving it onto a rail car at night, it is
so dark that he or she “cannot see anything.” The employee has to “shuffle around” the rail car, 30
with “metal all around,” while feeling his or her way along the vehicles that have been loaded.
During their first work break after being assigned to load the rail cars during non-daylight hours,
Murphy, Stein, and Rhodes brought their safety concerns about this assignment to Calhoun’s
attention. Calhoun told them that they would have to do the rail car loading work anyway.
Murphy asked to be reassigned to yard work and Calhoun responded: “No, you will do this or 35
you’ll leave. And if you leave, we’re going to say you quit.” Later on that shift, another
supervisor, Baker, told Murphy, Stein, and Rhodes that he had discussed the matter with
Calhoun and that the Respondent was sending them home for the day, but that they would not
be fired or viewed as having resigned. Then Baker transported the three employees to the area
where their personal vehicles were located. During the drive, Murphy, Stein and Rhodes 40
discussed contacting the Occupational Safety and Health Administration (OSHA) to “see what
they think about loading in the dark.” Baker informed them that the next day they would again
be assigned to load rail cars during non-daylight hours. On August 1, Murphy contacted the
Kentucky Labor Cabinet’s Division of Occupational Safety and Health Compliance, and
transmitted to them, by facsimile, a written allegation that the Respondent was creating a safety 45
hazard by requiring employees to load rail cars in the dark.
Despite what Baker and Calhoun had told employees, the Respondent did not
immediately thereafter require Murphy, Stein, and Rhodes to load rail cars during non-daylight
JD–02–14
6
hours. Instead, the Respondent had the crew load rail cars from 6 pm until nightfall, and then
allowed them to return to the yard work assignment. In early September, Murphy, Stein and
Rhodes were reassigned to the day shift, and to rail car loading work. Most of that shift, which
started at 6 am, fell during daylight hours, and all the employees loaded rail cars during that
time. Depending on the time of year, some of the early part of the shift took place before 5
daylight. The Respondent did not require Murphy, Stein and Rhodes to load rail cars during that
non-daylight period, but rather assigned them various janitorial and cleaning duties. Most of the
crew, however, continued to load rail cars even during the non-daylight portion of the day shift.
When a state investigator visited the LAP to evaluate the August 1 allegation that 10
requiring employees to load rail cars in the dark created a safety hazard, Calhoun reassigned
Murphy, Stein, and Rhodes to do yard work away from the area where the investigator would
be. Murphy asked Calhoun why this was being done and Calhoun responded “you know why.”
Subsequently, in late October or early November 2012, the investigator informed Murphy that
he had not found a safety violation. As part of a settlement reached without a finding of 15
wrongdoing, Murphy, Stein and Rhodes received checks from the Respondent to reimburse
them for wages they had lost as a result of being sent home early on August 1 when they
complained about loading rail cars during non-daylight hours.
At some point prior to December 19, supervisor Dawson reported to Wilson that there 20
was dissension among employees over the fact that Murphy, Stein and Rhodes were excused
from loading rail cars during the non-daylight portion of the shift. As a result of that
conversation, Wilson discussed the issue with more senior officials of the Respondent, including
Erwin Gebhardt, director of labor relations, and Bret Griffin, regional manager. The upshot of
those discussions was that Wilson was told to “move forward and mandate that they start to do 25
this work, and if . . . they refused, to send them home for the day, present them with this write-
up . . . and move forward from there.” Wilson testified that he directed that a disciplinary notice
be issued to Stein and Murphy for refusing to load rail cars during non-daylight hours, but that
the date when he “thought” this refusal “was going to happen was a day that they weren’t
scheduled to work.” On December 21, the Respondent informed Murphy, Stein, and Rhodes 30
that they would no longer be permitted to perform janitorial and cleaning duties during the non-
daylight portion of their shifts, and would have to load rail cars for the entire shift. The
employees complied with that direction and never subsequently refused to load rail cars.
During the period of their employment by the Respondent, Murphy and Stein complained 35
to company officials about working conditions at the facility and stated that they were going to
contact OSHA or the NLRB. The undisputed testimony was that in some instances these
complaints were raised in the presence of co-workers and staff. None of these instances were
described at trial with specificity.
40
C. CHANGES IN ATTENDANCE POLICY
Policy under Predecessor Cooper Auto Handling: While the bargaining unit was
employed by Cooper Auto Handling, unit employees were subject to the attendance policy set
forth in the Teamsters’ National Master Automobile Transporters Agreement that took effect on 45
June 1, 2008 (Master Agreement),5 and in the local rider that was negotiated by Teamsters
Local 89 and which took effect on February 16, 2009. The Master Agreement sets forth a

5
The relevant terms of this contract remained in effect under a subsequent agreement, effective from
June 1, 2011 to August 31, 2015.
JD–02–14
7
system of progressive discipline for various types of attendance infractions. The contract
provision on excessive absenteeism states:
(c) Excessive absenteeism where notice is given (after meeting with employee).
5
1st offense – reprimand.
2nd offense – 1-week layoff.
3rd offense – subject to discharge.
The Master Agreement does not define “excessive absenteeism,” but the record shows that, in 10
practice, Teamsters Local 89 and Cooper Auto Handling defined “excessive absenteeism” as an
employee’s absence on three scheduled work days during a rolling 30-day period. In addition,
the language stating that the progressive discipline steps listed above were only triggered “after
meeting with employee” was interpreted to mean that an employee’s first instance of “excessive
absenteeism” was handled with a meeting between the Respondent and the employee, and it 15
was not until the next infraction that the “1st offense” level was reached. The practice under
Cooper Auto Handling was that any attendance offenses were expunged from the employee’s
record once 6 months had passed from the offense.
The Master Agreement also sets forth the following disciplinary steps for instances when 20
an employee is absent on a scheduled work day without providing the required notice.
1st offense – reprimand
2nd offense – 24-hour layoff
3rd offense – 3-day layoff25
4th offense – 1-week layoff
5th offense – subject to discharge.
The local rider applicable at the LAP contains provisions that excuse employee
absences under certain circumstances. One such provision states that “[a]bsences due to 30
medical condition are non-chargeable under attendance with documentation from a medical
doctor.” When the bargaining unit employees were working for Cooper Auto Handling, there
was no limit on the number of absences that would be excused if the employee presented a
doctor’s note showing medical inability to work. Doctors’ notes were accepted both when
employees were absent because of their own medical condition and when they were absent 35
because of the medical condition of a family member.
Policy under Respondent: When the Respondent took over the bargaining unit work in
early 2012, management did not initially enforce any attendance policy at all. In general,
employees were not held accountable for absences. Subsequently, excessive absenteeism 40
became a problem for the Respondent at the LAP. In July or early August 2012, Wilson
consulted with senior officials of the Respondent about this problem, and the Respondent
decided that it would implement the attendance policy set forth in the agreement between Ford
and the UAW rather than use the Teamsters attendance policy. Wilson allowed employees “a
couple weeks of grace period before . . . start[ing] to track” their absences under the new 45
attendance system.
JD–02–14
8
The new policy was not provided to employees or posted at the facility.6 Miller, was
assigned to oversee the attendance program beginning in August, but even he had trouble
obtaining a copy of the written policy or information regarding its precise terms. According to
Miller, the practice was that employees who arrived late or left early were assessed half a point.
Those who were absent for a full day were assessed one point if they gave proper notice, and 5
two points if they did not give such notice (no-call/no-show). Employees received a verbal
warning when they reached a total three attendance points, a written warning at four points, a
suspension at seven points, and were terminated at eight points. Miller recorded the employees’
attendance and attendance-related discipline in a computer system. That system summarizes
each employee’s attendance record in a document known as the employee’s “attendance 10
matrix.”
Under the attendance policy implemented by the Respondent, employees can have their
absences excused (and attendance points nullified) for a number of reasons. However, there is
conflicting evidence regarding how those exceptions work in practice. The record is clear that an 15
employee can seek to have a number of absences excused, without the assessment of points,
by presenting a doctor’s note showing that he or she was medically unable to work during the
period in question. Miller testified that an employee has the right to three excused absences

6
There was conflicting testimony on the question of whether the Respondent provided the new
attendance policy to the unit employees. Wilson testified that after the decision was made to implement
the new attendance policy, the Respondent began to meet with groups of unit employees to present the
policy to them and “within a week’s time was able to get through everybody.” He also stated that the
policy was posted next to the time clock that employees were required to use. Supervisor Kitchen stated
that in June 2012 she personally posted the policy and did so not only at the time clock, but at numerous
other locations at the facility. Kitchen also testified that Murphy and Stein had signed to acknowledge
receipt of the attendance policy during their initial orientation. These accounts were contradicted by Miller,
who stated that the new attendance policy was never posted at the facility and that even he had difficulty
obtaining a copy of it. Miller stated that he was forced to resort to “mining” conversations with the LAP’s
office manager for information regarding the terms of the attendance policy. According to Miller, there
was not even a single copy of the policy at the building used by the unit employees until he received an
email copy, printed it out, and placed the printed copy in a binder. Murphy and Stein both testified that the
new attendance policy was not given to them and that they never saw it posted. Stein asked supervisor
Dawson to provide her with a copy of the attendance policy, but Dawson failed to do so. Murphy testified
that she did not attend any meeting at which the Respondent presented the new policy to its full-time
employees.
