Decker Truck Line, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 23, 2014

27-CA-107239 (N.L.R.B. Sep. 23, 2014)

JD(SF)–46–14
Fort Collins, CO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DECKER TRUCK LINE, INC.
and Case 27-CA-107239
DAVID MILLER ESQ., THE SAWAYA LAW FIRM
Julia M. Durkin, Esq.
Jose R. Rojas, Esq., and
Leticia Pena, Esq.
for the General Counsel.
Emily F. Keimig, Esq., and
Karla E. Sanchez, Esq.
for the Respondent.
David Miller, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Denver, Colorado,
on April 8–10 and May 7–8, 2014. David Miller (the Charging Party or Miller) filed the original
charge on June 13, 2013,1 and the first amended charge on August 22, 2013. The Charging Party
filed the second amended charge on December 13. The General Counsel issued the original
complaint on September 18, and the amended complaint and notice of hearing on January 31,
2014. Decker Truck Line, Inc. (the Respondent or Decker) file timely answers denying all
material allegations.
The complaint alleges that the Respondent violate Section 8(a)(1) of the National Labor
Relations Act (the Act) by interrogating employees about their protected concerted activities and

1 All dates are in 2013 unless otherwise indicated.
JD(SF)–46–14
2
the protected activities of other employees, and threatening its employees with discharge if they
complained about Respondent not paying its employees overtime pay. The complaint further
alleges that the Respondent violated Section 8(a)(1) of the Act by disciplining an employee and
discharging another employee in retaliation for engaging in protected concerted activities. At the
hearing, I granted the General Counsel’s request to amend the complaint to include an allegation 5
that the Respondent violated Section 8(a)(1) of the Act by requesting, through its attorney in the
form of subpoenas duces tecum, certain information from current or former employees.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel2 and the Respondent, I make the 10
following
FINDINGS OF FACT
I. JURISDICTION15
The Respondent, a corporation with an office and principal place of business in Fort
Dodge, Iowa and an office in Fort Collins, Colorado, transports freight interstate and intrastate
by truck. The Respondent admits, and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Respondent’s Operations
25
The Respondent, Decker Truck Line, Inc., is a motor carrier registered with the United
States Department of Transportation (DOT). Decker employs more than 750 drivers. Most of
Decker’s drivers are “over-the-road” (OTR), meaning that they do not drive the same route each
day and are often on the road for long stretches of time. The OTR drivers report to fleet
managers stationed at any of Decker’s eight terminals, and they do not report to any one manager 30
on a daily or other set basis. Their assignments vary by distance and load.
This case concerns Decker’s operations in Fort Collins, Colorado, where, during the
relevant time period, it employed about eight local shuttle drivers at the New Belgium Brewery
(NBB). These drivers shuttle beer and related products between NBB’s brewery and its 35
warehouse, sometimes referred to as “the res,” roughly 5.5 miles away. Specifically, beer and
related products are sent from the brewery to the res, and then the drivers return to the brewery
with an empty trailer or with items needed for the brewery.
OTR drivers are paid by the mile, whereas the NBB drivers are paid by the hour, as 40
discussed more fully below. OTR drivers use a communications system called Qualcomm for
dispatch and tracking, and for letting Decker know of any incidents. The NBB drivers do not use
this system and their supervisor does not have access to it.

2 The General Counsel’s brief points out numerous errors in the transcript along with unopposed
motions to amend the transcript to correct these errors, which are hereby granted.
JD(SF)–46–14
3
B. Policies
Like all companies, Decker has policies and rules that apply to its employees. Relevant
here, Decker has a progressive disciplinary policy that applies to all drivers who have been
employed more than 90 days. The policy delineates the following steps: 5
 counseling for the first offense,
 verbal warning for the second offense,
 written disciplinary letter for the third offense,
 seven-day suspension for the fourth offense, and10
 termination for the fifth offense.
The policy contains a provision permitting immediate suspension or termination for certain
offenses, including but not limited to:
15
 falsification of misrepresentation of an employee’s application for employment,
 insubordination or disrespectful conduct,
 violation of safety and health rules,
 sexual or other harassment or discrimination,
 theft or misuse of company property, 20
 possession or sale of alcohol or drugs on the employer’s premises or while
operating a Decker vehicle,
 falsification of records,
 carrying weapons on company property including vehicles,
 and fighting or threatening violence while on duty or on the employer’s premises.25
(GC Exh. 9.)3
Decker’s employee manual, section 501, contains a policy entitled “Employee Conduct
and Work Rules” which states, in pertinent part:30
It is not possible to list all forms of behavior that are considered unacceptable in the
workplace. However, the following examples of infractions of rules of conduct, together
with other reasons which are not specifically listed herein, may result in disciplinary
action, up to and including termination of employment:35
Fighting or threatening violence while on duty or at any time while on the premises of the
Company.
Insubordination or other disrespectful conduct.40

3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
exhibit; “GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and “R Br.
for the Respondents’ brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited, but rather are based my review and consideration of the entire record.
JD(SF)–46–14
4
Violation of safety and health rules.
Sexual or other unlawful or unwelcome harassment or discrimination in violation of the
Company policy.5
Theft or inappropriate removal, use or possession of Company property.
Possession, distribution, sale, transfer or use of alcohol or illegal drugs on the premises of
the Company or while on duty or while operating employer-owned vehicles or 10
equipment.
(GC Exh., 20, p. 47.) Section 503, entitled “Sexual and Other Unlawful Harassment,” states:
The Company is committed to providing a work environment that is free of 15
discrimination and unlawful harassment. Actions, words, jokes, or comments based on an
individual's sex, race, ethnicity, age, religion, or any other legally protected characteristic
will not be tolerated. As an example, sexual harassment (both overt and subtle) is a form
of employee misconduct that is demeaning to another person, undermines the integrity of
the employment relationship, and is strictly prohibited. Any employee who has been 20
subjected to sexual or other unlawful harassment by any other employee should promptly
report the matter to the Safety and Human Resources Department. If the employee
believes it would be inappropriate to contact this department, the employee should
contact the President. Employees can raise concerns and make reports without fear of
reprisal. Any supervisor or manager who becomes aware of possible sexual or other 25
unlawful harassment should promptly advise the Safety and Human Resource
Department, who will handle the matter in a timely and confidential manner. Any person
engaging in sexual or other unlawful harassment will be subject to disciplinary action, up
to and including termination of employment.
30
(GC Exh, 20, pp. 47–48.) Finally, Decker has a “Policy on Harassment and Discrimination”
which sets forth its “zero-tolerance standard for any type of harassment or discrimination.” (GC
Exh. 20, p. 85.)
C. The Fort Collins Facility and Operations35
Decker received the contract to transport beer and related products for NBB in or around
January 2011. At all relevant times, Rick Lackner was the shuttle drivers’ supervisor and the
only Decker supervisor or manager located in Fort Collins. Decker hired Lackner as a driver in
1998 and was eventually promoted to supervisor. (Tr. 923–924.) Lackner reported to Lonnie 40
Wallace, who at the time was Decker’s vice president of reefer operations,4 Wallace worked out
of the corporate office in Fort Dodge, Iowa. At all times relevant to this complaint, Brenda
McNealy was the vice president of human resources and Dale Decker was Decker’s industry and

4 At the time of the hearing, Wallace was the chief operating officer (COO), a position he had held for
roughly a month.
JD(SF)–46–14
5
government relations director. Both McNealy and Dale Decker also worked at the corporate
office in Fort Dodge.
The day shift runs from 5:45 a.m. to 5:45 p.m. and the night shift runs from 5:45 p.m. to
5:45 a.m. Drivers were expected to arrive 15 minutes prior to the start of the shift, so they5
clocked in at 5:30 a.m.. Four drivers worked Sunday through Tuesday and every other
Wednesday. The other four drivers worked the opposite days. During the relevant time period,
the drivers whose schedules started on Sunday were Joseph Griego, Jennifer Johnson, Joe (“JR”)
DeHerrera, and Eric Merkner. The drivers whose shift started on Wednesday or Thursday were
Ron Carvalho, Wade Schnabel, Stewart Hutchins, and Allen Gerstner. The drivers worked in 10
pairs of two, with one pair covering the day shift and the other covering the night shift, on a
rotating basis. 5
Each driver was assigned one truck per shift. Drivers started their workday at the
brewery, and shuttled back and forth between the brewery and the res throughout the day. 15
When a load was ready for delivery, the driver would receive a call on a cell phone Decker
assigned for that driver’s truck. (Tr. 110–111.) The route is about 45 minutes round trip.
Though the number of loads per shift varied, the drivers averaged about 10 trips per shift. (Tr.
122, 502, 630.) If there was not time to deliver a load at the end of the shift and return before it
was time for the driver to clock out, the driver would “stage” it, i.e. get it ready to go so the 20
driver on the next shift could take it right away. (Tr. 123, 631.)
Drivers were paid a straight hourly rate with no overtime pay. For every week a driver
did not have any safety incidents, he or she received an extra dollar of pay. At times, the
brewery would close down for cleaning or mechanical issues. When this occurred, the drivers 25
were paid for a full shift even if they did not work a full shift.
When coming on shift, drivers would talk to the driver from the previous shift to see how
the plant was running and whether there were any issues with the trucks. If there was a problem
with the vehicle, the driver on the shift before would notify the driver coming on their shift. (Tr. 30
623–624.)
At the brewery, there is a drivers’ facility with a file cabinet for paperwork and a white
board, referred to as the “grease board” or the “safety board.” Lackner was the only person who
wrote on the grease board, and he used it as a means to convey information to the drivers. 35
D. Pre-Trip and Other Inspection Forms
A pre-trip inspection is, as its name suggests, an inspection of the vehicle the driver must
perform prior to driving it. Each Decker NBB driver is required to maintain a commercial 40
drivers’ license (CDL). The requirements of pre-trip inspections are part of the written test to
obtain a CDL. Federal Motor Carrier Safety Administration (FMCSA) regulations, at 49 CFR §§
300 et seq., require drivers to perform a pre-trip inspection and document it at the end of the day.
FMCSA regulations, at 49 CFR § 396.13 state:
45

5 Johnson did not rotate shifts and only worked nights.
JD(SF)–46–14
6
Before driving a motor vehicle, the driver shall:
(a) Be satisfied that the motor vehicle is in safe operating condition;
(b) Review the last driver vehicle inspection report; and
(c) Sign the report, only if defects or deficiencies were noted by the driver who prepared 5
the report, to acknowledge that the driver has reviewed it and that there is a certification
that the required repairs have been performed. The signature requirement does not apply
to listed defects on a towed unit which is no longer part of the vehicle combination.
The regulations are more specific at 49 CFR § 396.11(a)(4), stating:10
Every motor carrier shall require its drivers to report, and every driver shall prepare a
report in writing at the completion of each day's work on each vehicle operated, except
for intermodal equipment tendered by an intermodal equipment provider. The report shall
cover at least the following parts and accessories:15
(i) Service brakes including trailer brake connections;
(ii) Parking brake;
20
(iii) Steering mechanism;
(iv) Lighting devices and reflectors;
(v) Tires;25
(vi) Horn;
(vii) Windshield wipers;
(viii) Rear vision mirrors;30
(ix) Coupling devices;
(x) Wheels and rims;
35
(xi) Emergency equipment
Drivers who do not have documentation of having done a pre-trip inspection can be fined by the
Department of Transportation.6
40
Pursuant to 49 CFR § 396.1, “Every motor carrier, its officers, drivers, agents,
representatives, and employees directly concerned with the inspection or maintenance of
commercial vehicles must be knowledgeable of and comply with the rules of this part.” Under

6 Drivers also filled out bills of lading, which identify the product in the truck and the location of
delivery. When a load was delivered to the res, the driver recorded the time and items delivered on the
activity sheet. The driver also gave one copy of the bill of lading to the res.
JD(SF)–46–14
7
49 CFR 396.11, when “a duty is prescribed for a driver or a prohibition is imposed upon the
driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.”
When the drivers were hired, they underwent a 3-day orientation, which included
watching some videos, a road test, and going over the driving route. The road test included a 5
section on pre-trip inspections and emergency equipment. This part of the test documented
whether the driver checked the general condition of the unit; looked for coolant, fuel or lubricant
leaks; checked under the hood for the oil, water, steering, and general condition o the engine;
checked around the unit, specifically the tires, lights, trailer hook-up, brake and light lines, body,
doors, horn, and windshield wipers; tested brake action, tractor protection valve, and parking 10
brake; checked horns, windshield wipers, mirrors, emergency equipment, reflectors, flares, tire
chains (if necessary), and the fire extinguisher; checked instruments, dashboard warning lights,
windshield, windows, mirrors, lights, and reflectors; and reviewed and signed the previous
report. (R. Exhs. 2, 9.)
15
Drivers also received a 220-page orientation manual. The orientation manual instructed
an employee to do a thorough pre-trip inspection of the semi-trailers, including walking around
the trailer to check for any damage, checking tires condition and tire pressure, verifying that
lights are working, and checking mirrors for adjustment and cleaning. (GC Exh. 20, p. 9.)
Another section of the manual, entitled “Maintenance,” stated: “Drivers are not permitted to 20
work on, around, or under their vehicle or trailer and will not perform preventative maintenance
while on NBB property.” (GC Exh. 20, p. 31.) During orientation of the employees who started
in February 2011, Lackner told the drivers they could not lift the hood of the vehicles on NBB
property. A couple of months later, Lackner told a group of drivers that NBB said it was okay
for them to check the oil and similar tasks, as long as they did not do anything to make messes 25
on NBB property. (Tr. 604, 610–611.)
Prior to starting work at Decker, drivers completed an NBB driver shuttle service quiz.
One of the questions asked whether the driver must perform a through pre-trip inspection of the
equipment daily, with the correct answer being “T” for true. (R Exhs. 1, 10.) On a written 30
examination for drivers, one of the questions asked the driver to verify that he/she must be
satisfied that parking brakes, tires, lights and reflectors, mirrors, coupling and other devices were
in good working order before the vehicle could be driven. (R Exh. 3.)
Once drivers began work, after punching in, they picked up inspection forms and an 35
activity sheet, sometimes referred to as a load sheet.7 (GC Exhs. 3–4.) The drivers’ vehicle
inspection report required drivers to fill in their name, address, date, tractor and trailer number,
and odometer reading. For the tractor, the driver was required to place a checkmark next to any
of 38 delineated parts that were defective, with a catchall “other” category to cover any other
parts. For the trailer, the driver was to do the same for any of 14 delineated parts, with the same 40
catchall “other” category. (GC Exh. 3.) A full pre-trip inspection for the Decker drivers at NBB
took about 15 minutes.

