DHL EXPRESS, INC.

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1399 (N.L.R.B. 2010)

DHL EXPRESS, INC.
355 NLRB No. 224
1399
DHL Express, Inc. and American Postal Workers
Union, AFL–CIO. Case 9–CA–43277
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On June 21, 2007, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and Charging Party Union filed answering
briefs, and the Respondent filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
1. The judge found, and we agree, that the Respondent
violated Section 8(a)(1) when, on September 15, 2006, it:
(1) distributed a memo to employees stating that if they
selected the Union as their bargaining representative “all
of your wages and benefits would be frozen pending the
outcome of negotiations;” and (2) told employees,
through Supervisor Carla Ford, that if they “were up for
[their] six-month step increase, that if we were in con-
tract negotiations at that time, that we would not be able
to get our wage increase, that it would be frozen during
that time.”
Although we agree with the judge that Jensen Enter-
prises, 339 NLRB 877, 877–878 (2003), supports these
8(a)(1) findings, we disavow his further statement that
two prior Board cases—Mantrose–Haeuser Co., 306
NLRB 377 (1992), and Uarco, 286 NLRB 55 (1987),
review denied sub nom. Auto Workers v. NLRB, 865 F.2d
258 (6th Cir. 1988) (Table),—“appear . . . inconsistent
and materially indistinguishable from Jensen” and there-

1 There are no exceptions to the judge’s dismissal of allegations in
pars. 5(b) and (e) of the complaint that the Respondent’s director, Tho-
mas Roksvag, and its senior operations manager, Steven Crowthers,
threatened employees in violation of Sec. 8(a)(1). There are also no
exceptions to the judge’s dismissal of the allegation that Carolyn
Fisher, director of labor relations, unlawfully threatened employees
with discontinuance of step wage increases during the 10:15 a.m. meet-
ing with employees on November 15, 2006.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.

fore “appear to have been overturned sub silentio” by
Jensen.
There is no indication that the Board in Jensen implic-
itly overruled Mantrose–Haeuser or Uarco.3 Further, the
cases are distinguishable from Jensen and the instant
case, and afford the Respondent no defense to the judge’s
8(a)(1) findings.
In Mantrose–Haeuser, the respondent stated in an
election campaign pamphlet that “while bargaining goes
on, wage and benefit programs typically remain frozen
until changed, if at all, by a contract.” The Board found
that this statement was not an 8(a)(1) threat because,
among other reasons, the respondent contemporaneously
assured employees that freezing wage and benefit pro-
grams meant that, during negotiations, it would continue
its past practice of granting a Christmas bonus and De-
cember merit wage increases, and that only the amounts
would be subject to negotiations with the union. 306
NLRB at 377–378. The Board also relied on the fact that
the statement appeared only once in a lengthy campaign
document, and that during the “entire [campaign] period,
there were no other allegations of unfair labor practices
or objectionable conduct committed by the Respondent.”
Id. at 377.4
In contrast to Mantrose–Haeuser, no assurances were
given to employees here or in Jensen that the status quo
of granting scheduled wage increases would continue
during contract negotiations. To the contrary, Supervisor
Ford reinforced the clear message of the Respondent’s
September 15 memo by telling employees that the past
practice of granting step wage increases would not con-
tinue while contract negotiations were ongoing. Further,
unlike Mantrose–Haeuser, the Respondent here and in
Jensen committed additional unfair labor practices dur-
ing the organizational campaign.
Similarly, in Uarco, the judge found that other em-
ployer statements at the same meetings at which the
statement concerning benefits being frozen was made
clarified its meaning. In that case, the statement at issue
was that “benefits were ‘frozen’ during negotiations,” 86
NLRB at 82. But, the judge stated: “Within the context

3 In fact, the Board explicitly relied on Mantrose-Haeuser, post-
Jensen, in American Red Cross Missouri—Illinois Blood Services Re-
gion, 347 NLRB 347, 347 fn. 5 (2006).
4 In American Red Cross, supra at fn. 5, the Board also noted that the
language used in Mantrose-Haeuser referred to freezing wage and
benefit programs (possibly suggesting the continuation of annual in-
creases and other regular adjustments), not to freezing wages and bene-
fits. It is the latter type of statement that is at issue here. We need not
reach the question of whether that subtle distinction in language should,
standing alone, make a difference, but together with the distinguishing
facts described above, it serves to further distinguish this case from
Mantrose-Haeuser.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1400
of all Respondent’s statements, I conclude that employ-
ees were not told that they would not receive benefits and
wages already scheduled or due them, but that the use of
the word ‘frozen’ was merely calculated to mean that
nothing could be lost pending negotiations and resolution
of the question concerning representation, i.e., the status
quo would continue.” Id. at 84. While the judge’s deci-
sion points to no specific statements tending to give the
frozen statement the meaning he attributed to it, the
Board expressly adopted his conclusion, specifically ex-
plaining that the judge found the statement to mean only
that the employer would maintain the status quo “[i]n the
context of all the Respondent’s oral statements.” Id. at
57. Here, the record does not reveal any statements by
the Respondent’s agents that would have led employees
to understand the frozen statement merely to mean that
the Respondent would maintain the status quo, including
any regularly scheduled improvements in wages or bene-
fits.
In sum, although we disagree with the judge’s assess-
ment of the continued viability of the precedent predating
Jensen, we affirm his findings that the Respondent’s
September 15 memorandum and Supervisor Ford’s
statement violated Section 8(a)(1).
2. In adopting the judge’s finding that the Respondent
violated Section 8(a)(1) when Supervisor Rob Darner
threatened employee James Hamilton with stricter en-
forcement of the Respondent’s policy on tardiness, we
agree that there is “no significant difference” whether
Darner stated that he “would not” or “might not” retain
flexibility not to make a record of minor tardiness if em-
ployees selected the Union. Either way, Darner’s state-
ment predicted potential negative actions the Employer
might take in regard to tardiness if the Union was se-
lected. Under NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969), lawful predictions of the effects of un-
ionization must be based on objective fact and address
consequences beyond an employer’s control. See Sys-
tems West, LLC, 342 NLRB 851 (2004). Darner’s state-
ment satisfied neither Gissel element. Thus, we agree
with the judge that rather than a lawful prediction,
Darner’s statement constituted an unlawful threat to en-
force tardiness rules more strictly if the Respondent was
unionized.5

