All Pro Vending, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2006

05-CA-032734 (N.L.R.B. Dec. 27, 2006)

JD–85–06
Washington, DC and
Baltimore, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

ALL PRO VENDING, INC.

and Case 5–CA–32734

FREDERIC A. TRAUBE, an Individual

Lisa M. Daley, Esq. and Thomas P. McCarthy, Esq.,
for the General Counsel.
Mark J. Swerdlin, Esq. and Kraig B. Long, Esq.
(Shawe & Rosenthal LLP), of Baltimore, Maryland,
for the Respondent.
Lawrence Sherman, Esq., of Washington, D.C.,
for the Charging Party.

DECISION

STATEMENT OF THE CASE

JOHN T. CLARK, Administrative Law Judge. This case was tried in Baltimore,
Maryland, on May 23–25, 2006. The charge was filed on November 1, 2005,
1
and the complaint
was issued December 15. The complaint was amended at the hearing to admit that Clarence
Haskett, vice president of All Pro Vending, Inc. (the Respondent), is a supervisor and an agent
under Section 2(11) and (13) of the National Labor Relations Act (the Act) (GC Exh. 2). The
complaint also alleges that the Respondent twice violated Section 8(a)(1) of the Act by
interfering with, restraining and coercing employees in the exercise of the rights guaranteed them
in Section 7 of the Act. The complaint additionally alleges that the Respondent violated Section
8(a)(1) and (3) when it discharged employee Frederic A. Traube (the Charging Party), on August
4 from its RFK Stadium operation and Section 8(a)(1), (3), and (4) when it discharged Traube
Error! Not a valid link.M&T Bank (Ravens) Stadium operation on September 11.

On the entire record, including my credibility determinations based on the demeanor of
the witnesses, as well as my credibility determinations based on the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn
from the record as a whole and, after considering the briefs filed by the General Counsel and the
Respondent, I make the following

1
All dates are in 2005 unless otherwise indicated.

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FINDINGS OF FACT

I. JURISDICTION

The Respondent, a Maryland corporation with an office and place of business in
Baltimore, Maryland, has been engaged in providing food and beverage vending services at
stadiums and arenas. During the 12-month period ending December 15, 2005, the Respondent,
in conducting its business operations described above, performed services valued in excess of
$50,000 in States other than the State of Maryland. The Respondent admits and I find, that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and that UNITE HERE Local 25, (the Union) is a labor organization within the meaning of
Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES

A. Introduction

The Respondent was formed in 1996 by David McDonald and Clarence Haskett, the
Respondent’s president and vice president, respectively. They each have over 30 years’ of
vending experience. Stadium vending is part-time seasonal work. Both men have other
employment, as does the Charging Party, and most other vendors. McDonald, who has not
worked as a vendor for the last 3 years, is a real estate agent. Haskett works for the State of
Maryland. Traube has been employed as a vendor since 1980, and has worked with McDonald
and Haskett for years. Traube has worked at venues in New York, Maryland, and the District of
Columbia,. Traube was employed by the Respondent as a vendor at Ravens Stadium in
Baltimore, when Haskett recruited him to also work at RFK Stadium in the District of Columbia.
The Respondent had just been given the vending subcontract for the Washington Nationals 2005
inaugural baseball season. Traube had previous experience as a vendor for baseball games at
Shea Stadium in New York and at Camden Yards in Baltimore. Traube was employed by
Aramark Corporation when he worked at Camden Yards and was a member of UNITE HERE.
Traube accepted the Respondent’s offer because he preferred National League baseball as
opposed to the American League and it was a shorter commute.

Aramark Corporation, the concessionaire at RFK Stadium, selected the Respondent as its
subcontractor for vendor services. The Respondent’s vendors are paid on a straight commission
basis. The Respondent assigns the product the vendor sells based on seniority and prior sales
volume. Traube is one of the Respondent’s most successful beer vendors. Some vendors, and
others, refer to vendors as “hawkers.” This reference, no doubt, is premised on the ubiquitous
siren call used to announce their product, such as “beer here!” heard in professional baseball
venues—at least until the seventh inning.

The Respondent’s distribution system begins at a commissary. The commissaries are
located throughout RFK. The commissary is where the vendors buy their product. Each
commissary has a manager, a cashier, and four support personnel. The manager and the cashier
stand behind a counter that separates the entryway from the stock area. A vendor pays the
cashier for his product and the cashier produces a ticket. The ticket is used to keep track of the
vendor’s sales. Half the ticket is given to the vendor and the other half to the commissary
manager. The manager tells the support staff to get the product and give it to the vendor. The

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vendor never goes behind the counter, nor is he permitted to switch commissary rooms.

