VOITH INDUSTRIAL SERVICES, INC.

National Labor Relations Board - Board Decisions

Feb 17, 2016

363 NLRB No. 109 (N.L.R.B. 2016)

363 NLRB No. 109
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Voith Industrial Services, Inc. and General Drivers,
Warehousemen & Helpers, Local Union No. 89,
Affiliated with the International Brotherhood of
Teamsters. Case 09–CA–097589
February 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On January 23, 2014, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the Charging Par-
ty filed an answering brief. The General Counsel filed a
reply brief in support of the judge’s decision. The Re-
spondent filed an answering brief to the Charging Party’s
and General Counsel’s briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions (as
modified),2 to amend his remedy,3 and to adopt the rec-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In his decision, the judge cited certain Board cases decided at a time
when the composition of the Board included two persons whose ap-
pointments the Supreme Court subsequently held were not valid. See
NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). In affirming the
judge’s findings here, we have not relied on any of those cases.
2 Since about April 2012, the Respondent has furnished vehicle pro-
cessing and yard management services to Ford Motor Company at
Ford’s Louisville Assembly Plant (LAP). Previously, those services
were provided by Cooper Auto Handling. In concluding that the Re-
spondent is a legal successor to Cooper Auto Handling, the judge relied
on the successorship finding of Administrative Law Judge Bruce D.
Rosenstein in Voith Industrial Services, Inc., 09–CA–075496 et al.,
which was affirmed by the Board in Voith Industrial Services (Voith I),
363 NLRB No. 116 (2016), also issued today. Based on the Board’s
decision affirming Judge Rosenstein’s finding that the Respondent is a
legal successor to Cooper Auto Handling, we find that the Respondent
may not relitigate that issue in this case. See Grand Rapids Press of
Booth Newspapers, 327 NLRB 393, 393 fn. 1, 394–395 (1998), enfd.
215 F.3d 1327 (6th Cir. 2000).
The collective-bargaining representative of Cooper Auto Handling’s
unit employees was Teamsters Local 89. As Cooper Auto Handling’s
legal successor, the Respondent is obligated to recognize and bargain
with Teamsters Local 89. It has refused to do so, and the record in this
case and in Voith I contains abundant evidence of the Respondent’s
animus toward the Teamsters. For example, shortly after the Respond-

ent began furnishing services at LAP, its facility manager, Jason Wil-
son, stated in a managers’ meeting that the Respondent was at “war
against the Teamsters” and was “in this facility to uproot them.”
For the reasons stated by the judge, we agree that the Respondent
violated Sec. 8(a)(1) and (3) of the Act when it disciplined and dis-
charged Teamsters-affiliated employees Patti Murphy and Kelly Stein.
We also agree with the judge that the discipline and discharge of Mur-
phy and Stein violated Sec. 8(a)(4). Regarding the 8(a)(4) violations,
we note in particular that Murphy and Stein served as witnesses for the
General Counsel at the hearing in Voith I, which occurred during the
same time period as the events at issue here. In finding that the General
Counsel established the Respondent’s animus toward use of the
Board’s procedures, a necessary component of the General Counsel’s
prima facie case of a 8(a)(4) violation, we do not rely on the judge’s
factual finding, disputed by the Respondent, that during that hearing,
Facility Manager Wilson sent a text message to the Respondent’s re-
gional manager reporting that “[f]ukin [sic] [supervisor Jason] Miller is
here to testify on behalf of the Teamsters.” Nevertheless, we find that
this error is harmless, as it is uncontested that Wilson sent the text to
management personnel, albeit not during the hearing, and that the text
reveals the Respondent’s hostility to witnesses who testify in a Board
proceeding. In addition, the judge found further evidence of animus in
Wilson’s instructions to Miller to be “lenient to the Teamsters” during
the hearing so it “wouldn’t . . . give them any more ammunition,” but
that after the hearing, “we needed to get rid of them.”
We modify the judge’s Conclusions of Law 7 and 8 in the following
respect. In those conclusions of law, the judge concluded in part that
the Respondent “violated Section 8(a)(5) and (1) by failing and refusing
to recognize and bargain with Teamsters Local 89.” However, the
judge’s analysis found, and we agree, that the Respondent violated
Section 8(a)(5) by unilaterally implementing changes to its attendance
policy and unilaterally adopting a new requirement that employees load
rail cars during non-daylight hours. In other words, the 8(a)(5) viola-
tions alleged and found in this proceeding are Katz-type violations, see
NLRB v. Katz, 369 U.S. 736 (1962), not a general refusal to recognize
and bargain on request with Teamsters Local 89. We note, however,
that the Respondent was found, in Voith I, to have refused to recognize
and bargain generally with Teamsters Local 89, and we remind the
Respondent that it is subject to the affirmative bargaining order issued
in that decision.
3 In addition to providing the relief ordered for employees Murphy
and Stein, we amend the remedy to provide make-whole relief for all
unit employees who may have suffered losses as a result of the Re-
spondent’s unlawful changes in attendance and rail car loading policies
during non-daylight hours, to be determined in compliance. To the
extent, if any, that employees experienced cessation of employment as
a result of the Respondent’s application of its unlawful changes to
attendance and rail car loading policies, backpay shall be computed in
accordance with F. W. Woolworth, 90 NLRB 289 (1950), with interest
as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010). For employees who suffered losses but no cessation of em-
ployment, backpay shall be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra. To the
extent that the Respondent maintains that adversely affected unit em-
ployees would have been disciplined or discharged even in the absence
of its unlawful unilateral changes, the Respondent is entitled to litigate
that issue in the compliance proceeding. See, e.g., Heartland Human
Services, 360 NLRB No. 101, slip op. at 3 (2014); Uniserv, 351 NLRB
1361, 1361 fn. 1 (2007). We shall also order the Respondent to remove
from its files any reference to unlawful discipline issued to or discharge
of any unit employees as a result of the Respondent’s unlawful chang-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ommended Order as modified and set forth in full be-
low.4
ORDER
The National Labor Relations Board orders that the
Respondent, Voith Industrial Services, Inc., Louisville,
Kentucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of
employment of its unit employees without first notifying
General Drivers, Warehousemen & Helpers, Local Union
No. 89, affiliated with the International Brotherhood of
Teamsters (Teamsters Local 89) and giving it an oppor-
tunity to bargain about those changes, including but not
limited to its attendance policy and its policies for rail car
loading during non-daylight hours.
(b) Threatening employees by warning them not to tell
supervisors or others at the facility that they would bring
complaints about employees’ terms and conditions of
employment to the attention of the NLRB or OSHA.
(c) Disciplining, discharging or otherwise discriminat-
ing against employees for joining, supporting or assisting
Teamsters Local 89 or any other union.
(d) Disciplining, discharging or otherwise discriminat-
ing against employees for voicing or otherwise making
concerted complaints about working conditions.
(e) Disciplining, discharging or otherwise discriminat-
ing against employees for testifying or otherwise partici-
pating in a proceeding of the Board.