5 In adopting the judge’s 8(a)(1) finding, we find it unnecessary to
rely on his adverse inference against the Respondent for failing to call
Darner to testify.
Contrary to the Respondent, International Baking & Earthgrains,
348 NLRB 1133 (2006), does not warrant a contrary result. The state-
ment by Human Relations Director Elioff in that case did not follow
immediately after excusing an employee’s minor tardiness (id. at 1139)
and thus did not contain the same implied threat of stricter enforcement
if a union was selected.
3. We also agree with the judge that Labor Relations
Director Carolyn Fisher’s statements during her “pie
chart” presentation violated Section 8(a)(1) by threaten-
ing employees that they would gain nothing in collective
bargaining. Given Fisher’s contemporaneous unlawful
threat that employees would not receive regularly sched-
uled step increases during bargaining, employees would
reasonably understand Fisher’s pie chart presentation as
a message that selecting the Union would be futile.
Here, the pie illustrated the employer’s negotiating
budget6 and Fisher suggested that all the Respondent
would do in negotiations was shift money from one slice
of the pie to another, i.e., that if the Union obtained a
wage increase for employees, the Respondent would take
the money out of the employees’ benefits. The judge
thus correctly concluded that in this case, “a reasonable
employee would have likely concluded that Respondent
was threatening employees with a negotiating posture,
i.e., that employees would not gain any increase in any
benefit during collective-bargaining negotiations without
an offsetting reduction in other benefits.”
Save Mart Supermarkets, 326 NLRB 1146 (1998), re-
lied on by the Respondent is distinguishable. First, the
judge there found the testimony to be conflicting as to
exactly what was said using the pie metaphor. Second, at
most, the pie image was used to symbolize the em-
ployer’s entire budget—including, but not limited to,
labor costs—in connection with a manager’s statement
that “only so many pieces of the pie could be allocated to
labor.” Id. at 1148–1149. Under the circumstances, such
a statement would convey only the truism that there were
limits to what the union could obtain for employees in
collective bargaining. In contrast to this case, nothing
about the statement at issue in Save Mart would reasona-
bly have suggested to employees that the limits of what
they could gain were defined by what they already had.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, DHL Express, Inc., Wil-
mington, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

6 The judge found, “one of the slices had a $ sign to represent wages;
other slices were labeled vacation, sick time, retirement and possibly
‘all other.’ At none of the meetings were any of the slices labeled cor-
porate profits, executive salaries or ‘anything like that.’” The judge
credited Fisher’s testimony that the chart was used as part of a discus-
sion of employers’ “negotiating budget.”
7 In light of this distinction, we need not pass on the judge’s finding
that Save Mart has “very limited precedential value on the pie chart
issue” because the decision does not make clear whether the issue was
before the Board on exceptions.

DHL EXPRESS, INC. 1401
Jonathan D. Duffy, Esq., for the General Counsel.
David A. Kadela and Jenna S. Barresi, Esqs. (Littler Mendel-
son, P.C.), of Columbus, Ohio, for the Respondent.
Anton G. Hajjar and Jennifer E. Ku, Esqs. (O’Donnell,
Schwartz & Anderson, P.C.), of Washington, D.C. for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on May 2 and 3, 2007. The
charge was filed on November 24, 2006, and the General Coun-
sel filed a complaint on April 6, 2007.
The case arises out of an organizing campaign by the Ameri-
can Postal Workers Union (APWU; the Union) at a very large
private airport owned and operated by Respondent, DHL Ex-
press, in Wilmington, Ohio, which is located between Cincin-
nati and Columbus. Respondent’s business is the shipping of
mail and freight both domestically and internationally.
In September 2006, the Union filed a petition to represent
approximately 377 of Respondent’s employees working in
Building F at the Wilmington airport, which Respondent desig-
nates as its “Gateway” operation. In response to the Union’s
petition, Respondent contended that the only appropriate bar-
gaining unit is a wall-to-wall unit including 91 employees in
Building 11 of the airport, who work in its shipment recovery
center and international services departments. The Regional
Director of Region 9 agreed with the Respondent in his Deci-
sion and Direction of Election issued on November 3, 2007,
Case 9–RC–18108.1
A representation election was scheduled for November 30,
2006. The election ballots would have given employees a
choice of representation by the Union, representation by the
International Brotherhood of Teamsters, which was also trying
to organize the bargaining unit, and no collective-bargaining
representative. The election was canceled due to the filing of
the instant charges, which allege a number of violations by
Respondent of Section 8(a)(1) between September and Novem-
ber 16, 2006.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, receives and distributes mail and
freight at its airport facility in Wilmington, Ohio. It annually
performs services valued in excess of $50,000 in States other
than Ohio. 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. The Union, the American Postal Workers

1 As requested by the Respondent, I take administrative notice that
the Board denied the Union’s request for review of the Regional Direc-
tor’s decision on November 29, 2006.
Union, is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Complaint Paragraph 5(a): Respondent distributes a memo
to employees in September 2006 informing employees that if
they select the Union as their collective-bargaining representa-
tive, their wages, benefits, and working conditions will be fro-
zen pending the outcome of negotiations for a collective-
bargaining agreement.
In September 2006, Respondent distributed to its employees
a memorandum, GC Exhibit 2, entitled, “THE APWU: What
you should know about this union.” The second page of the
memo contained the following two paragraphs:
What is Collective Bargaining?
You should understand that even if you were to sign an au-
thorization card, and ultimately vote for a union under the Na-
tional Labor Relations Board’s election procedures, you
would not be voting for a wage increase or any other thing
that the union may have promised. The only thing decided by
the employees through a NLRB vote is whether they want the
union to speak for them in collective bargaining. There is of-
ten a misconception that there will automatically be a contract
between an employer and the union, but the fact is that the
day after the union is voted in, nothing changes. Actually, all
of your wages, benefits, and working conditions would be
frozen pending the outcome of negotiations.

This would only be the beginning of contract negotiations—a
process that can take a very long time. Also, keep in mind
that if the APWU were voted in, DHL would only be obli-
gated to sit down and bargain with the union in good faith.
The Company would not, however, be under any legal obliga-
tion to agree to any specific union proposal that it did not
think would be in its own best business interest.

The next section was entitled “Will a Collective Bargaining
Agreement be better than what I have today?” It informed
employees that they can lose benefits through collective bar-
gaining.

During bargaining, wages and benefits can go up, but they can
also stay the same, or even go down. One reason employees
can lose in collective bargaining is that unions often trade em-
ployee benefits to get an employer to agree to something im-
portant for the union.