7 OTR drivers did not use the pre-trip inspection form, but instead entered their pre-trip inspection
into an electronic on-board recorder (EOBR), which was part of the Qualcomm system. (Tr. 791.)
JD(SF)–46–14
8
Loads of beer were considered “staged” when a loaded trailer was hooked to the truck
and ready to go for delivery. Per Lackner’s instructions, if a load was ready to go when a driver
came onto his or her shift, the driver was instructed to take the load immediately and then do the
pre-trip inspection. (Tr. 101, 519–521, 610, 622–625.) Lackner had seen driver Jennifer
Johnson take a staged load prior to doing a pre-trip inspection but she was not disciplined. 5
Johnson witnessed all the other drivers do the same thing. (Tr. 626–629.)
At the end of the shift, drivers turned in the inspection forms consisting of one pre-trip
inspection and one post-trip inspection per shift, to the drivers’ room.
10
E. Background Events in 2012
Lackner told Johnson, DeHerrera, and a former driver named Shane that people were not
removing rubber stops used on trailer tires called “chocks” before taking loads, and he was going
to start making drivers who did not remove the chocks pay for tires. Lackner told Johnson that 15
Hutchins was the driver with whom he had a problem in this regard. Nobody was told they were
being disciplined about the chock issue. (Tr. 616–618.)
Joseph Griego began working as a driver for Decker on June 6, 2012. At the time, he had
consistently maintained his CDL since 1987. (Tr. 83–84.) Griego worked Sunday through 20
Wednesday or Sunday through Tuesday on a weekly rotating basis.
When Griego started, there was a message on the grease board asking drivers to stop
running over chocks. (GC Exh. 22; Tr. 129.) Lackner also put a message on the grease board
telling drivers to fill out their paperwork correctly. Attached to the board was an example of a 25
pre-trip inspection form highlighting certain areas where drivers were not filling it out correctly.
The timing of the pre-trip inspection was not noted. (Tr. 530–531, 619.) The messages
remained there for a few months. (Tr. 129–133.) Lackner never discussed chocks or paperwork
with Griego, and he told Johnson and DeHerrera they were filling out their paperwork correctly.
(Tr. 529, 620.) 30
On July 16, 2012, Lackner sent an email to McNeely telling her that all NBB shuttle
drivers had been given their second verbal warning about using and not running over chocks.
The email stated that the drivers had been warned that the next time they failed to use chocks or
ran them over, they would be written up and lose their safety bonus for the week. Lackner added 35
that he had also “once again” posted this on the safety board for all to read. He said he had done
this after the first warning, and had left it posted for 2 months, and would do the same this time.
(GC Exh. 9.)
Lackner sent another email to McNealy on July 16 telling her that he had given all NBB 40
shuttle drivers their first verbal warning to fill out pre and post-trip sheets and daily activity
sheets completely, with all information such as “name, dates, time, mileage, tractor numbers,
trailer number for pre-trip, trailer number for post trip and all other related info.” Lackner also
noted that he posted this on the safety board. (GC Exh. 9.)
45
On August 23, 2012, Griego improperly hooked an air line. This caused damage to the
tractor, requiring him to take the tractor back to the brewery and use a replacement tractor for his
JD(SF)–46–14
9
shift. Pursuant to Lackner’s instructions, Greigo made a report. Lackner sent an email to
Jennifer Sawyer, with several others copied, including McNealy, explaining what occurred. He
relayed that Griego had failed to hook up all the lines to the trailer when he was moving it from
one door to another. As a result, the lines fell and were damaged beyond repair, requiring the
tractor to need new air lines and some other parts. He conveyed that Griego was losing his 5
safety bonus for the week, the incident would go into his personnel file, and he would receive
additional training. (GC Exh. 9.) A week or so later, Griego relayed what happened to someone
from Decker’s safety department. He was not disciplined for the incident, but he lost a safety
bonus for the week.8
10
Toward the end of 2012, the drivers began talking about the fact that Decker did not pay
overtime. DeHerrera and Hutchins had previously performed the same job for Kenyon Trucking,
who had the NBB contract before Decker, and they were paid overtime with Kenyon. DeHerrera
shared this with Griego, and said a lot of the drivers knew that the company that previously had
the NBB contract had paid the drivers overtime. (Tr. 33–534.) 15
F. Incidents Involving Griego in Early 2013
On February 5, 2013, Griego was working the night shift. When he pulled into the res
there were some vehicles parked in an area that made it difficult for Griego to pull in. Griego 20
approached the other drivers and asked them to move. One of the drivers, who worked for a
company called Gulick, told Griego he was not going to move and he had NBB’s permission to
park there. Griego told him that was not NBB’s policy, and he was not supposed to park there.
The other driver got out of the vehicle and chest bumped Griego, repeating he was not going to
move his vehicle. 25
NBB uses Fleming Security at the res. Griego’s brother, Leonard Griego (L. Griego), is
the security guards’ supervisor. Griego called security, who in turn called 9-1-1. A security
officer, Mathew Penov, wrote a report stating that he had received a call from Griego at 10:30
p.m. requesting to have a Gullick driver move because he was blocking access to the docks. He 30
received a second call shortly afterward sating that the Gullick driver had attacked Griego. He
called 9-1-1 and the police were dispatched. When the police arrived, Penov spoke to both
parties and asked the Gullick driver to leave because he was not scheduled to pick up his load
until 6 a.m. the following day. The Gullick driver had his on-site sleeping privileges suspended
for the night and was told to come back 30 minutes before he was scheduled to pick up his load. 35
(GC Exh. 11.) Later that night, in the drivers’ room, Griego told Johnson what had occurred.
DeHerrera and driver Eric Merkner were present at the time. (Tr. 155.)
In February 2013, Griego’s wages were garnished for back taxes owed to the State of
Colorado. He was notified about this by a letter from Lackner. Griego called Decker’s human 40
resources office in Fort Dodge and spoke with Nancy Long, who was in charge of payroll. He
asked her about the letter and said if it was not a legal document Decker would be liable for
anything that was taken out of his check. Long referred Griego to her supervisor, Brad Batey,
who was the assistant treasurer. Griego called Batey and left a voicemail, which was transcribed.

8 Griego was involved in an accident that was determined by the police to be the fault of another
driver. He did not lose his safety bonus as a result of this accident.
JD(SF)–46–14
10
(Jt. Exh. 1.) Griego and Batey spoke and the conversation was similar to the one between
Griego and Long. After the call, Batey called driver services and the matter was referred to
Wallace.
Griego then spoke with Wallace and repeated that Decker would be liable if the letter he 5
received was not a legal document. Griego said that Decker was breaking the law and he had an
attorney working on the issue. Wallace ended the conversation because he said if Griego had an
attorney, then his attorney needed to talk to Decker’s legal department. (Tr. 799.) Griego was
not disciplined at the time.
10
G. Drivers’ Pursuit of Overtime and Wallace’s Visit to NBB
In early March 2013, Griego and DeHerrera discussed getting an attorney to pursue the
overtime issue. DeHerrera and Griego each called attorneys from a list DeHerrera had received.
They met with Attorney David Miller later that month. Greigo asked Johnson if she would be 15
interested in getting on board if they pursued an overtime claim, and she said she was interested.
(Tr. 636, 638.) Griego also told driver Wade Schnabel that he had a lawyer and asked if he
wanted to be involved in a lawsuit for overtime pay. Schnabel said he was not in favor of
pursuing overtime.
20
A couple days later, Schnabel asked driver Ron Carvalho if Griego had approached him
about a potential lawsuit about overtime pay. Carvalho said he had not been approached.
Schnabel told Carvalho that Griego and DeHerrera had approached him. Hutchins separately
asked Carvalho if anyone had approached him about a potential lawsuit against Decker for
overtime. Hutchins said DeHerrera and Griego had raised the topic with him. 25
On April 12, 2013, Johnson received an evaluation of her safety and compliance. She
received four points, which put her in the highest category of “Preferred Record.” (GC Exh. 23.)
On April 29, Carvahlo called Decker’s corporate offices and spoke with McNealy. 30
Carvahlo said Schnabel and Hutchins had told him about potential lawsuit against Decker
regarding overtime. McNealy asked if Carvalho had been asked to join the lawsuit and he
responded that he had not, but told her that Schnabel and Hutchins had been approached.
McNealy asked if Carvalho knew who was involved in the lawsuit, and he said Griego and
DeHerrera had approached Schnabel and Hutchins, and he suspected Johnson was involved. 35
Carvalho decided to share this information with McNealy because he was concerned NBB would
not renew its contract with Decker if drivers started a lawsuit. The call lasted about 5 minutes.
McNealy informed Wallace of the call the same day. (Tr. 863.) On April 30, at 8:28 a.m.,
McNealy also sent an email to Dale Decker stating that she had received a call from Carvalho
stating Griego, Johnson, and DeHerrera had gotten an attorney to go after Decker for unpaid 40
overtime. She attached a Department of Labor (DOL) fact sheet in support of Decker’s
contention that the NBB drivers were not entitled to overtime. She noted that Carvalho also had
mentioned that these three employees were not doing pre-trip inspections and Lackner was just
letting it go. (Tr. 418–423; GC Exh. 15.)
45
Wallace traveled on Decker’s private jet to Fort Collins the morning of April 30 to speak
to the drivers. He did not give Lackner or any of the drivers advanced notice of his arrival.
JD(SF)–46–14
11
Wallace claimed the purpose of his trip was to talk to the drivers one-on-one to hear their
concerns. He carried his business cards along with the DOL fact sheet. He brought the DOL
fact sheet to have on hand if there were any concerns or questions about overtime. (Tr. 800–804.)
Wallace interviewed the drivers and later recounted his recollection of the interviews in a 5
May 3, 2013 memorandum he shared with McNealy, Dale Decker, Owner Don Decker (Dale’s
father), Vice President of Safety and Compliant Jim Wilkins, and Chief Executive Officer Tim
Burns. (GC Exh. 12.)
Wallace interviewed Merkner first.9 (Tr. 805–806.) By Wallace’s report, Merkner10
reported that he loved his job, but he disliked DeHerrera. Merkner also said he had no problem
with the overtime arrangement, and he would be upset if the others “mess[ed] up a good thing.”
He complained about other drivers who were lazy and “screw” the rest of them. Merkner said
there were three “troublemakers” and Lackner knew who they were but would not do anything
about it. He also complained that Johnson did not have to rotate shifts like the rest of them and 15
when others covered her shifts, she did not pay them back. Wallace observed that once Merkner
knew he had his ear, he “continued to bend it,” even hunting Wallace down each time he visited
the site. Merkner became more animated about the “troublemakers” and used the “F word”
often. (GC Exh. 12.)
20
Wallace next approached DeHerrera, who was working the day shift. Wallace
approached him and introduced himself. DeHerrera recalled Wallace stating he was there about
the overtime issue, and that employees had called Decker’s main office about it. Wallace
explained to DeHerrera that Decker was exempt from paying overtime, and handed him a paper
he had in his car on the topic. When asked what he thought about the overtime issue, DeHerrera 25
said that he would be interested in receiving overtime. Wallace asked if DeHerrera knew whether
any attorneys were involved. DeHerrera responded that he did not know. He then volunteered
that he did have an attorney for a work injury he had sustained to his shoulder.10 DeHerrera
complained that there was favoritism toward Johnson. Before their conversation concluded,
Wallace said there was going to be a mandatory meeting for all drivers. (Tr. 556–561, 582.) 30
Wallace’s notes about his interview with DeHerrera started out by stating that he seemed
soft-spoken.11 He recalled DeHerrera stated that Johnson seemed to be favored because she did
not have to rotate. Wallace further noted that DeHerrera mentioned his shoulder injury several
times, and said he had an attorney working on it. Wallace was “very leery” of DeHerrera’s 35
intentions, and perceived he was trying to look for any legal liability against Decker. He
complained that Lackner accused him of stealing an air hose they all use. DeHerrera expressed
his dislike for Merkner, and stated he uses the “F word, N word and the C word” when talking
about Johnson. (GC Exh. 12.)
40

