H&M INTERNATIONAL TRANSPORTATION, INC.

National Labor Relations Board - Board Decisions

Mar 1, 2016

363 NLRB No. 139 (N.L.R.B. 2016)

363 NLRB No. 139
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
H&M International Transportation, Inc. and Harry
Neilan
UFCW, Local 312 and Harry Neilan. Case 22–CA–
089596, 22–CA–095095, and 22–CB–106127
March 1, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On June 10, 2015, Administrative Law Judge Mindy
E. Landow issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order as modified.3

1 All of the Respondent’s exceptions concern the judge’s admission
into evidence of a surreptitiously-made audio recording of a meeting
between employees and Terminal Manager John Nunnery on December
12, 2012. We find that the Respondent’s exceptions are without merit.
The judge found that Nunnery acquiesced in, and his statements rea-
sonably could have been construed as endorsing, employees’ strict
adherence to safety rules, including stopping at all rail crossings and
complying with the posted speed limit. In so finding, the judge ex-
pressly relied not only upon the audio recording, but also upon Nun-
nery’s admissions at the hearing and the credited testimony of other
witnesses. Because the judge’s factual findings were independently
supported by credited testimony, the admission of the audio recording
did not prejudice the Respondent. Further, the judge’s admission of the
recording was consistent with Board precedent. See, e.g., Local 560,
International Brotherhood of Teamsters (County Concrete Corp.), 360
NLRB No. 125, slip op. at 4–5 (2014); Orange County Publication, an
Unincorporated Division of Ottoway Newspaper, Inc. d/b/a The Times
Herald Record, 334 NLRB 350, 354 (2001) (citing cases), enfd. 27
Fed. Appx. 64 (2d Cir. 2001). Moreover, the General Counsel met the
authentication requirements imposed by the Federal Rules of Evidence
by producing testimony that supports a finding that the recording was
what the General Counsel claimed it was: a recording of the December
12 meeting. See Fed.R.Evid. 901(a) and (b)(1); see also U.S. v. Tahn
Le, 542 Fed. Appx. 108, 117 and fn. 8 (3d Cir. 2013) (Government
adequately authenticated tape recording as required by Fed.R.Evid.
901(a) by having “a witness with knowledge testify ‘that an item is
what it is claimed to be.’ Fed.R.Evid. 901(b)(1).”).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, H&M
International Transportation, Inc., Jersey City, New Jer-
sey, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Suspending, discharging, or otherwise discrimi-
nating against employees because they engage in protect-
ed concerted or union activities.”
2. Substitute the following for paragraph 2(d).
“(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sions and discharges, and within 3 days thereafter, notify
the employees in writing that this has been done and that
the suspensions and discharges will not be used against
them in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. March 1, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

We note that American Directional Boring, Inc., d/b/a ADB Utility
Contractors, Inc., 353 NLRB 166 (2008), a two-member decision cited
by the judge, was subsequently affirmed by a three-member panel at
355 NLRB 1020 (2010).
3 We shall modify the judge’s recommended Order to conform to her
unfair labor practice findings, and we shall substitute a new notice to
conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for engaging in protected
concerted or union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Harry Neilan, Alex Ventre, Abraham Gon-
zalez, and Ernesto Martinez full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Harry Neilan, Alex Ventre, Abraham
Gonzalez, and Ernesto Martinez whole for any loss of
earnings and other benefits resulting from their suspen-
sions and discharges, less any net interim earnings, plus
interest.
WE WILL compensate Harry Neilan, Alex Ventre,
Abraham Gonzalez, and Ernesto Martinez for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions and discharges of Harry Neilan, Alex
Ventre, Abraham Gonzalez, and Ernesto Martinez, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the suspensions
and discharges will not be used against them in any way.
H&M INTERNATIONAL TRANSPORTATION, INC.
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-089596 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Nancy Slahetka, Esq. and Robert Mulligan, Esq., for the Gen-
eral Counsel.
Russell J. McEwan, Esq. and David Broderick, Esq. (Littler
Mendelson, P.C.), of Newark, New Jersey, for H&M Inter-
national Transportation.
Bruce J. Cooper, Esq. (Pitta & Giblin, LLP), of New York,
New York, for UFCW Local 312.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW Administrative Law Judge. Based on
charges filed by Harry Neilan, an individual, on September 27,
2013, the General Counsel issued an Order Consolidating Cas-
es, First Amended Complaint and Notice of Hearing (the com-
plaint) alleging that H&M International Transportation (H&M
or the Employer) engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act) and that UFCW Local 312 (Local 312 or the
Union) engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.1 Both H&M and the Union filed
answers denying the material allegations of the complaint. On
January 23, 2014, counsel for the General Counsel filed and
served a Notice of Intent to Amend the complaint, which was
granted on the record on January 28. This case was tried before
me in Newark, New Jersey, on January 28, 29, and 30, 2014;
February 11, 20, and 28, 2014, and March 4 and 6, 2014. After
the resolution of certain interlocutory matters, the record was
closed by order dated September 30, 2014.
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after carefully considering the

1 By letter dated October 26, 2012, the Regional Director for Region
22 issued a conditional dismissal of the allegation in Case 22–CA–
089596 alleging that the reinstatement of certain discipline issued to
Antonio Vicente was in retaliation for Harry Neilan’s union activities.
By letter dated August 29, 2013, the Regional Director revoked the
conditional dismissal of that charge and this allegation was incorpo-
rated into the instant complaint.
2 My credibility resolutions herein are based upon context, demean-
or, weight of the respective evidence, established or admitted facts,
inherent probabilities, and reasonable inferences drawn from the record
as a whole. Double D. Construction Group, Inc., 339 NLRB 303, 305
(2003); Daikichi Corp. d/b/a Daikichi Sushi, 335 NLRB 622, 623
(2001). It must be said that virtually every witness who testified herein
raised questions about their credibility at certain times. In this regard, it
should be noted that on numerous occasions I have credited certain
portions of a witness’ testimony where other portions have been dis-
credited. State Plaza, Inc., a wholly owned subsidiary of RB Associ-
ates, Inc., d/b/a State Plaza Hotel, 347 NLRB 755, 755 fn. 2 (2006).
Moreover, while every apparent or nonapparent conflict in the evidence
may not have been specifically resolved below, my findings are based
H&M INTERNATIONAL TRANSPORTATION, INC. 3
briefs filed by the General Counsel, H&M, and the Union I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times H&M has been a corporation, with an
office and place of business in Iselin, New Jersey, and has been
engaged in providing railroad terminal services at facilities
throughout the United States including its Croxton facility
(Croxton) located at 125 County Road, Jersey City, New Jer-
sey, the only facility involved herein. In conducting its opera-
tions during the calendar year ending December 31, 2012,
H&M derived gross revenues in excess of $50,000 for provid-
ing railroad terminal services in interstate commerce under
arrangements with and as agent for various common carriers,
including Norfolk Southern Railway Company, each of which
operates between various States of the United States. H&M
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
it is admitted and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As framed by counsel for the General Counsel in its
posthearing brief, the issues presented by this case are as fol-
lows: (1) whether H&M violated Section 8(a)(3) and (1) of the
Act by suspending and then discharging Harry Neilan, Alex
Ventre, Abraham Gonzalez, and Ernesto Martinez; (2) whether
H&M violated Section 8(a)(1) of the Act by threatening to
discharge Ernesto Martinez and Harry Neilan; (3) whether
H&M violated Section 8(a)(1) of the Act by threatening to
reinstate discipline to Ernesto Martinez, Scott Watts, Jason
Wilson, and Losman Henriquez; (4) whether H&M violated
Section 8(a)(3) and (1) of the Act by issuing discipline to Anto-
nio Vicente; and (5) whether the Union violated Section
8(b)(1)(A) of the Act by failing and refusing to process a griev-
ance concerning the suspensions and discharges of Neilan,
Ventre, Gonzalez, and Martinez.
Witnesses and Their affiliations
For future reference, a list of the witnesses testifying at the
hearing and their respective affiliations may be helpful. The
four discharged employees: Neilan, Ventre, Gonzalez, and
Martinez all did testify, as did Vicente, the subject of a separate
alleged violation of Section 8(a)(3) and (1), who is a current
employee. In addition, two other current employees not named
in the complaint testified on behalf of counsel for the General
Counsel: Richard Barrett and Alfonso DeJesus. The General
Counsel examined H&M Terminal Manager John Nunnery and
General Manager of Rail Operations Timothy Newcomb pursu-
ant to Rule 611(c), and they also offered testimony to support
H&M’s case. Also testifying for the Employer were Assistant
Terminal Manager Jonathan Bartee, Operations Manager
Charles Oliphant, and Norfolk Southern Railroad Intermodal

on the factors described above. Accordingly, any testimony which is
inconsistent with or contrary to my findings should be deemed discred-
ited.
Division Manager Michael Scacco. Union Business Agent
William Domini was called to testify for H&M and by the Un-
ion to defend the General Counsel’s case against the Union in
this matter.
Overview of Employer Operations
H&M has a contract with Norfolk Southern Railway Com-
pany (NS) to load and unload cargo trains at the NS facility
located in Jersey City, New Jersey, which is known as and re-
ferred to in the record as the Croxton facility. Employees who
load and unload the trains are represented by the Union and
have been so for a number of years. The Croxton rail yard is
situated on NS property which contains an administrative build-
ing used by H&M and another one used by NS, five sets of
railroad tracks that run from north to south, a large container
storage lot, and an active railroad track over which neither
H&M nor NS have control. There is a paved roadway, known
as the “main crossing” which separates the north and south
portions of the lot and connects the container storage lot to the
NS tracks on which H&M’s employees most frequently load
and unload trains.
Chuck Connors is H&M’s owner and chief operating officer.
He is supported by Assistant Linda Gillis. Kevin Harrington,
the vice president for rail operations, reports to Connors.
Timothy Newcomb, the general manager of rail operations,
reports to Harrington. Newcomb oversees rail operations at
various H&M facilities. Croxton’s terminal manager, who is
responsible for its day-to-day operations, reports to Newcomb.
There are various operations managers, who function as super-
visors, who report to the terminal manager. Operations manag-
ers direct employees in their work assignments throughout the
day.
The substantive work at the Croxton facility is performed by
employees known as “hostlers” or “switchers.” They use vehi-
cles to move cargo to and from trackside. There are also “load-
ers” who operate cranes that lift cargo containers and trailers on
and off trains. These employees are all represented by Local
312. Neilan was a hostler truckdriver and had served as the
Union’s shop steward since 1999. Ventre, Gonzalez, Martinez,
and Vicente were all hostler truckdrivers as well, and the record
reflects that Gonzalez also operated a crane on occasion. Col-
lectively, these employees were the five most senior members
of the bargaining unit and considered to be the most experi-
enced employees in the yard.
Prior to September 2012, the terminal manager at Croxton
was Ed Burke. In the fall of 2012, a new management team
was assigned to the facility charged with, among other things,
enforcing safety policies and procedures and ensuring more
timely and efficient operations.3 As part of this transition, John
Nunnery replaced Burke. In November 2012, Jonathan Bartee
was hired to be trained as the new terminal manager and he
assumed that role on January 1, 2013. In October 2012, New-
comb assigned Operations Manager Charles Oliphant to the

3 Beginning in 2012, NS had lodged complaints with H&M about
the quality of operations at the Croxton yard including late train releas-
es, service failures, accidents, and equipment damage. Later that year,
NS told H&M that if conditions did not significantly improve, its con-
tract would be terminated and put out to bid.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Croxton facility. Newcomb did not maintain a constant pres-
ence at the Croxton facility. For example, during the period
between September 2012 and January 2013, he would be on the
premises approximately 2 weeks per month.
In October 2012, NS assigned Scacco, to the Croxton facili-
ty. George Martins, among others, reported to him during au-
tumn of 2012.
The Union’s Representation of Croxton Employees
The Union has represented H&M’s drivers, crane operators,
and ground men since at least 1996. Since 2006, business agent
William Domini has been the union representative responsible
for the facility.
The current collective-bargaining agreement between H&M
and the Union is effective from August 1, 2012, through July
31, 2015. Previously, when bargaining for a new contract was
due to commence, Domini would ask Neilan to inquire among
fellow employees as to who would want to participate in bar-
gaining, and employee representation would generally consist
of about four or five bargaining unit members. For prior con-
tracts, Ventre, Gonzalez, and Martinez, as well as Neilan, par-
ticipated in bargaining.
If employees encountered difficulties at work they would ini-
tially contact Neilan, who would attempt to resolve the situa-
tion informally. If that proved to be unsuccessful, he would
contact Domini, who would address the matter. If those efforts
proved to be unsuccessful, the matter would be sent to arbitra-
tion or mediation. The record reflects that prior to September
2012, there were few conflicts requiring such intervention. All
that changed when the new management entered the scene:
Neilan testified that he would call almost daily, that Domini
visited the facility between two and three times per week, and
that he responded fairly quickly to Neilan’s calls.
Overview of Company Operations
Respondent has maintained that Neilan, Ventre, Gonzalez,
and Martinez were discharged due to a deliberate work slow-
down on December 13, 2012. In this context, a brief overview
of the Employer’s operations is warranted.
Unit employees work either as crane operators, switcher, or
hostler drivers, or ground men. Operators use cranes to move
trailers and containers during the loading and unloading of
trains, drivers operate hostler trucks to haul trailers or contain-
ers between the storage area of the rail yard and the tracks
where they are loaded onto the train. Ground men assist drivers
by locking or unlocking trailers during the loading and unload-
ing of containers. In the event a driver is not working with a
ground man, then the hostler will perform such functions.
The hostlers use speed-regulated (or governed) vehicles to
move cargo to and from trackside. Operators log the lifts using
a computer system, referred to in the record as “SIMS,” at the
time they load or unload the trailer or container. During un-
loading, drivers record the location where they park the trailers
or containers using computers located in their trucks. Empty
containers which are loaded on rail are recorded by NS em-
ployees, known as programmers, and are typically recorded
after the loading of the train is complete.
A “lift” is considered the action of loading or unloading a
container or trailer on or off a train. Some actions which re-
quire multiple moves are counted as one lift. The productivity
of employees is measured in terms of “lifts per man hour,” or
“LPMH” which is not calculated by individual employee but
rather by 12-hour shifts, corresponding to the work schedules
of operations managers. While the collective-bargaining
agreement provides for employee bonuses if the LPMH meets
or exceeds an average of 2.7 in any given quarter, that measure
has been rarely achieved. A “move” refers to the time it takes a
driver to drive from the track to the storage lots, pick up or drop
off a load and then return to the track.
Once a train is fully loaded, H&M employees notify their
supervisor. H&M management ensures that the train is locked
down and then notifies NS that the train is released to the rail-
road to make preparations for final departure. So-called “re-
lease times” are set by NS and H&M managers are instructed
accordingly. There are three regularly scheduled outbound
trains at Croxton: the 23Z, the 211, and the 21M. There are
also regularly scheduled inbound trains: the 24Z, the 20K, the
20W, the 20E, and the 212. Availability is the time an inbound
train’s load is available to the customer. Generally, H&M is
provided 2 hours from the time a train arrives to fully unload it.
The decision as to when to begin unloading or loading a train
lies within the discretion of H&M management. The record
reflects that late release times and availability issues were
among the service problems the new management was brought
in to correct.
The credible testimony adduced at hearing was to the effect
that the ideal (that is, most effective) crew size during the fall
of 2012 consisted of five or six drivers for every crane operator,
although there were times when fewer drivers were assigned to
a particular crew due to any number of circumstances. An
H&M manager or supervisor determines the number of em-
ployees in each crew and determines which employees will
work together in a given crew. Factors other than crew size and
composition such as load volume, weather, equipment prob-
lems, and accidents will affect productivity and release times.
There is a peak season which runs from Thanksgiving through
the New Year, at which time the volume of containers to be
loaded and unloaded increases.
Enforcement of Safety Rules
Nunnery testified that he was sent to Croxton to among other
things, turn things around regarding the observation of and
enforcement of safety rules which had been loosely enforced
during Burke’s tenure. While Burke did enforce the require-
ment for ground men to wear hardhats and vests he did not
require seat belt usage, the utilization of other forms of protec-
tive personal equipment (PPE), the prohibition on cell phone
usage while operating company vehicles and equipment, and
procedures for dealing with vehicles and equipment in need of
repair. Domini testified that when new management arrived at
Croxton they were unhappy with Burke’s lax enforcement of
safety rules, the number of accidents, and corresponding
equipment damage.
According to Oliphant, the stricter enforcement of safety
rules in the fall of 2012 was not well received by the “upper
seniority guys.” As he testified, “[W]e came in; started chang-
ing the rules from what they had been to what they needed to
H&M INTERNATIONAL TRANSPORTATION, INC. 5
be” and that it “didn’t go over well.” Bartee testified that “[t]he
more senior the guy the—the more push back there would be.”
Domini testified that he met with workers often in the fall of
2012 to discuss management’s stricter enforcement of safety
requirements.
H&M maintains a safety manual known as the “blue book”
which was redistributed to Croxton employees in the fall of
2012. In addition, NS maintains its own safety standards,
which H&M is obliged to meet or exceed. While Burke was
terminal manager, Ventre was assigned to replace him at peri-
odic meetings with NS personnel designed to address safety
issues and had done so for about 6 years. Although there is no
such official position, Ventre was generally known as H&M’s
“safety officer.”
H&M’s safety rules require the use of seat belts, the use of
personal protective equipment (PPE) including hardhats, gog-
gles, reflective vests and gloves, a prohibition on cell phone
usage while employees are on duty, and promptly reporting
vehicles in need of repair. In addition, there are rules and vari-
ous practices regarding vehicle speed limits and the procedures
for traversing crossings which are directly relevant to a consid-
eration of matters herein and bear further some discussion.
The posted speed limit at the Croxton yard is 15 mph, but
was more frequently applied to over-the-road carriers who ac-
cess the site to drop off or pick up trailers. H&M employees
working on the site would typically drive at faster speeds to
increase productivity. Their trucks are limited (governed) to
achieve maximum speeds of 27 mph while empty. A loaded
truck will proceed more slowly. None of the employee witness-
es herein testified to any instance where a hostler driver re-
ceived a ticket issued by NS police for speeding.4 The record
as a whole demonstrates that the 15-mph speed limit was, for
the most part, unenforced. Scacco admitted this was the case;
Gonzalez testified that, although H&M employees were aware
of the speed limit, management did not enforce the rule because
doing so would reduce productivity. Vicente testified that the
workers adhered to the speed limit only when management
enforced the rules; generally by advising employees to do so in
safety briefings.
The H&M blue book requires employees to stop at all stop
signs; use extreme caution at intersections and rail crossings;
drive defensively; be alert to other vehicles; and adjust for
weather conditions. There are only two upright stop signs that
are encountered at the main crossing which are positioned on
either side of the active railroad track leading into the container
storage lot at the south end of the rail yard. Other stop signs are
painted on the ground and do not appear to be maintained. In
other words, while they exist, they are faint. Although NS rules
appear to require stopping at crossings,5 the evidence is that in

4 The NS operations manual provides: “All individuals driving on
the intermodal terminal facility must obey posted speed limits. The
speed limit for all vehicles on intermodal facilities is 15 mph or less.”
This manual has a section specifically for hostlers which reiterates this
rule. The H&M safety manual also requires that hostler drivers observe
posted speed limits.
5 The General Counsel refers to several memoranda issued in 2012
which purport to show that NS expected H&M employees to stop at all
general, drivers did not come to a full stop at these intersec-
tions, but proceeded with caution, and that this practice was not
only accepted but endorsed by H&M and NS. Sometime in
late-September or October 2012, Burke advised employees that
due to the new management they should more carefully observe
the safety rules, including the stop signs. Neilan, Gonzalez,
Martinez, and Vicente did, for a brief period of time, stop at all
the crossings, contrary to their usual practice. NS management
observed their behavior and discussed the issue with H&M
management. Nunnery called a meeting where the employees
were advised that they did not have to come to a complete stop
at all crossings, but rather use caution as had been customary.
From the testimony of both employee and employer witnesses,
it appears there was a consensus that coming to a complete stop
at all crossings was unnecessary and would slow down produc-
tivity.6
In addition to redistributing the safety manual to its employ-
ees, H&M managers conducted preshift meetings where a
number of safety issues and policies were discussed, posted
policies in the employee breakroom and conducted spot audits
in the yard. For the first several months, no discipline was
issued to employees regarding perceived violations of safety
rules. It does not appear from the record that Neilan, Ventre,
Gonzalez, or Martinez were particularly flagrant violators of
the safety rules as any such infractions by them do not appear
in spot audits conducted by management during the fall of
2012.
Much testimony at the hearing was adduced relating to the
issue of seatbelts, employee resistance to their use and their
effect on productivity. Both Neilan and Gonzalez testified that
seatbelts would lock causing discomfort and that their use
slowed down production. Gonzalez testified that employees
did not fasten their seatbelts because they had to get in and out
of their trucks so often, perhaps every 40 feet. Ventre com-
plained about his seatbelt and it was replaced. Nunnery
acknowledged that employees complained that the seatbelts
were too tight when they applied the brakes, that they were
dirty, and their use affected productivity.
Chronology of Relevant Events7
Negotiations for the 2012–2015 Contract
In the spring of 2012,8 negotiations for the current collective-
bargaining agreement commenced under the auspices of a me-
diator from the Federal Mediation and Conciliation Service

crossings and that H&M was reinforcing that rule in safety briefings
with its employees.
6 The record reflects that employees continued to get “mixed mes-
sages” about whether they should stop at the crossings. For example, in
February 2013, Barrett received a certificate from an NS manager
commenting on his safe driving which included stopping at crossings
and observing the speed limit; a safety briefing from July 2013 instructs
employees to slow down and stop to check for oncoming trains; several
safety briefings from July through September 2013 state that the rule is
to stop at the crossings.
7 The following discusses evidence relied upon by the parties to sup-
port or refute both the 8(a)(1) and (3) and 8(b)(1)(A) allegations of the
complaint.
8 All dates hereafter are in 2012, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(FMCS). Neilan, Ventre, and Domini attended on behalf of the
Union and Connors and Burke participated for H&M. Connors
offered a raise of 25 cents per hour over the course of the con-
tract. In June, there was another meeting at a diner in Secau-
cus, New Jersey. Neilan told Connors that he had to offer a
minimum raise of 50 cents. Connors agreed to that, but no
more.
In late-June Connors presented his proposal to the bargaining
unit. Domini was unable to attend this meeting. Approximate-
ly half of the bargaining unit was present on this occasion. A
couple of weeks later another meeting was held in the
breakroom on H&M premises. The mediator was present as
were Domini, Connors, Burke, and employees Neilan, Ventre,
and Julio Esquilin. Connors again offered the 50-cent raise
over the course of the contract, with no other changes. The
mediator inquired as to whether this was the Employer’s last,
best, and final offer and Connors replied that it was. Over the
objections of Neilan and Ventre, negotiations then ended and
Domini conducted a vote. Employees were given the choice as
to whether to accept the contract or strike. A majority of em-
ployees voted to accept the contract, by a sufficient margin so
that the votes of the night employees, who were not present at
the time, would not have altered the outcome. Both Neilan and
Ventre testified that for prior contracts, there had been more
extensive and meaningful negotiations.
Pavel Pimentel’s Disciplinary Meeting
On September 6, a meeting was held regarding H&M’s sus-
pension of employee Pavel Pimentel due to threats he allegedly
made to Operations Manager George Epps. Domini, Neilan,
Pimentel, Connors, and Burke were in attendance. Neilan’s
prior investigation of the incident had failed to uncover evi-
dence of threats. During the meeting, management offered to
return Pimentel to work if he admitted to making the threats as
alleged by Epps. Neilan testified that he argued with Connors
over the demand for Pimentel to admit to making statements he
had not made. Management then left the room while the others
discussed the matter. According to Neilan, Domini encouraged
Pimentel to admit to the threat to allow him to return to work
immediately. Domini testified that he did not recall this aspect
of the discussion. Pimentel refused and Domini stated that the
issue would be submitted to a Federal mediator. Pimentel was
allowed to return to work and ultimately, the matter was settled
in mid-October by the parties’ agreement that Pimentel would
receive a written warning on the basis of insubordination to be
maintained in his personnel file for 6 months, which was 6
months less than provided for the collective-bargaining agree-
ment.9
Enforcement of and Alleged Changes to the
“Call Out” Rule
On November 23, 2011, H&M had distributed the following
memorandum to its employees:

9 On that same date, other settlements were entered into, as will be
discussed in further detail below.
Effective immediately, H&M International Transportation
would like to clarify our policy regarding the method used to
call off an unscheduled absence from work or late arrival:
H&M does NOT consider text messaging an acceptable
method of informing your Supervisor that you will not be re-
porting to work or your late arrival. H&M requires employees
to make a phone call to speak to your Supervisor in person
but, if your Supervisor is not available when call in a
voicemail message will be considered an acceptable alterna-
tive means of notification.
This clarification does not alter or change any other aspects of
locally distributed call-in procedures for your location for an
unscheduled absence or lateness procedure.
Subsequently, on September 13, 2012, Terminal Manager
Burke issued the following memorandum:
CALL-OUT PROCESS
If you are calling off for your scheduled shift you must pro-
vide a minimum of (2) two hours notice prior to the scheduled
start of the shift.
If you are calling to state that you cannot come to work you
must call 201-955-8715 and speak with an Operations Man-
ager. Text or email messages are not an acceptable method of
communication when it applies notifying the company that
you will not be in for your scheduled shift.
Failure to comply with this procedure will result in progres-
sive discipline.
On September 10, both Neilan and Vicente were scheduled
to begin work at 6 a.m. but notified the Employer that they
would be out for that day. Neilan provided this notice by send-
ing a text message to Operations Manager Bill Dugan at 5:45
a.m. Vicente called H&M at approximately 4:42 a.m. that
morning to notify the Employer of his impending absence.
Both employees testified generally that they had called out in
the same manner in the past without consequence.
As will be discussed below, both employees received written
warnings for their failure to follow company call out proce-
dures, issued by Burke, but administered by new management.
New Management at Croxton
On September 14, Nunnery became Croxton’s terminal man-
ager, replacing Burke. Newcomb began to visit the facility
more often, usually for 2-week visits. In October, Charles Oli-
phant was brought in as an operations manager. Newcomb
testified that when he arrived he became aware that “from an
administrative standpoint we were not doing our job. As man-
agers [we] were not enforcing basic safety policy, nor were we
enforcing any type of disciplinary issues as far as attendance, or
call off, or anything of that nature, so the place was running
ragged because of our lack of managing it.”
Newcomb then contacted Domini and explained NS’ con-
cerns concerning safety, accidents, and late trains. He told
Domini that he planned to enforce work rules and policies as
had not been done previously. Domini said that H&M should
give employees a 1-week notice of such changes prior to their
enforcement. Within the week, Newcomb and Nunnery met
H&M INTERNATIONAL TRANSPORTATION, INC. 7
with employees to advise them of management’s intentions in
this regard.
Discipline for Violations of the Call-Out Policy
On September 14, Newcomb and Nunnery met with Neilan
and Vicente to issue written warnings to them based upon their
failure to follow call-out procedures on September 10. Neilan
was disciplined for calling out less than 2 hours before his shift
began and for notifying his supervisor by text message. Vicen-
te was issued the warning for calling out less than 2 hours be-
fore his shift began. Both warnings were issued and signed by
Burke.
During the meeting where the discipline was administered,
Vicente showed Newcomb his phone. Although it showed that
he had called later than the the 2-hour limit (at 4:42 a.m.),
Newcomb mistakenly assumed that he had called within the
allotted time period and rescinded Vicente’s discipline.
Neilan’s discipline was not withdrawn and he notified
Domini, who filed a grievance on Neilan’s behalf.10
Complaints Regarding the Use of Nonunit Employees
and Other Alleged Contract Violations
Neilan became aware that the Employer was using casual
employees for work on September 15 and 16, both weekend
dates. Typically, H&M would use casual employees if other
employees were unavailable for overtime. Neilan testified that
bargaining unit employees would be offered the opportunity to
perform such work by seniority. If they declined, they would
be offered the opportunity again prior to using casuals.11 On
September 14, Neilan was asked on one occasion if he wanted
to work overtime on the following day, and he declined. He
was not asked again.
Neilan also received reports from fellow employees that a
supervisor had performed bargaining unit work by operating
equipment, and two workers had been sent to lunch after work-
ing only 1 hour. Neilan reported these matters to Domini.
On September 16, Domini sent the following email to New-
comb and others in H&M management entitled “Management
doing union work and lunch period”:
Article 4 Section 5 of the union contract states that HM must
contact union members when overtime is available. On Satur-
day 9/16 and Sunday 9/17 a supervisor was operating equip-
ment and to the best of our knowledge the steward who is the
most senior man was not contacted, nor anyone else. We are
claiming pay for those 2 days for one man. Also it was
brought to my attention, 2 workers were sent to lunch after
being on the job one hour. The employees’ lunch break
should be after 5 hours of work as per the law. We are aware
of the new management at the Croxton Lift and your inten-
tions to follow the work rules of HM. But we expect you to
follow the union contract also. The union requests a copy of
the HM work rules and the employees should also be given a

10 According to Neilan, this was the first discipline he had received
during his tenure.
11 There is no evidence that this “double dip” procedure is specifical-
ly endorsed by the collective-bargaining agreement and no other em-
ployee testified to its practice.
copy. I am also requesting a meeting with whoever is running
the terminal to discuss the violations that have been going on.
Newcomb responded later that day asserting that to his
knowledge there had been, “no management in equipment” and
requesting further information. Domini then clarified that a
casual had been brought in to do union work without calling
one of the unit members first.
Domini then sent the following email to Neilan:
Harry, I spoke to Tim Newcomb and he stated that on Friday
you were asked if you wanted to work overtime this weekend
and you replied no, in front of Nunnery and the secretary. He
did say the supervisor got into a switcher or machine for 20
minutes and then stepped out of the equipment, as the contract
allows. Tim did say if they needed additional help for the shift
they would have called the union labor that did not book off
for the weekend. He also stated NJ law allows them to send
workers to lunch at their discretion, I’m not aware of this. I
called our attorney and he is looking into it for me and will
advise us. As far as the casual he is a new driver in training
that I referred to HM for a job.
Neilan responded as follows:
Anytime you are asked to work overtime you are asked a day
in advance. I don’t sign the list that’s why I answered no. But
I work on an always available basis as the management
knows. I haven’t signed the overtime list in quite a while be-
cause I’m always on call 24/7. As my time card will verify. I
work my regular shift and then come back on weekday after-
noons and weekend afternoons. Sunday evenings, etc. When-
ever I’m needed. As the secretary will verify.
As far as the lunch hour lunch is either between the 4th and
7th hour or it’s a work through. This has been a work rule in
the contract since 1996.
The contract does not allow management to send union men
to lunch and then do their job. We have over 30 men and there
is no need to have any management in the equipment.
The contract makes no provision for any casual workers at all.
Before using one of them every union man on the roster needs
to be called. I’m a dues paying member and will not tolerate
being skipped on an overtime call.
What is going on is simply discrimination for me doing the
steward job. This is their way to retaliate against me for union
activities which is prohibited by law. As we spoke about ear-
lier that supervisor Epps has threatened to change the jobs.
Hence you see the schedule not going into effect even after it
was bid. Albeit six weeks late. Never has a schedule been bid
and then not being put into effect. This a clear violation of the
contract.
Neilan sent a further email advising Domini that the casual
to which he had been referring was not the new driver in train-
ing that Domini had referenced, but rather another employee
who had worked as a casual for years.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The September 17 Meeting
On September 17, representatives of union and management
had a meeting. There was little resolution. Neilan reiterated his
claim that he was being retaliated against for his activities as
shop steward. He specifically mentioned the fact that Vicente’s
letter had been withdrawn, while his had not. Nunnery testified
that Neilan made the point that Vicente had called less than 2
hours prior to the commencement of his shift. Nunnery con-
firmed the time of Vicente’s call and determined that his disci-
pline should be reinstated.
The Reinstatement of Vicente’s Written Warning
On September 18, Vicente was called into a meeting with
Newcomb and Nunnery and the warning letter regarding his
failure to call out in a timely fashion was reissued. According
to a recording of this meeting made by Vicente (and corre-
sponding transcript), which I admitted into evidence over Re-
spondent’s objection, the following exchange occurred:
NUNNERY: Okay. One more thing, you know that let-
ter from the other day:
VICENTE: Umm-hum
NUNNERY: Harry come in, we were at a meeting yes-
terday
VICENTE: Okay
NUNNERY: And he’s like, “You’re singling me out.” I
said, Why?” He said, “You gave me a letter but you didn’t
give [Vicente] a letter. I said, “We gave him a letter.” He
said, “No.”
The policy is you got to call two hours. He said yeah. I
said (inaudible). He didn’t call out (inaudible). I said,
“What do you mean?” I didn’t look at the time. I seen you
show Tim. You called off and—not within two hours.
VICENTE: Um-Hum
NUNNERY: So, he’s like, “You got to—you can’t give
me a letter and not him a letter.” And I was “Like you got
a letter for texting, not calling off in the timeframe, which
you didn’t—wasn’t in the timeframe, either but yours was
via text. That’s the bigger issue. Come on we can—we can
make calls and—you can get calls. So he’s saying we’re
harassing him.
Vicente protested that he called out in the same manner as he
had in the previous 14 years. In response, Nunnery said, “I
think every single thing you guys talked to me about you there
(inaudible) no problems. I think you’re doing a good job with
the new rules we’re coming up with . . . I understand the letter’s
here right now, but as long as you do what we ask we’re not
going to actually do anything crazy out there man. Simple
stuff.” Newcomb added that it was “intended to stop the big
violators . . . if you’re not a big violator it won’t never hurt
you.”
Vicente’s discipline was later expunged pursuant to an Octo-
ber 4, 2012 settlement between H&M and the Union.
Shift Changes Announced in October 2012
By contract and past practice employees at Croxton bid on
shifts, by seniority, every 6 months. Historically there had been
three shifts: 6 a.m.–2 p.m.; 2–10 p.m.; and 10 p.m.–6 a.m.
Although the last bid had taken place in August, the bids had
not been awarded prior to the new management taking over.
Newcomb determined that the existing shift schedule was in-
effective because there was a significant amount of downtime
afforded the shift starting at 6 a.m. Newcomb took the position
that, under the contract, he had the option to alter the schedules
of H&M employees.
At some point in about September, Nunnery and Newcomb
informed Neilan that the employees would be asked to rebid
their schedules for three new shifts: 11 a.m to 7:30 p.m.; 7:30
p.m. to 4 a.m.; and 10:30 p.m. to 7 a.m. This proposed change
affected employees Neilan, Ventre, Gonzalez, and Martinez as
well as Vicente and Richard Barrett, who had bid for and were
working on the 6 a.m. shift and who had bid on that shift in
August. Employees complained about this change which re-
stricted the option for weekends off, for the most part, to those
employees who worked the shift beginning at 7:30 p.m. Neilan
told Newcomb that the only way he could work the 11 a.m.
shift was to take away a slot with weekends off from someone
who needed it.
Neilan reported the announced schedule change to Domini,
who stated that he would submit the matter to be mediation.
The Initial Unfair Labor Practice Charge
Filed by Neilan
On September 19, 2012, Neilan filed a charge with the Na-
tional Labor Relations Board (the Board) alleging that H&M
had violated Section 8(a)(3) and (1) of the Act by discriminat-
ing against him in retaliation for his union activities and by
advising other employees that they were being disciplined on
account of Neilan’s union activities. By letter dated October 26,
2012, the Regional Director for Region 22 conditionally dis-
missed the allegation that H&M reinstated Vicente’s discipline
in retaliation for Neilan’s union activities.12 The remaining
allegations of the charge were dismissed in their entirety.
Mid-September Meeting with the Union
Neilan arranged for an offsite meeting with Domini which
was also attended by Ventre, Gonzalez, Martinez, and Vicente.
The workers lodged complaints about, among other things, the
impending schedule changes. Domini consulted the Union’s
attorney and advised the group that these issues would be dis-
cussed at an upcoming mediation session. Eventually, man-
agement’s decision to change the schedules was grieved and
deemed to be appropriate by an arbitrator.
Neilan and Gonzalez Allegedly Skipped Over for
Weekend Overtime
Operations Manager Craig Smith asked Neilan if he was in-
terested in overtime work on Saturday, September 22. Neilan
declined, but stated that he told Smith he should give him a call
if he was “in the bag.” Smith did not contact Neilan to work.
Gonzalez, the second most senior employee working at the time
was not asked to work. Neilan believed that a worker from
another terminal was brought in and reported this matter to
Domini. On October 3, a mediation session was held and a

12 This allegation was subsequently reinstated following a merit de-
termination in the instant case warranting the issuance of the complaint.
H&M INTERNATIONAL TRANSPORTATION, INC. 9
settlement agreement was entered into by which Neilan was
compensated for 8 hours and Gonzales for 4 hours of overtime
pay to compensate for lost time during the weekend of Septem-
ber 22, 2012.
Alteration of Shift Start Times
On September 24, Newcomb notified employees on the 6
a.m. shift to report to work on the following day at 9:30 a.m.
due to the anticipated late arrival of the 24Z train. The notice
distributed to employees references a particular contract provi-
sion, which Neilan did not believe was applicable to the situa-
tion at hand.13 Neilan then contacted Newcomb, who main-
tained that since the provision was in the contract, he would use
it. Neilan reported the matter to Domini. As it happened, it
appears from the record that almost everyone on the 6 a.m. shift
was called and instructed to report at the usual hour.
On the following morning, September 25, Neilan was called
to a meeting with Domini, Newcomb, and Nunnery at which
various issues were discussed, including the flextime provisions
of the contract. As Neilan testified, at one point Newcomb
asked him if he wanted the Company to go out of business.
Neilan responded he just wanted the Company to follow the
contract. Newcomb then asked Neilan if he was there for the
men or just for himself. Neilan replied he was there for the
men. As Neilan testified, Newcomb then stated, “Well, you
know Harry, I don’t have a problem with you, it’s Chuck that
has a problem with you.”
Call for Overtime on September 27
On the morning of September 27, Neilan was asked whether
he wanted to work overtime that day. He declined but stated
that if management was “in the bag” they should give him a
call. At around 4:30 p.m. that day, Nunnery called Neilan and
asked him to return to work to help out. Neilan worked from
about 6 to 9:30 p.m. on the 23Z train.
Gonzalez Complains About Safety
Sometime during the summer of 2012 a new bridge was con-
structed over the west end of tracks A and B. Gonzalez testi-
fied that the bridge lacked sufficient space for workers to stand,
creating the possibility they could fall into the river while
working in that area. Gonzalez asserts that he lodged numerous
complaints about this issue to H&M managers, including Nun-
nery. H&M replied that the bridge was on NS’ property; thus,
they had the responsibility for it. Gonzalez then spoke with the
yardmaster, an NS employee, and an additional walkway was
added to the bridge.
October Mediation Session with the FMCS
As has been referred to above, on October 3, a mediation
session was held in Scacco’s office with an FMCS mediator.
Also in attendance were Neilan, Ventre, Richard Gonzalez,
Domini, Connors, Nunnery, Gillis, and Epps. Five issues were

13 Art. 4, sec. D3 of the contract provides that start times will be
posted daily before the end of each shift and that management has the
right to change hours of work due to changes in train schedules. Neilan
took the position that this so-called “flex-time” provision had been
intended to be operative only until the operation became stable in 1996,
which was the initial year of operation.
resolved at this meeting: (1) Neilan was paid 8 hours of over-
time to compensate for lost overtime on September 22; (2)
Abraham Gonzalez was paid 4 hours of overtime to compensate
for lost overtime on September 22; (3) Vicente’s September 10
warning was withdrawn; (4) Neilan’s September 10 warning
was withdrawn; and (5) there was a settlement regarding the
Pavel Pimentel issue, which is described in detail above. The
parties additionally discussed the proposed schedule changes,
but the Company was insistent on those changes. Domini ad-
vised Neilan that he would submit this matter to arbitration.
Newcomb Speaks with Morning-Shift employees
In early October, Newcomb gathered the morning shift
workers for a short meeting at the west end of track A. New-
comb testified that the purpose of the meeting was to encourage
teamwork and instruct the crew to change the placement of
containers, so as to increase productivity. Gonzalez, who was
present at this meeting, testified that Newcomb said that if any-
one tried to prevent him from getting done what he wanted to
get done, he could terminate not only that individual, but a
group of workers, so that he would not be accused of singling
anyone out. Newcomb denied making that statement and I note
that no other employee then working on the morning shift,
which at that time included Neilan, Barrett, Martinez, Vicente,
and Ventre, all of whom testified herein, corroborated that
Newcomb had made such a threat.
The Posting of Work Rules
On October 5, H&M posted a series of memoranda in the
employees’ breakroom with an effective date of October 8.
These memoranda addressed the following issues: Flextime
(changes in work hours due to train schedules); Hold-Over (the
requirement that employees work overtime when necessary and
placing certain restrictions on that practice); Rest Period
(providing for two breaks of 15 minutes each and a 30 minute
lunchbreak); holiday bid procedures and overtime pay proce-
dures. On October 11, another memorandum was posted re-
garding procedures for requesting vacation time and floating
days, to become effective October 14. As Neilan testified, the
holiday bid and overtime pay policies represented the current
practice; the flextime and rest period policies restated provi-
sions in the collective-bargaining agreement although they had
not been previously enforced and the hold over and scheduling
of vacation leave policies were new. Neilan asserts that he did
not receive copies of these policies although they indicate that
he did.
Employees were asked to sign an acknowledgement that they
had received, read, and understood each policy. Nunnery
showed the policies to Neilan on October 24. He signed for all
of the rules except for the hold over rule which he maintained
was not part of the contract. Gonzalez was approached by Oli-
phant in the breakroom and asked to sign the acknowledgement
sheet. Gonzalez then retrieved a copy of the collective-
bargaining agreement from his locker and pointed out what he
viewed as contradictions to that document. As Gonzalez testi-
fied, Oliphant became angry and left the breakroom. Later that
afternoon, when Gonzalez was working on a crane, Newcomb
approached him and stated that he wanted to discuss Gonzalez’
earlier discussion with Oliphant. Gonzalez told Newcomb the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rules changed the provisions of the contract and such changes
had to be negotiated with the Union. Newcomb then called
over Neilan and Ventre. Gonzalez testified that Newcomb
stated that he needed the changes to make things run better and
needed the employees’ help to accomplish this. They said they
would try to work with him as long as he did not make changes
that had already been negotiated and in the contract. According
to Ventre, Newcomb asked, “[W]hy [do] you keep fighting?”
Ventre met with Oliphant in the yard. Ventre asked Oliphant
if he was trying to negotiate a new contract. Ventre refused to
sign the hold over policy but signed an acknowledgement of the
rest.14
Implementation of Changes in Employees’ Work
Schedule and Weekend Overtime Hours
On October 9, H&M posted the new shift schedule which
became effective on October 15. Neilan, Martinez, and Vicente
worked the 7 p.m. shift and Ventre, Gonzalez, and Barrett
worked the 11 a.m. shift.
After the implementation of this new schedule, Nunnery told
Neilan that he was going to require workers scheduled to work
from 11 a.m. to 7:30 p.m. on Saturday and Sunday to come in
at 7 a.m. and pay them 4 hours of overtime. Neilan told Nun-
nery that overtime should be bid out and awarded by seniority.
Nunnery agreed, but stated that any worker who came in to
work overtime at 7 a.m. would have to leave at 11 a.m. when
the regular shift started. Previously, overtime shifts had lasted
for 8 hours, rather than 4.
The October 24 Union Meeting with Management
At about 7 p.m. on October 24, a meeting was held in the
breakroom with Domini, Neilan, Ventre, Gonzalez, and Mar-
tinez in attendance for the Union and Newcomb, Nunnery, and
Donovan in attendance for management. There was a docu-
ment drafted as a result entitled “Understanding of Shift Hours”
which was posted in the breakroom. Topics covered included
duration of shifts, rules regarding lunchbreaks, early departure,
overtime pay for working through lunch, notification of man-
agement if leaving the work area, and a commitment on the part
of labor and management to work together and communicate
with each other should unexpected circumstances arise.
Worker Dissatisfaction with the New Policies
and Work Rules
According to Domini, Neilan, and other workers communi-
cated their unhappiness about the enforcement of the new poli-
cies and work rules frequently. He spoke with Neilan frequent-
ly, sometimes on multiple occasions in 1 day. Worker com-
plaints resulted in discussions with Nunnery, Newcomb, and