The Respondent encourages vendors to buy and carry two cases of beer at a time, except
for the first case of the game. The Respondent provides the first case of beer which is paid for
from by the proceeds from its sale, when the vendor returns to buy a second case. After buying
the beer the vendor proceeds to the seating area to sell his product. The Respondent has a
written rule that states that vendors must sell in the seating area. It is during this traverse—from
commissary to seating area—that the Respondent’s rule prohibiting the vendors from selling beer
on the concourse, which is where the concession stands are located, collides with reality.

Concession stands sell food and beverages. Because of this diversity of product it is
generally understood that a patron may have to wait an undetermined period of time before being
served. Frequently, at least one thirsty patron, on his was to the concession area, crosses the path
of a beer vendor. An almost instinctive reaction is for the thirsty patron to stop the vendor and
ask to buy a beer. Clearly, for the vendor to react in any way other than to provide instant
gratification to his customer, would be not only poor salesmanship but even worse public
relations. To avoid that outcome, the Respondent allows its vendors to sell a beer in the
concourse area at the request of a customer. The problem arises when other customers, on their
way to buy beer at the concession stand, take the path of least delay and also approach the
vendor to purchase a beer. In the interest of customer service, the Respondent allows the vendor
to serve all the patrons who gather around him after the initial stop by a patron. The parties
agree that “setting up,” which entails stacking cases of beer on a table or the ground and
announcing “beer here,” is not permitted in the concourse area. For the purpose of this decision
“setting up” and “hawking” are synonymous.

It is at this juncture that economic realities must be acknowledged. Standing in place and
selling beer is far more efficient, and less tiring, than carrying two cases of beer up and down the
aisles in the stadium. Equally apparent, is that because the vendors are paid solely on a
commission basis, it is in their interest to sell as much beer as possible, regardless of the point of
sale. Additionally, the more beer sold by the vendors, the more money the Respondent makes,
with a corresponding decrease in revenue from the sale of beer by the Respondent’s contractor—
Aramark. This conflict caused some Aramark concession managers to tell Traube to leave the
concourse area. Traube admits that he was admonished more than once but less than 10 times.
The parties also agree that initially the Respondent’s service at the baseball games was less than
satisfactory. Traube submits that part of the reason for the poor service was the vendor’s low
commission rate.

B. Events Preceding Traube’s Discharge

Traube testified that the Aramark vendors in Camden Yards, the home field for the
Baltimore Orioles, receive a 16-percent commission on sales. At the beginning of the baseball
season at RFK the commission was less than 10 percent. Traube testified that he initially
discussed the rates with Haskett and McDonald and later with other senior vendors, including the
brothers Hahn, Daniel, Perry and Jay. Haskett and McDonald deny that Traube mentioned his
dissatisfaction with the commission rate to them. Sometime around the second week of April,
Traube complained to David Cope, the vice president of sales and marketing for the Nationals,
and a longtime acquaintance. Cope suggested that Traube talk to Rob Sunday, Aramark’s
general manager for operations at RFK Stadium.

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Although Traube said that his talk with Sunday happened sometime between “early to
mid-May,” he was clearly was mistaken. It is undisputed that the commission rates were
changed effective May 1, thus the meeting most likely occurred shortly after he talked with
Cope. At the meeting Traube addressed the low commissions as well as other employment
concerns of the vendors. Traube opined that if the concerns were addressed it would be less
likely that the vendors would vote in a union. Sunday agreed and said that he would discuss the
issues with McDonald and get back to Traube.

Consistent with Traube’s testimony, McDonald testified that Sunday called him
sometime in mid to late April. McDonald also admitted receiving an e-mail from Sunday, sent
on April 28 at 7:55 p.m., stating that he wished to discuss the commission rates, because he had
heard rumblings from the guys about the rates (GC Exh. 12). McDonald testified that Sunday
told him that “a little bird” told Sunday that “things are unorganized. Clancy’s up at [the]
Orioles working, while down here at RFK the beer is warm and, you know, I’m hearing talks of
union (Tr. 28).” McDonald acknowledged that when he heard “union” he thought of UNITE
HERE and that he believed that the “little bird” was one of the Respondent’s vendors. The new
commission rates were effective May 1. Sunday was replaced by Greg Costa around mid-May.