9 Wallace did not testify about the contents of this conversation, and Merkner did not testify at the
hearing.
10 DeHerrera perceived that this comment prompted Wallace to believe he had been talking to Griego
because DeHerrera had introduced himself as “Joe” to Wallace.
11 Wallace did not testify about the content of his conversation with DeHerrera.
JD(SF)–46–14
12
DeHerrera warned Johnson that Wallace was at NBB asking about overtime and talking
to an attorney. She therefore was not surprised when Wallace approached her when she came on
shift that evening. A load was waiting for delivery, so Wallace told her to take her load and he
would talk to Griego first. Johnson checked the mirrors and the brakes, but did not look under
the hood. Merkner, who had driven the truck on the prior shift, had not reported any problems 5
with it so Johnson was satisfied it was safe to operate. (Tr. 641–642.) She did a pre-trip
inspection later in her shift. (Tr. 650.) According to Wallace, Johnson hooked up her load and
failed to do a pre-trip inspection, even though the load had not been staged. (Wallace 816–817.)
At some point, Griego called Lackner and asked if he knew Wallace was there. Lackner 10
responded that he did not.
Griego was scheduled to start his shift at 5:30 p.m., and he showed up to work at around
5:20 p.m. He usually rode a motorcycle to work, but he had borrowed his brother’s truck
because a blizzard was forecast. DeHerrera had called Griego at around 4:30 p.m. to warn him 15
that Wallace was there and to see if he needed his shift covered because he knew Griego had
vehicle problems. Griego recorded his interaction with Wallace. (GC Exh. 7.)
Wallace approached Griego and introduced himself. After exchanging some pleasantries,
Wallace said he was going to try to meet with each of the drivers individually and hold a 20
mandatory meeting with all the drivers before he went back to Iowa. Griego responded by
saying, “Alright.” Griego then told Wallace not to do it on a snow day, and attempted to explain
that he had his brother’s truck. Wallace interrupted and said “I’ll do it when I do it. It’ll be
mandatory.” Griego said he rode a motorcycle, and Wallace told him he would need to find a
different mode of transportation if it snowed because he (Wallace) was only there a short time25
and if he called a mandatory meeting, it would be mandatory. When Griego said his only mode
of transportation was a motorcycle, Wallace said he could give him a ride. Griego responded,
“Well that’s fucking good. I appreciate that.” The two of them went back and forth, with
Wallace stating he intended to hold the meeting, and Griego continuing to say he could not get
there on his motorcycle if it snowed. Wallace continued to offer Griego a ride. The two spoke 30
over each other with elevated voices. After some conversation, Griego said, No, no, no, no.
Don’t, don’t do this to me.” He explained that this was in response to Wallace putting his hand
in his face. After more similar banter about the meeting and Griego’s transportation, Griego
stated, “Well, I’m just letting you know so you don’t put your hand in my face.”12 Wallace
claimed he put up his hand because Griego was approaching him while raising his voice. (Tr.35
809–810.)
After a brief break, the conversation continued. Wallace told Griego there had been some
feedback at the corporate office that there were problems, so Wallace wanted to visit with
everyone to try to sort things out. Griego started up his tractor to check his gauges and the two 40
discussed how the shifts worked. Griego then started talking about drivers’ attitudes, and how
some racial and other derogatory comments have occurred and remained unaddressed. Griego
also told Wallace that drivers from Werner were getting in the Decker drivers’ way at the res.

12 DeHerrera heard Griego ask Wallace to lower his hand and Wallace saying his hands weren’t up
(Tr. 565.) At his unemployment compensation hearing, Griego said Wallace did not raise his hand. He
explained that he did not remember this until he reviewed the recording. (Tr. 332.)
JD(SF)–46–14
13
Wallace asked Griego if he would get a call when he needed to hook up to a load, and Griego
responded that he would.
Wallace pressed for detail about his complaints, and Griego said he had heard drivers
refer to Johnson as a “cunt” and a “bitch.” Wallace asked if these comments took place in front 5
of a supervisor, and Griego responded that they had. Wallace responded that in order for a
reprimand to ensue, he would have to hear the comments or have multiple people tell him that a
particular employee was making the comments. He proceeded to give an example from a
situation that had occurred at another company.
10
Griego expressed his belief that Lackner had not been proactive enough. He also told
Wallace that there were issues with Hydra drivers being in the Decker drivers’ way and a couple
drivers having face-to-face confrontations with Hydra, and Lackner did not address it when it
was brought to his attention.
15
Wallace said he was in Fort Collins for a short time and he needed to interview everyone
and figure out what the problems were within the next 24 hours. Wallace then said one of the
things he heard was the drivers were upset about not getting paid overtime. Griego responded
that the lack of overtime had been an issue since he worked there and that drivers had talked
about it since Decker got the contract with NBB. Wallace asked him if this was true, and Griego 20
affirmed it was. Wallace then asked why the drivers hired on when they knew Decker did not
pay overtime. Wallace said Decker was exempt from paying overtime, and told Griego that he
had paperwork with him to show this. Griego said he’d heard Wallace was “flashing paper
around.” Wallace then said if somebody wanted to get an attorney, that was up to them. He said
he wanted to clear things up because it seemed like everyone was “pissed” all the time. Griego 25
responded that it was frustrating sometimes to come to work. Wallace replied that there were
other jobs out there, and Decker was not a prison. Griego commented, “It is what it is” and
Wallace said it looked like a “gravy” job to him, with the rotating schedule of 3 days off one
week and 4 days off the next.
30
The two of them discussed the rotating schedule, and Griego expressed that some of the
drivers minded it, but he did not. Wallace said he had heard complaints of favoritism, and
Griego mentioned that certain guys made a bigger issue out of it, referencing Merkner in
particular. After some more conversation, Wallace asked Griego the one thing he would fix if he
could. Griego said he could see where they were coming from with the overtime thing, and he 35
also mentioned 24-hour straight shifts. Wallace asked how shifts needed to be covered, and
Griego explained that it was hard to get vacation covered and complained that Lackner did not
step up to fill in. Griego mentioned that tempers can get short when issues don’t get addressed,
and Wallace responded, “Are you short here?” Griego responded that he was just honest, and
elaborated on this with an example. Wallace said, “But you don’t have a short fuse?” Griego 40
said he did not think he had a short fuse, but he was really ticked off with Wallace being there
and with the mandatory meeting. He then went on about issues with Lackner and scheduling
him to work during snow storms without checking to see if other drivers were available. They
discussed the mandatory meeting once again, in a circular manner, covering the same territory
they previously had covered. 45
JD(SF)–46–14
14
At this point, after Wallace and Griego had talked for nearly 30 minutes, Griego got a call
on his cell phone telling him a load was ready to go. After hanging up the phone, Griego
expressed to Wallace his belief that Lackner was a nice guy, but he was non-confrontational and
thought issues would just go away if he did not deal with them. Wallace asked Griego what he
would do in Lackner’s shoes and whether he would be able to deal with the complaints. Griego 5
responded that he would, but realized that some of the complaints were petty bullshit, and again
singled out Eric, who he believed was “just bitching, bitching and bitching and bitching and
bitching.” Wallace tried to ask what Eric was bitching about, and Griego responded,
“Everything,” and then elaborated in a long-winded manner. Griego then went back to talking
about drivers parking in the wrong place and using inappropriate language. Wallace asked how 10
often the drivers saw Lackner, and Griego responded they rarely saw him. Wallace asked if
Griego had been tipped off about his presence, and Griego said he had before he even arrived at
work. A short time later, Johnson pulled up and Wallace told Griego he was going to talk with
her.
15
Wallace went to talk to Johnson and Griego started up his truck. There was a period of
time when Wallace was unable to see Griego because a trailer was in between them. (Tr. 867.)
He hooked up to the trailer, hooked up the electrical lines, turned on the marker lights and hazard
lights, looked over the trailer and tires, got the bill of lading from the back of the trailer, and
proceeded to the res. He did not inspect the engine compartment because he had been talking to 20
Wallace and was satisfied with the condition of the truck. He did not perform a complete pre-
trip inspection prior to leaving for the res. Griego performed a complete pre-trip inspection after
his delivery to the res and he turned in a completed pre-trip inspection form at the end of his
shift. (Tr. 243–248.)
25
Wallace’s notes from the conversation with Griego reflect that Wallace perceived Griego
as “an extreme ‘Hot Head.’” He described the conversation about the meeting and said Griego
“got in [his] face.” Wallace wrote that he later learned Griego had gotten into arguments with
NBB staff at the brewery and the res, and that in one case 9-1-1 was called to break up an
altercation between Griego and an OTR driver. Wallace could tell that Griego was one of the 30
opponents of Decker’s overtime policy. He also perceived him as “the courage and the muscle
behind the decisions that the trouble makers pursue.” Wallace noted that Griego did not perform
a pre-trip inspection and that he later sat on a load the last 45 minutes of his shift. He further
noted Griego’s dislike for Merkner, and his report that he made rude comments about Johnson.
(GC Exh. 12.) 35
Wallace helped Johnson unhook her truck and said he was going to hold a mandatory
meeting with employees the following day. He asked her if she had any concerns, and she
replied that she had issues with the trucks not being fixed, Lackner not being around, and
problems with Merkner. With regard to Merkner, Johnson told Wallace that he had, behind her 40
back, called her a cunt, a fucking bitch, and a lazy bitch, and Lackner had just laughed about it.
Wallace asked if he called her those names directly, and she said no, but he would mutter them
and when she asked him to repeat himself, he would refuse. Wallace said he would take these
issues back to corporate. (Tr. 643–645, 817–819.)
45
It started to rain, so they moved into Wallace’s car. Wallace said he head drivers were
talking to an attorney about overtime and he asked her about it. (Tr. 647.) Wallace denied that
JD(SF)–46–14
15
he mentioned rumors about a lawsuit. (Tr. 820.) According to Johnson, Wallace pulled out a
piece of paper from a folder on his dashboard, and said interstate truck drivers were not entitled
to overtime. He said they had a lot of attorneys look into it, they did not owe overtime, and if
anybody got an attorney, Decker would fight it and win. (Tr. 644–647.) According to Wallace,
Johnson told him she wished the drivers could get overtime but she had no problem with the 5
overtime issue. (Tr. 820.)
According to Johnson, Wallace also said that he saw that she and Griego had not done
pre-trip inspections, but he realized his presence may have thrown things off so he did not intend
to write them up. (Tr. 647–648.) Wallace recalled pointing out that she had not done a pre-trip 10
inspection. (Tr. 870.) At that point, Lackner came to the window and started talking to Wallace.
(Tr. 680.) Wallace did not ask Johnson if she had talked to anyone about overtime pay, and
Johnson did not tell Wallace she and other drivers had talked about retaining an attorney to look
into overtime pay. (Tr. 687–688.)
15
Per Wallace’s notes, he perceived Johnson as nervous at first, and noted that Merkner
was her main concern. She said that he mumbled bad things about her. She expressed that
Merkner had anger issues and said she did not feel safe working with him. She also said other
drivers had heard Merkner talk badly about her and had told her about it. Wallace noted that
when asked about the overtime situation, Johnson said she would like to get overtime but it 20
wasn’t a big deal to her.13 She expressed that she loved her job and would not want to lose it.
They talked a bit more about why Decker was exempt from overtime and she seemed interested.
Wallace concluded by stating, “I know she is one of the 3 pushing this and I do not trust her. I
also witnessed her NOT performing a pre-trip inspection.” (GC Exh. 12.)
25
The evening of April 30, Wallace met Merkner, Carvalho, and Schnabel at the
Wellington Grill for dinner. Merkner texted Carvalho that Wallace wanted to talk about Lackner
and the overtime policy. (Tr. 427.) Toward the beginning, they discussed overtime. Wallace
had the DOL fact sheet with him. (GC Exh. 15 pp. 2–3.) When Wallace tried to show them the
document, they said they knew they were not entitled to overtime. Wallace said he was making 30
the sheet available to everybody and asked if they had any questions about it. (Tr. 431–432).
They also discussed Lackner’s unavailability at the worksite and his failure to purchase
supplies and make repairs in a timely manner. Schnabel complained that Lackner did not cover
shifts when an employee needed a day off. He also expressed his belief that Johnson received 35
favoritism because she was not required to rotate shifts. Toward the end of dinner, Carvalho
asked if Wallace had been notified about a physical altercation between Griego and an over-the-
road driver . Carvalho told Wallace he did not witness the event and did not think he mentioned
who the aggressor was. He mentioned that Griego had said the supervisor at NBB called 9-1-1.
Wallace “tried to delve into it” but all Carvalho could report was what he heard Griego tell 40
Lackner. (Tr. 436.) Schnabel recalled that Griego told him and Carvalho about the incident, and
Lackner was not present. He conveyed to Wallace that he learned about the incident “by
hearsay.” (Tr. 499–500.) Schnabel also said that Griego was a disgruntled employee, and
referred to him as a “hothead.”14 Merkner and Wallace had dinner, and the others just had

