Airport 2000 Concessions, LLC

National Labor Relations Board - Board Decisions

Apr 24, 2006

346 N.L.R.B. 958 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 86
958
Airport 2000 Concessions, LLC and UNITE HERE
Local 7, Hotel and Restaurant Employees Un-
ion, CLC.1 Cases 5–CA–32092 and 5–CA–32185
April 24, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 2, 2005, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondent filed
exceptions and a supporting brief and the General Coun-
sel 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, findings,2 and conclusions3
only to the extent consistent with this Decision and Or-
der, to adopt the recommended Order as modified and set
forth in full below, and to substitute a new notice.
This proceeding involves alleged unfair labor practices
during the Union’s campaign to organize employees of
the Respondent’s concession operations at Balti-
more/Washington International (BWI) Airport.4 Prior to
the Respondent’s takeover of these operations, the Union
represented the employees at the concessions, including
many of the employees the Respondent subsequently
hired. The complaint alleges, and the judge found, sev-

1 We have amended the caption to reflect the disaffiliation of UNITE
HERE from the AFL–CIO effective September 14, 2005.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 The judge made factual findings regarding confrontations between
several of Respondent’s managers and shift leader, Maria Holmes and
employee Donnell Gould on August 18, 2004 about the upcoming
union rally, scheduled for August 20, and Shift Leader Maria Holmes’
discharge several days after the rally. Based on those factual findings,
the judge concluded that Holmes was not a supervisor and therefore he
rejected the Respondent’s argument that she was not protected by the
Act. He further found that the managers’ August 18 confrontation with
Holmes’ constituted unlawful interrogations, the creation of the impres-
sion of surveillance, and threats to discharge employees because of
their union activities. The judge also found that Manager Valerie
Trusty’s inquiry regarding Gould’s participation in the rally was an
unlawful interrogation. Finally, the judge found that Holmes’ dis-
charge violated Sec. 8(a)(3) and (1). We agree with the judge and
adopt his findings for the reasons he articulated, although Member
Schaumber would find it unnecessary to pass on the judge’s finding
regarding the Gould interrogation as cumulative.
4 We note that since the events at issue here the name of the airport
has been changed to Baltimore/Washington International Thurgood
Marshall Airport.
eral violations of Section 8(a)(1) and (3). We have
adopted some of these violation findings, supra fn. 3, and
we will deal with the remaining allegations sequentially.
1. Events of June 16
The Respondent was awarded a contract to operate the
concessions at BWI Airport in May 2004,5 and began
operations on June 2. The Respondent’s principals and
corporate managers oversaw operations throughout the
airport. The employees at issue here worked on pier B of
the airport, where the Respondent maintained a Charley’s
Steakery and a combined Caribou Coffee/Mamma
Ilardo’s Pizza restaurant. At the individual store level,
the Respondent employed a managing partner, assistant
managing partners, shift leaders, and team members.
On June 16, Valerie Trusty, the managing partner for
Charley’s Steakery and an admitted supervisor, noticed a
union organizer speaking with a team member while the
team member was working. Trusty interrupted the con-
versation. Later, she noticed the same team member
speaking with the union organizer in the “unit,” i.e., the
dining area adjacent to the food service counters. After
observing them for a short period, Trusty approached the
team member and asked her if she was okay. The em-
ployee replied that she was fine and was on her break.
Trusty responded that the team member could speak with
the union organizer as long as she was not on the Re-
spondent’s time and then left the area.
Trusty returned to her work area and loudly announced
that she did not want any employees talking to anyone
from the Union. Team member Donnell Gould chal-
lenged Trusty’s pronouncement. Trusty responded that
she could tell him what to do if he was on her clock and
in her unit. She elaborated that he could talk to the Un-
ion on his own time and outside of the unit.
The judge found that Trusty’s initial intrusion into the
team member’s conversation with the union organizer in
the unit constituted an unlawful interrogation, creation of
the impression of surveillance of employees’ union ac-
tivities, and actual surveillance of employees’ union ac-
tivities. We find it unnecessary to pass, as cumulative,
on the judge’s findings that the intrusion constituted an
unlawful interrogation and impression of surveillance in
light of our finding that the Respondent committed simi-
lar violations in August. We disagree with the judge,
however, that the intrusion constituted actual surveil-
lance.
As we recently found in Aladdin Gaming, LLC, 345
NLRB 585 (2005), a case with very similar facts, a su-
pervisor’s routine observation of employees engaged in
open Section 7 activity does not violate Section 8(a)(1).

5 All dates herein are 2004.
AIRPORT 2000 CONCESSIONS, LLC 959
In Aladdin Gaming, a supervisor observed an employee
engaged in Section 7 activity in a dining area frequented
by managers and employees, approached the employee,
waited 2 minutes, and interrupted the employee to ex-
press the supervisor’s views on unionization. There, we
found no 8(a)(1) surveillance violation because the su-
pervisor’s presence in the dining area was not out of the
ordinary and thereby not coercive. Similarly, here, there
is no allegation that Trusty’s presence in the dining area
was out of the ordinary. Moreover, as in Aladdin Gam-
ing, the supervisor’s interruption was not itself coercive
nor was it accompanied by coercive conduct, such as
contemporaneous threats. Indeed, the employee, al-
though interrupted by Trusty, continued her conversation
with the union organizer after Trusty left until her break
was over.
In sum, Trusty’s conduct bears little resemblance to
the “out-of-the-ordinary” type of conduct found unlawful
in the cases distinguished in Aladdin Gaming.6 The
General Counsel has not shown that Trusty’s presence in
the working area, or in the dining area was extraordinary.
Further, Trusty did not, for example, respond to the un-
ion activity taking place right in front of her by videotap-
ing or taking pictures of what was occurring, writing
down names or taking notes, or embarking on a new
practice designed to “scare off” the union organizer. Nor
did Trusty intimidate or threaten the employee. Accord-
ingly, we reverse the judge and dismiss the allegation
that Trusty unlawfully surveilled an employee on June
16.7

6 Thus, the facts here are distinguishable from those in Taylor-Rose
Mfg. Corp., 205 NLRB 262 (1973), enfd. mem. 493 F.2d 1398 (2d Cir.
1974), upon which our dissenting colleague relies. In Taylor-Rose, the
Board found unlawful the employer’s attempt to eavesdrop on an em-
ployee’s union-related conversation. Here, by contrast, Trusty merely
observed open conduct in a public area—without eavesdropping, or
attempting to eavesdrop, on the encounter between the employee and
the union organizer—and then approached them and asked the em-
ployee if she was “OK.” In sum, Aladdin Gaming is directly on point
and therefore controls. Our colleague relies upon her dissent in that
case, but the case remains Board law.
7 Contrary to the majority and consistent with her dissent in Aladdin
Gaming, supra, Member Liebman would adopt the judge’s finding that
Trusty’s interruption of a team member’s break-time conversation with
a union representative in the unit constituted unlawful surveillance.
Here, moreover, Trusty immediately followed her intrusion into the
team member’s obviously union-related conversation with a general
announcement of an overbroad no-solicitation rule that expressly (and
unlawfully) prohibited the precise protected conduct that the team
member was at that very moment engaged in. By her announcement of
the rule, Trusty indicated her intent to continue watching team mem-
bers—and, in particular, the team member whose protected conduct led
to the announcement of the rule—to ensure that they did not engage in
such protected conduct. Further, as the judge found, Trusty actually
continued to watch the remainder of the employee’s conversation with
the union representative. Under these circumstances, Member Liebman
We agree with the judge, however, that Trusty’s sub-
sequent conduct (returning to her workstation and in-
structing employees not to speak with union organizers)
violated Section 8(a)(1).8 As noted above, the judge
credited employee Gould’s testimony that Trusty’s
statement established a prohibition on speaking to any-
one from the Union either during working time or while
in the unit. The Respondent does not dispute that em-
ployees spend their breaks in the unit area or that a pro-
hibition on employees’ engaging in union activity during
their breaktime would be unlawful.9 Instead, the Re-
spondent disputes only that Trusty’s articulation of the
Respondent’s no-solicitation rule extended to employees’
breaktime. The Respondent, however, has not provided
any compelling reason for us to reverse the judge’s deci-
sion to credit employee Donnell’s testimony regarding
Trusty’s articulation of the no-solicitation rule. Accord-
ingly, we adopt the judge’s finding that Trusty’s articula-
tion of the Respondent’s no-solicitation rule on June 16
was overbroad and, therefore, violated Section 8(a)(1).

finds, as the judge did, that Trusty engaged in unlawful surveillance of
the team member’s union activity. See, e.g., Taylor-Rose Mfg. Corp.,
supra (finding unlawful surveillance where company official openly
approached employees engaged in conversation with union organizer in
parking lot, in order to eavesdrop). The fact that Trusty’s surveillance
was not surreptitious does not make it lawful. See Teksid Aluminum
Foundry, 311 NLRB 711, 715 (1993) (finding an 8(a)(1) violation in
managers’ overt surveillance of employees in public areas, intended to
prevent employees from engaging in lawful organizational activities).
8 Thus, the Board is unanimous on this point. We part company with
our dissenting colleague, however, over whether Trusty’s subsequent
unlawful announcement of an overbroad no-talking rule retroactively
converted her preceding conduct into unlawful activity. Our dissenting
colleague finds Trusty’s earlier intrusion on the employee’s conversa-
tion with the union agent unlawful because Trusty subsequently prom-
ulgated the unlawful no-solicitation rule. We disagree. We find that
the lawfulness of Trusty’s intrusion is to be assessed as of the time of
the intrusion. As that intrusion was not unlawful when it occurred, we
find that it was not transposed into a violation based on Trusty’s subse-
quent unlawful conduct. Moreover, even if Trusty’s announcement of
an overly broad no-talking rule would reasonably be construed, as our
colleague argues, as suggesting that Trusty would be “watching” for
future violations of that rule, that would not establish that Trusty or any
other agent of the Respondent was “watching” employees’ conversa-
tions before the rule was announced, much less that it was surrepti-
tiously spying on such conversations.
9 Although the Respondent generally excepts to the judge’s finding
that the Respondent lacked a sufficient property interest in the unit area
to enforce a no-solicitation rule, the Respondent makes no argument to
support its exception and, instead, asserts that the judge’s finding was
“wholly irrelevant” to its defense. In sum, given its view that the issue
was irrelevant, the Respondent adduced little or no support for it. In
these circumstances, the Respondent has not shown a property interest
in the unit area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD960
2. Events of August 24–25
a. Union buttons
The parties do not dispute that during a one-on-one
meeting on August 24, Respondent’s secretary/treasurer,
Stephen Olsen, told employee Phyllis Reaves that she
could not wear her union button during working time.
Nor do the parties dispute that, the following day, Air-
port Director Rick Becherer told employee Eva Johns
that she had to remove her identical button. The judge
found that the Respondent’s requirement that Reaves and
Johns remove their buttons violated Section 8(a)(1).
We agree with the judge. It is well established that an
employer may not prohibit the wearing of union insignia,
absent special circumstances. See Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 802–803 (1945). As the
judge found, the Respondent here failed to provide any
evidence of special circumstances to justify its prohibi-
tion. The Respondent did not demonstrate that the but-
tons interfered with its ability to maintain production or
safety standards, prevent discord between competing
groups of employees, or prevent the alienation of cus-
tomers. See Systems West LLC, 342 NLRB 851, 855
(2004). Moreover, the record shows that the Respondent
permitted employees to wear other kinds of pins and but-
tons, such as Winnie the Pooh or angel pins. Thus, the
Respondent inconsistently applied its uniform policy
and, therefore, cannot use that policy to establish special
circumstances. See Waterbury Hotel Management LLC,
333 NLRB 482, 545–546 (2001), enfd. 314 F.3d 645
(D.C. Cir. 2003) (prohibition on union buttons unlawful
for several reasons, including because uniform policy
was discriminatorily enforced). In addition, as the judge
found, the Respondent tolerated the wearing of union
buttons prior to the August rally, but changed its policy
in response to the Union’s increase in organizing activ-
ity, marked by the rally. See E & L Transport Co., 331
NLRB 640, 640 (2000).10
b. Solicitation of grievances
During his August 24 meeting with employee Johns,
Secretary/Treasurer Olsen told Johns that he heard she
had a problem with her pay. Johns then shared with Ol-

10 In an effort to distinguish this case from Burger King Corp. v.
NLRB, 725 F.2d 1053 (6th Cir. 1984), the judge characterized the status
of the Sixth Circuit’s and the Board’s precedent regarding consistently
applied uniform rules. Because we adopt the judge’s finding that the
Respondent did not consistently apply its uniform policy, we find it
unnecessary to pass on the judge’s characterization of this precedent.
In finding the Respondent’s prohibition against wearing union but-
tons unlawful, Member Schaumber relies on the Respondent’s failure to
establish special circumstances justifying the ban and its acting to pro-
hibit union buttons in response to the Union’s stepped up organizing
activity.
sen her dissatisfaction with the Respondent’s choice in
health care benefits. Olsen told her that maybe the Re-
spondent could provide better benefits later. In response
to Olsen’s further prompting, Johns also complained to
Olsen about how Airport Director Becherer had treated
her a few days earlier. Olsen responded that he did not
want to lose Johns as an employee.
Reaves had a similar conversation with Olsen in her
one-on-one meeting on the same day.11 Olsen asked
Reaves what she liked and disliked about the Company
and what he could do to make it better. Reaves com-
plained about the benefits package and questioned the
holidays for which the Respondent gave time off. When
Olsen told her he would look into the holiday issue,
Reaves asked if the Respondent would give employees
more holidays off. Olsen told her no.
The judge found that Olsen’s inquiries and responses
constituted an unlawful solicitation of grievances and an
implied promise to remedy those grievances. The Re-
spondent has excepted to that finding. The Respondent
contends that Olsen made no promise to remedy any
problems raised by Johns and Reaves and, in fact, did not
remedy any of the problems they raised. We find merit
to the Respondent’s exception.
The essence of a solicitation of grievances/implied
promise of benefit violation is the promise of remedying
the grievances, not the mere solicitation. See Ryder
Transportation Services, 341 NLRB 761, 769 (2004),
enfd. 401 F.3d 815 (7th Cir. 2005). Thus, although the
record shows that Olsen solicited grievances from Johns
and Reaves, it does not support finding a violation. In-
stead, the record dispels any inference that Olsen prom-
ised that he would remedy Johns’ and Reaves’ griev-
ances.
Olsen did not expressly promise to remedy the em-
ployees’ complaints, and the responses he gave to the
two employees’ grievances were sufficient, in our view,
to rebut any implication of a promise. In response to
Johns’ concerns about her health insurance, Olsen first
explained that the benefits were less than generous be-
cause the Respondent was a small company and then said
that the Respondent was a new company and “maybe” it
could (not would) provide better benefits at a later date.