Sunday never got back to Traube and on April 27 Traube called John Boardman, the
executive secretary-treasurer of UNITE HERE Local 25. Traube had been a member of UNITE
HERE since the early 1980’s and was the shop steward at New York City’s Madison Square
Garden from 1985 thru 1988. Boardman testified that because Traube is an articulate and well
respected vendor he played a significant role in the union organizing campaign and was
considered a “lead worker.” In that capacity he talked with the Hahn brothers and other vendors
about improving the working conditions at RFK. At about the same time it began to organize the
Respondent the Union began organizing the Aramark concessions workers, as well.

Also within this time frame, McDonald testified that he was receiving reports from
Aramark concession supervisors about Traube. The supervisors complained that after being told
to stop selling beer in the concession area and to move along, Traube would respond by saying
the “the union’s coming” and that the vendors would soon be “union organized.” (Tr. 37–38, 83,
335, 340.)

Vendor Chudi Ugboaja testified for the Respondent and recounted his observations
during a game in June or July. He stated that because it was a very hot day beer was selling well
and the vendors were buying and selling two cases at a time. Ugboaja stated that on entering the
commissary in room 327 he observed Traube putting ice on a case of Miller Lite. In addition to
the case Traube was icing down, Ugboaja noticed another case of Miller Lite in front of Traube.
Although the commissary manager and other vendors were in the room, no one responded to
Ugboaja’s general inquiry as to who owned the unattended case of Miller Lite. McDonald, who
apparently entered the room as Ugboaja made his announcement, saw the unattended case and
returned it to the cooler. McDonald’s only verbal response was to tell the manager “there’s a
perfect example right there of [not] following procedures. How did it get over there? (Tr. 419.)
Ugboaja testified that later that day he thinks that he told McDonald that something was going on

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for an extra case to be lying there and he and Traube were the only two Miller Lite vendors. (Tr.
328.)

In mid-July, Costa told McDonald that Aramark was allowing the Union to conduct a
card check among its employees to ascertain if the employees wanted union representation.
McDonald was asked if the Respondent would agree to a card check. McDonald agreed, after
consulting with a labor lawyer, and on July 22 McDonald announced that there would be a union
meeting the following day for any employee who wanted to join the Union. The meeting that
was held on July 23 was not heavily attended. Less than 2 weeks after the meeting Traube was
discharged. Boardman credibly testified that Traube’s discharge had a chilling effect on the unit
and that it had a negative impact on the organizing environment.

Traube testified that sometime in July Linda Floyd, inventory manager for the
commissary in room 327, returned to work after a few days absence. Traube was assigned to
buy his product from room 327. On seeing Floyd in room 327, Traube remarked to the vendors
in the room that “Linda’s back in the room now. You know, this room is going to run on time
now. There’s not going to be any fun and games in this room now.” Traube explained that the
commissary room is very small and there is no room for vendors to loiter. In that regard he
considers Floyd exceptional at keeping the vendors moving in and out of the room. His
comment was meant as a joking reminder to vendors that they could no longer dawdle in the
commissary room, in essence it was a complement to Floyd’s management of the commissary
room.

During the evening of August 4, Traube was walking through the concourse to the
seating bowl area when a patron stopped him and bought two beers. When he finished the sale
he noticed Aramark Floor Supervisor Donald Washington approaching. Washington who stands
6 foot 8 is readily visible. Although Traube did not know him by name, he had complained to
Haslett in the past about Washington’s over aggressive manner when ordering Traube not to sell
on the concourse. Haskett, who did not refute Traube’s testimony, advised him to try and avoid
Washington.

Earlier that evening Washington had yelled to Traube to stop selling on the concourse,
after Traube had made a sale that had been initiated by the customer. Traube proceeded to the
seating area without further incident. This time they engaged in name calling and exchanged
harsh words, after which things got physical. The police arrived and took the men to the
Aramark offices. According to Traube he talked to no one while he waited for McDonald. After
McDonald arrived and conferred with the Aramark Representative, McDonald told Traube that
he was closing him out for the evening.