14 Domini testified that a number of these policies had been in exist-
ence but unenforced under Burke and that some were new—
specifically the new rule requiring employees to work up to 8 hours
after their normal shift. The Union resisted this new rule due to safety
considerations. The change in work schedules resulted in a grievance
which went to arbitration in January 2013, and the arbitrator upheld the
Company’s right to change the schedules. Domini further testified that
although the Company had used casual employees in the past, it had not
been an issue until September 2012. He addressed this issue with man-
agement and, as a result, casuals are no longer used.
Connors several times a week and Neilan was generally present
at these meetings. Nunnery corroborated this by testifying that
any time he came up with a memo or policy, Domini had to
come down and he would be obliged to hold a meeting. Ac-
cording to Nunnery, between September and December, there
were about 15 meetings, and workers were also present. Such
meetings could become “heated” due to worker dissatisfaction
with management’s changes.
The Broken Sink and Toilet
Workers generally used a restroom situated in a separate
trailer located near the trailer which housed the breakroom. In
about November, the toilet broke (the sink had apparently bro-
ken earlier in the autumn) and employees were obliged to use a
bathroom located further away. Employees complained to
Gonzalez about this matter and after broaching the subject with
management, Gonzalez told Domini he was going to call the
health department. Domini said he would take care of the mat-
ter. Domini testified that he “told John Nunnery that Abe
called me; and I told him to fix the fuckin’ bathroom so I don’t
have to deal with the Health Department.” The toilet was fixed
the next day. Neilan testified that on the following day, Nun-
nery said to him, “Oh Abe didn’t have to go and call Bill on me
. . . I don’t like to be threatened.”
Overtime Disputes
On Saturday, December 1, Neilan worked an overtime shift
from 7 to 11 a.m. During this shift, Oliphant asked Neilan to
work past 11 a.m. and he declined. When Neilan went to punch
out he discovered the timecards were missing. Neilan then
called Nunnery to advise him he could not punch out and Nun-
nery told him he needed him to stay and Neilan again declined.
As Neilan testified, Nunnery then stated, “Well, that’s going to
be the end of those four-hour shifts.” Neilan told him to put it
in writing.
Nunnery testified that the operations manager informed him
that Neilan and some other employees said they were going to
leave at the end of their 4-hour shifts. Nunnery said he called
Neilan, but Neilan had already left the premises. Nunnery then
went to speak with Martinez and told him that he needed for
him to stay longer than 4 hours, and Martinez agreed. Martinez
testified that Nunnery told him that he and Neilan had been
arguing about overtime and the men not wanting to stick
around. Martinez replied that the 4-hour rule had already been
posted. According to Martinez, Nunnery complained that
Neilan had embarrassed him on the phone because Newcomb
had overheard the conversation and that he tried to work with
Harry and that Neilan “did not want to see [his] bad side.”
Nunnery denied making this comment. According to Martinez,
he replied, “[T]hat’s the way in the contract—it’s a four hour
shift; we’re all union here—we stick together.”
On Sunday, December 2, Neilan worked another overtime
shift from 7 to 11 a.m. Oliphant asked him to stay on. Neilan
replied that he wanted to go to church first and then would
return. He later worked from about 3 to 9 p.m.
As Neilan testified, at about 7 p.m. that evening some em-
ployees who had been working since the morning were com-
plaining over the radio that they wanted to go home because
they had already worked for 12 hours. Newcomb came over the
H&M INTERNATIONAL TRANSPORTATION, INC. 11
radio and said, “Nobody’s going anywhere. You guys think
you’re a bunch of tough guys. Wait ‘til tomorrow. I’m going to
do what I have to do.” Newcomb claimed the right to hold the
men for as long as 16 hours. At 7:30 p.m. Neilan attended a
meeting with all the men working at the time as well as Oli-
phant, Newcomb, and Nunnery. According to Neilan, New-
comb stated that he would not punish anyone who did not stay
and that “we’ll just lose the contract.” Newcomb then asked
the men to talk it over, and he would return in 15 minutes.
Nunnery testified that he and Newcomb told employees at this
meeting that, “We’re done fighting with you. We’re not going
to argue with you. We have a job to cover here. If we don’t
cover the job, we gotta tell the Railroad we just didn’t cover the
job. We’re going to let you guys decide what you’re going to
do.” The workers deliberated among themselves and decided
to stay on.15 According to Nunnery, he received a text message
from Neilan on the following day to the effect that “you get
more with honey than with vinegar. This is what happens when
you treat the guys nice. I hope you enjoy the game.”
Contact with the Union
On December 3, Neilan called Domini to advise him about
the events of the prior evening and he came down to the facility
at noon that day. Neilan was summoned to attend a meeting
with Newcomb, Nunnery, and Domini. Newcomb and Nun-
nery took the position that the Company could hold employees
for shifts lasting as long as 16 hours, but Nunnery acknowl-
edged that such a policy was not a written one.
Neilan lodged an objection to these assertions and in re-
sponse, Newcomb said that Neilan would be responsible for
booking manpower. Neilan replied that was not his job. Ac-
cording to Neilan, Newcomb stated that Neilan was “the prob-
lem down there” and he objected “to everything that manage-
ment tries to do.” Newcomb and Nunnery both denied that
comment; however, Nunnery acknowledged that “the gist of the
conversation was, every single thing that we were trying to do
in there was kicked back against or met with resistance, or it
was always a battle. Nothing ever went—nothing ever went
easy, no matter what it was.”
Additional Schedule Changes
On December 10, the Company solicited bids for a new
schedule, which differed from those implemented in October.
Neilan was not asked to participate in this process, which he
asserted was a departure from past practice. Neilan, Ventre,
Gonzalez, Martinez, Barrett, and Vicente, among others, all bid
onto the 11 a.m. to 7:30 p.m. shift. It appears from the record
that the new shifts went into effect shortly thereafter.
The Senior Men Meet with Scacco
Scacco had come to the facility in October 2012.16 Accord-
ing to Scacco, Neilan had approached him in the yard, intro-

15 Nunnery testified that his position was that in emergency situa-
tions, the Company can require employees to work up to 16 hours.
16 According to Scacco, an industry veteran, when he was assigned
to Croxton the facility was experiencing service problems, late trains,
damaged equipment, and improper loading and unloading. In Novem-
ber 2012, a meeting was held with H&M managers where these issues
duced himself and said he would like to get to know him.
Scacco agreed to set something up.
On December 11, during their shift, Neilan, Gonzalez,
Ventre, Martinez, and Barrett were called by Newcomb into a
meeting with Scacco which took place in Scacco’s office. No
one from H&M or the Union was present. Scacco testified that,
due to their seniority, the men could be good leaders for the
others, and he informed them of this fact.
At the meeting, which lasted for approximately 45 minutes
to 1 hour, the men raised issues such as work schedules and
seatbelt rules. Scacco brought up issues such as production and
efficiency. He stressed the importance of the peak season and
told the men that it was the industry standard to use seatbelts
and that the issue of work schedules would be tabled until Jan-
uary. There was some discussion of getting the overnight
trains, the 211 and 21M, out on time because they were priority
trains.
Neilan testified that Scacco said he had been a union man
and when he had worked in Harrisburg there had been prob-
lems with the men throwing their radios into the Susquehanna
River and he wanted to ensure that there would not be similar
problems at Croxton.
As Neilan testified, Scacco also said if there were problems,
the men would be barred and not coming back with another
company. Gonzalez recalled that Scacco told them that if the
union men gave him a hard time, “[H]e would have ways of
persuading them into working better with us” and that “[m]aybe
he could give them a couple of weeks off to think about it.”
Ventre testified that Scacco said, “[d]on’t let issues with the
Union interfere with your livelihood.” Ventre testified that
Scacco brought up a strike at the Hostess facility, the fact that
the Company had gone out of business and that Scacco said that
the employees had lost their jobs because the union had not
settled the contract. Scacco testified that he told the men that
he had been in a union for many years and admits to discussing
the Hostess strike, with them “as a current event, so to speak.”
Barrett testified that Scacco said that NS was not going to
kick H&M out. Scacco told the men that he was asking for
advice; there had been a couple of late trains the prior week and
asked whether the men could help the night crew. The trains
discussed were the 211 and the 21M. He further testified that
he did not recall what the employees discussed with Scacco at
the meeting; only what Scacco told them.
Both Neilan and Ventre testified that Scacco made a com-
ment to the effect that Connors did not like Neilan. Scacco
denied discussing Connors or H&M management with the men.
The record corroborates Scacco’s contention that late releas-
es were, at that time, a concern for NS, and that H&M was
aware of this problem. A December 11 email from NS to
H&M directed, with regard to late releases, that “[i]f you are in
fact late state it and why.” Newcomb responded by sending an
email to Croxton H&M management stating that “[i]f we do not
release on time, we must state EXACTLY why.”

were discussed and H&M was informed that they were in danger of
losing the contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The December 12 Safety Meeting
Nunnery testified that after he arrived at the facility in Sep-
tember, the employees were generally, although not entirely,
cooperative in complying with company safety rules. In De-
cember, Nunnery noticed a backslide, particularly with the use
of seatbelts. In a spot audit conducted on December 7, Nun-
nery cited four employees for safety violations such as failure
to use seatbelts and failure to wear personal protective equip-
ment such as hardhats, glasses, and vests. Although Nunnery,
to this point, had refrained from issuing discipline, it was de-
cided that at this time it was appropriate to do so. Accordingly,
Nunnery prepared warning notices for four employees: Mar-
tinez, Scott Watts, Jason Wilson, and Losman Henriquez. Ac-
cording to Bartee, the discipline Nunnery was issuing was part
of the Employer’s progressive discipline system: i.e., verbal
warnings—documented, written warnings, and termination
after multiple occurrences. Nunnery similarly confirmed the
existence of a progressive discipline system when questioned
by counsel for the General Counsel.
On the morning of December 12, Nunnery informed Neilan
that he wanted to see him at 7:30 p.m. at the end of his shift
because the Company intended to issue disciplinary actions to
those four individuals found to have failed to follow safety
protocols on December 7. After the day shift ended and the
evening shift was arriving, Nunnery and Bartee met with
Neilan and the affected bargaining unit members in the em-
ployee breakroom. A number of other bargaining unit mem-
bers were present, as they filtered in and out at either the begin-
ning or end of their shifts. There were about 12 to 15 employ-
ees present at what is referred to in the record as the “safety
meeting,” including Neilan, Gonzalez, Ventre, Martinez, Scott
Watts, Barrett, and James Roper. There was also a plan to ad-
minister discipline to employee James Roper, separately, after
the meeting concluded. As it happens, Roper secretly recorded
both the safety meeting and the meeting at which his discipline
was discussed.17
Generally, the recording of the meeting reflects discussion of
a wide range of topics relating primarily to H&M’s safety rules
and protocols, the employees’ dissatisfaction and disagreement
with the necessity for various rules, their impression that strict
enforcement of the rules would tend to slow production, and the
Employer’s concern with safety, rising insurance costs, produc-
tivity, and their frustration with the fact that employees were

17 Roper did not testify herein. As Neilan testified, Roper provided
the full recording to him and he, in turn, gave it to the Region during
the course of the investigation of these matters. Respondent objected to
the admission of the recording of this meeting on various factual and
legal grounds. For the reasons discussed below, I find that the record-
ing and transcript are properly admissible and constitute reliable evi-
dence of what occurred that evening in the safety meeting, and note that
it is generally corroborated in significant part by the testimony of wit-
nesses who stated that they did not listen to the tape. The portion of
Roper’s tape which recorded the second meeting, pertaining to disci-
pline administered to him, was not made a part of this record. Howev-
er, neither Nunnery nor Bartee, both of whom attended this second
meeting, offered testimony that any discussion there would serve to
retract, amend or contradict the assertions made by H&M management
in the so-called safety meeting.
failing to follow instructions regarding safety at the workplace.
Because the discussions which took place at this meeting are a
central element to the General Counsel’s prima facie case, and
Respondent has so vigorously objected, not only to the record-
ing’s admissibility, but to its completeness and relevance and to
General Counsel’s characterization of what occurred there, I
find that a more specific account of what occurred, as reflected
in the recording, is warranted.
Nunnery began the meeting by telling employees that he had
been more than patient, and: “we’ve asked, we’ve begged,
we’ve done everything we can to say, ‘Guys, follow the rules.’”
He went on to say that when he conducted spot inspection the
other night, the men were not following the rules; in particular
that the men were not wearing PPE. He noted that he had not
written anyone up in the 3 months he had been at the facility
and that he “was looking like an asshole” because of a lack of
compliance. Nunnery further stated that he did not “agree” with
the seatbelts; nor did he like hardhats but it wasn’t his choice.
He also said he did not like the speed limit out there on the
road, but he had to follow it.
Nunnery then addressed particular employees who had been
seen either not wearing PPE or using their seatbelts. Then the
subject of stopping at crossings ensued, as follows:
HARRY [NEILAN]: You said we were working under
common sense. Remember we sat down in the office and
you said, “listen Harry, we’re not going to write you up for
any nonsense—
(background noise)
JOHN [NUNNERY]: Right, just follow the rules.
HARRY: Well, you know what, if we followed all the
rules, John, hardly anything would get done, Brother.
JOHN: I understand
HARRY: If we stopped at every crossing—
JOHN: Listen
HARRY: —you wouldn’t get anything done here, man
JOHN: Have I wrote anybody up for stopping at every
crossing?
HARRY: No, but what you did tell—but what—you
don’t want us to stop at every crossing.
JOHN: Right.
HARRY: When you catch us, we’re doing something
that you feel that you could hurt us with, you do it.
JOHN: Harry—Harry then stop at every crossing?
HARRY: All right. Fine, I can do that.
JOHN: Okay
HARRY: Okay. You want to work under—you know,
you want to work that way, we’ll work that way. Don’t
matter to me.
JOHN: Listen guys, I cannot allow you to be out there
without following the rules. If you got to stop at every
crossing, I’m telling you, I’m not writing anybody up for
stopping at crossings. If you slow down at locked tracks,
that’s what I said common sense is.
There ensued a discussion about whether it was necessary to
stop at the crossings, and Nunnery questioned why it would be
necessary to stop at locked tracks. Neilan maintained that was
what H&M’s blue book said and Nunnery disputed that fact.
H&M INTERNATIONAL TRANSPORTATION, INC. 13
Ventre pointed out that (some years previously) Losman had
been hit by a train, and employees were required to sign paper-
work stating they would stop at every crossing. Nunnery then
stated, “I’m not writing anybody up for stopping at crossings,
I’ve already—that’s what we are working under, common
sense. You want to stop at everything, stop at everything.
Nunnery then referred to the fact that for the past 3 months
he had “begged employees” to use their hard hats, seatbelts and
glasses. Neilan replied that the men were just trying to save
time. Nunnery stated: “Listen guys, I want us to be efficient. I
want us to be, but if it’s—if that’s the—the price I have to pay
for us following the rules, let’s following the rules, man.”
Neilan stated that it was important to get the job done safely
and efficiently and that was what the railroad wanted.
The discussion continued about working with common
sense, the importance of following safety rules, and how some
of the rules impeded productivity and seemed unnecessary.
Neilan said that some of the safety rules were nonsense and
would slow operations down. Nunnery said he agreed with him
but, “what do you want me to do?” Neilan replied, “What I
would like you to do is not give these guys letters for it. You
come and talk to them.” Nunnery said that he had been talking
to the men for 3 months; how much more talking could he do?
A discussion of problems with the seatbelts ensued and
Ventre stated that he had been receiving complaints that the
seatbelts were hurting people and did not know whether man-
agement had received similar complaints. Bartee replied that
he had not and that the belts were designed to lock up when a
driver hit the brakes. Nunnery acknowledged there were prob-
lems with them. Gonzalez complained that management had
focused on safety for a while and then, a month later, com-
plained that productivity had dropped. Nunnery then again
stated his frustration with the employees’ failure to follow safe-
ty rules; asking Ventre, Gonzalez, and another employee identi-
fied as “James” specifically how many times he had addressed
them on this issue. There was another discussion of seatbelts
with various employees complaining about their operation and
the fact they slowed them down.18
The discussion then turned again to the issue of stopping at
crossings, and that the railroad wanted the H&M employees to
stop and do 15 miles per hour. Nunnery responded, “Well, let’s
do it.” He then reiterated, “Listen, roll 15, stop at the crossings.
Follow the rules.” He later stated:
The productivity number I used to push a whole bunch, that
productivity number is shit because everything you pay for
accidents, injuries, Workman’s Comp, you don’t see it . . . I
have $180,000 in damages, so what did you accomplish? I
would rather us go slow, take our time, run a regular–
Because, listen, the productivity numbers when you guys
were stopping at the crossings weren’t bad. They were actual-
ly decent. So listen, stop at the crossings. That’s your guys’
job. If we don’t get the job done, you guys get froze out of
here, not me.

18 Other topics discussed concerned the use of hardhats, the condi-
tion of the trucks, back injuries, and repeated complaints about the
seatbelts from various employees.
There was more discussion and accompanying complaints
about the seatbelt requirement from various employees; specifi-
cally complaints that their use would slow production. Nun-
nery responded, “[s]low it down, slow it down.” Nunnery as-
sured employees that supervisors would also be written up for
violations of H&M’s safety rules.
Ventre and Gonzalez then both proposed that the employees
commit to following the safety rules in exchange for Nunnery
withdrawing the disciplinary notices. Ventre said, “Throw this
shit out. Tomorrow we go by the rules, all right? Makes you
happy, I guarantee—.” Gonzalez said, “We’ll kick their ass
ourselves” and promised Nunnery that they would tell every-
body. Nunnery then said, “Listen, do you that for me, I’ll
throw them out” and Ventre replied, “hardhats and the seatbelt,
not a problem” “Neilan also said he would tell everyone to go
by the safety rules: “They want you to do it, you do it. That’s
it” and said he would tell the guys tomorrow.
Then the following exchange took place:
NUNNERY: I can’t tell you to not stop at a crossing.
GONZALEZ: All right, that’s fine.
NUNNERY: Before we had this common sense thing go-
ing on.
GONZALEZ: So that’s fine
After some more discussion, the meeting ended.
Neilan testified, in apparent contradiction to the recording re-
lied upon by the General Counsel, that it was he who insisted
on working with “common sense.” Nunnery then told employ-
ees to observe the safety rules, and slow it down, stop at the
crossings and drive at 15 mph. Neilan acknowledges telling
Nunnery that if he wanted them to follow some of the rules,
they had to follow all of them. Neilan stated that after the
meeting, he advised those present to stop at all crossings and
follow the safety rules which included driving at 15 mph. Bar-
rett, who was present for only a short period of time recalled
that Ventre requested that Nunnery get rid of the write ups and
stated that the employees would start following the rules the
following day. He also stated that he heard Nunnery telling the
men to stop at the crossings because the numbers were better
when they did so, which he found implausible. Martinez re-
called a discussion about the cost in insurance claims, and that
there was a discussion about more strictly adhering to the rules,
including stopping at the crossings. Employees stated that
doing so would slow down the job. As Martinez testified, Nun-
nery shouted that he did not care how long the job took as long
as the rules were followed 100 percent. Martinez testified that
on the following day he came to full stops at all crossings and
followed the seatbelt rule. Ventre similarly testified that Nun-
nery complained about the insurance costs, stated that he did
not care about productivity, lift counts and that he wanted the
men to obey all the rules. Ventre recalled that Nunnery ques-
tioned stopping at the crossings, but was told that employees
had previously been made to sign an agreement that they do so.
Then Nunnery stated that it was acceptable to do so. He re-
called employees stating that if they followed all safety rules,
the employees would hardly get anything done.
Respondent points to the fact that none of the disciplinary
notices which were intended to be issued that evening con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cerned themselves with the issues of stopping at the crossings
and driving at 15 miles per hour. Rather it was Neilan and
Ventre, respectively, who brought these matters up.19 Nunnery
testified that such matters were not intended to be part of his
meeting; that the men were badgering him and he became frus-
trated with them and said they could stop at the crossings if
they wanted to. As Nunnery testified:
I never, in a million years, thought that these guys—especially
the type of guys these are—these are four of the top veterans
out there on the roster. They cover for Supervisors. They un-
derstand productivity. They understand that stopping at every
crossing and slowing down would drastically cut into our
productivity and into our service. I never, in a million years,
thought that they would stop at every single crossing and do
that to me.
Nunnery testified that portions of the discussion as recorded
were missing as the person who purportedly made the recording
moved around the room. (Indeed the recording, and transcript,
reflects that a number of portions are inaudible.) When chal-
lenged on this assertion by counsel for the General Counsel,
Nunnery acknowledged making the statements attributed to him
on the recording and in the transcript and could not identify
much missing material, noting the tape had been made over 1
year previously. Nunnery did testify that Neilan had said that
wearing PPE would slow down work and that he refuted that
assertion; and that such an exchange was not captured in the
recording.
According to Bartee, there was an understanding at the end
of the meeting that the most senior employees would police the
less senior, and the disciplines would be withdrawn. There had
been no intention to discipline anyone for a speed infraction.
Bartee asserted that the 15-mph speed limit applies to outside
drivers and that H&M employees typically travel as fast as their
truck allows to get the work done more quickly. Neilan insisted
on enforcing “every rule in the book” including stopping at
crossings. Bartee acknowledged that Nunnery told Neilan to
stop at the crossings, if that was the rule, but he didn’t want the
work to slow down. When Ventre brought up the issue of the
speed limit, Nunnery said that you are following the rule, that’s
fine, that he was not telling employees to break the rule but to
get the work done.
The following evening Nunnery distributed a memorandum
to other H&M managers which states in part (as relevant to the
above discussion):

19 It should be noted that in his initial testimony, conducted by coun-
sel for the General Counsel pursuant to Rule 611(c), Nunnery denied
that such matters had been discussed at the meeting.
Safety
Seatbelt Violations
Ernie Martinez—2d offense in 4 days
Losman Enriquez
Alex Ventre
James Roper
Alex Ventre—One airline
Letters issued to all parties involved. I also will hold the Ops
Manager on duty accountable going forward and issue letters
if the crew is not following the rules.
The evidence fails to establish precisely when Croxton man-
agement (other than Bartee, who was there) was informed that
Nunnery had agreed to rescind the warning letters in exchange
for a promise about compliance with and enforcement of the
safety rules.
The Events of December 13
Management on Site During the Relevant Period
Oliphant was the scheduled operations supervisor for the 7:
a.m. to 7 p.m. shift on December 13. In actuality, he worked
from about 6:30 a.m. to 11 p.m. on that day. Newcomb arrived
at the facility at about 8 a.m. and remained there until 2 a.m. the
following morning. Nunnery arrived at about 7 p.m. Bartee
was not scheduled to work that day, but was called in at about 6
p.m. and arrived at about 7:30 p.m. Mike Robinson was the
scheduled operations supervisor from 7 p.m. to 7 a.m.
Three NS managers were on site as well: Tayrece Gause was
the assistant terminal manager during the afternoon hours;
Scacco was at the facility from 6 a.m. until about 5 or 6 p.m.
that evening and Martins came on for the night shift.
Work Assignments on December 13
On the morning of December 13, Oliphant called both
Neilan and Ventre to come into work prior to the start of their
11 a.m. shifts.20 Neilan declined, but Ventre came in at 9 a.m.
Ventre was assigned to work on a crane with another employee.
At about 11 a.m. Railroad Manager Gause asked Ventre to
clear the track where he was working. This required Ventre to
ground containers that had previously been placed on the train.
Ventre testified that this adversely affected the so-called “lift
per man hour” (LPMH) statistic used to gauge productivity.
At 11 a.m., Gonzalez, Barrett, Neilan, Carl Crockett, Mar-
tinez, Roper, and Vicente came in to work their scheduled shift.
Three employees also scheduled to work called out.21 Three
new employees were in training; two were assigned to unit
members and one worked directly with Oliphant. In all, there
were 11 employees who came in to work that shift, including
the three trainees.

