DHL Express, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 680 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 144
694
DHL Express, Inc. and American Postal Workers
Union, AFL–CIO

The Crossroads Group Labor Relations Consultants
and American Postal Workers Union, AFL–
CIO. Cases 4–CA–35417, 4–CA–35622, 4–CA–
35629, 4–CA–35630, 4–CA–35685, 4–CA–35696,
4–CA–35697, and 4–RC–21327
August 27, 2010
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On June 5, 2008, Administrative Law Judge Robert A.
Giannasi issued the attached decision. The Respondents
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, to which the Respon-
dents filed a reply. In addition, the General Counsel filed
cross-exceptions and a supporting brief, and the Respon-
dents filed a brief answering the cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, to
adopt the recommended Order, and to direct a second
election.
We affirm the judge’s conclusions that Respondent
DHL interfered with employees’ protected union hand-
billing activity on three occasions2 and threatened em-

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In affirming the judge’s finding that Human Resources Manager
Dennis Arends and his assistant, Gloria Szymborski, engaged in unlaw-
ful surveillance by standing among handbillers while distributing water
bottles to employees on May 14, 2007, we do not rely on the judge’s
mistaken statement that there was no reason why these two officials did
not distribute the bottles near the entrance to the DHL facility. Arends
and Szymborski did explain why they chose not to distribute the bottles
at that location, but their explanation did not justify their choice to
make distributions for a sustained period of time among the handbillers.
Similarly, we affirm the judge’s finding that the Respondent’s
guards engaged in unlawful surveillance by standing among or near
handbillers while police investigated the presence of nonemployee
union agents on the edge of the Respondent’s premise. There was no
explanation for their choice to position themselves as they did. There is
no evidence of disruptive behavior by the handbillers, or that they
posed any threat to interfere with the police investigation. Further,
although security guards may have patrolled in the sidewalk area from
time to time as part of their regular duties, there is no evidence that they
ployees on two occasions in violation of Section 8(a)(1)
of the Act. We also affirm the judge’s conclusion that
both Respondents violated Section 8(a)(1) when labor
consultant Michael Penn threatened to sue employee
Elias Sleiman for defamation based on his comments in a
union newsletter article,3 and that Respondent DHL vio-
lated Section 8(a)(3) and (1) by discriminatorily issuing
Sleiman a written disciplinary warning for taking an un-
authorized break,4 reducing his work hours,5 and giving
him a negative performance appraisal.6 Finally, we agree

ever did so when handbillers were present or that they ever stationed
themselves in this area for a sustained period of time. Thus, for the
reasons stated by the judge, we agree with his conclusion that the pro-
longed presence of the Respondent’s guards among the handbillers was
unusual, out of the ordinary, and unconnected to the legitimate con-
cerns of the Respondent.
3 For the reasons stated by the judge, and contrary to our dissenting
colleague, we find that Sleiman’s comments were protected activity
rather than “maliciously untrue” and unprotected defamation. Further,
even assuming arguendo, without deciding, that the principles of BE &
K Construction Co., 351 NLRB 451 (2007), are to be applied when a
threat to file a lawsuit is “incidental” to a lawsuit, we find no basis for
finding that Penn’s threat to sue Sleiman was “incidental.” Most sig-
nificantly, although Sleiman testified that he discussed the matter with
more than one attorney, no lawsuit was ever filed. See Postal Service,
350 NLRB 125, 126 (2007), motion for reconsideration denied, 351
NLRB 205 (2007), enfd. 526 F.3d 729 (11th Cir. 2008) (threat to sue
was not incidental to lawsuit where no actual lawsuit was filed), and
Networks Dynamics Cabling, 351 NLRB 1423, 1427 fn. 14 (2007)
(threat to prosecute employee was not incidental to a lawsuit where,
inter alia, no charges were filed).
4 We disavow reliance on the judge’s erroneous finding that
Sleiman’s break would have been permissible if the Respondent had
not discriminatorily reduced his work hours on the evening of June 26.
Nevertheless, Sleiman’s uncontradicted credited testimony indicates
that Supervisor Trevor Steigerwalt had instructed Sleiman to take his
break when he did and that Sleiman had routinely done so without
incurring discipline or receiving different instructions.
5 Backpay due to Sleiman for the unlawful reduction in hours should
be calculated in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). See, e.g., Wild Oats
Markets, 344 NLRB 717, 718–719 (2005).
6 In finding these 8(a)(3) violations, the judge applied the analysis
set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Member Schaumber
notes that the Board and circuit courts have variously described the
evidentiary elements of the General Counsel’s initial burden of proof
under Wright Line, sometimes adding as an independent fourth element
the necessity for there to be a causal nexus between the union animus
and the adverse employment action. As stated in Shearer’s Foods, 340
NLRB 1093, 1094 fn. 4 (2003), because Wright Line is a causation
analysis, Member Schaumber agrees with this addition to the formula-
tion. Member Schaumber believes that such a causal nexus has been
shown here with respect to each of the three actions taken against
Sleiman.
The General Counsel cross-excepts to the judge’s dismissal of two
other 8(a)(1) allegations related to the handbilling. We find it unneces-
sary to pass on the cross-exceptions, inasmuch as finding these viola-
tions would be cumulative of other violations found, and would not
affect the remedy. Member Schaumber would affirm the judge’s dis-
DHL EXPRESS, INC. 695
with the judge’s recommendation to set aside the results
of the September 2007 election based on the Petitioner’s
objections and the unfair labor practices that occurred
during the critical preelection period. We shall therefore
direct a second election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, DHL Express, Inc., Bre-
inigsville, Pennsylvania, and The Crossroads Group La-
bor Relations Consultants, San Clemente, California,
their officers, agents, successors, and assigns, shall take
the action set forth in the Order.
[Direction of Second Election omitted from publica-
tion.]

MEMBER SCHAUMBER, dissenting in part.
I join my colleagues in the disposition of most of the
allegations presented in this case. I disagree, however,
with their decision to affirm the judge’s conclusions that
Respondent DHL unlawfully surveilled employees’ pro-
tected handbilling activity on July 30 in violation of Sec-
tion 8(a)(1), and that Respondents DHL and Crossroads
violated Section 8(a)(1) when labor consultant Michael
Penn threatened to sue employee Elias Sleiman for
defamation as a result of his remarks in a union newslet-
ter. In addition, I disagree with my colleagues’ decision
to set aside the results of the election and direct a new
election.
I. ALLEGED SURVEILLANCE OF EMPLOYEE
HANDBILLERS ON JULY 30
On July 30, a group of the Respondent’s off-duty em-
ployees distributed handbills on the sidewalk outside the
Respondent’s facility. In addition, nonemployee union
officials parked their car off of the public road along the
edge of the Respondent’s property, from which location
they communicated with the handbilling employees.
Upon discovering the nonemployee union officials’ pres-
ence, and believing them to be on the Respondent’s
property, the Respondent’s operations manager, Pasquale
Scaramuzzini, directed the security guards to call the
police.1
While the employees were handbilling, several of the
Respondent’s security guards approached the sidewalk
and stood within several feet of the handbillers. When

missal of these allegations for the reasons set forth in the judge’s deci-
sion.
We note that there are no exceptions to the judge’s dismissal of sev-
eral other complaint allegations of 8(a)(1) and (3) violations.
1 There is no contention that the Respondent violated the Act in call-
ing the police to investigate the propriety of the union officials’ pres-
ence at the site.
the police arrived to speak to the nonemployee union
officials, all but one of the security guards left the side-
walk area and walked over to the union officials’ car.
One of the security guards remained positioned among
the handbilling employees for the duration of time in
which the police were present at the Respondent’s facil-
ity (approximately 20–30 minutes). When the police
departed, the security guard who was positioned among
the handbillers, as well as the other guards, went inside.
Contrary to my colleagues, I cannot agree with the
judge’s conclusion that the presence of the Respondent’s
security guards among the employee handbillers consti-
tuted unlawful surveillance of the employees’ protected
union activities. As an initial matter, I note that the Re-
spondent’s security guards did not direct the employees
to cease handbilling, or otherwise attempt to interfere
with their handbilling efforts. Further, it was not unusual
for the guards to be present in the sidewalk area in which
the employees were handbilling. Indeed, the Respon-
dent’s security guards were responsible for, inter alia,
patrolling the area encompassing the parking lot and the
sidewalk that connects the parking lot to the facility en-
trance. Moreover, on the date in question, as the judge
found, a management official specifically directed the
security officers to call the police to investigate the pres-
ence of a group of nonemployees who were communicat-
ing with the handbillers from the edge of the Respon-
dent’s property. In light of that directive, it was certainly
reasonable for the security guards to temporarily position
themselves in a location that would enable them to ob-
serve and assess the situation until it was resolved.
Moreover, the guards went back inside the building as
soon as the police left the Respondent’s premises, con-
firming that the guards were concerned only with the
fulfillment of their assigned security duties. Under these
circumstances, I conclude that the security guards’ con-
duct did not constitute unlawful surveillance of the em-
ployees’ union activities.
II. ALLEGED THREAT TO SUE SLEIMAN
FOR DEFAMATION
During the course of the Union’s organizational drive,
Respondent DHL engaged the services of Michael Penn,
a partner with Respondent Crossroads Group Labor Re-
lations Consultants, and an admitted agent of the Re-
spondent. In August 2007, the Respondent held several
mandatory meetings at which Penn spoke to employees.
During the first such meeting, held on August 14 and
15,2 Penn described his background, including his tenure
as a union organizer. In that regard, according to his

2 Each of the meetings at which Penn spoke to employees was con-
ducted separately in both English and Spanish.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
own testimony, Penn told the employees that one of the
reasons that he had abandoned his role as a union organ-
izer was that he felt that he had only helped employees in
3 out of 10 union campaigns.3 In response to Penn’s
remarks, an employee named Millie stood up and
shouted, “You’re a thief, you stole my money,” and
called Penn a thief and a liar.
Shortly after Penn’s above-described meeting with the
employees, employee Elias Sleiman wrote an article that
appeared in the Union’s August 20 newsletter. The arti-
cle, which described Penn’s meeting with the employees,
stated, inter alia:

This union buster started lying in the first five
minutes of the meeting. He said he is just a labor
consultant and is here to advise the company about
labor laws so they stop breaking those laws. If that’s
true, why isn’t he upstairs educating managers and
supervisors instead of conducting anti-union meet-
ings with the workers?
This union buster [Penn] also admitted to a per-
sonal role of misrepresenting union members and ly-
ing to them about “stealing” their money. I don’t
know about the laws in Massachusetts but in Penn-
sylvania you go to jail for that.

Penn held a second set of meetings with employees on
August 21 and 22. At the English version of this meet-
ing, Penn held up a copy of Sleiman’s newsletter article
and asked if Sleiman was present. When Sleiman identi-
fied himself, Penn indicated that he wanted to read two
paragraphs of the article to which he took exception.
After reading aloud the above-quoted paragraphs from
Sleiman’s article, Penn told the employees that, contrary
to those statements, he had never implied that the Re-
spondent had been breaking the law, and that he had
been hired to communicate the Respondent’s position in
a lawful manner. Additionally, Penn told the employees
that he believed that the second paragraph above
“crossed the line” and that, although he was not an attor-
ney, he strongly believed that the statement was defama-
tory. Penn further stated that he “never said that, never
did it.” At that point, Sleiman stood up and said that he
had written only “what [he] understood from [Penn’s]
last meeting and nothing else and that’s the truth and I
would not apologize for me telling the truth.” In re-
sponse, Penn reiterated the statements he had made at the

3 More specifically, Penn testified:
That’s three out of every ten times I could honestly say the employees
at this company are better off with the union than they were before the
union came in. But seven out of ten times, I personally felt that we
left the employees in either the same situation or worse, and I say
worse only because we didn’t solve their problems yet they were now
paying union dues.
August 14–15 meetings regarding his experience as a
union organizer. See footnote 9, supra. According to the
credited testimony, Penn additionally told the employees
that he wanted a written retraction of Sleiman’s state-
ments and that, if he did not receive one, he would sue
Sleiman for defamation.
Contrary to the judge and my colleagues, I would not
find that Penn’s remarks to the employees regarding
Sleiman’s union newsletter article violated Section
8(a)(1). It is well established that employee statements
that are otherwise protected under the Act will lose pro-
tection if they are maliciously false, i.e., made with
knowledge of their falsity or with reckless disregard for
their truth or falsity. See Valley Hospital Medical Cen-
ter, 351 NLRB 1250, 1252–1253 (2007), enfd. sub nom.
Nevada Service Employees Local 1107 v. NLRB, 358
Fed. Appx. 783 (9th Cir. 2009); TNT Logistics North
America, 347 NLRB 568, 569 (2006), revd. sub nom.
Jolliff v. NLRB, 513 F.3d 600 (6th Cir. 2008); KBO, Inc.,
315 NLRB 570 (1994), enfd. mem. 96 F.3d 1448 (6th
Cir. 1996). In my view, even assuming that Sleiman’s
written remarks in the union newsletter otherwise consti-
tuted protected activity, his statement that Penn “admit-
ted to a personal role of misrepresenting union members
and lying to them about ‘stealing’ their money” was ma-
liciously false and, accordingly, lost the protection of the
Act. In his presentation to the employees, Penn, reflect-
ing on his tenure as a union organizer, expressed his
opinion that, in most instances, the union had not bene-
fited the employees, and yet had required the payment of
dues. Penn did not state, or even suggest, that he or oth-
ers misrepresented union members or lied to them about
stealing or misusing their money. Even if Sleiman con-
strued Penn’s conduct as a union organizer to be misrep-
resentation or theft, it would have been clear to him that
Penn did not admit to any such conduct. Thus, Sleiman’s
written remarks were not merely false, but maliciously
false. Accordingly, contrary to the judge and my col-
leagues, I find that Sleiman’s written remarks lost the
protection of the Act and that the Respondents did not
violate Section 8(a)(1) of the Act by virtue of Penn’s
statement that he would sue Sleiman for defamation if he
did not retract his remarks.4

4 In light of my conclusion that Sleiman’s comments in the union
newsletter lost the protection of the Act, I need not pass on the issue of
whether Penn’s threat to sue Sleiman for defamation was “incidental”
to the filing of a lawsuit, or whether a threat to sue that is incidental to a
lawsuit implicates the principles articulated in BE & K Construction
Co., 351 NLRB 451 (2007).
DHL EXPRESS, INC. 697
III. EFFECT OF UNFAIR LABOR PRACTICES
ON ELECTION
For purposes of analyzing election objections in a con-
solidated unfair labor practice and representation case,
the Board applies the standard articulated in Dal-Tex
Optical Co., 137 NLRB 1782 (1962), and its progeny:
Conduct violative of Section 8(a)(1) that occurs during
the critical period preceding an election will be found to
be, a fortiori, conduct that interferes with the exercise of
free choice in an election. However, the Board has also
recognized an exception to Dal-Tex in situations in
which the conduct is so minimal or isolated that it is “vir-
tually impossible” to conclude that the misconduct could
have affected the results of the election. Clark Equip-
ment Co., 278 NLRB 498, 505 (1986). In my view, the
“virtually impossible” exception is applicable here.5
My colleagues adopt the judge’s conclusion that a new
election is warranted in this case based on the cumulative
effect of the following unfair labor practices committed
by the Respondent during the critical period,6 all but one
of which were coextensive with the Union’s objections:
(1) the security guards’ unlawful surveillance of the em-
ployees’ handbilling activity on July 30; (2) Penn’s threat
to sue Sleiman for defamation; (3) the reduction of
Sleiman’s work hours; (4) Arends’ threat to retaliate
against Nereida Oquendo for writing a prounion newslet-
ter article; and (5) Sam Manzano’s threat of more oner-
ous work conditions if the Union won the election. In
contrast to my colleagues, and as explained above, I
would not find a violation with respect to the security
guards’ conduct on July 30 or Penn’s threat to sue
Sleiman for defamation. Moreover, as to the three re-
maining violations occurring during the critical period—
which I have joined my colleagues in adopting—each
affected only a single employee, and there is no evidence
indicating that any other unit employees witnessed or
were otherwise made aware of the Respondent’s miscon-
duct. Finally, the Union lost the election by an 82-vote
margin.7 In light of the isolated nature of the misconduct
and the fact that the election results were not close, I find
it virtually impossible to conclude that the election out-
come could have been affected. Accordingly, I would
certify the results of the election.