Before McDonald took Traube’s stadium identification and escorted him out, Traube
attempted to tell him what happened. According to Traube, McDonald said that Traube
“shouldn’t have been there,” but agreed that Traube was right in defending himself (Tr. 91).
McDonald admits that as soon as Traube began his version of the incident by stating that a
customer had stopped him for a beer, he “pretty much heard enough” (Tr. 466) and that he
“chose not to believe him” (Tr. 53). McDonald’s conclusion that Traube was lying was based on
a single incident that occurred 3 weeks earlier at the same location on the concourse. McDonald
alleges that unbeknown to Traube he watched him serve several customers and yell “cold beer”
for 90 seconds (Tr. 54). When McDonald approached, Traube told him that a fan had initially

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stopped him. Based on this 90-second observation, McDonald concluded that Traube was lying,
but did not confront him.

Traube contends that he never sold beer on the concourse unless first stopped by a
customer. McDonald, who exhibited no tenancy towards reticence, admits that he never
confronted Traube with his belief that he thought Traube had lied to him on either August 4 or 3
weeks before. (Tr. 57.)

Immediately after being escorted from the stadium, Traube reentered and went to Cope’s
office. Cope’s testimonial demeanor was that of a truthful witness who was trying to recollect
the facts to the best of his ability. Although Cope is no longer employed by the Nationals.
Although he has been a professional acquaintance of Traube’s for about 13 years, he appeared to
testify without bias. I fully credit his testimony regarding the following discussion between him,
McDonald, and Traube.

After Traube told Cope what had happened they went to the scene of the altercation.
Cope asked Traube if there were witnesses to the altercation. Traube said “Yes,” but none were
when present. They found McDonald and they discussed the altercation. Cope listened as
Traube and McDonald discussed Traube’s selling beer on the concourse. Traube reiterated that
he was only selling to patrons who had stopped him and that his sales were in the interest of
customer service. Traube, who thought that Aramark had discharged him, asked McDonald what
he could do to get him reinstated. McDonald mentioned Traube’s membership in an organized
group of vendors that wanted to do something about the commissions. Traube asked, “[W]hat
has that got to do with?” McDonald responded by using the term “rabble-rousing” in referring to
the group and he stated that he did not know how much he could do for someone who was trying
to organize people. It is also during this discussion that McDonald told Traube that he was not
going to back him. (Tr. 57.) The discussion ended when Cope returned to work. Traube
remained in the stadium and located a witness.

Traube claims that McDonald said that Traube was always making threats about bringing
in the Union. McDonald claims he was merely telling Cope what Traube was saying when he
was asked to move. However, both versions have McDonald using “union,” a fact that Cope
categorically rejects. Cope’s testimony was that of an unbiased, disinterested, and honest third
party. It resonated with “the ring of truth” and as such I credit his testimony over that of Traube
and McDonald. I also note that although McDonald was in the courtroom during the entire trial
he did not contest Cope’s statements concerning the use of the term “rabble-rousing,” nor his
testimony that McDonald connected the diminished probability of Traube’s reinstatement
directly to Traube’s protected concerted activity.

Anthony Coleman was the commissary cashier in room 327 on the evening of August 4.
Sometime during that evening, after learning of the altercation,4 Coleman talked to McDonald.
Without providing any context, Coleman told McDonald of a statement Traube had made to him
and Linda Floyd, the commissary room manager, a couple of weeks before. According to
Coleman, Traube entered the commissary room and told them that all the vendors knew to come
to their commissary “to get away with stuff,” because “you guys didn’t know what the hell you
were doing.” (Tr. 376.)

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McDonald states that he heard this comment from both Floyd and Coleman after the
altercation. McDonald contends that this information confirmed his suspicion that Traube was
responsible for shortages of cases of Miller Lite in the room 327 commissary that occurred
throughout the season. The sole initial cause for McDonald’s suspicion was what he refers to as
“a theft in progress” that Ugboaja testified about, where Ugboaja stated that he saw an unclaimed
case of Miller Lite beer near Traube in the room 327 commissary.

C. The Discharge and Subsequent Events

Notwithstanding McDonald’s belief that Traube’s selling on the concourse caused the
altercation with Washington, and that Traube was stealing from the Respondent, he still felt the
need to talk with Haskett and consult with the Respondent’s lawyer. On August 9, the lawyer
assured McDonald that he could discharge Traube for any reason that was not unlawful. As soon
as he ended the conversation with the lawyer he called Haskett. He told Haskett everything that
was said between him and the lawyer and Haskett agreed that Traube should be discharged.

Thereafter, Traube called McDonald and asked about the possibility of reinstatement.
McDonald replied that Traube had not been discharged on August 4. McDonald then explained
that he was being discharged then because of an inappropriate comment he made to Linda Floyd,
and shortages in the commissary room. Traube responded that McDonald’s statement was “an
outrageous accusation” and that he was going to fight his discharge. McDonald said “fine.”