20 There is a dispute among witnesses for the General Counsel and
H&M as to whether there was adequate manpower on that day. Coun-
sel for the General Counsel relies in part on an apparent contradiction
in Oliphant’s testimony on this issue. Having reviewed the record, I
conclude that Oliphant misapprehended General Counsel’s question
and did not intend to state that there was inadequate staffing on that
day.
21 Misrain Garcia, Esteban Vivas, and Jack Howells.
H&M INTERNATIONAL TRANSPORTATION, INC. 15
It appears that the men began their workday previous the
safety protocols as agreed to the following evening including
the use of seatbelts and PPE. At least some of the employees
also adhered to the 15-mph speed limit and stopped at the
crossings. Employees who testified to such effect included
Neilan, Martinez, and DeJesus. Ventre testified that he wore
his seatbelt for the entire shift but only stopped at the crossings
when someone was ahead of him, to yield to outside drivers or
at blind spots. He asserts that he drove at his typical rate of
speed. Ventre and Gonzalez testified that some, but not all of
the drivers stopped at the crossings.
At the beginning of Gonzalez’ shift he was assigned to oper-
ate a crane and was assigned three men to his crew. This in-
cluded Martinez, who had previously told Oliphant that he had
to take the day off for a doctor’s appointment. Oliphant told
him that he was needed at the site and he should step out for the
appointment and then return to work. Martinez left the facility
at about noon and returned at 1:30 p.m.
Barrett was also assigned to operate a crane and three men
were also assigned to work with him: Neilan, Ventre, and
Crockett. The two crews were assigned to work on the same
train (the 212) and effectively worked as one.
Gonzalez’ crane became disabled at the beginning of his
shift. Gonzalez called Oliphant and said he wanted to bring it
in and get another machine. Oliphant directed Gonzalez to stay
with the disabled machine and he arranged for a mechanic to
come out to the pad while Gonzalez remained with the crane, as
instructed. It took about 1-1/2 hours to repair the crane. Once
the machine was repaired, Gonzalez was reassigned to work on
the 20K train with a crew that included Roper,22 Vicente and
Martinez. Vicente was later assigned to the crew, but he had a
trainee with him and left the crew for about a half hour. Both
Gonzalez and Vicente testified that work productivity was slow
because the crews were too small and crane operators had to
wait for drivers.
After Gonzalez was reassigned to the 20K, there were four
employees left to work on the 212: Neilan, Ventre, Crockett,
and Barrett. Crockett had been assigned a trainee who separat-
ed from him at some point and drove off in a different truck.
At about 1:15 p.m. this trainee became involved in an accident,
hitting a parked chassis and causing what was eventually de-
termined to be $18,000 in damages.23 The accident caused the
crew to lose Crockett for an hour because he had to go to the
H&M office to give a statement. Neilan asserted that Crock-
ett’s absence impacted the crew’s productivity while unloading
the 212. Oliphant testified that the loss of the trainee for the
balance of the workday had no impact on the operation. New-
comb testified that the accident would not have impacted the
release time of the 23Z.
In an email to H&M managers dated December 15, Scacco
questioned why the accident had not been reported to NS when

22 Roper was discharged later that day and escorted from the proper-
ty at about 8:30 p.m.
23 Oliphant prepared a report, sent to Newcomb, Nunnery, and other
H&M personnel notes that a vehicle was down “due to being involved
in a serious accident in E lot and has extensive damage to front right
corner and will require repair before being returned to service.”
it occurred. Nunnery acknowledged not promptly reporting the
matter, adding, “Tim was tied up with Mr. Connors who was at
the terminal and meeting most of the day. Charlie [Oliphant]
focus on getting accident processed, employees to Concentra
for drug and alcohol testing. This was the day we had union
issues that distracted Charlie and the rest of the team.”
At 2 p.m. that afternoon, a crew consisting of one crane op-
erator and two drivers reported to work. According to Neilan,
at the time these men started working Barrett’s crew consisted
of only two drivers: Neilan and Ventre. Barrett testified that
working with such a small crew created a lot of downtime as he
had to sit in his crane waiting for the next driver to bring a load.
Ventre went to lunch at 2:30 p.m., leaving Barrett with only
one driver. Crockett had rejoined his crew at about 1:15 p.m.
Then Barrett’s crew and the 2 p.m. crew worked together.24
When Ventre returned from lunch he called Oliphant for an
assignment. Receiving no answer, he joined the 2 p.m. crew
until about 4:30 p.m. when the 11 a.m. crew returned from
lunch. The employees on this shift had been sent to lunch at
3:30 p.m. while there was still material left to unload on the
212 and 20K. According to Neilan and Barrett, the normal
procedure given the amount of material left to unload would
have been to unload and then go to lunch. According to Oli-
phant, he sent the employees to lunch at that time because
H&M had already “blown availability” on the 212 and he
wanted to get the men to lunch and back out to work on the
23Z.
Vicente testified that he complained to Oliphant about the
small size of the crews that day and that he heard Gonzalez
complain to Oliphant over the radio that it did not make sense
to have such small crews, and that they were not getting any-
thing done. Oliphant generally denied having manpower issues
that day, but did not specifically deny having these discussions
with Vicente and Gonzalez.
Oliphant testified that he did not notice productivity issues
on December 13 until midafternoon, sometime after the trainee
accident, but prior to the 3:30 p.m. lunchbreak for the 11 a.m.
crew. Oliphant testified that after the accident, he went out into
the yard and noticed Neilan, Ventre, Gonzalez, and Martinez
“rolling real slow.” In particular, Oliphant testified that the men
were taking a long time to fasten their seatbelts, bring boxes
out, and were stopping at every crossing. Oliphant also noticed
that Vicente was working slowly, but attributed that to the fact
that he was working with a trainee. Oliphant testified that he
reported his observations to Newcomb, who told Oliphant to
handle it. Newcomb’s testimony was that Oliphant reported his
observations about the slow pace of work prior to 12 noon on
that day, and further stated that he believed the employees were
engaged in an intentional slowdown. Newcomb told Oliphant
to speak with the men to pick up the pace.
Oliphant also called Nunnery in the afternoon to see if there
were any residual issues from the prior evening’s meeting
which might have caused hard feelings. Nunnery told him that
they had gotten everything straightened out, and there should

24 This was described in the record as “cycling.” The trains involved
were the 212 and 23Z. Drivers would remove loads from the 212, park
them in the lots, and then come back with empty containers for the 23Z.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not be any issues. Oliphant also asked NS Manager Gause to
pull lift reports for two cranes operating at the time. He re-
viewed records for a 1-hour period in the early afternoon and
determined that the LPMH as reflected in the report was below
par.
Various employees testified to a discussion Oliphant had
with them during their 3:30 p.m. lunchbreak. Martinez testified
that Oliphant said that the day seemed like it was dragging and
the response was that they had been shorthanded all day and
were following the safety rules. Gonzalez said they could not
go any faster due to the way the crews were set up. Vicente
testified that Oliphant talked about honor and respect and then
he told the crew that they would be “frozen”—that is obliged to
remain at work—until the 23Z was done. Oliphant testified to
a discussion held with Neilan held prior to his generally ad-
dressing the crew. He told Neilan that the men were playing
games, that they needed to get the job done and to stop messing
around. According to Oliphant, Neilan “hem-hawed” and said
that if Oliphant would allow them to not wear seatbelts, the
trains would get out on time. Oliphant said no, there was a
safety standard for that and that he did not have the authority to
make that call. According to Oliphant, nothing was mentioned
about crew size until later on. After his discussion with Neilan
he went to address the crew, making it clear that he knew what
was going on and it was time to stop. According to Neilan, this
private discussion occurred after Oliphant addressed the crew.
Neilan testified that Oliphant asked why it was taking so long
to get the job done and Neilan replied that they had no man-
power and were trying to obey the safety rules. Oliphant said
the men were frozen until the 23Z was finished.
After lunch was finished, the employees dispersed to various
assignments: the 20K, the 212, and the 23Z. By 5 p.m., accord-
ing to the employees, there were three crews working on the
23Z consisting of three operators and nine drivers.25 Between
6:30 and 7 p.m. one employee was sent to the doctor due to
reporting pain in his left arm. Gonzalez, who was operating a
crane, said that he was waiting for drivers to come to his ma-
chine because the crew sizes were too small. Oliphant testified
that when they started loading the 23Z, Neilan, Martinez, Gon-
zalez, Ventre, and Vicente were all still stopping at crossings
and taking an extremely long time to get in their trucks and
fasten their seatbelts. He did not speak to these employees at
this time. At about 5:30 p.m. or sometime thereafter Neilan
spoke with Oliphant, complained the crew sizes were too small
and that there was not enough manpower to support the amount
of the machines. Neilan suggested that Oliphant direct Gonza-
lez to park his machine and begin working as a driver. Oli-
phant agreed with Neilan’s suggestion. After this point, Barrett
operated with a crew of six drivers: Neilan, Gonzalez, Ventre,
Martinez, Crockett, and Vicente. According to Neilan, Barrett
and Vicente, productivity increased after the crew was recon-
figured.
At 7:30 p.m., Oliphant sent the 2 p.m. crew to lunch as a new
crew arrived. Four employees arrived for that shift, one being
off. One of these employees was Alfonso DeJesus who testi-

25 Oliphant testified that at the time he had 15 employees working on
the 23Z, including the trainees.
fied that Newcomb asked to speak with him while he was
punching in. Newcomb told DeJesus that a couple of senior
guys were being watched. DeJesus asked who they were, and
Newcomb told him not to worry, that he didn’t need to know.
Oliphant, who was present, then told DeJesus to just do his job
and stay out of trouble.
DeJesus then went to work on the 23Z. DeJesus testified
that the loading of the train was not behind at that point, he did
not see anyone deliberately slowing down and the train was
loaded before 9 p.m. It then had to be locked down and certain
corrections made.
When the 2 p.m. crew returned from lunch at 8:30 p.m. they
were not assigned to finish the 23Z; rather, they were sent to
work on the 211 which was due to be released at 2:30 a.m. the
following day. Oliphant testified that this was because it would
not have made sense to put them on the 23Z because there was
too much to do, and he was trying to protect the next train to
avoid another service failure.26 When the 7:30 p.m. shift ar-
rived at work that evening they were assigned to work on the
23Z.
Further Observations and Discussions Between Management
and Crewmembers Regarding the Pace of Work
Newcomb testified that after he spoke with Oliphant, he
started observing the facility while riding in his truck. He re-
ported that he started driving around at about 3 p.m. and con-
tinued to do so until about 9 or 9:30 p.m. without taking any
breaks. He observed Neilan several times between 3 and 5 p.m.
Newcomb asserted that he saw Neilan driving at the speed at
which the trucks generally idle, stopping at every crossing and
taking a long time to hook up his air lines. Newcomb also stat-
ed that Neilan was taking 10 minutes to make moves that
should have taken only 3–5 minutes to make. Newcomb testi-
fied that he observed Neilan, Ventre, Gonzalez, and Martinez
all working in the same area of the yard. He observed Ventre
during the period between 3 and 5 p.m. and again between 5
and 6 p.m., at which time he stopped to speak with him (as
discussed below). Newcomb testified that Ventre was driving
slowly, generally taking his time in performing various work
tasks, stopping at every crossing, and driving 3 to 5 miles per
hour while going through crossings. Newcomb had similar
observations regarding Gonzalez, who he observed during the
period between 3 and 5 p.m. In addition to driving between 3 to
5 miles per hour, Newcomb stated:
He was backing into the containers slowly. Then he was sit-
ting and waiting. Then he would get out of his truck, hook his
air lines up and he would sit back in the truck and, kind of, sit
there without doing anything. He was at the computer, he

26 Employer and NS records analyzed by counsel for the General
Counsel appear to show that during the period from August 9 to De-
cember 11, there were six instances where the facility experienced two
service failures in 1 day and three additional instances where there were
three. In addition, between the period from July 6 to December 3,
2012, there were 15 occasions on which the 23Z was released after its
release time of 9 p.m., the latest being 11:15 p.m. on November 25.
There were two occasions where that train was released at 11 p.m.—on
November 2 and 12, and multiple occasions where it was released after
10 p.m. This data is reflected in GC Exhs. 59, 82, and 88.
H&M INTERNATIONAL TRANSPORTATION, INC. 17
wasn’t doing anything; he was just sitting there. And then he
would attempt to pull away. He was slowing down at every
crossing—stopping at every crossing through the middle of
the yard. And again, he was taking approximately 10 minutes
to get back to the track with anything he was pulling.
Newcomb offered a similar description of Martinez’ activi-
ties. Although Vicente was also working slowly, Newcomb
attributed this to the fact that he was with a trainee at the time.
Nunnery testified that he arrived at Croxton between 6:45
and 7:30 p.m. and began driving around the facility. He fol-
lowed Neilan, Gonzalez, Martinez, and Ventre and determined
that they were not driving 15 mph. He testified that he fol-
lowed the four men for a period of from 5 to 10 minutes each
and also sat at the middle crossing and watched them as they
came through. As counsel for the General Counsel notes, at
other times in his testimony, Nunnery was vague in his recol-
lection about how, how long and where he made his observa-
tions of the four men that evening. At about 7:30 p.m. Nunnery
parked his truck and then rode the yard with Newcomb for the
next couple of hours.
Newcomb testified that he had discussions with Neilan,
Gonzalez, Martinez, and Ventre between 5:30 and 7:30 p.m.
that evening. He first spoke with Gonzalez. As Gonzalez testi-
fied, Newcomb and Oliphant approached him in Newcomb’s
truck just before 7 p.m. Gonzalez went over to speak with
them. Newcomb asked why things were going so slow and
Gonzalez testified it was because they had worked in really
small crews. Newcomb told Gonzalez that he did not know
what was going on but, “he wasn’t going to be able to help us if
the Railroad was involved.” Newcomb’s account is that Gon-
zalez stated that Newcomb didn’t need to talk to him, it had
nothing to do with him and then he walked away.
Newcomb spoke with Neilan twice that evening; the first
time being around 7:30 p.m. According to Neilan, he asked
what was going on and why things were taking so long. Neilan
responded they were low on manpower and they were trying to
obey the safety rules. Neilan testified that Newcomb then told
him that if the train is not out of here by 9:30 p.m. he and the
men were going to be barred from the terminal. Neilan asserts
that he told Newcomb that they would get the job done for him.
Newcomb’s account differs in that he states Neilans’ response
was that things were so slow because they were made to wear
seatbelts. Newcomb’s response was that seatbelts were worn in
other facilities, and it is not an issue. Newcomb also stated that
the belts were worn in September and early-October and it
didn’t slow work down then, so why is it today? According to
Newcomb, Neilan had no response. Newcomb then said that if
the train was late, Scacco would be angry with both of them.
He then returned to his truck and drove off.
The second conversation took place sometime later, after
Newcomb had spoken with other crewmembers, as discussed
below. According to Neilan, Newcomb, accompanied by Nun-
nery, got out of the truck and this time Nunnery asked what was
going on. Neilan said nothing. Newcomb told Neilan that he
was going to cause good men to lose their jobs. Neilan told
Newcomb that he was just doing his job. Then, according to
Neilan, Nunnery said that he knew what he was doing and said
that he would reinstate all the write ups that he had thrown out
the prior evening. According to Newcomb, on the second oc-
casion he ran into Neilan, saw him sitting in the yard and asked
why he was not removing the interbox connectors (IBCs). As
Newcomb testified, Neilan stated, “[S]omebody else can fuck-
ing get those . . . one of the junior men can get that.” Nunnery
remained in the truck and was not part of the conversation.
As Newcomb testified, he next spoke with Ventre and told
him that he had to call the Railroad and tell them the train was
late, Scacco was angry and NS would have a problem with both
the Company and the employees if the train does not get out on
time. Ventre had no response and returned to his truck. Ventre
offered no testimony regarding this sort of an encounter with
Newcomb on this evening.
Newcomb and Nunnery also spoke with Vicente. According
to Vicente, Newcomb asked why they were working so slowly
and he replied that he was doing his job as he normally did.
Nunnery then said that if they did not get the train done on time
they would be barred from the yard. Vicente testified that he
responded by stating that he was not doing anything wrong but
that if they fired him he had plans to move to Florida. New-
comb then asked Vicente if he thought they would have the
train done in 20 minutes and Vicente told him he would not
have it done if they kept holding him up. According to New-
comb, Vicente’s response to his inquiry of why things were
going so slow was that he wasn’t part of it, he was training an
employee, and it was slowing him down.27
Newcomb stated that he also spoke with Martinez who said,
“I guess we’re fired now.” Newcomb asked, fired for what?
Martinez replied, “I guess you are getting rid of us now.” New-
comb said he just wanted to get the train out, the railroad is
upset because there is no good reason to be late. Martinez
simply got back into his truck. Martinez said that when he
spoke with Newcomb, he was told that if the train was late he
would not be working there anymore. Martinez said he was
stunned and returned to his truck. Martinez testified that he
reported what Newcomb had told him about losing his job to
Neilan who told Martinez to continue working and not to wor-
ry. As Martinez testified, Vicente reported that Newcomb had
just said the same thing to him.
Bartee testified that Nunnery called him in to work on the
evening of December 13 because things were slowing down,
and he was needed to manage the work crew. He arrived at the
facility at about 7:30 p.m. and drove around the facility in his
truck. He saw Neilan at 7:30 p.m. and on two other occasions
that evening. He asserts that Neilan was moving slowly, taking
his time to pull pieces, and stopping at the crossings. Bartee
said this was unusual for Neilan who typically was one of the
fastest employees. Bartee said he spoke with Neilan about the
pace of work and Neilan told him that they could work faster if
they didn’t have to wear seatbelts. Neilan did not recall having
a conversation with Bartee that evening. Bartee testified that he

27 Vicente testified that he observed about six or seven managers at
the terminal that day, driving around in pickup trucks. He specifically
named Oliphant, Nunnery, Newcomb, Bartee, and Connors. He further
stated that this was unusual; that there were seldom more than two
managers at the facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
observed Martinez, Gonzalez, and Ventre working in a similar
fashion; that other employees were pushing themselves to try to
catch up and that none of the other employees were driving
slowly or stopping at the crossings. Although Bartee did spend
some time driving the yard with Nunnery, it appears that he
also spent some time by himself, sitting in a stationary position
observing the work in the yard. According to Bartee, Neilan’s
pace did not change from the time he arrived that night until the
end of the evening.
There is no testimony from any witness that any employee
told the other managers that, on the prior evening, Nunnery had
rescinded the discipline for safety violations and that he had, at
least in part, approved stopping at all crossings and driving at
15 mph to in the service of observing the Employer’s and NS
safety rules.
According to Newcomb, however, after the aforementioned
discussions with the crew took place beginning at around 7:30
p.m., Neilan, Ventre, Gonzalez, and Martinez all picked up the
pace and worked normally until the 23Z was released at 9:40
p.m. This was corroborated by sworn testimony offered by
Nunnery in Neilan’s unemployment hearing to the effect that
that, after the employees were told they could lose their jobs,
production sped up that evening.
Discussions with NS Management
At some time between 5 and 6:30 p.m., Newcomb called
Scacco to notify him that the 23Z was going to be late.28 As
Newcomb testified, Scacco told him that NS would have a
problem with H&M and its employees. At this time, Scacco
did not threaten to bar employees should the train be released
late.
Scacco testified that after he had arrived at home after his
workday, Newcomb called him and explained that he and other
H&M supervisory personnel were observing four individuals
stopping at crossings and moving at a snail’s pace. He then
named Neilan, Ventre, Gonzalez, and Martinez and told Scacco
that the 23Z was in jeopardy of having a late release because of
their actions. Scacco told Newcomb to tell the employees that
there better not be any late releases or there would be issues
with them in the morning.29
At about 7:30 p.m., George Martins, the NS manager who
had just started his shift at 7 p.m., came over the radio and de-
manded that employees tell him what time the 23Z was sup-
posed to be released, calling their names out individually. Both
Barrett and Vicente testified that this was an unusual practice.
Martins repeated Gonzalez’ name over the radio a number of
times, asking for the 23Z release time. Gonzalez testified that
although he knew the release time was 9 p.m. he did not reply
to Martins because he felt that Martins was being condescend-
ing. As Martins continued to call employee names out over the
radio, some responded and others did not. Newcomb said that
he sought Martins out because he felt the instructions he was
shouting out over the radio were improper. According to

