DPI New England

National Labor Relations Board - Administrative Judge Opinions

May 29, 2009

01-CA-044833 (N.L.R.B. May. 29, 2009)

JD–22–09
CANTON, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DPI NEW ENGLAND
and Case 1-CA-44833
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 25
Elizabeth Tafe, Esq., and
Emily Goldman, Esq.
for the General Counsel.
Arthur M. Brewer, Esq., and
Kraig B. Long, Esq.
(Shaw and Rosenthall, LLP)
Baltimore, Maryland
for the Respondent.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. This case was tried in Boston, Massachusetts,
on February 9, 10, and 11, 2009. The allegations concern the actions of DPI New England (the
Respondent) during a union organizing campaign that began among its employees in June
2008. The International Brotherhood of Teamsters, Local 25, (the Union) filed the initial charge
on July 25, 2008, and an amended charge on December 16, 2008. The Director of Region One
of the National Labor Relations Board (Board) issued the complaint on December 31, 2008.1
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by interrogating employees about union activities, and creating the
impression that the employees’ union activities were under surveillance. The complaint further
alleges that the Respondent violated Section 8(a)(3) and (1) by discriminating based on
employees’ Union and other protected concerted activities when it: suspended and terminated
employee Derek Mace; issued disciplinary warnings to employee Frederick "Rick" Crane; and
imposed a new eligibility requirement that resulted in the constructive discharge, or discharge,
of three drivers (Alexander Adorno, Roger Beattie, and Anthony Glover). The Respondent filed
a timely answer in which it denied that it had committed any of the unfair labor practices alleged
in the complaint.

1 All dates are in 2008 unless otherwise indicated.
JD–22–09
5
10
15
20
25
30
35
40
45
50
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The Respondent, a corporation, with an office and place of business in Canton,
Massachusetts, distributes goods to stores that Starbucks Corporation owns and operates
throughout New England. In conducting this business, the Respondent annually purchases and
receives at its Canton facility goods valued in excess of $50,000 directly from points outside the
Commonwealth of Massachusetts, and annually provides services valued in excess of $50,000
to Starbucks Corporation, an entity engaged in interstate commerce in states other than the
Commonwealth of Massachusetts. The Respondent admits, and I find, that it is employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
The Respondent is a distribution and supply company that delivers products to 325
Starbucks stores and licensed Starbucks venders (collectively referred to as "Starbucks stores"
or "stores") in Connecticut, New Hampshire, Maine, Massachusetts, New York, Rhode Island,
and Vermont.2 In addition, the Respondent delivers Starbucks products to a number of
distribution centers operated by other companies. The Respondent has a facility in Canton
Massachusetts, where products are received, stored, and loaded for delivery. Its corporate
offices are located in Maryland. The Respondent uses trucks to make its deliveries and also to
pick up some of the product that it delivers. Much of the product that the Respondent transports
is Starbuck’s own inventory and the Respondent is only responsible for receiving that product at
the Canton facility and delivering it to Starbucks stores and distribution centers. Other
categories of product are owned by the Respondent and purchased from it by Starbucks. As of
the time of the trial, the Respondent employed 50 truck drivers3 and 47 warehouse workers.
The Respondent’s truck drivers and warehouse workers are supervised, respectively, by
transportation supervisors and warehouse supervisors. During the time period covered by the
complaint the Respondent also had a transportation manager, Dave Robitaille. The supervisory
personnel report to Frank Driscoll, the Respondent’s operations manager. Driscoll, in turn
reports to Mark Donahue, who is the Respondent’s director of operations. Driscoll has been
operations manager since July 2007. Donahue has been the director of operations since some
time in 2007, and before that he was the Respondent’s operations manager.
The delivery services that the Respondent provides to Starbucks expanded significantly
in recent years. The Respondent began its operations in approximately 2005 and until March
2008 the types of products it delivered were limited to paper products (such as, cups, lids,
napkins, paper towels), dairy items, juices, water, pastries, and sandwiches. Starting in March

2 The Respondent’s only client is Starbucks, but it is associated with a larger corporate
entity that has clients besides Starbucks. Starbucks does not own the Respondent.
3 This total is down slightly from July 2008, when the Respondent employed approximately
55 drivers.
JD–22–09
5
10
15
20
25
30
35
40
45
50
3
2008, the Respondent added two broad categories of product known as "high volume" items4
and "cross dock coffee." High volume items include those things that the Starbucks stores use
in large quantities on a daily basis. The "cross dock coffee" category includes not only coffee,
but also coffee mugs, coffee makers, musical recordings, signs, display tables and other
miscellaneous items seen in Starbucks stores.
In an effort to prepare for the increased workload, the Respondent added eight to ten
trailers to its truck fleet and hired additional drivers. On March 1, 2008, the Respondent split
most of its routes in order to reduce the number of stores covered by each route and help
accommodate the larger deliveries it was making to individual stores.5 Nevertheless, between
March and May 2008, truck drivers began to notice very substantial increases in the total cargo
they were carrying on their trucks.
In August 2008, the Respondent began selling Starbucks the paper products that it
delivered to the stores. Prior to that time, the Respondent received pre-assembled pallets of
Starbucks-owned paper products and then delivered those pallets to individual stores on a
weekly basis. After the Respondent began to sell the paper products to Starbucks, it began
making such deliveries to individual stores on a daily, rather than a weekly, basis. It appears
that the August 2008 changes in the Respondent’s role with respect to paper products
increased to some extent the size of the loads the Respondent was carrying on its trucks
As a result of the increase in the amount of product being delivered, the Respondent
found that, by April 2008, it was sometimes unable to fit the cargo for a route onto one of its
smaller, "straight truck," vehicles and was forced to remove that product and reload it onto a
larger tractor-trailer truck. In some instances this meant that the driver who usually made the
deliveries, and therefore was familiar with the route, had to ride together with a driver who was
qualified to operate the larger tractor-trailer truck. In such instances, the Respondent paid two
drivers to complete a route that was usually completed by a single driver. The larger loads also
increased the extent to which cargo had to be "stacked" in order to fit on the straight trucks, and
this meant that the product was damaged more frequently. The Respondent’s tractor-trailer
trucks were large enough to accommodate product without this increased stacking. In its brief
the General Counsel concedes that, as a result of the larger size of the loads, the "Respondent
apparently experienced limitations on its ability to effectively utilize the straight trucks." Brief of
General Counsel at 9.
The stacking of product on the straight trucks also made it more difficult and time
consuming for drivers to load and unload those trucks. This was a serious concern to the drivers
because they are paid by the "trip" – meaning that they receive a fixed amount of compensation
for completing a route, regardless of how long that takes. Thus the drivers do not receive any
additional compensation even if an increase in load size means they have to work longer shifts.
The Respondent expects that it will take a driver 10 hours to complete the day’s route and
associated tasks. However, some drivers found that with the increased size of the loads the
"trips" were consistently taking more than 10 hours to complete. This appears to have been

4 The high volume items are often referred to in the record as "SKUs."
5 Generally a driver is assigned to the same route for an extended period of time. Each
night-shift route is serviced 7 days a week. One night-shift driver completes the route 4 days a
week, and another night-shift driver completes the same route 3 days a week. The driver who
delivers the route 3 days a week will work one additional night shift as a "floater" who can
perform a variety of driving and other tasks. On average there are 3 floaters on a night shift.
The drivers who service the day routes do not switch off with another driver in this manner.
JD–22–09
5
10
15
20
25
30
35
40
45
50
4
one of the concerns that led drivers to initiate the union campaign.
B. Union Campaign
During the second week of June 2008, employee Roger Beattie, who operated one of
the Respondent’s straight trucks, contacted the Union about representing employees at the
Respondent’s facility. Shortly thereafter, the Union supplied Beattie with union authorization
cards and prounion literature. Beattie distributed between 40 and 45 authorization cards, and
prounion literature, to truck drivers employed by the Respondent. He also organized meetings
between truck drivers and union officials. Union officials held three meetings with drivers over
the course of two weeks during the first part of July. The initial two meetings were both held at
the headquarters of the union local and attracted between two and four drivers each. The third
meeting was held at a donut store in Canton and was attended by between 15 and 20 drivers.
Another straight truck driver, Frederick "Rick" Crane, supported the organizing campaign
by passing out 20 union cards to drivers, distributing prounion literature to approximately 8
drivers, talking to people about the Union, signing a union card himself, and attending a union
meeting. The record does not reveal precisely when Crane engaged in most of these activities.
However, it does show that the union meetings Crane and other drivers attended took place in
the first part of July, and that Crane had distributed union literature by September 14 at the
latest.
During roughly the same time period when Beattie and Crane were working to generate
support for the Union among drivers, Derek Mace, a warehouse employee, was leading an
effort to generate support among the Respondent’s warehouse workers. Mace obtained union
authorization cards from Beattie, and distributed 20 or more such cards to warehouse
employees. In June and July, Mace had conversations about the Union with other employees
on a daily basis, and eventually raised the subject with almost every one of the Respondent’s
approximately 47 to 50 warehouse employees. In some instances Mace initiated these
conversations, and in others the employees did so. None of Mace’s conversations about the
Union were heated and none of the employees told him not to talk to them about the Union. In
some instances, Mace’s conversations with employees took place while the other employee
was working. However, the record shows that employees could perform warehouse work while
they were talking about non-work related matters, and Mace credibly testified that his
conversations with employees did not disrupt their work. Indeed it is undisputed that warehouse
employees routinely talk about a variety of other subjects while working – including sports and
after-work activities – without interference from the Respondent. On July 17 2008, there was a
Union meeting for the warehouse employees at a restaurant in Canton, Massachusetts. This
meeting was attended by officials of the Union and a group of about 10 warehouse employees.
Mace discussed his concerns about workplace safety with an official of the Union. The union
official suggested that Mace report his concerns to the Occupational Safety and Health
Administration (OSHA), and Mace did so in June or July. Shortly thereafter, OSHA investigators
visited the Respondent’s facility to perform an inspection. The record does not disclose the
exact date of that inspection, but it is clear that it occurred sometime before July 28.6