13 In his affidavit, Wallace stated he and Johnson did not discuss overtime pay. (Tr. 857.)
14 Schnabel said he never witnessed any incidents of Griego getting angry at work. (Tr. 507.)
JD(SF)–46–14
16
drinks. Merckner, Schnabel and Carvalho were not paid for their time at the dinner, but Wallace
paid the bill.
With regard to Carvalho, Wallace’s notes stated that he was eager to share his issues, all
of which were centered around Lackner’s lack of leadership. He complained mostly about 5
Lackner not taking care of the equipment when they reported something was wrong, and his
failure to keep supplies on hand. He also complained that Lackner provided no help covering
their shifts and just left it to the drivers. Wallace perceived he was not a fan of the “three trouble
makers,” Johnson, DeHerrera and Griego. Carvalho expressed that he loved his job and would
be very upset if the others “messed things up” for them. He had no issues with overtime. (GC 10
Exh. 7.)
Wallace’s notes reflect that Schnable was very quiet and had little to say. His main
complaint was that Johnson was favored and Lackner should step in to cover shifts. He had no
issues with the overtime situation. (GC Exh. 12.) 15
The morning of May 1, Griego finished delivering his last load at 4:30 a.m. He completed
his post-trip inspection and other paperwork, and got things ready for the next driver. According
to Griego, at about 5:30 a.m., he and Johnson then went to the drivers’ room to deposit their
paperwork. Johnson recalled that she got out of her truck at about 5:20 a.m. and went into the 20
break room. Neither Griego nor Johnson received any calls during this time period. (Tr. 249,
52–653.) Griego was there and they stayed until they clocked out at 5:45 a.m. Wallace came
into the drivers’ room and introduced himself to Hutchins, who was just coming on his shift.
Griego and Johnson clocked out at 5:45 a.m.
25
Wallace came into the break room at around 5:25 or 5:30 a.m. and Hutchins came in
about 5 minutes later. Wallace introduced himself to Hutchins and said he was there to talk to the
drivers. Johnson did not see Lackner on the premises during this time period. (Tr. 654–655.)
Wallace initially testified he got to the brewery at 5 a.m., but when confronted with his 30
affidavit on cross-examination, testified he arrived at the brewery a few minutes after 5 a.m. (Tr.
873–874.) He saw that the truck Griego drove was hooked to a trailer, pulled out of the dock,
and running. As Wallace was walking toward the drivers’ room, Griego was coming out, so he
let Wallace in and proceeded toward his truck. Lackner then came into the drivers’ room and
asked how long Griego had been sitting outside. Wallace responded that Griego had been there 35
since 5 a.m. and Lackner said Griego knew better and he was going to talk to him. Wallace went
outside to look for a shovel because it had been snowing. When he came back in the drivers’
lounge at about 5:25 a.m., Johnson and Griego were there. Driver Allen Gerstner came on shift
and took the load that Griego had staged. (Tr. 813–816.) Wallace did not take any action
against Griego, and left the matter up to Lackner. (Tr. 877.)40
Later in the morning, Wallace met with Allen Gerstner. According to Wallace’s notes,
Gerstner loved his job, and his only complaint was that Johnson was not required to rotate shifts
like the other drivers. The overtime arrangement was fine with him. He did not mention anything
about Merkner’s language or behavior. (GC Exh. 7.) 45
JD(SF)–46–14
17
Wallace also met with Stewart Hutchins. He reported that Hutchins was very concerned
the others were going to “mess up a good thing.” He said he was approached by DeHerrera to
join him in getting an attorney for the overtime situation, but he told DeHerrera he was not
interested and, again, they were “messing with a good thing.” According to Wallace’s report,
Hutchins loved his job and liked the time off they got. He did not have any concerns about 5
Johnson not rotating shifts. He was the only driver who praised Lackner, stating he did a good
job. Hutchins did not mention Merkner’s language or behavior. (GC Exh. 7.)
Wallace met with Lackner at a Denny’s restaurant later that morning to discuss what he
had learned from the drivers. (Tr. 823.) 10
Wallace did not hold the mandatory meeting. He explained that his findings were
centered around Lackner’s poor performance, and he did not feel it was appropriate to discuss
that among the employees he supervised. (Tr. 847.)
15
H. Response to Visit and Disciplinary Actions
On May 2, Wallace sent a memorandum about his visit to Fort Collins to McNealy, Dale
Decker, Don Decker, Wilkins, and Burns. In the introductory paragraph, Wallace wrote, “On
April 29, we received an anonymous call from one of the Shuttle drivers tipping us off that 3 of 20
the other drivers were trying to get them all together to ‘come after Decker’ for unpaid
overtime.” He then said that after his visit, he “learned there is a lot more going on there than we
knew about,” and summarized his findings. (GC Exh. 17.) He also circulated his May 3
summary of his interviews with the drivers, described above.
25
The group met on May 3 to discuss whether to discipline any NBB employees. They
determined that Merkner would be written up for his language about Johnson. They also
switched his shift so he and Johnson would not see each other. They decided to write Johnson
up for failing to conduct a pre-trip inspection, and terminate Griego. In making these
determinations, Wallace considered that all employees had received verbal warnings for not 30
doing pre-trip inspections at the beginning of their shifts and for failing to use chocks. Wallace
believed that Johnson also had another warning for failing to do a pre-trip inspection. He also
considered Griego’s previous accident for failing to hook up air lines properly. (Tr. 824–827.)
On May 6, Wallace came to Fort Collins to administer discipline. Todd Donnelly, who 35
runs a loading service for Decker in Fort Dodge, accompanied Wallace to Fort Collins. (Tr.
831–832, 844.) McNealy and Dale Decker also came and, as a team, they administered the
discipline. They did not schedule meetings with the drivers, but instead planned to meet with
them individually in the drivers’ room when they arrived for their respective shifts. (Tr. 828.)
40
At around noon on May 6, Wallace and McNealy disciplined Lackner at the same
restaurant where they had met on May 1. (Tr. 828, 844.) Lackner was given a written warning
dated May 6, 2013, setting forth the deficiencies drivers had reported to Wallace. Specifically,
he was informed that drivers seldom saw him, when they called him to discuss issues, their
concerns went unaddressed, he ignored subpar performance to avoid confrontation, he did not 45
follow up to ensure his messages on the white board were addressed, he did not cover shifts
proactively when drivers called in or needed a day off, he acknowledged racial or sexual
JD(SF)–46–14
18
comments were made but he did not report them to HR, and he did not keep supplies on hand.
Lackner was notified that he needed to immediately change his behavior and that his
employment was in jeopardy. Finally, he was notified that Decker’s progressive discipline
policy would apply to any further incidents, up to and including termination. Lackner signed the
document.15 He was also given a performance improvement plan (PIP) spelling out in detail how 5
he was expected to improve. Lackner signed his PIP on May 6. (GC Exh. 16.)
Wallace asked Carvalho, who was partnered with Schnabel, if he would mind switching
partners. Carvalho said he would work with anyone other than Griego because he viewed him as
a “hothead.” Merkner started working with Carvalho. At around noon, Schnabel met with 10
Wallace, Dale Decker, and McNealy. Wallace asked Schnabel if he would switch shifts to work
the other half of the week, and he agreed. Schnabel also said Griego had approached him and
said he had a lawsuit for overtime. (Tr. 482–484.)
Merkner was the first driver the management team met with in the drivers’ room. (Tr. 15
828.) He received a letter of warning and was notified he was being moved to a different shift.
The letter of warning, dated May 6, cited to profane language toward coworkers constituting
harassment. Merkner was informed that his conduct violated company personnel policy sections
501 and 504,16 and was reminded of Decker’s zero-tolerance standard for harassment or
discrimination. The letter concluded by informing Merkner that his employment was in 20
jeopardy, and any further violations of company policy and procedure would result in
termination. (GC Exh. 18.)
While Mernker was in the drivers’ room Griego came to work and encountered Wallace,
who had stepped outside when he heard Griego’s motorcycle. Wallace told Griego to wait, 25
because they were talking to another employee in the drivers’ room, but Griego walked past
Wallace and went into the drivers’ room. Wallace and Donnelly, who had been waiting by the
entrance, followed Griego. Wallace told Griego it was not necessary for him to clock in because
he was being terminated. According to Griego, when Griego asked why, Wallace responded
“Just cause.” When he asked Wallace to elaborate, he said, “Just ‘cause I can.” (Tr. 255.) 30
Wallace recalled saying Griego was terminated “for just cause.” Griego asked if he was being
terminated because of his race, and McNeely responded that race was not the reason. (Tr. 834.)
Griego handed over his key card and left the room. He did not receive a termination letter or
other paperwork at the time. Griego had not received written discipline nor did anyone speak to
him about his performance prior to his termination. 35
At the hearing, Wallace said his reasons for terminating Griego were his volatile and
aggressive behavior toward him, the incident when 9-1-1 was called, failure to do a pre-trip
inspection, and sitting on a load for more than 45 minutes. He also looked at Griego’s personnel
file, including the garnishment issue, and considered that Griego had been employed for less than 40
a year. (Tr. 835–836.)
Johnson arrived at work at 5:30 a.m. on May 6. While she was going to clock in,
Wallace stopped her and said they were talking to Eric and she needed to wait a few minutes.