5 I note that the “virtually impossible” standard reflects current
Board precedent. I express no view on the appropriateness of the
“virtually impossible” standard, but find that, in any event, that stan-
dard has been satisfied here. See my position in Longs Drug Stores
California, 347 NLRB 500, 503 fn. 13 (2006); Washington Fruit &
Produce Co., 343 NLRB 1215, 1223 fn. 33 (2004).
6 The petition was filed on July 30, 2007, and the election was con-
ducted on September 12–13, 2007.
7 The tally of ballots indicates that 135 employees voted for the Un-
ion, and 217 employees voted against the Union.

Henry R. Protas and Edward J. Bonett Jr., Esqs., for the Gen-
eral Counsel.
Tedd J. Kochman and Paul H. Mazer, Esqs. (Littler Mendel-
son), of Newark, New Jersey, for Respondent DHL and Re-
spondent Crossroads.
Daniel B. Smith and Anton Hajjar, Esqs. (O’Donnell, Schwartz
& Anderson, P.C.), of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This con-
solidated representation and unfair labor case was tried in
Philadelphia, Pennsylvania, for 6 days from March 11 through
March 19, 2008. The case involves an organizing effort by the
Charging Party Union (the Union) at Respondent DHL’s Bre-
inigsville, Pennsylvania facility, beginning in April 2007 and
culminating in a Board-conducted election in September 2007.
The consolidated unfair labor practice complaint alleges that
Respondent DHL violated Section 8(a)(1) of the National La-
bor Relations Act (the Act) by various acts and statements of
coercion and interference through its admitted supervisors and
agents, including security guards employed by Risk Protective
Services, with which it had contracted to provide security ser-
vices at the Breinigsville facility, and Michael Penn, a labor
consultant employed by Respondent Crossroads, with which it
had contracted to help in its campaign to defeat the Union. The
complaint also alleges that Respondent Crossroads was itself
liable for the violations committed by Penn. In addition, the
complaint alleges that Respondent DHL violated Section
8(a)(3) and (1) of the Act by committing various acts of dis-
crimination against employee Elias Sleiman and by discrimina-
torily discharging employee Emilia Rios because of their union
activities. Some of the 8(a)(1) allegations were also advanced
by the Union as objections to the September 2007 Board-
conducted election, which was part of the representation case.
The Union asks that the election, which it lost by a vote of 217
to 135, be overturned and that the Board order a new election.
The Respondent filed an answer in the unfair labor practice
case, denying the essential allegations in the complaint. It also
urges that the Union’s objections to the election in the represen-
tation case be overruled and that the Board certify the election
results.1
After the trial, the General Counsel and the Respondent filed
briefs, which I have read and considered.2 Based on the entire
record in this case, including the testimony of the witnesses,
and my observation of their demeanor, I make the following

1 After the trial closed, the General Counsel submitted a substitute
for GC Exh. 1(v), which purported to be the Union’s objections to the
election, but apparently is not. The substitute, identified as GC Exh.
1(v-2), is admitted, without objection.
2 Respondent filed a “brief” of 141 pps., a copious corruption of the
word. The General Counsel submitted one half as long. The Charging
Party mercifully abstained from adding to the paper chase by not filing
a brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698
FINDINGS OF FACT
I. JURISDICTION
Respondent DHL is a corporation engaged in global package
delivery services for commercial customers, with a facility
located in Breinigsville, Pennsylvania, where the events oc-
curred. During a representative 1-year period, Respondent
DHL, in conducting its business operations, performed services
valued in excess of $50,000 outside the Commonwealth of
Pennsylvania. Accordingly, I find, as Respondent DHL admits,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Respondent Cross-
roads, an admitted agent of Respondent DHL, is a general part-
nership with an office and place of business in San Clemente,
California. It performs labor consulting work representing
management in labor and employment matters. During a repre-
sentative 1-year period, Respondent Crossroads performed
services valued in excess of $50,000 outside the State of Cali-
fornia. Accordingly, I find, as Respondent Crossroads admits,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.3
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Overview
Respondent’s facility in Breinigsville, Pennsylvania, near
Allentown, occupies some 500,000 square feet of space. Pack-
ages are unloaded from incoming trucks, sorted and processed,
and then reloaded onto trucks for final delivery. Some 450
employees, mostly identified as package handlers, work at the
facility. Respondent employs both full-time and part-time
package handlers on two basic shifts, the twilight shift that
begins at about 7:30 p.m. and the midnight shift that begins at
about 11:30 p.m. The Breinigsville facility opened in stages in
January and February 2007, with many of the employees trans-
ferring from a similar nearby facility operated by ABX, which
was taken over by Respondent. The management and supervi-
sory structure is headed by Plant or Hub Manager Shawn Swal-
low. Under him are an operations manager and sort managers,
as well as various supervisors and lead persons. The lead per-
sons are not supervisors and were eligible to vote in the Board
election.
Almost from the opening of the new facility, nonemployee
union organizers started handbilling outside the large parking
lot of the facility. Not only officials from the Union, but also
officials from the Teamsters union undertook these efforts.
Beginning in late April, however, employees themselves started
handbilling—for the Union—on the sidewalk leading from the
parking lot to the plant entrance. The sidewalk runs about 400
feet from the parking lot to the plant entrance, going straight for
a distance and then cutting at a right angle to the entrance. The
handbilling by employees continued on consecutive Mondays
through at least July 2007. Several of the complaint allegations

3 Hereafter, when the singular Respondent is used, it will refer to
Respondent DHL.
involve incidents of alleged interference with those handbilling
efforts, some of them implicating the use of security guards at
Respondent’s facility. Those incidents are discussed in more
detail later in this decision.
Uniformed security guards, employed by Risk Protective
Services, provide security services at the facility. Those guards
are admitted agents of the Respondent. There are three security
guard stations outside the facility. One of the posts covers the
parking lot and the sidewalk to the entrance of the plant. That
means that security guards have responsibility for this area,
although they often simply observed the area from a parked car
in the parking lot and did not regularly patrol the sidewalk area
on foot. Security guards are also stationed inside the entrance
to the facility, where they screen employees and visitors.
After the Union secured sufficient support from employees,
on July 30, 2007, it filed a petition for a Board election in a unit
of Respondent’s packaging employees. Pursuant to a Stipu-
lated Election Agreement approved on August 15, 2007, a
Board-conducted election was scheduled for September 12 and
13, 2007. Prior to the election, both the Union and the Respon-
dent distributed handbills and other material to the employees
urging them to vote either for or against union representation.
The Union also periodically distributed its newsletter, which
included articles authored by particular employees, including
the alleged discriminatees, Elias Sleiman and Emilia Rios.
Respondent countered with handbills of its own. The Respon-
dent also had a labor consultant, Mark Penn, an admitted agent
of Respondent, speak to groups of employees on several occa-
sions in late August to urge them to vote against the Union.
The employees were required to attend the meetings, which
were held on worktime, and they were paid for the time they
spent at the meetings. Many of the Respondent’s employees
speak Spanish. Penn, who is fluent in Spanish, spoke sepa-
rately to the Spanish-speaking employees and the English-
speaking employees, making basically the same points in each
language. The General Counsel alleges that, in two of the
speeches, Penn made statements that were violative of the Act.
Those allegations will be considered in more detail later in this
decision.
Two of the leading union activists were Elias Sleiman and
Emilia Rios, part-time employees at the facility. Both were
known by Respondent’s management and supervisors to be
union activists. Sleiman particularly was an outspoken union
advocate, who regularly handbilled on the sidewalk outside the
entrance to the facility. On several of those occasions, he had
confrontations with security guards and managers. He was also
active in asking questions and making comments during Penn’s
meetings with assembled employees. Rios also engaged in
handbilling and was the leading Spanish-speaking employee
distributor and gatherer of union authorization cards. The Gen-
eral Counsel alleges that, at various times from May through
July 2007, Respondent discriminated against Sleiman by reas-
signing him to more onerous duties, restricting his movements,
reducing his work hours, and issuing him a written warning and
a negative evaluation. The General Counsel also alleges that
Respondent discriminatorily discharged Rios on June 27, 2007.
The complaint also contains other allegations of 8(a)(1) con-
duct during the period leading up to the election. All of these
DHL EXPRESS, INC. 699
allegations will be discussed in more detail later in this deci-
sion.
The election was held as scheduled on September 12 and 13,
2007. The employees rejected the Union by a vote of 217 to
135, with 3 challenged ballots that were not outcome determi-
native. The Union filed objections to the election. It withdrew
some of them during the first day of the hearing, which left
only objections that were coextensive with some of the com-
plaint allegations in the unfair labor practice case. The Re-
gional Director also ordered that, in determining the validity of
the election, I consider conduct set forth in paragraphs 10,
11(b), and 13 in the consolidated complaint because evidence
on those matters was uncovered in the course of the Regional
Director’s investigation of the Union’s objections.
B. The Allegations of Interference with
Employee Handbilling
The complaint alleges that, on three different occasions, on
April 30, May 14, and July 30, 2007, the Respondent unlaw-
fully interfered with employee handbilling on the sidewalk
outside the entrance of its facility. Since the employees were
distributing prounion handbills before the beginning of the
evening shift on nonworktime and in nonwork areas, the hand-
billing was protected union activity. In paragraphs 6(a) and (b),
the complaint alleges that, on April 30, Respondent, through its
security guards, who were admitted agents of the Respondent,
and other management officials, directed employees to leave
the premises from which they were distributing handbills; told
them if they did not, the police would be called; and also en-
gaged in surveillance of employees while they were handbill-
ing. In paragraphs 7(a), (b), and (c), the complaint alleges that
Respondent, through agents Gloria Szymborski and Human
Resources Manager Dennis Arends, engaged in unlawful sur-
veillance and interference on May 14, by mingling and interfer-
ing with employees while they were engaged in protected
handbilling activity; and by Arends’ taunting of an employee
handbiller on that occasion. In paragraph 9, the complaint al-
leges that, on July 30, Respondent, again through its admitted
agents, security guards attached to the facility, engaged in sur-
veillance of employees who were distributing prounion hand-
bills.
The Facts
April 30, 2007, was the first time employees distributed pro-
union handbills on the sidewalk separating the employee park-
ing lot and the entrance to the facility. The sidewalk runs about
400 feet from a Y-shape at the end of the parking lot, past a
right-angle turn, and directly to the main entrance to the facil-
ity. The handbillers were stationed on this occasion, and on all
other occasions, about midway between the parking lot and the
right-angle turn to the entrance. They were, thus, at least 100
feet away from both the entrance and the parking lot. The
handbilling began at about 6:30 p.m., 1 hour before the evening
shift started. Employees Elias Sleiman and Emilia Rios, to-
gether with two other employees, William Molina and Eugene
Esterly, did the handbilling on this occasion. Sleiman was the
most active of the handbillers and he clearly was their leader.
Shortly after they began handbilling, the employees were ap-
proached by Respondent’s security guards and told to leave
immediately. They were told that they could not handbill
where they were stationed, and that, if they did not leave, the
police would be called. Sleiman questioned the propriety of
that order and the employees continued handbilling, while the
security guards remained among them. As a result, the Re-
spondent called the police, and, about 10 minutes later, the
police arrived on the scene. Human Resources Manager Den-
nis Arends admitted that he was the person who directed the
security guards to order the handbillers to leave and to call the
police. The security guards remained with the handbillers until
the police arrived. In addition, at one point, Sort Manager
Mark Levey approached the handbillers and told them that they
were not permitted to handbill in that area. After a while, the
police talked with some nonemployee union officials, who were
outside the premises, off a public road adjoining the facility,
where they offered advice and encouragement to the handbill-
ers. As a result of these conversations and conversations with
Respondent’s officials, the police left. Respondent concedes
that the employees were entitled to handbill during the times
and at the location at which the handbilling took place.
During the time the police were present, and even after the
police left, several of Respondent’s managers and supervisors
appeared outside the entrance to observe what was happening.
Arends, for example, remained at the entrance of the facility
watching the proceedings. The security guards also assembled
there for about 10 minutes after they left the area where the
handbilling took place.4
Employees continued handbilling every Monday throughout
the next few months. Sleiman and Rios were among the hand-
billers. On May 14, while employees were handbilling before
the beginning of the shift, Human Resources Manager Arends
directed one of his assistants, Gloria Szymborski, to go outside
and distribute water bottles to the incoming employees. Appar-
ently, the Respondent had some water bottles left over after a
reception that day inaugurating the opening of the facility.
Szymborski went outside and stood among, and very near, the
employees distributing handbills. She distributed some water
bottles, but she also stood among the handbillers for a period of
time without distributing water bottles. Photographs were
taken of her among the handbillers, one of her carrying a box of
water bottles and one of her without a box. Those photographs
are exhibits in this case. She remained among the handbillers
for about 15 or 20 minutes, according to the uncontradicted
testimony of several witnesses, including two of the handbill-
ers, Sleiman and Esterly, as well as Union Representative Mark
Dimondstein, who observed what was happening from his van-