6 A letter sent to the Union by the Respondent’s counsel states that the inspection occurred
on July 25, General Counsel’s Exhibit 21, but there was no sworn testimony to that effect and
no OSHA notice or other documentary evidence confirming the date. In its brief, the
Respondent states that it had no knowledge of Mace’s involvement in the OSHA inspection at
the time it suspended him. Brief of Respondent at 29, Paragraph 170. Before the suspension
was converted to a discharge, however, the Union circulated a flyer concerning Mace’s OSHA
Continued
JD–22–09
5
10
15
20
25
30
35
40
45
50
5
Mace’s efforts on behalf of the Union did not prevent him from performing his job duties,
which consisted mainly of "picking" milk products that were designated for particular orders and
organizing those products onto pallets that would then be loaded onto trucks for delivery to
stores. On a typical day during the summer of 2008 there were approximately 24 such orders,
and between three and four people picking the orders. Mace usually picked between eight and
ten orders. He also helped to load trucks.7
Approximately 25 to 30 of the Respondent’s approximately 50 to 55 truck drivers signed
authorization cards and returned them to Beattie. The record does not reveal how many of the
approximately 47 warehouse employees signed union cards. Among the issues that drivers
were concerned about were the replacement of trip pay with hourly pay and the institution of
new retirement benefits. Not all employees welcomed the union effort. In late June 2008, Ron
Belanger,8 after speaking to one of the Respondent’s warehouse supervisors (Barry Lopes),
approached Beattie and complained that the union supporters were "screwing everybody over."
Subsequently, on occasions in July and August, Belanger made further comments in the same
vein to Beattie. In August, Belanger approached another union supporter, Crane, and said:
"Hey pussy boy. The Union is not getting in. You used my name." Subsequently, Crane
attempted to explain his position regarding the Union to Belanger. Belanger did not respond to
Crane, but rather walked away and went to talk to the Respondent’s operations manager,
Driscoll.
C. Management Meets with Employees
By late June, Driscoll had heard about the existence of the union effort at the facility. In
response to the organizing effort, the Respondent required employees to attend meetings at
which Donahue, the Respondent’s director of operations, delivered remarks opposing
unionization. Drivers were required to attend such a meeting in the facility’s break room on July
11. In addition to Donahue, there were two warehouse supervisors – Rod Grippen and Lopes –
present for management. Donahue stated that he had "heard bad rumors" that "a lot of people
wanted the union in." He warned the drivers that "there should be no union activity on the
_________________________
complaint to the Respondent and others.
7 Driscoll testified that he received reports from employees and supervisors that Mace was
not performing his job duties and was interfering with other employees’ work. However, the
Respondent failed to call any of those employees or supervisors to testify about what they had
witnessed. Mace, on the other hand, appeared as a witness and testified that while talking
about the Union he continued to complete his work and did not interrupt the work of others.
Although Mace was an ardent union supporter, and has a personal stake in the outcome of this
proceeding, I found him generally credible based on his demeanor and the record as a whole.
With respect to the question of whether Mace actually failed to meet his responsibilities as an
employee and interfered with the work of other employees, Driscoll’s testimony is hearsay and,
given the record here, is outweighed by Mace’s credible contrary account. The reliability of
Mace’s testimony on this subject was enhanced by the level of detail he provided. Mace
specified how many milk orders were typically completed during his shift (24), how many
employees those orders were divided among (3 to 4), and how many of the orders he himself
was completing per shift (8 to 10). Driscoll, on the other hand, gave only general testimony
about reports that Mace was leaving his work area and not completing his work. Driscoll did not
state how many milk orders Mace was expected to complete or how many he was completing.
Nor did Driscoll contradict Mace’s testimony regarding those numbers.
8 This individual’s name also sometimes appears in the transcript spelled "Balanger."
JD–22–09
5
10
15
20
25
30
35
40
45
50
6
property," and that such activity was a "terminatable (sic) offense." Donahue also stated that he
was disappointed by the union activity since the Respondent had always had "an open door
policy." He invited the drivers to discuss their grievances. A number of drivers spoke. Beattie,
publicly complained that there had recently been a dramatic increase in the workload on his
route. He expressed the view that the Respondent had increased his workload in retaliation for
his efforts on behalf of the Union.9 Crane also spoke at the meeting. He complained that the
Respondent was not paying employees for attending the mandatory meeting. When Donahue
asked why employees wanted union representation, Crane answered by describing a safety
problem and complained that even after that problem had caused an injury, the Respondent
neglected to repair it. Either at, or immediately following, this meeting, Driscoll told Beattie and
two other drivers who were not qualified to drive tractor-trailer trucks, that they should begin the
process for upgrading their commercial drivers’ licenses.
In July, the Respondent also held a meeting in the break room to discuss the union
campaign with warehouse employees. Present at the meeting from management were
Donahue, Driscoll, and a warehouse supervisor named Barry Baldack.10 Donahue informed the
employees that there was "talk of . . . a union going around the warehouse." He told them, "You
don’t need this, we don’t need a third party, you know, we’re like family." Donahue reminded
them that in the past he had provided jobs to immediate family members of incumbent
employees. He said he wanted to know "if anyone has information on what" is "going on."
Donahue also warned that he was "not going to let anybody to solicit on company property." He
said "I’m not going allow somebody to come here and sell you guys carpets, so I’m not going to
let somebody come in and sell union to you guys either."
Prior to the union campaign, the Respondent had never told Crane that employees could
not discuss any non-work topic while working, much less said that such discussions were a
"terminatable offense." Moreover, the Union was the only topic that Crane ever heard the
Respondent’s officials declare off limits for work-time discussions. Similarly, prior to the union
campaign, the Respondent had never told Mace that employees were not permitted to solicit
during work. The record does not include any written company policy against solicitation and
distribution and the Respondent has not asserted that such a written policy existed. Indeed, the
record shows that it was common for employees to distribute sales catalogues, ask co-workers
to purchase items, and make fund raising solicitations both in the break room and in work areas
of the facility. Such solicitations sometimes occurred while the employees were working.
Also in July, Driscoll questioned a driver named Anthony Glover about conversations
that Beattie had been having on the dock with other employees. Glover and Beattie were
friends, and Glover was aware of the union campaign in early July and signed a union
authorization card. Driscoll called Glover by phone while Glover was driving his truck to make
deliveries. He asked whether Glover could tell him what "Beattie is talking to all the drivers for?"
Driscoll cautioned Glover to be "real frank . . . real serious." Glover responded that he did not
know what Driscoll was talking to employees about. It was unusual for Driscoll to contact
Glover while he was driving his route. Generally Driscoll only did so if there was something he
needed to communicate regarding the deliveries.

9 Beattie did not address this remark directly to Donahue, but to another employee.
However, the testimony leads me to find that Beattie made the remark as part of the public
back-and-forth at the meeting. See Transcript at 70 to 71.
10 This individual’s name also sometimes appears in the transcript spelled "Baldeck."
JD–22–09
5
10
15
20
25
30
35
40
45
50
7
D. Mace Terminated
The Respondent discharged Mace – the lead union organizer among the warehouse
workers -- on August 4, after suspending him on July 24. Mace had been working for the
Respondent since February 2006. Driscoll informed Mace of the suspension at a July 24
meeting held in Donahue’s office. Warehouse supervisor Baldack was also present. Driscoll
stated that he knew Mace was responsible for the union organizing and said that other
employees felt "threatened" by him and were "scared" that they were "going to lose their jobs."
Mace was not provided with any disciplinary paperwork at this meeting, but Driscoll stated that
he was being suspended until further notice because he was not working, was interfering with
other employees, and was soliciting on company time and where other people were working. At
the meeting, Mace responded: "I haven’t done anything wrong, . . . I haven’t broken any laws
and I don’t understand why I’m being suspended. I do my work all the time." Mace also told
Driscoll that he had "nothing to do with the Union." During the period leading up to the July 24
suspension, no supervisor had told Mace that he was not getting his work done.
In a subsequent letter, dated July 28, Driscoll stated that Mace was suspended "pending
further investigation into complaints made by employees" that he was "interfering with their
work." The letter informed Mace that "it may be necessary to take further disciplinary action up
to and including dismissal, if the investigation concludes that you violated the company’s
Solicitation and Distribution policy." The letter makes no mention of Mace failing to perform his
own duties. The next week, Driscoll and Baldack met with Mace a second time. Driscoll testified
that he told Mace: "[Y]ou lied. You lied to me about where you were, you lied to me about
soliciting and looking for Union votes . . . in the warehouse, handing out literature in the
building."
After the second meeting with Driscoll and Baldack, Mace received a letter, signed by
Driscoll and dated August 4, 2008, which stated that Mace’s employment with the Respondent
was terminated effective that day. The letter set forth the bases for termination as follows:
- Interfering with your co-workers’ jobs
- Not doing your work
- Dishonesty towards Management
- Violation of the No Solicitation and Distribution Policy.
In addition, the letter stated that:
During the course of the investigation you categorically denied interfering with
your co-workers performance of their jobs. We have information from several
sources w[hich] substantiate you did, in fact, interfere with your co-workers while
they were working. In short, you lied to management.
Prior to the suspension, Mace had never received any warnings or other discipline for interfering
with co-workers’ performance of their job duties, failing to perform his own work, dishonesty
towards management, or violation of any policy on solicitation or distribution.11 At trial, Driscoll
testified that he "might have" told an agent of the Board that by "dishonesty to management," he
meant that Mace had denied involvement with the Union. As discussed above, during the

11 There was evidence that Mace had had attendance problems in the past. The
Respondent concedes that those prior attendance problems had nothing to do with Mace’s
suspension and termination.
JD–22–09
5
10
15
20
25
30
35
40
45
50
8
second meeting regarding Mace’s discipline, Driscoll told Mace, "[Y]ou lied to me about
soliciting and looking for Union votes . . . in the warehouse, handing out literature in the
building."
At trial, Driscoll was the only witness who testified for the Respondent about the
shortcomings upon which Mace’s suspension and termination were purportedly based. Driscoll
could recount just one specific incident that he personally witnessed. Driscoll testified that in
late June or July 2008, he witnessed Mace giving Beattie a ride along the Respondent’s dock on
an unloaded pallet jack.12 Then Mace and Beattie went into Beattie’s trailer and remained there
for approximately 20 minutes. Driscoll testified that he eventually told Mace to return to work
and that Mace said he had been helping Beattie. Driscoll states that, on the same day, many
employees were straying from their normal work patterns and that he counseled at least one
other driver – this one not an alleged discriminatee – for failing to load his truck in a diligent
manner. Driscoll also stated that drivers were going "truck to truck" that day, something that he
described as unusual.13
Driscoll testified that in addition to the one incident regarding Mace that he witnessed, he
received multiple reports that Mace was not doing his job or was interfering with others. More
specifically, Driscoll stated that over a 10-day period in late July 2008 he had received
complaints about Mace from employees Scott Auger, Harold Baker, Mark Cinelli, Tony
Mederios, and Tom Taft, and from supervisor Roy Blakely.14 As alluded to above, not one of
the seven individuals named by Driscoll were called by the Respondent to testify about Mace’s
alleged infractions or about their conversations about Mace with Driscoll. Instead the
Respondent relied on Driscoll’s account of what they told him.
Driscoll stated that, Auger, a warehouse worker, complained that Mace was coming to
the high volume section of the warehouse a couple of times a day, talking to employees, and
that "they’re not getting the product out fast enough." Driscoll testified that he told Auger that he
would "talk to Derek [Mace] and tell him to stay out of there." Driscoll testified that Baker, a
truck driver said: "Dude, what’s going on? I . . . got this guy from the warehouse that delivers
milk in my truck, I’m trying to unload and . . . all he’s doing is talking to me about Union. I kept
saying ‘Look, will you let me unload?’" According to Driscoll, Baker asked "Can you do
anything about it?," and Driscoll responded: "I’ll talk to him about staying off of the trucks. He
can’t stop you from working." Driscoll testified that Cinelli reported that Mace had started talking
to him about the Union while in the break room and that Cinelli said he did not want to be
involved and told Mace to "watch was he was doing." According to Driscoll, Cinelli said
that Mace continued the conversation and made Cinelli uncomfortable. Driscoll stated that he
told Cinelli that Mace could talk to him during a break, but that Mace was "not supposed to be
on break."
In addition, Driscoll testified that Mederios, a warehouse employee, approached him to
talk about Mace in late June or early July 2008. In Driscoll’s account, Mederios said: "I was
trying to go to work, I was trying to get into the freezer and Derek [Mace] stopped me, he was

12 A pallet jack is type of warehouse equipment used to lift and move product.
13 Driscoll also testified that on one occasion he observed Mace near the sandwich line.
Driscoll stated that Mace would have no work-related reason for being there unless he was
loading trucks, and that on the day in question Mace was "doing milk." When pressed on cross
examination, however, Driscoll stated that Mace loads trucks on days when he is "doing milk."
14 According to Driscoll, Blakely was a nonsupervisor when he made an earlier complaint
about Mace, but was promoted before making his second, late July, complaint,
JD–22–09
5
10
15
20
25
30
35
40
45
50
9
talking to me about joining the Union. . . . I went to go into the battery room, he followed me in
there." Driscoll testified that he asked if Mederios wanted to file a complaint about Mace, but
Mederios did not choose to do so. Driscoll stated that he told Mederios that Mace "shouldn’t be
doing this while you’re trying to work." Driscoll testified that Taft, a warehouse employee who
unloaded trucks, complained that he was working when Mace approached him about the Union.
Driscoll testified that Taft reported that he told Mace he was not interested in joining a Union,
but that Mace subsequently approached him again while he was working. Driscoll said he
asked Taft "Are you feeling threatened or is he stopping you from working?" and that Taft
responded, "Well, every time I’m trying to work he’s trying to talk to me about the Union, all I
want to do is work."
Driscoll also testified that he had two conversations about Mace with Blakely – the first
one when Blakely was a warehouse employee and the second after Blakely was promoted to a
supervisory position. Driscoll stated that, on the first occasion, Blakely said that Mace had
talked to him in the parking lot about the Union. Driscoll stated that, on the second occasion,
Blakely reported that he was working when Mace said he had seen Union officials the night
before and that "management’s screwed." According to Driscoll, Blakely reported that he
responded to Mace by saying, "You know I’m a supervisor," and that Mace said he "d[id]n’t
care." Driscoll recounted that he told Blakely there was not much he could do unless Blakely
made a formal complaint.
At trial, the Respondent submitted written statements from two of the individuals who
Driscoll said complained about Mace. These statements – one from Taft and one from Blakely
– are undated and both discuss Mace’s union activity. The statement from Taft says that over
the course of a "couple of days," Mace approached him to talk about the Union. At least one
time this happened while Taft was picking product to fill an order. Taft states that he "just
i[g]nored" Mace. In his written statement, Taft also informs on another employee who he said
accepted a "paper for the Union." Taft’s written statement does not claim that Mace interfered
with work, that Mace himself was failing to complete his work, or that Taft found Mace
threatening in any way. The statement from Blakely describes two occasions when Mace
approached him about the Union. Blakely opposed the Union, and he recounted telling Mace
why he would not support it. According to Blakely’s statement, the first discussion occurred in
the Respondent’s parking lot and concluded when Blakely ended it. The second discussion
took place inside the warehouse. The statement says that Mace said "the Union took him to
dinner and that management will be screwed." According to Blakely, he responded that Mace
was "full of shit." Blakely’s statement says that when he told Mace that he "did not want to hear
anymore," the discussion ended. The statement makes no mention of whether Mace and
Blakely were on break during the second discussion or whether they were engaging in work
activities while they talked. Blakely’s written statement does not claim that Mace interfered with
his ability to carry out work duties or that Mace was failing to complete his own work. Nor does
Blakely state that he believed Mace was threatening him.15
Driscoll testified that, after suspending Mace, the Respondent investigated Mace’s
conduct by interviewing between eight and nine individuals. Once again, the Respondent did
not present the testimony of a single one of those individuals, but rather relied on Driscoll’s
account of what they reported to him. Moreover, Driscoll stated that he did not memorialize any
of his many interviews in writing or make a written report regarding the evidence collected in the
investigation. Considering his failure to make any record of his investigation, Driscoll’s