11 In finding Olsen’s meetings with Johns and Reaves unlawful, our
dissenting colleague finds that these meetings were atypical and at-
taches importance to that finding. At the time the meetings took place,
however, the Respondent had been in operation at BWI Airport for less
than 3 months—too brief a time to draw meaningful conclusions con-
cerning typicality. In light of the Respondent’s short tenure as Johns’
and Reaves’ employer, we attach less significance to the fact of the
meetings than to their content. In any event, even if the solicitation was
atypical, that would not contradict the fact that the solicitor was not
making promises.
AIRPORT 2000 CONCESSIONS, LLC 961
Such a conditional statement is not a promise. See Cur-
wood, Inc., 339 NLRB 1137 (2003), enfd. in relevant
part 397 F.3d 548 (7th Cir. 2005). Olsen’s response to
Johns’ complaint about her treatment by Becherer was
even more equivocal. He told Johns only that he did not
want to lose her. He did not offer any steps he would
take to alter her situation with Becherer.
With regard to Reaves, Olsen’s only promise was a
promise not to remedy her grievance about holidays off.
Olsen initially said only that he would look into Reaves’
complaint about holidays. When Reaves pushed him
further, however, Olsen told her flatly that the Respon-
dent would not be adding a holiday to the schedule.
These responses are clearly distinguishable from the
manager’s conduct in Ryder Transportation Services,
supra, upon which the judge relied in finding a violation.
There, the manager repeatedly assured employees that
the employer would bring about a favorable outcome.
Here, in contrast, no such assurances were made. In-
stead, as shown, Olsen obfuscated or disclaimed any fa-
vorable action.
Our dissenting colleague asserts that we have aban-
doned the principle that an implied promise to remedy
grievances violates Section 8(a)(1). We have not. We
agree that a solicitation of grievances raises a rebuttable
presumption of an implied promise to remedy those
grievances, and that the employer bears that rebuttal bur-
den. We find, however, that the Respondent has sus-
tained that burden here. This is not a case in which the
employer solicited grievances and then made no response
to an employee’s airing of a grievance. Rather, after
soliciting grievances, Olsen proceeded to equivocate,
temporize, and ultimately outright deny that the griev-
ance would be addressed. In light of Olsen’s post-
solicitation conduct, we find that employees would not
reasonably believe that their airing of grievances would
result in desired change. Thus, the difference between
ourselves and the dissent is not a difference concerning
the applicable law, but simply over whether the quantum
and quality of the evidence was sufficient to meet the
Respondent’s rebuttal burden.12 We acknowledge that

12 Our colleague submits instead that the difference is whether we
have “placed a burden on the Respondent at all.” We reject this asser-
tion. The foregoing analysis explicitly centers on the burden that was
imposed on the Respondent to avoid a finding that it unlawfully prom-
ised to remedy grievances. In accord with that burden, the Respondent
introduced evidence of Olsen’s responses to the concerns of Johns and
Reaves, showing that Olsen promised them nothing. Contrary to our
colleague, therefore, the issue is not whether the Respondent was re-
lieved of establishing a rebuttal defense but, rather, whether the evi-
dence that it did present in this regard was sufficient to establish its
defense. That is plainly the question that divides us.
Pursuant to that question, our colleague concedes that Olsen’s re-
sponses to Johns and Reaves were, at best, “equivocal and ambiguous,”
Olsen’s conversation with Johns presents a factually
close issue in this regard. For the reasons set forth
above, however, we find that the Respondent met its
burden here.13

but nevertheless sufficient to establish a violation because a “reason-
able employee could certainly have understood these equivocal re-
sponses as implicit promises of future changes.” We disagree with our
colleague’s view that the ambiguous or equivocal responses here were
implied promises. Clearly, they were not.
As stated above, we find that Johns and Reaves would not reasona-
bly conclude from Olsen’s equivocal and ambiguous responses that
their concerns would be favorably addressed.
13 Member Liebman would adopt the judge’s conclusion that the Re-
spondent acted unlawfully in soliciting the grievances of employees
Johns and Reaves. As the majority states, the essence of a solicitation-
of-grievances violation is the expressed or implied promise to remedy
the solicited grievances. The Board infers that an employer is promis-
ing to remedy the grievances it solicits, an inference that is “particularly
compelling” when an employer first institutes a practice of soliciting
employee grievances during a union organizational campaign. Center
Service System Division, 345 NLRB729, 730 (2005). As the judge
found, prior to August 24, Olsen had never met, one-on-one, with Johns
or Reaves, and he was not the Respondent’s contact person for em-
ployee benefits. These meetings, which occurred almost immediately
after the union rally, were clearly atypical.
Moreover, under Board precedent, while the inference of an implied
promise is rebuttable, the Respondent bears the burden of rebutting the
inference. See, e.g., Amptech, Inc., 342 NLRB 1131, 1137 (2004).
Contrary to the majority, Member Liebman finds that the Respondent
did not meet its burden. Only in his response to Reaves’ request for
additional holidays did Olsen unequivocally state that the Respondent
would not remedy the employee’s concern. Olsen’s responses to all of
Johns’ and Reaves’ other concerns were equivocal and ambiguous:
regarding Reaves’ request for different holidays, Olsen said he would
check into it; in response to Johns’ complaint about Becherer’s treat-
ment of her, Olsen assured Johns that he did not want to lose her, be-
cause she was a very valuable employee; and in response to Johns’
dissatisfaction with the Respondent’s health benefits, Olsen said that
“maybe later Respondent could get better benefits.” A reasonable
employee could certainly have understood these equivocal responses as
implicit promises of future changes. (In this regard, Olsen’s statement
about the possibility of better health benefits later is clearly distinguish-
able in tone and implication from the employer’s statement in Cur-
wood, Inc., 339 NLRB 1137, 1139 (2003), that “there were no plans to
make any changes at that time.”) Indeed, Reaves might reasonably
have concluded that Olsen’s unambiguous refusal of her request for
additional holidays, while he remained equivocal about her other re-
quests, indicated that he was considering granting the other requests;
obviously, the employees understood that Olsen knew how to say “no”
when that was what he meant.
The majority finds that the inference was rebutted simply because
“Olsen did not expressly promise to remedy the employees’ com-
plaints,” and because the implicit promises in this case were less defini-
tive than those made in Ryder Transportation Services, supra. Under
the circumstances here, however, a stronger showing by the Respon-
dent should be required. In Member Liebman’s view, by finding that
Olsen’s ambiguity supports the Respondent’s position, the majority
improperly relieves the Respondent of its rebuttal burden and effec-
tively eliminates an implicit promise to remedy grievances as a viola-
tion of Sec. 8(a)(1). Her disagreement with the majority on this issue is
not merely a difference of opinion regarding “the quantum and quality”
of evidence required for the Respondent to meet its burden. Rather, in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD962
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Airport 2000 Concessions, LLC, Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Informing employees that they cannot talk to union
representatives during nonworktime in nonwork areas.
(b) Creating the impression that employees’ union ac-
tivities are under surveillance.
(c) Coercively interrogating employees about their un-
ion activities or the union activities of other employees.
(d) Threatening employees with discharge if they en-
gage in a job action on behalf of the UNITE HERE Local
7, Hotel and Restaurant Employees Union, CLC, or any
other labor organization.
(e) Instructing employees to remove their union but-
tons to discourage them from supporting the UNITE
HERE Local 7, Hotel and Restaurant Employees Union,
CLC, or any other labor organization.
(f) Discharging employees because they engage in un-
ion activities or to discourage employees from engaging
in union activities.
(g) In any like or related manner interfering with, re-
straining, 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 this Order, offer
employee Maria Holmes full reinstatement to her former
position or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed,
discharging any employee, if necessary.
(b) Make Maria Holmes whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her in the manner set forth in the remedy
section of the judge’s decision. Backpay shall be com-
puted on a quarterly basis as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB
1173 (1987).

her view, it is a question of whether the majority has actually placed a
burden on the Respondent at all.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful termination of
Maria Holmes, and within 3 days thereafter, notify
Holmes in writing that this has been done and that the
termination will not be used against her 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 to be
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 the BWI Thurgood Marshall Airport, Mary-
land, copies of the attached notice marked “Appendix.”14
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Respon-
dent’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 Respon-
dent 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 its operations at BWI
Thurgood Marshall Airport, the Respondent shall dupli-
cate and mail, at is own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since June 16, 2004.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
AIRPORT 2000 CONCESSIONS, LLC 963
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT inform employees they cannot talk to un-
ion representatives during nonworktime in nonwork ar-
eas.
WE WILL NOT create the impression that employees’ un-
ion activities are under surveillance.
WE WILL NOT coercively interrogate employees about
their union activities or the union activities of other em-
ployees.
WE WILL NOT threaten employees with discharge if they
engage in a job action on behalf of UNITE HERE Local
7, Hotel and Restaurant Employees Union, CLC, or any
other labor organization.
WE WILL NOT instruct employees to remove their union
buttons to discourage them from supporting the UNITE
HERE Local 7, Hotel and Restaurant Employees Union,
CLC, or any other labor organization.
WE WILL NOT discharge employees because they en-
gage in union activities or to discourage employees from
engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer employee Maria Holmes full reinstatement
to her former position or, if that position no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Maria Holmes whole for any loss of
earnings and other benefits suffered as a result of her
unlawful termination, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful termination of Maria Holmes, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the termination will not be used against her
in any way.
AIRPORT 2000 CONCESSIONS, LLC
Stephanie Cotilla, Esq. and Elicia Marsh-Watts, Esq., for the
General Counsel.
Daniel P. Murphy, Esq. and Jena Tarabala, Esq., of Atlanta,
Georgia, for the Respondent.
Roxie Herbekian, of Baltimore, Maryland, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Baltimore, Maryland, on February 22, 23, and 24, 2005.
The charges and amended charges were filed by Unite Here
Local 7, Hotel and Restaurant Employees Union, AFL–CIO,
CLC (the Union or Local 7) against Airport 2000 Concessions,
LLC (Respondent).1 The consolidated complaint, as amended
at the hearing, alleges that Respondent violated Section 8(a)(1)
of the Act by: telling employees they were not to talk to union
representatives during nonworktime and in nonwork areas;
interrogating employees about their union activities and the
union activities of other employees; creating the impression of
surveillance and engaging in surveillance of employees’ union
activities; threatening employees with discharge if they en-
gaged in a job action on behalf of the Union; promising and
impliedly promising benefits to employees to dissuade them
from supporting the Union; soliciting grievances from employ-
ees; instructing employees to remove union buttons; and that
Respondent violated Section 8(a)(1) and (3) of the Act by dis-
charging its employee Maria Holmes on or about August 23,
2004, because she assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities.2 Respondent, in its answer, denies that it violated the
Act as alleged, and contends that Holmes was a statutory su-
pervisor.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT3
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness at the Baltimore Washington International Airport (BWI)
in Maryland, has been engaged in the retail sale of food. Re-
spondent will annually derive gross revenues in excess of
$500,000, and will annually purchase goods and services val-
ued in excess of $5000 from points located outside the State of

1 Respondent was also referred to as A2K by some of the witnesses
in this proceeding.
2 All dates are in 2004, unless otherwise specified.
3 In making the findings herein, I have considered all the witnesses’
demeanor, the content of their testimony, and the inherent probabilities
of the record as a whole. In certain instances, I have credited some but
not all of what a witness said. See NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), reversed on other grounds 340 U.S.
474 (1951). All testimony has been considered, if certain aspects of a
witness’s testimony are not mentioned it is because it was not credited,
or cumulative of the credited testimony set forth above. Further discus-
sions of the witnesses’ testimony and credibility are set forth through-
out this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD964
Maryland. Respondent admits and I find it is an employer en-
gaged 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
In May, Respondent was granted its initial contract by BAA
Maryland, Inc. (BAA) to operate food concessions at BWI.
Prior to Respondent beginning operations at BWI, H.M.S. Host
(Host) operated the airport food concessions. Local 7 repre-
sented Host’s employees. However, Host lost the BWI conces-
sion contract prior to entering a collective-bargaining agree-
ment with the Union.
Respondent commenced customer service at BWI on June 2.
Respondent is owned by Erroll Brown, its president, Stephen
Olsen, its secretary treasurer, and George Jones. Respondent
operates nine restaurants at BWI, where it employs over 200
employees. Respondent operates Charley’s Steakery, Mama
Ilardo’s Pizza, and Nature’s Table Café at the main terminal;
Charley’s Steakery, Mama Ilardo’s Pizza, and Caribou Coffee
at pier B; and Nathan’s, Mama Ilardo’s Pizza, and Caribou
Coffee at pier C. Brown oversees Respondent’s BWI opera-
tions and maintains an office at the BWI main terminal. Olsen
maintains an office in Atlanta, Georgia. Respondent’s chief of
operations, Stan Weiss, reports directly to the three owners.
Respondent’s airport director supervises the nine restaurants.
Frederick Becherer, known as “Rick” was Respondent’s airport
director in the summer of 2004.4
Most of Respondent’s restaurants are staffed by a managing
partner (MP), an assistant manager (AM), shift leaders, and
team members. The MP’s and AM’s are salaried positions.
Respondent pays for the MP’s health-care coverage, and con-
tributes to the AM’s health-care coverage. Shift leaders in the
summer of 2004, were earning around $10.50 an hour and most
team members were earning between $7 to $8.50 an hour.
Respondent does not contribute to the shift leaders and team
member’s health-care costs. As stated in Respondent’s “Em-
ployee & Management Handbook,” the MP has the overall
responsibility for directing the restaurant’s daily operations.
They are scheduled to work 50 hours a week, conduct a weekly
inventory, and order all supplies from vendors. The MP is
responsible for staffing the restaurant with trained employees.
They are required to monitor sales to make sure the restaurant
is consistently staffed during peak travel seasons. The MP is
required to see that employees are trained through the use of
training handbooks. The MP is responsible for providing cor-
rective feedback and disciplinary action up to and including
termination. The MP is responsible for scheduling employees.
The MP determines tasks to be performed, and delegates the
work. The AM is scheduled to work 50 to 55 hours a week and
is required to assist the MP in the above-described tasks. The
MP and AM are on call 24 hours a day, 7 days a week. Re-
spondent has admitted, as alleged by the General Counsel, that
MPs Oscar Pena, Valerie Trusty, Linda Powell, Samuel Ve-

4 Respondent admits that Brown, Olsen, and Becherer are, or were at
times relevant, its statutory supervisors and agents. Respondent no
longer employed Becherer at the time of the unfair labor practice trial.
lardo, and AM’s Jenny Greer and Sharon Evans are or were at
times relevant statutory supervisors and it agents within the
meaning of the Act.5
A. The Supervisory Status of Shift Leader Maria Holmes6
Maria Holmes worked for Respondent from May 15, until
her August 23 termination. Holmes previously worked for
Host as a shift leader. Becherer hired Holmes as a shift leader
at $10.50 an hour.7 During the period of May 15 through June
2, Holmes assisted with Respondent’s hiring process by re-
maining in an office and informing former Host employees
where to find Respondent’s job applications.8 Holmes credibly
testified she was never asked her opinion about any of the ap-
plicants.9
When Respondent took over the restaurant operations on
June 2, Holmes began work at Sticky Buns on the main pier
where Holmes was a shift leader with four team members.
Holmes transferred to pier B at the end of June, beginning of
July, where she worked at Mamma Ilardo’s and Caribou Coffee
as a shift leader until her August 23 termination. On pier B,
Caribou Coffee and Mamma Ilardo’s are adjacent operations,
and at the time Holmes was there MP Sammy Velardo and AM
Jennie Greer were in charge of both restaurants’ day-to-day
operations.10 Velardo and Greer did not wear uniforms rather
they wore dress clothes. Shift leaders Holmes and Vickie
Burks’ uniforms included a blue shirt, which was provided by
Respondent. Holmes testified the Caribou Coffee and Mamma
Ilardo’s team members wore different uniforms than the shift
leaders, as did the certified trainer. Holmes described the staff-