28 Newcomb testified that it was his general practice to notify Scacco
when it was anticipated that a train would be late.
29 Scacco denied threatening to bar the employees from the facility.
Scacco, Martins reported to him that he had observed employ-
ees stopping at the crossings and pulling out slowly.
Neilan testified that he spoke with Martins about a half hour
after he called out to the H&M employees over the radio about
the 23Z. Martins approached him, and Neilan got out of his
truck and told Martins that there had been limited manpower
there on that day and that was why they were behind. Martins
replied that they should just get the job done.
Martinez testified that he spoke with Martins after hearing
him on the radio, and Martins asked him if he could give a little
extra. Martinez responded he had no problem with that but that
they were shorthanded. According to Martinez, Martins said he
knew that. According to Martinez, his conversation with New-
comb, described above, occurred shortly after this encounter
with Martins.
The Loading and Release of the 23Z
There is some dispute in the record as to the actual scheduled
release time of the 23Z. Neilan, Barrett, and Ventre testified
that the release time was 9:30 p.m.; Gonzalez and DeJesus
testified that the release time was 9 p.m. Scacco testified that
the release time was 9 p.m. and that is confirmed by other doc-
umentary evidence placed into the record by the General Coun-
sel. I conclude from the record as a whole, including the em-
ployer records cited by the General Counsel in his posthearing
brief, that the release time was 9 p.m. and the train was released
to NS 40 minutes after its scheduled release time on December
13.30
Vicente reported that at around 8:45 p.m., he heard Nunnery
and Newcomb on the radio addressing Neilan, Ventre, Gonza-
lez, and Martinez asking what they were doing. They replied
that they were “running with their empties.” They were in-
structed to drop their loads and lock up the A track. Vicente
testified that he thought that the instruction was unusual.
Various witnesses testified as to the time the 23Z was load-
ed. Neilan, Ventre, Gonzalez, and Barrett all testified that it
was loaded at about 9:10 or 9:11 p.m.31 Vicente testified that it
was finished at 9:15 p.m. and that he kept track because of the
commotion on the radio. DeJesus testified that the loading was
completed at about 9 p.m. and then it took another 10 minutes
to lock down or finish whatever tasks needed to be accom-
plished. Gonzalez performed the final lockdown check on the
23Z that night, driving the length of the track. On his final
check, he found four pieces that were not properly locked
down, but, as he testified, that was completed by 9:11 p.m.
After locking down, as Gonzalez testified, he called Oliphant
and told him that the train was good to go. The train was re-

30 Newcomb testified that, at the time, H&M had a self-imposed
mandated release time for the 23Z of 7:30 p.m., but this testimony is
unsupported by other credible evidence. It appears from Vicente’s
testimony that this timeframe may have been initiated after the events
in question here.
31 Ventre testified that he looked at his watch when they finished
loading. Vicente stated that he paid attention due to the commotion on
the radio. Gonzalez similarly testified that due to the “commotion” he
was watching the time and noted the time they finished the train. Mar-
tinez could not recall the specific time the train was finished but re-
called feeling relieved when it was.
H&M INTERNATIONAL TRANSPORTATION, INC. 19
leased to the railroad at 9:40 p.m., or 40 minutes past the
scheduled release time of 9 p.m.
After the 23Z was loaded, Oliphant sent Ventre to speak with
Nunnery. Bartee was with Nunnery at the time. Ventre com-
plained about the number of times he had buckled up that day.
Nunnery asked him whether he thought this was a game.
Ventre then asked Nunnery how many hours he wanted him to
work because, by that time, Ventre had already been working
for 12 hours. Nunnery replied that, if he wanted, he could keep
Ventre for 16 hours. He then handed Ventre two load lists, one
for him and one for Neilan. According to Ventre, as he was
walking away, Nunnery said, “[b]y the way, I never lose.” The
11 a.m. crew then worked on the 211 train and were eventually
sent home at 11:30 p.m.
Oliphant’s Report of Productivity on December 13
Oliphant prepared a customary turnover report documenting
the number of hours employees on a given shift have actually
worked and their productivity. Oliphant reported in his turno-
ver report for that evening that there were (1) 234 lifts; (2)
121.25 man hours; and (3) 1.93 LPMH. Newcomb testified
that the LPMH statistic was one, but not the decisive, factor he
relied on in deciding to terminate the employees. Oliphant’s
report fails to account for the fact that Martinez left the facility
for approximately 1.5 hours and inaccurately reflects that the
trainee who was involved in an accident on the site worked 7.5
hours that day when, in actuality, he worked for 2 hours and 15
minutes. He was sent home after one additional hour he spent
providing a statement regarding the accident. Counsel for the
General Counsel has argued that if the appropriate adjustments
were made, the LPMH for December 13 would have been 2.03
hours and further argues that Oliphant’s report fails to designate
trainee hours as unproductive. The General Counsel suggests
further ways that the statistics on the report should be adjusted
and contrasted with the report issued by the night-shift supervi-
sor, since Neilan, Gonzalez, Ventre, Martinez, Barrett, and
Vicente all worked during that shift, from 7 through 11:30 p.m.
The suggestion posited by the General Counsel generally is that
the numbers have been manipulated to reflect an inordinately
low LPMH statistic. Counsel for the General Counsel further
notes that, contrary to written instructions issued on December
11 (discussed above), Oliphant fails to document the reasons
for the late release of the 23Z.32
Contact with the Union
Domini, testifying almost exclusively with the aid of notes,
stated that he was in contact with Neilan on three occasions
during the afternoon of December 13; the first of these in
midafternoon. Neilan expressed the employees’ displeasure at
having to wear seatbelts and PPE, and Domini told him that the
Company wanted that. At about 5 p.m. Connors called him and
said there was a slowdown of work at Croxton. Connors was
concerned about the NS response, and asked Domini to speak
to the workers. Domini then called Neilan; told him that the
railroad was upset with H&M for the speed of operations and

32 The General Counsel further challenges the veracity of this report
as there are two versions in evidence, one seemingly issued prior to the
release of the 23Z, “predicting” a release time of 9:40 p.m.
that they had to get the trains out on time. Domini testified that
Neilan stated that the workers had had enough of this nonsense
and if they wanted [us] to be safe, they would be extra safe.
Domini told Neilan to get the train out on time and avoid prob-
lems. According to Domini, there were subsequent discussions
with Connors about the slow pace of work and the fact that the
workers were stopping at every crossing. He then spoke with
Neilan again to stress the importance of getting the job done on
time. According to Domini, Neilan said that the men had had
enough of this “BS” and didn’t care anymore. Neilan testified
that, to his recollection, he spoke with Domini on two occa-
sions that day. He stated that he told Domini that things were
going slowly because of the safety rules and lack of manpower.
Domini also spoke with Newcomb and Nunnery on that day.
According to Domini, Newcomb stated that he had been fol-
lowing the four men; “they” were driving between 3 and 9
miles per hour and the railroad was pretty upset. Nunnery simi-
larly told Domini that things were going slow and asked him to
come to Croxton to speak with the men. Domini told Nunnery
to try to work it out. He replied that it was too late and that the
railroad was “pissed off.” Domini had his last conversation
with Connors at about 7:30 p.m. He did not speak with Ventre,
Gonzalez or Martinez on that evening.
Neilan, Ventre, Gonzalez, and Martinez are Put
Out of Service
On the morning of December 14, Neilan, Ventre, Gonzalez,
and Martinez all received phone calls informing them that they
were suspended and should not return to work until further
notice. Connors called Domini that morning and informed him
that the four had been placed out of service; and Newcomb
testified that he made a similar phone call. Domini asked New-
comb if there was any way to handle the situation, and New-
comb stated that he did not think so. Neilan contacted Domini
as well, and informed him that he thought the workers were
being accused of a slowdown, which he denied. Neilan asked
Domini to speak with John Carey, the head of the railroad po-
lice, to get surveillance tapes of that evening which Neilan
believed would show that the four had been following the safe-
ty rules and operating properly. According to Domini’s affida-
vit, Neilan raised the issue of lack of manpower at this time as
well. Neilan told Domini that Newcomb had threatened em-
ployees Zane Berardesco and DeJesus, warning them not to
side with the four men placed out of service. Domini also
spoke with Gonzales on three occasions that day and was told
that they had been undermanned and had been following the
safety rules. Gonzalez testified that on one of these occasions,
Domini told him that the men should have been expecting it.
Domini did not speak with either Ventre or Martinez on that
day.
Ventre testified that on December 14 he went to Croxton and
spoke with Mike Hannah, who was the train master on the prior
evening. Hannah checked the computer and informed Ventre
that there had not been any late trains and that the 23Z had been
released on time, but there had been an issue with the railroad
crew.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
New Work Rules and Policies are Posted
When Barrett punched in for work on December 14 he no-
ticed about 12 new notices posted near the timeclock in the
breakroom. Similarly, when Gonzalez went to the facility to
clean out his locker a few days later, he noticed about eight new
notices. These notices were dated December 14, became effec-
tive the following day and communicate work rules, intimating
that a failure to comply could result in discipline.33 There is no
indication that any of these notices were sent to the Union prior
to their posting.
Newcomb’s Investigation
Newcomb initiated an investigation into the events of De-
cember 13 the following day and continued it until Monday,
December 17. He testified that he spoke with the managers,
including Nunnery, Bartee, and Oliphant and obtained written
statements from them. He also drafted his own statement about
what he had observed. He directed Nunnery and Bartee to look
at records for December 13 to see how many lifts had been
performed and who was working. He also spoke with Martins.
Nunnery testified that his review of the Employer’s computer
system showed that fewer boxes had been unloaded during the
period from 11 to 8 a.m. Newcomb also conducted short inter-
views with three employees: Barrett, Vicente, and Crockett.
None of these employees offered any substantive information.
H&M did not interview Neilan, Ventre, Gonzalez, or Martinez
during this investigation.
The Union’s Investigation
Domini began his investigation into the events of December
13 on December 15. His notes and testimony indicate that he
spoke with a total of 14 employees. Some of these interviews
took place on December 15, but most took place on Monday,
December 17.34
Vicente testified that he spoke with Domini on Saturday,
December 15. Domini asked Vicente if there had been a slow-
down on December 13 and Vicente said that he did not think
so. Vicente also stated that he told Domini that he felt threat-
ened because it appeared as though events had been orchestrat-
ed. He claims to have told Domini that the crew sizes on that
day were too small; that he complained about it to Oliphant and
Oliphant replied that was the way management wanted it. He

33 These policies are entitled: “Communications Policy,” “Respond-
ing to Overtime Calls,” “Holiday Vacation Notice,” “Lunch Shifts,”
“Kick out Policy,” “Weekly Consolidation of Time Off,” “Booking
Off,” and “Ending a Shift.” The “Booking Off” and “Communications
Policy” both state that failure to follow their direction will be consid-
ered an act of insubordination and a failure to follow the “Lunch Shifts”
policy could be considered an intentional slowdown of work. As will
be discussed in further detail below, the parties’ collective-bargaining
agreement provides that “unauthorized slowdowns” and “insubordina-
tion” are both cause for dismissal.
34 There are several sets of Domini notes pertaining to the investiga-
tion. There are original handwritten notes, another set of notes which
are, as Domini testified, a combination of the original notes and materi-
al acquired during the investigation, his “knowledge” and a third set of
notes which were typed by someone in the union office using the se-
cond set of notes which, by then were subject to not only additions, but
deletions as well.
also reported that there were more managers than usual work-
ing on that day and that he had been threatened with being
barred from the facility. When he said that, Domini replied that
Vicente should just worry about himself and his family and that
he would investigate the situation.
Domini confirmed that Vicente told him that there were only
a few men on each crew and that Martins was upset and yelled
at the men. Vicente also told Domini that Newcomb had ad-
dressed them about doing the speed limit but that Vicente told
him that Newcomb had not threatened him. One version of
Domini’s notes indicates that Vicente told him that there were
not enough men for the job and that the train got out on time.
Barrett testified that Domini spoke with him on December 15
and when asked what had happened on December 13, he re-
plied that he did not know and was confused. When Barrett
explained that he had worked there for 16 years and had never
had a problem with the Union, Domini told him to continue
doing what he had to do, because “these guys” weren’t fooling
around. Pursuant to guided questioning from the General
Counsel, Barrett stated that Domini did not ask him about a
slowdown, who else he worked with on December 13, what
time the 23Z was released, whether there had been any discus-
sions between Barrett, and H&M management regarding
productivity. However, Barrett had previously testified that he
told Domini that the men had been accused of a slowdown.
Domini testified that Barrett told him that things had been
going slow on December 13 and they could have used more
people; he also stated that Martins had told the men to knock
off “this shit.” With regard to the issue of meeting with Scacco
on December 11, Barrett reported that Scacco said that he
wanted the senior men to set a good example, that he wanted
his trains out on time, and there was no negative discussion
about H&M. Barrett professed to have no recollection of what
his coworkers said; only what Scacco told them.
DeJesus testified that he spoke with Domini on December
15. He questioned Domini about the men and Domini said he
was working on it. As DeJesus testified, Domini asked ques-
tions about what happened that night and whether the train left
on time. DeJesus said that he responded that the train had left
at 9 p.m. Domini asked whether the men had followed safety
procedures and DeJesus replied that they had safety gear and
had made full crossing stops. Domini asked whether he had
heard Martins over the radios. DeJesus replied that Martins
was on the radio asking the employees if they knew what time
the train gets done, and Barrett answered. DeJesus told Domini
that he told Martins that they knew what time it should be done
and were trying to get it finished on time. Domini asked
DeJesus how many men were working with him that night and
he provided certain names: Martinez, Vicente, and Neilan.
Domini asked DeJesus what Newcomb had spoken with him
about and he told him the substance of the conversation and
Domini counseled DeJesus to stay out of trouble.
On cross-examination by H&M, DeJesus stated that he spoke
with Domini a few times. When asked whether he had told
Domini that the others on the crew were slacking off, DeJesus
said he could not recall saying that. When cross-examined by
the Union, DeJesus denied saying that the men were slacking
off and stated that he told Domini that the men had been doing
H&M INTERNATIONAL TRANSPORTATION, INC. 21
their job. He acknowledged, however, telling Domini that he
had not been part of what was going on that evening.
According to Domini, none of the employees he interviewed
told him that they had been threatened by H&M management.
On December 15, Neilan sent a text message to Domini re-
minding him to contact the railroad police for surveillance tapes
and providing the name and phone number of a supposed con-
tact there. As Neilan testified, Domini said he would call
them.35
The Terminations
On December 17, Scacco contacted Gonzalez and scheduled
a meeting with him for the following morning. When Gonzalez
arrived, Scacco was not there. He called Scacco, who told him
to speak with Nunnery instead. Prior to speaking with Nun-
nery, Gonzalez received a phone call from Domini stating that a
letter had been sent to the four men which stated that they had
been barred from Croxton. Gonzalez said that he had just spo-
ken with Scacco and he had not mentioned anything about be-
ing barred from the property. After this call ended, Gonzalez
called Scacco again and asked if he was barred from the proper-
ty. Scacco replied that he did not know anything about it.
It appears from the record that the decision to bar the men
was not made until after their discharge. On December 20,
Neilan called a railroad police officer, Pete Urbaniwich, who
told him that the men had not been barred. At the end of De-
cember, another railroad police officer, Peter Richey, told Mar-
tinez that the men had not been barred. Scacco testified that the
decision to bar the men occurred after the decision was made to
terminate them, but he did not specify when this decision was
made. Newcomb testified that the decision to terminate the
employees was his and the railroad’s decision to bar them,
“didn’t put much bearing on me at that point because I had
already made my decision.”36
Gonzalez testified that he then met with Nunnery, Bartee,
and Oliphant. Nunnery told Gonzalez that Roper had told him
that a slowdown had taken place. Gonzalez denied being part
of any slowdown. Gonzalez told Nunnery that the crews had
been too small and that his crane had broken down. Nunnery
asked why it seemed like the men had worked more slowly in
the morning and then picked up production at night. Gonzalez
claims that he told Nunnery that they had loaded a lot of emp-
ties in the morning but they were not recorded until later that
evening. Gonzalez also said that the men were trying to follow
the safety rules. As Gonzalez testified, Nunnery said that was
not what he wanted to hear and if he said the right thing, he
could keep his job. Gonzalez told Nunnery he would not lie for

35 In his pretrial affidavit, Domini denied having any discussion with
Neilan about the railroad surveillance tapes.
36 This testimony is inconsistent with a prior position statement
submitted by counsel for H&M where it is asserted that, “The Compa-
ny’s actions were further guided by the decisions of its client . . . . Both
during the day on December 13 and thereafter, the Company received
instructions from George Martins of Norfolk southern, who was partic-
ularly vexed by that he termed the “H&M Mayhem” that the individu-
als involved in the slowdown must be permanently barred from the
Croxton facility.”
him. The meeting then ended. Gonzalez’ account of this dis-
cussion was unrebutted.
As Newcomb testified, he made his decision to terminate
Neilan, Ventre, Gonzalez, and Martinez on Monday, December
17 because he concluded that the four had facilitated a slow-
down at the facility.37 He testified that the LPMH statistics
were a supporting, but not a significant factor in reaching the
determination to discharge the employees. He based his deci-
sion on his observations of what occurred on December 13 and
the fact that, in his estimation, there were no other factors in the
yard that could have caused lower productivity on that day. As
Newcomb testified, a H&M termination panel needed to ap-
prove his decision. Either on that day, or the next, a termination
panel was held telephonically consisting of Newcomb, Harring-
ton, Director of Human Resources Mary Hayes, and Manager
John Vella. Prior to the panel, all of the statements and relevant
documents were distributed. The panel approved Newcomb’s
determination to discharge the four employees.
In a letter dated December 21, H&M, by its attorney, notified
the Union that Neilan, Ventre, Gonzalez, and Martinez had
been barred from Croxton by NS and H&M because they had
intentionally slowed down production at Croxton between 7
a.m. and 9:30 p.m. The letter specifies that the activity which
demonstrated a slowdown was (1) driving at least 10-mph be-
low the posted speed limit and (2) taking 30 or more minutes to
make a single move whereas the average time to accomplish
such a task would be 5 minutes. The letter adds that, as a result
of the slowdown, productivity dropped to 1.9 LPMH as com-
pared to an average of 2.7 LPMH. The letter further asserts as
follows:
Inquiries relating to that activity produced the following re-
sponses:
1. Harry Neilan stated that he and the other employees were
proceeding slowly to try to be safe;
2. Abraham Gonzalez stated that he did not know what was
going on and he directed inquiries to other employees; and
3. When Harry Neilan was asked by Operations Manager
Charlie Oliphant to speak to the men and to work with H&M
to get the train loaded on time, his reply was, “If you tell me
we don’t have to wear these seat belts, we will get the train
loaded.”
On January 4, 2013, H&M sent the four men individual let-
ters informing them that their e-railsafe badges became ineffec-
tive with their termination and requesting their return.
In an undated letter from Martins to Nunnery, Martins de-
tailed his experience at Croxton on December 13, compared the
LPMH statistic on that day to a daily average and announced
that the Railroad had permanently barred Neilan, Ventre, Gon-
zalez, and Martinez from the Croxton facility. Domini received
official notice of this in an undated letter on or about January
11, 2013.38

37 As set forth below, unauthorized slowdowns are prohibited by the
collective-bargaining agreement and are cause for dismissal.
38 Counsel for the General Counsel contends that Martins’ letter to
Nunnery was, in fact, drafted by H&M’s Vice President of Human
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union’s Investigation of the Discharges of Neilan,
Ventre, Gonzalez, and Martinez
Domini testified, again with extensive use of his notes, that
he spoke with 11 employees on December 17.39 It appears that
most of these interactions were brief and employees failed to
report any harassment, intimidation, or threats on the part of
management. Scott Watts did tell Domini that things were
going slow with the four discharged men, that he was working
at a faster pace than they were, and that he saw them stop at
every intersection. One version of Domini’s notes indicates
that after Martins yelled at the men over the radio, they picked
up their work pace.
As was the case with the other interviews generally, Domini
had no independent recollection of speaking with DeJesus;
however, Domini’s notes indicate that DeJesus told him that he
had not been part of what was going on that evening and that
the four men were slacking off and taking longer than usual to
do the job. In his testimony at the hearing, DeJesus at first
stated that he could not recall whether he told Domini that the
four men were slacking off; he later denied doing so.
Domini testified generally that he spoke with various H&M
managers by telephone on the days prior to the discharge deci-
sion was made, but could not offer any specific testimony about
these discussions and they are not reflected in his notes.
At some point shortly before or after the discharges were ef-
fectuated, Domini sent text messages to Neilan, Ventre, and
Gonzalez which stated: “Please supply me with a detailed writ-
ten statement describing your work shift on 12/12, 12/13 and
the events that lead [sic] to you all being put out on service on
12/14. This should [b]e emailed to me at
wdomini@ufce312.org, please have Earnie [sic] do the same.”
Domini did not send this message to Martinez because he did
not have his cell phone number, and both Neilan and Gonzalez
said they would notify Martinez. Ventre did not receive this
text because his cell phone plan at the time did not accommo-
date that service.
On December 18, Connors called Domini and informed him
that Neilan, Ventre, Gonzalez, and Martinez were discharged
and barred from the railroad yard. Neilan, who was sitting in a
diner with Martinez at the time, called Domini that morning to
find out if he had obtained the surveillance tapes from the rail-
road. Domini replied that his contract was with H&M, not the
railroad. Neilan asked how the investigation was going. Ac-
cording to Neilan, Domini told him that Connors had his law-
yers working on this, that he should start looking for another
job, and that H&M could contest his application for unem-
ployment. Neilan asked what the men were saying and Domini
replied that they weren’t saying much. Neilan said that was
because they were being intimidated, and Domini replied that
they were not threatened. Neilan said that Domini should do
his job. Domini apparently took umbrage, told Neilan to go

Resources Linda Gillis, but while the record reflects a series of email
exchanges between the two regarding Martins’ statement, the evidence
does not warrant such a categorical finding.
39 Some of the men Domini spoke with were not working during the
relevant period; others who were working at that time were not inter-
viewed.
fuck himself, stated that any further communications would be
in writing and hung up.40 It is undisputed that Neilan never
contacted Domini again.
On December 18, Domini had a conversation with Gonzalez
who told him that his written statement was almost done and
that Martinez was working on his statement as well. Domini
said that they would meet as soon as the statement was com-
pleted. Gonzalez additionally received a couple of text mes-
sages from Domini requesting his written statement.
On December 18, Domini sent an email to Gillis and Nun-
nery where he wrote, “I understand that the above 4 union
members have been banned by the NS Rail Road and terminat-
ed by H&M. To date I have not received any thing in writing
confirming this, please advise me as soon as possible.” Domini
also requested, “copies of statements from the Managers in-
volved, the NS supervisor on duty and documents showing the
number of lifts completed and workers on duty each night for
the months of October November through current date.” Domi-
ni advised that the Union intended to file for arbitration but
added, “[t]he union depending on the facts and results of the
investigation may decide to withdraw the arbitration in the
future.”
In letters dated January 9, 2013, Domini asked Neilan,
Ventre, Gonzalez, and Martinez to provide, by January 18, a
“written detailed explanation of your work shift on December
12, 13 and 14 and the events which led to you being put out of
service.” The letters to Neilan, Ventre, and Gonzalez all refer
to the prior request to provide such statements, made by text
message on December 17. Martinez’ letter notes that, “[a]s of
today’s date you have never contacted the union and I have not
received a written statement from you.” It is undisputed that
none of the discharged employees responded to Domini’s re-
quest for information in this regard.
The men all testified that they did not provide a written
statement to Domini because they did not trust him and, vari-
ously, did not agree to the manner in which he had handled
prior matters such as the Pavel Pimentel incident; his telling
Neilan that he should look for another job; hanging up on
Neilan and never calling back; Domini’s statement to Gonzalez
that he should have expected to be put out of service; the man-
ner in which Domini handled the matter regarding the broken
restroom facilities; the failure to zealously pursue a prior griev-
ance regarding the termination of an employee named Jose
Diaz; and a number of unresolved issues dating back to the fall
of 2012. Ventre complained that Domini had failed to contact
him until January 9, almost 1 month after his termination. He
was also dissatisfied with the steps Domini had taken in the
investigation, in particular interviewing employees who had not
been at work on the day in question and telling employees to
think about themselves and their families. He additionally did
not like the way Domini responded to the initiation of new
work policies in the fall of 2012 and the manner in which the
new contract had been negotiated.