es, and to notify each of these employees that this has been done and
that the discipline or discharge shall not be used against the employee
in any way.
Further, in the complaint and in his post-hearing brief to the judge,
the General Counsel requested that a responsible management official
be required to read the notice aloud to employees, and that the Re-
spondent permit a representative of Teamsters Local 89 to be present at
the reading. The judge failed to rule on the request, and he did not
include such a provision in his recommended Order. We find that this
remedy is appropriate to dispel the effects of the Respondent’s serious
and widespread unfair labor practices, especially in light of the Re-
spondent’s repetition of some of the same types of misconduct previ-
ously found unlawful and to warrant such a remedy in Voith I. See,
e.g., Ozburn-Hessey Logistics, LLC, 361 NLRB No. 100 (2014) (incor-
porating by reference 359 NLRB No. 109 (2013)). At the Respond-
ent’s option, the notice may be read by a Board agent in the presence of
a responsible management official.
Finally, we shall amend the remedy in accordance with our decision
in Don Chavas LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).
4 We have modified the judge’s recommended Order to conform to
his unfair labor practice findings and the Board’s standard remedial
language, and in accordance with Excel Container, Inc., 325 NLRB 17
(1997). We have also modified the judge’s Order consistent with the
amended remedy. We shall substitute a new notice in accordance with
our decision in Durham School Services, 360 NLRB No. 85 (2014) and
to conform to the Order as modified.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with Teamsters
Local 89 as the exclusive collective-bargaining repre-
sentative of employees in the following 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.
(b) Rescind any departures from the policies regarding
attendance and rail car loading during non-daylight hours
that existed immediately before the Respondent’s prede-
cessor, Cooper Auto Handling, ceased operations at the
facility, and retroactively restore the preexisting policies
until the Respondent negotiates in good faith with Team-
sters Local 89 to agreement or impasse.
(c) Within 14 days from the date of this Order, offer
any and all unit employees discharged as a result of the
unilateral changes in attendance and rail car loading poli-
cies during non-daylight hours reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(d) Make all affected unit employees whole for any
losses suffered as a result of the unilateral change in at-
tendance and rail car loading policies during non-
daylight hours in the manner set forth in the remedy sec-
tion of the judge’s decision as amended in this decision.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to discipline and/or
discharge imposed on unit employees as a result of its
unilaterally altered attendance and rail car loading poli-
cies, and within 3 days thereafter notify each affected
employee in writing that this has been done and that any
such discipline or discharge will not be used against the
employee in any way.
(f) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
(g) 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
VOITH INDUSTRIAL SERVICES 3
in the remedy section of the judge’s decision as amended
in this decision.
(h) 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 substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(i) Compensate Patti Murphy and Kelly Stein for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
(j) Within 14 days from the date of this Order, remove
from its files any 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.
(k) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(l) Within 14 days after service by the Region, post at
its facility in Louisville, Kentucky, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 31, 2012.
(m) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice, marked
Appendix, is to be read to the employees by a responsi-
ble management official or, at the Respondent’s option,
by a Board agent in that official’s presence. The Re-
spondent shall also afford Teamsters Local 89, through
the Regional Director, reasonable notice and opportunity
to have a representative present when the notice is read
to employees.
(n) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT change your terms and conditions of
employment without first notifying General Drivers,
Warehousemen & Helpers, Local 89, affiliated with the
International Brotherhood of Teamsters (Teamsters Local
89) and giving it an opportunity to bargain.
WE WILL NOT threaten you by warning you not to tell
supervisors or others at the facility that you will bring
complaints about your terms and conditions of employ-
ment 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 dis-
criminate against you for joining, supporting or assisting
Teamsters Local 89 or any other union.
WE WILL NOT discipline, discharge or otherwise dis-
criminate against you for voicing or otherwise making
concerted complaints about working conditions.
WE WILL NOT discipline, discharge or otherwise dis-
criminate against you for testifying or otherwise partici-
pating 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
listed above.
WE WILL, before making any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with Teamsters
Local 89 as the exclusive collective-bargaining repre-
sentative of our employees in the following 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 rescind any departures from the policies re-
garding attendance and rail car loading during non-
daylight hours that existed immediately before our pre-
decessor, Cooper Auto Handling, ceased operations at
the facility, and restore the preexisting policies until we
negotiate in good faith with Teamsters Local 89 to
agreement or impasse.
WE WILL, within 14 days from the date of the Board’s
Order, offer any and all unit employees discharged as a
result of the unilateral changes in attendance and rail car
loading policies during non-daylight hours 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 all affected unit employees whole, with
interest, for any losses suffered as a result of our unlaw-
ful change in attendance and rail car loading policies
during non-daylight hours.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to discipline
or discharge imposed on any unit employees as a result
of our unilaterally altered attendance and rail car loading
policies, and WE WILL, within 3 days thereafter, notify
each affected employee in writing that this has been done
and that any such discipline or discharge will not be used
against the employee in any way.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
WE WILL make Patti Murphy and Kelly Stein whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Patti Murphy and Kelly Stein full reinstate-
ment 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 compensate Patti Murphy and Kelly Stein for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and WE WILL file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline and discharge 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.
WE WILL, within 14 days after service by the Region,
hold a meeting or meetings, scheduled to ensure the wid-
est possible attendance, at which this notice is to be read
to you by a responsible management official or, at our
option, by a Board agent in that official’s presence. WE
WILL also afford Teamsters Local 89 reasonable notice
and opportunity to have a representative present when
the notice is read to you.
VOITH INDUSTRIAL SERVICES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-097589 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
VOITH INDUSTRIAL SERVICES 5
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Jonathan Duffey, Esq., for the General Counsel.
Gary A. Marsack, Esq., and Stephen Richey, Esq., of Milwau-
kee, 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 Charg-
ing 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 Re-
spondent 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 Rela-
tions Act (the Act). The complaint further alleges that the Re-
spondent 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 unspec-
ified reprisals for making complaints to the NLRB and engag-
ing in other protected concerted activities. The Respondent
filed a timely answer in which it denied that it had committed
any of the violations alleged.
On the entire record, including my observation of the de-
meanor 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 FACT
I. JURISDICTION
The Respondent, a corporation, provides cleaning, transpor-
tation, and logistical services to customers in the automobile
manufacturing industry. It has an office and place of business
in Louisville, Kentucky, where it annually purchases and re-
ceives 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.
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 man-
agement services to Ford Motor Company (Ford) at Ford’s
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 Team-
sters 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 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 man-
agement work at the LAP in 2012, Teamsters Local 89 de-
manded continued recognition as the collective-bargaining
representative of the employees. The Respondent, however,
declined 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.
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 Re-
spondent was a successor to Cooper Auto Handling for purpos-
es 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 Team-
sters-affiliated employees testified at the trial, including Mur-
phy and Stein––the two alleged discriminatees in the proceed-
ing 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.”
The Respondent subsequently terminated Miller’s employment
in early December 2012, but 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 essentially
the same business at the same location as [Cooper] Auto Han-
dling 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 Re-

