TNT Logistics

National Labor Relations Board - Administrative Judge Opinions

Jul 16, 2003

08-CA-033664 (N.L.R.B. Jul. 16, 2003)

JD--75--03
East Liberty, OH

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

TNT LOGISTICS NORTH AMERICA, INC.

and Case 8-CA-33664-1

EMERSON YOUNG, an Individual

TNT LOGISTICS NORTH AMERICA, INC.

and Case 8-CA-33810-1

JOHN JOLLIFF, An Individual

Allen Binstock, Esq., for the General Counsel.
John D. Webb, Esq., for Respondent.

DECISION

Statement of the Case

WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Marysville, Ohio,
on May 20, 2003. The charges were filed September 11 and November 4, 2002,1 and the
complaint was issued January 23, 2003. The complaint, as amended at the hearing, alleges
that TNT Logistics North America, Inc. (Respondent) violated Section 8(a)(1) by threatening an
employee with discharge because of his union activities, inviting an employee to resign because
of the employee’s union activities, creating the impression that it was engaging in surveillance of
the protected concerted activity of its employees, interrogating employees concerning their
protected concerted activities, and interrogating an employee concerning his union activities.
The complaint also alleges that Respondent violated Section 8(a)(1) by suspending and then
terminating employees John Jolliff, Emerson Young, and Steven Daniels because they engaged
in protected concerted activity in the form of a letter that was sent to Respondent’s corporate
management and to a customer. Respondent filed a timely answer that denied the substantive
allegations of the complaint.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

1 All dates are in 2002 unless otherwise indicated.

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Findings of Fact

I. Jurisdiction

Respondent, a corporation, is engaged in the interstate transportation of freight at its
facility in East Liberty, Ohio, where it annually derives gross revenues in excess of $50,000 for
the transportation of freight from the State of Ohio directly to points outside the State of Ohio.
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

II. Alleged Unfair Labor Practices

Prior to September 2001, Respondent was known as CTI Logistics and before that as
Customized Transportation, Incorporated. Honda of America is Respondent’s biggest customer
at its East Liberty, Ohio facility. Robert Wheeler is Respondent’s director of Honda operations,
a position he had held since August 2002. Before that Wheeler was district manager for Honda
manufacturing. Jeff Basinger is Respondent’s contract manager at the facility.

Emerson Young worked for Respondent as a truckdriver from 1990 until his termination
on August 22, 2002.2 At the time of his termination Young made three trips daily to Troy, Ohio,
where he picked up a trailer loaded with automobile parts for Honda and returned to
Respondent to drop off the loaded trailer. While employed by Respondent, Young received
awards for safe driving and professionalism; he was never disciplined. John Jolliff began
working for Respondent in November 1995 as a truck driver. Like Young, Jolliff received
awards for safe driving. Steven Daniels worked for Respondent as a truckdriver since
December 1994. He too received several performance awards.

In January Young contacted the United Auto Workers in Marysville, Ohio. The union
officials advised Young to have the workers who favored a union ready, but to wait until another
organizing campaign at Honda became active.

During a safety meeting in April at which all the drivers were present, Jolliff complained
to Basinger that the drivers were concerned that they were not going to get the routes that they
felt they were entitled to, among other complaints. Jolliff said that managment should be
disciplined as a result. Wheeler, who was also present, answered that Jolliff was prounion, that
Honda did not like unions, and that he should go somewhere else and to work there.3

2 From 1992 to 1996 Young worked as a casual employee. During the remaining periods of
his employment Young worked full time.
3 These facts are based on the credible testimony of Young and Jolliff. Wheeler denied
making these statements, but his recollection of this meeting was lacking in detail and his
demeanor was unconvincing; I do not credit his testimony on this matter. Basinger’s version of
this meeting was likewise unpersuasive. For example, he claimed that he did not conclude that
Jolliff was prounion until after he learned of the letter described below. Yet, when asked to
explain how he came to know that Jolliff was prounion, Basinger answered he made that
conclusion based on the letter that was sent. Yet Jolliff made complaints at this meeting that
were similar to those made in the letter but Basinger would have us believe that he made no
similar inference.