40 Domini testified that he was upset with Neilan’s implication that
he was taking H&M’s side against the men as he had represented them
since 2006.
H&M INTERNATIONAL TRANSPORTATION, INC. 23
On January 11, 2013, Domini received written statements
from Newcomb, Nunnery, Oliphant, and Martins setting forth
their observations on the evening in question and their interac-
tions with the four employees as well as H&M and NS man-
agement personnel.
On January 22, 2013, Domini notified the National Labor
Relations Board and H&M that it would not proceed to arbitra-
tion on the discharges of Neilan, Ventre, Gonzalez, and Mar-
tinez. Domini testified that, based upon his investigation, he
had determined that the four men had intentionally slowed
down production on December 13. He testified that the factors
he relied on were: his interviews with employees on December
15 and 17; conversations with Neilan; discussions with Con-
nors, Nunnery, and Newcomb; the letter from NS barring them
from the property; and the fact that none of the men had pro-
vided written statements to him after multiple requests. Domini
acknowledged that he did not meet with the employees prior to
making this determination; he testified that he had told Neilan
and Gonzalez that he would meet with them after receiving
their statements.
On January 23, 2013, the Union and H&M attended an arbi-
tration hearing on outstanding issues: application of the 4-hour
overtime holdover policy; the scope of the contractual man-
agement-rights clause; and the use of seniority for overtime
assignments. The arbitrator also made recommendation regard-
ing the implementation and application of existing policies. On
this day, Domini asked Connors whether he would consider
hiring the four discharged employees in another yard. Connors
stated that there were no positions available and that, because
another union represented employees at another nearby facility,
the men would have to come in as entry-level employees.
On January 24, 2013, the Union sent a letter to each of the
discharged employees notifying them that the Union was clos-
ing its file on their case.
Neilan’s Unemployment Hearing
Neilan filed an application for unemployment benefits and
was awarded the same on January 23, 2013. On January 29, the
Employer filed an appeal of this determination. On February
25, 2013, a telephonic appeals tribunal hearing was held before
a hearing examiner for the appeal. Both Neilan and Nunnery
were sworn as witnesses and provided testimony. The testimo-
ny was recorded, and a transcript was offered and accepted into
evidence.
Nunnery testified that Neilan was discharged because he was
“purposely trying to slow down the work to protest
some-(inaudible) issues and discipline letters that was issued
the night before.” Nunnery continued:
The Railroad got involved and when they seen where we
were at with loading their trains up, they-they were monitor-
ing it throughout the day, and they told us anyone involved in
the work slowdown will be barred off the property if our train
is late. We went out and told the individuals that was involved
what the Railroad told us. And when the train was late that
day they told me to put them out of service pending an inves-
tigation until we gathered the facts. And ultimately it was de-
cided that they were barred off the property, meaning they
were no longer eligible to come on the property to work for
us. So basically I had no other alternative other than to termi-
nate them because they couldn’t come on the terminal to–to
perform their jobs.
In response to further questioning from the hearing examin-
er, Nunnery reiterated that the Railroad said that the men
“would be barred” meaning they would no longer be eligible to
come on the property, and that due to the contract between NS
and H&M they had to follow such procedures.
Nunnery testified about the issuance of the disciplinary
warnings, the retraction of the letters based upon the agreement
of employees to help police the safety rules and their general
disagreement with them. Nunnery reiterated that NS wanted
H&M to enforce safety rules and procedures and that when he
came to the facility in about September, he did so, initially
without much resistance. He further testified that after an ab-
sence in December, he noticed a slacking off of compliance
with the safety protocols. According to Nunnery, Neilan was
not noncompliant with the rules; he just complained that it
would slow work down.
As for the meeting on December 12, Nunnery acknowledged
that Neilan was not there to receive any discipline: “he was
there on behalf of the employees that were getting discipline. . .
.” He also said that he had never observed a work slowdown
like that which had occurred on the following day.
When asked what conduct Neilan had engaged in that day
which merited his discharge, Nunnery stated:
He was-he was a part of the group that was-monitored that
day by the Railroad, by my bosses, the owner of the Compa-
ny, driving at an unusual slow-the speed limit’s 15 miles an
hour on the property; the guys were doing between 3 to 5
miles an hour. They were stopping at every single crossing.
They were tasked with-let’s just say, at a matter of time where
he’s-there was 12 guys on the property and they slowed
from-they loaded about 24 boxes in a matter of an hour and a
half to two hours. But later on that night after we told them
that they were going to be barred, and then when they seen
that, you know, the severity of what was about to happen,
everybody loaded 80 boxes in an hour and a half.
Nunnery further stated that he had not observed what had
occurred throughout the day since he did not arrive at the facili-
ty until about 7 p.m. that evening, but when he got there and
was riding around the property he could tell that Neilan was
“rolling at a very slow speed.” Nunnery testified that he ap-
proached Neilan and informed him that “the Railroad wanted us
to go around and tell everybody to knock it off. If the train’s
late they’re going to be barred.” Nunnery asserted that this was
pursuant to instructions from the Railroad. Neilan’s response,
as Nunnery testified, was that he didn’t know what he was talk-
ing about.
Nunnery was then cross-examined by Neilan, who asked him
whether he had, in fact, told the men at the meeting on the prior
evening to stop at “every single crossing and obey every single
safety rule.” Nunnery’s response was as follows:
What I told you to do is, when you said, “Hey, are you sure
this is what you want John? The work’s going to get really
slow.” I said, “I don’t care. Just follow the rules. I’m not go-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing to not bend the rules so that we-so that you can violate
safety rules for productivity.” So I did say I don’t care.
Nunnery then stated that Neilan reiterated whether Nunnery
was sure of what he wanted because it would “get really slow
out there,” and Nunnery again stated that he could not “jeopard-
ize safety for productivity.”
Neilan asked Nunnery what bosses had observed him work-
ing slowly all day long and he responded that Newcomb and
Oliphant had. Neilan noted that the company attorney had
attributed the slowdown as starting prior to his start time.
In response to the hearing examiner’s question about what
time was the train due to be released, Nunnery responded: “It’s
an outbound train that’s to be loaded out, and we had been re-
leasing, and our company goal was 7:00. The absolute latest it
can be released is 9:00. We had been releasing it at 7:00 each
evening.”
Neilan testified that he did not participate in a work slow-
down, as alleged. He further testified that the facility was five
men short that day; that during the safety meeting on the prior
evening employees were told to “obey every safety rule there
is.” Neilan continued:
And there are many crossings in the yard, and according to
the Railroad rules you’re supposed to stop at every crossing.
This was never done before. Everybody would just drive
through the crossings and try to make time.
Mr. Nunnery came down and said he doesn’t care about the
productivity; he wants to have all of these safety rules obeyed.
He’s going to have problems with Mr. Scacco on the Railroad
if these safety rules aren’t obeyed.
And what we were telling them in the meeting is “John, if we
have to stop at every crossing its’s going to take—make the
job—longer to do. I’ve been doing this going on 17 years at
this company, and I did it at another company before that. We
just want to get the job done safely and efficiently.” Those are
my exact words I said to him.
He said, “I don’t care. You got to do—you got to stop and
you got to obey all the rules. You got to wear your seatbelt.
You got to wear your hardhat. And you got to wear your
safety glasses; all your personal protection.” I said, “I don’t
have a problem doing that. But stopping at these crossings is
going to slow the work down.”
Neilan then went on to tell the hearing examiner that there
were seven or eight crossings where one had to stop throughout
the yard; that for years the employees would go through these
crossings without stopping because they could be 40- to 50-feet
apart and it would add a lot of time to the job. Neilan claims
that he tried to express this to Nunnery.
Neilan claimed that Nunnery and Newcomb told him at
about 7:30 p.m. that if it was found that there had been a slow-
down, he could be barred from the property. After that, he did
not stop at the crossings.
In addition, Neilan claimed that the low number of boxes cit-
ed by Nunnery was due to the fact that they were empties and
therefore not counted until the end of the night when the pro-
grammer records them.
When asked why he did not file a grievance with the Union,
Neilan asserted that he had but “he [the union secretary] didn’t
seem to be all that interested . . . so we went and took it to the
Labor Board.”
III. ANALYSIS AND CONCLUSIONS
Summary of the Contentions of the Parties
As noted above, the General Counsel contends that Neilan,
Ventre, Gonzalez, and Martinez were unlawfully suspended
and thereafter discharged because of their protected concerted
activities. It is contended that the alleged work slowdown and
service failure were pretext for the discharges and that any
work-related difficulties stemmed from a lack of manpower and
poor supervision including the timing of lunchbreaks and deci-
sions as to how to staff the crews. The General Counsel further
relies upon representations by H&M that the four employees
were terminated because they were barred by NS, when in fact
they were not barred until after their terminations were effectu-
ated. It is argued that the 23Z was, in fact, not released late on
December 13 and that the four employees in question were
merely following instructions they had been issued on the prior
evening.
Counsel for the General Counsel further argues that the al-
leged threat to reinstate the disciplines of Martinez, Watts, Wil-
son, and Henriquez, the reinstatement of the written warning to
Vicente, and the threats to discharge Martinez and Neilan are
further evidence of the Employer’s animus and further consti-
tute independent violations of the Act. It is further argued that
Scacco acted as an agent of H&M when he issued threats to
employees and that these threats constitute additional evidence
of animus toward their protected, concerted activities.
Counsel for the General Counsel further argues that the Un-
ion conducted a perfunctory and bad-faith investigation into the
events of December 13 and unlawfully failed and refused to
process the grievances of Neilan, Ventre, Gonzalez, and Mar-
tinez relating to their suspensions and eventual discharges.
H&M argues that any protected, concerted activities in
which the four employees may have engaged is too remote in
time to provide a nexus between these activities and their dis-
charges or establish that they were a motivating factor in
H&M’s determination to discharge them; that any evidence of
animus which the General Counsel cites cannot and should not
be credited or relied on and that the four employees engaged in
a partial strike which is unprotected under the Act and further
violates the “no slowdown” provision in the collective-
bargaining agreement for which they were lawfully discharged.
The Union contends that the Domini diligently processed
grievances and represented the bargaining unit throughout the
fall of 2012, after the new management took over; and there is
no evidence of bad faith on the part of the Union generally, or
Domini in particular. The Union further contends that the Gen-
eral Counsel has failed to prove that the Union conducted itself
in a perfunctory manner, and that the evidence shows it con-
ducted an investigation into the discharges based upon the in-
formation provided to it by both the Employer and the employ-
ees. The Union further argues that the failure of the four em-
ployees to cooperate with the Union’s investigation of the rea-
H&M INTERNATIONAL TRANSPORTATION, INC. 25
sons for their discharges is fatal to the General Counsel’s claim
that the Union breached its duty of fair representation.
The discharges of Neilan, Ventre, Gonzalez,
and Martinez
Applicable Legal Standards
The legal standard for evaluating whether an adverse em-
ployment action violates Section 8(a)(3) and (1) of the Act is
generally set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). To sustain a finding of discrimination, the General
Counsel must make an initial showing that a substantial or mo-
tivating factor in the employer’s decision was the employee’s
union or other protected activity. Pro-Spec Painting, Inc., 339
NLRB 946, 949 (2003). The General Counsel satisfies an ini-
tial burden by showing that (1) the employee engaged in union
or other protected activity; (2) the employer knew of such ac-
tivities; and (3) the employer harbored animosity towards the
union or other protected activity. American Directional boring,
Inc. d/b/a ADB Utility Contractors, Inc., 353 NLRB 166, 166–
167 (2008), enf. denied on other grounds 383 Fed. Appx. 594
(8th Cir. 2010); cast-Matic Corp. d/b/a Intermet Stevensville,
350 NLRB 1270, 1274–1275 (2007); Senior Citizens Coordi-
nating Council of Riverbay Coommunity, Inc., 330 NLRB
1100, 1105 (2000); Consolidated Bus Transit, Inc., 350 NLRB
1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). Unlaw-
ful motivation may be demonstrated not only by direct evi-
dence, but by a variety of circumstantial evidence such as tim-
ing, disparate, or inconsistent treatment, departure from past
practice, and shifting or pretextual reasons being offered for the
action. Fresh Organics, Inc., d/b/a Real Foods Co., a wholly-
owned subsidiary of Nutraceutical Corp. & Nutraceutical
Corp., 350 NLRB 309, 312 fn. 17 (2007); Camaco Lorain Mfg.
Plant, 356 NLRB 1182, 1185 (2011). In addition, proof of an
employer’s animus may be based on other circumstantial evi-
dence, such as the employer’s contemporaneous commission of
other unfair labor practices. Amptech, Inc., 342 NLRB 1131,
1135 (2004). If the General Counsel meets its initial burden,
the burden of persuasion then shifts to the employer to demon-
strate that the same action would have taken place even in the
absence of the protected conduct. Thus, employer may defend
by proving by a preponderance of the evidence that it would
have taken the adverse action even in the absence of the em-
ployee’s union activity. See, e.g., ADB Utility, supra; Intermet
Stevensville, supra; Senior Citizens, supra; Consolidated Bus
Transit, Inc., supra.
Protected Conduct
To be protected under Section 7, employee activity must be
both “concerted” in nature and protected either for union-
related purposes or for “mutual aid or protection.” Discipline
issued because of an employee’s activities as a shop steward or
in processing grievances, policing a collective-bargaining
agreement or engaging in other union activities is unlawful.
See e.g. Clara Barton Terrace Convalescent Center, 225
NLRB 1028 (1976). In a similar vein, other employees who
participate in grievance processing, addressing collective-
bargaining concerns to management, and negotiations engage
in conduct that is “indisputably protected.” Valley Hospital
Medical Center, 351 NLRB 1250, 1259 (2007).
In NLRB v. City Disposal Systems Inc., 465 U.S. 822 (1984),
the Supreme Court gave its approval to the Board’s Interboro
doctrine,41 which, in general terms, states that it is a Section 7
right for an employee to assert rights conferred on him and his
fellow employees through a collective-bargaining agreement.
In this regard, the court held that, an employee’s invocation of a
right rooted in the collective-bargaining agreement is an inte-
gral part of the collective-bargaining process and is therefore a
“concerted” activity, even though the individual employee may
not have cited the collective-bargaining agreement or stated
that he or she was acting on behalf of himself or herself as well
as other employees. Moreover, an individual employee at-
tempting to enforce a contract right, even if mistaken about
such rights, is engaged in protected activity as long as he or she
acts with a reasonable belief that the right is actually conferred
under the contract. City Disposal, supra at 835, 836, 840, 841.
See also Crown Zellerbach Corp., 284 NLRB 111, 112 (1987).
Complaints about health and safety conditions at work are
also considered protected under the Act even when registered
individually, as they inure the benefit of all. Alleluia Cushion
Co., Inc., 221 NLRB 999 (1975). In addition, an individual
complaint may be considered concerted in nature even though
not “specifically authorized” when it is a “logical outgrowth” of
concerns raised by the group. Mike Yurosek & Son, Inc., 310
NLRB 831 (1993). See also Covanta Bristol, Inc., 356 NLRB
246 (2010).
Here, beginning in the fall of 2012, when the new manage-
ment assumed control of the Croxton yard, there were frequent
conflicts and employee dissatisfaction with the attempt to initi-
ate or enforce work rules and Neilan contacted Domini on a
frequent basis. As noted above, these resulted in grievance
meetings with a Federal mediator and involved H&M upper
management. Ventre participated in these meetings as well.
Additionally, there is witness testimony to the effect that
Ventre and Gonzalez acted in Neilan’s stead when he was not
available.
Applying the above standards, generally speaking, the evi-
dence reflects various instances of protected conduct occurring
in the months prior to the discharges of Neilan, Ventre, Gonza-
lez, and Martinez.
As background, it is not disputed that Neilan had acted as a
shop steward since 1999 and participated in contract negotia-
tions for every contract from 1996 up until the year of his ter-
mination. Ventre had also participated in contract negotiations
for each contract since his hire; Gonzalez had participated in
the negotiations for several contracts and Martinez, who was
out on disability during the most recent negotiations had been a
member of prior negotiating committees as well.
As noted above, employees communicated their unhappiness
about the enforcement of new policies and work rules frequent-
ly. There is little dispute that such complaints resulted in union
discussions with H&M management several times a week.

41 Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388
F.2d 495 (2d Cir. 1967).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There are also specific instances where the employees in
question sought to use the Union’s grievance processes, or to
otherwise advocate for each other with regard to terms and
conditions of employment, as follows:
On September 6, there was a grievance meeting regarding
Pimentel, which Neilan and Domini attended. As noted, a set-
tlement of this matter was reached and Pimentel continued his
employment.
In mid-September, Neilan, Gonzalez, and Ventre, accompa-
nied by Domini, attended a meeting to address what was per-
ceived to be a series of violations of the collective-bargaining
agreement. As discussed above, these matters were eventually
grieved. Their resolution is discussed below.
On September 19, Neilan filed an unfair labor practice
charge on behalf of himself and Vicente; conduct which is in-
disputably protected under the Act.
On September 25, as a result of complaints lodged by
Neilan, he attended a meeting with Domini, Newcomb, and
Nunnery about various contract issues including flextime.
On October 3, as a result of grievances filed by Neilan and
prosecuted by Domini, a mediation session was held and both
Neilan and Gonzalez were awarded overtime pay for alleged
contract violations regarding the assignment of overtime on
September 22.
On October 9, as a result of the new shift schedule to become
effective on October 15, Neilan insisted to Nunnery that any
weekend overtime should be bid and awarded by seniority as
arguably provided for in the collective-bargaining agreement
and by virtue of past practice.
On October 24, Neilan, Ventre, Gonzalez, and Martinez all
represented the unit in a meeting with Nunnery and Newcomb
where disputes over shift hours, breaktimes, and lunchbreaks
were negotiated after H&M management asked employees to
sign off on newly implemented rules. It is worthy of note that,
at this time, they sought the assistance of the Union and Domini
participated in this meeting as well. As a result of these ac-
tions, an understanding was reached regarding matters such as
shift duration, rules regarding lunchbreaks, early departure,
overtime pay, and procedures for leaving the work area, among
others.
Gonzalez made health and safety complaints in September
and November 2012, regarding the safety of a new bridge in-
stalled by NS broken sanitary conditions to the Union.42
On December 1, Martinez made specific reference to the
“solidarity” of the work force when, in response to requests that
he and Neilan work more than 4 hours on an overtime shift, he
told Nunnery: “[T]hat’s the way in the contract-it’s a four hour
shift; we’re all union here-we stick together.”
On December 2, Neilan participated in a meeting with New-
comb, Nunnery, and other employees who had been asked to
work beyond 12 hours in spite of their protestations that such
work assignments were onerous.
On December 3, Domini and Neilan then met with New-
comb and Nunnery to attempt to resolve the dispute about the
length of time employees could be held over for overtime.

42 Art. 5 of the CBA provides that the Employer shall keep its prem-
ises “in a clean and sanitary condition.”
Nunnery admitted at this meeting that the 16-hour rule he had
claimed to have the right to invoke was not a written policy.
Again, the invocation of rights under the collective-bargaining
agreement and the Union’s assistance in this matter relating to
terms and conditions of employment is concerted and protected
under the Act.
On December 12, at the so-called “safety meeting” described
above, Ventre and Gonzalez made a specific proposal that the
senior members of the bargaining unit would seek to enforce
the Employer’s rules regarding seatbelts and PPE in exchange
for the rescission of warning notices for four employees.
Neilan agreed to assist in the rules’ enforcement as well. Such
action, inuring to the benefit of coworkers, also comes well
within the ambit of protected conduct under the Act.
Further, it cannot be disputed, as has been set forth above,
that Neilan, Ventre, Gonzalez, and Martinez were among the
most senior employees and viewed as leaders by H&M and NS
management as well as by their colleagues. Their “union” affil-
iation did not go unnoticed as was made evident when Nunnery
explained to Scacco that H&M’s failure to report the accident
on December 13 was due, in part, to so-called “union issues”
that districted Oliphant and the rest of the team.
Employer Knowledge
Respondent has argued that the General Counsel has failed to
meet its burden to show that Newcomb, as the acknowledged
decisionmaker in this case, had any knowledge of many of the
actions claimed to constitute concerted, protected conduct or
evidence of the Employer’s animus toward that conduct. In
particular, it is claimed that Newcomb was unaware of details
pertaining to negotiations for a successor contract in 2012; the
settlement of the Pimentel grievance; claims about violations of
the overtime policy; negotiations regarding flextime schedul-
ing; disputes about overtime shift policies; the meeting with
Scacco and its contents and discussions surrounding the safety
meeting, among other matters. Such contentions elevate form
over substance; and misapprehend both the facts and the law.
As discussed above, while Newcomb was not a continual
presence at the site, he had a vested interest in observing and
receiving reports as to what was occurring there. It strains
credulity that Newcomb would not have been made aware of
the difficulties his local managers were having in enforcing the
Employer’s priorities, policies, and procedures. In its
posthearing brief, Respondent spent much time touting his cre-
dentials in turning around facilities deemed to be under par. To
contend that he remained ignorant of the labor difficulties the
facility was experiencing belies all of those contentions.43
Newcomb also spoke with his subordinate managers prior to
discharging the men.