5 Respondent witness Vickie Burks testified Velardo left Respon-
dent’s employ in late September or early October and that Greer left
around November.
6 The parties stipulated, in order to limit the scope of the hearing and
the General Counsel’s subpoena, that only the supervisory status of
shift leaders at pier B Caribou Coffee and Mama Ilardo’s (store 50) was
to be litigated during the course of this proceeding. Accordingly, I
have not considered record evidence concerning the functions of shift
leaders at Respondent’s eight other restaurants in reaching the factual
findings and conclusions of law herein.
7 Respondent entered into evidence a document from Holmes’ em-
ployment records R. Exh. 7 containing personal information relating to
Holmes such as date of birth and emergency contact. Brown’s testi-
mony reveals that in the normal course of business Holmes or Becherer
would have filled out the document. Holmes’ position on the docu-
ment is listed as “Supervisor” with a hire date of May 15. Based
on a review of a document Holmes testified she signed, GC Exh.
10, as well as the nature of the information contained in R. Exh.
7, I have concluded that R. Exh. 7 is in Holmes’ handwriting. Cf.
Parts Depot, Inc., 332 NLRB 670, 674 (2000); and Traction
Wholesale Center Co. v. NLRB, 216 F.3d 92, 105 (D.C. Cir.
2000), enfg. 328 NLRB 1058, 1059 (1999).
8 I do not credit Holmes’ claim that she did not answer any of the
applicants’ questions or help them fill out their application. Consider-
ing her demeanor, I did not find Holmes to be quite as forthcoming as
she might have been when it came to her job functions.
9 Respondent stipulated that shift leaders did not hire or recommend
hiring employees.
10 There is also a Charley’s Steakery on pier B in close proximity to
Mamma Ilardo’s and Caribou Coffee with all three restaurants using the
same dining area. Charley’s had two MPs at the time of Holmes’ trans-
fer and they were Oscar Pena and Valerie Trusty.
AIRPORT 2000 CONCESSIONS, LLC 965
ing of the restaurants as four employees at Caribou in the front,
and three employees at Mamma Ilardo’s in the front. The em-
ployees in the front served as cashiers and made coffee. In the
back of the restaurants, there was one employee making sticky
buns and two employees making pizzas, and there were two
employees in the dining area.
Holmes’ work schedule at Mamma Ilardo’s and Caribou
Coffee was Sunday through Thursday. On Sunday and Tues-
day beginning in August, Holmes worked the night shift and
her hours were 2 to 11 p.m. or midnight. The only time
Holmes was in charge of the shift was on Sunday and Tuesday
nights after Velardo and Greer left, which was around 4 or 5
p.m. Holmes testified the only times she closed as shift leader
were Sunday and Tuesday nights. Holmes testified about 10
employees worked days. Holmes testified that on Sunday and
Tuesday nights she was the shift leader for six employees, two
in the back making pizza, two at Caribou Coffee, and two oth-
ers at Mamma Ilardo’s. Holmes testified if someone called in
sick she would perform their duties.
There is a small office at Caribou Coffee and Mamma
Ilardo’s containing two safes and a computer. Holmes knew
the combination for one of the safes, which she used to provide
change for Respondent’s cashiers, but she only performed this
function on Sunday and Tuesday nights. Holmes testified that
at the end of the night on Sundays and Tuesdays, Holmes also
counted the money in the cashiers’ drawers and entered the
amount into the computer. She then made out a deposit slip
and took the money and deposited it in a safe at the main pier.
When a cashier was short, Holmes told them and they replaced
the funds out of their own pockets. Holmes testified Velardo,
Greer, and Burks also performed these functions when Holmes
was not in charge of the shift. Holmes testified she had one key
to close the cashier drawers, and one key to lock the store using
a gate that prevented people from entering the unit area.
Holmes testified Velardo gave her the latter key when she
started working nights in August.
Holmes testified she learned what her job duties as a shift
leader were by reading Respondent’s “Employee & Manage-
ment Handbook.” The handbook provides the shift leader “has
overall responsibility in the absence of the Manager and Assis-
tant Manager for directing the daily operations of a restaurant.”
It states the shift leader may not hire, fire, or discipline “except
to require a team member to clock out if appropriate.” The
handbook states that the shift leader will arrange for a meeting
with the manager, shift leader, and team member to resolve the
dispute. The handbook states the shift leader, “ensures compli-
ance with company standards in all areas of operations, includ-
ing product preparation and delivery, customer relations, res-
taurant maintenance and repair, inventory, management and
financial accountability on the shifts that they are in charge.”
The handbook states, the shift leader is responsible for verify-
ing the cash counts of each register drawer for each cashier,
prepares and makes deposits, receives and verifies product
deliveries, ensures that product is rotated, dated, and properly
stored, ensures that the unit is stocked with adequate inventory
for the shifts, and participates in the training of team members
using the appropriate training materials.
However, Holmes testified she did not perform all the func-
tions set forth in the handbook. Holmes testified she did not
receive and verify product deliveries, nor did she ensure that
the product was rotated, dated, and properly stored, and she did
not ensure that the unit was stocked with adequate inventory for
the shift. Holmes testified Respondent hired another employee
who performed these functions. Holmes also testified she did
not participate in the training of team members. Holmes testi-
fied she received no customer complaints while she worked for
Respondent. Holmes also testified she never instructed a team
member to clock out because of a disciplinary problem.
Holmes testified that no disciplinary matter ever occurred while
she was in charge of the shift. Holmes testified she never rec-
ommended that an employee be disciplined to Velardo or
Greer. Holmes testified it was her understanding that Velardo
and Greer were responsible for issuing written and verbal warn-
ings to employees.
Holmes testified that on August 8, Holmes placed a call to
Velardo when Holmes was the shift leader on the night shift. A
cashier was $10 short in her drawer. Velardo told Holmes to
write the employee up, if the employee did not have the money
to replace the missing funds. Holmes testified Velardo had also
posted instructions at the restaurant in a couple of places stating
that if anyone’s drawer comes up short, they have to take the
money out of their pocket. In this instance, the employee did
not have sufficient funds to make up the shortage. However,
Holmes loaned the money to the employee, and Holmes did not
write her up. Holmes wrote a note to Greer stating Holmes
replaced the money for the employee. Holmes testified the
employee paid Holmes back the next day. Holmes testified no
one changed Holmes’s decision and the employee was not writ-
ten up. Holmes testified money was always short, but this was
the only time she called Velardo about it.
Holmes worked an 8-hour shift. She testified she spent
about 15 to 30 minutes of the shift making coffee, and about 3
hours and 30 minutes during the shift relieving cashiers while
they were on breaks. There were three cash registers staffed by
three employees. Holmes testified that she had a 30-minute
break, and that for the remaining 3 hours and 30 minutes, “I
would just—just make sure everything in the store and every-
one was still doing their job and everything.” Holmes testified
that she also made sticky buns, and pizza for people who were
on breaks, or on an as needed basis. Holmes testified that when
she worked on Sunday and Tuesday night, she mopped up and
swept the floor.
Holmes testified she never told employees what work had to
be done because Velardo made up a chart with their names and
assignments that was posted on a wall and on the freezer.
Holmes testified Velardo posted another schedule showing the
days and hours each employee was supposed to work. Holmes
testified no employees ever contacted her concerning their
schedule, no one ever asked her for time off, she did not author-
ize anyone to go home early, and she could not authorize over-
time.
Holmes was given a red badge by Host, which she retained
while working for Respondent. The red badge gave her access
to the airfield, and allowed her to unlock certain doors at the
terminal. She testified she used the badge, while working for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD966
Respondent, to walk on the airfield to get to the pier while
avoiding security. Holmes testified she did not use the badge to
obtain inventory for the restaurant, although that was what
others who worked for Respondent used it for. Holmes testi-
fied that on Sunday and Tuesday nights, when Holmes was in
charge of the shift, another employee went to get supplies.
Holmes testified Velardo had assigned a French-speaking em-
ployee to perform this function. The employee had the red
badge needed to enter the inventory area. Holmes testified it
was not her job to ensure the store was adequately stocked with
inventory because the team member would go down and get it.
However, Holmes later admitted it was her responsibility to see
that the stores were stocked when she had to close on Sunday
and Tuesday nights.
1. Respondent’s witnesses
Vickie Burks began working for Respondent on June 3, as a
shift leader. Burks transferred to pier B, Caribou Coffee, and
Mamma Ilardo’s along with Holmes as a shift leader. Burks
was promoted to AM around the end of September or October.
Burks testified to the following concerning her work at pier
B, Caribou Coffee, and Mamma Ilardo’s: A shift leader in
charge on the morning shift was responsible for opening the
restaurant. The shift leader was due in at 4 a.m. and the restau-
rant opened at 5 a.m. The shift leader was responsible for pre-
paring the coffee, bringing out the milk products, getting break-
fast sandwiches ready for Mamma Ilardo’s, counting the safe,
and preparing the cash drawers for the cashiers who ran three
registers. A shift leader on the closing shift made sure the store
was clean, the trash was taken out, products were stocked for
the morning shift, reconciling the safe, and making the deposit
for the restaurants. When Burks was the shift leader in charge
of a shift she took money out of the cashiers’ drawers during
the course of the shift and dropped it in the safe. At the end of
the shift, Burks counted the safe down to $2500 and ran a re-
port off the register. Burks took the excess money and made a
deposit for the shift. During the time between opening and
closing, when Burks was a shift leader in charge of a shift, her
responsibilities were to assign each cashier a drawer, give them
change, and make sure they had the products they needed.
Burks had keys to the facility and she locked up and opened up.
Burks knew the combination to the safe. Burks, as part of her
uniform, wore a badge stating her name, and identifying her as
shift leader. Burks credibly testified she saw Holmes wearing a
similar badge.11
The team members on Burks’ shift included: the barista who
works behind the counter making drinks for Caribou Coffee;
cashier and the pizza cutter at Mamma Ilardo’s; pizza makers;
and dining room employees who wipe the customers’ tables,
sweep the floor, and pull the trash. All of the team members
were required to clean their areas. Burks testified, whoever is
running the shift, whether it was the MP, AM, or shift leader, it
was their responsibility to make sure the cleaning was com-
pleted. Burks testified she ran a shift by herself around 60 per-
cent of the time.

11 I have credited Burks’ over Holmes’ claim that Holmes did not
wear her nametag.
Burks testified she and Holmes worked together a couple of
times during a shift overlap. Burks testified Burks relieved
Holmes. Burks testified Holmes made sure Burks had product
coming in and Holmes had the team members restock to make
sure Burks’ materials were there. Holmes reconciled the safe
and made her deposit from her shift, filled out the log, and let
Burks know if anything happened during the day. Holmes let
Burks know if they were out of something, then Holmes would
go make her drop into the safe. Burks testified Holmes had the
same responsibilities as Burks as a shift leader.
Burks testified she did not do any of the stocking, but she in-
structed the employee with that assignment to make sure the
stores were stocked with supplies. The employee had a red
badge to allow him access to the supply area. Burks testified
there were three employees who retrieved supplies. The dining
room employee does the restocking of the store along with the
team members who are working behind the counter. The din-
ing room employee retrieves the product, and the counter em-
ployees put it away. The counter employees told Burks when
they needed supplies and she informed the dining room person
the amount to retrieve. Burks testified she made sure the shelf
was stocked for the next shift. Burks testified if the supply
person was not there then the shift leader gets the supplies.
Burks was not aware of counter employees going directly to the
dining room employees to tell them they needed supplies.
Burks testified when the restaurant was busy, she would also
ask the dining room employee to make pizzas.
Burks testified the shift leaders and the certified trainer
trained employees in making coffee. She testified the shift
leaders were certified trainers, and they trained employees
when the certified trainer was not there. Burks trained new
cashiers. Burks testified she also trained employees to make
pizza based on posted guidelines. Burks testified shift leaders
did not handle paycheck complaints. Rather, they make copies
of disputed checks and leave them with the MP. Employees
requesting time off filled out a form and presented it to the MP.
Burks testified that, as shift leader, she handled around two
customer complaints during the June to August timeframe.
Burks testified that Velardo, during a supervisor’s meeting in
August, attended by Greer, Burks, and Holmes gave specific
instructions on how to run the store. Velardo said he had re-
ceived some complaints from Southwest Airlines about conduct
at the store in the evening. Velardo said if the attendees at the
meeting could not conduct their shifts eliminating the foolish-
ness he would let them go. Velardo gave them forms and in-
structed them to write employees up, if necessary, and leave the
papers for Velardo or Greer and he would sign them. Velardo
said they could also call him, and he would send an employee
home. Burks testified she had to call Velardo before sending
someone home. Burks testified she attended another manage-
ment meeting, while Burks was a shift leader. Greer conducted
the meeting, as Velardo was not in the store that day. Burks
testified Holmes also attended the meeting. Greer reviewed the
same information Velardo had discussed 2 weeks earlier. Greer
said she wanted writeups as she wanted employees to do what
they were supposed to do. Burks testified Greer used a differ-
ent writeup form than the one suggested by Velardo. Burks
AIRPORT 2000 CONCESSIONS, LLC 967
testified one of the meetings was the middle of July and one
was August.12
Burks testified that, as shift leader, she wrote up between one
and five employees. Burks later testified she wrote warnings
for at least four employees as a shift leader before she was pro-
moted to AM. She testified she wrote employees up for no-
call/no-show, one employee for arguing with a customer, and
two employees were written up for being late. Burks took the
forms out of a file hanging on the wall that said writeups.
Burks filled the form out in its entirety and gave it to Velardo
for his signature. Shift leaders were not allowed to sign the
form. Burks did not know whether Velardo signed the write-
ups, and she did not know whether they were given to employ-
ees. Burks testified when Velardo left Respondent’s employ,
he took boxes of materials with him, and Burks thought her
writeups were in those boxes. Respondent was unable to pro-
duce the Burks’ shift leader writeups at the hearing. As AM,
Burks has signed writeups and given a copy to employees.
Nishalet Short began working at pier B Caribou Coffee and
Mamma Ilardo’s while Holmes was a shift leader there. Short
is a cashier at Mama Ilardo’s and Short helps make the drinks
at Caribou Coffee. On occasion, Holmes served as Short’s shift
leader in July and August. Holmes told Short to keep the store
clean, and she was responsible for giving Short the cash drawer
and getting cash for Short. Short worked the 3 to 11 p.m. shift,
so at the end of the shift, Holmes counted Short’s drawer and
made the deposit. Holmes told Short to clean the floor, when
the floor was dirty. If it was Holmes’ shift, she would check
Short’s work. Short testified, in response to a leading question,
that when Holmes was the shift leader on Short’s shift, Holmes
was Short’s supervisor.
2. Analysis
The burden of proving that an individual is a statutory super-
visor rests with the party asserting it. See NLRB v. Kentucky
River Community Care, 532 U.S. 706, 710 (2001). Section
2(11) of the Act defines “supervisor” as
any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
In NLRB v. Kentucky River Community Care, supra at 713, the
Court stated Section 2(11) of the Act:
. . . sets forth a three-part test for determining supervisory
status. Employees are statutory supervisors if (1) they hold
the authority to engage in any 1 of the 12 listed supervisory