1 The prior trial was held on August 21 to 24, 27, 28, and 30, Sep-
tember 19 to 21, and October 1 to 3, 2012.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
spondent violated Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain 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 im-
posed 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.
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 Counsel’s
motion and issued an order adopting Judge Rosenstein’s find-
ings of fact and conclusions of law as they relate to the issues
of the Respondent’s status as successor to Cooper Auto Han-
dling 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 prior proceeding where, as here, the
parties in the two proceedings are the same and the factual find-
ings are necessary to support the judgment in the prior proceed-
ing. 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 excep-
tions to Judge Rosenstein’s decision, that ruling will be deter-
minative of the successorship and bargaining 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 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 rec-
ognize and bargain in good faith with Teamsters Local 89 as
the exclusive collective-bargaining representative of its em-
ployees 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 Auto-
mobile Transporters Agreement, Central and Southern Area Supple-
mental 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 par. 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.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Since about April 2012, the Respondent has employed a bar-
gaining unit of employees who perform vehicle processing and
yard inventory services for Ford at the LAP. There are approx-
imately 70 to 75 employees in the unit. Some of these employ-
ees are assigned to “yard work” crews and drive newly pro-
duced 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
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 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 pro-
cessing work at the LAP, a type of work that both had previous-
ly 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 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 in-
clude Tom Baker, Charlie Calhoun, Elizabeth Dawson, Dennis
Frank, Laura Kitchen,4 Jason Miller, and Jeremy Spears. Wil-
son 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 2012, was called as a witness by the
General Counsel. He testified that when he first started work-
ing 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.” Su-
pervisor Dennis Frank expressed the opinion that the Teamsters
employees “would lay down on you” and that “if there’s any-
thing going wrong with the vehicles in the yard it’s more than
likely something that they’re doing to hit Voith in the pocket-
book.” 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 that these statements were made by Wil-