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Meanwhile, in January 2001, Jolliff filed a worker’s compensation claim over an injury he
sustained at work. Jolliff asserts that his relationship with Respondent deteriorated after that
and he began to be harassed by Basinger. In about late April or early May 2002, Jolliff
complained of this to John Cox, Respondent’s safety manager and someone with whom Jolliff
felt he had a good relationship. About a week after Jolliff complained to Cox about Basinger,
Basinger summoned Jolliff into his office and asked why Jolliff went over his head. Basinger
appeared angry; he spoke in a loud voice and threw papers on a table. Jolliff replied that he
never got any results by talking with Basinger and that Respondent had an open door policy.
Basinger said that Jolliff was a weak link among the drivers and that Jolliff should go work
somewhere else like Clark Trucking.4 Basinger asked if Jolliff had any problems working with
Respondent. Jolliff replied that he had no problems with the workers but he did with
management. Basinger declared that Jolliff was prounion and Honda did not like unions and
that if Jolliff did not keep his mouth shut Wheeler was going to fire him (Jolliff). Jolliff had seen
Basinger react angrily at other times too, sometimes physically pushing people out of his way.5

In May some dock workers complained to Young about working conditions and
expressed their desire to go forward to obtain union representation. They also suggested
sending a letter to Respondent’s higher management that described the local conditions that the
employees felt were issues. The employees thought the letter was a good idea because they
felt that local managers had not responded to their concerns and because Respondent had
expressed that it had an open door policy that purported to welcome such action. Young
discussed the idea of sending the letter with about 80 – 90 employees. The group concluded
that because Young had contacted the Union, they would give him their grievances and he
would compose the letter. Jolliff was among the employees who voiced complaints to Young.
Jolliff complained that he was being harassed; he was aware that Young intended to prepare
and send a letter to Respondent’s corporate executives expressing the complaints. Likewise
Young told Daniels that he was working on the letter and that he felt the corporate officials
should know their problems. Daniels voices his concerns about scheduling for Saturday
overtime.

On August 12, Young sent a letter to Respondent’s corporate management in
Jacksonville, Florida; he also sent a copy to Honda. Because Respondent relies on the content
of the letter to justify its termination of of the three employees the rather lengthy letter is set forth
in its entirety:

This letter is being sent to protest the management & managers at
contracts 006 & 001. We hope that our management at our home office
will get an idea of how we the dock workers and truck drivers at these
contracts are being treated & do something about it.
Some of the things listed in this letter are just some of the many wrong
things we feel are mistreatment & discrimination against our work force
here by managers Robert Wheeler and Jeff Basinger.
These are the poorest managers we have had in the history of these
two contracts since our beginning in 1989.
Mr. Wheeler is hardly ever here to listen to our problems when we need
4 Clark Trucking is apparently a nonunion employer that has undergone several organizing
campaigns.
5 These facts are based on Jolliff’s credible testimony. Basinger’s denials were
unconvincing and his demeanor lacking in credibility. I do not credit his testimony on this matter
either.

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advise on problem solving. He has lied to us on various occasions and
we do not approve of this and many of his methods. We feel he should
be a better leader and manager. We have lost a lot of business under
Mr. Wheeler’s management. He has done some good things for us, but
the loss of business and leadership looms big.

Mr. Basinger came here with what appears to be his own personal gain for
himself. He put up a wall to most people—mainly the drivers—under his
contract. You do as I say or else.
Well it may be else as most people or drivers don’t care for him. He believes
he put TNT on the map here, well we know better.

We the dock workers & drivers of 006 & 001 are tired of being treated the
way these 2 managers are doing us. We want to have a good & decent
place to work and have a good relationshp with our management here.

We have a list of some of the things that both managers have imposed on
both dock workers and rivers and hope you will step in and help us to have
harmony again.

HEALTH
We are given points for going to the doctors and or dentist even if we
have a written excuse. We thought the company TNT wanted us to
take care of our health. Lots of workers are showing up sick & then
going home and getting ½ points so they don’t get fired. Drivers are
driving sick & tired and this is not safe or healthy. People are not taking
care of or not given the time to see a dentist, this is totally uncalled for
from managers. We bet you people don’t have this problem.