Unions often try to negotiate:

Automatic dues deduction from employee paychecks
An agreement that the employer will send the dues deducted
directly to the union.
Required union membership or payment of a monthly dues
equivalent as a condition of continued employment.
Allow special privileges for union stewards.
Complaint paragraph 5(c)
Complaint paragraph 5(c) alleges that Carla Ford, one of Re-
spondent’s supervisors, violated Section 8(a)(1) during a meet-
ing in September 2006, in which the aforesaid memo was dis-
tributed to 15–20 employees who reported to her. This allega-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402
tion rests on the testimony of Jennifer Morris, a prounion em-
ployee who worked under Ford until April 2007.2
Morris testified that when distributing the memo, Ford spoke
to employees about its contents. According to Morris, Ford
said that if employees selected the Union that during collective
bargaining there would be no step increases, that wage in-
creases would be frozen. Morris also testified that Ford said
that employees would not be able to change their health insur-
ance, even during the open enrollment season, and that vacation
benefits would not accrue.
Respondent has a step increase schedule for Wilmington
employees. Essentially, if employees are performing satisfacto-
rily, they receive a 50-cent-per-hour increase after 6 months of
employment and periodic increases thereafter until they reach a
maximum hourly wage (GC Exh. 3).
Ford testified that in response to an employee’s question
about what would happen to wages during contract negotia-
tions, she replied that everything would stay as it is. She testi-
fied that she did not recall using the word “frozen.” Ford then
testified that Jennifer Morris challenged her on the issue of
whether wages would be “frozen” and she replied that, “I didn’t
say it was frozen. Everything’s just staying as it is (Tr. 370).”
Ford denied saying anything regarding the effect of unioniza-
tion on vacation accrual or employees’ opportunities to change
their health insurance coverage during open enrollment. On
cross-examination, she conceded she did not have complete
recall as to what was said at the meeting.
Morris gave an affidavit to a Board agent on November 8,
2006 (R. Exh. 1).3 This affidavit is consistent with her testi-
mony as to what Ford said with regard to step increases but
includes nothing about vacations accruals or health insurance.4
I credit Morris’ testimony that Ford told employees that there
would be no step increases during contract negotiations and
discredit it with regard to the other benefits.
Ford was working from Respondent’s memo, GC Exh. 2,
when she was talking to employees. Morris’ account of what
Ford stated is consistent with the memo. The memo does not
mention the nuance regarding regularly scheduled evaluations
and raises. There is no evidence that Ford knew on September
15, that maintenance of the status quo required Respondent to
continue its practice of granting wage increases according to
fixed criteria at predictable intervals.5 I therefore find that Ford

2 Respondent terminated Morris for absenteeism in April 2007.
3 Thus, Morris gave the affidavit 5 months before she was dis-
charged. She also gave a second affidavit in December 2006, which
was not entered into this record.
4 Respondent at p. 20 argues that Morris should not be credited be-
cause her affidavit does not state that Ford used the word “frozen.” It
does, however, relate that Ford told employees that they would not get
step increases until a contract was negotiated and ratified.
5 When an employer has an established practice of granting wage in-
creases to fixed criteria at predictable intervals, a discontinuance of that
practice during collective-bargaining negotiations, constitutes a change
in the terms and conditions of employment. Such a change, absent
overall impasse on bargaining for an agreement as a whole, violates
Sec. 8(a)(5) and (1) of the Act, Daily News of Los Angeles, 315 NLRB
1236, 1237–1241 (1994), enfd. 73 F. 2d 406 (DC. Cir. 1996); Ru-
ral/Metro Medical Services, 327 NLRB 49 (1998).
followed the memo and told employees what Morris testified
she said.
On the other hand, if Ford had mentioned a freeze regarding
vacation accruals and health benefits, I believed Morris would
have mentioned it in her affidavit. Thus, I credit Ford’s testi-
mony that she did not address these issues.
Complaint paragraph 5(d): Respondent, by Supervisor Rob
Darner, threatened that it would no longer have flexibility in
enforcing work rules if the Union was voted in.
The vast majority of bargaining unit employees work nights,
starting work anywhere from 10 p.m. to midnight and working
until 4 or 4:30 a.m. One evening in October 2006, James Ham-
ilton, a unit employee and open union supporter, was 5 minutes
late getting to his workstation due to a delay in getting from the
facility’s main gate on a company bus. Hamilton testified that
during the evening, he was talking about the Union with his
supervisor, Rob Darner. At some point, Darner told Hamilton
that he did not mark him down as tardy, but that if the Union
wins, he would not be able to be as flexible.
Darner did not testify and I conclude that Hamilton’s testi-
mony is completely credible. The only hole in his testimony
occurred during this exchange on cross-examination:

Q. Is it just as likely that Mr. Darner said that if a union
[comes in] here I might not be able to do—I might not have
the flexibility?
A. I don’t remember the exact wording?

I find that there is no significant difference between “would
not have the flexibility” and “might not have the flexibility.”
Respondent relies on CPP Pinkerton, 309 NLRB 723 (1992), in
arguing that since Darner may have phrased his statement as
only a possibility, it did not violate Section 8(a)(1). CPP
Pinkerton is easily distinguishable in that the employer’s agent
in that case was making a prediction about what a third party
might do if employees organized. This prediction was based on
what the Board deemed to be an objective basis, not what the
Respondent might do. Darner was simply threatening Hamilton
with action this Respondent might take in the event of unioni-
zation—without any objective basis for the statement.
I credit Hamilton’s testimony without regard to the fact that
Darner did not testify. However, I also draw an adverse infer-
ence from Respondent’s failure to call Darner, who is still its
employee, that he intended, and in fact clearly conveyed to
Hamilton that if employees selected the Union as their collec-
tive-bargaining representative, Respondent’s work rules would
be more strictly enforced.6