4 The above is based primarily on the credible testimony of employ-
ees Sleiman and Esterly, which was in substantial accord on material
matters, augmented in part by the testimony of Union Representative
Mark Dimondstein, who viewed the scene from his vantage point off
the facility some 40 or 50 feet away from the action. I found particu-
larly credible the testimony of Esterly that Area Manager Mark Levey
told the employees that they could not handbill on the sidewalk.
Sleiman and Dimondstein corroborated Esterly in this respect, even
though Dimondstein could not identify Levey by name. I reject
Levey’s testimony that he did not make such a comment since I found
his testimony in this respect unworthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
tage point on the road alongside the facility. Szymborski, who
did not testify in this proceeding, engaged in conversations with
the handbillers, including asking how many employees were
handbilling. In response to questions from the handbillers as to
why she was there, she answered that her boss, Arends, had
sent her outside and that she was told to remain with the hand-
billers. After she left and went back inside, Arends came out-
side with some water bottles. He passed by the handbillers and
engaged them in some small talk. He then went to the far end
of the sidewalk near the beginning of the parking lot and dis-
tributed water bottles to employees as they were reporting for
work. There is no reason given on this record why Arends and
Szymborski did not distribute their water bottles near the en-
trance to the facility. Indeed, according to Arends, there were
some bottles of water left over the next day, Tuesday, May 15.
On that occasion, Arends and another assistant of his distrib-
uted those bottles to employees inside the entrance to the facil-
ity.
I find that Arends crafted his testimony to give the impres-
sion that his presence among the handbillers on this occasion
was unrelated to their handbilling and was motivated by a de-
sire to simply meet and greet employees and give out water
bottles. I reject that testimony. I find that Arends’s testimony
in this respect demonstrated a lack of candor that adversely
infected the reliability of his testimony on this and other issues
about which he testified. I find instead that Arends and Szym-
borski deliberately injected themselves in and around the hand-
billers to interfere with the handbillers and to intercept employ-
ees before they approached the handbillers. Sleiman told Ar-
ends that his presence around the handbillers was causing the
employees to avoid accepting the handbills, and I find, in ac-
cordance with Sleiman’s testimony, that some employees did in
fact avoid accepting handbills because of Arends’s presence.
Sleiman and Arends also exchanged words, away from the
other handbillers, at one point during the evening of May 14.
Sleiman testified that Arends followed him as he tried to move
away from Arends, and, when Sleiman questioned his presence
there, Arends replied that he could remain where he was and
taunted him by stating, “Come on. Bring it on.” Arends denied
he made such a remark, and testified that Sleiman left the area
where he was handbilling and approached Arends where he was
distributing water bottles and engaged him in conversation.
There is no doubt that the two men had a confrontation, but no
other employees overheard what was said. I believe that Ar-
ends did make the statement attributed to him by Sleiman.
Sleiman’s testimony on the point was firm and withstood vig-
orous cross-examination. I found Arends to be a less reliable
witness, having exaggerated his reason for injecting himself in
the midst of the handbillers, as indicated above. He also dem-
onstrated an interest in defending his turf. He made it clear,
both to Sleiman at the time and on the witness stand, that he
had a right to be where he was on this occasion. In all the cir-
cumstances, I believe it is perfectly plausible, and more likely
than not, that he made the remark attributed to him by Sleiman.
The employees continued to handbill every Monday at the
same time and location. On July 30, 2007, Operations Manager
Pasquale Scaramuzzini noticed that nonemployee union offi-
cials had parked their car off a public road along the outside of
Respondent’s property. These officials had stationed them-
selves in this area on prior occasions so that they could oversee
the handbilling and call out instructions and otherwise commu-
nicate with the employees handbilling on the sidewalk of the
Respondent’s facility. Respondent had never before objected to
their presence, although there is apparently some dispute as to
whether they were on Respondent’s property or on public prop-
erty. On this occasion, Scaramuzzini directed the security
guards to call the police and confront the nonemployee union
officials. The police arrived and spoke to the union officials.
There is no allegation that Respondent did anything wrong in
calling the police or having them confront the union officials
off the public road adjoining the facility.
The General Counsel does, however, allege a violation with
respect to actions taken against the employee handbillers on
July 30. There was no police effort directed to the handbilling
employees, but several security guards approached the hand-
billers, according to Sleiman, who again was handbilling on the
sidewalk with several other prounion employees. Sleiman told
them to leave, but one security guard was stationed among the
handbillers for about 20 minutes to half an hour—and very
close to the handbillers—while the police were dealing with the
union officials. The guard did not leave until the police left,
even though Union Representative Dimondstein, from his van-
tage point about 40 or 50 feet away, called over to Sleiman to
tell the guard to leave. Sleiman spoke to the guard who never-
theless remained among the handbillers. The testimony of
Sleiman and Dimondstein about the security guard remaining
among the handbillers on this occasion was uncontradicted and
I credit it.
Analysis
I find that Respondent unlawfully interfered with protected
concerted activity when, on April 30, its agents told handbillers
that they could not handbill on the sidewalk leading to the plant
entrance, threatened to call, and actually called, the police. Sort
Manager Levey and the security guards transmitted these mes-
sages to the handbillers, and, of course, Arends was responsible
for setting these events in motion. Such conduct amounted to
surveillance and more. Respondent’s conduct was coercive and
unlawfully interfered with protected union activity. See Sprain
Brook Manor Nursing Home, LLC, 351 NLRB 1190, 1191–
1193 (2007); and North American Pipe Corp., 347 NLRB 836,
847 (2006).
Although the General Counsel also separately alleges that
Respondent engaged in surveillance on this occasion because
several of Respondent’s supervisors and managers watched the
goings on while the security guards and the police intervened, I
find that such passive conduct did not amount to a separate
violation of the Act. I believe the management officials watch-
ing the action on this occasion were simply acting as curious
onlookers. The General Counsel also alleges that the security
guards remained in the area among the handbillers and that this
too constituted surveillance. For the same reason I gave above
with respect to the presence of the management officials, I be-
lieve that the conduct of the security guards in remaining on the
scene after their initial interference with the handbilling was
simply a continuation of the earlier unfair labor practice and
DHL EXPRESS, INC. 701
adds nothing new in terms of unlawful conduct. Once the po-
lice left, the employees were permitted to handbill without
interference, notwithstanding that management officials and
security guards remained on the scene observing what was
taking place. I do not believe that there was anything sepa-
rately coercive in such conduct in either case. Nor would a
separate finding of surveillance significantly add to the remedy
in this case, particularly since I have found a violation with
respect to other aspects of Respondent’s conduct on April 30
and I am finding a surveillance violation on other allegations in
the complaint. I therefore find the violation alleged in para-
graph 6(a) of the complaint and dismiss the allegation in para-
graph 6(b) of the complaint.5
I also find that Respondent interfered with and surveilled
protected activity when, on May 14, Szymborski and Arends
injected themselves into the handbillers’ midst while they were
handbilling employees. Szymborski, who was sent outside by
Arends, was an agent of the Respondent on that occasion, spe-
cifically authorized by Arends to go outside and distribute wa-
ter bottles to employees while the handbilling was in progress.
While there, she remained near and around the handbillers for
an extended period of time, thereby interfering with their hand-
billing efforts. In all the circumstances, the employees, particu-
larly those doing the handbilling, reasonably believed that
Szymborski was speaking and acting for Respondent’s man-
agement while she stationed herself among them. See Albert-
son’s Inc., 344 NLRB 1172 (2005); and Wal-Mart Stores, Inc.,
350 NLRB 879, 884 (2007), and cases there cited.
When Szymborski left and went back inside the facility, Ar-
ends replaced her, and he too stationed himself in such a way as
to interfere with the handbillers’s efforts. Although Respon-
dent tried to present their actions as an innocent effort to meet
and greet employees and offer them water, I have rejected Ar-
ends’ testimony to this effect. I find instead that the reason he
advanced was a pretext. It is clear that Arends deliberately
injected himself and his assistant into the handbilling activity in
order to interfere with that activity. They could have distrib-
uted their water to employees immediately outside or even
inside the entrance to the facility, as Arends and another assis-
tant did the very next day. But they chose to go outside, well
away from the entrance and right where the handbilling was
taking place, in a childish effort to interfere with the handbill-
ing. This was clearly the type of unusual and out of the ordi-
nary activity that permits a finding of unlawful surveillance,
even though management officials are observing protected

5 I reject Respondent’s contention (Br. 12) that its violation was “de
minimis” or somehow “cured.” A large group of employees was privy
to Respondent’s conduct, which had a reasonable tendency to interfere
with Sec. 7 rights. It would be natural for employees to resist taking
any of the handbills for fear of becoming embroiled in police and secu-
rity guard activity sanctioned by Respondent’s management. Nor did
Respondent repudiate its unlawful conduct, undertake broad and ade-
quate publication of such repudiation, or formally notify employees that
it would not interfere with employee rights in the future. Indeed, it
engaged in other unfair labor practices. Thus, the requirements of
Passavent Memorial Area Hospital, 237 NLRB 138 (1978), that might,
in some circumstances, permit an employer to avoid liability for viola-
tions were not met in this case.
activity on the employer’s property. See Sprain Brook Manor,
supra at 1191 and cases there cited. I therefore find that the
General Counsel has proved the violations alleged in para-
graphs 7(a) and (b) of the complaint.
I do not believe, however, that Arends’ remark to Sleiman on
this occasion—“Come on. Bring it on”—amounted to a sepa-
rate violation of the Act. At most, the remark, which no one
else overheard, was an invitation to fight, not a threat that Ar-
ends would do anything, certainly nothing of a physical nature.
More likely, it was an angry response to Sleiman’s questioning
of Arends’s perceived right to be where he was. To the extent
that the remark can be related to Sleiman’s union activity—his
handbilling—it was a part of Arends’s overall interference with
the handbilling activity on May 14. I have found such interfer-
ence amounted to unlawful surveillance. Arends’ remark to
Sleiman added nothing of significance to the surveillance find-
ing, except perhaps that it demonstrated the interference with
the handbilling was intentional and deliberate. It also demon-
strated Respondent’s antipathy and animus towards Sleiman for
his union activities, but it was not itself a separate unlawful
threat. In these circumstances, I find that the General Counsel
has not proved the separate violation alleged in paragraph 7(c)
of the complaint. Accordingly, that allegation will be dis-
missed.
I further find that the Respondent engaged in unlawful sur-
veillance when, on July 30, it stationed its security guards next
to the employee handbillers while the police were investigating
the propriety of nonemployee union officials being on the
roadway adjacent to the facility. It is uncontested that the em-
ployee handbillers were properly engaging in protected union
activity on the sidewalk leading to the facility so there was no
legitimate reason for the presence of the security guards in the
midst of the handbilling. The testimony concerning the pres-
ence of the guards on this occasion was uncontradicted and
credible. In particular, the presence of one guard among the
employee handbillers for such an extended period, and so near
them, was unusual and out of the ordinary. It was also com-
pletely unconnected to whatever concerns the Respondent had
about the presence of the union officials on the roadway adja-
cent to the facility. Accordingly, I find that the General Coun-
sel has proved the surveillance allegation in paragraph 9 of the
complaint. See Villa Maria Nursing Center, 335 NLRB 1345,
1353 (2001).6

6 Respondent put on evidence to the effect that its security guards are
normally “posted” in the parking lot and the sidewalk area leading to
the entrance to the facility, thus suggesting that the presence of the
security guards in the midst of the handbillers was normal, perhaps an
effort to check the IDs of the handbillers to make sure they were em-
ployees. I reject any such contention. First of all, the security guard
posting is not equivalent to a security guard being stationed on the post.
Security guards were simply responsible for any suspicious activity on
the sidewalk; they were not normally positioned in that area. Nor did
they simply check IDs when they positioned themselves among the
handbillers on July 30. Indeed, there is absolutely no evidence that
they checked IDs on this or any other occasion when they confronted
the handbillers. By July 30, both the security guards and Respondent’s
management officials knew that the handbillers were bona fide off-duty
employees legitimately engaging in protected union activity on the
sidewalk leading to the entrance to the facility. More importantly, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
C. Various 8(a)(1) Violations
The General Counsel alleges that several supervisors com-
mitted violations when they interacted with employees at the
facility from about mid-April through early September 2007.
The relevant allegations are set forth in paragraphs 5, 8, 10,
11(b), and 13 of the complaint. The evidence relating to those
allegations basically involves the testimony of one employee
(or, in one case, two employees) and the supervisor.
In paragraph 5 of the complaint, the General Counsel alleges
that, in about mid-April 2007, Supervisor Jeff Ng unlawfully
interrogated an employee concerning her union sympathies.
The evidence in support of this allegation comes from the tes-
timony of employee Niselle Rodriquez. She testified that,
sometime in April 2007, her supervisor, Ng, presented her with
her evaluation. Thereafter, at his computer desk, he engaged
her in small talk, including asking her what she thought about
the Union. Rodriquez, who had not indicated her position on
the Union prior to this point, answered that she had heard
things about the Union, but did not know much about it. Ng
then said, “It’s your choice, don’t let nobody tell you what to
do.” (Tr. 556.) Ng denied having a one-on-one conversation
with Rodriquez about the Union, although he testified that he
had general conversations about unions in so-called presort
meetings with the employees he supervised. I have no reason
to discredit Rodriquez, who impressed me as an honest witness.
I therefore accept her testimony as an accurate account of what
happened between her and Ng.
Interrogations are not per se unlawful. The test for whether
an interrogation is unlawful is “whether under all the circum-
stances the interrogation reasonably tends to restrain, coerce, or
interfere with rights guaranteed by the Act.” Bloomfield Health
Care Center, 352 NLRB 252 (2008), quoting from Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In the
circumstances of this case, I do not find that the interrogation of
Rodriquez by Ng was unlawful. Although Rodriquez’ union
sympathies were unknown, the questioning was by a low-level
supervisor and did not take place in a formal setting. The ques-
tion itself was innocuous and Rodriquez’ response was unre-
markable. Significantly, Ng ended the conversation by stating
that whether to support a union or not was Rodriquez’ choice,
thus, signifying that he did not mean to coerce or even influ-
ence her in that choice. The questioning was not undertaken in
the context of threats or other coercive conduct. And it appears
to have been an isolated incident, certainly not repeated by Ng.
Thus, I do not believe the questioning reasonably tended to
restrain, coerce, or interfere with employee rights. Accord-
ingly, I shall dismiss the allegation of unlawful interrogation in
paragraph 5 of the complaint.
In paragraph 8 of the complaint, the General Counsel alleges
that Supervisor Tom Garritano threatened employees with
stricter work rules leading to discipline and discharge if they
selected the Union to represent them. In support of this allega-