15 In Blakely’s written statement, unlike in Driscoll’s account of what Blakely said, there is
no indication that Mace was aware of Blakely’s recent promotion to supervisor.
JD–22–09
5
10
15
20
25
30
35
40
45
50
10
testimony about what each employee supposedly told him was surprisingly specific. Driscoll
testified that he talked to Baldack, a supervisor who reported that Mace "was in the pastry room,
like four five times I had to get him out [of] there today." Driscoll described a meeting with
Dominic Statkus, who he described as a lead milk loader. Driscoll testified that, according to
Statkus: "[Mace is] always trying to organize something, he’s not where he’s supposed to be. I
got to go looking for him. A lot of times he’s on the trucks just talking to the drivers. . . . Derek’s
holding . . . court in the pastry room a lot." Driscoll testified that he interviewed Marguerite
McClellan, the lead person for picking pastries from the warehouse to fill orders. He asked
McClellan what Mace had been doing and whether Mace had been causing problems for her.
According to Driscoll, McClellan replied, "Yeah, [Mace is] always over here . . . slowing down
the line or having meetings in the pastry room," and that "everybody was saying he was talking
union." Driscoll also testified that he talked to Scott LaPlante, who assembled orders of high
volume products. Driscoll told LaPlante that he had been receiving a lot of complaints about
Mace and asked him "is there anything you would like to tell me about?" According to Driscoll,
LaPlante responded: "Yeah, that guy’s always down here to try and drum up votes for
something. I keep walking away from him, he keeps following me. . . . I mean, the guy would
follow you everywhere."
I conclude that Driscoll strained to portray any information he received about Mace’s
union activities in the light most favorable to the Respondent. For example, Driscoll testified
that employees complained that Mace was interfering with their ability to work. However,
neither of the two written "complaints" introduced as exhibits by the Respondent includes any
mention of Mace interfering with the employee’s work. To the contrary, Taft stated that he "just
i[g]nored" Mace, and Blakely indicated that he chose when to end both conversations with
Mace. I also found somewhat implausible Driscoll’s testimony that he received multiple
complaints about Mace interfering with other employees’ work, given that he never warned
Mace to discontinue such conduct prior to suspending/discharging him. Indeed, Driscoll himself
said that he reacted to the complaints from Auger and Baker by promising to tell Mace to stay
away from their work areas. Rather than having such a conversation with Mace, or giving Mace
an opportunity to change his behavior, Driscoll jumped to the drastic measure of
suspending/terminating Mace.
I also consider it telling that the Respondent failed to call a single one of the purported
complaining individuals as witnesses. Two of those individuals, Baldack and Blakely, were
current supervisors who one would assume to be favorably disposed towards the Respondent.
Yet the Respondent did not call either individual as a witness, or explain its failure to do so. The
Board has held that "when a party fails to call a witness who may reasonably be assumed to be
favorably disposed to the party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge." International Automated Machines,
285 NLRB 1122, 1122-23 (1987), enfd. 861 F.2d 720 (6th Cir. 1988) (Table); Electrical Workers
IBEW Local 3 (Teknion, Inc.), 329 NLRB 337, 337 fn. 1 (1999); see also Roosevelt Memorial
Medical Center, 348 NLRB 1016, 1022 (2006) ("Normally it is within an administrative law
judge’s discretion to draw an adverse inference based on a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to the party . . . , particularly when that
witness is the party’s agent and thus within its authority or control."). For the reasons discussed
above, I find that the Respondent has not shown that Driscoll received complaints that Mace
was intimidating, or interfering with the work of, other workers, or that Mace was failing to
perform his own work.
Driscoll also testified about the policy on solicitation and distribution that the Respondent
forwards as a basis for Mace’s termination. There was no evidence showing that this policy
existed prior to the union campaign or that it was set forth in written form. Indeed, Driscoll
JD–22–09
5
10
15
20
25
30
35
40
45
50
11
admitted that, prior to Mace’s termination, he had never disciplined, much less terminated, an
employee for engaging in solicitation or distribution, even though the evidence showed that non-
union solicitation and distribution was commonplace. Not only was no written policy produced,
but the Respondent’s officials did not describe the purported policy on solicitation and
distribution with any consistency. During the meeting that Donahue (director of operations) held
with warehouse employees in July 2008, he warned that "there should be no union activity on
the property," and that such activity was a "terminatable offense." Driscoll, on the other hand,
stated that it would not be a violation of the policy for two employees to discuss the Union when
they were on break or when they were performing work tasks, side-by-side, in the warehouse.
Driscoll did not clearly state what would constitute a violation of the purported policy on
solicitation and distribution, but he did indicate it was impermissible for an employee to engage
in any solicitation that interfered with other employees’ performance of their work duties.
E. Crane Receives Written Warnings
As discussed above, Crane was a truck driver who assisted the Union by distributing
union authorization cards and literature, talking to employees about the Union, signing a union
card, and attending a union meeting. Crane also spoke during the July 11 meeting that the
Respondent held with drivers to campaign against the Union. At that meeting, Crane
complained that the Respondent was not paying the drivers to attend the meeting. When
Donahue asked why employees would want union representation, Crane responded by raising
the Respondent’s inattention to a safety issue. Crane’s union support was public enough that,
in August, an antiunion employee (Belanger) confronted Crane about the Union. When Crane
later tried to explain his position to Belanger, Belanger walked away and went to talk with
Driscoll.
Crane began working for the Respondent as a driver in September 2007, and, prior to
September 2008, had never received a disciplinary write-up of any kind from the Respondent.16
On September 14, Crane received two written warnings simultaneously. The first concerned a
6-week-old incident in which Crane allegedly violated security policy by entering a Starbucks
store to make a delivery at a time when the store’s safe was open. The incident occurred on
July 29 and was reported to the Respondent on July 30. According to the Respondent’s
records, store personnel complained that Crane was discourteous when asked to wait outside
until the work regarding the safe was completed and the safe was locked. The Respondent did
not explain why the Respondent issued this discipline so long after the incident. The second
write-up that the Respondent issued to Crane on September 14 was based on a complaint from
store personnel that Crane was throwing cases of product from his truck and being unpleasant
to staff on September 4. Crane denied throwing product. According to him, the truck was so
overloaded that when he opened the door, some of the product fell out on its own.17 None of

16 I credit Crane’s reliable testimony that the September 14, 2008, write-ups were the first
he had received from the Respondent. Transcript at 151-52. Driscoll offered testimony on the
subject that was arguably contrary to Crane’s, but his testimony was less consistent than
Crane’s and is outweighed by it. At first, Driscoll testified that he did not think Crane had been
disciplined previously. Then he said he thought Crane had previously been disciplined, but he
could not remember what conduct Crane had been disciplined for. Transcript at 498-99. The
Respondent did not introduce documentation showing that Crane received discipline prior to
September 2008.
17 Crane drove one of the straight trucks, although he was qualified to drive one of the larger
tractor-trailer trucks.
JD–22–09
5
10
15
20
25
30
35
40
45
50
12
the product was damaged. Crane testified that no one from the store had spoken to him about
throwing or dropping product. Crane was the only witness to this incident who testified.
A few days after the two September 14 write-ups, Crane received a third write-up. This
one concerned a September 8 incident that took place at the Respondent’s warehouse after
Crane had completed his route and was removing empty trays from his truck. The Respondent’s
disciplinary report states that Crane had thrown trays in the way of warehouse workers who
were unloading incoming product. According to the disciplinary write-up, Crane cursed at the
warehouse workers and stated "I do not get paid by the hour and I worked more than 10 hours
today." Crane told a warehouse supervisor that he should direct the warehouse workers to stay
out of the way. Crane admitted to making statements along the lines of those described in the
write-up and to using the word "fuck" during the exchange with the nonsupervisory warehouse
workers. However, he testified that the incident was precipitated when Taft, a warehouse
worker who strongly opposed the Union,18 repeatedly backed a pallet jack into the empty trays
as Crane was attempting to unload them from his truck. Crane testified that a second
warehouse worker stopped just short of running into him with a pallet jack. Crane reported this
incident to two warehouse supervisors, and told one that he should keep the warehouse
workers out of the way. Aside from Crane, no witness to this incident was called to testify.
Driscoll admitted that the Respondent rarely issued written warnings to employees
based on store complaints such as those received about Crane. The record evidence confirms
this. It shows that the Respondent rarely if ever disciplined other drivers when store personnel
complained about conduct comparable to Crane’s. The first write-up Crane received states that
he breached security policy by entering a store when the safe was open. The record shows that
during the period from October 2006, until Crane’s discipline on September 14, 2008, there
were numerous occasions when drivers breached security policy by failing to re-lock a store’s
door and/or failed to re-set the store’s alarm after completing a delivery. The Respondent’s
record of store complaints, includes the following reports: "door not locked; alarm not set"
(11/6/07); "store called in, their alarm was not set" (11/23/07); "f[ront ]o[f ]h[ouse] door left open"
(12/16/07); "driver did not lock the front door after he made the delivery" (3/28/08); "store called
in to report that the driver left their side door open and the alarm went off and the police came"
(5/10/08); "store reported that their front door was left unlocked last night" (5/14/08); "keys left in
front door . . . alarm not set" (5/16/08); "driver did not shut off or arm the alarm . . . it was
tripped" (5/26/08); "alarm not being set for last 3 nights," (6/6/08); "both sets of doors were left
unlocked last night" (7/31/08); "alarm not set" (8/11/08) ; "front door was left unlocked last night"
(9/5/08); "door was unlocked when [store personnel] arrived" (9/13/08). Although the
Respondent’s record of store complaints contains a space to enter the "action" taken with
respect to each complaint, no disciplinary action is reported for any of these incidents. Indeed,
Driscoll was unable to recall any discipline for these incidents, although he testified that he
believed a driver who left the keys to a store hanging in its door after completing a delivery
received discipline.
Regarding the complaint that Crane was discourteous to store staff, the evidence
indicates that such complaints about other drivers were also common. The Respondent’s
records for 2008 show that store personnel complained that: on 4/28 a driver "had words" with a
store employee while making a delivery; on 6/19 a driver engaged in "rude behavior" after