6 Respondent argues at p. 20 of its brief, at fn. 16, that an adverse in-
ference cannot be drawn because the record does not establish that
Robert Darner is still a supervisor. At Tr. 204, James Hamilton testi-
fied that in the fall of 2006 Darner and his current supervisor, Bruce
Morris, simply traded places. From this testimony, I infer that Mr.
Darner is still a supervisor. I would also note that in the cases cited by
Respondent in fn. 20, the former supervisor was no longer an employee
of the respondent employer, a situation distinguishable from the instant
case.
DHL EXPRESS, INC. 1403
Complaint Paragraph 5(e): Alleged Violations by
Steve Crowthers
Complaint paragraph 5(e) is supported solely by the testi-
mony of former employee Heath Martin, who was terminated
for absenteeism in November 2006. Martin testified that Steve
Crowthers, Respondent’s senior operations manager in the
imports division, saw him one night in October 2006 wearing
union paraphernalia and asked him if he was supporting the
Union. Then Martin testified that Crowthers engaged him in
conversation and told him that if the Union prevailed that
wages would be frozen. Crowthers testified that he never had
any discussion with Martin about the Union or wages being
frozen. I find Crowthers’ testimony to be at least as credible as
Martin’s and thus dismiss these allegations of the complaint.
The allegation in paragraph 5(e)(iii) concerns what tran-
spired at a company meeting on November 8, 2006. Respon-
dent conducted four series of meetings for its employees re-
garding the union campaign. These series were held on Octo-
ber 25, November 8, 15, and 28. On each of these dates indi-
vidual meetings for different groups of employees were con-
ducted in several sessions prior to the start of night operations
and several sessions in the early morning of the next day, after
the business operation had ended.
At all the sessions on October 25 and November 8, the only
speaker was the Director of Respondent’s Gateway operation at
Wilmington, Tom Roksvag. Each meeting session on these
dates was limited to about 20 minutes each, followed by a 5
minute break. At the beginning of each session Roksvag an-
nounced there was insufficient time for him to entertain ques-
tions but that there were question and answer sheets at each seat
for employees to write down any questions or concerns they
might have.
At the November 8 sessions, Roksvag used a power point
presentation while speaking to address the Regional Director’s
Decision and Direction of Election and an APWU flyer. This
union flyer was critical of the Region’s decision and the posi-
tions taken by Respondent regarding the scope of the bargain-
ing unit. Heath Martin testified that he did not hear Roksvag
say that there would be no questions and that therefore he made
comments and asked questions during Roksvag’s presentation.
He did not testify that he raised his hand and/or was recognized
by Roksvag.
These comments apparently concerned testimony Roksvag
had given at the representation hearing bearing on the interac-
tion between Gateway employees and employees from Building
F, who the Regional Director found to be part of an appropriate
bargaining unit. After a while, Steve Crowthers came over to
Martin and told him to be quiet and to write down any question
he had and that they would be answered later.
Crowthers testified that he was standing in the back of the
room while Roksvag spoke and heard someone in the front row
heckling Roksvag. He walked over to the person, who he rec-
ognized as Heath Martin, and told him that if he had a question,
to write it down, but that if he continued heckling Roksvag,
he’d remove Martin from the room. Crowthers testified that
immediately after the meeting, he had a brief discussion with
Martin in which he verbally reprimanded him for interrupting
Roksvag, but had no other conversations with Martin.
Martin testified that later in the evening, Crowthers con-
fronted him and told him that if he ever showed disrespect to
Roksvag again, he would lose his job. Crowthers testified that
he had no contact with Martin other than at the meeting and
immediately afterwards.
If I were to credit Martin’s testimony, Crowther’s threat
would violate Section 8(a)(1). An employee’s unsolicited and
even disruptive comments at a company meeting regarding
unionization do not lose the protection of Section 7 unless they
are far more egregious than those made by Martin, Anheuser-
Busch, Inc., 337 NLRB 3, 10–11 (2001); F. W. Woolworth Co.,
251 NLRB 1111, 1111–1115 (1980). For example, had Martin
persisted to the point that Roksvag could not continue with his
presentation, such conduct might lose the protection of Section
7. Here there is no such evidence and Martin stopped making
comments after Crowthers spoke to him. However, I find that
Martin’s testimony about his conversations with Crowthers,
except where corroborated by Crowthers, is insufficiently reli-
able to be credited.
Martin also testified that sometime between November 8 and
14, when he was terminated, Crowthers overheard Martin tell-
ing his immediate supervisor that he was running late. Accord-
ing to Martin, Crowthers told him that Respondent was able to
work with him on his attendance, but would not be able to do
so if employees selected the Union.7 Crowthers denies that this
conversation ever took place. I credit Crowthers’ testimony as
I find Martin’s account to be very contrived. Therefore, I dis-
miss this allegation.
Statements by Thomas Roksvag at the November 8 Meeting
Sessions: Complaint paragraph 5(b)
The General Counsel alleges that at the November 8 meeting
sessions, Thomas Roksvag, the director of Respondent’s Wil-
mington Gateway, violated Section 8(a)(1) by telling employ-
ees that everything would be frozen until a contract was negoti-
ated. This allegation is supported solely by the testimony of
Robert Storer, a current DHL employee.
Storer testified that he attended three meetings conducted by
Roksvag regarding the Union. According to Storer, at the end
of the second meeting, an unidentified employee raised his
hand and asked if it was true that benefits and wages would be
frozen during “this time period of deciding whether you wanted
to bring a union in or not.”8 Storer recalled Roksvag answer-
ing:

He said [they] would be frozen at that period up till the deci-
sion was made and if the decision was made of no union then
everything would go back to the way it was and the increase
would continue to come and so on.

7 Martin was present in the hearing room throughout the trial as the
General Counsel’s representative. He testified that his recollection of
this incident was refreshed by hearing the testimony of a witness on the
first day of the hearing (James Hamilton). The General Counsel moved
to amend the complaint and I granted this motion over Respondent’s
objection.
8 Storer testified that the questioner was not Heath Martin (see dis-
cussion of complaint par. 5(e)) and that Martin did not attend the same
November 8 meeting that he did.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1404
Q. Did he say what would happen if the decision [was] that
there would be a union?

A. Then it would still be continued frozen throughout nego-
tiations.

(Tr. 287–288.)