FUNERALS
People are given points when they attend family funerals. This is
about as low as any company can get. This is dirty period. Any
funeral outside of a family is another story—you should or can get a
point for that, but not inside your own family.

LOG BOOKS
Some drivers are being asked to fix their log books to make extra
runs. These drivers are being asked by dispatchers and management
to do these runs and either fix their log books or turn their heads on it.
Mr. John Cox once said he would not go to jail for fixing log books
for anyone. Well Mr. Cox pack your suitcase, it has and is presently
being done at 001.

INSURANCE
Our present insurance is the worst we have ever had and we feel that
TNT needs to make a change in that as soon as they can—it is lousy.

These are just a few of the nasty things that are going on at these
contracts. We hope TNT will make management changes at
these contracts.

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We the dock workers & drivers feel this needs to happen and the
point system modified for health, sickness, & funerals.

We realize that there are some bad apples in every group—but
don’t punish good workers or their families, and don’t let
these managers dictate their lives. TNT says they are family
oriented-prove it.

We just held the drivers re-bid meeting on the new routes and
this is what happened, to not one but several of the drivers.
When drivers went to bid on our new runs. Mr. Basinger told
these drivers these runs were already taken and he had other
runs for them.
One driver asked who took the run he wanted and Mr. Basinger
did not want to tell him who took it. But then asked again
and Mr. Basinger told hm who got it and it turned out to be one
of his friends from a previous contract.

Mr. Basinger finally said he was entitled to take the route since
he had seniority over his friend.
He in turn did get the route.
That is dirty of Mr. Basinger to keep trying to put his friends &
buddies in our jobs. We will not stand for this crap and you
can count on that!!!

One last thing on Mr. Basinger, a driver accidentally bumped
into him in the office & Mr. Basinger told the driver to excuse
himself and physically shoved the driver and hurt his shoulder &
is having trouble with it.

We all agreed that the driver should contact his attorney about
this matter and take certain action against Mr. Basinger.
No one should have to be treated like this.
This man is going to get hurt if he shoves the wrong person and
it will be no ones fault but his own if he gets hurt.

We are 90% of the workers at these two contracts. We are
together and have seeked outside help. We hope we can
prevent bringing in or having to be represented by an outside
organization. But we will have no choice if this treatment continues.

Remove managers, Wheeler & Basinger. It is not all about
money, as it is working conditions such as no heat on the dock
in the winters. You put up a new office in Florida-we bet
it is heated and cooled both.

We the dock workers and drivers hope you will step in and resolve
this matter with the management problem at 006 & 001 East Liberty,
Ohio.

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We are sending copies of this letter to the following parties:

Dave Kulik President—TNT
Jeff Hurley V President—TNT
John Cox Safety Department—TNT
Scott Johnston Honda of America

Copies and information to 2 television stations in Columbus Ohio to be
aired at a later date if TNT Headquarters does not resolve this situation.

Because no one wanted to sign the letter indivdually, the letter indicated that it was sent from
the dock workers and drivers at the facility. This letter was addressed and sent to Richard Kulik,
Respondent’s president, Jeff Hurley, Respondent’s vice president, John Cox, Respondent’s
safety director, and Scott Johnston, employed by Honda. Although Jolliff and Daniels voiced
complaints to Young concerning working conditions before the letter was written, neither played
any role in writing or mailing the letter.

On August 21 District Manager Wheeler summoned Young into Wheeler’s office.
Wheeler asked if Young had problems of any sort with management. Young answered that he
did and mentioned a problem the employees had with recent route assignments and disciplinary
points assessed against employees. Wheeler answered that there was nothing he could do
about it; the directions had come from “corporate.” They shook hands and Young left.