After considering the record, I conclude that the new attendance policy was not presented to
employees in any systematic fashion and that Murphy and Stein did not receive the policy in advance of
the ostensibly attendance-based discipline that they were subjected to in December 2012 and January
2013. Based on the witnesses’ demeanor and testimony, and the record as a whole, I consider Kitchen’s
testimony less credible than that of Miller, Murphy and Stein on this subject. I note that Kitchen went
beyond even Wilson’s claims by stating that the policy was posted not only at the time clock, but at
numerous other locations, and also by stating that Stein and Murphy signed forms acknowledging receipt
of the attendance policy during their initial orientations. It is clear that Kitchen’s testimony was inaccurate
to the extent that she claimed that Murphy and Stein signed to acknowledge receipt of the attendance
policy during their orientation in April, since the Respondent did not even select that policy until the
following July or August. Moreover, neither Murphy’s nor Stein’s personnel files contain any form in which
they acknowledge receipt of the attendance policy. In addition, I note that the Respondent did not
present the testimony of a single unit employee – either UAW-affiliated or Teamster affiliated – to
corroborate the claim that the new attendance policy was posted in the workplace and explained to unit
employees during group meetings. On the other hand Murphy’s and Stein’s testimony that the policy was
not provided to employees was corroborated by Miller, a former supervisor.
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9
based on the submission of appropriate doctors’ notes, and that the Respondent may, in its
discretion, excuse medical absences in excess of that number. However, when Wilson
discussed attendance with Murphy and Stein on December 21, he told them that the
Respondent would only excuse two periods of absence per year based on the submission of a
doctor’s note. Yet another version of the rule is described in the written attendance provision in 5
the UAW contract with Ford. That provision states that “Employees may appeal four times in a
rolling twelve month period by providing evidence of inability to work.” Respondent’s Exhibit
Number (R Exh.) 5 at Page 35 (emphasis added). Based on the evidence, I credit the testimony
of Miller on the issue of how the attendance policy was actually enforced, since he was the
official who oversaw the administration of the attendance discipline policy and the entry of points 10
and attendance/absence events into the attendance system during most of the time period
addressed at trial.7 I find that, as stated by Miller, the Respondent’s practice during the relevant
timeframe was to automatically excuse an employee’s first three medical absences if the
employee presented medical documentation showing an inability to work during the time in
question, and that additional medically-necessitated absences were not excused except at the 15
discretion of supervisors and managers. The record indicates that it was not uncommon for the
Respondent to exercise its discretion to excuse medical absences in excess of three. For
example, the attendance matrix for Phillip Profumo, who was not a Teamsters-affiliated
employee, shows that he had a total of seven medical appeals granted between July 24, 2012,
and February 7, 2013. The attendance matrix for Bradford Thompson, also not a Teamsters-20
affiliated employee, shows that he had absences excused for medical reasons on four separate
occasions between September 13, 2012 and May 8, 2013. Where the employee was not
excused entirely for a multi-day medical absence, the Respondent would still assess only one
point if the absence resulted from a single illness or medical incapacity.
25
The testimony of Miller, as well as of Murphy and Stein, indicated that both Miller and the
employees’ direct supervisors could excuse an employee’s absence, without the assessment of
points, based on the submission of medical evidence of inability to work. Wilson contradicted
this, testifying that an employee could not simply submit evidence of medical inability to work,
but had to “appeal” the attendance violation. I reject Wilson’s testimony on this point and credit 30
the testimonies of Miller, Murphy and Stein. Neither Wilson, nor any other witness, identified
anything specific beyond the submission of the doctor’s note that was required to initiate an
appeal of attendance points. The evidence did not show that an appeal form of some kind was
required or that employees routinely took any specific action (beyond the submission of medical
documentation) to initiate an appeal. To the contrary, the attendance provision in the Ford-UAW35
contract provides that “Employees may appeal . . . by providing evidence of the inability to
work,” (emphasis added) which supports the testimony indicating that the submission of the
medical evidence, on its own, institutes the appeal. The record does not show that
management is bound by any fixed standards when deciding whether to entertain appeals in
excess of three.40
Wilson stated that only himself and service managers were able to grant an appeal to
reduce attendance points or discipline. Miller’s testimony was to the contrary. He stated that the
direct supervisors of an employee could grant the employee’s request to have his or her
attendance points or discipline reduced based on the submission of a medical note. I consider 45
Wilson’s testimony less reliable than that of Miller on this score since Miller actually made the
attendance system entries adding or removing points and noting attendance events. Wilson, on

7
The Respondent discharged Miller in December 2012, but the reasons for his discharge were
unrelated to his performance administering the attendance policy.
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10
the other hand, conceded that he did not control the entry of information into the employee’s
attendance records and was not even aware of attendance points or discipline that had been
entered for specific employees until the discipline reached the level of suspension or
termination. Even then, Wilson based his decision solely on review of the attendance matrices
that were prepared by Miller or others. I find that during the relevant time period, an employee 5
could appeal the imposition of attendance points or discipline simply by providing a medical note
to his or her direct supervisor, or to an official higher in the chain of command. The same
official to whom the medical note was presented could decide the appeal.
The record also shows that there are other absences for which the Respondent does not 10
assess points. For example, an employee can call the Respondent on the day of an absence
and state that he or she is using a vacation day. As long as the employee has accrued the
necessary vacation time, a point will not be assessed. Apart from normal vacation days,
employees are granted two “emergency vacation” days every 12 months that they can invoke
on the day of an absence to avoid the assessment of points. In addition, employees accrue a 15
“banked holiday” if the Respondent requires them to work on holiday provided by the contract.
An employee has the right to use a banked holiday to excuse an absence and avoid the
assessment of points. The Respondent also excuses, without the imposition of points, an
employee’s absence for funeral leave and an employee’s prearranged absence for medical
appointments, childcare issues, and court appearances. These excuses can be approved by 20
direct supervisors, and also various general supervisors and managers without bringing the
matter to a superior’s attention. The evidence also showed that the Respondent excused the
absences of Phillip Profumo, a non-Teamsters employee, for days that he was ostensibly on
vacation even though it was later discovered the he lacked accrued vacation time to cover those
days.25
Miller also described the procedure he followed when assessing discipline. He stated
that he would meet with the employees when they reached a point total for which discipline was
indicated. If the employee was affiliated with the UAW, Miller would include Sharita Blackmon, a
UAW steward, at the meeting. It was not unusual for Blackmon to convince Miller to reduce an 30
employee’s point total and waive or modify the proposed discipline. In some instances
Blackmon
did this by arguing that the action was not in conformity with applicable company procedures
and in others she simply negotiated a more favorable outcome. The attendance matrices show
that a number of non-Teamsters employees significantly benefited from these negotiations.35
Bradford Thompson had attendance points negotiated away at least five times between October
5, 2012, and March 1, 2013. Another example involved Tyler Forman, a non-Teamsters
employee on whose behalf the UAW negotiated away attendance points for absences on
August 14 and December 29, 2012. Teamsters-affiliated employees did not receive the benefit
of such representation with respect to discipline because UAW steward Blackmon declined to 40
represent them, and the Respondent would not permit the participation of a Teamsters
representative.
D. DISCIPLINARY MEETINGS WITH45
MURPHY AND STEIN ON DECEMBER 21
The General Counsel’s allegations in the case include that the Respondent
discriminated against Murphy and Stein on December 21, 2012, when it presented them with
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11
discipline based on attendance and refusal to perform work, and on January 4, 2013, when it
terminated them based on attendance. I find that the pre-December 2012 evidence regarding
the treatment of Teamsters-affiliated and UAW-affiliated employees does not show any
discrimination during that period that is relevant to the question of whether the complaint
allegations were proven with respect to the December 21 discipline and January 4 discharge of 5
Murphy and Stein.8 As noted above, the Respondent did not meaningfully apply any
attendance restrictions at all to the unit employees prior to July 2012. In July or early August,
the Respondent began enforcing attendance rules, and from that time until early December
2012, Miller was the individual who administered the attendance policy. Miller gave testimony
generally favorable to the General Counsel, and is a witness on whose credibility the General 10
Counsel’s case depends, but he denied that during the period he was administering the
attendance policy he ever treated Murphy and Stein, or other Teamsters-affiliated employees,
more harshly because of their union affiliation. I considered the evidence that Miller sometimes
gave favorable treatment to one or more employees who were friends of his, but that evidence
does not rebut Miller’s testimony that his actions were not based on the union affiliation of the 15
employees. I also considered evidence suggesting that Wilson encouraged Miller to treat
Teamsters-affiliated employees more harshly.9 Nevertheless, Miller credibly testified that during
his period overseeing the attendance program he did not base decisions on union affiliation and
the General Counsel has not offered a persuasive rationale for discrediting that testimony, while
crediting the other portions of his testimony on which the General Counsel relies.20
By the time Miller stopped overseeing the Respondent’s attendance policy in early
December 2012, Murphy and Stein had each accumulated a number of attendance points.