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, San-
dra Rhodes, Aaron Schott, Kelly Stein, and Brenda Swift.
4 This individual’s last name is sometimes spelled “Ketchum” in the
transcript.
VOITH INDUSTRIAL SERVICES 7
son, Barrett and Frank since that testimony was not contradict-
ed 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 em-
ployment, 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 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 pro-
cessing operation at the LAP, management required Teamsters-
affiliated employees to wear “Voith UAW clothing.” In an
email dated December 15, 2012, the Respondent’s vice presi-
dent of operations, Darrin McElroy, commended Griffin and
Wilson on the job they were doing at the LAP given the
“Teamster nonsense.”
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 cars during non-daylight hours. This
had been the case since at least 1997 under a variety of em-
ployers 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
railroad tracks that provide both overhead, and mid-level light-
ing. 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 crew mem-
bers 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 em-
ployee 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, 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 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 hav-
ing resigned. Then Baker transported the three employees to
the area where their personal vehicles were located. During the
drive, Murphy, Stein, and Rhodes discussed contacting the
Occupational Safety and Health Administration (OSHA) to
“see what they think about loading in the dark.” Baker in-
formed 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 Occupa-
tional Safety and Health Compliance, and transmitted to them,
by facsimile, a written allegation that the Respondent was cre-
ating a safety 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 hours.
Instead, the Respondent had the crew load rail cars from 6 p.m.
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 a.m., 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 daylight. The Respondent did not re-
quire 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 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
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 com-
plained about loading rail cars during non-daylight hours.
At some point prior to December 19, supervisor Dawson re-
ported to Wilson that there 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 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 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
direction and never subsequently refused to load rail cars.
During the period of their employment by the Respondent,
Murphy and Stein complained to company officials about
working conditions at the facility and stated that they were
going to contact OSHA or the NLRB. The undisputed testimo-
ny was that in some instances these complaints were raised in
the presence of coworkers and staff. None of these instances
were described at trial with specificity.
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 Agree-
ment that took effect on 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 Agree-
ment sets forth a system of progressive discipline for various
types of attendance infractions. The contract provision on ex-
cessive absenteeism states:
(c) Excessive absenteeism where notice is given (after meet-
ing with employee).
1st offense – reprimand.
2nd offense – 1-week layoff.
3rd offense – subject to discharge.
The Master Agreement does not define “excessive absentee-
ism,” but the record shows that, in 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 han-
dled with a meeting between the Respondent and the employee,
and it 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 em-
ployee’s record once 6 months had passed from the offense.
The Master Agreement also sets forth the following discipli-
nary steps for instances when 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 layoff
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 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.

5 The relevant terms of this contract remained in effect under a sub-
sequent agreement, effective from June 1, 2011, to August 31, 2015.
Doctors’ notes were accepted both when employees were ab-
sent because of their own medical condition and when they
were absent because of the medical condition of a family mem-
ber.
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, em-
ployees were not held accountable for absences. Subsequently,
excessive absenteeism 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 al-
lowed employees “a couple weeks of grace period before . . .
start[ing] to track” their absences under the new attendance
system.
The new policy was not provided to employees or posted at
the facility.6 Miller, was assigned to oversee the attendance

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 pol-
icy was not presented to employees in any systematic fashion and that
Murphy and Stein did not receive the policy in advance of the ostensi-
bly attendance-based discipline that they were subjected to in Decem-
ber 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 ac-
knowledging receipt of the attendance policy during their initial orien-
tations. 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 con-
tain any form in which they acknowledge receipt of the attendance
policy. In addition, I note that the Respondent did not present the tes-
timony of a single unit employee—either UAW-affiliated or Teamster
VOITH INDUSTRIAL SERVICES 9
program beginning in August, but even he had trouble obtain-
ing a copy of the written policy or information regarding its
precise terms. According to Miller, the practice was that em-
ployees 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 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 em-
ployees’ attendance and attendance-related discipline in a com-
puter system. That system summarizes each employee’s at-
tendance record in a document known as the employee’s “at-
tendance matrix.”
Under the attendance policy implemented by the Respond-
ent, employees can have their absences excused (and attend-
ance 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 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 ab-
sences 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 peri-
ods 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 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 testimo-
ny 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 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 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 ma-
trix for Phillip Profumo, who was not a Teamsters-affiliated