conduct of the security guards remaining among the handbillers and
monitoring their activities for an extended period of time on July 30
was certainly out of the ordinary and unusual. That was sufficient to
support a finding of unlawful surveillance.
tion, the General Counsel offered only the testimony of em-
ployee Greg Eshbach, who testified that he found himself over-
hearing Garritano speaking to the employees he supervised in a
preshift meeting in the spring of 2007. Eshbach did not work in
that part of the facility, but was in the area picking up a key for
the forklift he was operating. Eshbach testified that Garritano
was addressing about 15 employees, none of whom Eshbach
knew. According to Eshbach, in the course of his remarks,
Garritano said that, if the Union was voted in, he could not
work with it and he would have to enforce the rules—”you’d go
to the shop steward and you would just have to either get disci-
plined or fired.” (Tr. 450.) Eshbach also said that Garritano
related his remarks to his personal experiences in the Army.
Garritano credibly testified that he spoke to his employees on
occasion about his personal experience as a Defense Depart-
ment employee, in which he described the situation where wage
rate employees worked side by side with general schedule em-
ployees. He told his employees that the wage rate employees,
who were represented by unions, had much stricter rules. He
also told employees that he could not predict how a union
would function if it secured representation rights at Respon-
dent’s facility.
I cannot accept Eshbach’s testimony as an accurate portrayal
of what Garritano said at any particular meeting. His account is
so truncated and difficult to understand that I cannot make a
sensible finding of fact based on his testimony. Nor was his
testimony supported or corroborated by any one else, even
though several employees supposedly heard the same remarks
that he did. Garritano understandably could not even identify
Eshbach as being present in any of his preshift meetings be-
cause Eshbach did not belong there and merely overheard what
was being said. Nevertheless, Garritano’s candid testimony
about what he said generally at preshift meetings makes sense
and holds together as a coherent story. It also fills in the blanks
in Eshbach’s rather disjointed account. I am convinced that
Eshbach garbled what he actually heard and that Garritano’s
testimony reflects more completely what he said at all of his
meetings, including the one Eshbach was testifying about.
Garritano impressed me as a completely honest and reliable
witness, whose testimony was much more detailed and com-
prehensible than Eshbach’s. In these circumstances, I cannot
credit Eshbach’s testimony about what Garritano said. I credit
instead Garritano’s testimony as to what he likely said in the
meeting that Eshbach overheard. Accordingly, I shall dismiss
the allegation that Garritano violated the Act as set forth in
paragraph 8 of the complaint.
In paragraph 10 of the complaint, the General Counsel al-
leges that, in late August 2007, Operations Manager Pasquale
Scaramuzzini solicited grievances from employees and prom-
ised unspecified benefits if they rejected the Union. The evi-
dence in support of the allegation comes from the testimony of
employees Delvin Pena and Juan Ramon Mora Gomez. Pena
testified that, at some point shortly before the election, he and
Gomez were waiting for an elevator at the facility when they
were approached by Scaramuzzini, who had just come on the
job as the operations manager. Scaramuzzini in fact started his
employment on July 16, 2007. According to Pena, Scaramuzz-
ini made a comment about Pena’s ID lanyard, which had the
DHL EXPRESS, INC. 703
Union’s name on it. Scaramuzzini asked whether Pena and
Gomez knew anything about the Union. After they replied that
they did, Scaramuzzini said that he did not know what was
going on before he arrived at the facility, but, now that he was
here, there was no need for a union. He continued, “I am here,
and if you have a problem you address me and I promise you
that this problem will be solved.” (Tr. 561–562.) Gomez testi-
fied that Scaramuzzini also addressed him on this occasion,
“trying to seduce us . . . to be in the opposite side of the Un-
ion.” (Tr. 582.) Scaramuzzini derided the benefits that the
Union could obtain for the employees and Gomez asked what
the Respondent could do for them. According to Gomez,
Scaramuzzini said he could “do anything for me” if “we
dropped . . . the Union.” (Tr. 583.) Gomez did not corroborate
Pena’s testimony about Scaramuzzini’s remarks concerning
addressing him about problems, and Pena did not corroborate
Gomez’ testimony about Scaramuzzini’s remarks concerning
benefits.
Scaramuzzini denied ever promising any employees that he
would fix their problems because that would have been con-
trary to instructions he had been given by his superiors on how
to approach the employees with respect to the union campaign.
He said that he did tell employees that he was available to an-
swer their questions in accordance with Respondent’s so-called
“open door” policy. He specifically denied telling Pena or
Gomez that he would take care of their problems if they voted
against the Union. He also denied telling Gomez, he would
give Gomez anything he wanted if he would reject the Union.
He did testify that he did have a conversation with both em-
ployees near the elevator on the second floor, but that the con-
versation was about their training for new positions. In the
course of that conversation, he said if they had any questions
they should come to see him.
I do not believe that the General Counsel has proved the vio-
lations alleged in paragraph 10 of the complaint. I do not credit
Pena’s testimony that Scaramuzzini said that there was no need
for a union and tied that remark to the notion that grievances
could be brought to him without the need for a union. Pena’s
testimony in this respect was not corroborated by Gomez, who
was also present on this occasion. Nor did I find Pena an im-
pressive witness. I find much more plausible the testimony of
Scaramuzzini that he never made such a statement and that any
conversation with the two employees had to do with their train-
ing. Scaramuzzini impressed me as a reliable witness and I
have no reason to doubt his testimony. Gomez’ testimony
about the alleged promise of benefits is hard to comprehend.
But it likewise was not corroborated by Pena, who was present
and would have overheard Scaramuzzini’s alleged remarks. I
cannot credit Gomez’ testimony in this respect. Not only was
Scaramuzzini a more reliable witness than Gomez, but Gomez’
testimony that Scaramuzzini promised him “anything” if he
would reject the Union does not ring true. In these circum-
stances, I find that Scaramuzzini did not make the remarks
attributed to him by Pena and Gomez. Accordingly, I shall
dismiss the allegations set forth in paragraph 10 of the com-
plaint.
Paragraph 11(b) of the complaint alleges that, in late August
or early September, Human Resources Manager Arends threat-
ened to discharge an employee for writing a union newsletter
article critical of Respondent and favorable to the Union. The
evidence in support of this allegation comes from the testimony
of employee Nereida Oquendo. She testified that, a couple of
days before the election, Arends was distributing coupons for
the Allentown Fair to employees near the entrance to the facil-
ity. According to Oquendo, when she approached Arends to
get her coupon, he mentioned an article she had written in a
recent union newsletter supportive of the Union. The article
stated that the employees should be willing to pay union dues.
Arends commented that Oquendo had been absent in the past
and the Respondent had not fired her. She responded that she
had indeed been absent, but had an excuse. On cross-
examination, Oquendo reinforced and confirmed her testimony
on direct when she was asked about her pretrial affidavit,
which, in substance, supported her testimony. According to
Oquendo, Arends said, “Oh, you are the one who wrote the
article in the newsletter” and she answered that she had. And
then he asked why she had written it, but before she could an-
swer, Arends said that she had “missed three weeks sick and
the company did not even fire me.” (Tr. 534.) Oquendo re-
sponded to Arends by stating that she had called her supervisor
about her absences.
Arends denied he had ever talked to Oquendo about her
newsletter article. He also denied threatening her because she
had written a newsletter article. He did, however, recall having
a conversation with her, in which he reminded her, as he did
with other employees, that “DHL had looked out for their inter-
ests in the past.” (Tr. 1106.) He also confirmed that he and his
assistant, Geoffrey McVey, handed out tickets to employees for
the Allentown Fair. On cross-examination, Arends elaborated
on how Respondent had helped Oquendo. He stated that she
had been a no-call no-show for “a number of days in a row.”
He also stated that, at this time, Oquendo had called him to say
that she wanted to “keep her job.” (Tr. 1130.) And he told her
that she was welcome to return. Arends nevertheless denied
that he reminded Oquendo of this when he gave her tickets for
the Allentown Fair.
I credit Oquendo’s testimony. She impressed me as an hon-
est witness, who withstood vigorous cross-examination and
reinforced her testimony by reference to her pretrial affidavit.
Arends, on the other hand, did not impress me as a reliable
witness, particularly when he was testifying about his involve-
ment in the handbilling activities of employees on May 14. He
had a distinct tendency to testify in conformity with Respon-
dent’s litigation theories rather than to candidly and truthfully
testify about what happened. Moreover, his testimony on
cross-examination concerning the Oquendo incident tends to
confirm that of Oquendo. It certainly confirms the context of
her testimony. Arends did indeed do her a favor in the past.
He basically excused what would have amounted to a dis-
chargeable offense. It would have been plausible for him to
remind her of it, as she testified, when Arends spoke to her
about her newsletter article in the course of giving out tickets to
the Allentown Fair. Nor do I credit Arends’ testimony that he
never mentioned the adverse newsletter article. That too would
have been plausible, particularly in view of the intensity of the
union campaign and the notoriety of newsletter articles gener-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
ally during the union campaign. My assessment of the situa-
tion, as well as my observation of Arends’ demeanor, also con-
vinces me that Arends viewed Oquendo’s newsletter article in
favor of the Union as a personal betrayal, especially because he
had done her a favor in the past. In view of my credibility de-
termination, I find that Arends did indeed mention the newslet-
ter article to Oquendo and made a reference to not having fired
her in the past. The clear implication of his statement was that
the Respondent had the authority to retain or discharge employ-
ees and would exercise this authority based on whether an em-
ployee supported the Union or not. This amounts to a threat to
retaliate against employees because of their union activities.
Accordingly, I find that Respondent has violated the Act, in
accordance with the allegation in paragraph 11(b) of the com-
plaint.
In paragraph 13 of the complaint, the General Counsel al-
leges that Supervisor Sam Manzano threatened an employee
with more onerous working conditions if employees voted for
the Union. The evidence in support of that contention was
based on testimony from employee Elisa Alonzo, who speaks
Spanish, not English. She testified that, a few days before the
election in early September, in one of the break areas, Supervi-
sor Manzano, who was not her supervisor, but who also spoke
Spanish, had a conversation with her in Spanish. Her own su-
pervisor, who did not testify, was also present, but he spoke
only English. According to Alonzo, Manzano told her that she
should not vote for the Union because it was “no good.” He
related that he had family members, who had worked in a un-
ionized operation, and the experience was not a good one.
Manzano also said that if a union came in, “the supervisors
could not help the workers, they could only watch.” (Tr. 442.)
Alonzo explained that Manzano said the supervisors could not
help with “pulling the sled or the pallets,” something she de-
scribed as “heavy work.” (Tr. 442.) Manzano testified gener-
ally that he often told employees about the bad experiences his
family members had had working in union environments, but
insisted that he also told employees that he could not speak for
what would happen at Respondent’s facility if the Union won
the election. Manzano’s testimony about the conversation with
Alonzo was sketchy. In response to a question by Respon-
dent’s attorney as to whether he recalled having a conversation
with Alonzo, Manzano stated, “I don’t specifically recall speak-
ing to her, but I have no reason to say I didn’t, either.” (Tr.
865.) He then responded to another general question about his
family member’s experience in a unionized plant by repeating
that he made sure the employees understood that what hap-
pened there did not necessarily mean that it would happen at
Respondent’s facility. In view of Manzano’s lack of specific
recollection concerning their conversation, and Alonzo’s more
reliable and detailed recollection of that conversation, I credit
Alonzo’s account.
Manzano’s statement that, if a union were voted in at Re-
spondent’s facility, the supervisors would not help the employ-
ees with their work amounted to a threat that the employees
would suffer an adverse change in their working conditions if
the Union came in. The context of the statement carries the
clear implication that, at present, the supervisors do help em-
ployees with their work, especially the heavy work of pulling
sleds or pallets. Otherwise, there would be no need to phrase
the statement the way it was phrased. Neither in Manzano’s
testimony nor elsewhere in the record is there any support for
the notion that supervisors did not help employees with their
work, prior to Manzano’s statement. Manzano’s statement to
Alonzo was also separate from and completely unrelated to
Manzano’s other statements about the adverse effects of a un-
ion on his family members. Thus, his testimony that, as a gen-
eral matter, he would caution employees that he did not know
whether the effects of a union on Respondent’s operations
would be the same does not operate to exonerate him from the
effects of his specific statement to Alonzo about not helping
employees. Nor was there any evidence that Manzano’s state-
ment to Alonzo referred to possible union rules governing work
in the operations of unionized employers. Manzano gave no
such explanation in his testimony. In these circumstances, I
view Manzano’s statement to Alonzo as an unlawful threat that,
if the Union were voted in, employees would be subjected to
stricter and more onerous working conditions. Accordingly, I
find that the Respondent violated Section 8(a)(1) of the Act, as
set forth in paragraph 13 of the complaint.
C. The Allegations Involving Labor Consultant
Mark Penn
As indicated above, Mark Penn, a labor consultant utilized
by Respondent and an admitted agent of Respondent, as well as
Respondent Crossroads, is accused of committing two unfair
labor practices in speeches he gave to employees. Paragraph
11(a) alleges that, on August 21, 2007, in remarks addressed to
assembled employees, Penn threatened to sue an employee for
writing a newsletter critical of Respondent and supportive of
the Union. Paragraph 12 alleges that, in another speech to em-
ployees in late August 2007, Penn threatened employees with
the “loss of their regularly scheduled annual wage increases if
they selected the Union as their collective bargaining represen-
tative.”
1. The alleged threat to sue
The Facts
Penn gave at least three different sets of speeches to groups
of employees, all of which were given separately in Spanish
and in English. The first speech, delivered on the week of Au-
gust 14 and 15, was generally about the Act, the Board and the
Board’s election process. At that meeting, Penn spoke a bit
about his own background, which included stints as a union
organizer and as a labor consultant for management. He testi-
fied he made presentations similar to the ones he made for Re-
spondent some 250 times over the course of his career as a
labor consultant. He does not utilize a written script for his
presentations. In his first speech, he also mentioned that, in his
work as a union organizer, he felt he had helped employees in
only three out of ten campaigns. Penn testified that he told
employees, “That’s three out of every ten times I could hon-
estly say the employees at this company are better off with the
union than they were before the union came in. But seven out
of ten times, I personally felt that we left the employees in ei-
ther the same situation or worse, and I say worse only because
we didn’t solve their problems yet they were now paying union
DHL EXPRESS, INC. 705
dues.” (Tr. 692.) According to Elias Sleiman, who attended
this meeting, Penn advised employees that, when he worked as
a union organizer, “they did not help the people as much as the
union organizers tell us. . . . They only help three out of each
ten people that pay dues into the union.” (Tr. 230.) At that
point, an employee named Millie called Penn a liar and a thief.
She called out, “You’re a thief, you stole my money.” (Tr.
230–231.) Sleiman also testified that Penn said he was hired by
Respondent to advise it on labor law “because the labor law is
so complicated and any word up or down would make it legal
or illegal.” (Tr. 230.) Sleiman’s testimony about Millie’s re-
marks and Penn’s reference to labor law being complicated in
this meeting was uncontradicted.
Shortly after Penn’s first set of speeches, an article appeared
in the Union’s August 20, 2007 newsletter, written by Sleiman,
in which he criticized Penn. Sleiman’s article referred to Penn
as a “union buster,” and discussed Penn’s initial speech to em-
ployees. The article includes the following:

This union buster started lying in the first five minutes
of the meeting. He said he is just a labor consultant and is
here to advise the company about labor laws so they stop
breaking those laws. If that’s true, why isn’t he upstairs
educating managers and supervisors instead of conducting
anti-union meetings with the workers?
This union buster also admitted a personal role of mis-
representing union members and lying to them about
“stealing” their money. I don’t know about the laws in
Massachusetts but in Pennsylvania you go to jail for that.
Now DHL brings in this union buster to tell us the
“truth” and the “facts.” Isn’t that ironic!
The fact is, that for over 100 years the answer to work-
ers mistreatment, disrespect, favoritism, harassment, dis-
regard and abuse is a union. It’s time tested and proven
over and over again and hiring a liar to tell us otherwise is
not going to change the facts.

Penn’s second set of meetings took place on August 21 and
22. At one of those meetings, which was in English and which
Sleiman attended, Penn referred to Sleiman’s article. He read
the initial two paragraphs cited above and denied the substance
of the accusations. According to Penn, he told employees he
never said, as the article mentioned, that he was hired “to ad-
vise the company about labor laws so they stop breaking those
laws. So I corrected the record. I said I never said that in the
first meeting. What I said . . . was . . . yes, I am here to com-
municate the company’s position and make sure it’s done in a
lawful manner, but never implied or inferred that the company
had been breaking the law.” (Tr. 696.) He also said that, con-
trary to the implication in the article, he did meet with manag-
ers and supervisors of the Respondent. (Tr. 696.) Penn also
testified as follows concerning what he said about the second
paragraph he read to employees:

I told employees that I believed that this statement crossed the
line. . . . I strongly believe this is defamatory. And I told
them that, first of all, I never, never said that, okay, never
mind admitting to saying that, I never said that, never did it.
Mr. Sleiman, I believe he stood up and he said, well, yes, you
did say that. And although I don’t remember exactly what he
said, he said, you know you said that you only helped three
out of ten employees, he said, not companies, that you only
helped three out of ten employees and that means that you
stole money from the rest of them, something to that effect.
. . . And then I reminded the entire group, I said if you re-
member, what I said was, and then I repeated what my testi-
mony was about the first meeting, exactly that I felt, you
know, I could only hold my head high three out of ten times.
[Tr. 697.]