On September 1, Traube reported to Ravens Stadium in Baltimore, Maryland, to work an
exhibition football game for the Respondent. On arriving, Traube asked Haskett why his name
was not on the vendor list. Haskett said that he did not think that Traube was going to work the
Ravens games because he had rejected a settlement offer from Aramark to return to work for the
Respondent at RFK. Traube said that the settlement offer had nothing to do with his tenure at
Ravens Stadium. Haskett agreed, and said that he never had any problem with Traube. Traube
sold beer for the entire game without incident. At the end of the game, Haskett told Traube that
McDonald wanted to see him. They were unable to meet that day. Traube did call and e-mailed
both of them but his efforts availed him nothing.

Traube reported early to Ravens Stadium on September 11. While Traube was waiting to
enter he saw McDonald addressing a group of new hires. McDonald saw Traube, pointed his
finger at him, and asked him to come. When Traube got near McDonald he said “Yes.”
McDonald said “You don’t work here anymore.” Traube asked “what do you mean?”
McDonald replied “I’m not going to have you stirring up union trouble in this stadium, as well.
I’ll see you at the hearing.” Traube said “fine” and walked away. McDonald denies saying “I’m
not going to have you stirring up union trouble in this stadium, as well.”

III. DISCUSSION

A. The 8(a)(1) Allegations

The General Counsel alleges that McDonald made two unlawful statements to Traube.
The first occurred during the evening of August 4 when Cope, Traube, and McDonald were
discussing the possibility of Traube’s reinstatement. Traube claims that McDonald stated that

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Traube was always threatening about bringing in the Union. McDonald admits only that he told
Cope what the Aramark supervisors were relating to him, as Traube’s response when they told
him to stop selling on the concourse.

Cope, whose testimony I credit over Traube and McDonald, testified that “union” was
never mentioned. Cope also testified as to McDonald’s response to Traube’s asking him for help
in getting reinstated. McDonald noted that Traube was part of an organized group of vendors
that were trying to do something about the commissions. When Traube asked “[W]hat has that
got to do with?” McDonald responded by using the term “rabble-rousing” in reference to the
group, and stated that he did not know how much he could do for someone who was trying to
organize people.

Under Section 8(a)(1), an employer may not “interfere with, restrain, or coerce
employees” in the exercise of their Section 7 rights. “The test is whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee
rights under the Act.” “In determining whether an employer’s statement violates Section 8(a)(1),
the Board considers the totality of the relevant circumstances.” Ellison Media Co., 344 NLRB
No. 136, slip op. at 2 (2005) (citations omitted). In considering communications from an
employer to employees, the Board applies the “objective standard of whether the remark tends to
interfere with the free exercise of employee rights. The Board does not consider either the
motivation behind the remark or its actual effect. Miller Electric Pump & Plumbing, 334 NLRB
824 (2001). Further “an employer violates Section 8(a)(1) of the Act if its conduct may
reasonably be said to have a tendency to interfere with the free exercise of employee rights.”
Frontier Hotel & Casino, 323 NLRB 815, 816 (1997). The Board has long recognized that
terms such as “rabble-rouser,” “agitator,” and “troublemaker,” are normally applied by
employers to individuals who are attempting to instigate other employees into engaging in
concerted or union activities, particularly when there is no alternative explanation forthcoming.
See James Julian Inc. of Delaware, 325 NLRB 1109, 1109 (1998); Garner Tool & Die Mfg., 198
NLRB 640 (1972).

The implication of McDonald’s statement—that he did not know how much he could do
to have someone reinstated who was a member of an organized group of rabble-rousing
vendors—in the context of Traube’s request for help in getting reinstated, made a direct
connection between Traube’s concerted activities and the possibility of his continued
employment. Thus, considering the totality of the circumstances, I find that McDonald's
statement was an implied threat not to reinstate Traube because of his protected concerted
activity. Accordingly, the statement violated Section 8(a)(1) of the Act because it has a
reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their
Section 7 rights.

The General Counsel contends that the second violation of Section 8(a)(1) occurred when
McDonald told Traube that he could not work at Ravens Stadium because McDonald was not
going to have him stirring up union trouble in this stadium. The Respondent does not argue that
the statement, if made, violates Section 8(a)(1), but argues that the issue is one of credibility.