The next day Jolliff was summoned to Wheeler’s office. Kevin Schafer, a supervisor or
manager on the cross dock area, was also present. Wheeler stated that a letter was sent to
corporate headquarters and to Honda. Wheeler explained that the letter threatened Honda with
bad news and media coverage. The letter appeared to be on a table, but Jolliff was not allowed
to read it. Wheeler asked if Jolliff knew who wrote the letter. Jolliff answered that it was the first
time he had heard of the letter. Jolliff explained at the trial that he feared retaliation if he
answered Wheeler’s question truthfully. Wheeler said that he had reliable sources that that
reported that Jolliff had a part in writing and sending the letter. Jolliff asked who the sources
were and Wheeler answered that it was the dock workers. Wheeler asked again if Jolliff knew
who sent the letter and Jolliff again answered that he did not. Wheeler asked if Jolliff had
problems with Respondent; Jolliff replied that he did and that Wheeler already knew about them.
Wheeler said that he wanted to hear about the problems, so Jolliff described his problems with
Basinger. Wheeler said that Jolliff was being placed on suspension and that if the investigation
did not find any wrongdoing on his part he would be brought back to work. Jolliff asked who
was behind the suspension, and Wheeler said that it was Jeff Hurley, Respondent’s vice
president.6

That same day Young received a call in his truck to again report to Wheeler’s office. As
he was going to Wheeler’s office Young encountered Jolliff. Young asked Jolliff what was going
on and Jolliff explained that he had been suspended because of the letter that was sent to
Respondent’s corporate headquarters. Daniels joined the conversation. When Young arrived in
Wheeler’s office he discovered that Basinger and Schafer were also present. Wheeler
announced that he had called Young to the office because of the letter that had been sent to
corporate office. Wheeler said that he had heard from a reliable source, someone on the docks
area, that Young had a part in writing and sending the letter; he then asked Young if he had a
6 These facts are based on Jolliff’s credible testimony.

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part in the letter. Young said the he did not. Wheeler asked if Young knew anything about the
letter. Wheeler explained that he brought Young into the office to terminate him. He said that if
Young could help him he could save Young’s job with a short suspension instead of termination.
Wheeler asked what workers were talking about on the docks and Young answered “Various
things.” Wheeler asked like what? Young responded “Like what assholes you three really are.”
Wheeler also asked what good a union would do for Young at that point in his life. Young
replied “Probably none.” Wheeler then told Young to clean out his truck and that he was on
extended suspension until further notice. Young had not revealed his union sympathies to
anyone in management prior to the meeting.7

Daniels was the third person summoned into Wheeler’s office that day. Wheeler said
that Daniels was involved in a letter that was sent to corporate officials and to a supplier; he said
that he had reliable sources. Daniels asked to see the letter because he did not know what
Wheeler was talking about. Wheeler held the letter in his hand but turned it upside down so that
Daniels could not read it. Daniels said that he had been there a long time and had dealt with
Wheeler. Wheeler said that he did not believe that Daniels was involved with the letter.
Wheeler and Schafer, who was also present, went to the office area a few minutes and then
returned. Wheeler then announced that Daniels was suspended until an investigation was
completed. Wheeler assured Daniels that he would try and complete the investigation quickly
and if Daniels was cleared he would be brought back to work with full backpay.8 Daniels left
and Schafer followed him. After they discussed whether it was necessary for Daniels to remove
his personal items from his truck, Schafer said that he would see Daniels in a few days.9

Respondent fired Young, Jolliff, and Daniels on August 26. Their termination letters
read:

On August 20, 2002 our customer Honda Manufacturing North America
received a letter signed by TNT Logistics North America, Drivers
and Dock Workers, East Liberty, OH. The letter stated that
management was mistreating employees, harassing employees
and threatened the Customer (Honda) that if they did not do
something they would turn the matter over to the local news
stations (our customer is very sensitive to bad media coverage).
The letter also directly threatened a Contract manager quote “
This man is going to get hurt if he shoves the wrong person and it
will be no ones fault but his own if he gets hurt.” This letter violates
TNT company policy 315-workplace violence. Also, sending a
threatening letter of this nature to our customer puts TNT’s reputation
in a bad light and additionally could lead to a loss of business or
failure to get new business and we can not tolerate that by any
employee.