Respondent proffered two witnesses who discussed what
transpired at the November 8 meeting sessions. Thomas
Roksvag testified that he told employees that due to the tight
time schedule no questions would be entertained and that em-
ployees who had questions should write them down on a sheet
of paper at their desks. He also testified that he did not discuss
the collective-bargaining process or the affect on wages, bene-
fits, and working conditions of the employees voting in a union.
Further Roksvag testified that no employee asked a question at
the November 8 meetings, although he testified that at one ses-
sion, he was interrupted by the heckling of an employee (Heath
Martin). Roksvag testified that he conducted the November 8
meeting sessions with the aid of a power point presentation (R.
Exh. 2), and the Union’s “News Flash” (R. Exh. 3).
Steve Crowthers, Respondent’s senior operations manager
for Imports, also testified about the November 8 meetings.
Crowthers testified that the November 8 meetings were all con-
ducted in the same fashion and on a strict time schedule which
lasted 20–25 minutes. He also recalled that employees were
told at the outset that the meeting was not a question and an-
swer session and that they should write any questions on a
piece of paper at their desks.
Respondent contends that I should not credit Storer’s testi-
mony for a number of reasons. First, it notes that other General
Counsel witnesses, namely, Jennifer Morris and James Vandi-
ver testified that collective bargaining was not discussed by the
Respondent until the November 15 meeting. However, there is
no evidence indicating that Storer attended the same session on
November 8, as Morris and Vandiver. On November 15, Storer
attended an evening session, while Morris and Vandiver at-
tended an early morning session, making it quite likely that he
did not attend the same session on November 8. However, I am
troubled by the fact that the General Counsel did not produce
any other witnesses to corroborate Storer’s testimony, because
a number of other employees should have been able to do so, if
Storer’s testimony was accurate.9
Secondly, Respondent points out that Storer’s testimony, that
there were no employee questions asked of Carolyn Fisher at
the meeting he attended on November 15, is clearly incorrect.
Three other General Counsel witnesses, who appear to have
attended the same November 15 meeting, recalled Fisher field-
ing employee questions. While this establishes that Storer’s
memory is inaccurate in some respects, it is not conclusive, as
he did accurately recall other aspects of the November 15 meet-
ing.10

9 Storer testified that there were 50–100 people at this meeting. Fifty
to 60 would be consistent with the size of the unit and the number of
meetings.
10 Storer was also probably incorrect in testifying that the number of
attendees at the Fisher meeting was approximately the same as at prior
meetings. Since Respondent had reduced the number of meetings, the
Thirdly and most importantly, Storer testified that Roksvag
did not use any props or Power Point slides during his presenta-
tion on November 8. There is no reason for me not to credit
Roksvag’s testimony to the contrary and I would think Storer
would remember this if he recalled anything about the Novem-
ber 8 meeting.
On the other hand, Storer’s testimony regarding the question
to Roksvag is very specific and is corroborated to some extent
by James Vandiver’s testimony11 that at meetings Vandiver
attended, employees asked Roksvag questions even though they
were initially told not to do so.12
In addition to testifying about an employee’s question and
Roksvag’s response, Storer’s testimony differs from Respon-
dent’s evidence in a number of other respects. He remembered
this meeting lasting about 45 minutes, longer than Respon-
dent’s evidence indicates it lasted. He also testified that there
was not a piece of paper in front of him to write down any
questions he might have.
A factor in favor of crediting Storer is that Respondent had
already told employees in writing that wages and benefits
would be frozen during contract negotiations. Moreover, it is
not clear when management learned that it would be best not to
use this terminology. There is a suggestion that they might
have become aware of the problem with the term “frozen”
when Carolyn Fisher arrived at Wilmington on November 14.
Storer appears to have been far less active in support of the
Union than most of the General Counsel’s witnesses and as a
current employee would have a substantial motivation to testify
truthfully to avoid retaliation in the future.13 Finally, Roksvag
and Crowther are even more interested parties in the outcome
of this case than is Storer.
Nevertheless, in the final analysis, Storer’s failure to recall
the power point demonstration, leaves me with enough doubt as
to the reliability of his recollection of what occurred, that I am
unable to credit his testimony. Thus, I dismiss complaint para-
graph 5(b).

number of employees in attendance on November 15, would most
likely have been substantially greater than on November 8.
11 However, Vandiver’s recollection of the events in November 2006
wasn’t very good either.
12 It is not absolutely clear whether Storer attended the same meet-
ing session on November 8, as any of the other General Counsel wit-
nesses. The only evidence that all the meetings on November 8, were
conducted in a virtually identical manner, with the exception of the
Heath Martin outbursts, is the testimony of management witnesses
Roksvag and Crowther.
13 The testimony of current employees which contradicts statements
of their supervisors is likely to be particularly reliable because these
witnesses are testifying adversely to their pecuniary interests. Flexsteel
Industries, 316 NLRB 745 (1995); Gold Standard Enterprises, 234
NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2
(1961). Thus, a witness’ status as a current employee may be a signifi-
cant factor, but it is one among many which a judge utilizes in resolv-
ing credibility issues. See, e.g., Farris Fashions, 312 NLRB 547, 554
fn. 3 (1993), enfd. 32 F.3d 373 (8th Cir. 1994); Circuit-Wise, Inc., 309
NLRB 905, 909 (1992).

DHL EXPRESS, INC. 1405
Carolyn Fisher’s talk at the November 15–16 Employee Meet-
ings, Complaint Paragraph 5(f)
Respondent conducted five meeting sessions for employees
on November 15–16, 2006. the first session started at about 10
p.m.; a second session at 11:15 p.m.; a third at about 4:00 a.m.;
and a fourth at about 5:15 a.m. A fifth session was conducted
at about 11 a.m. for Respondent’s day-shift employees.
Thomas Roksvag started each meeting by introducing Caro-
lyn Fisher, who had been hired by DHL as its director of labor
relations only a few weeks previously. Fisher, who then con-
ducted the meetings, had held a similar position with Coca-
Cola Enterprises after spending several years as management
attorney practicing labor law. Each meeting was conducted in a
similar, but not identical fashion. Fisher did not read from a
script. The General Counsel’s evidence concerns only two of
the sessions, 10 p.m. (witnesses Grant, Hyden, Hamilton, and
Storer) and the 5:15 a.m. meeting (witnesses Jennifer Morris,
Rebecca Vandiver, and James Vandiver).
Fisher discussed similarities between Coca-Cola’s bottling
and distribution operations and DHL’s operations. Then she
told the employees about a public broadcasting program about
“noodling,” a way in which some people catch catfish by letting
the fish bite their bare hands. She used this story to communi-
cate to employees that they may not know what they are getting
into if they choose to be represented by the Union.
Fisher went on to discuss the election process, telling the
employees that there would be three choices on their ballots;
the Union, No Union, and the International Brotherhood of
Teamsters. She described how to mark ballots and encouraged
employees to vote by informing them that if they did not want
the Union and did not vote, the Union would represent them if
it received the majority of the votes cast.
Then Fisher told the employees that if the Union prevailed,
all it won was the right to call DHL and request bargaining.
She emphasized that employees were not voting for any par-
ticular collective-bargaining agreement.14 Additionally, she
said, Respondent was only required to listen to and consider the
Union’s proposals and was not required to agree to any of
them.
During each session, Fisher drew a pie chart, either on a
white board or a flip chart.15 At one or more of the sessions,
one of the slices had a $ sign to represent wages; other slices
were labeled vacation, sick time, retirement, and possibly “all
other.” At none of the meetings were any of the slices labeled
corporate profits, executive salaries, or “anything like that.”
(Tr. 437–438.) I credit the following testimony by Fisher with
regard to what she told employees at one or more of the meet-
ings in connection with the pie chart:

I said companies also prepare for negotiations and when com-
panies prepare for negotiations they create a negotiations
budget.