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.
7 The Respondent discharged Miller in December 2012, but the rea-
sons for his discharge were unrelated to his performance administering
the attendance policy.
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 Team-
sters-affiliated employee, shows that he had absences excused
for medical reasons on four separate occasions between Sep-
tember 13, 2012, and May 8, 2013. Where the employee was
not excused entirely for a multi-day medical absence, the Re-
spondent would still assess only one point if the absence result-
ed from a single illness or medical incapacity.
The testimony of Miller, as well as of Murphy and Stein, in-
dicated 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 inabil-
ity to work. Wilson contradicted this, testifying that an em-
ployee 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 the testimonies of
Miller, Murphy, and Stein. Neither Wilson, nor any other wit-
ness, identified anything specific beyond the submission of the
doctor’s note that was required to initiate an appeal of attend-
ance 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 documenta-
tion) to initiate an appeal. To the contrary, the attendance pro-
vision in the Ford-UAW 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 enter-
tain appeals in excess of three.
Wilson stated that only himself and service managers were
able to grant an appeal to reduce attendance points or disci-
pline. Miller’s testimony was to the contrary. He stated that
the direct supervisors of an employee could grant the employ-
ee’s request to have his or her attendance points or discipline
reduced based on the submission of a medical note. I consider
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. Wil-
son, on 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 could appeal the
imposition of attendance points or discipline simply by provid-
ing a medical note to his or her direct supervisor, or to an offi-
cial 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 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 em-
ployee has accrued the necessary vacation time, a point will not
be assessed. Apart from normal vacation days, employees are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
granted two “emergency vacation” days every 12 months that
they can invoke on the day of an absence to avoid the assess-
ment of points. In addition, employees accrue a “banked holi-
day” if the Respondent requires them to work on holiday pro-
vided 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 em-
ployee’s prearranged absence for medical appointments, child-
care issues, and court appearances. These excuses can be ap-
proved by direct supervisors, and also various general supervi-
sors and managers without bringing the matter to a superior’s
attention. The evidence also showed that the Respondent ex-
cused the absences of Phillip Profumo, a non-Teamsters em-
ployee, for days that he was ostensibly on vacation even though
it was later discovered the he lacked accrued vacation time to
cover those days.
Miller also described the procedure he followed when as-
sessing discipline. He stated that he would meet with the em-
ployees 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 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. 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 repre-
sent them, and the Respondent would not permit the participa-
tion of a Teamsters representative.
D. Disciplinary Meetings with 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 discipline
based on attendance and refusal to perform work, and on Janu-
ary 4, 2013, when it terminated them based on attendance. I
find that the pre-December 2012 evidence regarding the treat-
ment 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 Murphy and Stein.8 As noted above, the
Respondent did not meaningfully apply any attendance re-

8 The complaint does not allege that any of the attendance viola-
tions, or points assessed, against Murphy and Stein prior to December
2012 were violations of Sec. 8(a)(1), (3), or (4) of the Act.
strictions 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 Counsel’s case
depends, but he denied that during the period he was adminis-
tering 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 Mil-
ler’s testimony that his actions were not based on the union
affiliation of the employees. I also considered evidence sug-
gesting that Wilson encouraged Miller to treat Teamsters-
affiliated employees more harshly.9 Nevertheless, Miller credi-
bly 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 dis-
crediting that testimony, while crediting the other portions of
his testimony on which the General Counsel relies.
By the time Miller stopped overseeing the Respondent’s at-
tendance 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 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 in-
formed Murphy of the schedule change in time for her to ap-
pear for work on December 20. According to Wilson, employ-
ees were notified of the change in schedules in late December
by way of a notice posted 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 no-
tice 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
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. Nevertheless the Respondent

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 “prob-
lems.” Miller believed that by “problems,” Wilson meant the Team-
sters-affiliated employees, but at trial Miller conceded that it was pos-
sible 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.
VOITH INDUSTRIAL SERVICES 11
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 Mur-
phy, Stein, and Rhodes.10 Dawson told Murphy and Stein that
they would no longer be assigned to non-loading work 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 sched-
uled 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 Dawson that they needed union representa-
tion, 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 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 previ-
ously stated by Dawson, the employees were going to be re-
quired 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 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.
Then Wilson told Murphy and Stein to “refrain from [mak-
ing] 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 state-
ments in the presence of managers, supervisors, administrative
staff, and coworkers. Murphy answered, “I’ll stop calling
OSHA when you all stop being unsafe.” Wilson responded
“Well, I need for you all to stop doing that.” Following this
admonition, Wilson continued the meeting by presenting Mur-
phy and Stein with disciplinary action forms regarding their