7 These facts are based on Young’s credible and largely uncontroverted testimony. To the
extent that Wheeler’s testimony conflicts with Young’s, I do not credit it. Wheeler’s version
seemed incomplete and his demeanor was uncertain.
8 In his brief the General Counsel contends that Wheeler asked Daniels if he had
participated in sending the letter. I have examined that transcript pages relied on by the
General Counsel and conclude that this contention is not supported by the record.
9 These facts are based on Daniel’s credible and uncontroverted testimony.

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Our company has an open door policy and for an employee to send
a letter to our customer without contacting local management or
Corporate Headquarters to work on their issues is inexcusable .
This act cannot and will not be tolerated by TNT North America.

We have it on reliable sources that you had a part in the writing and
sending of this letter to our customer. This act jeopardized our entire operation and all
employees’ livelihood at this location.

As of today August 26, 2002 we are terminating your employment with
TNT Logistics North America.

III. Analysis

I first address the issue of the discharges. Section 7 of the Act protects the right of
employees to engage in concerted activities designed to address working conditions. Activities
are concerted when they are by, or on behalf of, more than one employee. Meyers Industries,
Inc., 268 NLRB 493, 497 (1984) remanded sub nom., Prill v. NLRB, 755 F. 2d 941 (D.C. Cir.
1985), cert. denied, 474 U.S. 948, 106 S. Ct. 313, 88 L.Ed. 2d 294 (1985)(Meyers l), on remand,
Meyers Industries, Inc., 281 NLRB 882 (1986), enforced sub nom., Prill v. NLRB, 835 F. 2d
1481 (D.C. Cir. 1987), dert. denied, 487 U.S. 1205, 108 S. Ct. 2847, 101 L. Ed. 2d 884 (1988)
(Meyers II). Here, the letter was clearly the product of concerted activity. Many employees
provided their concerns to Young and agreed that he should send the letter as a means of
addressing those concerns. Respondent argues that the employees’ activity was not concerted
because “Young acted without the knowledge and consent of other TNT employees.” This
assertion is simply contrary to the facts that I have found as described above. Many employees
voiced their complaints to Young and agreed that sending a letter was the appropriate vehicle of
making Respondent aware of those concerns. Respondent may be arguing that in order to be
concerted activity the actual letter had to be shown to other employees for the approval. There
is no support for such a constricted view of concerted activity. It is enough that employees had
input into the letter and gave general approval to sending it.

An employer must also know of the concerted nature of the activity. Here, the content of
the letter clearly reveals its concerted nature. The letter indicated it was sent from the dock and
driver employees. Indeed, Respondent must have at least suspected the concerted nature of
the letter because it fired three employees as a result. I conclude that the letter constituted
concerted activity and Respondent was aware of its concerted nature. Oakes Machine Corp.,
288 NLRB 456 (1988).

In its brief Respondent cites Compuware Corp. v. NLRB, 134 F.3d 1285, 1291 (6th Cir.
1998), and concedes that an employee has the right to engage in concerted communications to
a third-party customer, such as Honda of America, if the third-party communications addresses
legitimate employee concerns such as terms and conditions of employment or employee
grievances. The letter sent to Honda by the employees fits comfortably within that description.
Respondent, however, argues that parts of the letter did not deal with employee grievances or
terms and conditions of employment. More specifically, Respondent argues that the letter
“contained a direct threat of violence to Mr. Basinger.” I disagree. I have concluded above that
Basinger in fact has physical contact with employees as he shoved them out of his way. In this
context, the letter was not threatening Basinger but was merely highlighting the conduct of
Basinger that the employees found offensive and was stressing the obvious – that some people
may react angrily to getting physical pushed around. Respondent also argues that the letter lost
the protection of the Act because it contained broad criticisms of the managers of the facility.