18 The record reveals that this is the same Tommy Taft who made a report to the
Respondent concerning Mace’s union activity. Although the record indicates that the
Respondent has two employees named Tommy Taft, only one of those individuals worked in the
warehouse and the individual who had the run-in with Crane was a warehouse worker.
JD–22–09
5
10
15
20
25
30
35
40
45
50
13
delivering a broken, soaked, and incomplete order; on 6/20 a driver was "confrontational" with
store employees and refused to put the delivery in the proper location; on 8/26 a driver was
uncooperative with store personnel about an incorrect delivery; and on 8/26 a driver was
"unpleasant" and mishandled the store’s pastry order. However, neither the Respondent’s
report of store complaints nor the disciplinary records introduced at trial list any action for the
incidents of discourtesy described immediately above. The Respondent did not claim that the
employees involved in these other incidents of discourteous conduct were disciplined. Driscoll
remembered the incident regarding the driver who engaged in "rude behavior" with store staff
on June 19, and admitted that the employee was not disciplined.
The Respondent does identify one driver who received warnings for discourteous
conduct in November and December 2007. The driver in that case, Ed Cassady was reported
to be discourteous to a Starbucks district manager, not, like Crane, to store employees.
Moreover, the store had complained that Cassady wore clothes that exposed his tattoo of a
topless woman even after the Respondent discussed the tattoo with Cassady. In one instance,
Cassady blocked a store customer’s car with his truck, refused to move the truck when the
customer asked him to do so, and appeared indifferent to the trouble he was causing the
customer. The record does not show that anyone was disciplined for discourteous conduct
during the 18 months between when Cassady was disciplined and when Crane was disciplined,
or ever during the period after Driscoll arrived to manage the facility. This is true despite the
multiple complaints of discourteous conduct by other drivers that are documented in the exhibits
covering the period close in time to when Crane was warned. Driscoll testified that the
Respondent’s policy is that drivers must be courteous and helpful with store personnel. On its
face this is obviously a reasonable policy, but the record does not show that the Respondent
applied the policy to other drivers in the same way as it did to Crane.
The second disciplinary write-up received by Crane concerned an incident in which store
personnel reported that Crane had thrown product from his truck. As discussed above, Crane
testified that he did not throw the product, and there is no dispute that the product was
undamaged. At any rate, the record reveals that the Respondent receives store complaints
about mishandled and damaged product on almost a daily basis. The incidents of this
referenced in the record are too numerous to recount here, but include the following: "driver
broke gallon of milk & half & half; did not tell anyone about it and did not clean it up" (10/6/07);
"the driver left their . . . fridge open[;] all was lost" (12/26/07); " fridge left open; all was lost"
(2/28/08); "received pastries that were crushed due to double stacking" (3/13/08); "this driver for
the 2nd time has left their fridge door open and all breakfast was lost plus their paper order has
been thrown all over the place" (3/31/08); "driver setting heavy items on top of lunch items
crushing product; happening frequently" (7/20/08); "poor deliveries; products smashed; product
not in totes or trays" (8/26/08); "[driver] mishandling their pastry" (8/26/08). The Respondent’s
record of store complaints does not include an "action taken" entry for any of these complaints.
The Respondent did not claim, much less prove, that any of the drivers involved with these
deliveries were disciplined. Indeed, Driscoll conceded that during his tenure the drivers had
never been disciplined because they made deliveries that were damaged due to how the
product was stacked, and that he did not know of any drivers who were disciplined for delivering
damaged product during the period from April 2008 to September 2008.
Crane’s third write-up concerned his run-in with Taft and another warehouse worker.
The Respondent does not explain why the Respondent chose to discipline Crane, rather than
the other participants, for the incident. It was Crane who complained to supervisors about what
had transpired, not the other employees who had complained about Crane. It is true that Crane
used an expletive during the exchange with Taft, but witnesses for both sides agreed that
employees working at the Respondent’s facility used such language on almost a constant basis.
JD–22–09
5
10
15
20
25
30
35
40
45
50
14
Driscoll admitted that other employees used expletives during arguments with one another, but
that he had never disciplined anybody for this until he disciplined Crane. Transcript at 539-40.19
Indeed, in the written statement that Blakely gave to the Respondent, he reported that he had
called Mace "full of shit," but it was Mace, not Blakely, who was disciplined as a result of that
exchange.
In its brief, the Respondent claims that the third warning was for inappropriate behavior
towards a co-worker and supervisor. After carefully reviewing the record evidence on this
subject, I conclude that the stated reason for this discipline was Crane’s conduct towards the
co-workers, and that the record does not establish that he engaged in insubordinate behavior or
that his complaint to the warehouse employees’ supervisors was a basis for the discipline. The
disciplinary report notes that Crane "approached [the supervisor] demanding that he should get
the [co-workers] out of his way," but does not substantiate that his exchange with the
supervisor, as opposed to his exchange with the co-workers was a basis for the discipline. In
the disciplinary report regarding this incident the lines for "carelessness," "safety/work habit,"
"conduct," and "co policy/other" are all checked as reasons for the discipline, but the line for
"insubordination" is not checked. See ADB Utility Contractors, 353 NLRB No. 21, slip op. at 1
(2008) (an employer fails to meet its burden of showing that it would have taken the same action
absent the discrimination, when the evidence establishes that the reason forwarded was not in
fact relied upon); Structural Composites, 304 NLRB 729, 729-30 (1991) (not enough to show
that it could have taken the action it did for the reasons given, rather must show that it would
have taken the action for the reasons given).
F. Beattie, Adorno and Glover
Discharged from Positions as Drivers
On September 15 and 16, the Respondent terminated drivers Beattie, Alexander
Adorno, and Anthony Glover. The reason the Respondent gives for this action was that, as of
September 15, every one of its drivers was required to have a Class A commercial driver’s
license ("Class A CDL" or "Class A license"), and each of these drivers had only a Class B
commercial driver’s license (Class B CDL" or "Class B license"). Two of the drivers, Beattie and
Adorno had obtained Class A permits, but not licenses, as of the time the Respondent informed
them that they were being terminated. Adorno and Glover asked Driscoll whether they could
have additional time to satisfy the new licensing requirement, but Driscoll denied their requests.
Driscoll offered all three drivers continued employment, but as warehouse workers rather than
drivers.20 This change in assignment would result in a significant decrease in pay since, as
drivers, these employees had been paid by the "trip" at an approximate rate of $23 to $26 per

19 The record shows that one individual, who had previously received training on sexual
harassment, was given a written warning after he continued to use language that the
Respondent said could be considered sexually harassing. In this case there is no suggestion
that Crane used the expletive in a way that the Respondent considered, or which one could
reasonably consider, sexual harassment.
20 Driscoll testified that he offered to retain all three drivers as warehouse workers, and
Beattie and Glover each corroborated that Driscoll had made such an offer. Adorno stated that
Driscoll told him he would have to apply for the warehouse position. I credit Driscoll’s testimony
that he offered all three drivers, including Adorno, the warehouse position, not just the
opportunity to apply for it. Driscoll testified reliably on that point and his testimony was lent
credence by that of Beattie and Glover. The record does not suggest any reason why Driscoll
would offer the warehouse positions to Beattie and Glover, but require Adorno to apply for such
a position.
JD–22–09
5
10
15
20
25
30
35
40
45
50
15
hour, while as warehouse employees they would earn $12 to $13.50 per hour.21 None of the
three drivers accepted the offer of a position in the warehouse on a permanent basis, and only
Beattie agreed to work out the week in the warehouse.
The General Counsel argues that the Respondent imposed the Class A CDL
requirement to eliminate Beattie – the prime mover of the union effort – from its workforce and
that Adorno and Glover were "swept up in [the] negative employment action as cover for the
discriminatorily motivated act." The Respondent counters that Beattie’s union activity played no
part in the imposition of the new requirement. Driscoll denied that Beattie’s union activity was a
factor. The Respondent argues that the evidence shows that the new licensing requirement
was necessitated by the expansion of the Respondent’s business, and that the drivers were
given advance notice and offers of assistance designed to make it possible for them to obtain
the Class A licenses in time to continue working for the Respondents as drivers.
When questioned about the decisionmaking process that led to the Respondent’s
adoption of this new licensing requirement for drivers, Donahue was able to testify in only the
vaguest of terms. He stated that he probably engaged in one phone conversation with "officials"
in the Respondent’s Maryland office on the subject. Regarding the question of when the
decision was made, Donahue could not be more specific than to narrow his answer to a 3-
month period, stating "back in May – April, May, June in that area." When asked who made the
ultimate decision he was again quite vague, responding that it was a "collaborative effort on all
parts." He testified that he made the decision along with "my team in Maryland and [Driscoll]
and my team here." Later, when pressed, he stated that the discussions were "mostly probably
by phone," and that he spoke to one person in "corporate." There are no documents regarding
the meetings that led to the decision or of any proposals or rationales that were considered.
The record shows that when the Respondent began operations it hired drivers who had
either a Class A license or a Class B license. The main difference between these two
categories of drivers is that those with Class A licenses are permitted to drive either tractor-
trailer trucks or straight trucks, whereas those with Class B licenses are only permitted to drive
straight trucks. A tractor-trailer is a truck with two discrete elements – the tractor that tows a
trailer, and the trailer that holds the cargo. A straight truck, on the other hand, is one unit with
the tractor and cargo compartment mounted on the same chassis. The Respondent has used
both tractor-trailers and straight trucks, but the tractor-trailers have far more cargo space.22 The
Respondent no longer operates straight trucks for store routes. Two straight trucks are still
regularly used to pick up fresh sandwiches and pastries and bring them back to the
Respondent’s Canton facility.
By the end of August 2008, all but three of the Respondent’s 50 to 55 truck drivers had
Class A licenses. The only drivers still working with Class B licenses were Adorno, Beattie, and
Glover. During their 2007 performance reviews, each of these drivers mentioned upgrading to a
Class A license as a goal for the coming year. In July 2008, the Respondent told Adorno,
Beattie, and Glover to obtain permits to learn to drive Class A trucks. In order to obtain the
permit these drivers would have to pass a written test and undergo a background check.