15 He dated it May 5, but this is apparently an error.
16 This appears to be a typo, and should be sections 501 and 503.
JD(SF)–46–14
19
(Tr. 656, 841.) Griego came out and told her he had been fired. When she asked why, he said
would not give a reason. Johnson went into the break room where Wallace and McNealy were
waiting along with two men she did not recognize. McNealy said Merkner had been written up
and moved to a different shift. Wallace also informed her she was being written up for failure to
do a pre-trip inspection, and informed her that Lackner reported that she never did pre-trip 5
inspections. Johnson asked how Lackner would have known if she had done a pre-trip
inspection because she had not seen him for the past 2 months. Wallace approached her and
responded, “Jennifer, we took your issues back to corporate and we took care of those issues.”
Johnson was intimidated so she did not say anything else. (Tr. 657–658.) She did not mention
that Lackner had permitted the drivers to do pre-trip inspections later in their shifts. (Tr. 843.) 10
The letter of warning stated that Johnson had failed to complete a pre-trip inspection
during Wallace’s recent trip to NBB. It also stated that Lackner had given verbal warnings to all
shuttle drivers on July 16, 2012, regarding filling out all paperwork completely, including pre-
trip inspections. The letter stated that Johnson’s actions were in direct violation of company 15
policy and FMCSA regulations. Specifically, the letter said Johnson violated “Section 501” of
Decker’s personnel policies entitled “Employee Conduct and Work Rules.” It further stated, “It
is not possible to list all forms of behavior that are considered unacceptable in the workplace;
however, insubordination is specifically noted.” The letter concluded by warning Johnson that
she needed to change her behavior immediately, her employment was in jeopardy, and further 20
violations of company policies or procedure would result in application of Decker’s progressive
discipline policy, up to and including termination. (GC Exh. 21.) Johnson signed the letter and
went to her truck. (Tr. 660.)
Johnson had previously received two verbal warnings during her first year of 25
employment. A letter dated July 1, 2011, was addressed to Johnson and signed by Keith
Lamfers, the director of safety and compliance. The letter referenced a motorist’s complaint
about Johnson at the corner of Interstate 25 and Vine. It warned that further performance issues
of company policy violations could result in further discipline, up to and including termination.
(R Exh. 8.) Johnson did not recall receiving the letter. (Tr. 674.) 30
Griego filed for unemployment compensation through the Colorado Department of Labor
and Employment. In preparation for Griego’s unemployment compensation appeal hearing,
Decker provided a letter dated July 23, 2013, with some documents attached. The letter stated
that Griego was discharged “for misconduct in that he had unsatisfactory job performance, a 35
pattern of confrontational behavior, and multiple company policy violations.” (GC Exh. 9.) The
letter stated that on July 16, 2012, Griego had received a verbal warning regarding filling out all
paperwork completely, and a second verbal warning about using chocks and not running them
over. The letter also outlined the incident where Griego failed to hook up the lines to the trailer,
resulting in damage to the tractor. In addition, the letter stated that Griego was confrontational 40
with Wallace on May 1, and Wallace had also learned that Griego had arguments with NBB
staff, one of which resulted in the police being called. This same day, Wallace had witnessed
Griego failing to complete a pre-trip inspection and sitting on a load for 45 minutes.
A May 7, 2013 termination letter signed by McNeely was attached to the July 23 letter. 45
The letter confirmed Griego’s termination on May 6, for unsatisfactory job performance. The
letter went on to explain when his benefits would terminate and the time window for picking up
JD(SF)–46–14
20
any personal property. Griego had not previously seen the termination letter. (Tr. 286–288.)
Wallace did not recall seeing the termination letter prior to meeting with Griego to terminate
him, and did not know whether it had been drafted prior to the meeting. (Tr. 884.)
When Decker terminates a driver, it fills out a Driver-a-Check (DAC) report which is 5
entered into a nationwide database permitting potential employers to research drivers. Decker
did not report on the DAC form that Griego had been disciplined and terminated for just cause.
(Tr. 899.) Decker’s DAC report for Griego reflected his work record was satisfactory, and the
boxes that would indicate a “log violation” and/or “company policy violation” were not checked.
(GC Exh. 10.) 10
Miller first contacted Decker on May 30, 2013, to inform them that he represented Scott
Johnson, Joe Cypress, Tom Lark, Jennifer Johnson, DeHerrera, and “Joe Garcia” (a mistake for
Griego) in a lawsuit pursuant to the FLSA. (R Exh. 15; Tr. 761.)
15
I. Service of Subpoena on Jennifer Johnson
On March 31, 2014, Johnson was served with a subpoena duces tecum at NBB. (GC
Exh. 23; Tr. 668–669.) Subpoena B–727540 requested that Johnson provide all documents from 20
January 1, 2013, to the present, relating to: (1) all documents relating to any she had with the
NLRB concerning this case and the FLSA case; (2) all documents relating to any
communications she had with Charging Party Miller concerning this case and the FLSA case; (3)
all documents relating to any communications she had with current and former Decker
employees regarding this case and the FLSA case; (4) all documents she had circulated, 25
distributed or provided to any current or former Decker employee concerning this case and the
FLSA case; (5) any and all documents related to her discipline at Decker; and (6) any and all
documents relating to the discipline or discharge of any current and former Decker employee that
she had reviewed, seen, or discussed with the Charging Party and/or current and former Decker
employees. 30
“This case” was defined as Case 27–CA–107239. The NLRB was defined as “Region 27
of the National Labor Relations Board, the National Labor Relations Board, its officers, agents,
and assigns.” The FLSA case is defined, by citation, as the class action lawsuit for unpaid
overtime Miller filed in U.S. District Court for the District of Colorado on September 18, 2013. 35
The term “document” is broadly defined, and does not exclude an affidavit given to a Board
agent during the investigation of an unfair labor practice charge. (GC Exh. 24.)
40
III. DECISION AND ANALYSIS
A. Credibility Legal Standards and General Findings
45
A credibility determination may rest on various factors, including “the context of the
witness' testimony, the witness' demeanor, the weight of the respective evidence, established or
JD(SF)–46–14
21
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole.” Hills & Dales General Hospital, 360 NLRB No. 70, slip op at 7 (2014),
citing Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001). In making credibility resolutions, it is well established that the trier of fact may
believe some, but not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 5
749 (2d Cir. 1950).
The General Counsel has requested that I draw an adverse inference based on the
Respondent’s failure to call Lackner as a witness. The Board has agreed that “when a party fails
to call a witness who may reasonably be assumed to be favorably disposed to the party, an 10
adverse inference may be drawn regarding any factual question on which the witness is likely to
have knowledge.” International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861
F.2d (6th Cir. 1988). This is particularly true where the witness is the Respondent’s agent.
Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006). As the only onsite
supervisor with authority over the drivers at NBB, he is the only person capable of responding to 15
many of the relevant facts concerning the drivers. I find, under the circumstances present here,
that an adverse inference is appropriate. As such, where Lackner would have been assumed to
testify about an asserted fact, I will presume his testimony would be adverse to the Respondent
and favorable to the General Counsel. These instances are pointed out specifically below.
20
Where there is inconsistent evidence on a relevant point, my credibility findings are
incorporated into my legal analysis below. My general observation, however, was that Jennifer
Johnson was extremely forthright, honest, and thoughtful when she testified.17 She did not
appear to be embellishing her testimony, and was forthcoming about the fact that she did not
perform a pre-trip inspection prior to taking her first load on April 30. JR DeHerrera was not the 25
most articulate witness, but I did not find this to be indicative of credibility. His testimony was
consistent with other witness’ testimony and with the relevant events that were unfolding. As
current employee testifying against their own pecuniary interests, I find their testimony to be
particularly reliable Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill,
131 NLRB 1304, 1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47, 48 (1971); 30
Federal Stainless Sink Div. of Unarco Industries, 197 NLRB 489, 491 (1972).
With regard to Griego, I find he was generally credible and forthright when he testified,
though he at times conformed his testimony to further his self-interest, such as his description of
of a “staged” load. While much of Wallace’s testimony is not disputed, it is clear he tried to 35
minimize key aspects of the case that would be harmful to the Respondent. These are discussed
below.
Finally, with respect to the tape recorded conversation between Griego and Wallace, I of
course credit and give more weight to the recorded conversation itself as opposed to either 40
witness’ recollection of it.

17 The Respondent points to inconsistency in that Johnson testified that pre-trip inspections were not
covered during Decker’s orientation, but the evidence shows they were. I do not find this single minor
anomaly detracts from her credibility regarding the material events in this case. See Doral Building
Services, 273 NLRB 454 (1984).
JD(SF)–46–14
22
B. Protected Concerted Activity
Because many of the complaint allegations concern the drivers’ protected concerted
activity, I will begin by addressing this threshold issue.
5
The Board has held that activity is concerted if it is “engaged in with or on the authority
of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882
(1986), affd. sub nom Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 10
(1988). “[D]iscussion of wages is protected concerted activity because wages are a ‘vital term
and condition of employment,’ ‘probably the most critical element in employment,’ and ‘the
grist on which concerted activity feeds.’” Aroostook County Regional Ophthalmology Center,
317 NLRB 218, 220 (1995)(footnotes and internal citations omitted); See also Automatic Screw
Products Co., 306 NLRB 1072, 1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992); Tortillas 15
Don Chavas, 361 NLRB No. 10 (2014). “The requirement that, to be concerted, activity must be
engaged in with the object of initiating or inducing group action does not disqualify merely
preliminary discussion from protection under Section 7.” Fresh & Easy Neighborhood Market,
361 NLRB No. 12, slip op. at 4 (2014).
20
The record in the instant case clearly establishes that employees regularly discussed
wages, and in particular the fact that they were not paid overtime, during the relevant time
period. By April 30, as detailed above, DeHerrera and Griego had both approached other
employees to see if they wanted to join them in a lawsuit against Decker for overtime. There can
be no doubt whatsoever that this constituted protected concerted activity. 25
C. Alleged Interrogations
1. Brenda McNealy
30
Complaint paragraphs 4 and 9 allege that, on about April 30, 2013, Brenda McNealey,
over the telephone, interrogated employees about their protected concerted activities and the
protected activities of other employees, in violation of Section 8(a)(1) of the Act. The General
Counsel bears the burden to prove a violation of Section 8(a)(1) by preponderant evidence.
35
The evidence is undisputed that on April 29, Carvalho called McNealy to report that
some employees were discussing a potential lawsuit for unpaid overtime, and that when
McNealy asked who was involved, Carvalho told her what he knew and what he suspected. As
discussed directly above, the questions McNealy posed related to employees’ protected
concerted activities.40
In assessing the lawfulness of an interrogation under Section 8(a)(1), the Board applies
the “totality of circumstances” test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). “A violation
will be found when, under all the circumstances, the interrogation reasonably tends to restrain, 45
coerce, or interfere with employees in the exercise of the rights guaranteed them by the Act.”
Liquitaine Corp., 298 NLRB 292 (1990.) See also John W. Hancock, Jr., Inc., 337 NLRB 1223,
JD(SF)–46–14
23
1224 (2002). The Board applies an objective standard to this examination. The actual intent of
the speaker or the effect on the listener is immaterial. Smithers Tire, 308 NLRB 72 (1992).
Instead, the key consideration is whether the employer’s actions would coerce a reasonable
employee. Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981); Miller Electric
Pump & Plumbing, 334 NLRB 824 (2001).5
In analyzing the totality of the circumstances, relevant factors include “whether proper
assurances were given concerning the questioning, the background and timing of the
interrogation, the nature of the information sought, the identity of the questioner, and the place
and method of the interrogation.” Bridgestone/Firestone, Inc., 335 NLRB 941 (2001), citing 10
Stoody Co., 320 NLRB 18, 18–19 (1995); Rossmore House, supra at 1178. These factors “are
not to be mechanically applied”; they represent “some areas of inquiry” for consideration in
evaluating an interrogation's legality. Rossmore House, supra, fn. 20. Another factor to consider
is whether the employer had a valid purpose for obtaining the information sought about the
protected concerted activities. NLRB v. McCullough Environmental Services, Inc., 5 F.3d 923 15
(5th Cir. 1993).
As to the nature of the information sought, the relevant consideration is whether the
question appeared to be designed to obtain “information upon which to take action against
individual employees.” John W. Hancock, supra. See also SAIA Motor Freight, Inc., 334 NLRB 20
979, 980 (2001) (interrogations that constitute “a pointed attempt to ascertain the extent of the
employees' union activities” are unlawful). Here, McNealy asked Carvalho if he had been
approached about the lawsuit and if he knew who was involved in the lawsuit. These questions
were a pointed attempt to ascertain which drivers were engaging in the protected concerted
activity of discussing a potential lawsuit for overtime. See Club Monte Carlo Corp., 280 NLRB 25
257 (1986)(questions about protected activity leader’s identity unlawful). At the time, the
lawsuit had not been filed, and Griego, DeHerrera, and Johnson had not disclosed their
conversations about the potential lawsuit to management. Accordingly, this factor weighs in the
General Counsel’s favor.
30
The questioner, McNealy, was a high-ranking official from the Respondent’s corporate
office. This weighs in the General Counsel’s favor. The place and method of interrogation
consisted of a phone call from Carvalho to McNealy, wherein he voluntarily disclosed that some
employees were considering suing Decker for unpaid overtime. Carvalho, for reasons related
only to his self-interest, did not mind telling McNealy what he knew. He liked that they got paid 35
when the brewery was shut down, and he was concerned that a lawsuit for overtime would
jeopardize this arrangement as well as the contract between Decker and NBB. This factor weighs
in the Respondent’s favor.
McNealy did not give assurances to Carvalho that the inquiry was benign or that his 40
response would not result in adverse consequences for Griego, DeHerrera, or Johnson. The
context here, where the individual being questioned initiated the conversation and had incentive
to disclose the names of the individuals engaged in protected activity, does not lend itself to the
usual analysis regarding this factor. Normally, the failure to give assurances would weigh
against the Respondent. The factual context here renders it neutral.45
JD(SF)–46–14
24
Finally, the Respondent did not present evidence of a valid reason for McNealy to try to
determine the identity of the individuals involved in the lawsuit, and no such legitimate reason is
fathomable. Considering the totality of the circumstances, it is clear the questions McNealy
posed to Carvalho “were designed to elicit information concerning his and others
protected/concerted activity,” and therefore violated Section 8(a)(1) of the Act. Hawaii Tribune5
Herald, 356 NLRB No. 63, slip op. at 1, 27 (2011).
The Respondent cites to Heartshare Human Services of NY, to support its position that
there was no interrogation. In Heartshare, an employee reported that an individual named
“Shirley” had approached him and asked questions about the respondent’s wages and working 10
conditions. The facility’s program director asked the employee for a description of Shirley, and
the employee complied with the request. The Board noted that the conversation came about
because the employee had voluntarily shared with management her encounter with Shirley. The
Board emphasized that the questions “did not concern the employees' union sympathies or
activities, but instead were limited to entirely neutral matters, such as Shirley's physical 15
description.” Moreover, the program director did not inquire into the substance of the
employee’s conversation with Shirley.
The Respondent also cites to Wal-Mart Stores, Inc., 341 NLRB 796 (2004), where the
Board adopted the administrative law judge’s dismissal of complaint allegations that an 20
employee who initiated a meeting and, both on his own and in response to questions, voluntarily
disclosed certain information about union activity was interrogated. The General Counsel did
not file exceptions, however, so the Board was not asked to review the administrative law
judge’s findings. Id. at fn 2.
25
I agree with the Respondent that the question McNealy asked was a somewhat natural
follow-up to the information Carvalho volunteered. That is not the standard by which I am
bound, however, and as the vice president of human resources, McNealy’s questions cannot be
considered merely casual conversation. A reasonable employee would view this inquiry as an
attempt to discern who was engaging in this protected activity and, in light of the fact that no 30
legitimate purpose for this was offered, to use it against those individuals. Based on the
foregoing, I find McNealy’s questions constituted an unlawful interrogation.
2. Lonnie Wallace
35
Complaint paragraphs 6 and 9 allege that, on or about May 1, 2013, Wallace interrogated
its employees about their protected activities and the protected activities of other employees.18
a. JR DeHerrera
40
The General Counsel asserts that Wallace interrogated DeHerrera about his protected
concerted activities during their discussion of overtime at NBB on or around May 1.