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But this was the core concern of the employees – that the managers were not treating the
employees fairly. Fair treatment by management is as much a term and condition of
employment that may be addressed by concerted activity as wages and pensions.
Respondent’s citation to New River Industries v. NLRB, 945 F.2d 1290 1294 (1991) is
unpersuasive. In that case an employee sent a letter that mocked the employer’s offer to give
employees a free ice cream cone. Here, the letter was an attempt to address legitimate
employee concerns. Respondent also asserts that the employees sent a “scandalous letter full
of unfounded criticisms and unsupported allegations.” First, the record in this case does not
support this assertion. Second, the test in determining whether employee statements lose the
protection of the Act is not whether the assertions were unsupported or unfounded, but rather
whether they are maliciously false. New River Industries v. NLRB, 945 F.2d 1290, 1294-1295
(4th Cir. 1991). Respondent cites Shelly & Anderson Furniture Mfg. Co. v. NLRB, 497 F. 2d
1200, 1203 (9th Cir. 1974). But in that case the court upheld the Board and concluded that an
employer violated the Act in unlawfully discharging two employees who participated in a 15-
minute protest during working time. Respondent complains of the fact that Honda was its
largest customer at the facility and by sending the letter to Honda the employees were treading
on very sensitive grounds. However, as the General Counsel points out, the Board has held
that “absent a malicious motive [an employee’s] right to appeal to the public is not dependent on
the sensitivity of Respondent to his choice of forum.” Allied Aviation Service, 248 NLRB 229,
231 (1980).

By discharging employees John Jolliff, Emerson Young, and Steven Daniels because
they engaged in, or because Respondent believed that they engaged in, protected concerted
activity, Respondent violated Section 8(a)(1).

The General Counsel alleges that Respondent unlawfully threatened to discharge an
employee because he engaged in union activity. I have concluded above that in early May
Basinger declared that Jolliff was prounion and Honda did not like unions and that if Jolliff did
not keep his mouth shut Wheeler was going to fire Jolliff. By threatening to discharge an
employee because of his union sympathies, Respondent violated Section 8(a)(1).10

Next, the General Counsel contends that Respondent unlawfully invited an employee to
resign. During the same meeting referred to in the previous paragraph, Basinger suggested
that Jolliff quit his employment with Respondent and work elsewhere. This occurred in the
context where Basinger had declared that Jolliff was prounion and could be fired for that reason.
Thus, the invitation to resign was intertwined with Jolliff’s perceived support for a union. By
asking union supporters to resign their employment if they are dissatisfied with working
conditions, Respondent violated Section 8(a)(1). General Fabrications Corp., 328 NLRB 1114
(1999).

The General Counsel contends that Respondent unlawfully interrogated employees
concerning their protected concerted activities. As set forth above, on August 22 Wheeler
10 Respondent’s brief does not address the 8(a)(1) allegations of the complaint. Respondent
has thus waived any argument that it may have that this allegation is barred by Sec. 10(b) of the
Act. In any event the evidence shows that the charge in Case 8-CA-33810-1 was served on
Respondent on November 6. Therefore conduct that occurred on or after May 6 may be
appropriately alleged to be unlawful. Here, Jolliff testified that his meeting with Basinger
occurred about a week after he talked to Cox and the the discussion with Cox occurred in late
April or early May. I conclude that a preponderance of the evidence shows that Basinger’s
comments occurred within the 10(b) period.

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questioned both Jolliff and Young about the letter. I have also concluded above that the letter
was concerted activity protected by the Act. The Board has held that it is unlawful to coercively
interrogate employees concerning such activity. TPA, Inc., 337 NLRB No. 40 (2001). Here, the
coercive nature of the questioning is clear: it was designed to procure information in order to
discipline the employees. By coercively interrogating employees concerning employees’
protected concerted activities, Respondent violated Section 8(a)(1) of the Act.

The General Counsel contends that Respondent violated the Act by unlawfully giving the
impression to employees that their protected concerted activities were under surveillance. As
set forth more fully above, on August 22 Wheeler told Jolliff, Young, and Daniels that he learned
from a reliable source that these employees had participated in the creation and sending of the
letter. The Board has held that an employer may not create the impression that employees’
protected concerted activities are under surveillance under circumstances that reasonably tend
to instill fear in employees for having engaged in those activities. Here, Respondent not only
indicated to the three employees that it had been monitoring their lawful activity, but it did so in
order to procure information to be used to discipline them. I conclude that Respondent violated
Section 8(a)(1) by giving the impression to employees that it was surveilling their protected
concerted activity. Trade West Construction Inc., 339 NLRB No. 7 (2003).