Murphy had 5.5 points and Stein had 6.5 points. During the weeks leading up to Murphy’s and
Stein’s discharges, each was charged with multiple additional absences. Murphy was charged 25
with one point for an absence on December 20. This is curious because December 20 was one
of Murphy’s scheduled days off. Wilson testified that he added December 20 to Murphy’s
schedule. However, the evidence does not show that the Respondent informed Murphy of the
schedule change in time for her to appear for work on December 20. According to Wilson,
employees were notified of the change in schedules in late December by way of a notice posted 30
at the facility on about December 20 or 21. However, Wilson was unable to locate a copy of the
posting and did not explain how he expected Murphy to know that she was scheduled to work
on December 20 when the notice setting forth the added days was not posted until December
20 at the earliest. Nevertheless, the Respondent assessed an attendance point against Murphy
for her absence on that day, bringing her total to 6.5. The same is true for Stein. Stein was 35
absent on December 20, a scheduled day off for her under the regular schedule. Moreover,
Stein provided the Respondent with medical documentation stating that her 11-year old son had
been seen at a medical facility on December 20 and could not return to school for 48 hours.

8
The complaint does not allege that any of the attendance violations, or points assessed, against
Murphy and Stein prior to December 2012 were violations of Section 8(a)(1), (3) or (4) of the Act.
9
As discussed above, Wilson told Miller that the Respondent was at “war” against the Teamsters and
was at the facility to “uproot” them. In addition, the evidence showed that, at some point in October 2012,
Wilson told Miller that the Respondent had to “get rid” of their “problems.” Miller believed that by
“problems,” Wilson meant the Teamsters-affiliated employees, but at trial Miller conceded that it was
possible that Wilson was actually referring to employees with attendance problems. In addition, I
considered that subsequent to the close of the hearing before Judge Rosenstein, Wilson told Miller that
he “didn’t have to dance around” discipline for the Teamsters employees anymore and could write them
up for anything they did wrong.
JD–02–14
12
Nevertheless the Respondent assessed an attendance point against Stein for her absence on
December 20, bringing her total to 7.5.
On December 21, 2012, supervisor Dawson met with Murphy, Stein, and Rhodes.10
Dawson told Murphy and Stein that they would no longer be assigned to non-loading work5
before sunrise, but would have to load rail cars during their entire shift. She presented them
each with a disciplinary action form stating that they were being suspended for refusing to load
rail cars on December 19. The record shows that December 19 was a day when those
employees were neither working nor scheduled to work. Murphy pointed this out to Dawson,
and further stated that she had not refused to load rail cars. Murphy and Stein indicated to 10
Dawson that they needed union representation, but Dawson provided no representation to
them.
Later on December 21, Murphy and Stein were summoned to meet with Wilson. After
Stein arrived, but before Murphy did, Wilson stated that the write-ups were not coming from 15
Dawson or himself, but from “higher up.” When Murphy arrived, she requested union
representation, but Wilson responded that he just needed “to talk” to her. Wilson confirmed that,
as previously stated by Dawson, the employees were going to be required to load rail cars
during non-daylight hours from that day forward. Murphy reiterated her concerns about possible
injury, and Wilson responded by providing her with a headlamp and saying that he would “try to 20
work something out.” Then the employees brought up the suspension paperwork that Dawson
issued to them earlier, and explained to Wilson that they had not even been working on the date
of their supposed refusal to load rail cars. Wilson said that the write-up “was a mistake” and
they were not being suspended based on it.
25
Then Wilson told Murphy and Stein to “refrain from [making] threats of calling OSHA and
the NLRB” and not to make such statements to “supervision and, in general, in the office
building.” In the past, Murphy and Stein had made such statements in the presence of
managers, supervisors, administrative staff, and co-workers. Murphy answered, “I’ll stop calling
OSHA when you all stop being unsafe.” Wilson responded “Well, I need for you all to stop doing 30
that.” Following this admonition, Wilson continued the meeting by presenting Murphy and Stein
with disciplinary action forms regarding their attendance, and stating that they should be
suspended because of their absences. Murphy and Stein objected to these disciplinary actions.
One or both told Wilson that they had submitted doctors’ notes showing an inability to work on
some of the days in question. Wilson stated that the Respondent was no longer accepting 35
doctors’ notes. Then Wilson revised his statement, and stated that employees could only use
two doctors’ notes per year to appeal attendance infractions. Stein responded that this was the

10
December 21 was the same day that Judge Rosenstein issued his decision finding that, inter alia,
the Respondent was a successor to Cooper Auto Handling, had violated Section 8(a)(5) of the Act by
refusing to recognize and bargain with Teamsters Local 89, and had discriminated in hiring against
individuals affiliated with Teamsters Local 89. The evidence did not show, however, that the Respondent
was aware of that decision on December 21 when Dawson, and later Wilson, met with Stein and Murphy.
The evidence shows that on December 28, the office of Erwin Gebhardt, the Respondent’s director of
labor relations, received a letter from Teamsters Local 89, in which the Union’s president referenced
Judge Rosenstein’s decision and again demanded recognition. Gebhardt was present at his office on
December 28, but was uncertain if he saw the letter that day. Gebhardt believes that he was informed
about Judge Rosenstein’s decision on about December 29 or 30, 2012. It is clear that the Respondent’s
regional manager Bret Griffin knew about Judge Rosenstein’s decision by January 2, 2013, because on
that day he announced to employees that the Respondent was appealing the decision and that no
changes would be made in the meantime.
JD–02–14
13
first time she had ever heard of this limited “appeal” process. Wilson said to “consider [the
suspension] waived” “until we get it straightened out.” The record includes disciplinary
paperwork for Stein, which states that she was being suspended for reaching 7.5 attendance
points based on the absence occurring on December 20, 2012. A hand-written notation on that
mostly typed document states that the “date of suspension” is “waived,” but the document also5
states that the next attendance violation will result in termination, indicating that the attendance
point assessed for December 20 was not waived. Murphy’s and Stein’s attendance matrices
also indicate that their attendance point totals continued to carry the attendance points
assessed for December 20.
10
E. TERMINATION OF MURPHY AND STEIN ON JANUARY 4, 2013
The Respondent did not require either Murphy or Stein to serve a suspension after the
December 21 disciplinary meeting with Wilson. However, within less than a week of the
December 21 meeting, the Respondent had assessed sufficient additional attendance points 15
against Murphy and Stein to put each at the level required for termination. The evidence shows
that Murphy was absent on December 22, a regularly scheduled work day, due to a medical
condition. She called to give the Respondent the required pre-shift notification that she would
be absent. She did not present the Respondent with a doctor’s note to excuse that absence,
but, as discussed above, a day earlier Wilson had told her that no additional doctor’s notes 20
would be accepted. The Respondent assessed a point, bringing Murphy’s total to 7.5, above
the 7-point threshold for which a suspension is indicated.