12 Holmes testified she did not attend shift-leader meetings stating
there were none. However, I have credited Burks over Holmes on this
point, and have concluded that she and Holmes attended the two meet-
ings as Burks described above. Burks’ testimony concerning the meet-
ings was specific and made in a credible manner. While, as set forth
above, I did not find Holmes as candid about her job duties as she
might have been.
functions, (2) their “exercise of such authority is not of a
merely routine or clerical nature, but requires the use of inde-
pendent judgment,” and (3) their authority is held “in the in-
terest of the employer.” NLRB v. Health Care & Retirement
Corp. of America, 511 U.S. 571, 574 [(1994)].
I find that the record evidence does not establish that Holmes
is a supervisor within the meaning of Section 2(11) of the Act.
Respondent contends Holmes is a statutory supervisor because
she responsibly directs employees, assigns them, and effec-
tively recommends discipline. However, the evidence reveals
that Holmes’ decisionmaking was routine and repetitive and did
not require the use of independent judgment.
Holmes and Burks’ testimony reveals Velardo made up the
team members’ assignments and work schedules. The employ-
ees’ assignments included barista, cashier, making pizza, mak-
ing sticky buns, dining room, retrieving supplies, and stocking.
Each employee was required to clean a specific area based on
the assignment Velardo had given them. The work was repeti-
tive in nature. Holmes assigning a cashier a drawer, instructing
an employee when to clean, and checking their work did not
involve the requisite independent judgment involved in assess-
ing job skills and matching the employees with their assign-
ments typically required to establish someone is a statutory
supervisor. See Palagonia Bakery Co., 339 NLRB 515, 535
(2003); and Bozeman Deaconess Foundation, 322 NLRB 1107
(1997).
Respondent also failed to establish that Holmes exercised in-
dependent judgment in disciplining or effectively recommend-
ing discipline to employees. Burks credibly testified that she
attended two meetings, along with Holmes, where they were
instructed to write up employees. Burks testified she wrote up
between one and five employees when she was a shift leader.
However, Burks testified she was not authorized to sign the
writeups. Rather, she was required to tender the write-ups to
Velardo for his signature. Burks did not know whether Velardo
ever gave the writeups to the employees. Moreover, the write-
ups never made it to the employees’ personnel files, as Respon-
dent could not produce them at the hearing, asserting Velardo
had taken them with him when he left Respondent’s employ.
Burks also testified she had to obtain Velardo’s approval before
she could send an employee home, and Respondent’s employee
handbook provided that after they were sent home for discipli-
nary reasons they would then meet with the MP and the shift
leader. Thus, Respondent failed to establish through Burks’
testimony that the shift leaders issued discipline or could effec-
tively recommend disciplinary action. Holmes testified to one
incident where she phoned Velardo because a cashier was short
some money in her drawer, and Velardo had posted the re-
quirement that the employee pay the money out of their own
pocket or be written up. The employee in question did not have
the funds, and Velardo instructed Holmes to write her up.
Rather than write the employee up, Holmes loaned her the
money. I find Holmes’ action here to be isolated and akin to a
loan between coworkers, which brought the offending em-
ployee in compliance with Respondent’s work rule. I do not
find this to be a situation in which Holmes exercised independ-
ent judgment as to whether to discipline the employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD968
I also do not find Respondent established Holmes used inde-
pendent judgment to responsibly direct employees. Velardo
gave the employees their assignments, as well as their working
hours. Holmes was in charge of two late-night shifts with six
employees per shift. The employees’ work was repetitive and
routine. Respondent had published procedures for making
certain foods, and Holmes merely ensured the work was per-
formed, and the area was kept clean. Holmes counted the cash-
iers drawers, and required them to pay for shortages under Re-
spondent’s published procedure. This task involved simple
addition and did not involve the exercise of independent judg-
ment. Velardo and Greer were on call 24 hours a day, and
Holmes could not send an employee home without Velardo’s
approval. Holmes could not approve overtime, or leave re-
quests.13
Holmes’ attendance at two low-level management meetings,
her slightly higher pay than team members, the use of the office
safe and certain keys, and her referral to herself in one of the
Respondent’s documents and in reference to her prehearing
affidavit as a supervisor constitutes secondary indicia, which
standing alone are not sufficient to meet the burden of estab-
lishing she was a statutory supervisor in the absence of evi-
dence that she possessed any of the enumerated categories of
authority in Section 2(11) of the Act. See Palagonia Bakery
Co., supra at 535; Hausner Hard-Chrome of KY, Inc., 326
NLRB 426, 427 (1998); and J. C. Brock Corp., 314 NLRB 157,
159 (1994). Accordingly, I find that Respondent has failed to
establish Holmes was a supervisor within the meaning of Sec-
tion 2(11) of the Act.14

13 See Ironworkers Local 28, 219 NLRB 957, 961 (1975), where a
group of working foremen and a general foreman were found not to be
statutory supervisors when they acted “within a very limited sphere in
giving instructions to employees, bounded by the blueprints and in-
structions from the contractor or his supervisor.” Their authority was
found to be routine not requiring the use of independent judgment. See
also Electrical Workers Local 3 (Cablevision), 312 NLRB 487, 488–
489 (1993) (Monopoli); George C. Foss Co., 270 NLRB 232, 234–235
(1984) (Merrow), enfd. 752 F.2d 1407 (9th Cir. 1985); and Ogden
Allied Maintenance Corp., 306 NLRB 545, 546 (1992) (Michot), enfd.
998 F.2d 1004 (3d Cir. 1993).
14 Cases cited by Respondent do not require a different result. In
NLRB v. Chicago Metallic Corp., 794 F.2d 527, 534–535 (9th Cir.
1986), an assistant lead man was found to be a supervisor for purposes
of an employer’s objections to an election because the employees be-
lieved he was a supervisor. However, the court, in an unfair labor
practice context stated:
Here, unlike the electioneering analysis, we look to Picazzo’s actual
duties. When considering Chicago Metallic’s treatment of Picazzo,
the perceptions of other employees are irrelevant. As we have noted,
substantial evidence supports the Board’s conclusion that Picazzo
does not meet the statutory criteria of 29 U.S.C. Sec. 152(11) for su-
pervisor status. Thus, we hold that he is not a supervisor for purposes
of the Union’s Section 8(a)(1) claim.
The court concluded that, since Picazzo was not a statutory supervi-
sor, the respondent employer violated Sec. 8(a)(1) of the Act by its
conduct directed towards him during a union campaign. In American
Commercial Barge Line Co., 337 NLRB 1070 (2002), tugboat pilots
were found to be supervisors because they made “navigation decisions
based on their evaluation of nonroutine factors,” and did not check with
others before ordering action to be taken. Unlike the pilot, I have con-
B. Union Activity and Respondent’s Alleged 8(a)(1) Conduct
David Snyder is employed as an organizer with the Union.
Snyder started working to organize Host employees around
July 2001, and the Union won an election in 2003, and began to
negotiate. Snyder testified they were in the process of finaliz-
ing a collective-bargaining agreement with Host when Host lost
the BWI concession contract. Snyder testified the Union be-
came involved in an effort to ensure the former Host employees
would keep their jobs with the new companies at BWI. Snyder
met Brown and Becherer when Respondent had its job fair
prior to Respondent’s starting operations at BWI.
Snyder credibly testified to the following: The Union began
talking to employees in an effort to organize Respondent
around June 3 or 4. Snyder first met Maria Holmes around
2003, when she worked for Host. Holmes was involved with
the Union then, and she was briefly on the leadership commit-
tee while she worked for Host. Holmes contacted Snyder and
told him Respondent had hired her. Holmes had a lot of friends
at BWI as she had worked on different piers. The Union’s
organizing activities at Respondent consisted of meetings with
employees, handing out union buttons, holding a rally, and
visiting people at home. The Union began handing out union
buttons around early to mid-June 2004. They handed out about
50 to 60 buttons to Respondent’s employees. Some of the
workers wore the buttons and had them from when they were
Host employees.
Holmes credibly testified she called Snyder and talked to
him about getting a union at Respondent around June. Holmes
also talked to employees about getting a union at Respondent.
She testified there were around 20 conversations. Some were
on the phone, and some were in person. Holmes credibly testi-
fied Greer was present for some of the conversations Holmes
had with employees about the Union, and that during one of the
conversations; Greer agreed with Holmes that the employees
needed a union. Holmes testified Greer heard her tell employ-
ees they needed a union because they were being treated un-
fairly in terms of benefits and pay, and because their hours
were being cut.15

cluded Holmes responsibilities concerning her shift were routine and
repetitive, and the MP and AM were on call 24 hours a day for consul-
tation concerning any unusual events. The shift leaders in Liquid
Transporters, Inc., 250 NLRB 1421, 1425 (1980), were found to be
supervisors because they had the authority to transfer employees from
one job to another, to send employees home early, to call employees in
for overtime to replace employees who were absent, and to make rec-
ommendations about employees’ work performance that were given
weight. Respondent has failed to establish that Holmes regularly en-
gaged in any similar activities. In particular, despite what was written
in Respondent’s handbook concerning shift leaders, Burks testified that
they had to consult with Velardo before they could send an employee
home.
15 I do not credit Holmes’ testimony at the hearing that in the begin-
ning of June, she spoke to Brown about the Union. Holmes testified
she and several female employees walked up to Brown, and asked him
about forming a union and asked Brown why they did not have a union.
Holmes testified she asked first about having the Union, and then the
rest of them asked. Holmes testified Brown said Respondent only had
a contract for 1 year. Brown said what was the use of having a Union;
the employees would have to pay dues. Brown said if the employees
AIRPORT 2000 CONCESSIONS, LLC 969
1. The June 16 incident
Donnell Gould worked for Respondent from June 3, to the
beginning of October 2004, when he ended his employment
there. Gould worked at Charley’s Steakery at pier B. Gould
was a snackbar attendant, and his duties included cashier, food
preparation, and cleaning. Gould testified Valerie Trusty and
Oscar Pena were MPs at Charley’s.
Gould credibly testified to the following: On June 16, Gould
was working at the grill. Trusty came in and stated in a loud
voice, that she did not want any of her employees talking to
anyone from the Union. Gould responded she could not tell
him who to talk to. Trusty said if Gould was on her clock and
in her unit, he could not. Gould said what if he was on break,
and not on Trusty’s clock. Trusty told Gould it was all right to
speak to people from the Union on his own time and outside the
unit. Trusty said she did not want employees to talk to anyone
from the Union in the food court area known as the unit be-
cause the employees might come back from break late. There
were about six other employees in the area, when Trusty made
her comment about the Union, and Trusty was talking to the
entire group. The unit is a public dining area where the cus-
tomers and employees eat the food purchased at the restaurants.
There are three restaurants that share the dining area, which
contains about 20 or more tables. Gould normally took his 30-
minute break in the unit where he ate, talked on his phone, and
talked to other employees.
Gould credibly testified he wore a union button to work
around his neck for a couple of weeks then he lost it. Gould
could not recall when he wore the button. He testified that no
manager or supervisor of Respondent said anything to him
about the button.
a. Respondent’s witness
Respondent has employed Cardelle Valerie Trusty since June
3, 2004. Trusty was promoted from an AM to a MP at Char-
ley’s Steakery, pier B, 2 weeks after she was hired. Trusty
testified that around June 16, there was an incident when a
union representative was at the line at the cash register at Cari-
bou Coffee and was speaking with a cashier about the Union.16
Trusty testified she asked the union representative not to speak
with Caribou and Charley’s employees on Respondent’s time.
Trusty testified the same day the union representative also
spoke to the same Caribou employee, but this time the Caribou
employee was sitting with the union representative at one of the
tables in the unit. The Caribou employee was eating. Trusty
testified she approached the employee because the employee
looked as if she was being talked to against her will. Trusty
testified she went to the table and asked the employee, “are you

had problems they should come to him, and that they do not need a
union. Brown said we will see about getting a union when we renew
our contract. Holmes appears to describe this same conversation at p. 4
of her August 31 affidavit. However, contrary to her testimony at the
hearing, she stated in the affidavit, “I was standing there listening but
did not say anything and nobody spoke to me.”
16 Trusty testified she did not remember what date the union repre-
sentative spoke to the employee on the line at Caribou Coffee, nor
could she recall the name of the employee the union representative was
talking to.
sure you’re okay, and she said, yeah, I’m just fine. I’m eating.
I’m on my break.” Trusty testified the union representative
said the lady said she was on break, and that, “I can talk to her
as long as she’s on her break.” Trusty responded she did not
“mind you speaking to her as long as she’s not on A2K’s time.”
The union representative told Trusty she could not tell her who
to talk to. Trusty replied as long as they are not on the clock at
Respondent, then Trusty walked away. Trusty testified when
the conversation between the employee and union representa-
tive was over, she thought the employee went to the restroom,
then punched back in, and the union representative went in the
opposite direction off the pier.
Trusty testified she then went in the back and instructed eve-
ryone in the unit, including Gould, that they could only talk to
the union representatives off Respondent’s time. Trusty testi-
fied she gave this instruction because Gould was wearing a
union button. Trusty testified she did not say anything to
Gould about wearing the union button because it was the only
time she saw him wear it and it was at the end of their shift.17
Trusty testified there was a sign posted in the unit, which
reads, “NOTICE TO THE PUBLIC Outside Solicitation, Sell-
ing and Distribution of Printed Material or Other Items is Not
Permitted on this Property.” Trusty testified this rule applied to
the unit and the sign was already posted when she began work-
ing for Respondent. She testified she did not know if Respon-
dent, or a prior company that occupied that space posted the
notice. Trusty testified it was her understanding that it was
against the law for union representatives to talk to employees in
the unit who were on company time.18
Trusty testified Respondent held a meeting where she re-
ceived the instruction that the employees could talk to the Un-
ion off of Respondent’s time. Trusty testified that this informa-
tion was given to her during one of Respondent’s Tuesday
MP’s meetings, which Trusty thought took place before the
incident with the union representative in the unit. She testified
this was the first meeting where this was brought up.
b. Positions of the Parties
The consolidated complaint alleges that:
5. On or about June 16, 2004, Respondent, by a manager
named Valerie, at its BWI Airport, Maryland location, told

17 I do not credit Trusty’s testimony that this was the only time she
saw Gould wearing a union button, as he credibly testified that he wore
it to work for a 2-week period. Moreover, Trusty testified she did not
receive any instructions that employees could not wear union buttons
until an MP’s meeting that took place after she saw Gould wearing the
union button, so Trusty would have had no reason to say anything to
Gould about it on June 16. Trusty testified there was no mention of
any policy about wearing union buttons when Trusty first began
working for Respondent.
18 I have credited Gould over Trusty concerning his version of their
conversation on June 16. I find that Trusty told Gould and the employ-
ees that she did not want union representatives talking to employees in
the unit, although Trusty omitted this portion of the conversation from
her testimony. I found Gould to be a reliable witness who testified with
specificity as to his conversation with Trusty. Trusty also admitted that
it was her understanding that employees could not talk to union repre-
sentatives in the unit as set forth above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD970
employees they were not to talk to representatives of the Un-
ion during non-work time and in non-work areas.
Counsel for the General Counsel amended the complaint just
prior to the close of the hearing to allege that on or about June
16, Trusty, created the impression of surveillance and engaged
in surveillance of its employees’ union activity during non-
worktime in a nonwork area and interrogated employees while
they were speaking with representatives of the Union during
nonworktime in a nonwork area.19
Respondent argues Trusty merely told employees not to
speak to union representatives on company time, and that it was
acceptable to speak to them on their own time, and Trusty did
so after attending a management meeting, where Trusty was
given these instructions. It is asserted Trusty’s conduct was
lawful. It is argued that Trusty did not engage in surveillance
of the employee, who was speaking with a union representative
in the unit. From Trusty’s observation, which lasted only a few
seconds, the employee looked as though she did not want to
speak to the union official. Trusty just approached the em-
ployee to ensure that she was all right.
c. Analysis
In Wild Oats Community Markets, 336 NLRB 179, 180
(2001), the Board set forth the following principles:
It is well established that an employer may properly prohibit
solicitation/distribution by nonemployee union representatives
on its property if reasonable efforts by the union through other
available channels of communication will enable it to convey
its message, and if the employer’s prohibition does not dis-
criminate against the union by permitting others to so-
licit/distribute. This precedent, however, presupposes that the
employer at issue possesses a property interest entitling it to
exclude other individuals from that property. Therefore, in
situations involving a purported conflict between the exercise
of rights guaranteed by Section 7 of the Act and private prop-
erty rights, an employer charged with a denial of union access
to its property must meet a threshold burden of establishing
that it had, at the time it expelled the union representatives, a
property interest that entitled it to exclude individuals from
the property. If it fails to do so, there is no actual conflict be-
tween private property rights and Section 7 rights, and the
employer’s actions therefore will be found violative of Sec-
tion 8(a)(1) of the Act. In determining the character of an
employer’s property interest, the Board examines relevant re-
cord evidence—including the language of a lease or other per-