43 In particular, in its posthearing brief, Respondent relies upon tes-
timony adduced to the effect that Newcomb was, “an individual who
had worked for H&M for 9 years and who specialized in getting new
operations up and running, and also fixing operations that were not
performing to acceptable standards.” As he testified, Newcomb had
completed turnaround assignments in three other H&M facilities. Once
NS issued its ultimatum, Newcomb headed the turnaround team at
Croxton.
H&M INTERNATIONAL TRANSPORTATION, INC. 27
Newcomb (and, as will be discussed in further detail below
Nunnery and Bartee), as agents of the Respondent, are liable
for their actions, and such actions are imputable to H&M.
“A principal is responsible for its agents’ conduct if such ac-
tion is done in furtherance of the principal’s interest and is
within the general scope of authority attributed to the agent . . .
it is enough if the principal empowered the agent to represent
the principal within the general area in which the agent has
acted.” Bio-Medical Applications of Puerto Rico, Inc., 269
NLRB 827, 828 (1984). See also Tyson Fresh Meats, Inc., 343
NLRB 1335, 1337 (2004). Moreover, “[T]he principal is af-
fected by the knowledge which the agent has when acting for
him” Restatement 2d Agency § 278. “A person has notice of a
fact if his agent has knowledge of the fact, reason to know it or
should know it, or has been given a notification of it, under
circumstances coming within the rules applying to a liability of
a principal because of notice of his agent.” Restatement 2d
Agency § 9(3).
In any event, the evidence is clear that most of the conduct
that I have found to be protected and concerted involved at least
one, and frequently more, H&M manager and frequently in-
volved the Union in negotiation, arbitration, or mediation.
Employer knowledge of such activities is apparent, and cannot
reasonably be disputed.
Evidence of Animus
Some of the evidence proffered by the General Counsel re-
garding animus here is based on testimony I find unreliable due
to its inherent improbability or lack of corroboration. In addi-
tion, the counsel for the General Counsel relies heavily on sug-
gested inferences and what it asserts are pretextual reasons
offered for the discharges. However, the record additionally
contains what is, given the context, some direct evidence of
animus toward the employees’ concerted, protected activity.
And, the record further supports some inferences of animus
from apparent pretext, but not to the extent suggested by coun-
sel for the General Counsel.
As an initial matter, it does not appear subject to dispute that
H&M management experienced a “push back” to their attempts
to either enforce or initiate new work rules, and that this created
difficulties for them. Nunnery conceded that every time he
came up with a memo or new policy, Domini had to come
down and he would be obliged to hold a meeting and that these
were frequently “heated.”
Neilan testified that at a meeting on September 25, which I
have concluded reflected concerted, protected conduct, New-
comb asked Neilan whether he wanted the Company to go out
of business; whether Neilan was there for the men or for him-
self; and further stated that Connors “had a problem” with him
(Newcomb denied similarly having a “problem” with Neilan).
Both Neilan and Ventre testified that this sentiment was later
echoed by Scacco and I credit such testimony.
When Gonzalez reported the broken sanitary facilities to the
Union, Nunnery characterized his actions as a “threat.”
When employees concertedly complained about having to
work more than 12 hours in one shift, Newcomb characterized
them as purported “tough guys” and vaguely warned them to
“wait ‘til tomorrow” when he would have to “do what he had to
do.”
When Neilan met with H&M management about the forego-
ing incident, he was told that he would be responsible for book-
ing manpower—clearly not within the scope of his job respon-
sibilities and an apparent expression of frustration over the
employees’ unwillingness to work more than 12 hours on any
given shift. As Neilan testified, Newcomb stated that Neilan
was the problem and he objected to everything that manage-
ment tried to do. Although Newcomb and Nunnery denied that
these precise words were used, Nunnery did testify that the
“gist” of the conversation was that everything management
tried to do was “kicked back against” or “met with resistance,”
that it was “always a battle” and that nothing was easy.
In a similar vein when management distributed a series of
work rules in October, Gonzalez’ questioning of these rules, his
attempt to relate them to the extant collective bargaining, and
his comments that changes had to be negotiated with the Union
prompted an angry response from Oliphant and a subsequent
discussion with Newcomb (in which both Neilan and Ventre
participated) in which Newcomb asked why the men kept on
“fighting.”
In this regard, I further find the fact that new work rules were
posted immediately after the suspensions of the discriminatees,
some referencing heightened disciplinary consequences, to be
instructive, and indicate animus to the “resistance” offered by
the senior men and outspoken union adherents, and a sense that
once they were no longer on the scene management could pro-
ceed.44
After the events of December 13, Nunnery attributed H&M’s
failure to timely report the on-site which had occurred that day
to difficulties stemming from the accident itself as well as to
“union” (rather than productivity or work slow down) issues.
Moreover, it is well settled that a finding of discriminatory
motivation may also be predicated on circumstantial evidence
including pretextual reasons for a personnel action. See, e.g.,
Suburban Electrical Engineers/Contractors, Inc., 351 NLRB 1,
5 (2007) (and cases cited therein).
Shortly after the discharges, Gonzalez was summoned to a
meeting also attended by Nunnery, Oliphant, and Bartee where
he attested to the fact that the slowdown on December 13 was
due to manpower issues, crane problems, and compliance with

44 By contrast, counsel for the General Counsel reiterated in his brief
that Respondent’s animus can be inferred from “numerous unilateral
changes and contract violations” which occurred in the period prior to
the discharges. While counsel for the General Counsel makes such
assertions, it also acknowledges that such infractions are neither alleged
nor proven. They certainly were not litigated as such at trial. It is the
case as set forth above, that in October 2012 employees were asked to
review and sign an acknowledgement relating to certain work rules. As
Neilan testified, certain of these policies reflected the current practice,
others were set forth in the collective-bargaining agreement but en-
forcement had lapsed and two policies were, to his estimation, new. He
signed off on all of the policies except the latter two. For the foregoing
reasons, I decline to make a finding regarding “numerous unilateral
changes and contract violations” allegedly occurring prior to the sus-
pensions and discharges here as urged by counsel for the General
Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the safety rules. His testimony that he was told that he could
keep his job if he said the “right thing” was unrebutted by any
of these managers who all testified at the hearing and I credit it.
Such evidence suggests pretext.
I additionally infer animus from the pretextual rationale of-
fered by Nunnery during his sworn testimony at Neilan’s un-
employment hearing where he asserts that H&M was com-
pelled to discharge the men because they had been barred from
NS property. In fact, while I also have serious doubts about the
credibility of the testimony offered by Neilan, as discussed
below, for purposes of the immediate discussion, the bulk of
the record evidence indicates that the discharge decision was
undertaken by H&M. In fact, Newcomb testified that NS had
no role in his determination and that the decision to terminate
the employees emanated from him. NS barred the men only
after the decision had been made to terminate their employ-
ment.
I further infer pretext from the conflicting accounts of the
“slowdown,” its timing and the testimony of the managers who
allegedly observed such matters. However, this will be ad-
dressed in further detail below where I discuss what occurred
on December 13 as part of Respondent’s asserted defense to the
allegations of the complaint.
Accordingly, based upon the foregoing, I find that the Gen-
eral Counsel has met the prerequisite elements of a prima facie
case to establish that the discharges of Neilan, Ventre, Gonza-
lez, and Martinez were in violation of the Act. The burden thus
shifts to H&M to show that they would have discharged these
employees irregardless of or notwithstanding their protected
conduct. Although, as noted above, I have found any number
of witnesses herein to be less than credible in certain aspects of
their testimony, as the burden of proof under Wright Line has
shifted to H&M, the credibility of their witnesses comes into
question at this point.
H&M’s Asserted Defenses
H&M has argued that any concerted, protected activity en-
gaged in by the men was so remote in time as to rebut any evi-
dence or inference of animus and render it irrelevant to its legit-
imate discharge decision. In this regard, H&M cites a series of
cases including Qualitex, Inc., 237 NLRB 1341, 1343–1344
(1978), where it was noted that there are times when the Board
will not presume antiunion animus from the timing of an em-
ployee discharge. In that case, the employer discharged an
employee with significant union activity approximately 4 to 5
months after a union election where it had vigorously opposed
the unionization of its employees. Relying, in part, on the pas-
sage of time, the Board declined to find discriminatory intent or
sufficient antiunion motive. Similarly, in other cases cited by
Respondent, the passage of time has been found to be sufficient
to either negate the proof or inference of a nexus between the
protected conduct and any animus that the evidence might sug-
gest. See Central Valley Meat Co., 346 NLRB 1078, 1079
(2006) (adverse action which occurred over 6 months after
employee’s union activity was too remote in time to constitute
a causal connection); Chrysler Credit Corp., 241 NLRB 1079
(1979) (concerted letter writing campaign occurring 8 months
prior to discharge and deficiencies in performance were well
documented by supervisor).
Here, however, in contrast to the cases relied on by H&M,
we have an ongoing pattern of concerted conduct beginning
shortly after new management came to the facility up to and
including the period immediately prior to the discharges, rather
than any particular discrete incident or series of incidents which
only remotely relate to a particular event.
H&M has further argued that its various actions in attempt-
ing to make its operations more productive and enforce its work
and safety rules fails to show animus to protected conduct.45 I
cannot disagree with this contention as a general matter. That
is not the issue however: the question is whether employees’
resistance to such efforts, as well meaning and understandable
as the Employer’s concerns may have been, constitutes protect-
ed conduct and whether the Employer stepped over the line in
its response to such conduct.
After closely examining the record, I have determined that
the weight of the credible evidence demonstrates that H&M has
not met its burden under Wright Line, supra.
As noted above, H&M has contended that the four
discriminatees engaged in an unauthorized work slowdown in
contravention of the collective-bargaining agreement and the
Act. In this regard Respondent argues that deliberate slow-
downs, work-to-rule and inside game tactics are not considered
protected under the Act because they are considered unlawful
partial strikes, and has cited numerous cases in its brief in sup-
port of this proposition. See, e.g., Daimler-Chrysler Corp., 344
NLRB 1324, 1325 (2005), and cases cited therein. See also Elk
Lumber Co., 91 NLRB 333 (1950). H&M further contends that
this same reasoning has been applied to cases where an em-
ployee engages in an unauthorized slowdown in violation of a
“no-slowdown” provision in the collective-bargaining agree-
ment. Midwest Precision Castings Co., 244 NLRB 597, 598
(1979). Here, H&M argues that the discriminatees acted in
violation of article 12 of the collective-bargaining agreement
which provides:
[D]ishonesty, defective work, chronic lateness, gambling,
chronic absenteeism, excessive chargeable accidents, unau-
thorized slowdowns and insubordination shall be deemed
cause for dismissal.
In support of the foregoing contentions H&M relies upon
statements by the discriminatees that they did not like or did not
agree with the safety rules. In particular, Neilan testified that
he did not like the seatbelt rule because it slowed things down;
Gonzalez testified that the rule was a nuisance. Neilan testified
that he told Nunnery that some of the PPE requirements were
nonsense. H&M also relies upon Oliphant’s testimony that
when he spoke with Neilan about the slow pace of work on
December 13, Neilan replied that if Oliphant would allow em-
ployees not to wear the seatbelts, they would get the trains out
on time. In a similar vein Bartee testified that Neilan told him
that he was moving slowly because of the seatbelts and if they
didn’t have to use them the work would move faster. Ventre

45 In this regard, H&M has argued that its efforts to save its contract
with NS inured to the bargaining unit as a whole.
H&M INTERNATIONAL TRANSPORTATION, INC. 29
complained that it took forever to put the seatbelts on. New-
comb testified that Neilan said their pace of work was due to
the fact that the Company insisted they wear seatbelts.
H&M also relies on Domini’s testimony that Neilan com-
plained to him about having to wear safety equipment and the
seatbelt policy. Domini also testified that Neilan said that if the
Company wanted them to be safe, they would be “extra safe.”
H&M contends from the foregoing, that it is evident that the
discriminatees’ motivation for altering their work practices on
December 13 was retaliation for H&M’s enforcement of safety
rules they had not previously been required to observe.
H&M further argues that the discriminatees engaged in un-
characteristic workplace conduct that adversely affected their
work performance on December 13. For example, it was gen-
erally admitted that the normal practice at Croxton was to drive
the hostler trucks as fast as they could go and proceed with
caution at crossings. A number of employees testified that on
December 13 drivers limited their speed to 15 mph and chose to
stop at all crossings. Neilan admitted that he did so, and he
observed others doing the same. Gonzales testified that he
drove slower than top speed and stopped at all crossings. Vi-
cente testified that he observed Neilan and Ventre stopping at
every crossing and DeJesus testified that he saw some employ-
ees stopping at every crossing on December 13.46
H&M argues that these deliberate acts were intended to push
back and hurt the Company and resulted in a service failure by
virtue of the late release of the 23Z.
Here, I have concluded that the credible evidence on whole
shows that employees were indeed working more slowly on
December 13; in particular by driving at a speed less than usual
and by stopping at every crossing. I additionally find that Nun-
nery did not directly order the men to do that, as has been con-
tended.47 Rather, I have concluded that, in the service of en-
forcing other safety rules, Nunnery stated that the men could
drive more slowly and stop at crossings if they felt they needed
to do so to be safe, but reiterated that they should use “common
sense.” It is apparent from the audiotape, the transcript and his
admissions at the hearing, as well as the credited testimony of
other witnesses, however, that Nunnery, as the terminal manag-
er, did acquiesce in, and may well have been construed as en-
dorsing the use of these practices, although it is also apparent
that he did not agree they were necessary. As it is clear he is an
agent of H&M, the Company is bound by his representations to
its employees. “A principal is liable for his agent’s actions,
even if the principal did not authorize or ratify the particular
acts.” International Brotherhood of Electrical Workers Local
98, AFL–CIO (MCF Services), 342 NLRB 740, 742 (2004),
enf. 251 Fed. Appx. 101 (3d Cir. 2007). “If such action is done
in furtherance of the principal’s interest and is within the gen-

46 Respondent further argues that employees selectively observed on-
ly those safety rules that they knew would adversely influence produc-
tivity. For example, Neilan and Ventre both used cell phones while on
duty and Neilan operated his truck with a broken safety belt.
47 I do not find, as the General Counsel contends in its posthearing
brief, that Nunnery issued “clear instructions” to employees to limit
their speed to 15 mph and stop at every crossing. I further discredit
Neilan’s testimony to such effect which was given at his unemployment
hearing.
eral scope of authority attributed to the agent . . . it is enough if
the principal empowered the agent to represent the principal
within the general area in which the agent has acted” Tyson
Fresh Meats, 343 NLRB at 1337.
I further find, however, for the reasons discussed below, that
the managers’ various descriptions of the nature and extent of
the conduct (or alleged misconduct) exhibited by the
discriminatees on this day is not credible. And, the evidence
otherwise fails to show that they would have been discharged if
not for their concerted, protected conduct, as outlined above.
As an initial matter, I find that Nunnery cannot be relied on
as a reliable witness. Under initial questioning by counsel for
the General Counsel, he denied discussing the issue of speed
limits and stopping at crossings at the December 12 safety
meeting. When confronted with the audiotape of his com-
ments, however, Nunnery was compelled to admit that these
matters had been discussed.48 During Neilan’s unemployment
hearing, Nunnery told the examiner in sworn testimony that
H&M discharged the men because they had been barred by the
railroad; however, the bulk of the credible evidence shows that
they were barred only after H&M determined to discharge
them. Moreover, the record additionally shows that Nunnery
misrepresented the nature of what occurred during the safety
meeting to his own colleagues and superiors when he emailed
them that warning letters had been issued to all those involved.
Similarly, I discount the testimony offered by Bartee regard-
ing his observations after he arrived at the facility at or after
7:30 p.m. on December 13. Although Bartee testified that he
observed Neilan and the others working at an uncharacteristi-
cally slow pace, other evidence from H&M witnesses contra-
dicts this and, in fact, both Newcomb and Nunnery admitted
that after about 7:30 p.m. the pace of work sped up. Therefore,
Bartee was not in a position to make a meaningful evaluation of
whether the men had engaged in a slowdown, as alleged. I
therefore conclude that his testimony is pretextual and consti-
tutes some evidence of unlawful motive.
Although Newcomb testified and Respondent asserts in its
posthearing brief that Oliphant began noticing the slow pace of
work in the morning of December 13, Oliphant testified that he
did not notice anything in particular until about midafternoon.

48 Respondent argues that the recording of this safety meeting and
the transcript of it are not properly admissible as a foundation for their
admissibility has not been properly established. In support of these
contentions, Respondent relies on standards enunciated by the Third
Circuit as set forth in U.S. v. Starks, 515 F.2d 112, 121 fn. 11 (3d Cir.
1975) (establishing a 7-factor test for admissibility); see also U.S. v.
Adames, 509 Fed. Appx. 176, 178 (3d Cir. 2013). However, as I noted
at the hearing in this matter, the standard for admissibility of an audio
recording under Board law is a more lenient one. See Wellstream
Corp., 313 NLRB 698, 711 (1994); East Belden Corp., 239 NLRB 776,
782 (1978). In any event, it is clear that Nunnery admitted making the
remarks recorded on the audiotape and neither he nor Bartee, who was
also present, offered any evidence to establish that he did not. These
admissions were made during his cross-examination; and the General
Counsel was certainly within its rights to confront him with these prior
statements to determine whether they were in fact made; in particular
since he had initially denied making the comments heard on the tape.
Thus, in my view, the issue of the admissibility of the tape is somewhat
of a red herring.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newcomb testified that on December 13 he observed each of
the discriminatees driving between 3 and 5 mph, stopping at
every crossing regardless of whether there was a stop sign,
sitting idle for almost 30 seconds after hooking up to a contain-
er, and taking almost 10 minutes to pull a chassis to the train,
longer than it should have taken.
I fail to credit the testimony of Nunnery and Newcomb that
they observed the men driving at the pace of 3 to 5 mph. I
further do not credit Newcomb’s general characterization of
how the discriminates behaved. It is contradicted by other evi-
dence, including the testimony of current employees and,
moreover, is inherently improbable. If all four employees had
been driving that slowly, and working at such a deliberately
obstructive pace, very little would have been accomplished
prior to 7:30 p.m., the time at which the men resumed their
normal operations. Such conduct would have, by necessity, also
impeded the work of other employees. But the evidence shows
that other trains were loaded and unloaded prior to this time.
Moreover, I conclude that if that much of a slowdown had oc-
curred, Oliphant would have noticed it earlier in the day and it
stands to reason that such uncharacteristic conduct would have
been apparent to the NS personnel who were present at the
facility as well.49 There is no evidence that any of these NS
managers independently noticed a slowdown on that day or
were aware of it prior to receiving communications to such
effect by H&M personnel.
I further rely, to a limited extent, upon the testimony of cur-
rent employees Vicente, Barrett, and DeJesus, to the extent they
have a specific recollection relating to the pace of work that
evening. The Board has long held that the testimony of current
employees which is adverse to their employer’s interests has
inherent reliability. See Advocate South Suburban Hospital,
346 NLRB 209, 209 fn. 1 (2006) (quoting Flexsteel Industries,
316 NLRB 745 (1995); The Avenue Care and Rehabilitation
Center, 360 NLRB No. 24, slip op. at 1 (2014) (current em-
ployment status may serve as a “significant factor” upon which
a judge may rely in resolving credibility issues. At the hearing,
Vicente blamed the slower pace of work on crew size, which he
claims to have told Oliphant when asked. Although Oliphant
generally denied that crew size was an issue on that day, he did
not specifically deny having a discussion to such effect with
Vicente. DeJesus testified that he did not see anyone deliberate-
ly slowing down, although he did tell Domini that he saw men
making full stops at the crossings. He denied seeing anyone
driving slowly and insisted that they were driving normally. I
do not credit this aspect of his testimony, however, as it is es-
sentially unrebutted that there were certain employees driving
more slowly than the speed at which they usually drove. Bar-
rett’s testimony is subject to question in certain aspects due to
the limited nature of his recollection and his admission to con-
fusion. Barrett did testify with particularity, however, that at
some point prior to his lunchbreak he was left with three drivers
on his crew and that affected productivity due to the fact that he
had to wait for the men to unload. He further testified that after