Murphy was not assigned to work on December 23 and had December 24 and 25 off,
along with most of the workforce, in observance of the Christmas holiday. Murphy’s regular 25
schedule did not call for her to work on December 26 or 27, however, the Respondent altered
employees’ work schedules so that Murphy’s crew was scheduled for those days. It is not clear
what the Respondent did to convey this schedule change to employees. Wilson testified that on
about December 20 or 21, the Respondent posted notice of modifications to the schedule, but
he did not state whether that notice included the change affecting Murphy on December 26 and 30
27, and he could not produce a copy of the notice. According to Stein, it was not until
December 24 that the Respondent made the change. Stein testified that on December 27 she
realized Murphy had not been at work on the day that the Respondent added December 26 and
27 to the crew’s work schedule and therefore would not know she was supposed to be at work
on those days. Stein called Murphy to inform her of the change. Murphy was unaware of the 35
change prior to receiving that call, and after receiving it attempted to contact the Respondent by
telephone. She did not reach a person, but was able to leave a voice message, which the
Respondent did not return. Murphy stated that she did not go to the LAP at that time since she
would be arriving after the start of her shift and, without prior arrangements, there would be no
shuttle to transport her from the employee parking lot to the work area at the LAP. The 40
evidence does not show that the schedule change was posted at the facility on any day that
Murphy was present at the LAP prior to December 27. Indeed, no official of the Respondent
claimed that they communicated to Murphy, or knew that someone else had communicated to
her, that she should come to work on December 20 or 27. Nor did they contradict Murphy’s
statement that, given the Respondent’s failure to respond to her call on December 27, Murphy 45
would have been unable to reach the work area that day. Nevertheless, the Respondent added
a point to Murphy’s attendance matrix for the December 27 absence, bringing her total to 8.5,
above the 8-point threshold required to terminate an employee. Although the Respondent’s
policy was to allow employees to use accrued vacation days to excuse absences and avoid the
JD–02–14
14
related points, and although Murphy had 40 hours of unused vacation at the time, the
Respondent did not apply the vacation time to reduce Murphy’s point total below the termination
threshold. Nor did the Respondent show that it ever informed Murphy that doing so was an
option for her.
5
In Stein’s case, the evidence showed that she was seen at a hospital emergency room
for pneumonia on December 26 and notified the Respondent about her medical situation. Stein
was at the hospital on December 26 and 27. The first day that Stein returned to work after her
hospital visit, she presented the Respondent with documentation from the hospital stating that
she had been seen there on December 26 and was not to return to work for two days. 10
Notwithstanding its receipt of this hospital note, the Respondent assessed an attendance point
against Stein for her absence on December 26, bringing her point total to 8.5 – above the level
necessary to justify terminating her. Stein had used only two of the three medical-based
appeals that she was entitled to under the Respondent’s attendance practices and at the time of
her discharge she had 40 hours of unused vacation time. The Respondent did not, however, 15
recognize Stein’s submission of the medical note as an “appeal,” apply her accrued vacation
time to excuse the absence, or otherwise apply its rules to excuse Stein’s absence. Nor does
the Respondent claim that it informed Stein that it was the Respondent’s practice to permit
employees to avoid attendance points under such circumstances.
20
On December 28, the President of Teamsters Local 89, renewed the Union’s demand for
recognition based, inter alia, on the decision issued by Judge Rosenstein. This was done in a
letter to Gebhardt, the Respondent’s director of labor relations. The letter was received in
Gebhardt’s office by facsimile transmission on December 28, a day that Gebhardt was present
at work. 25
On December 29, Wilson and Gebhardt communicated by email regarding the possible
termination of Stein. Wilson stated that Stein had not worked since December 21 and that he
would proceed with her termination unless instructed otherwise. In this email, Wilson referred to
Stein as “a special group employee,” a term that Wilson says referred to employees affiliated 30
with Teamsters Local 28. Gebhardt responded, but his response referred not only to the
possible termination of Stein, but to the termination of “employees.” He advised that if the
employees did not have “a legitimate doctor’s excuse that would only give them one point for
the entire absence period,” and if the Respondent had terminated everyone else who reached
eight points,” then when the employees returned Wilson should “immediately hold a disciplinary 35
meeting with their UAW rep present and explore the issue of the doctor’s note.” Gebhardt
continued “If no note exists, issue the discipline (suspension for that day) for reaching seven
points, and issue the discipline (termination, effective the following day) for reaching 8 points.”
On January 2, 2013, a day when Murphy and Stein were not assigned to work, they both 40
received calls from Kitchen inviting them to a non-mandatory meeting that day at the LAP. Stein
went to the meeting, which was attended by a total of 20 to 30 people. Murphy did not attend.
At the meeting, Griffin spoke to the employees regarding the recent decision by Judge
Rosenstein. Griffin told the employees that the “Teamsters had not won anything and that
nothing was going to change.” He stated that the Respondent was going to appeal as far as it45
could and look for a “more employer friendly judge next time.”
The Respondent continued to assign work to both Murphy and Stein after it assessed
eight attendance points against them on December 27 and 26 respectively. Both completed
JD–02–14
15
most of their shift on January 4 before a supervisor took them to meet with Wilson. When they
arrived at the meeting, Murphy and Stein both asked Wilson for union representation. Wilson
asked who they wanted to represent them, and Murphy responded “can I have Avral?” –
meaning Teamsters official Avral Thompson. Wilson stated that Thompson could not
participate, but that once the employees left the facility they could have “all the conversations 5
with Avral that [they] wanted.” At trial Wilson testified that labor relations director Gebhardt had
instructed him not to allow Thompson to serve as union representative for Murphy and Stein.
Wilson did not offer the employees an alternative union representative, despite Gebhardt’s
December 29 email directing Wilson to include a “UAW rep” at the meeting. Then, Wilson told
the employees that they were being terminated and presented them with termination paperwork 10
and copies of their attendance matrices. Murphy and Stein attempted to question the basis for
the termination decision, but Wilson refused to discuss the matter with them. On January 4,
Wilson informed Gebhardt by email that he had terminated Murphy and Stein.11
15
D. COMPLAINT ALLEGATIONS
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act on
December 21, 2012, when Wilson threatened employees with unspecified reprisals for making
complaints to the NLRB or engaging in other protected concerted activities.12 The complaint 20
also alleges that the Respondent discriminated in violation Section 8(a)(1), (3) and (4) of the
Act: on December 21, 2012, when it issued disciplinary actions to Murphy and Stein because
they engaged in concerted protected activities, joined and assisted Teamsters Local 89, and
testified in a prior Board hearing; and on January 4, 2013, when it discharged Murphy and Stein
for the same discriminatory reasons. In addition, the complaint alleges that the Respondent 25
violated Section 8(a)(5) and (1) of the Act since by beginning to require employees to load rail

11
The parties in this case introduced a number of determinations by Kentucky state agencies that
concern the terminations of Murphy and Stein. The Respondent introduced decisions from the Kentucky
Labor Cabinet Department of Workplace Standards, dated August 5, 2013, which stated that the
Cabinet’s investigation had not substantiated allegations that the employer terminated Murphy and Stein
in retaliation for the complaints that they filed with the Kentucky Labor Cabinet. The decisions note that
the employees had a right to appeal within 15 days, but the record does not disclose whether either
Murphy or Stein has filed an appeal. The General Counsel introduced a decision by the Kentucky
Division of Unemployment Insurance, mailed on January 28, 2013, which found that Murphy was entitled
to unemployment compensation because the investigation did not show that Murphy had unsatisfactory
attendance, and showed that the “discharge was for reasons other than misconduct connected with the
work.” The General Counsel also introduced an appeals decision by the Division of Unemployment
Insurance, mailed on March 20, 2013, which determined that Stein was entitled to unemployment
compensation because the discharge was “for reasons other than misconduct connected with the work.”
The record does not disclose if appeals have been filed regarding these unemployment insurance
determinations.
The Board has held that decisions in state unemployment compensation proceedings are admissible
in unfair labor practices hearings, but are not given controlling weight. See Cardiovascular Consultants of
Nevada, 323 NLRB 67, 67 fn. 1 (1997); and Whitesville Mill Service Co., 307 NLRB 937, 945 fn. 6 (1992).
In this instance I do not find the state agency decisions presented by the parties to be persuasive. The
decisions do not show that they were reached after hearings at which the parties had a full and fair
opportunity to present evidence, nor do they reference the standards of proof applied, the specific
evidence relied on, or the nature of any credibility determinations that may have been made.
12
At the start of the trial, before any evidence had been taken, I granted the General Counsel’s
motion to amend the complaint to include this allegation.
JD–02–14
16
cars in the dark and subjecting them to newly implemented attendance and disciplinary policies
without providing Teamsters Local 89 with notice and an opportunity to bargain.
IV. ANALYSIS
5
A. SECTION 8(A)(1) AND WILSON’S SEPTEMBER 21 THREATENING STATEMENT
The complaint alleges that the Respondent violated Section 8(a)(1), when, on December
21, 2012, Wilson “threatened employees with unspecified reprisals for making complaints to the
National Labor Relations Board and engaging in other protected concerted activities.” Section 10
8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section 7.” As Wilson himself
admitted, on December 21, he warned Murphy and Stein to “refrain from [making] threats of
calling OSHA and the NLRB” and not to make such statements to supervisors or others in the
office building. When Murphy answered that she would stop when the Respondent stopped 15
being unsafe, Wilson said “I need for you all to stop doing that.”