19 Respondent objected to the amendment of the complaint, which
took place after Respondent rested. I granted the motion to amend the
complaint at the hearing, while giving the parties the opportunity to
brief my ruling. I adhere to my ruling to allow the amendment. The
evidence supporting the amendment’s allegations was drawn from
Trusty, who was Respondent’s witness, without objection from Re-
spondent’s counsel. The evidence was closely related to outstanding
complaint allegations. Respondent had the opportunity to further ex-
amine Trusty concerning her testimony relating to these issues, and in
fact took that opportunity. I find the amended allegations were fully
litigated and Respondent has suffered no prejudice as a result of the
amendment to the complaint. See Pincus Elevator & Electric Co., 308
NLRB 684, 684–685 (1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993).
tinent agreement—in conjunction with the law of the state in
which the property is located. See Indio Grocery Outlet, 323
NLRB 1138, 1141–1142 (1997), enfd. 187 F.3d 1080 (9th
Cir. 1999), cert. denied 529 U.S. 1098 (2000); Food For Less,
supra at 649–650; Bristol Farms, Inc., 311 NLRB 437, 438–
439 (1993).
In Traction Wholesale Center Co., 328 NLRB 1058, 1069
(1999), enfd. 216 F.3d 92 (D.C. Cir. 2000), the following prin-
ciples were set forth concerning interrogation of employees:
Regarding the questioning of employees, the Board has held
that interrogations of employees are not per se unlawful, but
must be evaluated under the standard of “whether under all
the circumstances the interrogation reasonably tended to re-
strain, coerce, or interfere with rights guaranteed by the Act.”
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). In making that determination, the
Board considers such factors as the “background, the nature
of the information sought, the identity of the questioner, and
the place and method of interrogation” as relevant, as well as
whether or not the employee being questioned is an open and
active union supporter. Sunnyvale Medical Clinic, 277 NLRB
1217 (1985); also, Eaton Technologies, 322 NLRB 848, 850
(1997), Tony Silva Painting Co., 322 NLRB 989 (1997).
In the instant case, Respondent did not maintain any no-
solicitation or no-distribution rule in the handbook it tendered
to employees at the outset of their employment. While Re-
spondent introduced as an exhibit a copy of a posting stating,
“NOTICE TO THE PUBLIC Outside Solicitation, Selling and
Distribution of Printed Material or Other Items is Not Permitted
on this Property,” Trusty testified that she did not know
whether this notice was posted by Respondent or a predecessor
company operating the restaurant. While Brown testified, he
made no claim that Respondent posted the notice. Moreover,
Respondent was on BWI property as a contractor, and Respon-
dent presented no evidence it has a sufficient property interest
in the unit area which is open to the general public to enforce a
no-solicitation/no-distribution rule there, even assuming Re-
spondent had a rule in effect prior to the June 16 incident. Fi-
nally, Trusty testified that during an MP’s meeting an an-
nouncement was made that employees could talk to the Union
off of Respondent’s time. Trusty failed to testify that she was
told that the employee discussions with the Union could not
take place in the unit area.
I have concluded Respondent has failed to establish that it
had a sufficient property interest to prohibit employees, who
were on break, from talking to union officials in the unit area
which was a restaurant open to the general public; or that it had
a valid no-solicitation rule in effect prohibiting employees from
talking to union officials while the employees were on break in
the unit area at the time Trusty spoke to Gould and his co-
workers.20 I therefore find based on Gould’s credited testimony
that Trusty violated Section 8(a)(1) of the Act when she told
employees that they could not talk to union representatives

20 See Wild Oats Community Markets, supra at 180.
AIRPORT 2000 CONCESSIONS, LLC 971
while the employees were on break, unless the employees left
the unit.
I also find Trusty engaged in surveillance, created the im-
pression of surveillance and unlawfully interrogated an em-
ployee in violation of Section 8(a)(1) of the Act, when Trusty
approached the employee who was on break and sitting and
eating in the unit while talking to a union representative.
Trusty interrupted the conversation and asked the employee,
“[A]re you sure you’re okay?” I do not credit Trusty’s testi-
mony that she approached the employee out of a concern for
the employee’s well being, as during this same day she told
Gould that she did not want employees talking to union repre-
sentatives while they were on break, but in the unit. While the
Board has held that observation alone of open union activity
does not violate the Act,21 here Trusty approached the em-
ployee and union official and interrupted the conversation in
such a manner to evoke a hostile response from the union rep-
resentative.22 Trusty’s actions were coercive, and designed to
impede the union activity of the employee she questioned and
to send a clear signal to that employee that she was being
watched.23 Thereafter, although Trusty walked away, she con-
tinued to watch the conversation until it ended.
2. The August 20 rally and related events
Snyder credibly testified the Maryland Aviation Authority
(MAA) gave the Union permission to hold an August 20 rally
at BWI on the upper level outside of the main terminal, a loca-
tion that skirts all the gate entrances to the four piers. Snyder
testified the purpose of the rally was to show Respondent, the
BAA, and the Port Authority, the workers still believed they
had a union, and they wanted to continue to have a union to
resolve their problems at the airport. The MAA had also given
the Union permission to have three people inside the terminal
handing out leaflets on August 20. Brown testified someone
from BAA informed Brown the Union had been authorized to
hold the rally around 2 to 3 weeks before it took place, that it
was to be in front of the airport, and they would be allowed to
hand out leaflets inside the main terminal. The BAA represen-
tative told Brown to make sure Respondent was properly
staffed in the event large numbers of employees left the restau-
rants to participate in the rally and it was Respondent’s obliga-
tion to stay open no matter what took place.

21 See Days Inn Management Co., 306 NLRB 92 fn. 3 (1992).
22 See Hoschton Garment Co., 279 NLRB 565, 566 (1986).
23 Here Trusty knew the employee was engaged in union activity be-
fore she questioned the employee. Trusty also informed other employ-
ees that she did not want them talking to union representatives in the
unit as a result of this employee’s encounter with the union official. I
have concluded that Trusty’s asking the employee if she was “okay”
was designed to evoke a response about her union activities, and was
coercive as it sent a signal to the employee that her union activities
were being watched. The Board has held subtle interrogations designed
to evoke a response concerning employees’ union activities are viola-
tive of Sec. 8(a)(1) of the Act. See Big Star No. 185, 258 NLRB 300,
307 (1981), enfd. 697 F.2d 157 (6th Cir. 1983), and Schwan’s Sales
Enterprises, 257 NLRB 1244, 1248 (1981), enfd. 687 F.2d 163 (6th
Cir. 1982).
a. The August 18 conversations
Holmes credibly testified that: on August 18, Holmes was
approached by Pena and Trusty, the MPs at Charley’s on pier
B, and Greer, the AM at Caribou Coffee and Mama Ilardo’s at
pier B. Holmes was eating her lunch in the office at Caribou
Coffee and Mama Ilardo’s when they approached her. Trusty
spoke first to Holmes concerning the union rally scheduled for
August 20. Trusty asked if Holmes knew anything about a
paper employees were signing to attend the rally. Holmes re-
sponded she did not know anything about it. Trusty said if they
find the paper the employees were going to be fired. Trusty
said she wanted the list. Trusty said Holmes knew about it, and
Holmes again denied knowledge of it. Greer said Holmes knew
everything about it and that everyone knew Holmes knew about
it, “because you were part of it.” Greer told Holmes if Greer
found out Holmes had the list, Greer was going to fire her.
Holmes told Greer she did not know anything about the list.
Holmes told Greer the employees had a right to attend the rally
on their break or when it is time for them to go home. Pena
told Holmes someone said you are a part of it. Holmes said
what if she was. Pena said Holmes was not supposed to be a
part of it as she was part of management. Holmes said she was
not part of management as she was a shift leader. Holmes told
Pena that a shift leader is an assistant, and that there was a man-
ager and an assistant manager. Pena then left and the conversa-
tion ended. The conversation was very loud, and the employ-
ees who worked out front at Caribou Coffee could hear, as they
were about 5 feet away. Holmes named employees Tiffany
Simmons, Judith, and Jessica King, who were all close enough
to hear. Holmes testified this all occurred in one conversa-
tion.24
Holmes testified that on August 18, Velardo also asked
Holmes if she knew anything about a rally on August 20. This
took place after the conversation set forth above. Holmes said
yes, and Velardo asked what she knew about the rally. Velardo
started smiling. Holmes said are you trying to say people can-
not go out on the rally during their break. Velardo said he did
not say anything. Holmes testified that later that day Velardo
again asked her if she knew anything about the rally, and who
was going to attend. Holmes told Velardo that she knew about
the rally, but did not know who was going to attend.
Gould testified around mid-August Trusty asked Gould if he
was joining the picket line. Gould asked why she was asking,
and Trusty responded she was just asking. Gould testified they
were in the office near the computer table at the time of the
conversation. Gould testified he did not attend the August 20
rally.

24 Holmes stated in her prehearing affidavit, that “[a]t no time prior
to 8/23 did any supervisor make any comment to me about my having
said I was in favor of having a union.” Holmes testified, in explanation
of the affidavit, that Trusty was not a supervisor, rather she was an
assistant manager. Holmes testified that “[m]e and Vickie would be
supervisors,” in reference to Vickie Burks and Holmes being shift
leaders.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD972
1. Respondent’s witnesses25
Trusty denied that on or about August 18, she had a conver-
sation with Holmes or any other employees about the Union.
However, Trusty testified a lot of the employees were saying
that Holmes went into Charley’s computer system and gave the
employees’ phone numbers from the system to one of the union
representatives. Trusty then testified she did talk to one em-
ployee about the Union on August 18, as one employee asked
what they should do, and Trusty said she had no comment.
Trusty testified, “[E]verybody was so upset about the situation
with Maria giving the phone numbers to the gentleman, espe-
cially the one lady named Tara Jones, . . . .” Trusty testified,
“They even called my home also.” Trusty testified she did not
see Holmes go into Charley’s system, rather, Nicole Winches-
ter, a shift leader, told Trusty that Holmes went into Charley’s
computer and obtained the phone numbers for all of Charley’s
employees. Trusty testified she received this information be-
fore the August 20 rally. Trusty testified she reported to Brown
and “everyone,” possibly sometime shortly before the August
20 rally what was reported to Trusty about Holmes acquiring
the employees’ phone numbers. Trusty testified that Burks, a
shift leader at Caribou and Mama Ilardo’s, told Trusty that the
other employees of her unit told Burks that Holmes was telling
everyone she was going to the rally, she was not coming to
work, and her daughter was going and following right behind
her. Trusty testified the conversation with Burks was around
August 18. Trusty testified she let Brown know exactly what
she had heard because a lot of employees were complaining
that people from the Union were calling them. Trusty testified
she advised Brown of Holmes giving out employees’ phone
numbers.26
Trusty also testified upon hearing all the complaints about
Holmes giving out employees’ phone numbers, under Burks’
advice, Trusty brought the matter to Becherer’s attention.
Trusty told Becherer that everyone was complaining about
union representatives calling their homes and they said Holmes
had given the Union their numbers, which Holmes had obtained
from Respondent’s computer. Trusty placed this conversation
between a week to 2 weeks before the Union’s rally. Becherer
told Trusty he would get back to her about it.

25 Brown testified that Respondent officials Velardo, Pena, and
Greer were no longer employed by Respondent at the time of the hear-
ing. None of these individuals testified.
26 Contrary to Trusty, Brown incredibly testified that prior to
Holmes’ August 23 termination, he had no specific conversation re-
garding Holmes. Brown then testified that “[t]he only conversation that
I had with regards to Maria where she would have come up as a name
was just in general prior to the time that the rally had occurred in Au-
gust.” Brown testified, “[W]e sought advice of counsel as to who
would be allowed to go out and march, . . . .” Brown testified Respon-
dent sought counsel’s advice as to what they could do to staff stores,
and Holmes, being a shift leader, her name came up in the conversa-
tion. Brown testified, “[T]hat was the only other time that I recall
where her name might have been referenced in my presence.” Brown
testified his question to counsel was whether shift leaders or manage-
ment personnel could participate in the rally or whether they had an
obligation to stay in the stores and manage the stores.
2. Credibility
I have considered Holmes’ testimony at the hearing stating
that several managers spoke to her about the Union’s rally and
that contained in her prehearing affidavit, wherein she stated
that at no time prior to her discharge did any supervisor make
any comment to her about her having said she was in favor of
having a union, as well as Holmes’ explanation for the state-
ment in her affidavit as set forth above. Considering Holmes’
demeanor at the hearing, her explanation of the affidavit, and
the specificity of her testimony concerning the above-described
conversations with management, I have concluded that
Holmes’ testimony at the hearing concerning these conversa-
tions was worthy of belief. I have reached this conclusion con-
sidering admissions made during the course of Trusty’s testi-
mony. For Holmes testified that Trusty as well as other man-
agers accused her of knowing about a list of employees who
were going to attend the rally, and Trusty testified she was
informed that Holmes went into Respondent’s computer and
compiled the names and phone numbers of Respondent’s em-
ployees which Holmes tendered to the Union. I find it more
than mere coincidence, given Trusty’s testimony, that Holmes
testified Respondent’s management staff confronted Holmes
about having a list of employee names. I also have concluded
that Trusty was aware Holmes was a union supporter prior to
the rally, and that Trusty had no compunction about confront-
ing Holmes about her prounion sympathies as Trusty had done
with other employees, and in fact did so with Holmes as
Holmes testified. I also found Gould to be a credible witness,
and have credited his testimony, over Trusty’s denial, that
Trusty questioned Gould as to whether he was going to attend
the Union’s rally. Accordingly, I have credited Holmes and
Gould’s testimony as set forth above.
3. Analysis
I find that on August 18, Trusty violated Section 8(a)(1) of
the Act by unlawfully interrogating Holmes, creating the im-
pression of surveillance of employees’ union activities, and
threatening employees with discharge when Trusty, along with
Pena, and Greer approached Holmes, and Trusty asked Holmes
if she knew anything about a paper employees were signing to
attend the August 20 union rally. Holmes denied knowing
anything about it. Trusty said if they find the paper the em-
ployees were going to be fired. Trusty said she wanted the list.
Trusty said Holmes knew about it, and Holmes again denied
knowledge of it. I find that Greer interrogated Holmes and
created the impression of surveillance of employees’ union
activities and threatened employees with discharge in violation
of Section 8(a)(1) of the Act when she accused Holmes of
knowing everything about the list because Holmes was part of
it, and that if Greer found the list, she was going to fire Holmes.
I also find that Pena created the impression that Holmes’ union
activities were under surveillance in violation of Section 8(a)(1)
of the Act when, during the course of this same conversation,
he told Holmes that someone said she was a part of it. Holmes
credibly testified the conversation was within earshot of other
employees. I find the supervisor’s questioning of Holmes
about a list of employees who are going to attend the rally was
plainly coercive when taking place in the midst of threats to
AIRPORT 2000 CONCESSIONS, LLC 973
discharge employees on the list, and to discharge Holmes in
particular if the list was found.
I find that Velardo coercively interrogated Holmes about her
union activities and the union activities of other employees in
violation of Section 8(a)(1) of the Act when on August 18,
Velardo also asked Holmes if she knew anything about a rally
on August 20, asked her what she knew about the rally, and
who was going to attend. Holmes had not announced her at-
tendance at the rally to management, and I find this conversa-
tion coercive coming on the heels of Trusty’s and Greer’s
threats to discharge employees who were on a list to attend the
rally.
I also find that Trusty coercively interrogated Gould in viola-
tion of Section 8(a)(1) of the Act. Gould credibly testified
around mid-August, Trusty asked Gould if he was joining the
picket line. Gould asked why she was asking, and Trusty re-
sponded she was just asking. Gould testified he did not attend
the August 20 rally. Gould testified that he wore a union button
for about a 2-week period and then lost the button, and Trusty
testified she saw Gould wearing the button during an incident,
which Gould placed on June 16. Thus, there is no evidence that
Gould was an open union supporter at the time of Trusty’s
questioning him in mid-August. While Respondent argues in
its brief that Trusty was questioning Gould for reasons of staff-
ing concerns, this was not the reason advanced by Trusty, who
denied that the conversation even took place. I find Trusty’s
remark to Gould constituted a coercive interrogation coming
after her prior comments to him, in which she at first stated she
did not want employees talking to anyone from the Union and
then, when challenged, stating she did not want them talking to
the Union on working time, or in the unit, which was a public
restaurant. Trusty was Gould’s supervisor and a high-level
respondent official, who as an MP, had the authority to dis-
charge employees. Trusty and Greer’s threats of discharge to
Holmes further demonstrates that her questioning of Gould was
not an innocuous conversation.
b. The August 20 rally
Snyder credibly testified that the Union held a rally on Au-
gust 20, on the upper level outside of the main terminal. It was
a location that skirts all the gate entrances to the four piers.
The rally took place on the sidewalk closest to the entrance to
pier D. There was a picket line with people marching in a cir-
cle a couple of feet from the set of sliding glass doors to the
pier. The rally started at around 1 p.m. and went to 2:30 or 3
p.m. Community supporters, student supporters, members of
other unions, creative Host workers, union organizers, and
around five or six of Respondent’s employees attended the
rally. Holmes attended the rally, and she carried a sign and
marched on the picket line, and sang chants along with every-
one else. The signs said, “Justice for airport workers.” The
chants were “A2K rich and rude, we don’t like your attitude.
A2K unfair. What do we want? Justice. When do we want
it?” The Union also distributed leaflets inside the terminal on
August 20. The leaflets included photographs of some of Re-
spondent’s employees, statements from them about how condi-
tions had changed, and how they wanted the Union. Snyder
saw Brown and Becherer at the rally on at least two occasions.
The first time Snyder saw Brown, Brown was outside at the
picket line talking to a reporter and the second time about 30 to
40 minutes later, Brown was in the building looking through
the glass with Becherer and several other people. When Brown
was outside near the picket line he was about 5 to 10 feet away
from Snyder. Snyder testified that he came up to and said hello
to Brown. Brown was there for about 5 minutes. When Brown
was inside the glass, he was around 10 to 15 feet away from
Snyder. The people Brown was with were looking at the picket
line and talking to each other. Snyder testified he also saw
Becherer when the rally was getting started. Becherer came
outside, smoked a cigarette and walked away from the picket
line. Becherer was about 15 feet from the picket line. Snyder
saw other people, but could not identify them and did not know
if they were managers.
Holmes credibly testified she attended the August 20 rally.27
Holmes arrived at the August 20 rally around 11 a.m., and
joined the line at around 1 p.m.28 Holmes testified she was the
only shift leader to attend the rally. Holmes held up a picket
sign, and walked around and chanted. Holmes testified she saw
several of Respondent’s officials watching the rally, including
Brown, Becherer, and another head manager whose name
Holmes did not know. Holmes testified she saw Reanne, an
AM working at Charley’s Steakery there. Holmes also saw a
BAA representative there.29 Holmes made eye contact with
Brown, who was there for around 20 minutes. Holmes saw
Becherer standing about 25 to 30 feet away from her. Holmes
testified Becherer was there for about 15 to 20 minutes. Brown
testified he saw Holmes participating in the rally. MP Linda
Powell was with Brown when he saw Holmes participate in the
rally.
3. Holmes is discharged on August 23
Holmes credibly testified to the following: Holmes, follow-
ing the rally, next reported to work on Sunday, August 22, and
she looked at the new schedule on Velardo’s desk, and her
name was not on the schedule. Holmes asked Velardo why
Monique Yates was returned to the store and Holmes’ name
was taken off the schedule. Velardo said he had not finished
the schedule. Holmes testified Yates is another “supervisor” in
reference to Yates being a shift leader who used to work at the
store, and who up until that time had been working at pier C.
Holmes returned the key to lock up the restaurant to Velardo on
Sunday, August 22, when he asked for it.