Sleiman testified that, during his exchange with Penn at this
meeting, he said that he wrote only “what I understood from
[Penn’s] last meeting and nothing else and that’s the truth and I
would not apologize for me telling the truth.” (Tr. 235.) Ac-
cording to Sleiman, Penn then said that he was not “talking
about three out of every ten employees, it was three out of
every ten companies,” which Sleiman thought “means the same
thing.” (Tr. 235.)
Penn also told the employees that if Sleiman did not retract
the statements made in the article, he would consult his attorney
to see if he could sue Sleiman for defamation. According to
Penn, he said, “I want a written retraction or else I will consult
with my attorneys to explore all legal option[s] that are avail-
able to me including a possible lawsuit.” (Tr. 697–698.)
Sleiman and a group of employee witnesses who supported his
testimony confirmed that Penn explicitly threatened to sue
Sleiman for defamation. A group of Respondent’s witnesses
testified, contrary to Penn, that he simply threatened to consult
his attorney.7 Nevertheless, it is clear from Penn’s own testi-
mony that he mentioned at least the possibility of a lawsuit. He
said, in substance, that he intended to sue if there was no retrac-
tion, and any reasonable person would understand him to mean
exactly that. Moreover, Penn was clearly angered by what he
viewed as an attack on his integrity and it would have been
natural for him to react by explicitly threatening to sue, in ac-
cordance with the testimony of Sleiman and other employee
witnesses who supported his testimony. In these circum-
stances, and in view of the clear implication of even Penn’s
account of what he said, I find that Penn did indeed explicitly
threaten to sue Sleiman for his article, unless he retracted his
statements.
Significantly, although he never actually initiated a law suit,
Penn testified that he did indeed consult a lawyer—in fact,
more than one, although none was an expert in the law of libel.
According to Penn, he dropped any notion of a lawsuit because
he viewed a subsequent newsletter article by Sleiman as an
effective retraction. In that article, in the August 27 newsletter,
Sleiman wrote as follows:

7 I reject that testimony in view of Penn’s admission he threatened a
possible lawsuit if Sleiman did not retract his statements. Penn did not
withdraw that admission when he later denied Sleiman’s testimony that
Penn threatened a lawsuit that would cost Sleiman “big” (Tr. 716).
Although I doubt if Penn explicitly threatened his lawsuit would cost
Sleiman “big,” Sleiman and his fellow workers could well have in-
ferred the possibility of a large liability from such a lawsuit. For pur-
poses of this case it is irrelevant whether that possibility was made
explicit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706
I would like to take this opportunity to thank all of my co-
workers for their support in response to the latest intimidation
ploy by DHL when their $475/hour “hired gun” Mike Penn
publicly threatened to sue me for my last article. He said in
his first anti-union meeting that as part of the leadership of a
Teamsters local they took dues money from every ten people
and they only helped three people. To take money and not
fairly represent everybody in my opinion is “stealing.” I was
not the only one who heard him say what I remember his say-
ing. When other workers told him he should be ashamed of
himself for what he said he did, he never “corrected” them in
that meeting. Like I told all of you before, after other labor
law violations that DHL committed against me, I will not be
silenced and I will stand by you and fight until we win. [R.
Exh. 20.]

Despite testifying that he viewed the above as a retraction, Penn
never mentioned to employees in subsequent meetings with
them, or in any other manner that he viewed the Sleiman article
as a retraction. Nor did he ever mention to employees—or to
Sleiman, for that matter—that he had decided not to sue
Sleiman for defamation.
Analysis
It has long been accepted Board law that threats to sue for
engaging in protected concerted activity, as opposed to the
actual filing of lawsuits for engaging in such activity, are viola-
tions of the Act. S.E. Nichols Marcy Corp., 229 NLRB 75
(1977). Such threats reasonably tend to interfere with, restrain,
or coerce employees in the exercise of their rights under the
Act. See Postal Service, 350 NLRB 125 (2007), enfd. 526 F.3d
729 (11th Cir. 2008), citing authorities; and Network Dynamics
Cabling, 351 NLRB 1423, 1427 (2007). Nothing in BE & K
Construction Co., 351 NLRB 451 (2007), which held that re-
taliatory but reasonably based lawsuits do not constitute unfair
labor practices, alters this approach. See discussion in Postal
Service, supra at fn. 1. Indeed, at the time of the Nichols case,
all lawsuits by employers, whether or not retaliatory or rea-
sonably based, were immune from an unfair labor practice find-
ing. See discussion at fn. 2 of the Nichols case, supra.8
A threat to sue an employee for writing a prounion article in
a newsletter distributed to employees during a union campaign
obviously tends to interfere with or coerce employees in the
exercise of their protected rights. Employees are permitted to
advance their views on unions, even in boisterous language, so
long as their views are not maliciously false, that is, made with
knowledge of their falsity or with reckless disregard for their
truth or falsity. See Valley Hospital Medical Center, 351
NLRB 1250, 1252–1253 (2007), and cases there cited. “Where
an employee relays in good faith what he or she has been told
by another employee, reasonably believing the report to have
been true, the fact that the report may have been inaccurate

8 Nor can it be argued that a threat to file a lawsuit is “incidental” to
the filing of a lawsuit, thus, implicating the constitutional underpin-
nings of BE & K. As the Board stated in Postal Service, supra, 350
NLRB 125, 125–126, that notion was specifically rejected by the Dis-
trict of Columbia Circuit in Venetian Casino Resort, L.L.C. v. NLRB,
484 F.3d 601 (D.C. Cir. 2007).
does not remove the relayed remark from the protection of the
Act. . . . In addition, in the context of an identified, emotional
labor dispute, the fact that an employee’s statements are hyper-
bolic or reflect bias does not render such statements unpro-
tected.” Ibid, citing numerous case authorities.
Indeed, those same principles are reflected in cases dealing
with State court defamation actions against unions or their
agents for statements made in the context of a labor dispute.
Courts have recognized that statements in hotly contested labor
campaigns are often statements of opinion or figurative expres-
sion, incapable of being proved true or false in any objective
sense. See Steam Press Holdings v. Hawaii Teamsters Local
996, 302 F.3d 998, 1005–1009 (9th Cir. 2002), cert. denied 537
U.S. 1232 (2003). See also Jolliff v. NLRB, 513 F.3d 600, 609–
617 (6th Cir. 2008). As the Sixth Circuit stated in Jolliff, citing
numerous authorities, debate in labor disputes may well include
“vehement, caustic, and sometimes unpleasantly sharp attacks.”
Id. at 609. Again citing authorities, the court also emphasized
that “rhetorical hyperbole, a vigorous epithet” and “loose, figu-
rative, or hyperbolic language” merit protection. Id. at 610.
Such language is not even viewed as a factual misstatement.
Id. at 610–611 and cases there cited. Manifestly, such state-
ments are not viewed as “maliciously untrue” or made “with
knowledge of their falsity or with reckless disregard for their
truth or falsity.” Valley Hospital Medical Center, supra at
1252. “Before the test of reckless or knowing falsity can be
met, there must be a false statement of fact.” Steam Press
Holdings v. Hawaii Teamsters, supra, 302 F.3d at 1009 fn. 6,
quoting Letter Carriers Old Dominion Branch No. 496 v. Aus-
tin, 418 U.S. 264, 284 (1974). Respondent bears the burden of
proving both false statements of fact and malice. See Diamond
Walnut Growers, 316 NLRB 36, 47 (1995).
Applying the above principles, I find that Sleiman’s newslet-
ter article remained a protected activity, notwithstanding his
harsh attack on Penn. Respondent has not satisfied its burden
of proving that the article contained false statements of fact or
that such false statements of fact were made with malice.
Sleiman’s article was mostly hyperbole and devoid of direct
statements of fact that could even be challenged as false. Of
the two paragraphs Penn found offensive, the first one simply
calls him a “union buster” who assertedly was trying to keep
Respondent from “breaking the law.” This is mild stuff in the
tough banter of a typical union campaign. The second para-
graph is rather cryptic without context, but apparently refers to
Penn’s statement, in his first meeting with employees, that, as a
union organizer, he was only able to help employees in 3 out of
10 campaigns. Sleiman described Penn’s role in that respect as
misrepresenting members, lying to them and stealing their dues
money. In a sense, Sleiman was simply describing another
employee’s emotional reaction to Penn’s remarks in that first
meeting. It was she who called him a “thief” and a “liar.” As
Sleiman made clear in a subsequent article, the use of those
words in his article was a rather colorful and hyperbolic refer-
ence to Penn’s failure, as an organizer paid from the dues of
union members, to adequately represent their interests. This
was not meant as a statement of fact, but rather as a rhetorical
comment. Finally, Sleiman’s opinion—and that is what it
was—that Penn’s lying to union members and stealing their
DHL EXPRESS, INC. 707
dues was actionable under the laws of Pennsylvania was exag-
gerated campaign rhetoric, not a misrepresentation of fact.
None of those statements were demonstrably misrepresenta-
tions of clear fact. Nor do I believe they were viewed as such
by any of the employees—or, indeed, any reasonable person
reading those statements. This is particularly so because, in the
same meeting in which he threatened to sue Sleiman, Penn
carefully and explicitly corrected what he considered objection-
able in Sleiman’s article.
In any event, even assuming some factual misrepresenta-
tions, nothing in the two paragraphs deemed objectionable by
Penn were indicative of malice, which requires a showing that
the statements were made with knowledge that the statements
were false or with reckless disregard of whether they were or
not. The harshest statements, accusing Penn of lying and steal-
ing when he was a union organizer, simply parroted the accusa-
tions of another employee at Penn’s first meeting. Indeed,
Sleiman’s subsequent article makes it clear that his original
statements were not made with malice. See Joliff v. NLRB,
supra, 513 F.3d at 614–617.9
I find, therefore, that Sleiman’s statements remained pro-
tected concerted activity and that Penn’s threat to sue for such
protected statements was coercive and violative of the Act.
Penn’s threat to sue was especially chilling because, as he testi-
fied, he had carefully rebutted Sleiman’s article in the same
meeting. Thus, the allegedly offensive statements were cor-
rected. But the threat to sue never was retracted and stood as a
reminder to employees not to cross Penn or the Respondent
with strong prounion statements. Sleiman, himself, testified
that he lessened his previous outspoken opinions on union is-
sues after Penn’s threat because he starting thinking about
“what I should [or] should not say.” (Tr. 340.) Penn’s failure
to notify the employees, to whom he had announced his inten-
tion to sue Sleiman, that he had, after reading Sleiman’s second
article on the matter, decided not to initiate a lawsuit, exacer-
bated the coercive effect of his threat. He thus let linger in the
minds of employees the notion that boisterous language by
employees in support of the Union would be met with the pos-
sibility of a lawsuit. That message certainly has the reasonable
tendency to chill and interfere with union activities. I accord-
ingly find that Penn, on behalf of Respondent DHL and on
behalf of his employer, Respondent Crossroads, violated the
Act as alleged in paragraph 11(a).
2. The alleged threat that regular wage increases
would be lost
In Penn’s third set of meetings, which took place on August
28 or 29, he discussed the collective-bargaining process as a
general matter, once a union was selected by employees. He
referred to a chart on a white board, on which he had written
out, both in English and in Spanish, some of the steps in the
process and some of the terminology related to the process.