The General Counsel argues that these statements by Wilson establish the complaint
allegation that the Respondent violated Section 8(a)(1) by threatening employees with
unspecified reprisals for making complaints to the NLRB or engaging in other protected 20
concerted activities. It is not clear to me that Wilson’s statements in the exchange recounted
above are reasonably understood as a threat based on Murphy’s and Stein’s complaining to the
NLRB. However, I do find that by those statements Wilson threatened Murphy and Stein for
“engaging in other protected concerted activities” – specifically, for raising group complaints with
the Respondent by expressing a willingness to contact the NLRB or OSHA about those 25
complaints. The Board, with court approval, has concluded that an employee engages in
protected activity when he or she “bring[s] truly group complaints to the attention of
management.” Meyers Industries, 281 NLRB 882, 887 (1986), affd. 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988). Activities that employees engage in “for the purpose
of pressing employee complaints about working conditions” are themselves protected. Ohio 30
Masonic Home, 290 NLRB 1011, 1013 (1988), enfd. 892 F.2d 449 (6th Cir. 1989). On
December 21, Murphy made clear to Wilson that the statements about contacting federal
agencies were in furtherance of complaints about plant safety and Wilson responded by
repeating his warning that Murphy and Stein had to stop making such statements. These safety
complaints, and in particular the complaints about the safety of loading rail cars during non-35
daylight hours, were concerted in that they represented the concerns of, at a minimum,
employees Murphy, Stein, and Rhodes. Meyers Industries, 281 NLRB at 885 (employee’s
activity is concerted when it is engaged in, with, or on the authority of, other employees).
Wilson’s December 21 statements to Murphy and Stein about those concerted activities were
particularly coercive because Wilson made them in the context of a meeting at which he raised 40
the possibility of taking serious disciplinary action against Murphy and Stein. I conclude that the
Respondent coercively threatened employees about protected concerted activities on
December 21 when Wilson warned Murphy and Stein not to continue pressing employee
complaints by telling the Respondent that they would bring such complaints to federal agencies.
45
The Respondent argues that Murphy’s and Stein’s behavior deprived their complaints of
any protection that may have existed. Brief of Respondent at Pages 14 to 15, citing Trus Joist
MacMillian, 341 NLRB 369 (2004); Piper Realty Corp., 313 NLRB 1289 (1994); Media General
JD–02–14
17
Operations, Inc. v. NLRB, 394 F.3d 207 (4th Cir. 2005); J. P. Stevens v. NLRB, 547 F.2d 792
(4th Cir. 1976). I disagree. The Board has made clear that protected conduct does not lose that
protection unless it is sufficiently egregious or opprobrious. Random Acquisitions, LLC, 357
NLRB No. 32, slip op. at 14 (2011); Nor-Cal Beverage Co., 330 NLRB 610, 611 fn.5 (2000).
Under this standard, while an employee may forfeit the Act’s protection by threatening others 5
with, for example, physical harm, the employee does not forfeit protection by making statements
that simply cause other to be annoyed or uncomfortable. Chartwells, Compass Group, USA,
342 NLRB 1155, 1157 (2004); Alpine Log Homes, 335 NLRB 885, 894 (2001), RCN Corp., 333
NLRB 295, 300 (2001). The Respondent did not show any conduct that begins to approach
being so egregious or opprobrious as to strip the complaints made by Murphy and Stein of 10
protected status. The evidence did not show that Murphy or Stein threatened anyone with
physical harm or used abusive or otherwise inappropriate language. Nor did the Respondent
show that they had made their complaints in a location that they were prohibited from entering
or in a manner that was unduly disruptive or harassing. Certainly Murphy’s and Stein’s
statements that they were prepared to use the means provided under federal law to press 15
employees’ complaints does not, as the Respondent seems to believe, strip their complaints of
the protection of federal law. Cf. Ohio Masonic Home, supra. In addition, the Board has held
that when an employee’s actions come in response to unfair labor practices by the employer,
that fact weighs in favor of finding that the employee retained the Act’s protection. Atlantic Steel
Co., 245 NLRB 814, 816 (1979). In this case, Murphy’s and Stein’s complaints to the 20
Respondent were a reaction, at least in large part, to the new rail car loading rule and, as
discussed below, the implementation of that rule was an unfair labor practice.
At any rate, when Wilson warned Murphy and Stein to stop talking about bringing
workplace complaints to the attention of government agencies, he did not tell them that they 25
only had to stop if such statements were accompanied by egregious or opprobrious behavior.
Therefore, even assuming that Murphy or Stein forfeited the Act’s protection with respect to one
or more of their prior complaints to the Respondent, that would not change the fact that Wilson
violated the Act by coercively warning them about pressing employees’ workplace complaints in
the future.30
For the reasons discussed above, I find that the Respondent coercively threatened
employees in violation of Section 8(a)(1) when, on December 21, 2012, Wilson warned
Murphy and Stein not to tell supervisors or others at the office that they were going to bring
employees’ workplace complaints to the attention of the NLRB or OSHA.35
B. SECTION 8(A)(1), (3) AND (4): DISCIPLINE AND DISCHARGE OF MURPHY AND STEIN
The complaint alleges that the Respondent discriminated in violation of Section 8(a)(1),
(3) and (4), when it issued disciplinary actions to Murphy and Stein on December 21, 2013, and
terminated them on January 4, 2013. Under the Board’s Wright Line decision, in cases alleging 40
discrimination in violation of Section 8(a)(3), the General Counsel bears the initial burden of
showing that the Respondent's decision to take adverse action against an employee was
motivated, at least in part, by antiunion considerations. 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied, 455 U.S. (1982), approved in NLRB v. Transportation Corp.,
462 U.S. 393 (1983). The General Counsel may meet this burden by showing that: (1) the 45
employee engaged in union or other protected activity, (2) the employer knew of such activities,
and (3) the employer harbored animosity towards the Union or other protected activity. ADB
Utility Contractors, 353 NLRB 166, 166-167 (2008), enf. denied on other grounds, 383 Fed.
JD–02–14
18
Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270, 1274-75 (2007); Senior
Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB
355, 356 (1999). Animus may be inferred from the record as a whole, including timing and
disparate treatment. See, Camaco Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 4 (2011). If
the General Counsel establishes discriminatory motive, the burden shifts to the employer to 5
demonstrate that it would have taken the same action absent the protected conduct. ADB
Utility, supra; Intermet Stevensville, supra; Senior Citizens, supra. The Board also applies the
Wright Line analysis to allegations that an employer violated Section 8(a)(1) by discriminating
against an employee for engaging in concerted protected activity, American Red Cross
Missouri-Illinois Blood Services Region, 347 NLRB 347, 349 (2006), and to allegations that an 10
employer violated Section 8(a)(4) by discriminating against “an employee because he has filed
charges or given testimony” in a Board proceeding, Verizon, 350 NLRB 542, 546-547 (2007),
American Gardens Mgmt. Co., 338 NLRB 644, 644-645 (2001), Gary Enterprises, 300 NLRB
1111, 1113 (1990), enfd. 958 F.2d 368 (4th Cir. 1992) (Table).
15
The General Counsel has established a prima facie case that the discipline and
termination of Murphy and Stein were discriminatory in violation of Section 8(a)(1), 8(a)(3) and
8(a)(4). The first two elements of the prima facie case are met since Murphy and Stein both
engaged in activities protected under Section 7 and Section 8(a)(1), (3) and (4) of the Act and
the Respondent was aware of those activities. Murphy and Stein engaged in union activity by, 20
inter alia, continuing their affiliation with Teamsters Local 89, requesting representation by the
vice-president of Teamsters Local 89 during meetings with the Respondent,13 and frequently
wearing clothing at work that bore messages referencing their affiliation with the Teamsters. The
Respondent has stipulated that it was aware of Murphy’s and Stein’s affiliation with Teamsters
Local 89. 25
Murphy and Stein also engaged in protected concerted activity by bringing group safety
complaints about loading rail cars in the dark to Wilson and other company officials, see Meyers
Industries, supra., and by bringing those safety complaints to the attention of the Kentucky
Division of Occupational Safety and Health Compliance, see Salisbury Hotel, 283 NLRB 685, 30
687 (1987) (employees engage in protected concerted activity when they complain to the
government about group concerns). Wilson testified that he believed that Murphy and Stein
were likely involved with the safety complaint before the Kentucky agency, and the Respondent
eventually provided backpay to Murphy and Stein as a result of a no-fault settlement of that
complaint. Supervisor Calhoun also apparently made the connection between Murphy and 35
Stein and the state agency proceeding because he summarily reassigned them to another part
of the facility during the state investigator’s on-site inspection of the safety complaint. With
respect to the 8(a)(4) allegation, there is no dispute that Murphy and Stein were witnesses for
the General Counsel at the prior ULP trial before Judge Rosenstein and that the Respondent
was aware of that testimony.40
The third element of the prima facie case is met because the evidence shows that the
Respondent bore animus towards the Union and the protected activity discussed above. The
Respondent’s managers and supervisors have expressed animosity towards Teamsters Local

13
The General Counsel does not allege, and I do not find, that Murphy and Stein were entitled, under
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) or any other authority, to have a representative from
Teamsters Local 89 present at the meetings with management in December 2012 and January 2013.