18 The employees were not named in the complaint. The General Counsel presents argument
regarding DeHerrera and Griego. I therefore will address whether these employees were interrogated,
and, for purposes of this decision, presume there are no allegations with regard to other employees.
JD(SF)–46–14
25
DeHerrera provided unrefuted testimony that during his visit to NBB, Wallace
approached him and introduced himself, and said he was there about the overtime issue. Wallace
asked DeHerrera what he thought about the overtime issue and if he knew whether attorneys
were involved. Wallace said he would like to receive overtime and he was not sure if attorneys
were involved. 5
Though Wallace’s after-the-fact notes do not reflect discussion about overtime, he did not
provide testimony to rebut DeHerrera’s account of the conversation. It is apparent that the notes
do not reflect everything Wallace said, given his testimony that he raised the overtime issue with
all employees he spoke with during his onsite interviews. (Tr. 820.) Though the content of the 10
conversations Wallace had with employees was broader than overtime, it is abundantly clear the
primary purpose of the visit was to follow up on Carvalho’s call to McNealy about three drivers
who “were trying to get them all together to ‘come after Decker’ for unpaid overtime.” (GC
Exh. 17.) Wallace’s May 2 memo to senior management says as much. DeHerrera had
previously been identified as one of the three employees. Finally, Wallace admitted he was 15
“very leery” of DeHerrera’s intentions, and perceived he was looking for “any legal liability”
against Decker. There is no question that Wallace asked DeHerrera about overtime, and I credit
DeHerrera’s unrefuted testimony that he queried the extent of his knowledge about a lawsuit.19
Considering the totality of the circumstances, and applying the factors set forth in Bourne 20
v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), I find the questions amounted to an unlawful
interrogation. Bourne sets forth the following factors as relevant to consider: (1) the background,
i.e., whether the employer has a history of hostility toward or discrimination against protected
concerted activity; (2) the nature of the information sought; (3) the identity of the interrogator,
i.e., his or her placement in the respondent's hierarchy; (4) the place and method of the 25
interrogation; and (5) the truthfulness of the interrogated employee's reply. See, e.g., Sproule
Construction Co., 350 NLRB 774, 774 fn. 2 (2007); Grass Valley Grocery Outlet, 338 NLRB
877, 877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The Board also considers
timing as a relevant factor. See, e.g., Gardner Engineering, 313 NLRB 755, 755 (1994), enfd. as
modified on other grounds 115 F.3d 636 (9th Cir. 1997); Blue Flash Express, 109 NLRB 591 30
(1954). Some of the factors are the same as those used to analyze McNealy’s questions to
Carvalho, while others are different. This is because certain factors are better suited to address
the situation between Wallace and DeHerrera, where the individual being questioned about the
protected activity was actually engaged in the protected activity.
35
As noted above, there was no evidence presented to show Decker had a history of
hostility toward protected activity. This weighs in the Respondent’s favor. The nature of the
information sought was DeHerrera’s view on receiving overtime and whether or not he knew if
attorneys had been contacted. This lies at the heart of DeHerrera’s protected concerted activity
and weighs in the General Counsel’s favor. The identity of the interrogator was a high-level 40
executive who had traveled from corporate headquarters, introduced himself as a vice president
of the Company, and was rarely seen at NBB. DeHerrera had in fact never met Wallace before.
This weighs in the General Counsel’s favor. See Metro One Loss Prevention Services Group,

19 Though, at the time of the hearing, DeHerrera had been off work on workers’ compensation for an
extended time period, he was still an employee testifying against his current employer. This enhances his
credibility, as detailed in the discussion of Johnson’s discipline, infra.
JD(SF)–46–14
26
356 NLRB No. 20, slip op at 1 (2010)(“[C]oercive impact was undoubtedly heightened by the
unusual nature” of the manager’s visit”).
The place of the interrogation was the employees’ regular worksite and the method was
unscheduled interviews during the employees’ regular work hours. They were on the clock and 5
asked by someone high up in Decker’s hierarchy to participate in his investigation. This weighs
in the General Counsel’s favor. As to the truthfulness of the response, it is clear DeHerrera did
not want Wallace to perceive him as an instigator because he answered he did not know if
attorneys were involved when in fact he and Griego had already consulted Miller. Moreover, the
timing of the interrogation, shortly after DeHerrera’s consultation with Miller and his discussions 10
with coworkers about joining a potential lawsuit, and the day after Carvalho’s call, adds to the
coerciveness.
Accordingly, I find the Respondent violated Section 8(a)(1) when Wallace interrogated
DeHerrera on April 30. 15
b. Joseph Griego
20
With regard to Griego, Wallace repeatedly asked him what his specific concerns were,
and Griego told him about different concerns, such as Merkner using foul terms against Johnson,
and drivers from different companies getting in the NBB drivers’ way at the res. Wallace then
initiated the topic of overtime, stating that he had heard that drivers were upset about not getting
overtime. This was clearly intended to elicit a response from Griego, which it did. It also 25
prompted Wallace to ask Griego to affirm how long the employees had been talking about
overtime pay.
Applying the same factors as applied for Wallace’s conversations with DeHerrera, and
considering the totality of the circumstances, I find that Wallace interrogated Griego in violation 30
of Section 8(a)(1). Though not asked as explicitly as with DeHerrera, it is clear the nature of the
information Wallace sought from Griego was his view on Decker’s overtime policy. This is
reflected in Wallace’s notes, where he stated, “I could tell that Joe was one of the opponents of
our OT policy.” (GC Exh. 12.) After bringing up the topic of overtime, Wallace continued to
talk about it, and referenced the paperwork he had with him to show that Decker was exempt 35
from paying overtime. Though Griego responded truthfully to Wallace’s question about the
timing of the protected concerted activity, I find the other factors, discussed in full above and
equally applicable here, satisfy the General Counsel’s burden of proof.
The Respondent cites to Sunnyvale Med. Clinic, 277 NLRB 1217 (1985), to support the 40
contention that “friendly” and “casual” conversations with employees do not constitute unlawful
interrogations. That case involved a conversation between an employee and her personnel
director to whom she was presenting a union dues check-off card. The employee initiated the
meeting as well as the topic of the union, and was on a friendly basis with the personnel director.
By contrast, neither DeHerrera nor Griego were on a friendly basis with Wallace, and his site 45
visit was their first introduction to him. Moreover, neither employee had disclosed their
JD(SF)–46–14
27
concerted activity to management. These distinctions as well as other factual differences
between Sunnyvale Med. Clinic and the instant case render it unpersuasive.
D. Alleged Threat
5
Complaint paragraphs 5 and 9 allege that on or about May 1, 2013, Wallace threatened its
employees with discharge if they complained about the Respondent not paying its employees
overtime pay. More specifically, the General Counsel asserts that Wallace impliedly threatened
Griego
10
The test to determine whether a remark rises to the level of a threat is “whether a remark
can reasonably be interpreted by an employee as a threat.” Smithers Tire, 308 NLRB 72 (1992).
As with interrogations, the test objective one which examines whether the employer's actions
would tend to coerce a reasonable employee. The “threats in question need not be explicit if the
language used by the employer or his representative can reasonably by construed as threatening.” 15
NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The Board considers the totality
of the circumstances in assessing the reasonable tendency of an ambiguous statement or a veiled
threat to coerce. KSM Industries, 336 NLRB 133, 133 (2001).
In the instant case, after Wallace told Griego he had heard drivers were upset about not 20
getting overtime, the following exchange ensued:
MR. GRIEGO: Well, that's been an issue since I got here.
MR. WALLACE: Okay. Why did they hire on? I mean, people -- people knew when 25
they hired on that we don't pay overtime.
(Tr. 210).
After Griego reiterated that the drivers had been talking about overtime since he started at 30
Decker, Wallace stated, “I mean, if somebody wants to get an attorney and do whatever, I mean,
that's up to them.” (Tr. 212.) A short time later, the following conversation ensued:
MR. GRIEGO: But that's -- you know, but like I said, I was just telling you that that was
-- that was the conversation when I got here, and from what I understand, it was the 35
conversation prior to, I guess, when you guys had the contract. I don't know. That's -- so
I was just telling.
MR. WALLACE: Yeah.
40
MR. GRIEGO: It goes back that far, so –
MR. WALLACE: I want to clear it up if it's talk, because -- because all it ends up is
being like, just -- it just seems like being where everybody's pissed all the time.
45
MR. GRIEGO: Well, it's -- yeah. I understand that, you know. It's kind of frustrating
sometimes to even come here.
JD(SF)–46–14
28
MR. WALLACE: Well, (indiscernible) if people don't like it, there's other jobs. This
isn't a prison, you know?
MR. GRIEGO: Oh, I understand that, but it -- you know, it's -- I guess, probably some 5
guys with the way things are right now, it's just what it is. You know, it is what it is.
MR. WALLACE: It looks like a pretty gravy job to me.
MR. GRIEGO: Well, actually –10
MR. WALLACE: I mean, to have three off one week and four the next.
(Tr. 213.)
15
In McDaniel Ford, Inc., 322 NLRB 956, 956 fn. 1 and 962 (1997), the Board approved
the administrative law judge’s finding that:
It is well settled that an employer's invitation to an employee to quit in response to their
exercise of protected concerted activity is coercive, because it conveys to employees that 20
support for their union or engaging in other concerted activities and their continued
employment are not compatible, and implicitly threaten discharge of the employees
involved.
(citing Stoody Co., 312 NLRB 1175, 1181 (1993), Kenrich Petrochemicals, 294 NLRB 519, 531 25
(1989), and L.A. Baker Electric, 265 NLRB 1579, 1580 (1983)). See also Jupiter Medical
Center Pavilion, 346 NLRB 650, 651 (2006) (employer's statement that, if employee was
unhappy, “[m]aybe this isn't the place for you . . . there are a lot of jobs out there” was implied
threat of discharge); Paper Mart, 319 NLRB 9 (1995) (president's statement that if employee
“was not happy he could seek employment elsewhere” was implicit threat of discharge); 30
Intertherm, Inc., 235 NLRB 693, 693 fn. 6 (1978) (implied threat to tell employee that if “he was
not happy with the Company he should look elsewhere for a job”) enfd. in relevant part 596 F.2d
267 (8th Cir. 1979); Chinese Daily News, 346 NLRB 906, 906 (2006) (implied threat telling
employee to resign if she was not happy with her job), enfd. 224 Fed.Appx. 6 (D.C. Cir. 2007).
35
Considering that these comments occurred following Wallace’s initiation of the topic of
overtime, along with other coercive factors discussed above, I find they constituted an implied
threat.
The Respondent cites to Griego’s testimony that Wallace did not make threats against 40
employees who complained about overtime pay. (Tr. 342.) As noted above, however, the
standard is objective. Moreover, I construed Griego’s testimony about whether he was
threatened as that of a layperson unfamiliar with the Board’s definition, and note he was not
asked if he thought a threat was implied.20