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 Sec. 8(a)(5) of the Act by refusing
to recognize and bargain with Teamsters Local 89, and had discrimi-
nated 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 presi-
dent 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.
attendance, and stating that they should be suspended because
of their absences. Murphy and Stein objected to these discipli-
nary 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 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 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 discipli-
nary paperwork for Stein, which states that she was being sus-
pended 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 also states that the next attend-
ance 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.
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 Decem-
ber 21 meeting, the Respondent had assessed sufficient addi-
tional attendance points 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 preshift 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 ear-
lier Wilson had told her that no additional doctor’s notes would
be accepted. The Respondent assessed a point, bringing Mur-
phy’s total to 7.5, above the 7-point threshold for which a sus-
pension 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 sched-
ule 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 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 una-
ware of the change prior to receiving that call, and after receiv-
ing it attempted to contact the Respondent by telephone. She
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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 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 com-
municated to Murphy, or knew that someone else had commu-
nicated 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 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 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 termi-
nation threshold. Nor did the Respondent show that it ever
informed Murphy that doing so was an option for her.
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 Re-
spondent with documentation from the hospital stating that she
had been seen there on December 26 and was not to return to
work for 2 days. 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 vaca-
tion time. The Respondent did not, however, recognize Stein’s
submission of the medical note as an “appeal,” apply her ac-
crued 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 prac-
tice to permit employees to avoid attendance points under such
circumstances.
On December 28, the President of Teamsters Local 89, re-
newed 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.
On December 29, Wilson and Gebhardt communicated by
email regarding the possible termination of Stein. Wilson stat-
ed that Stein had not worked since December 21 and that he
would proceed with her termination unless instructed other-
wise. In this email, Wilson referred to Stein as “a special group
employee,” a term that Wilson says referred to employees affil-
iated 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 Wil-
son should “immediately hold a disciplinary meeting with their
UAW rep present and explore the issue of the doctor’s note.”
Gebhardt continued “If no note exists, issue the discipline (sus-
pension for that day) for reaching seven points, and issue the
discipline (termination, effective the following day) for reach-
ing 8 points.”
On January 2, 2013, a day when Murphy and Stein were not
assigned to work, they both received calls from Kitchen invit-
ing them to a nonmandatory 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 Rosen-
stein. 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 it 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 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 re-
sponded “can I have Avral?”—meaning Teamsters official
Avral Thompson. Wilson stated that Thompson could not par-
ticipate, but that once the employees left the facility they could
have “all the conversations 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 repre-
sentative for Murphy and Stein. Wilson did not offer the em-
ployees 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 paper-
work and copies of their attendance matrices. Murphy and
Stein attempted to question the basis for the termination deci-
sion, 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

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 retalia-
tion 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 com-
VOITH INDUSTRIAL SERVICES 13
D. Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act on December 21, 2012, when Wilson threat-
ened employees with unspecified reprisals for making com-
plaints to the NLRB or engaging in other protected concerted
activities.12 The complaint 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 pro-
tected 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
violated Section 8(a)(5) and (1) of the Act since by beginning
to require employees to load rail cars in the dark and subjecting
them to newly implemented attendance and disciplinary poli-
cies without providing Teamsters Local 89 with notice and an
opportunity to bargain.
IV. ANALYSIS
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 pro-
tected concerted activities.” Section 8(a)(1) of the Act makes it
an unfair labor practice for an employer “to interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed 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 being unsafe, Wilson said “I need for you all to stop
doing that.”

pensation 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 Unem-
ployment Insurance, mailed on March 20, 2013, which determined that
Stein was entitled to unemployment compensation because the dis-
charge was “for reasons other than misconduct connected with the
work.” The record does not disclose if appeals have been filed regard-
ing these unemployment insurance determinations.
The Board has held that decisions in state unemployment compensa-
tion 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 in-
clude this allegation.
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 concerted activities. It is not clear to me that
Wilson’s statements in the exchange recounted above are rea-
sonably 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 rais-
ing group complaints with the Respondent by expressing a
willingness to contact the NLRB or OSHA about those com-
plaints. 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 manage-
ment.” 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 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 warn-
ing 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-daylight hours, were
concerted in that they represented the concerns of, at a mini-
mum, employees Murphy, Stein, and Rhodes. Meyers Indus-
tries, 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 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 feder-
al agencies.
The Respondent argues that Murphy’s and Stein’s behavior
deprived their complaints of any protection that may have ex-
isted. 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 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 suf-
ficiently 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 threaten-
ing others 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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 protected
status. The evidence did not show that Murphy or Stein threat-
ened 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 prohibit-
ed 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 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. At-
lantic Steel Co., 245 NLRB 814, 816 (1979). In this case,
Murphy’s and Stein’s complaints to the 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 only had to
stop if such statements were accompanied by egregious or op-
probrious 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.
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.
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 disci-
plinary 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 discrimination in viola-
tion of Section 8(a)(3), the General Counsel bears the initial
burden of showing that the Respondent's decision to take ad-
verse 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 employee engaged in union or other pro-
tected 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. Appx.
594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270,
1274–1275 (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 demonstrate that it would have
taken the same action absent the protected conduct. ADB Utili-
ty, 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 activi-
ty, American Red Cross Missouri-Illinois Blood Services Re-
gion, 347 NLRB 347, 349 (2006), and to allegations that an
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).
The General Counsel has established a prima facie case that
the discipline and termination of Murphy and Stein were dis-
criminatory in violation of Section 8(a)(1), (3), and (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, inter alia, continuing their affiliation with
Teamsters Local 89, requesting representation by the vice-
president of Teamsters Local 89 during meetings with the Re-
spondent,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.
Murphy and Stein also engaged in protected concerted ac-
tivity 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 com-
plaints to the attention of the Kentucky Division of Occupa-
tional Safety and Health Compliance, see Salisbury Hotel, 283
NLRB 685, 687 (1987) (employees engage in protected con-
certed 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 Stein and the state agency
proceeding because he summarily reassigned them to another
part of the facility during the state investigator’s on-site inspec-
tion of the safety complaint. With respect to the 8(a)(4) allega-