14 The Teamsters had been distributing one of its collective-
bargaining agreements amongst unit employees.
15 Fisher testified that the flip charts were discarded after each ses-
sion, Tr. 425.
And you know, I said every company has a budget and that
budget isn’t, doesn’t necessarily change from before negotia-
tions to after simply because a union is on the scene but the
companies come into negotiations with a budget.

That’s when I drew the pie chart that’s been referenced on
numerous occasions. And I did just hand draw the pie chart
on a white board.

There may have been, there may have been a couple of occa-
sions when it was on a flip chart but it, each time it was just a
hand drawn circle and just real rudimentary making pie pieces
on the chart.

And I said let’s say, you know, the employer comes into ne-
gotiations and they have their budget looking like this. And
so there was a dollar sign for wages and you’ve got health in-
surance and you’ve got vacation and sick time.

You’ve got retirement. And then I think I did one that was
just all other. And I said from the employer’s perspective,
you know, if a union’s saying, hey we want more in this area
and you’re an employer with a budget, you’ve got to figure
out where that money is going to come from.

And so as the employer you might say okay they want more
in this area, let’s see if we can find that money in this area.

I then wrapped up that part of the presentation by saying I’m
not, I can’t predict how negotiations will turn out because no
company can.

I also said the union can’t predict how negotiations will turn
out because I said at the end of the day you could end up with
more, you could end up the same or you could end up with
less but nobody knows.

(Tr. 413–414.)
Fisher also told employees that negotiations could last a long
time. Then she told the employees that it would be very diffi-
cult for them to get rid of the Union once it had been selected
as their collective-bargaining representative. She discussed the
1-year prohibition against decertification and the 3-year con-
tract bar rule, thus informing employees that they could be
stuck with the Union for 4 years even if they were dissatisfied
with it. She concluded this part of her talk by opining that it
was easier to get a divorce than get rid of a union.
Fisher testified that she never used the word “frozen,” and
never told employees that they would lose benefits in collective
bargaining. She testified that she told employees that they
could gain, lose, or stay the same as the result of the negotia-
tions.
I credit Fisher’s testimony that she did not say wages would
be frozen and that she told employees that they could gain, lose,
or stay the same in collective bargaining. Her testimony in this
regard is corroborated by some of the General Counsel’s evi-
dence, which is discussed below.
Fisher spoke for approximately 30–40 minutes and then en-
tertained questions. An employee at one meeting asked Fisher
about the effect of “Right to Work” laws. Fisher responded by
saying that Ohio was not a “Right to Work” state and therefore
if employees selected the Union, all unit members would either
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1406
have to join or pay to the Union an amount equivalent to that
portion of the union dues attributable to the Union’s representa-
tional activities.
Another employee asked if wages would be “frozen” during
collective-bargaining negotiations. Fisher testified that her
response was that this was not the correct terminology; that the
correct term was “status quo,” that whatever employees had
presently would continue through contract negotiations, includ-
ing step increases and vacation accrual. She also testified that
she discussed step increases at each meeting even though she
did not know whether or not DHL had an established practice
of granting step increases. Despite this, she discussed step in-
creases because she felt it was the easiest way to explain to
employees the meaning of maintaining the “status quo.”
I credit Fisher’s testimony regarding her discussion of step
increases and the “status quo.” I find that it is essentially cor-
roborated by employee Jerry Hyden’s affidavit and Jennifer
Morris’ testimony on this subject.
General Counsel Testimony Regarding the Meetings Con-
ducted by Carolyn Fisher on November 15–16.16
The 10:15 meeting

Robert Storer, who attended the 10:15 meeting on November
15, testified there were no questions asked of Fisher at the
meeting he attended. He also testified that on the pie chart
drawn by Fisher at the meeting he attended, she left some pie
slices blank. Other than that, Storer’s testimony is consistent
with Fisher’s.
Jerry Hyden testified that all the pie slices pertained to em-
ployee benefits. Hyden also testified that there was a question
and answer session in which Fisher told employees that “wages
and things” would be frozen during negotiations. He specifi-
cally stated that Fisher did not say that step increases would
continue during bargaining. However, in an affidavit given to a
Board agent on December 5, 2006, Hyden wrote:

Ms. Fisher explained that but if it was status quo, then that
meant if you were already promised wage increases, then
things would stay the same.

On the basis of this statement in Hyden’s affidavit, I credit
Fisher’s testimony that she explained to employees what status
quo meant—using the example of step increases that were a
company’s established practice.
Donald Grant testified that in response to a question, Fisher
stated the wages would be frozen during contract negotiations.
However, in an affidavit given a Board agent he said Fisher did
not use the word frozen, but that she did say wages would not
increase during contract negotiations. I therefore do not credit
his testimony that Fisher told employees that wages would be
frozen.
Grant also testified about Respondent’s pay increases. Then
he responded to the following question:

16 Fisher also spoke to employees on November 28. There is virtu-
ally no evidence in this record about the November 28 meeting ses-
sions.
Q. Okay, Did Ms. Fisher state whether those pay increases
would continue during negotiations with the Union?
A. She kind of left it open, but she –she didn’t—she did not
say anything about anything—any of the status quo. She—
basically said that the wages would be frozen when there was
negotiations, and that—you know, people would be unhappy.

(Tr. 98–99.)
I view Grant’s testimony as corroborating Fisher’s testimony
that she discussed step increases as an example as what was
meant by maintaining the status quo. Not only does his testi-
mony indicate that Fisher discussed step increases, his use of
the term “status quo” when he had not been asked about “status
quo” strikes me as calculated. I infer Grant knew that whether
“status quo” was discussed was an issue in this case and that he
knew it was important to the Union’s case to establish that
Fisher did not tell employees that Respondent would maintain
the “status quo” during negotiations or explain what the term
meant. On cross-examination, Grant conceded that he could
not recall whether or not Fisher used the term “status quo.” He
also recalled that Fisher did say that in negotiations employees
could end up with more, less, or the same.
The 5:15 a.m. Meeting Session, November 16, 2006
Jennifer Morris testified that she attended the 5:15 a.m.
meeting. Her testimony is largely consistent with Fisher’s.
Morris testified that when Fisher drew the pie chart she told
employees that the pie can’t get bigger and that if one slice of
the pie gets bigger, another must get smaller. According to
Morris all of the slices pertained to employee benefits; none
were labeled management salaries, advertising, or capital im-
provements. I credit Morris’ testimony. Fisher, who testified
after Morris and who was in the courtroom when Morris testi-
fied,17 did not specifically refute Morris’ testimony that Fisher
told employees that the pie could not get bigger and that gains
from one piece of the pie must come from another slice. Addi-
tionally, Fisher was unsure as to whether a slice was labeled
“all other” at any of the meetings and did not testify that a slice
was so labeled at all the meetings.
Morris asked Fisher if employees would continue to get step
increases at the time they received their performance evalua-
tions. Fisher responded by saying that employees would con-
tinue to get such increases if they were not merit based, but not
if they were merit based, (Tr. 45–46).
I credit Morris’ testimony in this regard. Fisher denied using
the term “frozen,” but her testimony not only doesn’t refute
Morris’ testimony regarding merit-based step increases; it tends
to corroborate it. Fisher testified:

I didn’t know at the time that DHL had a step increase pro-
gram but I actually said, so for instance if you have step in-
creases that are already, that are automatic at a certain time or
if you have increases that where at certain time periods you’re
scheduled to get an increase, that continues. [Tr. 419.]

17 Tr. 10–11.
DHL EXPRESS, INC. 1407
Morris corroborated Fisher’s testimony that she told employ-
ees that as a result of collective-bargaining negotiations, em-
ployees could end up with more, less, or the same benefits.
Rebecca Vandiver, who attended the 5:15 meeting, recalled
that one of the slices of the pie chart contained a dollar sign.
She testified that Fisher did not explain what that meant.
Vandiver did not recall any other slices that did not pertain to
an employee benefit.
James Vandiver, Rebecca’s husband, had a somewhat differ-
ent recollection. He recalled one slice as being for “the com-
pany.” On direct examination, James Vandiver testified that
when an employee asked whether the money for increased em-
ployee benefits could come from the company slice, Fisher
simply didn’t respond. On cross-examination, he testified that
Fisher responded by saying that money for employees could not
come from the company slice. James Vandiver’s testimony is
so confusing and at times contradictory that I give it no weight.
Analysis
Respondent violated Section 8(a)(1) on or about September
15, 2006, as alleged in complaint paragraphs 5(a) and (c).
An employer’s statement that wages will be frozen until a
collective-bargaining agreement is signed violates Section
8(a)(1) of the Act if the employer has a past practice of granting
periodic wage increases, Jensen Enterprises, 339 NLRB 877,
884–885 (2003), and cases cited therein; Alpha Cellulose
Corp., 265 NLRB 177 (1982), enfd. mem. 718 F. 2d 1088 (4th
Cir. 1983).
Respondent cites to two earlier cases, Montrose-Haeuser
Co., 306 NLRB 377 (1992), and Uarco, 286 NLRB 55 (1987),
which appear to me to be inconsistent and materially indistin-
guishable from Jensen Enterprises and the cases cited therein.
In Montrose-Haeuser, however, the employer, unlike Respon-
dent DHL, specifically told employees that its past practices of
granting a Christmas bonus and annual merit increase would
continue, while there is no evidence that Respondent in the
instant case ever gave such assurances.18
Nevertheless, the decisions in Uarco and Montrose-Haeuser
suggest that an employer, whose past practice includes regular
scheduled wage increases, does not violate the Act if it says
wages will be frozen 1 minute and says that it will maintain the
status quo the next—at least so long as it does not violate the
Act in other respects. Given the factual circumstances in Jen-
sen Enterprises, those cases appear to have been overturned
subsilento by the Board.19 Thus, I conclude, pursuant to Jen-

18 I do not equate Carolyn Fisher’s hypothetical example of step in-
creases to have the same import as a statement by Respondent that
employees will continue to receive their step increases during collec-
tive-bargaining negotiations. At the 5:15 a.m. meeting, her response to
Jennifer Morris’ question suggested that Respondent would not con-
tinue giving merit based step increases during collective-bargaining
negotiations. Moreover, it has not been established that every em-
ployee who received Respondent’s September 2006 memo heard
Fisher’s November 15–16 presentations. Attendance at these meetings
was not mandatory (Tr. 325).
19 But see American Red Cross Missouri-Illinois Blood Services Re-
gion, 347 NLRB 347 fns. 5 & 7, 364 (2006). Neither the Board’s or
Judge’s decision in American Red Cross mentions the Jensen Enter-
prises decision.
sen, that Respondent’s memo, General Counsel’s Exhibit 2 and
Carla Ford’s remarks on September 15, violated Sec. 8(a)(1).
Respondent, by Carolyn Fisher, violated Section 8(a)(1) by
threatening employees that it would be futile for them to select
the Union as their collective-bargaining representative.
An employer violates Section 8(a)(1) by threatening employ-
ees that attempts to secure union representation would be futile,
Wellstream Corp., 313 NLRB 698, 706 (1994). I find that Re-
spondent, by Carolyn Fisher, violated Section 8(a)(1) on No-
vember 15–16, 2006. Fisher’s use of the pie chart clearly was
intended to communicate to unit employees that they could not
gain anything by selecting the Union as their collective-
bargaining representative. A reasonable person listening to
Fisher would have clearly understood this to have been her
message.
What was less clear from Fisher’s presentation was whether
Respondent could not increase any benefit without a corre-
sponding decrease in a different benefit, or that Respondent,
was as a matter of policy, unwilling to do so. She certainly
made no attempt to convey to employees that there were objec-
tive facts beyond Respondent’s control that would prevent it
from increasing their benefits. A reasonable employee would
have likely concluded that Respondent was threatening em-
ployees with a negotiating posture, i.e., that employees would
not gain any increase in any benefit during collective-
bargaining negotiations without an offsetting reduction in other
benefits. I draw this inference because Fisher made no effort to
explain why money for increased employee benefits could not
come from sources other than employee benefits. Indeed, at the
5:15 meeting, she told employees that the pie, which only in-
cluded employee benefits, could not get bigger.
While Fisher also told employees that they could gain, lose,
or stay the same as the result of collective bargaining, I con-
clude that she did not cure, negate, or minimize the impact of
her use of the pie charts on a reasonable employee, Noah’s New
York Bagels, 324 NLRB 266, 267 (1997).20 The message from
her pie chart presentation, i.e., that collective bargaining would
be a “zero sum game” was likely to be the most vivid and last-
ing impression left with employees, regardless of what else
Fisher told them. Indeed, given Respondent’s earlier commu-
nication to employees that the Union would bargain away bene-
fits for such items as union security, Fisher’s pie chart presenta-
tion would likely leave employees with the impression that if
they selected the Union, collective bargaining would either end
up without an agreement or a loss of benefits for employees. I
therefore find that Fisher’s manner of utilizing the pie chart on
November 15–16, 2006, violated Section 8(a)(1) in threatening
employees that selection of the Union as their bargaining repre-