I was not impressed by McDonald’s testimony regarding this and other disputed issues. I
found McDonald to be of poor demeanor. Additionally, as detailed herein, his testimony
contains numerous self-contradictions and inconsistencies. I find McDonald’s creditability

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unreliable. Traube had a far more credible demeanor and his testimony appeared to be honest
and sincere . He also appeared to be an emotional and passionate individual who took great
pride in his ability, and his standing, as a vendor. The record also establishes that he is articulate,
talkative, not averse to confrontation, and tenacious. He told McDonald that he is fully
committed to fighting his discharge, and to that end he has retained an attorney.

The Respondent apparently suspended Traube on August 4. I use “apparently” because
Traube was told nothing regarding his status until August 9. On that date the Respondent, acting
through its co-owner McDonald, told Traube by telephone that he was discharged. The
Respondent’s contrary contention, notwithstanding, Traube was rehired by the Respondent’s
other co-owner, Haskett, on September 1, only to once again be discharged by McDonald on
September 11.

Based on the foregoing it is difficult to accept McDonald’s testimony that after he
approached Traube and said “Fred Traube, you’re not working” Traube merely responded
“Okay, so I’m fired from here, too,” and walked away. I find it far more likely that, as Traube
testified, he asked McDonald for an explanation, rather than merely repeating the obvious. Such
inquiry would be especially appropriate in light of Traube’s recent rehire and having worked a
game without incident.

The Respondent appears to argue that Traube should not be credited because he identified
vendor Phil Lang as being nearby when this incident occurred. The Respondent contends that
based on Lang's seniority number he would have already been in the stadium, and in any case, he
was not called to corroborate Traube testimony. Traube testified that McDonald had been
addressing a group of new vendors before he summoned Traube. On cross-examination Traube
was asked if he recognized any of the vendors. He said he only recognized Phillip Lang. He
further testified that Lang was on the periphery of the group of new vendors. Traube volunteered
that Lang must have been late, because with his high seniority number he should have been
inside the stadium.

McDonald said that he did not remember Lang being present. Haskett, who was present
when McDonald and Traube testified, said that he did not believe that Lang was present during
the exchange between McDonald and Traube. Haskett based his belief on record evidence that
indicates that Lang worked out of vending room 103, “the number one vending room for sales.”
According to Haskett, Lang would not have been able to “get a cart” for that room had he been
late, presumably because other vendors would have chosen that room before Lang arrived.

Haskett’s testimony notwithstanding, I am not convinced that Lang, perhaps knowing
that he was going to be late did not make other arrangements. Regardless, no motive has been
advanced as to what Traube would gain by giving a false response to the Respondent’s question.
Respondent implies that Lang would not support Traube’s testimony and hence that is why he
was not called as a witness. Traube never stated, or inferred that Lang or anyone else, heard the
exchange between himself and McDonald. “Nearby” does not connote a specific distance and,
without more, does not support a conclusion that the people “nearby” overheard the
conversation. Thus, there is no evidence of what, if anything ,was heard by Lang or the new
vendors.

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Based on the foregoing, I credit Traube’s testimony, and I find that the Respondent
violated Section 8(a)(1) of the Act when it told Traube that he was not allowed to engage in
union and /or concerted protected activities at work. Teledyne Advanced Materials, 332 NLRB
539, 539 (2000).

B. The 8(a)(3) Allegation

The analytical framework for determining when a discharge violates the Act was set out
in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S.
989 (1982). Under Wright Line, the General Counsel must first prove, by a preponderance of the
evidence, that the discharge was motivated by the employee’s protected concerted activity. To
carry the initial burden, the General Counsel must show that the employee had engaged in
protected activity and that the Respondent knew of the activity. The General Counsel also must
establish that the activity was a substantial or motivating reason for the employer’s action.
Motive may be demonstrated by circumstantial evidence. Thus, the pretextual nature of the
discharge may support an inference of discriminatory motivation. Shattuck Denn Mining Corp.
v. NLRB, 362 F.2d 466 (9th Cir. 1966); Active Transportation, 296 NLRB 431, 432 (1989), enfd.
mem. 924 F.2d 1057 (6th Cir. 1991); and Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982). If the General Counsel meets this burden, the employer then bears
the burden of showing that the discharge would have taken place even in the absence of the
protected conduct. Wright Line, supra at 1089. See also Manno Electric, Inc., 321 NLRB 278,
280 fn. 12 (1996).