21 The warehouse work would be at the drivers’ current rate of pay for the rest of the week,
but after that they would earn what warehouse workers were paid.
22 The storage compartment of the Respondent’s trailers is generally 36 feet long, whereas
the storage compartment on the straight trucks is only 20 to 24 feet long. The cargo
compartments of the trailers are also 9 inches wider than the cargo compartments of the straight
trucks.
JD–22–09
5
10
15
20
25
30
35
40
45
50
16
According to credible testimony, this test is not particularly difficult to pass, requiring that the
driver study approximately six pages worth of material, and then answer 16 out of 20 multiple
choice questions correctly. The Respondent also told the drivers that they had to obtain Class
A licenses by September 15, 2008, but the parties dispute whether this requirement was
communicated in the first part of July 2008 or in early September 2008. To obtain a Class A
license an individual must demonstrate familiarity with various parts of the tractor-trailer,
correctly perform several driving maneuvers, and then pass a road test.
The parties presented a great deal of evidence regarding the factual question of whether
it was on July 11 or on September 4 that the Respondent announced the September 15
deadline for obtaining Class A licenses. This factual dispute is a significant one. Two weeks is,
by all accounts, an insufficient amount of time for a driver with a Class B license to train for, and
obtain, a Class A license. Therefore, if the Respondent did not inform the drivers of the
September 15 license deadline until early September it would lend credence to the General
Counsel’s contention that the Respondent imposed the new licensing requirement not because
it hoped the Class B drivers would meet it, but so that Beattie could not meet it.
On the other hand, if the drivers were given from July 11 until September 15, the
implications are more complicated since that is a short, but not necessarily unworkable, time
period. The General Counsel presented credible testimony that the Union’s own educational
program requires a candidate for a Class A license to train 20 hours a week for between 6 and 8
weeks, and is rarely completed by anyone working full-time. Most courses require a total of
between 120 and 160 hours of training. In addition, the individual would have to begin by taking
and passing the written permit examination. Commercial driving schools charge $5000 or more
to train individuals to become Class A licensed drivers. The Respondent, in an effort to show
that a motivated full-time driver could meet the requirements within the time it was allowing,
presented the testimony of Carlos Marques. Marques was a Class B driver with the
Respondent who obtained a Class A permit in April. He presented himself to take the test after
approximately 5 weeks of training, but was unable to proceed with the test at that time because
of equipment problems. He presented himself to take the test again shortly thereafter, but again
equipment problems prevented him from going forward. In July, Marques took the driving test
for a Class A license and passed it. It cost Marques only $90 to obtain his Class A license
because of the assistance provided by the Respondent.
The parties presented conflicting testimony regarding the timing of the notification.
Driscoll testified that in July 2008 he met with Adorno, Beattie, and Glover, and informed them
that they had to obtain Class A licenses by September 15 in order to continue their employment
as drivers with the Respondent. He testified that he told the drivers that the Respondent would
provide training and other assistance to help them obtain the licenses. Driscoll also testified
that on July 12 he posted the memorandum (dated July 11) from David Robitaille
(Transportation Manager), which stated that, after September 15, 2008, the Respondent would
only employ drivers with Class A licenses. This requirement was being imposed, the
memorandum explained, "[i]n order to meet the delivery requirements of Starbucks." The
memorandum urged the drivers to obtain a Class A permit "as soon as possible." The
memorandum further stated that after a driver obtained the Class A permit, the Respondent
would help the driver obtain the Class A license by: having its experienced Class A-licensed
drivers provided training to the Class B-licensed drivers; making tractor-trailers available to
drivers so that they could practice driving skills when they were off-duty; providing a tractor-
trailer for the driver to use during the road test; arranging to have the driver accompanied to the
road test by a "sponsor" driver who had a Class A license; paying the cost of the driver’s first
road test for the Class A license; and paying the cost of additional road tests if the individual
failed because of a problem with the equipment provided by the Respondent. Driscoll testified
JD–22–09
5
10
15
20
25
30
35
40
45
50
17
that he posted the memorandum from Robitaille on the door to the dispatch room where drivers
came for their paperwork and that the memorandum was also posted on the door to the drivers’
break room. These were locations where notices to drivers were typically posted. According to
Driscoll, the memorandum was still posted in September 2008.
Driscoll’s testimony regarding the timing of the notice was corroborated to a significant
extent by that of Marques. Marques testified that in July 2008 he saw the July 11 memorandum
from Robitaille posted on the door to the "driver’s room" where the drivers came for their
paperwork. As discussed above, that memorandum stated that each of the Respondent’s
drivers would have to obtain a Class A driver’s license by September 15. The testimony of
Driscoll and Marques regarding the July posting of the memorandum dated July 11 is further
supported by the testimony of Donahue, who stated that he saw the July 11 memorandum
posted in early July.
At trial, Adorno, Beattie and Glover all denied that the Respondent notified them of the
impending Class A license requirement in July. They testified that during the July discussions,
Driscoll said it would be sufficient to obtain a Class A permit by September 15. Beattie stated
that Driscoll told him this immediately following the July 11 meeting that the Respondent held to
urge drivers not to support the Union. Adorno, Beattie, and Glover testified that it was not until
approximately September 4 – less than 2 weeks before the deadline – that Driscoll said they
would have to obtain Class A licenses by the deadline. In addition, Beattie and Glover testified
that although the memorandum stating that drivers had to have Class A licenses by September
15 was dated July 11, it was not until September that they saw any version of that
memorandum.
After considering the record evidence and the demeanor of the witnesses, I credit the
testimony of Driscoll, Marques and Donahue that it was early in July 2008 when the Respondent
announced that all drivers would have to have a Class A license by September 15. Driscoll
testified that in July he personally provided oral notice of the change in license requirements to
the three drivers and that on July 12 he posted the July 11 memorandum regarding the change
where that memorandum would be seen by drivers. His testimony on these points was clear,
certain, and consistent, and was not impeached. Marques testified under subpoena from the
Respondent and was not shown to have taken any position regarding the Union or to have a
personal interest in the outcome of this proceeding. His demeanor was calm and measured
and his credibility was not undermined in any meaningful way.
The contrary testimony that was provided by the alleged discriminatees regarding the
timing of the notice provided to the drivers was less credible. Some of that testimony was
inconsistent or was impeached significantly. For example, when Glover gave his initial affidavit
to the Board he stated, contrary to his later trial testimony, that in July 2008 Driscoll told the
drivers that they had to obtain Class A licenses by September 15. In fact, in his affidavit, Glover
twice mentions July as the month when the Respondent notified him about the new licensing
requirement. Thus the account in Glover’s initial affidavit actually lends corroboration to the
testimony of Driscoll and Marques. When cross-examined about the change in his recollection,
Glover’s only explanation was that he had shown the affidavit to Beattie and that Beattie had
"refreshed in [his] mind" that the conversation about Class A licenses had actually taken place
in September. Glover testified that he had shown his affidavit to Beattie because they were "all
in this together." I consider Glover’s recantation of this significant element in his affidavit
suspect, especially considering that the affidavit was given on October 21, 2008, relatively close
in time to the events at issue, that the July notification was mentioned twice in the affidavit, and
that Glover’s change of heart was brought about by Beattie’s examination of the affidavit.
Glover’s prior affidavit significantly undermines the credibility of his trial testimony on this
JD–22–09
5
10
15
20
25
30
35
40
45
50
18
subject, and leaves that testimony far less credible than the contrary testimony of Driscoll,
Marques, and Donahue.
Glover’s testimony was also internally inconsistent and uncertain in other respects. For
example, when testifying about the July meeting between Driscoll and the three drivers, Glover
stated that Driscoll had specifically been asked whether he was talking about Class A licenses
or only Class A permits, and had answered that the drivers only needed the permits. When
Glover was asked if he was the one who posed that question to Driscoll, he answered
ambiguously, "Yes, it was all of us." When pressed on the subject he shifted and said that it
was not himself, or "all of us," but Beattie, who had asked the question. All in all, I was left with
the impression that Glover was straining to provide testimony on this subject that was favorable
to his own interests and the General Counsel’s case.
Adorno appeared ill-at-ease and uncertain on the stand when testifying about the timing
of the notice regarding the new license requirement. He testified that he was not told about the
Class A license requirement until 2 weeks before the September 15 deadline, but when shown a
version of the Robitaille memorandum, dated July 11, which set forth the requirement, Adorno
was initially unable to say when he had first seen the memorandum, stating: "The date I’m not
sure. I can’t recall exactly when I got this, but I do remember receiving it though." When asked
whether he remembered seeing the memorandum posted on the door to the drivers’ room,
Adorno did not deny seeing it, but rather answered, "I can’t recall, sorry." He also gave
inconsistent testimony on other matters. For example, he first stated that he had not been told
about the availability of company-provided training for the Class A license in the summer of
2008, then stated that he had been told about the availability of such training in July 2008, and
then stated that it was "like a little bit before September 2008." Transcript at 250-51, 257-58.
Similarly, Adorno initially denied that after he obtained his Class A permit the Respondent
placed him in a tractor-trailer with a Class A driver, but then, when questioned further, he
conceded that the Respondent had done that. Transcript at 252-53. Based on these factors,
and the record as a whole, I do not believe that Adorno was a reliable witness on the question of
when the Respondent announced the new licensing requirement.
I also found Beattie less credible than Driscoll and Marques on the subject of when the
drivers were notified that they would be required to obtain Class A licenses. Beattie testified in
a very guarded manner. With unusual frequency he couched his answers as being "to the best
of my recollection" or merely "my recollection."23 In other instances he appeared more
interested in disagreeing with the Respondent’s counsel than in answering questions
forthrightly.24 Moreover, Beattie’s testimony that in July he was told that he only needed to get
a Class A permit by September 15 does not ring true. If that were the case I would have
expected Beattie to have obtained a Class A permit by the September 15 deadline. By his own
admission, however, Beattie did not obtain either a Class A license or a Class A permit by the
deadline, but rather obtained the permit on September 16 – a day past the deadline, and only
after the Respondent enforced the deadline with respect to Adorno and Glover on September

23 See, e.g., Transcript at 26, line 7; Transcript at 31, line 6; Transcript at 37, line 1;
Transcript at 52, line 19; Transcript at 66, lines 1, 4 and 20; Transcript at 84, line 13.
24 See Transcript at 82 (in discussing training that the Respondent offered drivers, Beattie
first states that Driscoll offered training on "all aspects" of tractor-trailer driving and when
Respondent’s counsel seeks to confirm this, Beattie retracts that testimony, stating "not on all
aspects"); Transcript at 88 lines 1 and 12 -14 (Beattie first states that a driver must learn four
driving maneuvers in order to qualify for Class A license, and when his testimony is stated back
to him by counsel for the Respondent, Beattie says "I think there’s more than four").
JD–22–09
5
10
15
20
25
30
35
40
45
50
19
15.25 Overall, I was left with the impression that Beattie allowed his personal stake in the
outcome of the union campaign and this adjudication to influence his recollection, and I consider
his testimony on this subject to be less reliable than that of Marques, Driscoll, and Donahue.
The General Counsel urges me to draw an adverse inference from the Respondent’s
failure to call Robitaille to testify regarding what the company communicated to the drivers in
July about new licensing or permit requirements. At the time of trial, Robitaille was no longer
working for the company in any capacity. An adverse inference is only proper if it can
reasonably be assumed that Robitaille was favorably disposed to the Respondent. See
International Automated Machines, Inc., 285 NLRB at 1123. Given that Robitaille no longer
works for the Respondent, and the lack of evidence regarding the circumstances of Robitaille’s
separation from the company, I do not assume that he was favorably disposed towards the
Respondent at the time of trial. Therefore, I decline to draw any inference based on the
Respondent’s failure to present Robitaille as a witness. See Reno Hilton, 326 NLRB 1421,
1421 fn. 1 (1998), enfd. 196 F.3d 1275 (D.C. Cir. 1999) and Goldsmith Motors Corp., 310 NLRB
1279, 1279 fn. 1(1993). I note, moreover, that the General Counsel did not call a single
employee, other than the alleged discriminatees, to prove its contention that the July 11
memorandum was not published to employees in July, as testified to by Driscoll, Marques and
Donahue.26
G. The Complaint Allegations
The complaint alleges that the Respondent violated section 8(a)(1): in about July 2008,
when Driscoll interrogated employees about union activities and created the impression that
union activities were under surveillance; on about July 24 and August 4, 2008, when Driscoll
and Baldack interrogated employees about union activities. The complaint further alleges that
the Respondent violated section 8(a)(3) and (1) of the Act: on about July 24, 2008, when it
suspended Mace because it mistakenly believed that he was engaged in unprotected conduct
while he was engaged in union and other protected concerted activities or, in the alternative,
because Mace and other employees engaged in union and concerted activities and in order to
discourage such activities; on about August 4, 2008, when it terminated Mace because it
mistakenly believed that Mace was engaged in unprotected conduct while he was engaged in
union and other protected concerted activities or, in the alternative, because Mace and other
employees engaged in union and concerted activities and in order to discourage such activities;
on about September 4 and 9, 2008, when it issued warnings to Crane because he and other
employees formed, joined, or assisted the Union and engaged in concerted activities and in
order to discourage such activities; on about September 15, 2008, when it informed Adorno,
Beattie and Glover that they could no longer be employed as drivers, but could remain with the
Respondent as warehouse workers for significantly lower compensation because those
individuals, and other employees, engaged in union and concerted activities, and in order to

25 On September 15, the Respondent informed Adorno and Glover that their employment
as drivers was terminated because they had not obtained Class A licenses. Beattie was not at
work on September 15. Although the Respondent’s personnel records state that Beattie was
terminated on September 15, the parties agree that the Respondent did not inform him of this
until Beattie appeared for work on September 16.
26 In its brief, the General Counsel urges me to find, based on some feint markings on the
document, that the July 11 memorandum was fraudulent and was "manufactured after the fact
to try to justify the retaliatory imposition of a strict September 15 deadline for obtaining the Class
A licenses." That serious charge is not supported by record and is rebutted by Marques’
credible testimony that he saw the July 11 memorandum posted in July.
JD–22–09
5
10
15
20
25
30
35
40
45
50
20
discourage such activities.27
Analysis and Discussion
I. Section 8(a)(1)
A. Interrogations
The General Counsel alleges that the Respondent coercively interrogated employees in
violation of Section 8(a)(1) on multiple occasions in July. An interrogation is unlawful if, in light
of the totality of the circumstances, it reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Mathews Readymix, Inc., 324 NLRB 1005,
1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309 NLRB 185, 186
(1992); Liquitane Corp., 298 NLRB 292, 292-93 (1990). Relevant factors include, whether the
interrogated employee was an open or active union supporter, 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. Stoody Co., 320 NLRB 18, 18-19 (1995); Rossmore House Hotel, 269 NLRB
1176, 1177-78 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985).
1. Driscoll Questions Glover: The General Counsel alleges that the Respondent
engaged in an unlawful interrogation in July when Driscoll contacted Glover by phone while
Glover was driving his route and asked Glover to divulge what he knew about the conversations
Beattie was having with other drivers. I agree that this was an unlawful interrogation. I note that
Driscoll was not Glover’s direct supervisor, or even the transportation manager, but a higher
level official to whom Glover’s direct supervisors reported. The Board has viewed the fact that
an interrogator is a high-level supervisor as one factor supporting a conclusion that the
questioning was coercive. See, e.g., Stoody, supra. Moreover, it was unusual for Driscoll to
phone Glover while he was driving his route, much less to do so to talk about something other
than deliveries. The fact that the questioning took place while Glover was driving exacerbated
the coercive nature of the interrogation because it meant not only that Glover was isolated from
other employees, but also that he had to formulate a response while continuing to operate his
truck.
Driscoll did not mitigate the coercive nature of the interrogation by offering Glover
assurances that the purposes of the inquiry were benign or that the way he responded would
not result in adverse consequences for Glover or others. To the contrary, Driscoll tightened the
screws by warning Glover to be "real frank . . . real serious" in his answers. This would
reasonably suggest to Glover that the Respondent was considering taking some action based
on Beattie’s activities and that how Glover answered could likely have consequences for himself
or others.
In reaching my conclusion that the questioning unlawfully interfered with protected union
activity, I considered that Driscoll did not specifically mention union activity when he asked