9 As the General Counsel points out (Br. at 31), employee statements
accusing an employer of being a “crook,” “liar,” or “thief” in the course
of engaging in protected activity have not been found sufficient to
render such activity unprotected. See General Chemical Corp., 290
NLRB 76, 82–83 (1988), and other cases cited in the General Counsel’s
brief.
Prominently displayed on the white board was the term “status
quo.” The white board chart was prepared by Penn before his
meetings and the board was moved to the different locations of
the meetings. Both sides presented employee witnesses, some
Spanish speaking and some English speaking, who heard the
speeches and gave dueling accounts of what Penn said at this
set of meetings. Unfortunately, their accounts of what was said
were very selective and incomplete. The General Counsel’s
witnesses testified that Penn described how long the negotiating
process could last and he also said that, during that period,
wages would be “frozen.” Respondent’s witnesses denied that
the word “frozen” was mentioned in connection with wages or
benefits during the negotiating process and emphasized instead
that the word “status quo” was mentioned in connection with
the statement that wages and benefits would remain the same
during bargaining. It would be very difficult for a trier of fact
to determine what was said just from the testimony of employ-
ees. Obviously, the employees testified about what they re-
membered most about Penn’s remarks concerning collective
bargaining. They did not intentionally lie, but they definitely
shaded their testimony. Thus, I cannot base my findings solely
on such testimony.
Instead, I rely chiefly on Penn’s testimony about what he
said in this third set of meetings. He had given similar
speeches both in Spanish and in English for many years. His
account of his remarks at this set of meetings was the most
comprehensive of the accounts given by the witnesses in this
case. His testimony was detailed and it placed his remarks in
appropriate context. For example, a union newsletter, distrib-
uted sometime before the August 27 or 28 speeches, had ac-
cused him of having violated the Act in an earlier speech to
employees of another employer, several years before. On that
occasion, the Board found that Penn threatened employees by
stating that their wages would be frozen during negotiations.
Penn was candid in explaining this prior brush with the law,
and, when it was brought up by an employee in one of his
meetings, he admitted his error. He also explained that it was
inappropriate to say that wages would be frozen during negotia-
tions and he was not making that claim to Respondent’s em-
ployees. Indeed, I believe he avoided the word precisely be-
cause he had been burned before when he used it. I believe,
instead, that he concentrated on the word “status quo” and ex-
plained that all existing wage programs and benefits would
remain as they were and would stay the same throughout nego-
tiations, as he emphasized in his testimony. That his testimony
in this respect was supported by some employee witnesses, as
well as by Plant Manager Swallow, who introduced Penn and
remained at the meetings to hear his remarks, simply enhances
Penn’s testimony. I also find significant that Penn specifically
wrote the word “status quo” on his white board presentation
before making his remarks.
To the extent that some of the General Counsel’s witnesses
may have suggested that Penn specifically threatened that Re-
spondent’s existing pay for performance and periodic wage
increase program would be halted during negotiations, I reject
that testimony. I am convinced that Penn made no such refer-
ence to Respondent’s particular wage increase program. His
remarks were addressed generally to what an employer could or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708
could not do with respect to existing wage and benefit pro-
grams, during negotiations. Significantly, Swallow told em-
ployees, at this and other meetings, that any specific questions
about Respondent’s own policies and benefits should be ad-
dressed to two corporate human resources experts, who were in
attendance at the meetings. This tends to confirm that Penn did
not address the specific wage and benefit policies of the Re-
spondent in his remarks.
In short, in accordance with Penn’s testimony, I do not be-
lieve that Penn suggested that Respondent would not continue
existing wage and benefit programs if the employees selected a
union to represent them. What he did say was that such pro-
grams would “stay the same” or remain “status quo” during
negotiations. That, of course, was an accurate statement of
existing law. Indeed, in some circumstances, even a reference
to wages typically remaining frozen during negotiations is per-
fectly lawful. See Flexible Industries, 311 NLRB 257 (1993),
and Mantrose-Haeuser Co., 306 NLRB 377 (1992). Accord-
ingly, I will dismiss the allegations in paragraph 12 of the com-
plaint.
E. The Sleiman Discrimination Allegations
It is settled law that, in order to establish a finding of dis-
crimination, the General Counsel must make an initial showing
that a substantial or motivating factor in the employer’s adverse
action against an employee was the employee’s union or other
protected concerted activity. As part of that initial showing, the
General Counsel may show that the employer’s reasons for its
action were false or pretextual. Also indicative of an initial
showing of discrimination is the timing of the action at or near
the time of the employee’s union activity. Once the General
Counsel has made such an initial showing, the burden of per-
suasion shifts to the employer to show that it would have made
the same decision, even absent the union or protected activity.
See Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); and
NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984).
In paragraphs 14(a), (b), (c), (d), and (e), the General Coun-
sel alleges that Respondent discriminated against employee
Elias Sleiman by reassigning him to a more onerous job, re-
stricting his movements, reducing his hours, issuing him a writ-
ten warning, and issuing him a negative evaluation. It is uncon-
tested that Sleiman was a known union activist. He was heav-
ily involved in handbilling employees every Monday before the
beginning of the twilight shift from late April through late July
2007. He was considered the leading employee spokesman
during the handbilling, often telling Respondent’s officials and
agents to stop interfering with the handbilling activity, which
Respondent unlawfully interfered with and surveilled. At one
point, during his handbilling, he was confronted by Human
Resources Manager Arends and told to “bring it on.” He also
wrote widely distributed newsletter articles promoting the Un-
ion’s position and criticizing the Respondent’s position in the
union campaign. He was also outspoken in employee meetings
in which the Respondent sought to convince employees to re-
ject the Union. It is in this context that I view the above-
complaint allegations involving Sleiman and apply the above
principles dealing with union-based discrimination.
1. The alleged reassignment to more onerous work
In support of this allegation, the General Counsel relies pri-
marily on Sleiman’s testimony. He testified that, in April and
May 2007, he operated a “tugger,” an electric-powered cart that
pulls a small trailer. According to Sleiman, on May 2, 2007,
Sort Manager Levey asked him to work on the other side of the
building. When he got there, another supervisor, Trevor
Steigerwalt, asked him to park his tugger and work in the
unload area, unloading trucks. Steigerwalt told him that he
would be doing this work for a “couple of weeks.” (Tr. 171–
173.) Actually, Sleiman was switched with Lenny Bryant, who
formerly did the unload job. The unloading work involves
picking up boxes inside a truck and putting them on a conveyor
belt that runs from the inside of the truck and into the facility.
Sleiman had occasionally unloaded trucks before, but he views
that as harder work than lifting boxes on to and off of the tug-
ger. There are, however, harder jobs at the facility, according
to other witnesses, including Plant Manager Swallow, whom I
found particularly reliable on this point.
According to Sleiman, after 2 weeks, he went to Levey and
asked when he was going back to his old job. Levey told him,
basically, “[I]f Trevor put you there then you stay there.” (Tr.
174.) Sleiman also complained to Steigerwalt, who said the
present situation was working well. About a week later, accord-
ing to Sleiman, he prepared a letter to Plant Manager Swallow,
complaining about the assignment. Although the letter (GC
Exh. 13) is dated May 7, 2007, it was not delivered to Swallow
until late May. Sleiman also testified that “[t]he union helped”
him write the letter (Tr. 322). As a result, Sleiman met with
Swallow and another manager, after which Swallow offered
Sleiman a choice of three other jobs, including one in the qual-
ity control department that he accepted.
Respondent’s evidence on the transfer or reassignment is de-
cidedly to the contrary. According to Respondent’s witnesses,
the transfer took place in mid or late March, well before
Sleiman began his open union activities. Sort Manager Mark
Levey, who essentially made the decision to reassign Sleiman,
testified that, at the beginning of 2007, Sleiman ran a tugger
transporting misrouted packages to the correct reloading areas
for outbound connections. Sleiman was one of several employ-
ees who did this work; the tugger operators were not part of the
quality control department. According to Levey, Sleiman was
moved off the tugger in mid-March 2007, at a time when he did
not know Sleiman was a union supporter. Levey moved
Sleiman off the tugger in order to cross-train other employees
on the tugger and because Sleiman had some performance is-
sues while he was on the tugger. Levey noticed a lot of “mis-
sorts that were left in the west end of the building he was re-
sponsible for. He was talked to numerous times to make sure
that those packages get services between Reloads 1, 2, 3, and 4.
He was leaving those reloads to go deliver freight throughout
the building.” (Tr. 1000.) Steigerwalt corroborated much of
Levey’s testimony about the tugger position. Steigerwalt had
been given the authority over some tuggers, including Sleiman,
in early March 2007. Steigerwalt perceived a problem with the
overall performance of the tuggers under his authority. He
asked that he be given Lenny Bryant as a tugger operator be-
cause he had previously worked with Bryant and was favorably
DHL EXPRESS, INC. 709
impressed by him. Both Steigerwalt and Levey confirmed that
Levey agreed and that Sleiman and Bryant essentially switched
jobs. Steigerwalt and Levey also each established that the date
of the reassignment was in mid-March because they recalled a
specific incident that took place at the facility in late March,
after the Sleiman reassignment. Swallow also testified about
the meeting he had with Sleiman, in which Sleiman was taken
off the unloading assignment and brought into quality control.
Swallow denied the charge in Sleiman’s letter to the effect that
he was removed from the tugger and assigned to unload trucks
because of his union activities. Swallow also said that he had
no problem with taking Sleiman off the unloading job, but he
did not want to put him back on the tugger because of
Sleiman’s problems when he ran the tugger.
As to the crucial issue of the date of Sleiman’s reassignment,
I credit the testimony of Levey and Steigerwalt, which was
clear, coherent, and mutually corroborative. Sleiman’s testi-
mony that the reassignment was made on May 2 does not with-
stand analysis. The letter he sent to Swallow complaining
about the assignment was dated May 7. It was purportedly
written after he learned that the 2-week or temporary assign-
ment was going to be more permanent and after he consulted
some union officials who helped him write the letter.
Sleiman’s time line is thus broader than the 5 days that elapsed
from when he says the reassignment was made and the date of
the letter. I found that Sleiman’s grasp of dates was generally
faulty. For example, he insisted that Penn’s threat to sue him
came in the same meeting in which Penn discussed wages and
benefits during bargaining. That turned out to be wrong. I find
it much more likely that the reassignment was made in mid-
March, as Levey and Steigerwalt testified. To the extent that
Steigerwalt had anything to do with the decision, in terms of
recommending it, I find that he credibly testified that his rea-
sons for reassigning Sleiman were business related. Indeed, his
assessment of the tugger problem also caused him to make
another reassignment at about the same time; he took another
employee, Carl Yates, off his tugger position. Moreover, I
credit Levey’s testimony that he spoke with Sleiman on several
occasions about Sleiman wandering off with the tugger into
areas where he was not supposed to be. On cross-examination,
Sleiman reluctantly admitted that Levey had at least one such
conversation with him about 2 months before a confrontation
between the two of them in June 2007. On balance, I found
Levey’s testimony more reliable than Sleiman’s on whether
Sleiman wandered inappropriately about the facility in the tug-
ger. I also credit both Levey and Steigerwalt that the tugger
position was and is different from a position in the quality con-
trol department. Their testimony is also supported by that of
Swallow. Sleiman’s testimony on this point was quite ambigu-
ous and tended to suggest that he was both a tugger and an
employee assigned to the quality control department. That
point is not supported by the evidence.
In view of my credibility determinations set forth above, I
find that Sleiman’s reassignment from the tugger position to the
unload position took place in mid-March 2007, well before his
union activities were generally known. I also find that the as-
signment was made for justifiable business reasons, as set forth
by Levey and Steigerwalt. Indeed, at about the same time,
another employee, Carl Yates, was removed from his tugger
position. Moreover, I find that Swallow’s resolution of
Sleiman’s complaint about the assignment was incompatible
with what might be expected of a decision originally based on
antiunion considerations. Once the matter was brought to
Swallow’s attention, he quickly offered Sleiman relief from
what Sleiman viewed as an onerous assignment, so long as
Sleiman was not put back on the tugger. Nor did Sleiman insist
on being put back on the tugger. In these circumstances, I find
that the General Counsel has not proved that the reassignment
of Sleiman from the tugger to the unload position was based on
his union activities. But even if the General Counsel had met
his initial Wright Line burden on this point, I find that Respon-
dent would have made the reassignment even in the absence of
Sleiman’s union activities. Accordingly, I will dismiss the
allegation in paragraph 14(a) of the complaint.
2. The alleged restriction of movement
As to the allegation about restriction of movement, the Gen-
eral Counsel again offers the testimony of Sleiman. On June
14, according to Sleiman, Levey, and his immediate supervisor,
William Wilkinson, approached him, at which time Levey
complained that Sleiman had taken 8 minutes for a smoke
break. Levey also told Sleiman that, the day before, he had
seen Sleiman out of the quality control area. Levey told
Sleiman that he was not to take unauthorized breaks and that he
would have to remain in the quality control area, unless he had
permission from a supervisor. According to Sleiman, those
restrictions still apply, and only to him. He also testified that,
before the restriction, he spent about 95 percent of his time
outside the quality control area.
By the time of the Levey-Sleiman conversation, Sleiman had
been taken off the unload position, at his request, and placed in
the quality control department. Levey credibly testified about
the job duties of that position. According to Levey, quality
control employees are not to leave the quality control area and
look for damaged freight. Ordinarily, other employees bring
damaged packages to the quality control area, where the quality
control people repair or rewrap the packages and put a new
airbill on them. Plant Manager Swallow confirmed that only
rarely would quality control employees leave their area to pick
up or repair damaged packages. Levey testified that he spoke
to Sleiman about taking a long smoke break without the prior
permission of a supervisor and also about wandering away from
the quality control area. Levey placed the conversation on June
13 rather than June 14. According to Levey, Sleiman was not
actually doing any work when he noticed Sleiman out of his
work area; Sleiman was reading a magazine. The latter com-
plaint is similar to others Levey made about Sleiman’s wander-
ing off when he was on the tugger. Nevertheless, Levey denied
telling Sleiman that he was restricted to the quality control area
while he was on the clock.
I do not accept Sleiman’s testimony insofar as it purports to
support the allegation in paragraph 14(b) of the complaint. I
believe, in accordance with Levey’s testimony, that Levey did
not restrict Sleiman to the quality control area, although he may
have told Sleiman not to wander around the facility, as he had
done on many prior occasions when he was a tugger. That was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
consistent with the normal job duties of a quality control em-
ployee, who generally works in a dedicated area. I also believe
Levey’s testimony that, on this occasion, Sleiman was observed
out of his work area without having a work-related reason for
being out of the area. I believe Sleiman exaggerated or misun-
derstood the conversation he had with Levey about his smoke
break and being outside his work area. That conversation,
which is fulcrum of this allegation of the complaint, is also
discussed below in connection with Sleiman’s June 27 written
warning.
Sleiman’s testimony about the alleged restriction is question-
able. I doubt very much Sleiman’s testimony that, before the
alleged restriction, he spent 95 percent of his time outside the
quality control area. Indeed, another witness for the General
Counsel, Nereida Oquento, a full-time quality control em-
ployee, who sometimes worked on the second floor, where
Sleiman did not, estimated that she only worked outside the
quality control area half of her time. She also testified that
there is an area set aside for quality control with tables on
which the employees repair damaged packages. In fact, as of
June 13 or 14, Sleiman had been in the quality control depart-
ment for only about 2 weeks, having been permitted to work
there by Swallow at the end of May or at the beginning of June.
Sleiman’s view that he was always a quality control person,
except for the time he spent in the unload position, is somewhat
strained. I found his testimony about his job responsibilities
before June of 2007 to be quite confusing. I am convinced that
he was a tugger operator until his reassignment to the unload
position. Although he may have done some work on damaged
packages, he was not assigned to the quality control department
until after his meeting with Swallow. In all the circumstances, I
believe that Sleiman confused the wide arc of his job as a tug-
ger before he was reassigned to do unloading work with his job
in quality control after Swallow put him there. I believe that
this confusion caused him to exaggerate or misunderstand
Levey’s conversation with him on June 13 or 14.10
Accordingly, I find that the General Counsel has failed to
show that Respondent restricted Sleiman’s movements because
of his union activities. Even if that finding were supportable as
an initial matter, I find that Respondent has shown that quality
control people normally work mostly in the quality control
area. Levey’s admonition that Sleiman stay in the quality con-
trol area was thus not an unlawful restriction, but rather a re-
minder that he was not to wander away from the area where he

10 I am also aware of the documentary evidence showing the rosters
of Respondent’s employees, which consistently lists Sleiman in the
quality control department from early 2007. GC Exh. 36. I am not sure
how that evidence impacts this allegation, or, indeed, this case, but I am
convinced, from the testimony of Swallow and other management
witnesses, particularly Steigerwalt, that those rosters were not entirely
accurate. Steigerwalt specifically and credibly testified that the rosters
were not relied upon on a daily basis by supervisors. In the first few
months of Respondent’s operations at its new facility there was a lot of
confusion, certainly about job titles and job duties. This is also shown
by Sleiman’s testimony, which confusingly placed himself both as a
quality control person and employee who also ran the tugger. In any
event, I put no great weight on the validity of the rosters insofar as
making significant findings in this case.
was to perform his major job responsibilities. As such, it was
based on a legitimate business-related assessment of the situa-
tion. In these circumstances, I find that Respondent has shown
that it would have treated Sleiman just as it did, advising him
not to wander outside the quality control area when he had no
work-related reason to leave the area, even in the absence of
Sleiman’s union activities. Consequently, I will dismiss the
allegation in paragraph 14(b) of the complaint.
3. The June 27 written warning
On Monday, June 25, 2007, Sleiman again distributed union
material to employees outside the facility at the beginning of
the twilight shift. On that occasion, he distributed a copy of the
Union’s June 25 newsletter. On the front page of the newsletter
was a signed article by Sleiman, accompanied by his photo-
graph, entitled, “Welcome to Our Family.” As a rhetorical
device, he began the article by urging the DHL managers and
supervisors not to read the rest of the article because “you
aren’t going to like it.” He went on to urge employees to join
and support the Union to better their working conditions, and to
criticize the Respondent for giving employees a “fake” wel-
come and then chasing them out “as soon as the last box is off
the slide.” He ended the article by tweaking the managers,
stating, “I warned you not to read it!!!” (GC Exh. 15.)
Sort Manager Mark Levey had received a copy of the news-
letter article, and Levey approached Sleiman twice, during his
shift the next day, on June 26. On both occasions, Levey re-
ferred to Sleiman’s article and stated that he could not avoid
reading the whole article. Sleiman’s testimony in this respect
was uncontradicted because, although Levey testified exten-
sively during this trial, he did not testify about the newsletter
article or any conversations with Sleiman about the article. Nor
do I have any reason to question the veracity of Sleiman’s tes-
timony about Levey’s comments on the newsletter article. I
therefore credit Sleiman in this respect.
Also, on June 26, at about 11:15 p.m., Sleiman was ap-
proached by his supervisor, William Wilkinson. Wilkinson
told Sleiman to punch out immediately because his hours were
being cut. After he had punched out, Wilkinson asked Sleiman
if he had taken his break and Sleiman replied that he had. Wil-
kinson then said that Sleiman had not worked for 4 hours—the
point after which employees may take a paid break, under Re-
spondent’s policy. Sleiman responded that he was scheduled or
intended to work 7 hours that night before Wilkinson asked him
to punch out, which would have put him in compliance with
Respondent’s policy. Sleiman’s testimony in this respect,
which I credit, is uncontradicted because Wilkinson did not
testify in this trial.11
Sleiman was subsequently issued a written warning for ad-
mittedly taking his break before working a full 4-hour shift, in
violation of Respondent’s policy. The written warning—a
corrective action—carried a date of June 27, 2007, and was
issued by Supervisor Wilkinson. Sort Manager Mark Levey
signed off on the warning as manager. Sleiman refused to sign

11 Sleiman also testified that he was told by his previous supervisor,
Trevor Steigerwalt, that he could take his paid break between 10:30 and
11 p.m. and this is what he had done. Sleiman’s testimony in this re-
spect was not contradicted by Steigerwalt.
DHL EXPRESS, INC. 711
the warning, with a notation dated June 28. However, the writ-
ten warning also contained a reference to an incident that took
place 2 weeks before, on June 13 or 14. As mentioned above,
on that occasion, Sort Manager Mark Levey had spoken to
Sleiman twice, first about failing to ask his supervisor’s per-
mission before taking a break, and secondly about being out of
his area. Levey did not issue a written corrective action memo-
rializing this discussion at the time, even though the record
shows that corrective actions are regularly issued for verbal
warnings. Indeed, the corrective action form has a specific box
for “verbal warning.”12
I find that the General Counsel has shown that the June 27
warning was issued because of Sleiman’s union activities, par-
ticularly his critical newsletter article that was distributed 2
days before. Levey, who was instrumental in issuing the warn-
ing, had commented about the article. The incident that sup-
posedly provoked the warning was Sleiman’s apparent failure
to take his break after working 4 hours. But the uncontradicted
testimony shows that Sleiman was slated to work more than 4
hours, as he had consistently done in the past, according to
Respondent’s own records. Thus, his break would have been
permissible had he not been told to clock out early on the eve-
ning of June 27. The reason he was told to clock out was that
his hours were being reduced, a change that, as I find below,
was discriminatory. Moreover, the June 27 warning added an
incident to the warning that had nothing to do with what hap-
pened on that night to precipitate the warning. Respondent
added something that happened 2 weeks before, when Levey
told Sleiman not to take a long smoking break and not to wan-
der around the facility. Levey had not issued a warning at the
time of the earlier incident, obviously because he did not think
that his conversation with Sleiman required a warning. Indeed,
Levey’s testimony denying that he restricted Sleiman’s move-
ments on that occasion makes it clear that he did not consider
the matter one that justified disciplinary action. Levey had
numerous conversations with Sleiman about wandering around
the facility while he was on the tugger; and he did not believe
that any of those conversations justified any sort of discipline,
according to his own testimony. It was partly based on that
testimony of Levey’s that I dismissed the allegation that Levey
had unlawfully restricted Sleiman to the quality control de-
partment. It was only after Sleiman’s newsletter article appar-
ently rankled Levey, and only after Sleiman’s hours were dis-
criminatorily reduced, that Levey injected the earlier incident
into the June 27 warning. In these circumstances, I find that the
warning was issued for discriminatory reasons. In addition, the
Respondent has failed to show that it would have issued the
warning in the absence of Sleiman’s union activities. Viewing
what precipitated the warning, it is clear that Sleiman’s break
would have been proper had he not had his hours reduced for
discriminatory reasons; and it is also clear that, absent
Sleiman’s union activities, Respondent would not have added
the 2-week old incident as an item on the June 27 warning.
Accordingly, I find that the General Counsel has proved the
allegation in paragraph 14(d) of the complaint.