20 In this regard, I overruled the General Counsel’s objection that the question of whether Griego was
threatened called for a legal conclusion, as I did not intend to attribute the requisite knowledge of the
JD(SF)–46–14
29
The Respondent also asserts that the statements I have found to constitute an implied
threat are attenuated from the topic of protected activity. This is simply not the case. Though
Griego and Wallace talked about a number of things, the statements at issue occurred on the
heels of talking about employees’ discussions regarding overtime. 5
Accordingly, I find the General Counsel has met its burden to prove that Wallace
impliedly threatened Griego as alleged, in violation of Section 8(a)(1).
E. Adverse Employment Actions10
Complaint paragraphs 7–9 allege that, on May 6, the Respondent disciplined Jennifer
Johnson and terminated Joseph Griego because of their protected concerted activities.
To prove an adverse action violates Section 8(a)(1), the General Counsel must make an 15
initial showing that an employee's protected conduct was a motivating factor in an employer's
decision to take adverse action against the employee. Wright Line, 251 NLRB 1083, 1089
(1980); Williamette Industries, 341 NLRB 560, 562 (2004). This is commonly accomplished by
showing protected concerted activity by the employee(s), the employer’s knowledge of that
activity, and animus by the employer. Meyers Industries, 268 NLRB 493, 497 (1984); Grand 20
Canyon University, 359 NLRB No. 164 (2013); Hitachi Capital America Corp., 361 NLRB No.
9 (2014). If the Acting General Counsel is able to make such a showing, the burden of
persuasion shifts to the employer “to demonstrate that the same action would have taken place
even in the absence of the protected conduct.” Wright Line, supra; see also Signature Flight
Support, 333 NRLB 1250 (2001) (applying Wright Line in context of discharge for protected 25
concerted activity). The employer cannot carry this burden merely by showing that it also had a
legitimate reason for the action, but must persuade by a preponderance of the evidence that the
action would have taken place absent the protected activity. Dentech Corp., 294 NLRB 924, 956
(1989).
30
As set forth above, it is clear Johnson and Griego had engaged in protected concerted
activity regarding overtime pay about which Decker was aware. The Respondent asserts that
Decker did not have knowledge of their protected activity because Carvalho reported only
“rumors” and Decker had no basis of knowing who may have been involved in the potential
lawsuit. This argument does not even come close to having merit. Carvalho disclosed to 35
McNealy that DeHerrera and Griego had tried to enlist other employees to join them in a lawsuit
for unpaid overtime and he suspected Johnson was involved. McNealy’s email to Dale Decker
specifically states that Griego, DeHerrera, and Johnson were going after Decker for unpaid
overtime. (GC Exh. 15.) Moreover, Wallace identified these same individuals as “trouble
makers” and thought Griego was “the courage and the muscle” behind the trouble makers’ 40
decisions. His attempt to state that he adopted the term “trouble makers” because that was how
Merkner described them is disingenuous given that McNealy had already dispersed Carvalho’s
disclosure of them as the three responsible for a pursuing a potential overtime lawsuit. In the

Board’s caselaw regarding implied threats to Griego or any lay witness. (Tr. 342.)
JD(SF)–46–14
30
context of discussing overtime with Johnson and explaining why he thought Decker was exempt,
Wallace stated, “I know she one of the 3 pushing this and I don’t trust her.” (GC Exh. 12.)
Decker’s knowledge of Griego and Johnson’s protected concerted activity is squarely irrefutable.
The General Counsel must next prove animus or hostility toward the protected activity. 5
Under Board precedent, improper motivation may be inferred from several factors, including
pretextual and shifting reasons given for the personnel action, the timing between an employee's
protected activities and the personnel action, and the failure to adequately investigate alleged
misconduct. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005); Promedica Health Systems, 343
NLRB 1351, 1361 (2004). Discriminatory motive may also be established by showing departure 10
from past practice or disparate treatment. See JAMCO, 294 NLRB 896, 905 (1989), affd mem.
927 F.2d 614 (11th Cir. 1991), cert. denied 502 U.S. 814 (1991); Naomi Knitting Plant, 328
NLRB 1279, 1283 (1999).
The record makes clear that the Respondent harbored animus toward the individuals 15
responsible for pursuing overtime pay. The timing of Wallace’s visit to NBB shows that the
potential for a lawsuit for overtime was something the Respondent intended to immediately
quash. The day after Carvalho’s call, Wallace got on Decker’s private plane and went to Fort
Collins. Though the Respondent attempted to minimize the overtime issue’s role in the intent
behind the visit, there is no doubt that Carvalho’s report of the potential lawsuit was the catalyst. 20
The only thing Wallace brought with him, other than his business cards, was the DOL fact sheet
regarding overtime. Though his investigation may have revealed there was “a lot more going on
than [they] knew about,” it was clearly motivated by a desire to find out more about the overtime
lawsuit and thwart it.21 (GC Exhs. 12, 17.) Kidde, Inc, 294 NLRB 840, 840 fn. 3 (1989).
25
The timing of the adverse actions, roughly a week later, is strong evidence of unlawful
motivation. See Best Plumbing Supply, 310 NLRB 143, 144 (1993); NLRB v. Rain-Ware, Inc.,
732 F.2d 1349, 1354 (7th Cir. 1984). Moreover, the timing of the adverse employment actions
occurred within days of interrogations and threats regarding same protected concerted activities
that I have found violated the Act. Cal Western Transport, 316 NLRB 222, 223 (1995); 30
Richardson Bros. CP., 312 NLRB 534 (1993).
There is other evidence indicating animus that I will address in response to the
Respondent’s proffered reasons for the discipline and termination. Based on the evidence
referenced both above and below, I find the General Counsel has met its initial burden. 35
Turning to the Respondent’s proffered legitimate reasons for its actions, some of these
reasons pertain to both Griego and Johnson while others are specific to the employee. The
analysis below, therefore, is sometimes joint and other times is employee-specific.
40
The Respondent provided shifting explanations for Griego’s termination. His termination
letter cited only to “unsatisfactory job performance” yet in the termination record for the DAC
system, his performance is denoted as “satisfactory.” (GC Exhs. 10–11.) At the unemployment

21 In this regard, I find the investigation was unlawfully motivated. Even though Wallace learned
about more than the overtime issue, and took actions after the investigation aimed to correct other issues,
I have no doubt the motivation behind it was Carvalho’s disclosure of the overtime complaint.
JD(SF)–46–14
31
compensation hearing, in addition to performance issues, the Respondent pointed to
confrontational behavior with Wallace, another driver. At the instant trial, Wallace added
Griego’s behavior in connection with the garnishment. See City Stationery, Inc., 340 NLRB 523,
524 (2003) (nondiscriminatory reasons for discharge offered at the hearing were found to be
pretextual where different from those set forth in the discharge letters).5
With regard to Griego’s termination, Wallace said he relied in part of the “chest
bumping” incident. This was based solely on an admittedly second-hand report. There was no
investigation as to whether this in fact occurred, whether Griego was the aggressor, and whether
anyone had been disciplined because of it. The failure to even ask Griego about this incident 10
before deciding to use it against him is evidence of unlawful motivation. Washington Nursing
Home, Inc., 321 NLRB 366, 375 (1996); Alstyle Apparel, 351 NLRB 1287, 1288 (2007).
Finally, Lackner’s failure to testify about this matter warrants an adverse inference that the
Respondent knew Griego was not the instigator.
15
Wallace relied on his observation of Griego sitting on a load at the end of his shift as
another justification to terminate him. The evidence shows, however, that Wallace embellished
this incident. In this regard, I find Wallace was not credible when he testified he arrived at NBB
right at 5:00 a.m.. He had previously testified he arrived at 5:05, and when confronted with this
inconsistency, repeatedly attempted to minimize it. In any event, he could not have seen Griego 20
sit on a load for over 45 minutes because Griego’s shift ended at 5:45 and Wallace did not arrive
until after 5:00. Moreover, it is not clear whether Wallace knew if Griego had performed a pre-
trip inspection, which would have added 15 minutes and made it impossible for him to return in
time to clock out. See Radisson Muehlebach Hotel , 273 NLRB 1464, 1475–1476 (1985)
(exaggeration evidence of pretext). 25
Griego’s past warnings were also exaggerated. McNealy reported that Griego had two
previous verbal warnings about not running over chocks. The evidence shows, however, that
when he was hired there was a message on the grease board. The warning purported to be
Griego’s second took place on July 16, 2012, and Griego started working with Decker on June 6, 30
2012. Lackner had previously warned some other drivers about this, but Griego was not among
them, most likely because he had not yet begun working for Decker. Moreover, there is no
evidence whatsoever that Griego ever ran over chocks, and therefore no evidence that such
conduct could be attributable to him. Lackner’s failure to refute Griego’s assertion that he was
never spoken to about running over chocks warrants an adverse inference that Griego was not 35
disciplined for any such infraction. Finally, Lackner was disciplined for the manner in which he
gave these verbal warnings, so the Respondent’s purported reliance on them to support discipline
is evidence of pretext.
Wallace further cited Griego’s aggressive and insubordinate behavior, both during the 40
phone calls about his garnishment issue and during Wallace’s site visit. Griego was not
disciplined at the time, however, for the phone calls. Care Manor of Farmington, 314 NLRB
248, 255 (1994); Clinton Food 4 Less, 288 NLRB 597, 598 (1988). It was not until after his
concerted activity was discovered that the Respondent decided to terminate Griego. Importantly,
the second instance of alleged aggressive and insubordinate behavior took place in the context of 45
Wallace’s investigation into Griego’s protected activities. The Board has held that “[w]hen an
employee's purported insubordination relates to his exercise of protected rights and is provoked
JD(SF)–46–14
32
by the employer's unfair labor practices, the employee's conduct must be evaluated by comparing
‘the seriousness of the employer's unlawful conduct with the extent of the employee's reaction.’”
Kolkka Tables, 335 NLRB 844 (2001), quoting Caterpillar, Inc., 322 NLRB 674, 678 (1996),
decision vacated pursuant to a settlement by unpublished order dated March 19, 1998. By the
time Griego arrived at work, DeHerrera had warned him that Wallace was there looking into 5
whether they were bringing a lawsuit for overtime. While I agree with the Respondent that
Griego became loud and repeatedly voiced to Wallace that he could not attend a mandatory
meeting on a snow day, I also find that Griego’s guard was up, understandably, because of
Wallace’s visit. As the General Counsel points out, any raised voices were short-lived, both
Wallace and Griego raised their voices, and the two later continued their lengthy conversation in 10
a cordial manner. Moreover, Merkner also became animated and used the “F” word often when
talking with Wallace, yet insubordination was not cited as a reason for his written warning.
With regard to the incident with the air lines, Griego was not disciplined for it at the time.
Only several months later, after he engaged in protected concerted activity, was it used against 15
him. Care Manor of Farmington, supra; Clinton Food 4 Less, supra.
Turning to Johnson, the only basis for her written warning that cited in the warning itself
was her failure to do a pre-trip inspection on the day Wallace visited, April 30. Though
Johnson’s written warning references the purported “verbal warning” Lackner gave to all drivers 20
about filling out pre-trip inspection forms correctly, Wallace testified he also considered
Lackner’s warnings about the use of chocks given to all drivers, as well as a complaint from a
motorist and a prior warning about failing to do a pre-trip inspection. The Respondent’s shifting
explanations are evidence of pretext. In addition, as with Griego, there is no evidence that
Johnson ran over chocks, and she testified that Lackner told her this message was directed 25
mostly at Hutchins. Given Lackner’s failure to testify, I draw an adverse inference and find the
warning given to all drivers was not legitimately directed at any performance deficiency on
Johnson’s part. Finally, the asserted previous warning was not entered into the record at the
hearing. What is a matter of record is that, in April 2013, Johnson was rated in the highest
category for safety and compliance. (GC Exh. 23.) 30
The characterization of Johnson’s failure to perform a pre-trip inspection as
“insubordination” is likewise evidence of pretext. Specifically, the letter said Johnson violated
Section 501 of the Decker’s personnel policies entitled “Employee Conduct and Work Rules. It
further stated, “It is not possible to list all forms of behavior that are considered unacceptable in 35
the workplace; however, insubordination is specifically noted.” Section 501 specifically cites
“[i]insubordination or other disrespectful conduct” as a grounds for discipline, along with other
conduct, detailed in the statement of facts, that primarily concerns inappropriate behavior, not
unsatisfactory work performance.
40
The failure to perform a pre-trip inspection was cited as a reason for Griego’s termination
and Johnson’s written warning. The evidence regarding pre-trip inspections, cited above, is
inconsistent at best. What is clear, however, is that Lackner’s enforcement of when to do a pre-
trip inspection and how thorough it needed to be varied. Initially, the drivers were told they
could not open the hood at NBB, because of a proscription on preventative maintenance in the 45
JD(SF)–46–14
33
employee manual.22 Griego, Johnson, and DeHerrera all testified that Lackner instructed them
that, if a load was staged and ready to go when they came on shift, they should deliver the load
and do the pre-trip inspection later. Lackner was not called as a witness, and therefore did not
refute this testimony, nor did any other witness. Accordingly, I credit it.
5
Lackner’s previous July 16, 2012 “warning” about the pre-trip inspections also does not
withstand scrutiny. The evidence shows that Lackner posted a message on the grease board
instructing employees to fill out their pre-trip inspections correctly, with an example of how to
fill out the form. The timing of the pre-trip inspection was not referenced, and Lackner told
Johnson and DeHerrera they were filling out paperwork correctly. I credit this testimony and 10
find that Lackner, if called, would corroborate it. As with the chocks, Lackner was disciplined
for the manner in which he gave this so-called verbal warning, so the Respondent’s purported
reliance on it to support progressive discipline is further evidence of pretext.
Johnson testified that Wallace told her he had observed her and Griego failing to perform 15
a pre-trip inspection but he understood his visit put them behind and out of synch, so he was not
going to discipline them for it. Wallace recalled telling Johnson she had not done a pre-trip
inspection. He did not specifically refute her testimony that he said she and Griego would not be
written up for it. I find Johnson’s testimony was credible. Her testimony about her conversation
with Wallace was open-ended and appeared sincere. As a current employee testifying against 20
her own pecuniary interests, I find her testimony to be particularly reliable. Gold Standard
Enterprises, supra; Georgia Rug Mill, supra; Gateway Transportation Co, supra; Unarco
Industries, Inc., supra.
Moreover, Wallace did not investigate why Griego and Johnson failed to perform pre-trip 25
inspections prior to taking action against them for it, nor did he consult with Lackner prior to
disciplining Johnson and terminating Griego. See Embassy Vacation Resorts , 340 NLRB 846,
848–849 (2003) (animus shown by employer's failure to give employees a chance to defend
themselves). It is clear he wanted to gather the information he thought would support taking
action against them, without concerning himself with the underlying circumstances. 30
Finally, as the General Counsel points out, if the failure to do a pre-trip inspection was
such a grave concern, Wallace’s actions make no sense. He observed both employees fail to
perform pre-trip inspections, yet failed to intervene. This is particularly telling, given that
Wallace was bound by FMCSA regulations to require the drivers to observe all duties prescribed 35
to the drivers under those regulations, including performing a pre-trip inspection.
The Respondent makes numerous arguments regarding the legitimacy the discipline for
Johnson and Griego’s respective failures to perform a pre-trip inspection on April 30. Pertinent
here is that Griego and Johnson did not perform complete pre-trip inspections that day prior to 40
taking their first loads, and the timing had been a matter of inconsistent enforcement by Lackner.
Though the Respondent argues that Lackner’s knowledge that drivers did not always do a full
pre-trip inspection prior to their shifts was not proved, the evidence shows otherwise.
McNealy’s email regarding her phone conversation with Carvalho end by stating, “Ron also
mentioned that these same employees are not doing their pre-trip inspections . . . and Rick seems 45