27 The complaint, as issued by the Regional Director, also included multiple allegations that
the Respondent had unlawfully disciplined employee Lucknerson Medy. When the trial opened,
I granted the General Counsel’s unopposed motion to remove those allegations from the
complaint.
JD–22–09
5
10
15
20
25
30
35
40
45
50
21
about Beattie’s conversations with drivers. However, it was common for employees to discuss
non-work matters while working at the Respondent’s facility and the record suggests no reason,
other than a desire to find out more about the recently discovered union campaign, for Driscoll’s
decision to single out Beattie’s conversations with other drivers as the subject of an
interrogation. Nor did Driscoll claim that he had reason to believe that Beattie’s conversations
with the other drivers were unprotected. In addition, Glover was a friend of Beattie’s who, by
approximately the time of Driscoll’s phone call, was aware of the Union campaign. Such an
employee would reasonably understand that the reason Driscoll asked about conversations a
leader of the union campaign had with other employees was that Driscoll was attempting to
uncover information about the union activity. Given the totality of the circumstances, I conclude
that Driscoll’s interrogation of Glover reasonably tended to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights.28
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) in July when Driscoll coercively interrogated Glover about Beattie’s conversations with
other drivers. See Gardner Engineering, 313 NLRB 755 (1994) (employer violated the Act by
interrogating an employee who was not an open union supporter about the union activity of
others).
Driscoll Questions Mace: The General Counsel also alleges that the Respondent
coercively interrogated Mace in violation of Section 8(a)(1) when Driscoll questioned him on July
24 and again the following week. I conclude that the General Counsel has established this
violation as well. The Respondent’s questioning of Mace directly concerned, and sought
information about, Mace’s union activities. Under the circumstances, Mace would reasonably
find this questioning coercive and intimidating. First, the interrogating individual – Driscoll -- was
a high level official to whom Mace’s supervisors reported. The questioning took place in the
office of Donahue, the highest ranking official at the Respondent’s facility. It was held in the
presence of a second supervisor and out of the presence of other employees. Driscoll injected
a hostile tone into the interrogation – stating that he knew Mace was organizing for the Union
and then linking that union activity to accusations of misconduct. Moreover, at the time of the
interrogation, Mace had chosen not to reveal his union views to the Respondent. Although he
was a leader of the campaign, Mace did not wear or display union paraphernalia and during the
meeting with Driscoll he tried to keep his union activity secret from the employer by stating that
he had "nothing to do with the Union."
Driscoll’s questioning of Mace during following week was in certain respects more
coercive than the July 24 interrogation. By then, Driscoll had informed Mace that the
Respondent was considering "further disciplinary action up to and including dismissal." Thus
Mace entered the interview with the knowledge that his continued employment was hanging in
the balance. Although Driscoll testified that the purpose of the meeting was to hear Mace’s side
of the matter, no witness recounted any questions directed to that subject. Rather, Driscoll
again took a hostile tone – stating that Mace had lied, and, in particular, that Mace had lied
about "looking for Union votes" and handing out literature. The fact that Mace had untruthfully
claimed that he had no involvement in the Union campaign does not change the coercive
character of the questioning. Indeed, the coercive nature of the questioning is underscored by

28 In its brief, the Respondent does not make any legal argument supporting its position that
this, and the other discussions with employees, did not violate Section 8(a)(1). Rather, the
Respondent sets forth the general standard for finding a Section 8(a)(1) violation, and
summarily states that there is no evidence of such violations. Brief of Respondent at Pages 33
and 40.
JD–22–09
5
10
15
20
25
30
35
40
45
50
22
the fact that Mace was fearful of acknowledging his protected activity to Driscoll. See United
Services Automobile Assn., 340 NLRB 784, 794 (2003), enfd. 387 F.2d 908 (D.C. Cir. 2004).
Applying the relevant factors, I conclude that the Driscoll’s questioning of Mace was unlawfully
coercive.29
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) when Driscoll coercively interrogated Mace on July 24 and again approximately one
week later.
B. Impression of Surveillance
The General Counsel alleges that when Driscoll phoned Glover to talk about Beattie, he
not only engaged in an unlawfully coercive interrogation, but also unlawfully created the
impression of surveillance. "When an employer creates the impression among its employees
that it is watching or spying on their union activities, employees' future union activities, their
future exercise of Section 7 rights, tend to be inhibited." Robert F. Kennedy Medical Center, 332
NLRB 1536, 1539-40 (2000). Therefore, an employer violates Section 8(a)(1) by creating such
an impression. Id. The employer's conduct is evaluated from the perspective of the employee
and is unlawful if the employee would reasonably conclude from the statement in question that
employees’ protected activities were being monitored. Rogers Electric, Inc., 346 NLRB 508,
509 (2006); Robert F. Kennedy Medical Center, 332 NLRB at 1540; Tres Estrellas de Oro, 329
NLRB 50, 51 (1999).
As discussed above, even though employees routinely engaged in non-work discussions
while working, Driscoll singled out conversations that Beattie, the lead union organizer, was
having with other drivers and took the unusual step of calling Glover to ask what those
conversations were about. An employee in Glover’s position – who knew about the union
campaign and was a friend of Beattie’s -- would reasonably assume that Driscoll was asking
about Beattie’s conversations with other drivers because the Respondent had information
regarding Beattie’s role in the union campaign and was keeping an eye on him. Cf. Central
Valley Meat Co., 346 NLRB 1078, 1080 (2006) (where employer knew about the prounion
sentiments of the employee, supervisor’s questions about the subject matter of union meetings
reasonably created the impression that employee’s union activities were being watched).
Driscoll did not claim, either in his conversation with Glover or at trial, that he learned of
Beattie’s conversations with drivers from employees who had freely reported it, rather than
through surveillance. Driscoll did not tell Glover, or claim at trial, that there was some reason,
other than a desire to gather intelligence about Beattie’s union activities, for the questioning.
Under these circumstances, I conclude that Driscoll’s questioning of Glover created the
impression that the employees’ union activities had been placed under surveillance by the
employer.
For these reasons, I conclude that the Respondent violated Section 8(a)(1) by creating
the impression that it had placed the employees’ union activities under surveillance.
The General Counsel also alleges that the Respondent unlawfully created the
impression that it had placed union activities under surveillance when Driscoll interviewed at
least 14 individuals about Mace’s conversations with other employees. However, the General

29 I reject the notion that the Respondent was simply investigating complaints that Mace had
intimidated or interfered with other workers, since, as discussed above, the evidence did not
establish that the Respondent received such complaints.
JD–22–09
5
10
15
20
25
30
35
40
45
50
23
Counsel presented no evidence about those interviews. The only evidence regarding how
those interviews were conducted was Driscoll’s testimony. In Driscoll’s telling, he was not the
one to broach the subject of union activity with any of these individuals, but simply received, or
inquired about, reports that Mace was not working and was interfering with the work of others.
The General Counsel invites me to conclude that Driscoll’s version should not be credited, and,
as discussed above, I do not credit his account of these interviews. However, since the General
Counsel did not introduce any countervailing accounts, I am left without an adequate basis for
finding what actually did happen during the interviews and, so, cannot determine that the
interviews created the impression of surveillance. At any rate, I need not reach the question of
whether those interviews unlawfully created the impression of employer surveillance, since I
have already found that the Respondent’s questioning of Glover constituted such a violation,
and additional findings relating to the interviews about Mace would be cumulative and would not
affect the remedy. See Wisconsin Porcelain Co., 349 NLRB 151, 153 fn.11 (2007);
DaimlerChrysler Corp., 344 NLRB No. 154, slip op. at 1 (2005).30
II. Section 8(a)(3)
A. Mace Suspended and Terminated
The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) when
it suspended and then terminated Mace. As discussed above, Mace was the leader of the
union campaign among the warehouse workers and the Respondent suspended/terminated him
approximately one month after Driscoll found out about the Union campaign. The Respondent
argues that the following types of misconduct by Mace warranted his suspension/termination:
interference with co-workers; failure to perform his own work; dishonesty towards management,
including "l[ying] about soliciting and looking for Union votes . . . handing out literature in the
building"; and, violation of the no solicitation and distribution policy." The alleged misconduct
upon which the Respondent relies to justify Mace’s termination was all associated with Mace’s
solicitation and distribution on behalf of the Union.
There are two different analytical frameworks that arguably apply to the question of
whether Mace’s suspension and termination violated Section 8(a)(3) and (1) of the Act. The
first, which the General Counsel argues is applicable, is governed by the Supreme Court’s
decision in NLRB v. Burnup & Sims Inc., 379 U.S. 21 (1964). The other, which the Respondent
argues applies, was set forth by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. (1982), approved in NLRB v. Transportation
Corp., 462 US. 393 (1983). I conclude that under either analysis, the result is the same; the
Respondent discriminated in violation of Section 8(a)(3) and (1) when it suspended and
terminated Mace.
Under the Burnup analysis, the General Counsel must establish that the employee was
engaged in activity protected by Section 7 of the Act, and that the employer took action against
the employee for conduct associated with that protected activity. Detroit Newspapers, 342
NLRB 223, 228 (2004). The burden then shifts to the employer to "establish that it had an
honest belief that the employee engaged in the conduct for which he was discharged." Id. If
the employer meets that burden, "the General Counsel must affirmatively establish that the
employee did not engage in such misconduct or that the misconduct was not sufficiently

30 The General Counsel does not argue that the interviews relating to Mace’s activities
constituted coercive interrogations in violation of Section 8(a)(1), and the complaint does not
explicitly claim that they did. Thus I do not consider that question.
JD–22–09
5
10
15
20
25
30
35
40
45
50
24
egregious to warrant discharge." Id.; Akal Security, 354 NLRB No. 11 (2009).
In this case, I conclude that Mace engaged in protected activity by soliciting and
distributing literature on behalf of the Union and that the misconduct alleged by the Respondent
was all associated with that activity.31 Prounion solicitation and distribution, even during
working time, is protected pursuant to Section 7 of the Act unless it is in violation of the
employer’s lawful rules. Wal-Mart Stores, Inc., 349 NLRB 1095, 1095 fn.6 (2007). An
employer’s limitation on solicitation or distribution during working time is not lawful if the
prohibition is enforced disparately or selectively against employees engaged in prounion
activity. See SNE Enterprises, 347 NLRB 472, 473-74 (2006), enfd. 257 Fed.Appx. 642 (4th
Cir. 2007); Clinton Electronics Corp., 332 NLRB 479 (2000), enfd. in part 284 F.3d 731 (7th Cir.
2002).
The Respondent urges me to find that Mace’s prounion solicitation and distribution were
in violation of lawful rules and therefore unprotected. The evidence is to the contrary. The
record shows that non-work discussions on a variety of topics, and solicitations for causes and
products of various kinds, were common at the Respondent’s facility, and occurred even during
working time and in work areas of the Respondent’s facility. Driscoll conceded that, prior to
Mace’s termination, he had never disciplined, much less terminated, any other employee for
discussing nonwork subjects or soliciting. The record contains no evidence that the
Respondent’s purported policy on solicitation and distribution existed in writing or was ever
announced to employees prior to the Union drive. It was not even coherently described by the
Respondent’s officials. The only time the Respondent was shown to have articulated a
restriction on solicitation and distribution to employees was during the antiunion meetings that
Donahue conducted in July. Not only does that timing strongly suggest that the rule was
motivated by the Union campaign,32 but Donahue expressed the rule in a way which revealed
that it was directed at union solicitation. At the meeting for drivers, Donahue announced that
union activity on company property was a "terminatable" offense. He did not state that the
prohibition covered any other types of activities, or state the prohibition in a way that applied
generally. At another meeting, this one for warehouse employees, Donahue compared
individuals engaged in union solicitation to carpet salesmen, and said that he would not permit
the sale of either the Union or carpets on company property. These pronouncements by
Donahue did not constitute a lawful prohibition on solicitation and distribution, both because
Donahue was singling out union activity, SNE Enterprises, supra, Clinton Electronics, supra,
and because the rule as stated unlawfully extended to union solicitation and distribution
activities engaged in by employees on their own time in non-work areas of the facility, Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268 NLRB 394, 394-95 (1983).
Since the record shows that the misconduct the Respondent alleges Mace engaged in
occurred in the course of protected prounion solicitation and distribution, the burden shifts to the
employer to "establish that it had an honest belief that the employee engaged in the conduct for