12 Sleiman complained to Plant Manager Swallow about the June 27
warning, but Swallow declined to alter it.
4. The reduction in hours
As indicated above, Sleiman’s uncontradicted testimony
shows that Supervisor Wilkinson notified Sleiman at about
11:15 p.m., the night of June 26, that his hours were being cut
and that he had to punch out immediately. He had only
worked roughly 4 hours of an anticipated 7-hour stint that
night. Again, according to Sleiman’s uncontradicted testimony,
he was the only quality control employee sent home early that
night. The others continued to work. Wilkinson also told
Sleiman that, from then on, he was only permitted to work until
10:30 p.m. And, in fact, that prohibition was implemented and
applied until the date of the trial. Documentary evidence con-
firms that Sleiman’s hours were cut dramatically from June 26,
2007, through the rest of the year. Before the end of June, he
regularly worked between 5 to as many as 8 hours per shift.
After that point, except on a few days in which he worked 4
hours, he never worked more than 3 or 3-1/2 hours. (See GC
Exh. 14.) The period covered by the documentary evidence
includes peak season, which begins in August or September
and runs through December, a time when all employees are
encouraged to put in more hours. According to Plant Manager
Swallow, during peak season, “the heaviest time of the year,”
Respondent asks “the part-time employees to work longer
hours;” indeed, they are asked to “actually double shift.” (Tr.
771.) (See also R. Exh. 12; Tr. 779.) But Sleiman was never
asked to work more hours during peak season. Nor, at any
time, was he ever told that he could work more hours or that
Wilkinson’s instructions were rescinded. In contrast to
Sleiman, two other part-time quality control employees, Julio
Romero and Dave Hunsberger, consistently worked 7 or 8
hours, sometimes more, during the same July through Decem-
ber 2007 period, according to additional documentary evidence.
(GC Exhs. 22, 23.)
In view of the timing of the initial reduction in Sleiman’s
hours, 1 day after his newsletter article critical of Respondent,
and the same day he was discriminatorily issued a written
warning, I also find that Respondent’s reduction of Sleiman’s
hours was discriminatory. Sleiman was treated differently from
his part-time colleagues in the quality control department since
he was the only one whose hours were cut. Moreover, Wilkin-
son’s precipitous action in telling Sleiman to punch out in the
middle of the shift was extraordinary and unexplained. It is
highly unlikely that, if the reduction were based on legitimate
business reasons, it would have been announced so suddenly
and dramatically. Thus, the General Counsel has clearly met
his initial burden of proving discrimination under Wright Line.
Nor has Respondent rebutted the clear inference of discrimi-
nation. It is true that Respondent ordered a general cut in hours
in June, but Plant Manager Swallow left the specifics of the cut
to his subordinates.13 Sort Manager Levey testified that he
ordered the cuts in the areas under his supervision, but his tes-

13 Swallow testified theoretically that quality control would be one of
the areas in which it would be easier to cut hours, but it is clear that he
knew nothing about the specific reduction in hours in any one depart-
ment or area. He did not focus on the quality control department when
he ordered a general reduction in hours. And he knew nothing about
why Sleiman’s hours were cut.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
timony was woefully inadequate to explain why he made the
cuts in the quality control department. He testified that he had
to cut hours in the departments under his authority because of
“[p]roduction standards we had to meet.” (Tr. 1013.) He also
testified, almost theoretically, in response to a leading question,
that the quality control area “would be one of” the areas in
which it would be easier to cut hours without affecting service.
This testimony is hardly a coherent explanation. It does not
justify or even establish a cut in hours for the quality control
department. Nor does his testimony offer anything to explain
why Sleiman’s hours were cut and the hours of other quality
control people—particularly, the other part-time quality control
people—were not.14 Nor does it make sense for Respondent to
cut the hours of an employee, who, as I note below in the next
section of this decision, was found in his last evaluation to have
been a “good hard worker.”
To the extent that Levey’s testimony can be viewed as justi-
fying the reduction in Sleiman’s hours as nondiscriminatory, I
reject it as not worthy of belief. Although I credited his testi-
mony in part in other sections of this decision, I found him
particularly unreliable when, as here, his testimony seemed to
mask antiunion sentiments. For example, I discredited his tes-
timony that, on April 30, he did not make statements to the
handbillers to the effect that they could not handbill on the
sidewalk near the entrance to the facility. Wilkinson, of course,
did not testify. It was he who would have known the real reason
why Sleiman’s hours were cut; and it was he who would have
known more about the reduction of hours in the quality control
department. Nor did any other witness on Respondent’s behalf
reliably explain why Sleiman’s hours were cut. Significantly,
even during peak period, when Respondent encouraged em-
ployees to work more hours, no one in management thought to
increase Sleiman’s hours or even talk to him about increasing
his hours. In these circumstances, I find that Respondent not
only failed to rebut the General Counsel’s strong initial show-
ing of discrimination, but that Respondent’s evidence—or,
more precisely, the lack of it—confirms and strengthens the
finding of discrimination. Accordingly, I sustain the allegation
in paragraph 14(c) of the complaint.15
5. Sleiman’s negative evaluation
On July 9, 2007, Sleiman received his 6-month evaluation,
which is used to compute pay raises under the Respondent’s
pay for performance program. That evaluation, which was
prepared by Supervisor Wilkinson, rated Sleiman as having
partially met expectations, which translated into a pay raise of

14 Contrary to the suggestion in Respondent’s brief (Br. 116), there is
no evidence that Respondent spared Hunsberger and Romero from a cut
in hours because they had special or unique job requirements. Levey,
for example, made no such representation in his testimony.
15 Contrary to Respondent’s contention (Br. 120), Sleiman did not
have an obligation to volunteer for more hours during peak season,
either to establish discrimination or diminish backpay. First of all, the
discrimination here was established even before the peak season call for
volunteers. Moreover, the Respondent’s lack of action in the face of its
need for increased hours manifestly demonstrates that the discrimina-
tion continued. It was, in any event, reasonable for Sleiman to assume
that, in the face of the discrimination against him, any request, on his
part, for more hours would have been futile.
35 cents per hour. In eight of nine categories, he was rated as
having partially met expectations; in the other, adaptability, he
was rated as having fully met expectations. (GC Exh. 5.)
According to Sleiman’s uncontradicted testimony, when Wil-
kinson gave him the evaluation, Sleiman complained about it,
whereupon Wilkinson told Sleiman, “I hate to do this. . . .
There’s too much politics going on in here, just sign this and let
me go.” (Tr. 222.) Sleiman’s earlier evaluation, prepared in
January 2007 by Supervisor Sam Manzano, rated him as fully
meeting expectations in five categories and as exceeding expec-
tations in four categories. In that evaluation, Manzano called
him a “good hard worker.” (GC Exh. 20.) In his January 2008
evaluation by Supervisor Jeff Magan, Sleiman was rated as
having fully met expectations in seven of nine categories. (GC
Exh. 21.)
A day or two after receiving his July 2007 evaluation,
Sleiman complained about it to Human Resources Manager
Arends, who agreed to look into the matter. Arends eventually
spoke to Wilkinson and the evaluation was changed. The
change was reflected in a revised evaluation issued on Septem-
ber 18, 2007, about a week after the Board election, which the
Union lost. The revised evaluation was more favorable and
found that basically Sleiman met expectations. Five of nine
categories were changed from partially meets expectations to
fully meets expectations. For example, the productivity/quality
of work category, the original remarks were changed, and, as a
result, Sleiman was raised from partially meets to fully meets
expectations. As a further result, he received an additional
raise of 35 cents per hour, paid retroactively to the date of the
July evaluation. (GC Exh. 6.)16
I find that the General Counsel has shown that Sleiman’s
July 2007 evaluation was negative because of his union activi-
ties. Respondent had discriminated against him twice the
month before, once by issuing him a written warning and once
by reducing his hours. The latter discrimination was a continu-
ing violation. The evaluation was admittedly wrong. Indeed,
Respondent issued a revised evaluation after the election. Both
the prior and the subsequent evaluations were much better than
the one issued in July. The July evaluation was so out of char-
acter that it cannot be explained by anything other than contin-
ued discrimination against Sleiman. Thus, I find that the nega-
tive evaluation was a part of Respondent’s pattern of discrimi-
nation against Sleiman in June and July 2007. Moreover, Wil-
kinson’s remark to Sleiman at the time the negative evaluation

16 I reject Arends’ testimony that Sleiman did not come to him to
complain about the evaluation until some time in late August and that
the changes were mere technical changes. I found his testimony in this
respect as unreliable as it was in the other instances in which I rejected
his testimony. For example, I found his testimony particularly strained
when he emphasized that Sleiman came to him not simply in late Au-
gust, but in “late, late August.” Tr. 1109. In addition, Sleiman was
clearly not a person who would wait before complaining about adverse
employment actions, as this record shows. My assessment of this as-
pect of Sleiman’s character lends credence to his testimony that he
complained shortly after he received the evaluation. Moreover, Ar-
ends’ testimony about the technical changes in the two evaluations is
refuted by reference to the substantive changes that are apparent on the
revised evaluation itself.
DHL EXPRESS, INC. 713
was issued—that there were “politics” involved in the issuance
of the negative evaluation—implicates antiunion motivation
because the union campaign and Sleiman’s leadership effort in
it were the most likely explanations for the use of the word,
“politics.” That evidence simply reinforces the inference that
the negative evaluation was issued for discriminatory reasons.
Respondent’s apparent defense on this aspect of the case is
that a mistake was made: The July 2007 evaluation was sim-
ply wrong and it was eventually corrected. In support of its
defense, the Respondent submits documentary evidence show-
ing that several other evaluations during this time period were
also revised upwards. It is not surprising that, in a unit of about
450 employees, some evaluations are corrected or revised. But
the fact that other evaluations were revised, as was Sleiman’s,
does not really answer or rebut the General Counsel’s initial
showing that the issuance of Sleiman’s original evaluation was
discriminatorily motivated. The fact that it was revised simply
shows that it was more negative than it should have been.
Thus, it supports a crucial aspect of the General Counsel’s case.
That other evaluations were also revised upward does not at all
shed light on the reason for Sleiman’s original evaluation,
much less show that Sleiman’s original evaluation was wrong
for reasons other than discrimination. And since Wilkinson,
who knew best why the original evaluation was prepared as it
was, did not testify, the record stands silent on the point. In-
deed, Wilkinson’s remark to Sleiman at the time he gave
Sleiman the evaluation suggests that he was somehow ordered
to issue the negative evaluation because of “politics,” a euphe-
mism, in this case, for union activities. Respondent has given
no benign answer to that remark. In all the circumstances, the
Respondent has failed to rebut the strong evidence of discrimi-
nation in the issuance of the negative July 2007 evaluation to
Sleiman. Accordingly, I find that the General Counsel has
proved the allegation in paragraph 14(e) of the complaint.
F. The Discharge of Employee Emilia Rios
In paragraph 15 of the complaint, the General Counsel al-
leges that Respondent discharged Emilia Rios because of her
union activities. It is admitted that Rios was a known union
activist. She had distributed union literature outside the en-
trance to the facility and had been one of the handbillers who
was subjected to unlawful surveillance and interference from
the Respondent. She was the leader among Spanish-speaking
employees in distributing authorization cards to and gathering
signed cards from other employees. She also gave an example
of one occasion when she was prevented from distributing un-
ion literature in the cafeteria by Human Resources Manager
Arends. Rios had a break in employment from the beginning of
April to sometime in May 2007, apparently for medical rea-
sons. When she returned, she resumed her union activity. On
June 18, she wrote an article for the Union’s newsletter critical
of the Respondent and favorable to the Union. The article
complained about the Respondent’s reduction of hours for part-
time employees like Rios; the article also complained about the
constant changes in the hours. (See R. Exh. 8.)
On June 25, Supervisor Brian Buck met with Rios and sev-
eral other part-time employees at the beginning of their shift on
reload 2. Sam Manzano was the service supervisor for reload
2. Apparently, he was in overall charge of these employees.
But he was absent on the night of June 25. At the June 25
meeting, Buck announced a change in the reporting time for
Rios and the others from 7:30 to 7:45 p.m. The change was to
begin the next day, June 26. Although the change in starting
time applied to all the employees, Rios maintained that she
alone ended her workday at 10:30 p.m., so the change meant a
reduction in her time, and consequently in her pay, of some 15
minutes. Later that evening, Rios complained to Buck about
the reduction in her hours. According to Rios, Buck replied
that her hours were reduced because “you don’t wear the ap-
propriate clothing, you don’t use metal shoes as you’re sup-
posed to and because you complain a lot.” (Tr. 608.) Since
Buck did not testify, Rios’s testimony on this point is uncontra-
dicted.
At any rate, the next day, June 26, Rios punched in at 7:27
p.m., contrary to the instructions of her supervisor the night
before. According to Rios, she realized that she had punched in
too early, and attempted to rectify the situation by going to
Supervisor Sam Manzano and telling him about it. According
to Rios, at about 7:35 p.m., Manzano told her that “it would be
fine, he’d take care of it.” (Tr. 610.) Manzano’s testimony is
quite to the contrary on this point. Manzano was notified early
on the evening of June 26 about the change in starting times
announced the night before. After he came out of a meeting
with full-time employees at about 7:30 p.m., he noticed Rios
sitting in the break area. That would have been well before her
new starting time. After another meeting with part-time em-
ployees at 7:45 p.m., which included Rios, he consulted the
time-keeping system and confirmed that Rios had punched in at
7:27 p.m. Since that was some 18 minutes before her sched-
uled start time, he approached Rios and brought this to her
attention. Only at that point, according to Manzano, did Rios
say that she had made a mistake in punching in early. In as-
sessing the credibility of both witnesses, I credit Manzano on
this part of the case. His testimony was clear, detailed, and
coherent. Rios, on the other hand, seemed to be trying to shape
her testimony to her own ends. For example, she testified that
Manzano did not adequately translate for her or explain to her
why she was being discharged, but, in her pretrial affidavit, she
clearly set forth the reasons she was given for her discharge.
She was also less than candid in acknowledging her prior disci-
plinary record. Nor was I impressed by her demeanor on the
witness stand. She seemed somewhat argumentative and un-
able or unwilling to answer questions directly. In these circum-
stances, I have no doubt that Manzano’s account of what hap-
pened on June 26 was more accurate than Rios’ account.
After he spoke to Rios, Manzano confirmed with Buck that
Rios had complained to Buck about the new start time. He also
observed that other part-time employees working with Rios had
punched in appropriately. Manzano believed that Rios’ con-
duct amounted to a theft of time and brought it to the attention
of his superior, Sort Manager Doug Albert. Rios had two other
disciplinary actions in her personnel file, both issued by Man-
zano. Both indicated that they were final warnings, which
meant that if she committed the same offense again, she was
subject to discharge. The warnings, which were labeled correc-
tive actions, are written in English, but, at the time they were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
issued, Manzano, who is bilingual, translated and explained the
substance of the warnings to Rios, who understands some Eng-
lish, but primarily speaks Spanish. The first warning, dated
February 6, 2007, dealt with an incident that took place on Feb-
ruary 2. It chastised her for taking unauthorized breaks. The
second warning, dated March 8, 2007, dealt with an accumula-
tion of incidents that amounted to failures to punch out appro-
priately, which resulted in a consequent theft of time. The
March 8 warning states that Rios “has engaged in a pattern of
untimely punch outs that extend a half an hour beyond her
shifts scheduled ending time. Beginning 2/26/07, supervisors
clearly informed employees of the requirement to punch out at
the twilight shift’s scheduled end time, 10:30. Emilia has con-
tinuously punched out at (11) eleven o’clock between 2/26/07
and 3/6/07, despite the fact that no work is available past
10:30.” (R. Exh. 20(b).)17 The General Counsel does not al-
lege that these prior warnings, which were issued before the
union activity began in earnest, were unlawful.
As a result of the June 26 incident, and after taking into con-
sideration Rios’ earlier warnings, Respondent decided to dis-
charge her. This was accomplished on June 27, shortly after
Rios reported for work. Manzano accompanied Rios to Sort
Supervisor Albert’s office, where she was informed that she
was discharged. Manzano translated what was said into Span-
ish so that Rios could understand what was being done and why
it was done.
The General Counsel has met his initial burden to show that
Respondent’s discharge of Rios was motivated by her union
activities. She was a known union leader, who had been in-
volved in extensive open union activity. She had, for example,
been among the handbillers who were interfered with by Re-
spondent. Moreover, the timing of her discharge came a little
over a week after the publication of an article by her in the
Union’s newsletter critical of Respondent’s policy on the re-
duction of and changes in hours for part-time employees, the
very policy Rios criticized on June 25, the day before her dis-
charge. According to Rios’ uncontradicted testimony, Supervi-
sor Buck expressed his concern that she “complain[ed] a lot,”
an implicit reference to her newsletter article. Moreover, Re-
spondent had, at about the same time, engaged in discrimina-
tory retaliation against Elias Sleiman, a fellow union supporter
and handbiller. In these circumstances, particularly the timing
of the discharge after the critical newsletter article, I find that
the General Counsel has met his initial Wright Line burden of
showing that the discharge was due to Rios’ union activities.
I also find, however, that the Respondent has rebutted the
General Counsel’s case by showing that it would have dis-