22 This was before Griego worked at Decker.
JD(SF)–46–14
34
to be just letting it go.” (GC Exh. 15.) Moreover, in the absence of Lackner’s testimony, I infer
that he would have corroborated the drivers’ testimony that he had witnessed drivers failing to do
a pre-trip inspection before taking their first load and failed to take action.
There is evidence that the progressive disciplinary policy was not applied consistently, 5
further pointing to pretext. Tubular Corp. of America, 337 NLRB 99 (2001). Hutchins had
received the same messages from Lackner about the chocks and pre-trip inspections, and had
received a verbal warning for failing to place a jack stand under the trailer. The day after the
warning for failing to place a jack stand under his trailer, he repeated this infraction, and received
his “last verbal warning” prior to being written up. (GC Exh. 26(n).) Neither Johnson nor 10
Griego were given this latitude. In addition, Merkner’s comments about Johnson were grounds
for immediate dismissal under Decker’s zero-tolerance policy and section 501 of the Employee
Conduct and Work Rules, yet even after learning of his conduct from multiple employees,
Merkner was treated to dinner and given a written warning.
15
Based on the foregoing, I find the General Counsel has shown the Respondent’s reasons
for terminating Griego and disciplining Johnson were pretext to mask unlawful retaliation.
Finally, even absent a showing of pretext, I find the Respondent has not shown it would
have given Johnson a written warning and fired Griego absent their protected concerted activity, 20
due to the unlawful motivation behind the investigation. “An employer violates Section 8(a)(1)
when it subjects an employee to an investigation, and possible discipline, based on the
employee's conduct in the course of protected activity.” Consolidated Diesel Co., 332 NLRB
1019, 1020 (2000), enfd. 263 F.3d 345 (4th Cir. 2001); Supershuttle of Orange County, Inc. 339
NLRB 1 (2003). In Kidde, Inc., supra, 294 NLRB 840, 840 fn. 3, the Board, citing to precedent, 25
stated:
[E]mployees misconduct discovered during an investigation undertaken because of an
employee's protected activity does not render a discharge lawful. See, e.g., Kut Rate Kid
& Shop Kwik, 246 NLRB 106, 121-122 (1979) (if investigation commenced to find 30
lawful reasons for discharges motivated by an actual unlawful reason, evidence of
misconduct would not render the discharges lawful); Campbell “66” Express, 238 NLRB
953, 963 (1978), enf. denied 609 F.2d 312 (7th Cir. 1979) (misconduct uncovered during
investigation undertaken because of protected activity and aimed at undermining the
employee's Sec. 7 rights does not convert the discharge into a legitimate one). See also 35
Chrysler Corp., 242 NLRB 577 (1979); American Motors Corp., 214 NLRB 455 (1974),
enfd. 525 F.2d 695 (7th Cir. 1975).
The investigation here was clearly “undertaken because of protected activity and aimed at
undermining the employee's Sec. 7 rights” and I find therefore that any ensuing discipline is not 40
legitimate.
The Respondent cites to Praxair Distribution, Inc., 357 NLRB No. 91 (2011), to support
a contrary conclusion. In Praxair, however, the complaint prompting the investigation
concerned working conditions. In the instant case, the complaint spurring the investigation 45
focused on the employees’ protected concerted activity of discussing a lawsuit about overtime
and trying to get others to join it.
JD(SF)–46–14
35
F. Service of Subpoena on Jennifer Johnson
The Respondent, through counsel, served Johnson with a subpoena duces tecum on
March 31, 2014, at her workplace. (GC Exh. 24.) At the hearing, I granted the General 5
Counsel’s motion to amend the complaint to include an allegation that this action violated
Section 8(a)(1) of the Act.
An employer violates Section 8(a)(1) by demanding that an employee give it a copy of
the confidential affidavit she provided to a Board agent. Inter-Disciplinary Advantage, 349 10
NLRB 480, 505 (2007); Frascona Buick, Inc., 266 NLRB 636, 647 (1983); Ingram Farms, Inc.,
258 NLRB 1051, 1055 (1981), enfd. 685 F.2d 1387 (11th Cir. 1982); W.T. Grant Co., 144
NLRB 1179, 1182 (1963).23 Such demands are inherently coercive and are therefore unlawful.
See Inter-Disciplinary Advantage, supra at 505. In the instant case, the Respondent demanded
that Johnson produce all documents related to communications she had with the NLRB 15
concerning the instant case and her FLSA case. Her affidavit given to the Board in the instant
case was not excluded. Given the broad definition of “document” and the lack of any exclusions,
this clearly would be interpreted to include Johnson’s affidavit in connection with the Board’s
investigation, and is therefore inherently coercive. The cases the Respondent cites to requesting
more specific information do not negate the fact that the request at issue before me encompasses20
Johnson’s affidavit. Accordingly, I find this request violated the Act as alleged.
As to the remainder of the allegations outlined in the General Counsel’s brief, they rest
upon caselaw that the Board has set aside due to the Supreme Court’s decision in Noel Canning,
supra. Given that Johnson was represented by counsel in the instant case, and the matter was 25
resolved by Miller’s filing of a petition to revoke the provisions that called for privilege or were
otherwise objectionable, I find the General Counsel has not proved the remaining subpoena
requests violated Section 8(a)(1). Accordingly, I recommend dismissal of these allegations.
CONCLUSIONS OF LAW30
1. By interrogating employees about their protected concerted activities and the
protected concerted activities of other employees, threatening its employees with discharge if
they complained about the Respondent not paying its employees overtime pay, issuing Jennifer
Johnson a written warning and terminating Joseph Griego because of their protected concerted 35
activities, and issuing Jennifer Johnson a subpoena encompassing a request for her Board
affidavit, the Respondent violated Section 8(a)(1) of the Act.
2. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.40

23 The General Counsel cites to Ampersand Publishing, LLC, 358 NLRB No. 155 (2012). That case,
however, was set aside by the Board following the Supreme Court’s decision in NLRB v. Noel Canning, a
Division of the Noel Corp., 134 S.Ct. 2250 (2014).
JD(SF)–46–14
36
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
issue and order recommending it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.5
Having interrogated employees about concerted protected activities and impliedly
threatened employees with loss of employment for engaging in protected concerted activities, the
Respondent will be ordered to cease and desist from these actions.
10
Having issued a subpoena to employee Jennifer Johnson, prior to her testimony at a
National Labor Relations Board hearing, requesting a copy of any affidavits she has submitted
to the National Labor Relations Board in an unfair labor practice investigation, the Respondent
will be ordered to cease and desist from these actions.
15
The Respondent having unlawfully disciplined Jennifer Johnson by issuing her a written
warning for failing to conduct a pre-trip inspection will be ordered to restore the status quo ante
and make appropriate changes to her personnel files and/or other supervisor-maintained files.
The Respondent, having discriminatorily discharged Joseph Griego, must offer them 20
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent shall
file a report with the Social Security Administration allocating backpay to the appropriate 25
calendar quarters. Respondent shall also compensate the discriminatees for the adverse tax
consequences, if any, of receiving one or more lump-sum backpay awards covering periods
longer than 1 year. Latino Express, Inc., 359 NLRB No. 44 (2012).
I will order that the employer post a notice in the usual manner, including electronically 30
to the extent mandated in J. Picini Flooring, 356 NLRB No. 9, slip op. at 5–6 (2010). Also in
accordance with that decision, the question as to whether a particular type of electronic notice is
appropriate should be resolved at the compliance stage. Id., slip op. at p. 3. See, e.g., Teamsters
Local 25, 358 NLRB No. 15 (2012).
35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
ORDER
40
The Respondent, Decker Truck Line, Inc., Fort Collins, Colorado, its officers, agents,
successors, and assigns, shall

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–46–14
37
1. Cease and desist from interrogating employees about concerted protected activities and
impliedly threatening employees with loss of employment for engaging in protected concerted
activities; issuing subpoenas to current employees prior to their testimony at a Board hearing that
request copies of affidavits they had submitted to the Board in an unfair labor practice
investigation; disciplining and terminating employees for engaging in protected concerted 5
activities; and in any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
10
(a) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discipline of Jennifer Johnson, and within 3 days thereafter notify her in writing that
this has been done and that the discipline will not be used against her in any way.
(b) Within 14 days from the date of the Board’s Order, offer Joseph Griego full 15
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Make Joseph Griego whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her as specified in the remedy portion of this decision.20
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to Jospeh Griego’s unlawful discharge and within 3 days thereafter notify him in
writing that this has been done and that the discharges will not be used against them in any way.25
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records,
and reports, and all other records, including an electronic copy of such records if stored in 30
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its facilities in Fort Collins,
Colorado, copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms
provided by the Regional Director for Region 27, after being signed by the Respondent’s 35
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. 40
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these

25 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading "Posted and Mailed by Order of the National Labor Relations Board" shall read "Posted and
Mailed Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
JD(SF)–46–14
38
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
April 29, 2013.
5
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
10
Dated, Washington, D.C. September 23, 2014
____________________15
Eleanor Laws
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
Accordingly, we give our employees the following assurances:
WE WILL NOT interrogate you about your protected concerted activities or the protected
concerted activities of others.
WE WILL NOT make implied threats to you that engaging in protected concerted activity could
result in job loss.
WE WILL NOT issue subpoenas to employees prior to their testimony at a National Labor
Relations Board hearing that request copies of affidavits they have submitted to the National
Labor Relations Board in an unfair labor practice investigation
WE WILL NOT discipline you because of your protected concerted activities.
WE WILL NOT terminate you because of your protected concerted activities.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
National Labor Relations Act.
WE WILL remove from our files any reference to Jennifer Johnson’s May 6, 2013, written
warning for failure to perform a pre-trip inspection and WE WILL notify her in writing that this
has been done and that the removed material will not be used against her in any way.
WE WILL reinstate Joseph Griego to the position of employment he held on May 6, 2013, or, if
such a position no longer exists, to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges that he enjoyed as May 6, 2013.
WE WILL make whole Joseph Griego for the losses he suffered as a result of our unlawful
suspension and discharge of him and WE WILL compensate him for the adverse tax
consequences, if any, of receiving one or more lump-sum backpay awards covering periods
longer than 1 year.
WE WILL remove from our files any reference to Joseph Griego’s discharge, and WE WILL
notify him in writing that this has been done and that the removed material will not be used
against him in any way.
DECKER TRUCK LINE, Inc.
(Employer)
Dated ___________________________ By _________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower, Denver, CO 80202-5433
(303) 844-3551, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/27-CA-107239 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (303) 844-6647.