Regarding the first element of the General Counsel’s Wright Line burden, establishing
that Traube engaged in protected concerted activity, I credit the testimony of John Boardman the
executive secretary-treasurer of UNITE HERE Local 25. Boardman testified that Traube played
a significant role in the union organizing campaign and was a “lead worker.” I also credit
Traube’s testimony that in that capacity he talked with the Hahn brothers as well as other
vendors about improving the working conditions at RFK. His testimony is consistent with the
documentary evidence. On May 5 Traube sent an e-mail to employee, and vendor, Danny Hahn,
rejecting a bonus plan proposed by the Respondent. Traube, who was out of the country, also
urged Hahn to contact Boardman to ascertain the status of the organizing campaign (GC Exh. 6).

The General Counsel established the Respondent’s general knowledge of union activity
from McDonald’s July 22 announcement that there would be a union meeting the following the
day. Specific knowledge of Traube’s involvement is evidenced by Haskett’s admission that
Traube, who he refers to as a friend and an employee, spoke with him about bringing in a union
for vendors at RFK at the start of the 2005 Nationals baseball season. McDonald also admits
knowing that Traube was openly predicting that the vendors would unionized.

McDonald’s unlawful statements, above, provide knowledge of Traube’s protected
activity, as well as establishing the requisite element of animus. Additional evidence of animus
can be inferred from the baseless and pretextual reasons offered by the Respondent as
justification for Traube’s discharge.

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1. Concourse sales and the altercation

McDonald initially testified that when he entered the Aramark office, the Aramark
Representative informed him that there had been an altercation between an Aramark concession
supervisor and a vendor, but that he was unaware of the details. When McDonald saw that
Traube was the vendor, he thought of the previous complaints the Respondent had received from
Aramark supervisors during April–July, and the first few days of August, about Traube selling
beer on the concourse. McDonald, cryptically told the Aramark Representative that “he’s been
warned.” The representative opined that as far as he was concerned Traube was out of there.
McDonald said he had “no problem with that” and proceeded to take Traube’s identification
badge, reconcile his accounts, and escort him from the stadium.

McDonald never told Traube the status of his employment during the evening of August
4. McDonald offers no explanation for not telling Traube, especially when he testified that he
was contemplating a suspension, at the minimum, from the outset. McDonald made no inquiry
of anyone regarding the altercation, or the circumstances preceding it. According to McDonald
such inquiries were unnecessary. McDonald was convinced, based on the prior reports of Traube
selling on the concourse, and his own 90-second observation of Traube selling in the same
approximate area, that he knew what happened. His entire assumption was predicated on
Traube’s selling on the concourse in violation of the Respondent’s written rule that “Vendors
must sell in the seating bowl at all times except during rain delay.” (R. Exh. 2, at 7.) His stated
belief is inconsistent with his testimony, and his actions.

McDonald admits, its rule notwithstanding, that in the interest of customer service,
vendors should comply with a patron’s request to buy beer. Moreover, McDonald concedes that
even on the concourse a vendor should serve all patrons who surround him as he serves the
initial customer. (Tr. 536.) In spite of the foregoing admission, McDonald took no action to
ascertain if Traube’s version of the incident was true. The fact that Traube may have previously
violated the rule is irrelevant to the question of whether, on that specific occasion, a customer
asked Traube for service. Other than contending that his disbelief was based on his judgment,
McDonald offered no explanation as to why he found that scenario to be so completely beyond
the realm of possibility.

McDonald also states that he condoned neither Traube’s selling on the concourse, nor his
responses when asked to move. Yet his testimony, as well as that of other Respondent witnesses,
demonstrates that condonation is exactly what he did. McDonald told every Aramark supervisor
who complained about Traube that “he would take care of it.” Yet he took no action other than
repeatedly telling Traube not to sell on the concourse. Furthermore, in contradiction of his own
testimony McDonald admits to condoning Traube actions because they were friends, and Traube
was an experienced, high volume, vendor.

A copy of the Respondent’s handbook for vendors at RFK is part of the record.
(R. Exh. 1.) McDonald testified that he read and was familiar with the handbook, which was
prepared by Haskett. McDonald stated that the rules (R. Exh. 2), which he drafted, are consistent
with the handbook. Under “Vendor Policies and Procedures” in the handbook is “No selling on
the concourse at any time.” At the bottom of the page is: “Violation of company policy will
result in disciplinary actions. (Verbal warning, one game suspension and or termination.).”