31 The Respondent concedes that the allegedly improper conduct took place in the context
of Mace’s organizing work. Brief of Respondent at 42 (describing it as a "fact" that Mace’s
alleged misconduct "occurred under the guise of union organizing).
32 Timing is an important factor in assessing motivation in cases alleging discriminatory
discipline based on union or protected activity, see, e.g. LB&B Associates, Inc., 346 NLRB
1025, 1026 (2005), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); Desert Toyota, 346 NLRB 118,
120 (2005); Detroit Paneling Systems, 330 NLRB 1170 (2000), enfd. sub nom. Carolina
Holdings, Inc. v. NLRB, 5 Fed. Appx. 236 (4th Cir. 2001); Bethlehem Temple Learning Center,
330 NLRB 1177, 1178 (2000); American Wire Products, 313 NLRB 989, 994 (1994).
JD–22–09
5
10
15
20
25
30
35
40
45
50
25
which he was discharged." Detroit Newspapers, 342 NLRB at 228; Akal Security, supra. The
Respondent contends that it had a good faith belief that Mace was interfering with the work of
others. As evidence, it relies on Driscoll’s testimony regarding the complaints he received from,
and interviews he conducted with, other individuals working at the facility. For the reasons fully
discussed above, I do not credit Driscoll’s testimony regarding these complaints and interviews.
The only written statements in the record from such individuals do not complain that Mace
disrupted their work, but simply report on his facially lawful union activities. Neither statement
describes any opprobrious, abusive, or threatening behavior. Cf. Atlantic Steel Co., 245 NLRB
814, 816 (1979) (employee is not free to carry out union solicitations in an opprobrious or
abusive manner). Nor do these statements provide a good faith basis for believing that Mace
was failing to complete his own work.
The Respondent did have a good faith basis for one of the reasons it forwards for
Mace’s termination – untruthfulness. However, under the facts presented here, that reason is
itself an unlawful one. As discussed above, during an interrogation, Mace untruthfully stated
that he did not have anything to do with the Union. This untruth, however, related to Mace’s
protected union activities, which he was not obligated to disclose. See St. Louis Car Co., 108
NLRB 1523, 1525-1526 (1954). The Board has found that a discharge cannot be lawful when it
is based on an employee's failure to fully respond to an unlawful interrogation. See Hertz Corp.,
316 NLRB 672, 692 (1995). Thus the fact that the Respondent offered Mace’s untruthfulness
as a reason for his termination does not show it has a defense, but rather lends support for
finding a violation.
Even were I to conclude that the Respondent believed in good faith that Mace engaged
in misconduct, I would conclude that the General Counsel has met its responsive burden of
establishing that Mace "did not engage in such misconduct or that the misconduct was not
sufficiently egregious to warrant discharge." Detroit Newspapers, supra. For the reasons
discussed above, I found that Mace’s prounion solicitation and distribution did not disrupt the
work of others. Moreover, his conversations with other employees were not heated and he
continued to complete his share, and probably more than his share, of assignments during this
period. As discussed above, Mace untruthfully denied his union activities when questioned by
Driscoll, but Mace was not obligated to disclose those activities to the employer and his
untruthful answers cannot be used to justify his termination.
Lastly, even assuming for purposes of argument that Mace engaged in some or all of the
misconduct described by the Respondent, I do not believe that, under Burnup, the conduct was
sufficiently egregious to warrant immediate discharge. Even in Driscoll’s hearsay accounts,
Mace did not engage in any opprobrious, abusive, or threatening behavior. After the
Respondent purportedly received the complaints that Mace’s prounion activities were interfering
with co-workers, Respondent did not warn Mace or otherwise provide him with an opportunity to
cease the conduct before terminating him. Given that the Respondent had previously allowed
other types of solicitation and distribution by employees, I see no reason, aside from the union
subject matter of Mace’s communications, why the Respondent would leap to the drastic step of
suspension/termination without advising Mace of the dim view it was taking of such interactions
between employees. Indeed, Driscoll himself recalled telling employees Auger and Baker that
he would advise Mace to stay away from them while they were working. This suggests that
Driscoll himself recognized the appropriateness of such an intermediate step. But he skipped it.
Instead, Driscoll proceeded immediately to suspending Mace pending his eventual termination.
Spurlino Materials, LLC, 353 NLRB No. 125, slip op. at 24 (2009) (fact that severity of discipline
is out-of-proportion to offense supports finding of discrimination). For these reasons, I conclude
that, under the Burnup analytical framework, the Respondent unlawfully suspended and
discharged Mace in violation section of 8(a)(3) and (1).
JD–22–09
5
10
15
20
25
30
35
40
45
50
26
If one analyzes Mace’s suspension and termination using the standards set forth in
Wright Line, supra, the result is the same – a violation of Section 8(a)(3) and (1). Under the
Wright Line standards, the General Counsel bears the initial burden of showing that the
Respondent's decision to suspend and terminate Mace was motivated, at least in part, by anti-
union considerations. The General Counsel may meet this burden by showing that: (1) the
employee engaged in union or other protected activity, (2) the employer knew of such activities,
and (3) the employer harbored animosity towards the Union or union activity. ADB Utility
Contractors, 353 NLRB No. 21, slip op. at 1-2; Intermet Stevensville, 350 NLRB 1270, 1274-75
(2007); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling,
Inc., 329 NLRB 355, 356 (1999). If the General Counsel establishes discriminatory motive, the
burden shifts to the employer to demonstrate that it would have taken the same action absent
the protected conduct. ADB Utility, supra; Intermet Stevensville, supra; Senior Citizens, supra.
In this case, there is no dispute that Mace engaged in extensive prounion activities
during the period leading up to his suspension/discharge and the Respondent admits that it was
aware of those activities at the time it took action against him. In addition, antiunion animus on
the part of the Respondent is demonstrated by the record. During meetings that the
Respondent required employees to attend, Donahue (director of operations) warned that union
activity at the facility was a "terminatable" offense, and characterized reports that some
employees wanted a union as "bad" rumors. As discussed above, the Respondent unlawfully
opposed the Union campaign by coercively interrogating employees and creating the
impression that union activities were under management’s surveillance. This evidence of
animus, in particular Donahue’s statement that union activity at the facility was a "terminatable
offense" is connected to the termination of Mace. Thus the General Counsel has met its initial
burden of establishing discriminatory motive.
Since the General Counsel has established discriminatory motive, the burden shifts to
the Respondent to demonstrate that it would have taken the same action absent the protected
conduct. ADB Utility, supra; Intermet Stevensville, supra; Senior Citizens, supra. As discussed
above, one of the reasons given by the Respondent – Mace’s untruthful denial of his union
activity – is itself and unlawful since Mace was privileged under the Act to withhold information
about such activity from his employer. See Hertz Corp., supra and St. Louis Car Co., supra.
Regarding the other reasons forwarded to justify Mace’s termination, I conclude that the
Respondent has failed to meet its burden of showing that those reasons would have led to
Mace’s termination in the absence of the Respondent’s discriminatory motivation. To the
contrary, the evidence showed that Mace continued to complete his own work, did not disrupt
others, and did not violate any lawful policy on solicitation and distribution. Moreover, the
Respondent has failed to show that it had a good faith belief to the contrary since Driscoll’s
testimony about complaints was not credible and the two written employee statements
submitted show union activity by Mace, but not disruptive or intimidating conduct. Even were I
to conclude that the Respondent believed that Mace’s activities on behalf of the union during
worktime were interfering with co-workers, or the completion of Mace’s own work, I would find
that it was the Respondent’s animosity towards the union subject matter of those activities,
rather than their severity, which led it to terminate Mace without giving him an opportunity to
adjust his conduct. See Spurlino Materials, LLC, supra (fact that severity of discipline is out-of-
proportion to offense supports finding of discrimination).
For the reasons discussed above, I conclude that the Respondent discriminated in
violation of Section 8(a)(3) and (1) on July 24, 2008, when it suspended Mace, and on August 4,
2008, when it converted that suspension into a termination, because of Mace’s union and
JD–22–09
5
10
15
20
25
30
35
40
45
50
27
concerted activities and in order to discourage such activities
B. Crane’s Written Warnings
The complaint alleges that the Respondent discriminated in violation of Section 8(a)(3)
and (1) on about September 4 and 9, 2008, by issuing warnings to Crane because he and other
employees formed, joined, or assisted the Union and engaged in concerted activities and in
order to discourage such activities. The Respondent contends that it properly issued the
discipline to Crane based on a good faith belief that he engaged in misconduct.
The General Counsel has made the required initial showing of discriminatory motive
under Wright Line. There is no dispute that Crane engaged in protected activity. During the
antiunion meeting that the Respondent held with drivers on July 11, Crane was one of the few
employees to speak. He objected that the drivers were being required to attend this meeting
without getting paid for their time. Then, when Donahue asked why employees would want
union representation, Crane spoke out -- discussing the Respondent’s inattention to a safety
issue. In addition, Crane supported the Union campaign by signing a union authorization card,
distributing union cards and literature, talking to people about the Union, and attending a union
meeting. Crane was a visible enough supporter of the Union that one antiunion employee,
Belanger, repeatedly confronted him on the subject. Immediately after Crane attempted to
explain his prounion stance to Belanger, Belanger went to talk with Driscoll. It is clear that the
Respondent was aware, at a minimum, of Crane’s protected activity at the Respondent’s
antiunion meeting on July 11. Moreover, I think it is fair to infer that the Respondent knew of at
least some of Crane’s other protected activities in support of the Union given that the
warehouse was a relatively small shop of about 50 employees, and that Driscoll was actively
seeking intelligence about the Union campaign. "The courts and the Board have long held that
an employer's knowledge of union activities by its employees is inferable where these activities
are conducted in a small plant, particularly where as here there is evidence of probing by
supervisors to obtain information concerning the union activities of employees." Wells Dairies
Cooperative, 110 NLRB 875, 891 (1954). A union drive concentrated among a group of 50
employees in a larger workforce has been viewed as a "small shop" for purposes of this
analysis. Id. see also ADB Utility Contractors, supra, slip op. at 16 ("small plant" theory
"permits the inference of knowledge of union activity from the fact that there are 59 employees
in the unit"). That the Respondent bore animus towards the union effort is demonstrated by,
inter alia, its discriminatory termination of Mace, unlawful interrogations, acts creating an
impression of surveillance, and Donahue’s statement to employees that engaging in union
activity at the facility was a "terminatable" offense.
Since the General Counsel has established discriminatory motive, the burden shifts to
the Respondent to demonstrate that it would have taken the same action absent Crane’s
protected conduct. Intermet Stevensville, supra; Senior Citizens, supra. The Respondent fails
to meet this burden because, as discussed fully in the findings of fact above, the record shows
that the company rarely if ever disciplined other employees based on conduct comparable to
that which it attributes to Crane. See ADB Utility Contractors, 353 NLRB No. 21, slip op. at 17
(fact that employer had not disciplined other similarly situated employees for same offense is
evidence of pretext) and Monroe Manufacturing, 323 NLRB 24, 26-27 (1997) (employer violated
Section 8(a)(1) when it disciplined an employee who engaged in protected activity based on a
rule that was not strictly enforced against other employees). Indeed, Driscoll himself admitted
that drivers were rarely disciplined based on store complaints of any kind, and the Respondent
offers no lawful explanation for treating Crane differently.
I note, moreover, that the timing of the first warning casts additional doubt on the
JD–22–09
5
10
15
20
25
30
35
40
45
50
28
legitimacy of the Respondent’s claim that it would have taken the same action in the absence of
union activity. That warning was based on a store complaint received by the Respondent on
July 30 about a breach of security policy. However, the warning was not presented to Crane
until 6 weeks after the Respondent received that complaint. The Respondent provides no
explanation for the time lag, or for its decision to revive the complaint, and punish Crane, so
long after the alleged misconduct. The absence of such an explanation, along with the
evidence of antiunion motivation, suggests that the Respondent’s reliance on the stale store
complaint was pretextual.
For the reasons discussed above, I conclude that the Respondent has failed to meet its
burden of showing that it would have issued any of the warnings to Crane absent the antiunion
motivation. Indeed, I believe that examination of the Respondent’s treatment of Crane – i.e.,
issuing three warnings to him in a few days time based on conduct for which other drivers were
rarely if ever disciplined – is further evidence of unlawful motive. See ADB Utility Contractors,
supra.
I conclude that the Respondent discriminated in violation of Section 8(a)(3) and (1) in
September 2008 by issuing warnings to Crane because of his union and concerted protected
activities, and in order to discourage such activities.
C. Discharge of Adorno, Beattie and Glover
The complaint alleges that the Respondent discriminated on the basis of union activity
when it implemented the requirement that each of its drivers have a Class A CDL and thereby
caused the terminations of drivers Adorno, Beattie, and Glover.33 In its brief, the General
Counsel argues that the Class A CDL requirement was imposed to eliminate Beattie, and that
Adorno and Glover were "swept up in [the] negative employment action as cover for the
discriminatorily motivated act."
The General Counsel has met its initial burden under Wright Line. The evidence
establishes that the Respondent had knowledge of Beattie’s union activism. In July, during the
Respondent’s antiunion meeting for drivers, Beattie openly acknowledged that he was engaged
in union activities and expressed the view that those activities had led the Respondent to
retaliate against him by increasing his workload. Moreover, given that there were only
approximately 50 to 55 drivers and that Beattie had distributed union cards to between 40 and
45 of them, it is appropriate under the "small facility" theory to infer that the Respondent had
knowledge of Beattie’s role in the Union campaign. See ADB Utility Contractors, 353 NLRB No.
21, slip op at 16; Wells Dairies Cooperative, 110 NLRB at 891. This inference is especially apt
given that Driscoll not only actively probed employees about the Union campaign, but had
specifically interrogated an employee about Beattie’s conversations with other drivers. Wells
Dairies Cooperative, supra. The Respondent’s antiunion animus is demonstrated by, inter alia,
its: discriminatory discharge of Mace (the other leading union advocate among its employees);
discriminatory discipline of Crane; unlawful interrogation of employees; acts creating the
impression of surveillance; and Donahue’s statement to employees that union activity at the
facility was a "terminatable" offense.