However, by requesting such representation Murphy and Stein were expressing their continued support
for Teamsters Local 89.
JD–02–14
19
89 in no uncertain terms. During a managers’ meeting at the LAP in early to mid 2012, Wilson
stated that the Respondent was at “war against the Teamsters” and was “in this facility to uproot
them.” Wilson was the same management official who later disciplined and terminated Murphy
and Stein. Some months after the managers meeting, when Wilson took those actions against
Murphy and Stein, the “war against the Teamsters” was ongoing in that the Respondent was 5
continuing to refuse to recognize Teamsters Local 89 and Teamsters officials were continuing to
demand recognition. In addition, during the period when the Respondent was staffing up the
operation, another manager – Barrett – told a supervisor who was engaged in hiring employees
that the Respondent “wanted to keep the majority of the employees UAW.” One supervisor,
Frank, expressed the view that any problems occurring with vehicles in the LAP yard should be 10
attributed to intentional malfeasance by the Teamsters-affiliated employees. During one period
the Respondent directed employees who it knew were Teamsters-affiliated to begin wearing
“Voith UAW” clothing. This evidence leaves no doubt that the Respondent’s animosity towards
the Teamsters was pervasive and that it was expressed by, among others, the very official who
took the allegedly discriminatory action against Murphy and Stein. 15
The evidence also shows that the Respondent bore hostility towards Murphy’s and
Stein’s protected efforts to oppose the new requirement to load rail cars in the dark. When
Murphy first objected that the new requirement was unsafe, supervisor Calhoun threatened to
terminate her. Later Wilson coercively warned Murphy and Stein not to continue saying that they20
would bring the Respondent’s conduct to the attention of the NLRB and OSHA. The evidence
shows that this hostility continued until, and was connected to, the Respondent’s disciplinary
actions against Murphy and Stein. It was at the same December 21 meeting that Wilson
discussed the disciplinary notices and also warned Murphy and Stein not to tell supervisors or
others that they would contact the NLRB and OSHA.25
The record also demonstrates Wilson’s animosity towards cooperation with the Board.
When Wilson discovered that Miller was present at the hearing before Judge Rosenstein, he
sent a text message to Griffin, the regional manager for vehicle processing, in which he stated
that “Fukin Miller is here to testify on behalf of the Teamsters.” This evidence is sufficient in my 30
view to show Wilson’s animosity towards individuals who, like Miller, Murphy and Stein,
participate in the Board’s processes in a manner unfavorable to the Respondent. Additional
evidence of animus is provided by Wilson’s statements to Murphy and Stein that they had to
stop telling supervisors that they would bring complaints about the Respondent’s conduct to the
Board. Those statements suggest that Wilson viewed it as improper for an employee to invoke 35
the Board’s processes.14
Since the General Counsel has made the required initial showing under Wright Line, the
burden shifts to the Respondent to show that it would have taken the same action even absent
Murphy’s and Stein’s protected activity. The Respondent cannot meet this burden merely by 40
showing that employee misconduct also factored into the Respondent’s decision. Rather, the
Respondent’s burden is to show that the misconduct would have resulted in the same discipline
even in the absence of the employee’s union and protected activities. Monroe Manufacturing,

14
The General Counsel made a motion requesting that, in determining whether animus is shown, I
rely on the findings made by Judge Rosenstein in the prior litigation, including his finding that the
Respondent discriminated in violation of the Act by denying employment to individuals because of their
affiliation with the Teamsters. The Respondent opposed that motion. Because I find that ample evidence
establishing improper animus was introduced at the trial before me, I find it unnecessary to rule on the
General Counsel’s request that I rely on the animus finding in Judge Rosenstein’s decision.
JD–02–14
20
323 NLRB 24, 27 (1997). In an effort to meet its burden with respect to the December 21
discipline, the Respondent relies on evidence about its attendance policy and the attendance-
based discipline it imposed on other employees who were not affiliated with the Teamsters and
did not engage in protected activities. Putting aside for the moment that on December 21 the
Respondent presented discipline to Murphy and Stein based not only on attendance, but also 5
on the patently false assertion that they had refused to load rail cars on December 19, I find that
the Respondent has failed to demonstrate that the regular application of its attendance policies
would have caused it to discipline Murphy and Stein absent its discriminatory motivation. When
Wilson presented the attendance-based discipline on December 21,15 the employees responded
by objecting that medical notes justifying some of the absences upon which the discipline was 10
based had been presented to the Respondent. Wilson replied to this objection by declaring first
that doctor’s notes were no longer being accepted, and then that Murphy and Stein could only
use two doctor’s notes per year to excuse absences. This is a different, and stricter, standard
than the three-per-year automatic note acceptance rule that the Respondent had been applying
to others. Moreover, Wilson’s statement ruled-out the possibility that Murphy and Stein could, 15
like other employees, present medical notes in excess of three and have them fairly considered.
There was evidence that the Respondent had essentially unlimited discretion to grant such
requests and had accepted in excess of two doctor’s notes to excuse the absences of other
employees.
20
The Respondent’s effort to demonstrate that it would have disciplined Murphy and Stein
for attendance even absent their protected activity fails for another reason. That discipline was
based on attendance infractions assessed for December 20 that the record does not show were
consistent with its treatment of other employees. December 20 was not a regularly scheduled
workday for Murphy or Stein, and the Respondent has not shown that it gave either employee 25
advance notice that the day had been added to their schedules. The record does not show that
the Respondent assessed attendance violations against its non-Teamster employees for
absences on days when it had not informed them they were expected at work, and indeed it is
implausible that the Respondent would do so. To the contrary, the Respondent has
demonstrated flexibility in dealing with absences that resulted from miscommunications. For 30
example, the Respondent forgave the absence of a non-Teamsters employee who purported to
take vacation at a time when that employee did not have available vacation time. Nor did the
Respondent show that it ever assessed points against non-Teamster employees, as it did
against Stein, for being absent on a day when the employee documented that he or she could
not work due to the illness of a dependent minor. To the contrary, the Respondent had in the 35
past liberally excused absences resulting from childcare issues. Under these circumstances,
the Respondent has failed to demonstrate that it would have assessed the December 20
attendance violations against Murphy and Stein absent their protected activities.
I also note that the Respondent provides no reasonable explanation for why, on 40
December 21, Dawson presented Murphy and Stein with disciplinary paperwork for purportedly
refusing to load rail cars on December 19, a date when they were neither at work nor expected
at work. Wilson’s testimony was essentially that the discipline was presented because the
Respondent had expected to direct Murphy and Stein to load rail cars in the dark on December
19 and expected (mistakenly as it turned out) that they would refuse such a direction. The fact 45
that Murphy and Stein were not directed to load rail cars in the dark on that day, and did not

15
Although Wilson deferred action on the attendance-based suspension he presented on December
21, he did carry through with the assessment of attendance points and relied on those points to justify the
subsequent terminations of Murphy and Stein.
JD–02–14
21
refuse to do so, then or at any time thereafter, should have been enough to stop the
Respondent from presenting that discipline. There was no evidence that the Respondent has
ever presented discipline to a non-Teamsters employee because management was expecting
that employee to engage in misconduct that the employee did not actually commit. Wilson’s
explanation for this discipline, far from demonstrating a basis for believing it would have been 5
presented absent Murphy’s and Stein’s protected activity, suggests that the Respondent was
singling out those employees.