13 The General Counsel does not allege, and I do not find, that Mur-
phy 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 De-
cember 2012 and January 2013.
However, by requesting such representation Murphy and Stein were
expressing their continued support for Teamsters Local 89.
VOITH INDUSTRIAL SERVICES 15
tion, 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 testimo-
ny.
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 Re-
spondent’s managers and supervisors have expressed animosity
towards Teamsters Local 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 Mur-
phy 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
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 occur-
ring with vehicles in the LAP yard should be attributed to inten-
tional 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 Re-
spondent’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.
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 they
would bring the Respondent’s conduct to the attention of the
NLRB and OSHA. The evidence shows that this hostility con-
tinued until, and was connected to, the Respondent’s discipli-
nary actions against Murphy and Stein. It was at the same De-
cember 21 meeting that Wilson discussed the disciplinary no-
tices and also warned Murphy and Stein not to tell supervisors
or others that they would contact the NLRB and OSHA.
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 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. Addi-
tional 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 the Board’s processes.14
Since the General Counsel has made the required initial
showing under Wright Line, the burden shifts to the Respond-
ent to show that it would have taken the same action even ab-
sent Murphy’s and Stein’s protected activity. The Respondent
cannot meet this burden merely by showing that employee mis-
conduct 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 Mfg., 323
NLRB 24, 27 (1997). In an effort to meet its burden with re-
spect 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 affiliat-
ed with the Teamsters and did not engage in protected activi-
ties. Putting aside for the moment that on December 21 the
Respondent presented discipline to Murphy and Stein based not
only on attendance, but also 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 appli-
cation of its attendance policies would have caused it to disci-
pline 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 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 ab-
sences. This is a different, and stricter, standard than the 3-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, like other em-
ployees, 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.
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

14 The General Counsel made a motion requesting that, in determin-
ing whether animus is shown, I rely on the findings made by Judge
Rosenstein in the prior litigation, including his finding that the Re-
spondent 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.
15 Although Wilson deferred action on the attendance-based suspen-
sion he presented on December 21, he did carry through with the as-
sessment of attendance points and relied on those points to justify the
subsequent terminations of Murphy and Stein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
shown that it gave either employee 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 example,
the Respondent forgave the absence of a non-Teamsters em-
ployee who purported to take vacation at a time when that em-
ployee did not have available vacation time. Nor did the Re-
spondent 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 past liberally excused absences re-
sulting from childcare issues. Under these circumstances, the
Respondent has failed to demonstrate that it would have as-
sessed the December 20 attendance violations against Murphy
and Stein absent their protected activities.
I also note that the Respondent provides no reasonable ex-
planation for why, on 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 essen-
tially 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 that Mur-
phy and Stein were not directed to load rail cars in the dark on
that day, and did not refuse to do so, then or at any time there-
after, should have been enough to stop the Respondent from
presenting that discipline. There was no evidence that the Re-
spondent has ever presented discipline to a non-Teamsters em-
ployee because management was expecting that employee to
engage in misconduct that the employee did not actually com-
mit. Wilson’s explanation for this discipline, far from demon-
strating a basis for believing it would have been presented ab-
sent Murphy’s and Stein’s protected activity, suggests that the
Respondent was singling out those employees.
The Respondent contends that discipline based on the em-
ployees’ purported refusal to load rail cars cannot be the basis
for finding an 8(a)(1) violation because, after Dawson issued
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 activity. To the contrary, Wilson
followed-up his discussion of the erroneous discipline by as-
serting an alternative, but also improper, attendance-based justi-
fication 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 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.
I also find that the Respondent has failed to meet its respon-
sive 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 reach-
ing eight attendance points even if they had not engaged in
protected activity. However, the Respondent relies on attend-
ance points assessed for the December 20 absences—points
that, as discussed above, were themselves discriminatorily im-
posed in violation of the Act. Without including those discrim-
inatorily 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 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 Mur-
phy was not regularly scheduled to work and which the Re-
spondent has not shown it told her was being added to her
schedule. As noted above, the Respondent has not shown that
it assessed points against non-Teamsters employees for absenc-
es on days that they were not regularly scheduled to work and
were not informed they were expected at work.
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 situa-
tion, 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 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, how-
ever, when an employee provides the Respondent with medical
documentation of inability to work, as Stein did here, that sub-
mission 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 Sec-
tion 8(a)(1), (3), and (4) when it terminated Murphy and Stein

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; unambig-
uous; 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.
VOITH INDUSTRIAL SERVICES 17
on January 4, 2013.
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 Re-
spondent was the successor to Cooper Auto Handling and was
required to recognize and bargain with Teamsters Local 89 as
the exclusive collective bargaining representative of unit em-
ployees. 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 policy
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 uni-
laterally changes the wages, hours, or other terms and condi-
tions 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 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 violated Section 8(a)(5) and (1) by aban-
doning 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 em-
ployee absences that the employer would automatically excuse
if the employee documented medical reasons for the absence,
but the Respondent’s new attendance policy limited that num-
ber 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 dis-
pute that it made the changes without giving Teamsters Local
89 notice and an opportunity to bargain.17