Finally, the General Counsel contends that Respondent violated the Act when it
interrogated Young concerning his union activities. I have described above how on August 22
Wheeler asked what good a union would do for Young at that point in his life. Young replied
“Probably none.” Questioning an employee about his union activity is not a per se violation of
the Act. Rather, the questioning must be weighed against all relevant circumstances to
determine whether it was coercive. Rossmore House, 269 NLRB 1176 (1984). On the one
hand, Wheeler’s questioning was of a general nature and Young’s response to the question
highlights this fact. On the other hand, the questioning occurred in Wheeler’s office in the
presence of two other supervisors. As described above, it was accompanied by another
unlawful interrogation and was part of Young’s unlawful termination. Also, Young had not
revealed his recent union activities to Respondent. Under these circumstances, I conclude that
Respondent violated Section 8(a)(1) by coercively interrogating an employee concerning his
union sympathy and support.

Conclusions of Law

1. By the following conduct, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.

(a) By discharging employees John Jolliff, Emerson Young, and Steven Daniels
because they engaged in, or because Respondent believed that they engaged in, protected
concerted activity, Respondent violated Section 8(a)(1).
(b) Threatening to discharge an employee because of his union sympathies.
(c) Asking union supporters to resign their employment if they are dissatisfied with
working conditions.
(d) Coercively interrogating employees concerning employees’ protected concerted
activities.
(e) Giving the impression to employees that it was surveilling their protected concerted
activity.
(f) Coercively interrogating an employee concerning his union sympathy and support.

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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.

Having discriminatorily discharged John Jolliff, Emerson Young, and Steven Daniels,
Respondent must offer them reinstatement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date of discharge to the date of proper
offer of reinstatement, 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).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11

ORDER

The Respondent, TNT Logistics North America, Inc., East Liberty, Ohio, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any employee for engaging in
protected concerted activity.
(b) Threatening to discharge employees because of their union sympathies or support.
(c) Asking union supporters to resign their employment if they are dissatisfied with
working conditions.
(d) Coercively interrogating employees concerning employees’ protected concerted
activities.
(e) Giving the impression to employees that it was surveilling their protected concerted
activity.
(f) Coercively interrogating any employees about their union sympathy or support.

(g) 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) Offer employees John Jolliff, Emerson Young, and Steven Daniels full reinstatement
to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make employees John Jolliff, Emerson Young, and Steven Daniels whole for any
loss of earnings and other benefits suffered as a result of the discrimination against them, in the
11 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.

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manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharges and, within 3 days thereafter, notify the employees in writing that this has
been done and that the discharges will not be used against them in any way.
(d) 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.
(e) Within 14 days after service by the Region, post at its facility in East Liberty, Ohio,
copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by
the Regional Director for Region 8, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt 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 May 6.
(f) 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.

Dated, Washington, D.C. July 16, 2003

William G. Kocol
Administrative Law Judge

12 If this Order is enforced by a Judgment of the 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--75--03
East Liberty, OH
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 discharge or otherwise discriminate against any of you for engaging in protected
concerted activity.

WE WILL NOT threaten to discharge employees because of their union sympathies or support.

WE WILL NOT ask union supporters to resign their employment if they are dissatisfied with
working conditions.

WE WILL NOT coercively interrogate employees concerning employees’ protected concerted
activities.

WE WILL NOT give the impression to employees that we are surveilling their protected
concerted activity.

WE WILL NOT coercively interrogate any employees about their union sympathy or support.

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 the Board’s Order, offer employees John Jolliff,
Emerson Young, and Steven Daniels 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 employees John Jolliff, Emerson Young, and Steven Daniels whole for any loss
of earnings and other benefits resulting from their discharge, less any net interim earnings, plus
interest.

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WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of employees John Jolliff, Emerson Young, and Steven
Daniels, 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.

TNT LOGISTICS NORTH AMERICA, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Federal Building, Room 1695, Cleveland, OH 44199-2086
(216) 522-3716, Hours: 8:15 a.m. to 4:45 p.m.
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, (216) 522-3723.

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