27 Holmes credibly testified she told many of Respondent’s employ-
ees about the rally in person and by phone during the 2- to 3-week
period leading up to the rally.
28 Holmes was not scheduled to work on August 20. However,
Holmes credibly testified Greer called Holmes at home and asked her
to work. Holmes replied that she had already put in a leave request and
Greer had signed it. Greer said Velardo wanted Holmes to come in,
although Velardo knew Holmes had requested the day off.
29 Holmes initially testified that she saw no other managers or super-
visors. She then testified she also saw Olsen there. Holmes at first
testified she referenced Olsen as being present at the rally in her pre-
hearing affidavit, but then admitted Olsen was not referenced in the
affidavit, and I have concluded that Holmes was mistaken concerning
her testimony that Olsen attended the rally.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD974
Holmes reported to work on August 23, at around 9:30 a.m.
and was sent to Becherer’s office. Holmes met with Becherer
and he told her that she was fired. When Holmes asked him
what grounds, Becherer said he was not able to tell her.
Holmes did not say anything else. Holmes never received any-
thing in writing as to the reasons for the termination. Holmes
testified that, prior to August 23, she had received no written or
verbal warnings, and no one had talked to her about her per-
formance. Holmes testified that to her knowledge no MPs,
AMs, or other shift leaders were laid off or fired at that time.
4. On August 24 and 25, Olsen and Becherer meet
with employees Johns and Reaves
Eva Johns worked for Respondent as a cashier from June un-
til September 26. Johns worked at pier C at Nature’s Table.
Johns testified MP Linda Powell and AM Rayna Samuels were
her immediate supervisors. Johns did not attend the Union’s
August 20 rally because she was working. Johns credibly testi-
fied that, around 2:30 p.m. on August 20, when the rally was
over, Brown came in with one of the leaflets the Union was
distributing at the rally. Brown walked over to Powell, who
was standing at the register talking to cashier Phyllis Reaves.
Brown handed the leaflet to Powell and said here is one of
yours. Then Brown left. Johns’ picture appeared on the front
of the Union’s leaflet. Johns testified when Brown made the
remark to Powell, he looked straight at Johns.30 There is a
quote in the leaflet attributed to Johns which reads, “I was with
the previous contractor for 19-1/2 years and was never without
health benefits. I have to wait 3 months under A2K and during
that time I had to pay $366.50 per month for benefits. Now,
my doctor won’t even accept the insurance that A2K is offer-
ing. Meanwhile, the GladCo workers kept their insurance, and
kept their seniority and vacation time while we lost seniority
and went down from 8 to 3 paid holidays.”
Johns credibly testified that: On August 20, around 6:15
p.m., Johns was at her register and Becherer came over while
Johns was waiting on a customer. Becherer stood behind
Johns. As soon as the customer left, Becherer began yelling at
Johns to move a little trash can which the cashiers used to de-
posit unwanted customer receipts. It had been sitting at that
location for 20 years. Johns said she did not understand what
Becherer meant. Becherer said, “[O]h, you’re not going to do
what I asked you to do?” Johns said she was going to do it, and
asked where he wanted her to put the receptacle, as Johns put it
on the floor. Becherer also told Johns to shut the door going to
the office and stockroom. Johns said an employee was bringing
out juices from the room. Becherer asked if Johns was going to
disobey him again. Johns said no and shut the door. Johns then
started going back to her register, and Becherer pointed to a
dustpan and broom sitting near the corner of Johns’ register,
and Becherer said move that. Johns said the bus person had
just put the equipment there because he was cleaning the floor.
However, Johns moved it, and Becherer left. A man from
O’Brien’s, a restaurant located next door, came over and told
Johns that she was going to become busy because O’Brien’s

30 Browns’ conduct here was not alleged to violate the Act in the
complaint.
computers were down. Johns relayed the information to the
other cashier. Becherer turned around and came back and told
Johns, that he was halfway down the hall, and he could still
hear Johns talking. Johns said she was just relaying a message
to the other cashier of what she was told to do. Becherer then
took Johns back to the office and told her if she did not do what
he told her, she could go home. Johns said, “[W]ell, I can go
home.” Becherer told her, “[Y]ou have a lot of mouth, don’t
you, and he just walked out.” Johns testified that before August
20, Becherer had never given her instructions. In the past, Be-
cherer would just come in and order his lunch.31
Johns credibly testified that: On August 24, Powell told
Johns to come into the office, that Olsen wanted to talk to
Johns. Johns testified she went into the office and Olsen and
Johns were there alone. Olsen said, “I hear you have a problem
. . . with your pay.” Johns said she did not have a problem with
her pay, rather she had a problem with her benefits. Olsen said
Respondent had good benefits. Johns said they were not good
for her because she called all of her doctors, and none of them
would take the insurance. Olsen said they were a new company
and maybe later on they could get better benefits. Olsen asked
Johns if she had any other problems. Johns told Olsen how
Becherer talked to her on August 20, and that the only other
problem she had was Becherer. Johns related to Olsen how
Becherer came up to her register on August 20, and was telling
her to do this and do that, and if she did not want to do what he
said she could go home. Olsen said he was unaware of that.
Olsen told Johns he did not want to lose her that she was a very
valuable employee. Then Olsen called Reaves back to the of-
fice.
Respondent has employed Reaves, a cashier, since June 4.
At the time of the hearing, Reaves was working at main pier at
the Nature’s Table Café. Reaves worked for Host for 2 years
prior to Respondent assuming the BWI concessions. Reaves
joined the Union while she was working for Host, and she wore
a union button to work while at Host. Reaves participated in
the Union’s August 20 rally. Reaves marched and held up a
sign outside the airport. Reaves observed Brown and Powell
inside the airport watching the rally through the airport’s glass
doors for about 10 minutes.
Reaves was working at the cash register on August 24, when
Johns came out of the office and told Reaves that Powell
wanted her in the office. Reaves reported to the backroom
office and Powell and Olsen were there. Reaves testified Ol-
sen, “asked me what was my likes and dislikes with the com-
pany and what could he do to make it better. I told him I didn’t
like—I was concerned about the benefit package, medical and
vacation time and stuff.” Reaves told Olsen that she did not
like having Easter as a holiday, and she would have preferred
having a holiday on Thanksgiving, Christmas, New Years, 4th
of July, and Memorial Day. Reaves testified that when they
were with Host they had all of those holidays. However, at
Respondent they only had three holidays, Thanksgiving,
Christmas, and Easter. Reaves asked if they could change
Easter to the 4th of July or Memorial Day. Olsen said he would

31 Becherer’s conduct here was not alleged to violate the Act in the
complaint.
AIRPORT 2000 CONCESSIONS, LLC 975
check into it. Reaves asked if they were getting any additional
holidays, and Olsen said no. Reaves testified that Olsen asked
about treatment of the customers. Olsen then told Reaves she
could not wear her union button and that she had to take it off.
Reaves asked why, and Olsen said because they were not a
union company and Reaves could not wear the button on Ol-
sen’s clock. Reaves’ button was about an inch and one half in
size and said, “Organizing For Our Future Local 7 H.E.R.E.
AFL–CIO.” Reaves took the button off and put it in her
pocket. Powell did not talk during the meeting.
Reaves testified that, prior to August 24, she wore the union
button almost every day to work for about a month and one
half. She wore the button on her shirt next to her nametag.
Reaves testified that, during that time, Olsen, Brown, Becherer,
Eugene Wright, Powell, and Samuels observed her wearing it.
Reaves testified Olsen came in the restaurant on a sporadic
basis to speak to everyone. Olsen would stand close to Reaves
and he shook her hand on occasion. Prior to August 24, Olsen
had not advised Reaves that it was wrong to wear the button,
nor had any other management official. Reaves testified that,
during the Christmas holiday season in 2004, Samuels wore a
pin shaped like a Christmas tree that lights up on her shirt lapel
almost every day. The pin was about the same size as Reaves’
union button.32
Johns testified that on August 25, she was standing at the
door going to the office talking to Powell. Johns was wearing a
Local 7 button, which Johns identified as identical to the one
Reaves wore. Becherer walked up to Johns and said, “I told
you to take this button off before.” Johns responded Becherer
had never told her to take the button off. Becherer said, “I am
telling you now, take it off.” Powell said she never told Johns
to take the button off, but Becherer said he was telling Johns to
take it off. Johns took the button off and went back to her reg-
ister. Johns was wearing the same button when Becherer ap-
proached her on August 20. Johns testified she had worn the
button every day to work prior to August 25, beginning in June.
Johns testified she also wore the button when she worked for
Host. Johns testified she wore the button during her meeting
with Olsen on August 24. Johns testified that Olsen did not say
anything to her about wearing the button at that time, nor did
Powell. Johns testified she saw Powell on a daily basis, and
that every time Olsen had been there she had the button on.
She had seen Olsen around two times prior to the day he called

32 In her prehearing affidavit, dated September 13, concerning how
often she wore her union button to work before Olsen confronted her,
Reaves stated, “I had worn that button to work a number of times be-
fore that day on work time and nothing had been said to me about not
wearing it before that day.” When confronted with the affidavit,
Reaves stated she did not wear the union button to work every day,
stating she wore it, “mostly every day.” She testified she wore it 2 or 3
days a week out of her 4- or 5-day workweek. However, she later
testified that during her 4-day workweek she wore the button to work
every day. Reaves also stated in the affidavit, “I do not recall seeing
other employees wear other kinds of buttons on work time either before
or after 8/24/04.” Reaves explained this statement was not meant to
encompass Samuels’ Christmas pin. Rather she was just asked by the
Board agent taking the affidavit, “if anybody wore any other Union
button.”
her into the office. Olsen never said anything to her about
wearing the button. Johns testified that, prior to August 25,
Brown and Becherer had seen her wearing the button on a daily
basis as they came into the restaurant to purchase food. Brown
had never told her she could not wear the button, and Becherer
had never said anything prior to August 25.
Johns wore a little gold angel pin to work every day from
June to September 2004. The pin was about an inch in size.
No one from management ever said anything to her about wear-
ing the angel pin, which she continued to wear after August 25.
Johns was wearing the angel pin on August 24 when she met
with Olsen and on August 25, when Becherer told her to re-
move the union button. Johns testified Nature’s Tables em-
ployee Mabel Simms always wore the same angel pin as Johns.
Johns testified Powell wore a Winnie the Pooh pin about two
inches long on her shirt collar or apron almost every day.
Samuels also wore pins almost every day, but Johns could not
remember what they were. Johns was not aware of Powell or
Samuels being asked to remove their pins.
a. Respondent’s witness
Olsen testified he visited BWI five or six times between June
and the end of August 2004, including August 24.33 Olsen
testified he spoke to Reaves on August 24 in a private meeting
in the office at Nature’s Table. Olsen testified that Powell,
Reaves, and Olsen were present. Olsen testified he asked
Reaves to remove her union button in that it was not in keeping
with Respondent’s uniform code. Olsen testified he was not
sure whether he had seen Reaves wearing a union button prior
to August 24. Olsen testified he also discussed the importance
of customer service with Reaves. Olsen testified Reaves did
not discuss her working conditions during the conversation,
other than to pose a question about health insurance. Reaves
stated the company insurance she was going to receive was not
accepted by her doctor. Olsen responded the list of doctors had
not come out because the insurance was not in effect at that
time. Olsen stated when the list of doctors came out; Reaves
could determine whether her doctor was on it. Olsen stated if
Reaves’ physician was not on the list, Reaves was still eligible
to receive reimbursement under the plan for her doctor’s
charges. However, she would have to fill out a form and send it
to the insurance company, as opposed to her doctor submitting
the form to the insurance company. Reaves said she was not
sure she was capable of filling out the form. Olsen said they
would assist her in filling out the insurance company reim-
bursement forms. Reaves asked if she would have to pay her
doctor while she was waiting to be reimbursed, and Olsen re-
sponded that was a possibility if Reaves’ doctor did not accept
the coverage. Olsen testified Reaves also brought up holidays
and asked why Easter was a paid holiday, and why they could
not have another day in its place. Olsen responded it was just
what they established at that time. Olsen said if the people at
the company want to switch a holiday, Respondent’s officials
would consider it. Olsen testified no policy changes were made
based on his discussion with Reaves. Olsen testified the pur-
pose of the meeting was to discuss Reaves wearing a union