20 An employer may cure the impact of an unlawfully coercive
statement by making an explicit, “unambiguous, specific” repudiation
of it and assuring employees that no such violation will occur again,
Passavant Memorial Area Hospital, 237 NLRB 138, 139 (1978). How-
ever, Respondent made no such repudiation of either its statements to
employees that wages would be “frozen” or the threats/suggestions of
futility communicated to employees during Fisher’s use of her pie
charts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1408
sentative would be futile, NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969).21
Respondent, by Carolyn Fisher, violated Section 8(a)(1) in
threatening employees that their wages would not increase
during negotiations, as alleged in complaint paragraph 5(f)(ii).
The Board with court approval has consistently found that
merit increase programs that are fixed as to timing are a term
and condition of employment, notwithstanding an element of
discretion retained by an employer in setting the amount of
such raises, Jensen Enterprises, supra; Oneita Knitting Mills,
205 NLRB 500 fn. 1 (1973). Accordingly, if the Union won an
election, Respondent could not lawfully discontinue its practice
of granting merit increases, until it bargained to agreement or
impasse with the Union. Carolyn Fisher responded to a ques-
tion from Jennifer Morris at the 5:15 a.m. meeting session on
November 16, by telling employees that they would not receive
step increases during collective-bargaining negotiations, if
these increases were merit based. This response amounted to a
threat to unilaterally deprive employees of benefits because
they supported the Union. Thus, the response violated Section
8(a)(1).
Respondent, by Rob Darner, violated Section 8(a)(1) by tell-
ing James Hamilton that if employees selected the Union, he
would have to strictly enforce Respondent’s rules requiring
employees to be prompt in reporting to their workstation.
It is unlawful to threaten stricter enforcement of rules or
policies because employees may vote to have union representa-
tion. See, e.g., Miller Industries Towing Equipment, 342 NLRB
1074, 1082 (2004) (statement that rules would be enforced to
the letter if the union came in held violative), citing Mid Moun-
tain Foods, 332 NLRB 229, 237–238 (2000), enfd. 269 F.3d
1075 (D.C. Cir. 2001).
I find that Respondent, through Supervisor Rob Darner,
threatened James Hamilton with stricter enforcement of its
work rules regarding being late to his workstation. As dis-
cussed on page 4 herein, I find that Darner did so regardless of
whether he said he would have to mark Hamilton as tardy, or
that he might have to mark Hamilton as tardy.

21 Respondent’s brief cites Save Mart Supermarkets, 326 NLRB
1146, 1150 (1998), for the proposition that it did not violate the Act in
the manner it which it utilized the pie charts. In that case, the Judge
found that the employer’s use of a pie chart did not violate the Act.
However, the judge directed a second election on the basis of other
objectionable conduct. The General Counsel did not file exceptions to
the Judge’s decision, but the Respondent and the Charging Party did so.
It is unclear from the Board’s decision whether the Charging Party’s
objections covered the Judge’s disposition of the pie chart issue, be-
cause the judge overruled other objections as well. Well-established
Board policy is to adopt an administrative law judge’s findings to
which no exceptions are filed. However such findings are not consid-
ered precedent for any other case, Colgate-Palmolive Co., 323 NLRB
515 fn.1 (1997).
Even assuming that the Charging Party’s exceptions to the Judge’s
decision in Save Mart covered the pie chart ruling, it is not clear that
his ruling on this issue was reviewed by the Board which affirmed the
decision. It may be that Board did not deem that the union was ag-
grieved by the judge’s ruling regarding the pie chart. I view Save Mart
as having very limited precedential value on the pie chart issue.
Summary of Conclusions of Law
1. Respondent violated Section 8(a)(1) by distributing to its
employees in September 2006 a memorandum stating that
wages, benefits, and working conditions would be frozen pend-
ing the outcome of negotiations if employees selected the Un-
ion as their collective-bargaining representative. This effec-
tively constitutes a threat that employees will lose benefits if
they chose union representation.
2. Respondent, by Carla Ford, violated Section 8(a)(1) in
September 2006, by telling employees who reported to her that
during collective bargaining there would be no step increases
and that wages would be frozen.
3. Respondent, by Rob Darner, violated Section 8(a)(1) by
threatening employee James Hamilton with stricter enforce-
ment of Respondent’s work rules if employees selected the
Union as their collective-bargaining representative.
4. Respondent, by Carolyn Fisher, violated Section 8(a)(1) in
using a pie chart in such a manner as to suggest to employees
that selection of the Union would be futile in that Respondent
would not and/or could not grant employees any greater bene-
fits than they enjoyed without union representation.
5. Respondent, by Carolyn Fisher, violated Section 8(a)(1) in
telling employees that they would not receive merit-based step
increases during collective-bargaining negotiations.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, DHL Express, Inc., Wilmington, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with a loss of benefits, specifi-
cally periodic wage increases, if they select the Union as their
collective-bargaining representative.
(b) Threatening employees with stricter enforcement of its
work rules, if they select the Union as their collective-
bargaining representative.
(c) Threatening employees with statements suggesting that it
would be futile to select the Union as their collective-
bargaining representative because Respondent would not and/or
could not grant them benefits that were more favorable than
those employees already enjoyed.
(d) 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 effec-
tuate the policies of the Act.

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DHL EXPRESS, INC. 1409
(a) Within 14 days after service by the Region, post at its
Wilmington, Ohio facility copies of the attached notice marked
“Appendix.”23 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. 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 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 employ-
ees employed by the Respondent at any time since September
15, 2006.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(c) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities

WE WILL NOT threaten our employees with loss of benefits,
specifically the loss of periodic wage increases if they select the
Union as their collective-bargaining representative.
WE WILL NOT threaten our employees with stricter enforce-
ment of our work and/or disciplinary rules if they select the
Union as their collective-bargaining representative.
WE WILL NOT threaten our employees with statements indi-
cating that it would be futile to select the Union as their collec-
tive-bargaining representative by suggesting to them that col-
lective-bargaining negotiations will not and/or cannot result in
improved wages, benefits, and/or working conditions.
DHL EXPRESS, INC.