33 The General Counsel argues in the alternative that these individuals were constructively
discharged and that they were discharged. In its brief, the Respondent admits that it terminated
the employment of Adorno, Beattie, and Glover on September 15, 2008. Brief of Respondent at
Page 6, Paragraph 24. That admission moots the question of whether the standards for
constructive discharge were met.
JD–22–09
5
10
15
20
25
30
35
40
45
50
29
The evidence shows that Adorno and Glover were discharged based on the same new
licensing requirement with respect to which I find that the General Counsel has met its initial
burden. The Board has held that the layoff of an employee who is not the target of an
employer’s antiunion motivation is still unlawful where that employee was laid off to mask the
antiunion motivation of actions against the employer’s real target. Pillsbury Chemical Co., 317
NLRB 261 (1995). Anti-union motivation may be found even when some, or even most, of the
affected employees were not known union supporters. See, e.g., McGaw of Puerto Rico, Inc.,
322 NLRB 438, 451 (1996), enfd. 135 F.3d 1 (1st Cir. 1997). The requisite anti-union animus
exists where the evidence shows that the aim of the action was "to discourage union activity or
to retaliate against employees because of the union activities of some," despite evidence that
"employees who might have been neutral or even opposed to the Union are laid off with their
counterparts," Id. See also Weldun International, 321 NLRB 733, 734 and 748 (1996) (violation
where the employer did not select employees for layoff based on their support for the Union, but
the layoff was part of an effort to discourage employees from supporting the Union), enfd. in part
165 F.3d 28 (6th Cir. 1998) (table); Davis Supermarkets, 306 NLRB 426 (1992) (same), affd. and
remanded 2 F.3d 1162, 1168-69 (D.C. Cir. 1993), cert. denied 511 U.S. 1003 (1994); Mini-Togs,
Inc., 304 NLRB 644, 648 (1991) (same), enfd. in part 980 F.2d 1027 (5th Cir. 1993); Alliance
Rubber Co., 286 NLRB 645, 647 (1987) (same); ACTIV Industries, 277 NLRB 356, 356 fn.3
(1985) (same). On this basis, I find that the General Counsel has met its initial burden with
respect to the discharges of Adorno and Glover pursuant to the newly adopted licensing
requirement.
The burden now falls to the Respondent to show that it would have enacted the new
licensing requirement and terminated the three drivers as it did even absent the union activity.
Although the question is a close one, I find that the Respondent has failed to meet that burden.
The Respondent did present convincing evidence that it had good reason for wanting to phase
out the use of the smaller straight trucks in favor of the larger tractor trailer trucks – a change
that meant that most or all of its drivers would need Class A licenses. However, the
Respondent has failed to demonstrate by a preponderance of the evidence that it would have
implemented the new requirement when it did and how it did if not for its antiunion animus. As
the Board has held, in order to meet its responsive burden under Wright Line an employer must
demonstrate by a preponderance of the evidence "that it would have done what it did, when it
did, in the absence of the drivers’ union activities." We Can, Inc., 315 NLRB 170, 172 (1994)
(emphasis added); cf. Lear-Siegler, Inc., 295 NLRB 857, 859 (1989) (economic reasons cannot
justify relocation where such economic reasons existed months before employees sought union
representation, and relocation followed immediately thereafter). It is not enough to show that it
could have taken the action it did for the reasons given, rather must show that it would have
taken the action for the reasons given. Structural Composites Industries, 304 NLRB 729, 729-30
(1991); see also; Weldun International, 321 NLRB at 747 ("The employer cannot carry this
burden merely by showing that it also had a legitimate reason for the action, but must persuade
that the action would have taken place absent protected conduct by a preponderance of the
evidence") (internal quotation omitted).
Regarding when the Respondent implemented the new requirement, the evidence
showed that the Respondent issued the memorandum setting forth the new requirement on the
same day as the Respondent held the July 11 antiunion meeting during which Donahue warned
drivers that union activity at the facility was a "terminatable" offense. Driscoll posted the
memorandum the next day. At the July 11 meeting, Beattie openly acknowledged his union
activity and, as that meeting was ending, Driscoll pulled Beattie aside and orally notified him
about the new requirement and the September 15 deadline. This timing is extremely suspicious,
see supra footnote 32, and leaves the Respondent with a great deal of explaining to do
JD–22–09
5
10
15
20
25
30
35
40
45
50
30
regarding the precise timing of its action. Its witnesses did not rise to the challenge. Donahue,
the official who testified about the process by which the new requirement was adopted offered
no explanation for the precise timing of the rule’s promulgation. Asked when the Respondent
made the decision to impose the new licensing requirement, Donahue’s answer was decidedly
vague – "back in May – April, May, June in that area." He did not explain why, if the decision
was made as early as April, it was not announced to affected employees until July 11 – the
same day that the Respondent inaugurated its anti-union campaign among the drivers.
Furthermore, the Respondent produced no written record of meetings or proposals, or other
documentation, showing how the decision was made or demonstrating that the decisional
process naturally culminated on July 11 for reasons unrelated to the union campaign or
Beattie’s public acknowledgment of his involvement in that campaign. Cf. Weldun International,
321 NLRB at 734 (layoff found unlawful where employer failed to produce "any documentation
or credited testimony" indicating that a layoff was planned prior to the filing of the representation
petition). I note, moreover, that the major changes in delivery responsibilities (the addition of
coffee and high volume items) that the Respondent relies on to explain the timing of its decision
had largely been implemented several months earlier in March and April. Those changes do
not explain the timing of the new requirement since they were made months before the
employees began their union campaign while the issuance of the new rule followed shortly after
that campaign was initiated. See Lear-Siegler, Inc., supra.
Not only has the Respondent failed to show by a preponderance of the evidence that it
would have implemented the requirement when it did absent the union activity, it has failed to
show that it would have implemented the requirement how it did absent that activity. The "how"
to which I am referring is under an extremely short deadline that was almost certain to result in
the elimination Beattie from his position as a driver. The July 11 announcement of the
September 15 deadline left the three alleged discriminatees with just a little over 2 months to
pass the written test and background check needed for a training permit, complete driver
training that typically took 120 to 160 hours, and then schedule and pass the test – all while
continuing to work full time. The Respondent attempted to show that this deadline was
workable by presenting the testimony of Marques, a driver who upgraded from a Class B to a
Class A license while working for the Respondent full-time. However, even Marques did not
succeed in upgrading within 2 months. The evidence showed that Marques already had his
Class A permit in April and began training, but did not obtain his Class A license until July – over
2 months later. The task for Beattie, Adorno, and Glover was even more daunting than for
Marques, since they did not have Class A permits on July 11 when the Respondent initiated the
countdown to the September 15 deadline. The Respondent has not explained how the
September 15 deadline was arrived at, or why it did not choose to allow Beattie, Adorno and
Glover more time, or an extension of time, in which to meet the new requirement. The
Respondent has not tied the specific September 15 date to any occurrence unrelated to the
union campaign. This gap in the Respondent’s nondiscriminatory explanation for its decision is
widened by Donahue’s testimony that the decision was made as early as April, meaning that the
Respondent might have been able to give the drivers as much as 5 months to meet to the
September 15 deadline, rather than springing that deadline under circumstances that meant the
drivers would almost certainly fail to meet it.
For the reasons discussed above, I conclude that the Respondent has failed to meet its
burden of showing that it would have taken the same action it did, when it did, in the absence of
antiunion motivation.
I conclude that the Respondent discriminated in violation of section 8(a)(3) and (1) by
imposing the new licensing requirement and discharging Adorno, Beattie, and Glover.
JD–22–09
5
10
15
20
25
30
35
40
45
50
31
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent interfered with employees’ exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act: in July 2008, when Driscoll coercively interrogated Glover
about Beattie’s conversations with other drivers; on July 24, 2008, and again approximately one
week later, when Driscoll coercively interrogated Mace; in July 2008 by creating the impression
that it had placed the employees’ union activities under surveillance.
4. The Respondent violated Section 8(a)(3) and (1) of the Act: on July 24, 2008, when it
suspended Mace, and on August 4, 2008, when it converted that suspension into a termination,
because of Mace’s union and concerted activities and in order to discourage such activities; in
September 2008, by issuing warnings to Crane because of his union and concerted protected
activities, and in order to discourage such activities; when it imposed the new licensing
requirement and discharged Adorno, Beattie, and Glover on September 15, 2008, because of
employees’ union and concerted activities and in order to discourage such activities.
5. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I recommend that the Respondent be required to
offer Adorno, Beattie, Glover, and Mace reinstatement and make them whole for any loss of
earnings and other benefits they suffered as a result of the discrimination against them,
computed on a quarterly basis, less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The General Counsel urges that the Board's "current practice of awarding only simple
interest on backpay and other monetary awards be replaced with the practice of compounding
interest." Brief of General Counsel at 64. The Board has considered, and rejected, this
argument for a change in its practice. Cadence Innovation, LLC, 353 NLRB No. 77, slip op. at 1
fn.1 (2009); Rogers Corp., 344 NLRB 504 (2005). If the General Counsel's argument in favor of
compounding interest has merits, those merits are for the Board to consider, not me. I am
bound to follow Board precedent on the subject. See Hebert Industrial Insulation Corp., 312
NLRB 602, 608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736
F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984); Los Angeles New Hospital, 244
NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
On these findings of fact and conclusions of law and on the entire record, I issue the
JD–22–09
5
10
15
20
25
30
35
40
45
50
32
following recommended Order.34
ORDER
The Respondent, DPI New England, Canton, Massachusetts, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Coercively interrogating any employee about activities protected by Section 7 of the
Act.
(b) Creating the impression that it has placed employees’ union activities under
surveillance.
(c) Discharging or suspending any employee for supporting the International
Brotherhood of Teamsters, Local 25 or any other union.
(d) Issuing a written warning to, or otherwise disciplining, any employee for supporting
the International Brotherhood of Teamsters, Local 25 or any other union.
(e) 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.
(a) Within 14 days from the date of the Board’s Order, offer Alexander Adorno, Roger
Beattie, Anthony Glover, and Derek Mace, full reinstatement to their former jobs or, if those job
no longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Alexander Adorno, Roger Beattie, Anthony Glover, and Derek Mace whole for
any loss of earnings and other benefits suffered as a result of the discrimination against them in
the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Alexander Adorno, Roger Beattie, Anthony Glover, and
Derek Mace, and within 3 days thereafter notify them in writing that this has been done and that
the discipline would not be used against them in any way.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful suspension or Derek Mace, and within 3 days thereafter notify him in
writing that this has been done and that the discipline would not be used against him in any
way.

34 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–22–09
5
10
15
20
25
30
35
40
45
50
33
(e) Rescind and revoke the written warnings issued to Frederick "Rick" Crane in
September 2008.
(f) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful written warnings issued to Frederick "Rick" Crane, and within 3 days
thereafter notify him in writing that this has been done and that the discipline will not be used
against him in any way.
(g) 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 electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(h) Within 14 days after service by the Region, post at its facility in Canton,
Massachusetts, copies of the attached notice marked "Appendix."35 Copies of the notice, on
forms provided by the Regional Director for Region 1, after being signed by the Respondent’s
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. 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 employees employed by the Respondent
at any time since July 1, 2008.
(i) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. May 29, 2009
____________________
Paul Bogas
Administrative Law Judge

35 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 National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
JD–22–09
5
10
15
20
25
30
35
40
45
50
34
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT create the impression that we have placed your union activities under
surveillance.
WE WILL NOT discharge, suspend, or otherwise discipline against any of you for supporting
International Brotherhood of Teamsters, Local 25, or any other union.
WE WILL NOT issue warnings or other discipline to you for supporting International
Brotherhood of Teamsters, Local 25, or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Alexander Adorno, Roger Beattie,
Anthony Glover, and Derek Mace full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Alexander Adorno, Roger Beattie, Anthony Glover, and Derek Mace whole for
any loss of earnings and other benefits resulting from the discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Alexander Adorno, Roger Beattie, Anthony Glover, and Derek Mace, and
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the discharges will not be used against them in any way.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful suspension of Derek Mace, and WE WILL, within 3 days thereafter, notify him writing
that this has been done and that the suspension will not be used against him in any way.
JD–22–09
5
10
15
20
25
30
35
40
45
50
35
WE WILL, within 14 days from the date of this Order, rescind and revoke the unlawful written
warnings issued to Frederick "Rick" Crane.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful written warnings issued to Frederick "Rick" Crane, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the warnings will not be used
against him in any way
DPI NEW ENGLAND
(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.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
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, 617-565-6701.