33 Powell was not called as a witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD976
button. Olsen testified he did not bring up benefits, rather
Reaves asked the questions.
Olsen testified he talked to two other employees from Na-
ture’s Table on August 24. After being shown Johns’ picture
on the Union’s August 20 handout, Olsen identified Johns as
one of the other employees. Olsen testified he spoke to Johns
because she was wearing a union button. Olsen could not recall
whether he spoke to Reaves or Johns first, but he testified Pow-
ell attended both meetings. Olsen testified he told Johns,
“[Y]ou’re wearing a button that is not in compliance with the
uniform standards of the company and we would like to request
that you remove it.” Johns removed the button. Olsen testified
he discussed the importance of customer service with Johns.
Olsen testified he thought Johns raised the same question on
insurance that Reaves raised in that Johns’ doctor was not on
the doctors’ list. Olsen responded once they received the doc-
tors’ list they could see if Johns’ doctor was on it, and if the
doctor was not on the list it did not mean Johns was not in-
sured. Olsen did not recall anything else coming up in his con-
versation with Johns. Olsen testified Johns raised the insurance
coverage to him. Olsen testified that, prior to August 24, he
had never met with Johns or Reaves in a one-on-one meeting.
He testified he never told either employee he was the contact
person for benefits and he was not the contact person for bene-
fits.34
Olsen testified, that when Respondent’s officials noticed
some employees wearing union buttons, they contacted counsel
to learn whether Respondent had the right to make them re-
move the buttons. Olsen testified they knew it was not within
the company uniform policy for employees to wear buttons of
any type. Olsen testified he did not know the timing, but that
he assumed it was within a couple of week’s time that he be-
came aware employees were wearing union buttons when he
had the conversation with Reaves. He testified he probably
observed employees wearing union buttons and then he con-
tacted counsel. When asked if he actually saw employees
wearing the buttons prior to his conversation with Reaves, Ol-
sen stated, “I can’t testify to that, but I would have known if
they were. I mean it would have been something that would
have jarred our attention.” Olsen testified someone else in the
company might have reported it to him or he could have ob-
served it on his own. However Olsen testified, “I don’t re-
member until August anybody wearing any union buttons.”
Olsen later testified he probably observed employees wearing
union buttons on his own, without it being mentioned to him by
someone else. Olsen testified he observed employees wearing
the buttons on their shirts and blouses. Olsen testified that this
would have been the trip just prior to the one where he told
Johns and Reaves to remove their buttons. Olsen testified he
did not tell the employees to remove the buttons when he first
saw them because he did not know if the employees had a right
to wear the buttons. Olsen contacted Respondent’s attorney for

34 Olsen testified there was another employee he spoke to on August
24, who worked in the same location. He could not recall her name.
Olsen testified he told the employee the union button she was wearing
was not in compliance with Respondent’s uniform policy, and he asked
her to remove the button.
an opinion between those two trips. Olsen could not recall how
long before meeting with Reaves and Johns that Olsen was
advised by counsel that he could tell them not to wear the but-
tons. Olsen testified there were no complaints from customers
or employees about employees wearing union buttons. Olsen
testified Respondent relied on its handbook to determine that
the wearing of union buttons violated the dress code policy.
b. Credibility
Snyder credibly testified the Union began handing out union
buttons around early to mid-June 2004, and they handed out
about 50 to 60 buttons to Respondent’s employees. Snyder
testified some of the workers wore the buttons and some had
them from when they were Host employees. Gould credibly
testified he wore a union button around his neck for a 2-week
period and then lost the button. Trusty testified she saw Gould
wearing the button during an incident, which Gould testified
took place on June 16. Johns credibly testified she wore her
union button for the duration of their employment on practi-
cally a daily basis.35 Johns testified she obtained the button
when she worked for Host, which Snyder’s testimony reveals
was the subject of a prior organizing campaign. I also found
that Johns and Reaves testified with specificity and in a credi-
ble fashion as to their meetings with Olsen and I have credited
their testimony in full about the meetings, including Johns’
testimony that Olsen did not bring up her wearing the union
button during the meeting. I have also credited Johns’ testi-
mony about her August 25 meeting with Becherer and Powell.
Olsen’s testimony was marked by poor recall. He could not
recall meeting with Johns, until he was shown her picture on
the Union’s leaflet. He claimed he met with another employee
in addition to Johns and Reaves, whose name he could not re-
call. Olsen’s testimony vacillated as to whether he had seen
employees wearing union buttons prior to the August 24 meet-
ings, or whether it was just reported to him second hand. He
claimed he met with Johns and Reaves because they were each
wearing a union button, however, Johns credibly testified Olsen
did not mention anything to her about her wearing the button.
Olsen testified the timing of the meeting was a result of his
receiving advice from counsel concerning the permissibility of
employees wearing union buttons, although he was very vague
as to when he raised the issue to counsel and when he received
the advice. I also find it more than happenstance that both
Johns and Reaves raised complaints about working conditions
during their separate meetings with Olsen, and I do not credit
his testimony that he did not solicit those complaints. More-
over, I do not credit Olsen’s claim that the meetings were based
on the timing of receipt of advice from counsel. Rather, I have
concluded the meetings were part of Respondent’s response to
the Union’s August 20 rally. In this regard, Reaves was a par-
ticipant in the rally, which was viewed by Brown and Powell,
and Johns picture and remarks were on the Union’s leaflet,
which Brown gave to Powell. Considering the demeanor of the

35 While Reaves’s testimony was somewhat confused as to whether
she wore the button every day, or just most days, I have concluded,
given the testimony of the General Counsel’s other witnesses as to the
button distribution, that she wore the button throughout the course of
her employment with Respondent on a frequent basis.
AIRPORT 2000 CONCESSIONS, LLC 977
witnesses and the content of their testimony, I have credited
Johns’ and Reaves’ testimony over that of Olsen as I found
Reaves and Johns, as set forth above, to be credible witnesses
to the extent memories would permit.
c. Analysis
1. Union buttons
In Systems West LLC, 342 NLRB 851, 856 (2004), it was
stated that:
. . . it is well settled that, in the absence of special circum-
stances, an employee’s wearing of union buttons or stickers
while at work is protected activity under Section 7 of the Act.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Bur-
ger King Corp., 265 NLRB 1507 at 1507 (1982). Examples
of special circumstances include maintenance of production
and discipline, safety, preventing discord, and violence be-
tween competing groups of employees, and preventing alien-
ation of customers. Eckert Fire Protection, 332 NLRB 198,
202 (2000). In the latter circumstance, mere contact with cus-
tomers may not serve as a basis for barring the wearing of un-
ion buttons or stickers, and absent substantial evidence that a
prounion sticker or button affected a respondent’s business,
requiring the removal of such “small,” nonproactive items is
unlawful. Burger King Corp., supra.
I find Respondent violated Section 8(a)(1) of the Act by Olsen
instructing Reaves to remove her union button on August 24,
and Becherer instructing Johns to remove her button on August
25. The employees wore the same small innocuous button,
which merely listed the Union’s name and stated “Organizing
For Our Future.” While Respondent has a uniform policy in its
handbook, the policy did not specifically prohibit the wearing
of buttons. The handbook authorized the wearing of “simple
jewelry.” I find based on the credited evidence that Respondent
tolerated its employees wearing union buttons for a lengthy
period, but then attempted to clamp down on employees’ union
activities in response to the Union’s August 20 rally. Reaves
was a participant in the rally in plain view of Brown and Pow-
ell, and Johns’ picture and statement concerning Respondent’s
treatment of its employees was included in the union leaflet
distributed at the rally. Becherer also attended the rally.
Thereafter, Brown reacted by giving Powell a copy of the
union flyer while staring at Johns, and Becherer engaged in
harassing behavior towards Johns. I find that the instructions
not to wear the union buttons were part of Respondent’s efforts
to clamp down on employees’ union activity. Moreover, Re-
spondent has proffered no evidence of “special circumstances”
requiring the removal of the union buttons, as Olsen admitted
there were no customer or employee complaints concerning the
wearing of union buttons.36

36 I find Burger King Corp. v. NLRB, 725 F.2d 1053 (6th Cir. 1984),
and its progeny citied by Respondent to be distinguishable from the
facts here. In Burger King Corp., supra at 1055–1056, the court noted
the employer’s uniform policy included a published regulation that
“only company approved name tags, buttons and alterations in uniforms
are allowed.” The court in concluding there was no violation of the Act
in terms of the prohibition of union buttons noted the employer “consis-
tently enforced its policy against wearing unauthorized buttons in a
2. Solicitation of grievances
In Ryder Transportation Services, 341 NLRB 761, 768
(2004), enfd. 401 F.3d 815 (7th Cir. 2005), it was stated that:
In Clark Distribution Systems, 336 NLRB [747, 748] (2001),
the Board quoting from Capitol EMI Music, 311 NLRB 997,
1007 (1993), enfd. 23 F.3d 399 (4th Cir. 1994), stated the fol-
lowing regarding solicitation of grievances:
Absent a previous practice of doing so . . . the solicita-
tion of grievances during an organizational campaign
accompanied by a promise, expressed or implied, to
remedy such grievances violates the Act. . . . [I]t is the
promise, expressed or implied, to remedy the griev-
ances that constitutes the essence of the violation. . . .
[T]he solicitation of grievances in the midst of a union
campaign inherently constitutes an implied promise to
remedy the grievances. Furthermore, the fact an em-
ployer’s representative does not make a commitment to
specifically take corrective action does not abrogate the
anticipation of improved conditions expectable for the
employees involved. . . . [T]he inference that an em-
ployer is going to remedy the same when it solicits
grievances in a preelection setting is a rebuttable
one[.]37
In the instant case, Respondent’s secretary treasurer and part-
owner Olsen on August 24, within days after a well publicized
union rally, separately called Johns and Reaves into Powell’s
office. Olsen testified that prior to August 24, he had never
met with Johns or Reaves in a one-on-one meeting and he
was not Respondent’s contact person for employee bene-
fits.