The Respondent contends that discipline based on the employees’ purported refusal to
load rail cars cannot be the basis for finding an 8(a)(1) violation because, after Dawson issued 10
the discipline, Wilson told Murphy and Stein that the discipline had been presented erroneously
and that a suspension would not be imposed based on it. However, the record does not show
that Wilson told the two employees that the discipline would be expunged from their personnel
files and have no effect on their future employment. Nor did Wilson give Murphy or Stein
assurances that the Respondent would not discriminate on the basis of subsequent Section 7 15
activity. To the contrary, Wilson followed-up his discussion of the erroneous discipline by
asserting an alternative, but also improper, attendance-based justification for the discipline and
warning the employees not to engage in certain protected concerted activities. Under these
circumstances, I find that the Respondent failed to cure the violation created by its presentation
to Murphy and Stein of discipline based on a discriminatory and plainly fictitious basis. See 20
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).16
For the reasons discussed above, I find that the Respondent discriminated against
Murphy and Stein in violation of Section 8(a)(1), (3) and (4), when it presented them with
discipline on December 21, 2013.25
I also find that the Respondent has failed to meet its responsive burden with respect to
the decision to terminate Murphy and Stein on January 4, 2013. The Respondent attempts to
show that it would have terminated those employees for reaching eight attendance points even
if they had not engaged in protected activity. However, the Respondent relies on attendance 30
points assessed for the December 20 absences – points that, as discussed above, were
themselves discriminatorily imposed in violation of the Act. Without including those
discriminatorily assessed attendance points the 8-point threshold for termination was not
reached with respect to either employee. Even if the attendance points assessed for December
20 were not invalid, the Respondent still has not met its burden because to reach the 8 point 35
threshold it also relies on subsequently assessed points that it has failed to show it would have
assessed absent Murphy’s and Stein’s protected activity. Specifically, to reach the 8 point
threshold for Murphy, the Respondent relies on her absence from work on December 27 – a day
that Murphy was not regularly scheduled to work and which the Respondent has not shown it
told her was being added to her schedule. As noted above, the Respondent has not shown that 40
it assessed points against non-Teamsters employees for absences on days that they were not
regularly scheduled to work and were not informed they were expected at work.

16
Under Passavant, an employer may avoid liability for unlawful conduct in some circumstances by
repudiating the conduct. 237 NLRB at 138-139. To be effective, the repudiation must be: timely;
unambiguous; specific in nature to the coercive conduct; adequately publicized to the employees
involved; free from other proscribed illegal conduct; and accompanied by assurances that the employer
will not interfere with employees' Section 7 rights in the future. Id. The employer also must not engage in
proscribed conduct after the repudiation. Id.
JD–02–14
22
As for Stein, the Respondent reaches the 8-point threshold by counting the attendance
point it assessed for her absence December 26. The evidence showed, however, that Stein
was seen in a hospital emergency room that day for pneumonia, that she informed one of her
supervisors (Dawson) about the situation, and that, on her first day back at work, she presented
the Respondent with medical documentation of her inability to work at the time in question. The 5
evidence also shows that Stein had used only two of her three medical appeals. Under these
circumstances, the Respondent was facially required by its own attendance practices to excuse
Stein’s absence without the assessment of points. The Respondent attempts to defend its
failure to do so by arguing that Stein neglected to “appeal” the point assessed for that absence.
As discussed earlier, however, when an employee provides the Respondent with medical 10
documentation of inability to work, as Stein did here, that submission itself constitutes the
appeal. No additional actions were identified and shown to be necessary to create an appeal.
I find that the Respondent discriminated in violation of Section 8(a)(I), (3) and (4) when it
terminated Murphy and Stein on January 4, 2013. 15
C. SECTION 8(A)(5) AND (1): UNILATERAL CHANGES REGARDING POLICIES ON ATTENDANCE AND
LOADING RAIL CARS DURING NON-DAYLIGHT HOURS
In the prior decision, Judge Rosenstein found that the Respondent was the successor to
Cooper Auto Handling and was required to recognize and bargain with Teamsters Local 89 as 20
the exclusive collective bargaining representative of unit employees. I have adopted Judge
Rosenstein’s finds of fact and conclusions of law as they relate to those matters.
In the proceeding before me, the General Counsel alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally implementing changes to its attendance policy25
and unilaterally adopting a new requirement that employees load rail cars during non-daylight
hours. The Board has held that an employer violates Section 8(a)(5) and (1) when it unilaterally
changes the wages, hours, or other terms and conditions of employment of bargaining unit
employees, without first providing the collective-bargaining representative with notice and a
meaningful opportunity to bargain. NLRB v. Katz, 369 U.S. 736 (1962); Whitesell Corp., 357 30
NLRB No. 97, slip op. at 53 (2011); Ivy Steel & Wire, Inc., 346 NLRB 404, 419 (2006); Mercy
Hospital of Buffalo, 311 NLRB 869, 873-874 (1993); Associated Services for the Blind, 299
NLRB 1150, 1164-1165 (1990).
Turning first to the changes to the attendance policies, I find that the Respondent 35
violated Section 8(a)(5) and (1) by abandoning the attendance policies that were in place under
the Respondent’s predecessor – Cooper Auto Handling – and adopting a completely new and
different policy. To note only one of the many significant differences between the two, the prior
attendance policy placed no limit on the number of employee absences that the employer would
automatically excuse if the employee documented medical reasons for the absence, but the 40
Respondent’s new attendance policy limited that number to three. It is clear that attendance
policies are a mandatory subject of bargaining that an employer cannot change without giving
the employees’ bargaining representative notice and an opportunity to bargain. Virginia Mason
Hospital, 357 NLRB No. 53, slip op. at 4 (2011). The Respondent offers no viable argument for
escaping that obligation here, and there is no dispute that it made the changes without giving 45
Teamsters Local 89 notice and an opportunity to bargain.17

17
In its brief, the Respondent makes a detailed argument that Murphy and Stein would have been
JD–02–14
23
For the reasons discussed above, I find that the Respondent violated Section 8(a)(5)
and (1) by failing and refusing to recognize and bargain with Teamsters Local 89 as the
exclusive collective-bargaining representative of the bargaining unit and by unilaterally imposing
a new attendance policy.5
I also find that the Respondent violated its bargaining obligations by unilaterally imposing
a new requirement that employees load rail cars during non-daylight hours. The Respondent
does not dispute that it made this change without giving Teamsters Local 89 notice or an
opportunity to bargain, but contends that the change was not significant enough to give rise to a 10
bargaining obligation. I disagree. The Board has held that a change to working conditions
triggers the obligation to bargain if it is “material, substantial, and significant.” Crittenton
Hospital, 342 NLRB 686 (2004); Bath Iron Works Corp., 302 NLRB 898, 901 (1991). The
change is measured by the extent to which it departs from the existing terms and conditions
affecting employees. Crittenton Hospital, supra. The Board has frequently held that changes 15
which, like the one at issue here, concern work conditions relating to employee safety are
material, substantial and significant, and give rise to a bargaining obligation. See, e.g., Castle
Hill Health Care Center, 355 NLRB No. 196, slip op. 28 (2010) (“workplace safety is a
mandatory subject of bargaining”); Public Service Co. of Oklahoma, 334 NLRB 487, 489 (2001),
enfd. 318 F.3d 1173 (10th Cir. 2003) (“work and safety rules” are a mandatory subject of 20
bargaining); AK Steel Corp., 324 NLRB 173, 181 (1997) (“equipment and work rules related to
job safety” are mandatory subjects of bargaining); American National Can Co., 293 NLRB 901,
904 (1989), enfd. 924 F.2d 518 (4th Cir. 1991) (health and safety matters are mandatory
subjects of bargaining); J.P. Stevens & Co., 239 NLRB 738, 742-743 fn. 6 (1978), enfd. in
relevant part 623 F.2d 322 (4th Cir. 1980), cert. denied 449 U.S. 1077 (1981) (substitution of 25
heavier protective equipment for unit employees was a mandatory subject of bargaining); Gulf
Power Co., 156 NLRB 622 (1966), enfd. 384 F.2d 822 (5th Cir. 1967) (workplace safety
conditions are a mandatory subject of bargaining).
I find that the Respondent’s new requirement that employees load rail cars during non-30
daylight hours significantly impacted employee safety. The uncontradicted testimony was that
rail cars were completely dark during non-daylight hours and that in order to maneuver inside
them at those times an employee was reduced to shuffling around and feeling his or her way
along the vehicles inside, while surrounded by metal. Murphy, Stein and Rhodes discussed
with one another, and with multiple company officials, their concerns that this was unsafe and 35
created a risk of injury. Murphy felt strongly enough about the matter to file a complaint with the
Kentucky Labor Cabinet’s Division of Occupational Safety and Health Compliance. The
evidence showed that the reason for the longstanding prior policy against loading rail cars in the

discharged earlier under the Cooper Auto Handling attendance policies. That argument has no bearing on
the question of whether the Respondent violated Section 8(a)(5) and (1) when it unilaterally changed the
attendance policies for all unit employees. In addition, since the individual relief the General Counsel is
seeking for Murphy and Stein is required based on the finding that the Respondent’s treatment of them
was discriminatory in violation of Section 8(a)(1), (3) and (4), it is not necessary, at least at this juncture,
to make a determination about whether the Section 8(a)(5) violation also warrants that individual relief.
I also note that, while the General Counsel’s brief anticipates that the Respondent will argue that the
Section 8(a)(5) allegation regarding the attendance policy is time-barred, the Respondent did not raise
that defense in its brief or in its answer to the complaint.
