Docket Number:22-CA-089596

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

H&M International Transportation, Inc. and Harry


UFCW, Local 312 and Harry Neilan. Case 22–CA– 089596, 22–CA–095095, and 22–CB–106127

March 1, 2016



On June 10, 2015, Administrative Law Judge Mindy

E. Landow issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions and to adopt the recommended Order as modified.3

1 All of the Respondent’s exceptions concern the judge’s admission into evidence of a surreptitiously-made audio recording of a meeting between employees and Terminal Manager John Nunnery on December 12, 2012. We find that the Respondent’s exceptions are without merit. The judge found that Nunnery acquiesced in, and his statements reasonably could have been construed as endorsing, employees’ strict adherence to safety rules, including stopping at all rail crossings and complying with the posted speed limit. In so finding, the judge expressly relied not only upon the audio recording, but also upon Nunnery’s admissions at the hearing and the credited testimony of other witnesses. Because the judge’s factual findings were independently supported by credited testimony, the admission of the audio recording did not prejudice the Respondent. Further, the judge’s admission of the recording was consistent with Board precedent. See, e.g., Local 560, International Brotherhood of Teamsters (County Concrete Corp.), 360 NLRB No. 125, slip op. at 4–5 (2014); Orange County Publication, an Unincorporated Division of Ottoway Newspaper, Inc. d/b/a The Times Herald Record, 334 NLRB 350, 354 (2001) (citing cases), enfd. 27 Fed. Appx. 64 (2d Cir. 2001). Moreover, the General Counsel met the authentication requirements imposed by the Federal Rules of Evidence by producing testimony that supports a finding that the recording was what the General Counsel claimed it was: a recording of the December 12 meeting. See Fed.R.Evid. 901(a) and (b)(1); see also U.S. v. Tahn Le, 542 Fed. Appx. 108, 117 and fn. 8 (3d Cir. 2013) (Government adequately authenticated tape recording as required by Fed.R.Evid. 901(a) by having “a witness with knowledge testify ‘that an item is what it is claimed to be.’ Fed.R.Evid. 901(b)(1).”).

2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.


The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, H&M International Transportation, Inc., Jersey City, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

  1. Substitute the following for paragraph 1(a).

    “(a) Suspending, discharging, or otherwise discriminating against employees because they engage in protected concerted or union activities.”

  2. Substitute the following for paragraph 2(d).

    “(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspensions and discharges, and within 3 days thereafter, notify the employees in writing that this has been done and that the suspensions and discharges will not be used against them in any way.”

  3. Substitute the attached notice for that of the administrative law judge.

    Dated, Washington, D.C. March 1, 2016


    Mark Gaston Pearce, Chairman


    Kent Y. Hirozawa, Member


    Lauren McFerran, Member






    An Agency of the United States Government

    The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

    We note that American Directional Boring, Inc., d/b/a ADB Utility Contractors, Inc., 353 NLRB 166 (2008), a two-member decision cited by the judge, was subsequently affirmed by a three-member panel at 355 NLRB 1020 (2010).

    3 We shall modify the judge’s recommended Order to conform to her unfair labor practice findings, and we shall substitute a new notice to conform to the Order as modified.



    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 suspend, discharge, or otherwise discriminate against any of you for engaging in protected concerted or union activities.

    WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.

    WE WILL, within 14 days from the date of the Board’s Order, offer Harry Neilan, Alex Ventre, Abraham Gonzalez, and Ernesto Martinez full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

    WE WILL make Harry Neilan, Alex Ventre, Abraham Gonzalez, and Ernesto Martinez whole for any loss of earnings and other benefits resulting from their suspensions and discharges, less any net interim earnings, plus interest.

    WE WILL compensate Harry Neilan, Alex Ventre, Abraham Gonzalez, and Ernesto Martinez for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each employee.

    WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful suspensions and discharges of Harry Neilan, Alex Ventre, Abraham Gonzalez, and Ernesto Martinez, and

    WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the suspensions and discharges will not be used against them in any way.


    The Board’s decision can be found at www.nlrb.gov/case/22-CA-089596 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.

    Nancy Slahetka, Esq. and Robert Mulligan, Esq., for the General Counsel.

    Russell J. McEwan, Esq. and David Broderick, Esq. (Littler Mendelson, P.C.), of Newark, New Jersey, for H&M International Transportation.

    Bruce J. Cooper, Esq. (Pitta & Giblin, LLP), of New York,

    New York, for UFCW Local 312.



    MINDY E. LANDOW Administrative Law Judge. Based on charges filed by Harry Neilan, an individual, on September 27, 2013, the General Counsel issued an Order Consolidating Cases, First Amended Complaint and Notice of Hearing (the complaint) alleging that H&M International Transportation (H&M or the Employer) engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) and that UFCW Local 312 (Local 312 or the Union) engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.1 Both H&M and the Union filed answers denying the material allegations of the complaint. On January 23, 2014, counsel for the General Counsel filed and served a Notice of Intent to Amend the complaint, which was granted on the record on January 28. This case was tried before me in Newark, New Jersey, on January 28, 29, and 30, 2014; February 11, 20, and 28, 2014, and March 4 and 6, 2014. After the resolution of certain interlocutory matters, the record was closed by order dated September 30, 2014.

    On the entire record, including my observation of the demeanor of the witnesses,2 and after carefully considering the

    1 By letter dated October 26, 2012, the Regional Director for Region 22 issued a conditional dismissal of the allegation in Case 22–CA– 089596 alleging that the reinstatement of certain discipline issued to Antonio Vicente was in retaliation for Harry Neilan’s union activities. By letter dated August 29, 2013, the Regional Director revoked the conditional dismissal of that charge and this allegation was incorporated into the instant complaint.

    2 My credibility resolutions herein are based upon context, demeanor, weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole. Double D. Construction Group, Inc., 339 NLRB 303, 305 (2003); Daikichi Corp. d/b/a Daikichi Sushi, 335 NLRB 622, 623 (2001). It must be said that virtually every witness who testified herein raised questions about their credibility at certain times. In this regard, it should be noted that on numerous occasions I have credited certain portions of a witness’ testimony where other portions have been discredited. State Plaza, Inc.,...

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