49 Gause was present during the afternoon; Scacco was there from 6
a.m. to 5 or 6 p.m. and Martins replaced him for the night shift.
his lunchbreak, once the size of his crew increased, he was able
to get more work done, and I credit his testimony in this regard.
I further find that, although there was a service failure on
December 13, and this was obviously of concern to H&M, this
was hardly a unique circumstance. There had been numerous
occasions where this particular train—the 23Z—had been sub-
ject to a late release in prior months. On several occasions, the
train was released far later than it was on December 13. There
is no evidence that any employee had or has since been disci-
plined, let alone discharged, for any instance of a late release.
Moreover, as noted above, the Employer maintains a progres-
sive discipline system, which was not utilized under these cir-
cumstances. It is well established that differences in the treat-
ment of employees who commit the same or similar offenses is
an important factor to be considered in evaluating a respond-
ent’s defense. Central Valley Meat Co., 346 NLRB 1078, 1079
(2006). Such disparate treatment indicates a discriminatory
motive. As does the immediate posting of a new series of work
rules immediately after the four men were put on suspension.
For the foregoing reasons, I conclude that H&M has failed to
show, by a preponderance of credible evidence, that Neilan,
Ventre, Gonzalez, and Martinez engaged in the sort of miscon-
duct as alleged and, further that they would have been dis-
charged for their actions on December 13 irregardless of their
protected, concerted conduct.
Scacco’s Alleged Agency Status
At the hearing, the General Counsel amended the instant
complaint to allege that Scacco is an agent of H&M, and so
argues in its posthearing brief. An employer’s liability under
the Act for the conduct of another is, under Board law deter-
mined in accordance with the principles of the law of agency.
“The crucial and determining factor in the establishment of an
agency relationship concerns the authority of the alleged agent
to act as an agent in a given manner for the alleged principal.”
Alliance Rubber Co., 286 NLRB 645, 648 (1987). “Authority to
do an act can be created by written or spoken words or other
conduct of the principal which, reasonably interpreted, causes
the agent to believe that the principal desires him so to act on
the principal’s account.” Wometco-Lathrop Co., 225 NLRB
686, 687 (1976), citing Restatement 2d Agency § 26 (1958). In
determining what constitutes apparent authority, the Board
applies the standard endorsed in Dentech Corp., 294 NLRB
924, 925 (1989). See also Dick Gore Real Estate, 312 NLRB
999 (1993). In Dentech, the Board, quoting from Service Em-
ployees Local 87 (West Bay Maintenance), 291 NLRB 82
(1988), described apparent authority in the following manner:
Apparent authority is created through a manifestation by the
principal to a third party that supplies a reasonable basis for
the latter to believe that the principal has authorized the al-
leged agent to do the acts in question. (Citations omitted.)
Thus, either the principal must intend to cause the third person
to believe that the agent is authorized to act for him, or the
principal should realize that this conduct is likely to create
such a belief. (Citation omitted). Two conditions, therefore,
must be satisfied before apparent authority is deemed created:
(1) there must be some manifestation by the principal to a
third party, and (2) the third party must believe that the extent
H&M INTERNATIONAL TRANSPORTATION, INC. 31
of the authority granted to the agent encompasses the contem-
plated activity.
The burden of proving the existence of an agency relation-
ship rests with the party asserting the relationship, in this case,
the General Counsel. Oakwood Healthcare Inc., 348 NLRB
686, 687 (2006); Pan-Oston Co, 336 NLRB 305 (2001). In my
view, the General Counsel has not met its burden here.
The General Counsel produced no specific evidence as to
how Scacco might have been held out by H&M as its agent.
There was no evidence adduced that would indicate that Scacco
was speaking on behalf of H&M when he spoke with employ-
ees. Rather, the evidence shows that Scacco was an independ-
ent actor representing the concerns and priorities of NS when
he met with employees and the remarks credibly attributed to
him by witnesses for the General Counsel were allegedly made.
The General Counsel has adduced no evidence to suggest that
he stepped out of that role or that Scacco was explicitly or im-
plicitly authorized by H&M to speak or act on its behalf on
matters outside of and unrelated to his normal business func-
tions. Nor has it been shown, since the new management’s
arrival on the scene, that H&M, either through word or deed,
conveyed to its employees that Scacco was authorized to speak
for H&M management on employment or union matters. To
the contrary, the record demonstrates that the day-to-day man-
agement of personnel was left to H&M, and employees knew
this to be the case.
The mere fact that NS and H&M have overlapping business
priorities, which included having an efficient and productive
work force is, in my view, insufficient to establish agency sta-
tus under the standards described above.50 Moreover, I find
that the evidence relied on by the General Counsel regarding
Scacco’s so-called “threats” to employees is largely uncorrobo-
rated by other employees attending the meeting. In particular
Neilan’s and Gonzalez’ testimony is subject to doubt as their
individual accounts of remarks attributed to Scacco were not
corroborated by any of the other employees present. I find that
these sorts of comments, had they been made, would have been
something other employees would have tended to recall.51
Accordingly, I discredit such testimony.
The Alleged Threats of Discharge
With regard to this specific allegation of the complaint, the
context must be remembered. Although there is a litany of alle-
gations regarding protected, concerted activity in the complaint,
the General Counsel has neither alleged nor proven that the
conduct engaged in by Neilan, Ventre, Gonzalez, and Martinez
on December 13 was similarly protected and concerted under
the Act.

50 In this regard, the circumstances surrounding the meeting are ir-
relevant. It is apparent from the record that both NS and H&M wanted
to minimize any ongoing conflict with the work force.
51 As set forth in further detail above, Neilan testified that Scacco
threatened to bar the men from the facility if there were problems.
Gonzalez testified that if the union men gave him a hard time, he would
have ways or persuading them into working better and that he could
give them a couple of weeks off to think about it.
The General Counsel has alleged that Newcomb and Nun-
nery unlawfully threatened Neilan and Martinez with discharge.
In particular, counsel for the General Counsel relies on Nun-
nery’s admission that he told employees that Scacco “wanted us
to tell anyone that’s involved with slowing down out there to
knock it off, if they didn’t knock it off, he was going to ban
them. If the train was late he was going to ban them off the
property.” Gonzalez testified that Newcomb told him that if the
railroad became involved, he would not be able to help the
workers. Martinez testified that Newcomb told him that if the
train was late that evening, he “wouldn’t be there anymore.”
Neilan testified that when he first spoke with Newcomb that
evening at about 7:30 p.m., Newcomb said, “If this train is not
out of here by 9:30, you and the men are going to be barred
from the terminal.” Newcomb denied making the statements
attributed to him by the employees, and provided alternate ver-
sions of these conversations.
In any event, even assuming Newcomb and Nunnery made
the comments attributed to them, I cannot conclude that they
violated the Act as alleged. All of these comments related to a
perceived slowdown in work, which did in fact occur (although
not to the extent alleged by H&M), was limited to the events of
December 13 and referred to the possible anticipated conse-
quences of a late release of the 23Z. The conduct referred to by
the managers did not encompass any other conduct which I
have concluded was concerted and protected. The fact that
these employees may have subsequently been discharged for
discriminatory reasons does not necessarily render their super-
visor’s comments pertaining to adverse consequences from the
perceived slowdown to be discriminatory. Accordingly, I rec-
ommend dismissal of this allegation of the complaint.
The Alleged Threat to Reinstate discipline
Neilan testified that at about 7:45 p.m. both Nunnery and
Newcomb approached him and Newcomb told Neilan that he
was causing good men to lose their jobs. Then, as Neilan testi-
fied, Nunnery said that he would reinstate all the writeups he
threw out on the prior evening. Nunnery did not specifically
deny making such comments; however, he provided an alterna-
tive account of their discussion.
Assuming such comments were made, the record suggests
that they were in response to a perceived slowdown of opera-
tions, as set forth above. As has been noted above, the General
Counsel has not alleged that these actions which occurred on
December 13 fall within the realm of protected, concerted ac-
tivity under the Act. Accordingly I do not conclude that any
such threat, if made, was in violation of the Act.
The Reinstatement of Vicente’s Discipline
The General Counsel has alleged that Neilan’s discussion
with Nunnery regarding his and Vicente’s discipline for alleged
violations of the call off policy was protected concerted activity
and further that Vicente’s discipline was reinstated in retalia-
tion for Neilan’s conduct. As an initial matter, I note that the
discipline had been issued by Burke, the previous terminal
manager. It appears that Nunnery subsequently agreed to with-
draw Vicente’s discipline because he initially believed it had
been issued in error. Neilan then had a meeting with Nunnery.
According to Nunnery’s testimony and the tape recording and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
transcript entered into evidence by the General Counsel, Neilan
complained that he had been “singled out” and “harassed” be-
cause he had received a letter while Vicente had not and in-
formed Nunnery that Vicente had not, in fact, called out in a
timely fashion. Nunnery then reissued the discipline to Vicen-
te. Neilan did not offer any evidence regarding the substance
of this discussion.
The General Counsel has failed to make a convincing argu-
ment that Vicente’s discipline was reissued due to any advoca-
cy on his behalf by Neilan or any other concerted protected
activity in which Neilan may have engaged. Rather than acting
on behalf of Vicente, Neilan was acting in his own self-interest,
to Vicente’s detriment. Accordingly, I recommend that this
allegation of the complaint be dismissed.
Respondent Local 312 did not Violate
Section 8(b)(1)(A) of the Act
Applicable Legal Standards
The basic proposition as set forth in Vaca v. Sipes, 386 U.S.
171 (1967), is that a union must represent all unit employees
fairly, that it must administer the contract’s grievance-
arbitration provision fairly and in good faith, and that it violates
that duty when its conduct toward a unit member is arbitrary,
discriminatory or in bad faith. Unions are afforded a “wide
range of reasonableness” in serving the unit that it represents,
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953), and
they have discretion in determining whether grievances merit
being processed. Mere negligence, poor judgment, or ineptitude
on the part of the union is insufficient to establish a violation of
its obligation to represent all unit employees fairly. Local Un-
ion No. 195, Plumbers (Stone & Webster), 240 NLRB 504, 508
(1979). In General Truck Drivers, Chauffeurs & Helpers Un-
ion, Local No. 692 (Great Western Unifreight System), 209
NLRB 446, 448 (1974), the Board stated:
It is clear that negligent action or nonaction of a union by it-
self will not be considered to be arbitrary, irrelevant, invidi-
ous, or unfair so as to constitute a breach of the duty of fair
representation violative of the Act. Something more is re-
quired.
Under a union’s duty of fair representation, while it may re-
fuse to process a grievance or to process it in a particular man-
ner, it is forbidden from refusing or failing to process it for an
arbitrary or invidious reason or “without reason, merely at the
whim of someone exercising union authority.” General Truck
Drivers, Local 315 (Rhodes & Jamieson, Ltd.), 217 NLRB 616,
617–618 (1975); Local 417 UAW (Falcon Industries, Inc.), 245
NLRB 527, 534 (1980). In Glass Bottle Blowers, Local 106
(Owens-Illinois), 240 NLRB 324 (1979), the Board stated:
Where, as here, a union undertakes to process a grievance but
decides to abandon the grievance short of arbitration, the find-
ing of a violation turns not on the merit of the grievance but
rather on whether the union’s disposition of the grievance was
perfunctory or motivated by ill will or other invidious consid-
erations.” See also Local 3036 Taxi Drivers Union (Linden
Maintenance), 280 NLRB 995, 996 (1986).
In the instant case, the General Counsel asserts that the Un-
ion’s conduct was, among other things, “arbitrary,” and there-
fore unlawful.. A union’s actions are considered arbitrary only
if the union has acted “so far outside ‘a wide range of reasona-
bleness’ as to be irrational.” See Air Line Pilots Assn., Interna-
tional v. O’Neill, 499 U.S. 65, 66 (1991) (quoting Ford Motor
Co. v. Huffman, 345 U.S. 330, 338 (1953)). Mere negligence is
not sufficient to establish arbitrary conduct. See, e.g., Pacific
Maritime Assn., 321 NLRB 822, 823 (1996); Office Employees
Local 2, 268 NLRB 1353, 1355 (1984), affd. sub nom.
Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985).
Further, a union is not required to carry out an investigation
of the same scope and rigor as one that the Region might carry
out or to follow any particular procedures in processing an
employee’s grievance. See Pacific Maritime Assn., 321 NLRB
822, 823 (1996); Asbestos Workers Local 17, 264 NLRB 735,
735–736 (1982); Local Union No. 195, Plumbers, 240 NLRB
504, 504 fn. 3 (1979), enfd. 606 F.2d 320 (5th Cir. 1979).
It has been held that a union has not breached its duty of fair
representation, notwithstanding the fact that certain aspects of
its conduct such as the quality of their investigation, could be
subject to criticism. Douglas Aircraft Co., a component of
McDonnell Douglas Corp., 307 NLRB 536, 557 (1992) (union
did not violate Act, although it failed to speak to some witness-
es and failed to speak to charging parties before withdrawing
grievance); Laborers Local 1191 (S. J. Groves & Sons), 292
NLRB 1022, 1024 (1989) (although union made only a “casu-
al” request that charging party be reinstated, and erroneously
directed charging party to mail grievance to the union rather
than employer, which caused grievance to be time barred, no
violation found as the union’s conduct was found to be mere
negligence, and not arbitrary or perfunctory conduct); Diversi-
fied Contract Services, 292 NLRB 603, 605–606 (1989) (Board
reverses ALJ, and concludes that although union failed to dis-
cuss company’s position with charging party before meeting
with company, failed to inform her of meetings, and did not
conduct a full scale investigation, these factors did not amount
to perfunctory representation, but mere mismanagement which
is not arbitrary); Local 64 Bartenders (HLJ Management
Group), 278 NLRB 773 (1986) (no violation found, although
union at grievance meeting failed to address an issue raised by
charging party, and agreed at meeting with employer’s position
that dismissal was for cause. The Board in footnote points out
that union representative’s duties in prearbitral stages, are not
the same as duty owed by an attorney to a client or the duty of a
union to be an advocate once in arbitration); Rainey Security
Agency, 274 NLRB 269, 270 (1985) (the Board reverses ALJ’s
finding of perfunctory representation. The Board concludes
that conduct relied on by ALJ, such as delay in appointing
steward, failure to maintain reasonable contact with employees
and to keep them informed, constituted ineptitude or misman-
agement, but not arbitrary or perfunctory representation); Local
17 Asbestos Workers (Catalytic, Inc.), 264 NLRB 735, 736
(1982) (no violation found, although union representative
agreed with employer’s position without any protest); Local
3217, Communications Workers (Southern Bell Telephone),
243 NLRB 85, 86–87 (1979) (no violation, although charging
party was never interviewed by union representatives and was
H&M INTERNATIONAL TRANSPORTATION, INC. 33
never told the status of her grievance); Local Union No 195
(Stone & Webster), supra (no violation found, although ALJ
found that union did not conduct an efficient investigation, and
accepted employer’s position); Local 355 Teamsters (Monarch
Institutional Foods), 229 NLRB 1319, 1320–1321 (1977) (The
Board reverses ALJ who found violation on grounds that union
had ignored a viable provision in contract in processing griev-
ance. The Board concludes that “duty of fair representation
does not require that every possible option be exercised or that
grievant’s case be advocated in a perfect manner.”).
Thus, based on the foregoing, it becomes apparent that arbi-
trary or perfunctory representation is not established merely
because a union might have conducted a more thorough inves-
tigation, or failed to raise particular arguments in support of a
grievance. As the Board has observed, “the issue here is not
whether the [union] discharged its obligations with maximum
skill and adeptness, but whether, in undertaking its efforts, it
dealt fairly. The duty of fair representation does not require
that every possible option be exercised or that a grievant’s case
be advocated in a perfect manner.” Monarch Food, supra at
1321; Office Furniture, supra at 67; Diversified Contract, supra
at 605. See also Local 327 Teamsters (Kroger Co.), 233 NLRB
1213, 1217 (1977) (although union official did not seize upon
possible inconsistencies in witnesses’ testimony, “the duty of
fair representation in representing employees in grievances
does not require that each case be handled with the expertise of
a trial lawyer”).
Analysis and Conclusions
Here, the General Counsel has argued that the Union and
Domini in particular acted in a perfunctory, arbitrary and dis-
criminatory manner by failing to adequately investigate the
circumstances surrounding the discharges of the discriminatees.
The General Counsel undertakes to compare and contrast
Domini’s conduct with the manner in which other grievances
were processed and handled. In a somewhat counterintuitive
vein, counsel for the General Counsel has also argued that
Domini had a history of perfunctory handling of grievances of
other employees in the unit which demonstrate his bad faith. I
cannot agree.
The record demonstrates that throughout the autumn of 2012,
Domini processed and assisted in the resolution of a number of
grievances, formal and informal, presented to him by employ-
ees. As has been set forth in detail above, Domini investigated
whether employees could be sent to lunch at the employer’s
discretion; he entered into a settlement with the Employer by
which Vicente’s discipline for a violation of the call out proce-
dure was expunged; he submitted the issue of schedule changes
to arbitration; he submitted the issue of overtime compensation
to mediation resulting in payments to Neilan and Gonzalez; he
participated in an October mediation session with the FMCS at
which time, in addition to the issues referred to directly above,
Neilan’s warning for violating call out procedures was with-
drawn and there was a settlement of the Pimentel grievance. In
addition, on October 24, Domini conducted a meeting with
management and employees at which time an understanding
was reached regarding shift duration, lunchbreaks, early depar-
ture, and overtime pay for working through lunch. Domini
contacted H&M management about problems with the condi-
tion of their toilet facilities and as a result of his intervention,
the problem was promptly resolved. He participated in discus-
sions with management about worker complaints several times
a week. He attended a meeting with management after em-
ployees protested that they were told that management could
keep them at work for as long as 16 hours at any given time. In
my view, these actions do not demonstrate arbitrary, invidious,
or perfunctory representation.
Insofar as Domini’s investigation of the discharges of the
discriminatees is concerned; he operated on the very limited
information provided to him by Neilan. When Neilan told him
that two potential witnesses had been threatened and intimidat-
ed by H&M management, Domini interviewed them. Neilan
insisted that Domini obtain surveillance tapes from an entity
with which he had no contractual relationship and, therefore, no
authority to demand such information. Domini interviewed a
number of other employees and obtained statements from
H&M managerial personnel. The General Counsel makes
much of the fact that Domini did not interview everyone who
had been on duty on December 13 and interviewed other em-
ployees who had not worked that day. There is no evidence,
however, that Neilan or any other discharged employee provid-
ed Domini with additional information which would have ena-
bled him to more specifically tailor his investigation. And, as
noted above, the fact that a union’s investigation could have
been more thorough or detailed is insufficient to establish a
breach of the duty of representation.
And then there is the fact that none of the discharged em-
ployees cooperated in the Union’s investigation of the circum-
stances surrounding their discharge. In this regard, the Board
has long held that a grievant’s failure to cooperate can form the
reasoned basis of a union’s decision to withdraw a grievance.
See, e.g., Teamsters Local 901 (Interstate Air Service Corp.),
167 NLRB 135, 140 (1967). Here, it appears that the
discriminatees made no determined effort to have their griev-
ance processed by the Union but rather turned to the Board. It
further appears to me that this decision was orchestrated, and
that the charge against the Union was for the purpose of pre-
venting the presentation of the matter before an arbitrator. But
that is beside the point: the major factor here is that all four
discriminatees were aware of and deliberately ignored the Un-
ion’s requests for information which would enable it to make
an educated and informed decision as to whether their griev-
ances had merit. The Union was then obliged to rely on the
representations of H&M management and whatever infor-
mation it could glean from other employees.
Based upon that information, Domini concluded that there
was an insufficient basis to process the grievances further.
While one may disagree with that conclusion, as the authority
cited above amply demonstrates, such a disagreement is insuf-
ficient to establish a breach of the duty of fair representation.
Accordingly, I recommend dismissal of this allegation of the
complaint.
CONCLUSION OF LAW
By suspending and then discharging Harry Neilan, Alex
Ventre, Abraham Gonzalez, and Ernesto Martinez, H&M Inter-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
national Transportation, Inc. ( H&M or the Employer) has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that H&M has committed unfair labor practic-
es within the meaning of the Act, I shall order it to cease and
desist from such conduct and take certain affirmative action
designed to effectuate the purposes of the Act. Having found
that H&M unlawfully discharged Neilan, Ventre, Gonzalez,
and Martinez, I shall order H&M to offer to these employees
full reinstatement to their former positions, or if such positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, The Respondent having discriminatorily
discharged Neilan, Ventre, Gonzalez, and Martinez, shall be
ordered to make each of them whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). In addition, H&M must compensate Neilan, Ventre,
Gonzalez, and Martinez for the adverse tax consequences, if
any, of receiving a lump-sum backpay award and is ordered to
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters. Don
Chavas, LLC, d/b/a/ Tortillas Don Chavas, 361 NLRB No. 10
(2014). Respondent will also be ordered to remove from its
files any references to the unlawful discharges, and to notify
Neilan, Ventre, Gonzalez, and Martinez in writing that this has
been done and that those unlawful discharges will not be used
against them in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended52
ORDER53
The Respondent, H&M International Transportation, Inc.,
Iselin, New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

52 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
53 Counsel for the General Counsel requests that the order in this
case should include a requirement that Neilan, Ventre, Gonzalez, and
Martinez be reimbursed for search-for-work and work-related expenses,
without regard to whether interim earnings are in excess of these ex-
penses. Normally, such expenses are considered an offset to interim
earnings. But the General Counsel seeks a change in existing rules
regarding such expenses. This would require a change in Board law,
which is solely within the province of the Board and not an administra-
tive law judge. Therefore, I shall not include this remedial proposal in
my recommended order.
(a) Suspending and discharging or otherwise disciplining or
discriminating against employees for concerted, protected or
union activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Harry Neilan, Alex Ventre, Abraham Gonzales, and Ernesto
Martinez full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(b) Make Neilan, Ventre, Gonzales, and Martinez whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth in the
remedy section of this decision.
(c) Compensate Neilan, Ventre, Martinez, and Gonzales for
the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security Ad-
ministration allocating the backpay award to the appropriate
calendar quarters.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Croxton, New Jersey, copies of the attached notice
marked “Appendix.”54 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the H&M’s authorized representative, shall be posted by the
H&M and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. In addition to the physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or internet site and/or other elec-
tronic means, if the Employer customarily communicates with
its employees by such means. Reasonable steps shall be taken
by H&M to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, H&M has gone out of business
or closed the facility involved in these proceedings, H&M shall

54 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.”
H&M INTERNATIONAL TRAN
duplicate and mail, at its own expense, a copy of the not
all current employees and former employees employed by the
Respondent at any time since December 14, 2012.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Employer has taken to comply.
Dated, Washington, D.C. June 10, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS B
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 n
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your b
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activ
ties.
WE WILL NOT suspend, discharge or or otherwise discrim
nate against employees for engaging in concerted, protected or
union activities.
WE WILL NOT in any like or related matter, interfere with, r
strain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.
WE WILL within 14 days from the date of the Board
offer Harry Neilan, Alex Ventre, Abraham Gonzalez
esto Martinez full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, wit
SPORTATION, INC.
ice to
OARD
o-
e-
i-
i-
e-
’s Order,
, and Ern-
h-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Neilan, Ventre, Gonzalez
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
WE WILL compensate Neilan, Ventre, Gonzalez
tinez for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to the
appropriate calendar quarters.
WE WILL within 14 days from the date of the Board
remove from its files any reference to the unlawful discharges
and wE WILL, Within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not
be used against them in any way.
H&M INTERNATIONAL TRANSP
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/22-CA-089596 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.
35
, and Martinez
, and Mar-
’s Order,
,
ORTATION, INC.