nondiscriminatory manner. It is a national fast food chain deriving
much of its recognition from its uniform public image. It is not as-
serted that this policy had its inception because of labor unions or union
activities.” Here, Respondent’s uniform policy did not expressly pro-
hibit the wearing of buttons, and I have found Respondent in fact al-
lowed the wearing of union buttons, until it reacted to the Union’s
August 20 rally. Thus, Respondent’s prohibition was in direct response
to the employee’s union activities and therefore unlawful. See E & L
Transport Co., 331 NLRB 640, 640 (2000). Moreover, in Meijer v.
NLRB, 130 F.3d 1209 (6th Cir. 1997), the court disavowed its approach
set forth in Burger King, supra, and found that a “special circumstance”
does not exist as a matter of law allowing an employer to prohibit the
wearing of union buttons merely because employees have contact with
the public. Rather, the court held in enforcing the Board’s order against
Meijer that the employer must make an affirmative showing that a
special circumstance exists in order to prohibit the wearing of union
buttons, and that Meijer failed to make such a showing. The Board, as
set forth above, has also held that mere public contact does not estab-
lish a special circumstance for the prohibition of wearing union buttons.
See Systems West LLC, supra, and Raley’s Inc., 311 NLRB 1244
(1993). I have found Respondent’s prohibition here to be dis-
criminatorily motivated, and that even if that were not so, Re-
spondent has established no special circumstance justifying its
action.
37 See also Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999),
where the solicitation of grievances during a union campaign, in the
absence of a past practice of such conduct, was found to raise the infer-
ence of an implied promise to remedy the grievances.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD978
Johns credited testimony reveals that upon Johns entering the
office, Olsen said, “I hear you have a problem . . . with your
pay.” Johns said she did not have a problem with her pay;
rather she had a problem with her benefits. Olsen said Respon-
dent had good benefits. Johns said they were not good for her
because she called all of her doctors, and none of them took the
insurance. Olsen said they were a new company and may be
they could get better benefits later on. Olsen asked Johns if she
had any other problems. Johns told Olsen the only other prob-
lem she had was Becherer. Johns related to Olsen how Be-
cherer came up to her register on August 20, and was telling her
to do this and do that, and if she did not want to do what he said
she could go home. Olsen said he was unaware of that and that
he did not want to lose Johns because she was a very valuable
employee. I find Olsen unlawfully solicited and impliedly
promised to remedy grievances when he questioned Johns
about a problem with her pay, and told Johns that maybe later
Respondent could get better benefits, and again when Olsen
asked Johns if she had any other problems, and when Johns
responded, Olsen told Johns she was a valuable employee and
Respondent did not want to lose her. I find Olsen’s conduct is
violative of Section 8(a)(1) of the Act.
Reaves’ credited testimony reveals that when she was called
into the office, Olsen, “asked me what was my likes and dis-
likes with the company and what could he do to make it better.
I told him I didn’t like—I was concerned about the benefit
package, medical and vacation time and stuff.” Reaves told
Olsen that she did not like having Easter as a holiday, and she
would have preferred having a holiday on Thanksgiving,
Christmas, New Years, 4th of July, and Memorial Day. Reaves
asked if they could change Easter to the 4th of July or Memo-
rial Day. Olsen said he would check into it. Reaves asked if
they were getting any additional holidays, and Olsen said no.
During the meeting, Olsen also asked Reaves to remove her
union button. I find that Olsen violated Section 8(a)(1) of the
Act by soliciting and impliedly promising to remedy grievances
to Reaves in asking her what her “likes and dislikes with the
company” were and what he could do to make it better, and by
stating he would check into switching Respondent’s holidays in
response to one of Reaves’ complaints.
C. The 8(a)(1) and (3) Allegations
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in Transportation Management, Inc. v. NLRB, 462
U.S. 393 (1983), the Board established an analytical frame-
work for deciding cases turning on employer motivation. To
prove that an employee was discharged in violation of Section
8(a)(3), the General Counsel must first persuade, by a prepon-
derance of the evidence, that an employee’s protected conduct
was a motivating factor in the employer’s decision. The ele-
ments commonly required to support such a showing are
union activity by the employee or employees, employer
knowledge of that activity, and antiunion animus on the part
of the employer. Wal-Mart Stores, 340 NLRB 220, 221
(2003). If the General Counsel is able to make such a showing,
the burden of persuasion shifts “to the employer to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct.” Wright Line, supra at 1089.
In Washington Nursing Home, 321 NLRB 366, 375 (1996),
it was stated that:
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case; even without
direct evidence. Evidence of suspicious timing, false reasons
given in defense, and the failure to adequately investigate al-
leged misconduct all support such inferences. Adco Electric,
307 NLRB 1113, 1128 (1990), enfd. 6 F.3d 1110 (5th Cir.
1993); Electronic Data Systems Corp., 305 NLRB 219
(1991); Visador Co., 303 NLRB 1039, 1044 (1991); Associa-
cion Hospital del Maestro, 291 NLRB 198, 204 (1988); and
Clinton Food 4 Less, 288 NLRB 597, 598 (1988).
In La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002), the
timing of discharges on the heels of union activity and evidence
of disparate treatment resulted in a finding that the reasons
advanced for the termination of employees were pretextual and
that they were terminated for their union activity. Shifting
defenses have been long held by the Board to signify the
proffered reason for an action is pretextual. See Black En-
tertainment Television, Inc., 324 NLRB 1161 (1997), where
the Board, in part, relied on vacillating positions set forth in
a prehearing position statement and representations made at
the hearing to reject the respondent’s defenses and find its
conduct unlawful. See also Vincent M. Ippolito, Inc., 313
NLRB 715, 724 (1994), enfd. 54 F.3d 769 (3d Cir. 1995).
I find counsel for the General Counsel has established a
prima facie case that Holmes was discharged for her union
activity. Holmes was hired as a shift leader on May 15. In late
June or early July she was transferred to pier B Caribou Coffee
and Mama Ilardo’s as a shift leader. Holmes contacted union
organizer Snyder shortly after she was hired and had numerous
conversations in favor of the Union with her coworkers, includ-
ing conversations in front of AM Greer. Respondent exhibited
animus towards employees’ union activity by on June 16, MP
Trusty informing employees in violation of Section 8(a)(1) of
the Act, that they could not talk to union representatives while
the employees were on break, unless the employees left the
unit. I have also found that Trusty violated Section 8(a)(1) of
the Act on that date by creating the impression that an em-
ployee’s union activities were under surveillance, engaging in
surveillance of the employee’s union activities, and by coer-
cively interrogating that employee.
The Union obtained permission from the Maryland Aviation
Authority to hold a rally on August 20 at BWI outside of the
main terminal. Snyder testified the purpose of the rally was to
show Respondent, the BAA, and the Port Authority the workers
wanted to continue to have a union. The MAA had also given
the Union permission to hand out leaflets inside the terminal on
August 20. Brown testified someone from BAA informed
Brown the Union was authorized to hold the rally around 2 to 3
weeks before it took place, and that they would be allowed to
hand out leaflets inside the main terminal.
I have found Respondent exhibited strong animus towards
employees’ union activities when on August 18, Trusty violated
AIRPORT 2000 CONCESSIONS, LLC 979
Section 8(a)(1) of the Act by unlawfully interrogating Holmes,
creating the impression of surveillance of employees’ union
activities, and threatening employees with discharge when
Trusty, along with Pena, and Greer approached Holmes, and
Trusty asked Holmes if she knew anything about a paper em-
ployees were signing to attend the August 20 union rally.
Trusty said if they find the paper the employees signed they
were going to be fired. Trusty said she wanted the list. Trusty
said Holmes knew about it. I have found that Greer interro-
gated Holmes and created the impression of surveillance of
employees’ union activities and threatened employees with
discharge in violation of Section 8(a)(1) of the Act when she
accused Holmes of knowing about the list because Holmes was
part of it, and stating if Greer found the list, she was going to
fire Holmes. I have also found that Pena created the impression
Holmes’ union activities were under surveillance in violation of
Section 8(a)(1) of the Act when, during the course of this same
conversation, he told Holmes someone said she was a part of it.
I found Velardo coercively interrogated Holmes about her un-
ion activities and the union activities of other employees in
violation of Section 8(a)(1) of the Act when on August 18,
Velardo asked Holmes if she knew anything about a rally on
August 20, asked her what she knew about the rally, and who
was going to attend. I found Trusty coercively interrogated
Gould in violation of Section 8(a)(1) of the Act when, around
mid-August, Trusty asked Gould if he was joining the picket
line.
The Union held the rally on August 20 as planned, and leaf-
leted inside the terminal. Holmes attended the rally, and she
carried a sign and marched on the picket line, and sang chants.
Holmes was the only shift leader who participated in the rally.
The signs said, “Justice for airport workers.” The chants were
“A2K rich and rude, we don’t like your attitude. A2K unfair.
What do we want? Justice. When do we want it?” Reaves also
participated in the rally, and Johns’ picture was on the Union’s
leaflets along with her comments about Respondent’s treatment
of its employees. Snyder and Holmes credibly testified Re-
spondent’s officials, Brown and Becherer, watched the rally for
periods of time. Brown testified he saw Holmes participating
in the rally, and that MP Powell was with Brown when he saw
Holmes.
Johns worked for Respondent at pier C at Nature’s Table.
Powell was the MP for that restaurant. Johns credibly testified
that, around 2:30 p.m. on August 20, when the rally was over
Brown came in with one of the leaflets the Union was distribut-
ing at the rally. Brown walked over to Powell and handed her
the leaflet stating here is one of yours while Brown stared at
Johns. Johns picture appeared on the front of the Union’s leaf-
let wherein she criticized Respondent’s terms and conditions of
employment. On August 20, around 6:15 p.m., Becherer stood
behind Johns and engaged in some harassing behavior towards
her concerning her work assignments. I find Brown and Be-
cherer’s actions, although not alleged as unlawful in the com-
plaint, constitute background evidence of animus. See Ross
Stores, 329 NLRB 573, 576 (1999), enf. denied on other
grounds 235 F.3d 669 (D.C. Cir. 2001); see also Hendrix Mfg.
Co. v. NLRB, 321 F.2d 100, 103 (5th Cir. 1963); NLRB v.
Vemco, Inc., 989 F.2d 1468, 1473–1475 (6th Cir. 1993); and
Orchard Corp. v. NLRB, 408 F.2d 341, 342 (8th Cir 1960).
Holmes, following the rally, next reported to work on Sun-
day, August 22, and she looked at the new schedule on Ve-
lardo’s desk, and her name was not on the schedule. Rather,
the schedule reflected that Shift Leader Monique Yates was
transferred back to the restaurant to replace Holmes. Velardo
asked Holmes to return the key to close the restaurant during
their August 22 conversation. Holmes reported to work on
August 23, and Becherer told Holmes she was fired and he
refused to provide Holmes with reasons for the termination.
Holmes credibly testified that prior to August 23, she had re-
ceived no written or verbal warnings, and no one had talked to
her about her performance. Holmes testified that to her knowl-
edge no MPs, AMs, or other shift leaders were laid off or fired
at that time.
I have found that on August 24, Olsen violated Section
8(a)(1) of the Act by soliciting grievances from Johns and
Reaves, and by telling Reaves to remove her union button. I
have found that on August 25, Becherer violated Section
8(a)(1) of the Act by telling Johns to remove her union button.
Both Johns and Reaves were participants in the Union’s August
20 rally, Johns by her picture and statement appearing in the
Union’s leaflet, and Reaves by her joining the picket line.
I find that the General Counsel has made a strong prima facie
case under the Board’s Wright Line requirements that Holmes
August 23 termination was motivated by her August 20 partici-
pation in the Union’s rally. While Holmes had a longstanding
leave request, Respondent’s officials tried to cancel the request
shortly before the rally. There is also strong evidence of ani-
mus on the part of Respondent directed to its employees’ union
activity in the form of multiple violations of Section 8(a)(1) of
the Act, some of which was directed towards Holmes on Au-
gust 18, concerning her and other employees’ participation in
the August 20 rally, including threats of discharge. Respon-
dent’s officials Brown and Becherer were present for the Au-
gust 20 rally, and Brown admitted seeing Holmes participate.
On August 22, Velardo removed Holmes name from the work
schedule, and Yates replaced Holmes on the schedule. On
August 23, Becherer discharged Holmes and refused to provide
the reasons for the termination. Thus, there is evidence of
knowledge of union activity on the part of Respondent, strong
evidence of animus in the form of multiple 8(a)(1) violations
and other conduct, and strong evidence of timing as Holmes
was discharged on August 23, shortly after Holmes was the
only shift leader to participate in the August 20 rally.
The burden thus shifts to Respondent to establish it would
have terminated Holmes absent her union activity. For the
following reasons, I find Respondent has failed to meet that
burden. Respondent has only been in operation since 2004, and
BWI is its initial and only contract. Olsen testified he handles
financial matters for Respondent, including whether the com-
pany is overstaffed. Olsen testified Respondent intentionally
overstaffed during its start up operation with the plan to even-
tually cut back. Olsen testified he relies on a percentage of the
payroll to sales to determine when Respondent’s operation is
overstaffed. Olsen testified when Respondent is overstaffed
they will either reduce the number of people, reduce the hours,
or both. Olsen received information from BWI that Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD980
dent’s costs were high and that Respondent was overstaffed in
both management and hourly employees from around middle to
the end of July. Olsen testified they were not as proactive as
they should have been, and he did not think they started reduc-
ing staff until August. Olsen testified there was a reduction in
staff in August, but he did not know how many people were let
go or who would know this information.
Olsen testified sales and payroll are measured separately for
each store and calculated on a weekly basis. Olsen testified he
thought August was the only reduction-in-force, and Respon-
dent’s July records would have been used to determine the
reduction was necessary. Olsen testified business starts slow-
ing down in September and Respondent was getting ready to
head into their drop in sales period. Olsen testified payroll and
sales records were the only thing that went into the decision to
layoff employees in August. Olsen testified he was not sure
who made the decision to fire Holmes. Olsen testified there
were certain people who would talk about it and that Weiss and
Brown would have been involved.
Brown testified that when Respondent started operations in
June, they were under orders from BAA to overstaff because no
one knew exactly what the needs would be after they opened
up. BAA also required Respondent to hire as many former
Host employees as possible. Respondent hired a lot of them
with the understanding there was no guarantee they would be
there on a permanent basis. Brown testified, in response to
leading questions, that Respondent used the period late in July
and August to adjust to over hiring by reducing hours, and by
cutting back the number of employees.38 Brown testified Re-
spondent compared gross sales versus labor costs to determine
when to cut back hours or the number of employees. Brown
testified there were no specific instructions given to the MPs
other than those two options to reduce each restaurant’s labor
costs. Brown testified MP Velardo would have made the deci-
sion to lay off Holmes since the decision was left to the MPs as
to how to correct the problem.
Brown initially testified he vaguely recalled a conversation
about the decision to terminate Holmes after she was let go.
Brown testified the conversation may have been with Becherer,
or some of the staff members of pier B that Holmes was no
longer there. Brown testified that, “beforehand, there was no
specific conversation with regards to Maria Holmes.” How-
ever, Brown then testified that “[t]he only conversation that I
had with regards to Maria where she would have come up as a
name was just in general prior to the time that the rally had
occurred in August.” Brown explained Respondent was under
directions from BAA to make sure they were overstaffed in the
event there were large numbers of employees leaving to go to
the march. Brown testified Respondent sought counsel’s ad-
vice as to what they could do to staff stores, and Holmes, being
a shift leader, her name came up in the conversation. Brown
testified, “[T]hat was the only other time that I recall where her
name might have been referenced in my presence.” I do not
credit Brown’s testimony on this point, as MP Trusty testified
she told Brown and Becherer that she had received reports

38 Holmes’ testimony confirms that she along with other employees
had their hours reduced sometime in July.
Holmes had taken employees’ names from Respondent’s com-
puter system concerning the rally and provided them to the
Union, and that she received complaints from employees about
numerous phone calls from the Union. I do not find it likely
that Brown would have forgotten the receipt of these allega-
tions concerning Holmes, or that he and Becherer would not
have discussed the matter.
Brown testified he had no firsthand knowledge of who made
the decision to terminate Holmes. He testified he was not in-
volved in the decision and he did not know if Holmes was ter-
minated or quit. While Brown initially testified he only
vaguely recalled a conversation concerning Holmes’ termina-
tion, he later testified he learned Becherer informed Holmes she
was going to be laid off. Brown testified that according to Re-
spondent’s policy Velardo would have made the decision to
terminate Holmes, and Becherer had nothing to do with the
decision. Brown testified he was not consulted. Brown then
testified that Becherer may or may not have been consulted
about the decision. Brown testified he had a conversation with
Becherer wherein Brown was told Holmes was laid off. Brown
testified that at that time, he did not recall Becherer giving him
a reason for the layoff. Brown incredibly claimed he asked no
questions about it. I find Brown’s claim incredible because he
admittedly discussed Holmes participation in the rally with
Respondent’s counsel, he saw Holmes attend the rally, and
Trusty testified she informed Brown there were allegations that
Holmes divulged employee names and phone numbers to the
Union.
Brown then testified later on that week Becherer told Brown
the reason for Holmes’ layoff. Becherer told Brown there were
some performance issues related to Holmes, that “she had
called in late several times, that she wasn’t doing her work up
to a certain level, that there was some attitude problems with
regards to her.” Brown then admitted he was only told of
Holmes being laid off for Respondent’s whole staff during the
week Holmes was laid off. Brown admitted that without the
performance issues, despite the economics, Homes might not
have been laid off. However, Respondent submitted a position
statement through counsel to the Region dated October 12,
wherein it is stated at page 2, “On August 23, 2004, after de-
termining that it was over capacity with regard to supervisors,
Airport 2000 terminated Ms. Maria Holmes.” It is later stated
at page 5 of the position statement, “Ms. Holmes was termi-
nated on August 23, 2004 for legitimate business reasons.
More specifically, Airport 2000 had determined that it was
above capacity for supervisors.” Thus, Brown’s testimony at
the hearing was plainly inconsistent with the reasons advanced
for Holmes’ termination in Respondent’s position statement.
Such shifting positions confirm my conclusion that Holmes’
August 23 termination was caused by her August 20 participa-
tion in the Union’s rally, and that the reasons Respondent ad-
vanced termination were pretextual. See Black Entertainment
Television, Inc., 324 NLRB 1161 (1997); and Vincent M. Ip-
polito, Inc., 313 NLRB 715, 724 (1994), enfd. 54 F.3d 769 (3d
Cir. 1995).39

39 I do not credit Brown’s self-serving testimony that he played no
role in the decision to terminate Holmes. Brown admitted Holmes’
AIRPORT 2000 CONCESSIONS, LLC 981
Accordingly, I find Respondent discharged its employee
Maria Holmes on August 23, because of her participation in
union activity in violation of Section 8(a)(1) and (3) of the Act.
The record contains evidence of Respondent’s knowledge of
Holmes’ union activities, timing and animus towards those
activities, and Respondent’s reasons for the discharge are
marked by vague and inconsistent testimony, shifting defenses,
and the lack of documentary evidence supporting its position. I
therefore have concluded the reasons advanced by Respondent
are pretextual.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act.40
(a) By on June 16, 2004, informing employees they could
not talk to union representatives during nonworktime in non-
work areas.
(b) By on June 16, 2004, engaging in surveillance and creat-
ing the impression that an employee’s union activity was under
surveillance.

name came up in a discussion with counsel prior to the rally concerning
shift leader’s participation in the rally. Holmes’ credited testimony
reveals that, despite her prior leave request, her Supervisors Greer and
Velardo attempted to have her work during the rally. Trusty also testi-
fied she reported to Brown allegations that Holmes had taken employ-
ees names and phone numbers off Respondent’s computer system for
the Union’s use concerning the rally. Moreover, while Olsen testified
he was not sure who made the decision to fire Holmes, Olsen
testified Brown would have been involved. I find Respondent’s
officials discussed Holmes with Brown more than Brown was willing
to admit. I also find she would not have been discharged without
Brown’s input and approval.
Trusty testified there were hearsay reports of Holmes taking infor-
mation off Respondent’s computer system, and Trusty reported this to
Brown and Becherer. However, Respondent provided no direct evi-
dence that Holmes had actually engaged in this conduct, nor did Re-
spondent rely on these allegations as part of its defense in discharging
Holmes.
40 Pursuant to Respondent’s motion at the hearing consolidated com-
plaint par. 11 was dismissed due to lack of evidence.
(c) By on June 16, 2004, coercively interrogating an em-
ployee about her union activities.
(d) By August 2004, coercively interrogating an employee
about his union activities.
(e) By on August 18, 2004, coercively interrogating an em-
ployee about her union activities, and the union activities of
other employees.
(f) By on August 18, 2004, creating the impression that em-
ployees’ union activities were under surveillance.
(g) By on August 18, 2004, threatening employees with dis-
charge if they engaged in a job action, on behalf of the Union,
scheduled for August 20, 2004.
(h) By on August 24, 2004, soliciting and impliedly promis-
ing to remedy grievances to discourage employees from sup-
porting the Union.
(i) By on August 24 and 25, 2004, instructing employees to
remove their union buttons to discourage them from supporting
the Union.
2. Respondent violated Section 8(a)(1) and (3) of the Act by
on or about August 23, 2004, discharging employee Maria
Holmes because she engaged in union activities, and to dis-
courage employees from engaging in union activities.
3. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair la-
bor 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. Respondent having discriminatorily dis-
charged employee Maria Holmes must offer her reinstatement
and make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from August 23, 2004, the date
of Holmes’ discharge to the date of a proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]