JD–02–14
24
dark was that the LAP yard lacked special night loading lights that provide visibility for
employees during non-daylight hours. In an effort to show that the change in policy was not
significant, the Respondent points out that other bargaining unit employees went along with its
direction to load rail cars during non-daylight hours. However, none of those employees were
called to testify that loading at night did not meaningfully impact their safety or heighten their 5
fears of injury. To the contrary, Wilson’s own testimony suggests that other employees
considered loading rail cars in the dark to be burdensome. He stated that he took action based
on a supervisor’s report that employees were upset that the Respondent was requiring them to
load rail cars during non-daylight periods while permitting Murphy, Stein, and Rhodes to escape
doing so.10
The Board has held that work rules involving the imposition of discipline constitute a
mandatory subject of bargaining. California Offset Printers, Inc., 349 NLRB 732, 733 (2007)
citing Toledo Blade Co., 343 NLRB 385, 387 (2004) and Cotter & Co., 331 NLRB 787, 796
(2000); see also General Die Casters, 359 NLRB No. 7, slip op. at 1-2 (2012) (employer makes 15
unlawful unilateral change by beginning to discipline employees for misconduct for which it did
not previously impose discipline). In this case, the Respondent made clear by the discipline it
presented to Murphy and Stein on December 21 that it intended to discipline employees based
on the new work rule regarding rail car loading during non-daylight hours. This further supports
the view that the new rule was sufficiently material, substantial, and significant to trigger an20
obligation to bargain.
For the reasons discussed above, I find that the Respondent violated Section 8(a)(5)
and (1) by failing and refusing to recognize and bargain with Teamsters Local 89 as the
exclusive collective-bargaining representative of the bargaining unit and by unilaterally imposing 25
a new policy requiring employees to load rail cars during non-daylight hours.
CONCLUSIONS OF LAW30
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. Teamsters Local 89 is a labor organization within the meaning of Section 2(5) of the
Act.35
3. The Respondent threatened employees in violation of Section 8(a)(1) of the Act, by
coercively warning them not to tell supervisors or others in the office that they were going to
press employees’ workplace complaints by bringing them to the attention of the NLRB or OSHA.
4. The Respondent violated Section 8(a)(3) and (1) of the Act by issuing discipline to,
and then terminating, Murphy and Stein because of their union affiliation and activities.40
5. The Respondent violated Section 8(a)(1) of the Act by issuing discipline to, and then
terminating, Murphy and Stein for engaging in concerted protected activity.
6. The Respondent violated Section 8(a)(4) and (1) of the Act by issuing discipline to,
and then terminating, Murphy and Stein because of their participation in the Board’s processes.
7. The Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize 45
and bargain with Teamsters Local 89 as the exclusive collective-bargaining representative of
the bargaining unit and by unilaterally imposing a new attendance policy on unit employees.
8. The Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize
and bargain with Teamsters Local 89 as the exclusive collective-bargaining representative of
JD–02–14
25
the bargaining unit and by unilaterally imposing a new policy requiring employees to load rail
cars during non-daylight hours.
5
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. In particular, I recommend that the Respondent be ordered to, upon 10
request by the Union, rescind the changes it unilaterally made for unit employees with respect to
attendance and rail car loading during non-daylight hours and restore the policies that were in
force immediately before the Respondent’s predecessor, Cooper Auto Handling, ceased
operations at the LAP. The Respondent, having discriminatorily discharged employees Murphy
and Stein, must offer them reinstatement and make them whole for any loss of earnings and 15
other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No.
8 (2010). The Respondent shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Respondent shall also compensate the 20
discriminatees for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44
(2012).
On these findings of fact and conclusions of law and on the entire record, I issue the 25
following recommended order.18
ORDER
30
The Respondent, Voith Industrial Services, Inc., Louisville, Kentucky, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
35
(a) Refusing to recognize and bargain in good faith with General Drivers,
Warehousemen & Helpers, Local Union No. 89, affiliated with the International
Brotherhood of Teamsters (Teamsters Local 89) as the exclusive collective-bargaining
representative of its employees in the following appropriate unit:
40

18
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–02–14
26
All employees as set forth in Article 3 of the National Master Automobile
Transporters Agreement, Central and Southern Area Supplemental Agreements
and the Job Descriptions provisions of the Local Rider.
5
(b) Making any changes to the terms and conditions of employment of unit
employees without providing Teamsters Local 89 with notice and an opportunity to
bargain.
(c) Threatening employees by coercively warning them not to press employees’ 10
complaints by telling supervisors or others at the LAP that they would bring such
complaints to the attention of the NLRB or OSHA.
(d) Disciplining, discharging or otherwise discriminating against employees for
joining, supporting or assisting Teamsters Local 89 or any other union. 15
(e) Disciplining, discharging or otherwise discriminating against employees for
voicing or otherwise making concerted complaints about working conditions.
(f) Disciplining, discharging or otherwise discriminating against employees for 20
giving testimony, or otherwise participating, in a proceeding of the Board.
(g) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Recognize and bargain with Teamsters Local 89 concerning the terms and
conditions of employment of employees in the bargaining unit described above and 30
provide Teamsters Local 89 with notice and an opportunity to bargain regarding any
changes to the employees’ terms and conditions of employment.
(b) Notify Teamsters Local 89 in writing that the Respondent recognizes it as the
exclusive representative of unit employees under Section 9(a) of the Act and will bargain 35
with it concerning terms and conditions of employment for employees in the unit.
(c) At the request of Teamsters Local 89, rescind any departures from the
policies regarding attendance and rail car loading during non-daylight hours that existed
immediately before the Respondent’s predecessor, Cooper Auto Handling, ceased 40
operations at the LAP, and restore the pre-existing policies for bargaining unit
employees.
(d) Within 14 days from the date of the Board’s Order, offer Patti Murphy and
Kelly Stein full reinstatement to their former jobs or, if those jobs no longer exist, to 45
substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
JD–02–14
27
(e) Make Patti Murphy and Kelly Stein whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(f) Within 14 days from the date of the Board’s Order, remove from its files any 5
reference to the unlawful discipline and discharge of Patti Murphy and Kelly Stein and
within 3 days thereafter notify them in writing that this has been done and that the
discipline and discharges will not be used against them in any way.
(g) Preserve and, within 14 days of a request, or such additional time as the 10
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.15
(h) Within 14 days after service by the Region, post at its facility in Louisville,
Kentucky, copies of the attached notice marked “Appendix.”19 Copies of the notice, on
forms provided by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and 20
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper
notices, 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 25
the Respondent 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 current employees and former employees employed by the Respondent at 30
any time since December 21, 2013.
(i) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.35
Dated, Washington, D.C. January 23, 2014.
____________________40
Paul Bogas
Administrative Law Judge

19 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–02–14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten you by coercively warning you not press employees’ complaints by
telling your supervisors or others at the Louisville Assembly Plant (LAP) that you will bring such
complaints to the attention of the National Labor Relations Board (NLRB) or the Occupational
Safety and Health Administration (OSHA)
WE WILL NOT discipline, discharge or otherwise discriminate against any of you for joining,
supporting or assisting General Drivers, Warehousemen & Helpers, Local Union No. 89,
affiliated with the International Brotherhood of Teamsters (Teamsters Local 89) or any other
union.
WE WILL NOT discipline, discharge or otherwise discriminate against any of you for voicing or
otherwise making concerted complaints about working conditions.
WE WILL NOT discipline, discharge or otherwise discriminate against any of you for giving
testimony, or otherwise participating, in a proceeding of the NLRB.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with Teamsters Local 89 and put in writing and sign any
agreement reached on terms and conditions of employment for our employees in the bargaining
unit:
All employees as set forth in Article 3 of the National Master Automobile
Transporters Agreement, Central and Southern Area Supplemental Agreements
and the Job Descriptions provisions of the Local Rider.
WE WILL recognize and bargain with Teamsters Local 89 concerning the terms and conditions
of employment of employees in the bargaining unit described above and provide Teamsters
Local 89 with notice and an opportunity to bargain over any changes to the employees’ terms
and conditions of employment.
JD–02–14
WE WILL notify Teamsters Local 89 in writing that we recognize it as the exclusive
representative of the unit employees under Section 9(a) of the Act and that we will bargain with
it concerning terms and conditions of employment for unit employees.
WE WILL, at the request of Teamsters Local 89, rescind for unit employees any departures from
the policies regarding attendance and rail car loading during non-daylight hours that existed
immediately before our predecessor, Cooper Auto Handling, ceased operations at the LAP, and
restore the pre-existing policies.
WE WILL, within 14 days from the date of this Order, offer Patti Murphy and Kelly Stein full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL make Patti Murphy and Kelly Stein whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Patti Murphy and Kelly Stein for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay 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 discipline and discharges of Patti Murphy and Kelly Stein, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done and that the discipline and discharges
will not be used against them in any way.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (513) 684-3750.