17 In its brief, the Respondent makes a detailed argument that Mur-
phy and Stein would have been discharged earlier under the Cooper
Auto Handling attendance policies. That argument has no bearing on
the question of whether the Respondent violated Sec. 8(a)(5) and (1)
when it unilaterally changed the attendance policies for all unit em-
ployees. 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 Sec.
8(a)(1), (3), and (4), it is not necessary, at least at this juncture, to make
a determination about whether the 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 8(a)(5) allegation regarding the attend-
ance policy is time-barred, the Respondent did not raise that defense in
its brief or in its answer to the complaint.
For the reasons discussed above, I find that the Respondent
violated Section 8(a)(5) and (1) by failing and refusing to rec-
ognize and bargain with Teamsters Local 89 as the exclusive
collective-bargaining representative of the bargaining unit and
by unilaterally imposing a new attendance policy.
I also find that the Respondent violated its bargaining obliga-
tions by unilaterally imposing a new requirement that employ-
ees load rail cars during non-daylight hours. The Respondent
does not dispute that it made this change without giving Team-
sters Local 89 notice or an opportunity to bargain, but contends
that the change was not significant enough to give rise to a
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 Hos-
pital, 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 af-
fecting employees. Crittenton Hospital, supra. The Board has
frequently held that changes which, like the one at issue here,
concern work conditions relating to employee safety are mate-
rial, 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 Okla-
homa, 334 NLRB 487, 489 (2001), enfd. 318 F.3d 1173 (10th
Cir. 2003) (“work and safety rules” are a mandatory subject of
bargaining); AK Steel Corp., 324 NLRB 173, 181 (1997)
(“equipment and work rules related to job safety” are mandato-
ry 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 bargain-
ing); 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 heavier protective
equipment for unit employees was a mandatory subject of bar-
gaining); 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-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 cre-
ated 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 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. How-
ever, none of those employees were called to testify that load-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
ing at night did not meaningfully impact their safety or height-
en their fears of injury. To the contrary, Wilson’s own testimo-
ny 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.
The Board has held that work rules involving the imposition
of discipline constitute a mandatory subject of bargaining. Cali-
fornia 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 un-
lawful unilateral change by beginning to discipline employees
for misconduct for which it did not previously impose disci-
pline). In this case, the Respondent made clear by the disci-
pline 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 fur-
ther supports the view that the new rule was sufficiently mate-
rial, substantial, and significant to trigger an obligation to bar-
gain.
For the reasons discussed above, I find that the Respondent
violated Section 8(a)(5) and (1) by failing and refusing to rec-
ognize and bargain with Teamsters Local 89 as the exclusive
collective-bargaining representative of the bargaining unit and
by unilaterally imposing a new policy requiring employees to
load rail cars during non-daylight hours.
CONCLUSIONS OF LAW
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.
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.
5. The Respondent violated Section 8(a)(1) of the Act by is-
suing 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 fail-
ing 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 on unit employees.
8. The Respondent violated Section 8(a)(5) and (1) by fail-
ing 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 policy re-
quiring employees to load rail cars during non-daylight hours.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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 Re-
spondent be ordered to, upon 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 op-
erations at the LAP. The Respondent, having discriminatorily
discharged employees Murphy and Stein, must offer them rein-
statement and make them whole for any loss of earnings and
other benefits. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 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 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 following recommended order.18
ORDER
The Respondent, Voith Industrial Services, Inc., Louisville,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(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:
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.
(b) Making any changes to the terms and conditions of em-
ployment 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’ complaints by telling supervisors or others
at the LAP that they would bring such complaints to the atten-
tion of the NLRB or OSHA.
(d) Disciplining, discharging, or otherwise discriminating
against employees for joining, supporting, or assisting Team-

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
VOITH INDUSTRIAL SERVICES 19
sters Local 89 or any other union.
(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 giving testimony, or otherwise participat-
ing, in a proceeding of the Board.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and bargain with Teamsters Local 89 con-
cerning 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 regarding
any changes to the employees’ terms and conditions of em-
ployment.
(b) Notify Teamsters Local 89 in writing that the Respond-
ent recognizes it as the exclusive representative of unit employ-
ees under Section 9(a) of the Act and will bargain with it con-
cerning terms and conditions of employment for employees in
the unit.
(c) At the request of Teamsters Local 89, rescind any depar-
tures 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 op-
erations at the LAP, and restore the preexisting 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 substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(e) Make Patti Murphy and Kelly Stein whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination 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, re-
move from its files any 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 addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(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

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 Na-
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since 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.
Dated, Washington, D.C. January 23, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT 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, affili-
ated with the International Brotherhood of Teamsters (Team-
sters 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.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
WE WILL NOT discipline, discharge, or otherwise discriminate
against any of you for giving testimony, or otherwise participat-
ing, in a proceeding of the NLRB.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, 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 employ-
ees in the bargaining unit described above and provide Team-
sters Local 89 with notice and an opportunity to bargain over
any changes to the employees’ terms and conditions of em-
ployment.
WE WILL notify Teamsters Local 89 in writing that we recog-
nize 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 em-
ployees.
WE WILL, at the request of Teamsters Local 89, rescind for
unit employees any departures from the policies regarding at-
tendance and rail car loading during non-daylight hours that
existed immediately before our predecessor, Cooper Auto Han-
dling, ceased operations at the LAP, and restore the preexisting
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 dis-
charge, 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 dis-
charges 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.
VOITH INDUSTRIAL SERVICES, INC.