17 The transcript mistakenly refers to two R. Exhs. 20, both of which
were introduced and received into evidence. The first, which shall
remain labeled as R. Exh. 20, is Sleiman’s August 27, 2007 newsletter
article, entitled, “I will not be silenced.” Penn referred to that article in
his testimony. The second R. Exh. 20, which was Rios’ second warn-
ing or corrective action, dated March 8, 2007, was not originally pro-
vided to me in the list of exhibits. It was later provided to the reporting
service and subsequently to me. To avoid confusion, this exhibit, Rios’
second corrective action, will be relabeled R. Exh. 20(b). There was
discussion of this exhibit, along with R. Exh. 19, Rios’ first corrective
action, in Manzano’s testimony.
charged Rios even if she had not engaged in union activity.
The credited testimony shows that Rios deliberately punched in
early on the evening of June 26. Contrary to her testimony, she
did not approach Supervisor Manzano to tell him she mistak-
enly punched in early. Manzano actually approached her and
confronted her with the fact that she had punched in early. As a
result, she would have been paid for time she did not work,
thus, stealing time from her employer. Unfortunately for Rios,
this was not the first time she had been cautioned against steal-
ing time. She had been issued warnings 3 or 4 months before,
for misusing her breaktime and for failing to punch out appro-
priately.18 Each of those warnings was labeled a final warning.
Her early punch-in on June 26 was a continuation of the “pat-
tern” of time punching violations set forth in her March 7 warn-
ing. Notwithstanding her complaint about the Respondent’s
reduction of her hours and those of other part-time employees,
the General Counsel did not allege that Respondent was delib-
erately cutting her hours or was doing so for discriminatory
reasons. In any event, Rios was not free unilaterally to defy
Respondent’s order to change her starting time. All of the other
employees working in her area complied with the new starting
time. It is clear that Respondent viewed seriously stealing time
by punching in early, punching out late or misusing paid break
periods. There is thus no basis in this record for finding that
firing Rios for this offense was out of character or amounted to
a pretext. In view of Rios’ prior record and her defiance on
June 26 of a lawful order changing her starting time, Respon-
dent has shown that it would have discharged Rios, even in the
absence of her union activities. Accordingly, I shall dismiss the
allegations in paragraph 15 of the complaint.19

18 Because Rios was off work for an extended period between her fi-
nal warnings and June 26, the final warnings were actually more recent
in terms of her total worktime.
19 The General Counsel submitted documentary evidence (GC Exhs.
26–31) with respect to the disciplinary records of five employees who
allegedly committed the same type of offenses as Rios, but were not
discharged for those offenses. Although all but one of those employees
were eventually discharged for different reasons, all had been warned
about inappropriately punching in or out and, thus, stealing time. I do
not agree with the General Counsel that the documentary evidence
shows that Respondent treated those five employees more leniently
than Rios and that such lenient treatment demonstrates that Rios was
discharged for pretextual reasons to mask a discriminatory motive.
Employees Vega, Drisker, Ocasio, and Sanchez were each issued a
single written warning essentially for stealing time offenses. But so
was Rios, prior to the incident that prompted her discharge. Johnetta
McNeill received two verbal warnings for stealing time in September
2007 and a final written warning for another offense of that type on
December 26, 2007. She was fired a month later for insubordination.
Although McNeill was initially given two verbal warnings, she was
given a final warning, just like Rios, for stealing time. Rios did it again
and she was fired. McNeill was thus not treated substantially differ-
ently than Rios. Nor is there any evidence as to whether she was a
union supporter or not. I cannot conclude simply from the documen-
tary evidence about McNeill that Rios was treated in a disparate man-
ner or that such treatment was caused by Rios’ union activities. In any
event, the overall documentary record for these five employees shows
that the Respondent viewed seriously the notion of stealing time. Thus,
far from establishing a discriminatory motive or a pretext for the dis-
DHL EXPRESS, INC. 715
III. THE OBJECTIONS TO THE ELECTION
I have found that Respondent engaged in unlawful surveil-
lance of employee handbilling activity on July 30, 2007. This
incident, which took place within the critical preelection period,
was a continuation of previous unlawful interference with le-
gitimate handbilling activity. The July 30 violation came to the
attention of most of the employees, who were entering the facil-
ity at the time the unlawful surveillance occurred. Other viola-
tions occurred during the critical preelection period, which
broadly affected large groups, if not all, of the employees who
voted in the election. Thus, the Respondent also violated the
Act by virtue of Penn’s unlawful threat, in an August 2007
meeting of employees, to sue a leading union activist for engag-
ing in protected concerted activity. Widely disseminated news-
letters were implicated in this matter, both before and after the
threat. The Respondent also engaged in discrimination against
union activist Elias Sleiman. That discrimination included a
reduction in his hours, which began prior to the filing of the
election petition, but continued throughout the preelection pe-
riod. Indeed, it continued until the date of the trial in this case.
In view of Sleiman’s position as an outspoken union leader—he
was, of course, the object of the unlawful threat to sue—
Respondent’s treatment of him undoubtedly came to the atten-
tion of large numbers of employees. In addition, the Respon-
dent threatened retaliation against an employee for writing a
prounion newsletter article and threatened an employee with
more onerous working conditions if she supported the Union.
While the latter two violations, which both took place shortly
before the election, were probably not as widely known, they
follow a pattern of unlawful activity that undoubtedly became
part of the lore of the workplace. A significant number of em-
ployees were affected by the violations. Considered in toto, the
violations I have found had a reasonable tendency to interfere
with the holding of a free and fair election on September 12 and
13, 2007. In these circumstances, I find that the election results
must be set aside and new election must be held that properly
reflects the will of the employees free from unfair labor prac-
tices or other objectionable conduct.
CONCLUSIONS OF LAW
1. By directing employees to leave the premises where they
were properly engaged in protected handbilling activity, threat-
ening to call the police if they did not leave and by actually
calling the police, and by engaging in surveillance of the pro-
tected union activity of employees, Respondent has violated
Section 8(a)(1) of the Act.
2. By threatening employees with reprisals, including more
onerous working conditions and discharge, for engaging in
union activities, Respondent has violated Section 8(a)(1) of the
Act.
3. By threatening to sue employees for engaging in pro-
tected union activity, Respondent DHL and Respondent Cross-
roads have violated Section 8(a)(1) of the Act.
4. By reducing the work hours of, and issuing warnings and
negative performance evaluations to, employees for engaging

charge of Rios, I believe, on balance, the evidence supports the Re-
spondent’s position rather than that of the General Counsel.
in union activities, Respondent has violated Section 8(a)(3) and
(1) of the Act.
5. The above violations are unfair labor practices within the
meaning of the Act.
6. Respondent DHL and Respondent Crossroads have not
otherwise violated the Act.
7. By engaging in some of the unfair labor practices set forth
above—those occurring after the petition was filed in this case,
the Respondent has interfered with the holding of a free and fair
election on September 12 and 13, 2007. That election is set
aside and the Regional Director must hold a new election.
REMEDY
Having found that Respondent DHL and Respondent Cross-
roads have engaged in certain unfair labor practices, I will order
them to cease and desist from engaging in those unfair labor
practices in the future and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent DHL, having unlawfully discriminated against
employee Elias Sleiman, must offer him reinstatement of the
hours he previously worked prior to his unlawful reduction of
hours and must make him whole for any loss of earnings and
other benefits because of such reduction in hours. Backpay,
together with interest, shall be computed in accordance with
applicable Board law. Respondent DHL must also expunge the
unlawful warning and the unlawful negative evaluation issued
to Sleiman and promise not to use such unlawful documents
against him in future disciplinary actions. Respondent DHL
will also be ordered to post an appropriate notice to employees.
Because Respondent Crossroads has no employees who are
affected by its unfair labor practice and because it is in the
business of providing labor relations advice to clients, a notice
posting by Respondent Crossroads would be useless. However,
the clients of Respondent Crossroads do have employees and
they should know that Respondent Crossroads has violated the
Act, as found in this decision. Accordingly, I am ordering that
Respondent Crossroads mail an appropriate notice, at its ex-
pense, to all of its clients as of the date that this order becomes
a final order of the Board.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended20
ORDER
A. The Respondent DHL, Breinigsville, Pennsylvania, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Directing employees to stop engaging in protected union
activity, threatening to call or calling the police to stop such
protected activity, or surveilling or otherwise interfering with
such protected union activity.
(b) Threatening reprisals, including instituting more onerous
working conditions and discharging or otherwise disciplining
employees because they engage in protected union activity.

20 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 herein shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for all
purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
(c) Threatening to sue employees for engaging in protected
union activity.
(d) Discriminating against employees by reducing their
hours, issuing them warnings or negative evaluations, or in any
other way because they engage in protected union activity.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, remove the discriminatory
warning issued to employee Elias Sleiman, as well as the dis-
criminatory negative evaluation issued to Sleiman in July 2007
from his employment file, and, within 3 days thereafter, notify
him in writing that this has been done and that neither of these
will be used against him in any way.
(b) Immediately reinstate the hours previously worked by
Elias Sleiman before the unlawful reduction of his hours begin-
ning on June 26, 2007, and make him whole for any loss of pay
and benefits due to the discriminatory reduction of his hours,
together with any interest, as computed under applicable Board
law.
(c) 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 re-
cords, 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.
(d) Within 14 days after service by the Region, post at its of-
fice and place of business in Breinigsville, Pennsylvania, copies
of the attached notice marked “Appendix A.”21 Copies of the
notice on forms provided by the Regional Director for Region
4, after being signed by Respondent DHL’s authorized repre-
sentative, shall be posted by Respondent DHL and maintained
for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent DHL to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, Respondent DHL has gone out of business or closed
the facility involved, Respondent DHL 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 May 29, 2007.
(e) 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
Respondent DHL has taken to comply.

21 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.”
B. The Respondent Crossroads, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening to sue employees for engaging in protected
union activity.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Copies of the attached notice marked “Appendix B,”22on
forms provided by the Regional Director for Region 4, after
being signed by an authorized representative of Respondent
Crossroads, shall be mailed, at its expense, to all of its clients as
of the date this order becomes final.
(b) 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
Respondent Crossroads has taken to comply.
IT IS ALSO ORDERED that Case 4–RC–21327 be severed and
remanded to the Regional Director to schedule a new election
when she thinks it appropriate to do so.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found
herein.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT direct employees to stop engaging in protected
union activity, threatening to call or calling the police to stop
such protected activity, or surveilling or otherwise interfering
with such protected union activity.

22 See fn. 21 above for language change if the order is enforced by a
court of appeals.
DHL EXPRESS, INC. 717
WE WILL NOT threaten reprisals, including instituting more
onerous working conditions and discharging, or otherwise dis-
ciplining employees because they engage in protected union
activity.
WE WILL NOT threaten to sue employees for engaging in pro-
tected union activity.
WE WILL NOT discriminate against employees by reducing
their hours, issuing them warnings or negative evaluations, or
in any other way because they engage in protected union activ-
ity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their rights under
Section 7 of the Act.
WE WILL remove the discriminatory warning issued to em-
ployee Elias Sleiman, as well as the discriminatory negative
evaluation issued to Sleiman in July 2007 from his employment
file, and, WE WILL, within 3 days thereafter, notify him in writ-
ing that this has been done and that neither of these will be used
against him in any way.
WE WILL immediately reinstate the hours previously worked
by Elias Sleiman before the unlawful reduction of his hours
beginning on June 26, 2007, and make him whole for any loss
of pay and benefits due to the discriminatory reduction of his
hours, together with any interest.

DHL EXPRESS
APPENDIX B
NOTICE
PROVIDED 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 publish and obey this
notice.
FEDERAL LAW GIVES EMPLOYEES THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with them on their
behalf
Act together with other employees for their benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT threaten to sue employees for engaging in pro-
tected union activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their rights under
Section 7 of the Act.

THE CROSSROADS GROUP LABOR RELATIONS
CONSULTANTS