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It is undisputed that the Respondent verbally modified this “absolute rule” with its
“customer service exception,” which permits sales on the concourse pursuant to a request from a
customer, and any additional customers who thereafter assemble around the vendor. The
exception was admitted by McDonald (Tr. 534–536), and not disputed by Haskett, who along
with McDonald, was present during the entire hearing. Accordingly, I find that when McDonald
and Haskett say “selling on the concourse” they are referring to “setting up” and “hawking” beer
on the concourse. Conduct that Traube denies. I also find that the Aramark employees who
testified were unaware of any such exception. As such, I find that they complained to McDonald
even when Traube was engaged in a customer service sale as well as possibly “setting up” for
sales. In that regard, I find the record unclear as to whether any of them saw Traube doing
anything other than selling beer. Only one witness mentioned that “he had drawn a crowd
around himself to sell” (Tr. 338), which indicates that he was actively encouraging customers to
buy beer from him.

The Respondent did not follow its own published disciplinary procedure with regard to
Traube’s selling on the concourse, which it now advances as a reason for his discharge. The
Respondent never suspended Traube for selling on the concourse. Thus, to the extent that
Traube’s discharge is predicated on his selling on the concourse it is “inconsistent with its
progressive discipline.” Tubular Corp. of America, 337 NLRB 99, 99 (2001). Contrary to the
Respondent’s contention, this does not mean that “misconduct once tolerated at all must be
tolerated forever.” NLRB v. Eldorado Mfg. Corp., 660 F.2d 1207, 1214 (7th Cir. 1981). “An
employer's decision to enforce its rules more stringently in the future is within its discretion and
does not suggest discriminatory treatment.” (Citation omitted.) Camvec International, 288
NLRB 816, 821 (1988). The record contains no evidence that the Respondent changed, or had
made a decision to change, any aspect of its progressive disciplinary procedure.

McDonald refers to Traube’s selling on the concourse for over a 4-month period as
“chronic.” His diagnosis notwithstanding, McDonald avers that he did not terminate Traube for
selling on the concourse because he thought he would stop. (Tr. 462.) The Respondent could
not reasonably anticipate that Traube, of his own volition, would change behavior. The
Respondent had a procedure in place that could achieve its dual objectives of enforcing its rule,
and retaining an experienced and valued employee. When an employer, as here, deviates from
that system—without announcement or explanation—its conduct may properly be relied on to
infer union animus and as evidence of pretext. Tubular Corp., above; Norris/O’Bannon, 307
NLRB 1236 (1992). I am mindful that Board law does not permit an administrative law judge to
substitute his judgment with regard to the discipline imposed for that of the employer. Super
Tire Stores, 236 NLRB 877 fn. 1 (1978). Nevertheless, when, as here, it is alleged that the
reason assigned for the discipline is pretextual, attention must necessarily turn to the reaction of
the employer. American Petrofina Co. of Texas, 247 NLRB 183, 189 (1980).

The Respondent’s reliance, or lack thereof, on the physical altercation as a reason for
Traube’s discharge is obscure. When McDonald was initially asked by counsel for the General
Counsel for the specific reason for Traube’s discharge the physical altercation was not included
in his response. After noting that testimony, given only minutes before, counsel for the Charging
Party concluded that the altercation played no part in the discharge. McDonald responded “Sure
it did.” Yet when testifying at a later point in the hearing he again fails to mention the altercation
as reason for discharge. (Tr. 416.) McDonald offered no explanation for this apparent

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inconsistency in his testimony. Nor did McDonald apparently feel any need to explain or
acknowledge, the inconsistencies—some significant, some not—that abound in his testimony.

It is also during this phase in the questioning that McDonald inadvertently acknowledges
that he knew that Traube was selling on the concourse. As background, the following is
McDonald’s reason for believing that Traube was a liar and thus could never be believed.
Counsel for the Charging Party, in essence, has just asked McDonald why he never verified the
basis for his non belief:

Because the day that I caught him, probably about three weeks earlier than that,
when I actually made an effort to walk outside of the stadium and stand outside the door
where I knew that he was selling—where I knew that he would probably be selling, and I
stood and saw him out there for 90 seconds. Then he told me a lie, that a fan stopped
him, and I saw him right there serving several customers and yelling cold beer, cold beer.
[Tr. 54].

His Freudian slip acknowledging that he knew not only that Traube was selling on
the concourse but where, reinforces my previous finding of the Respondent’s long standing
condonation of Traube’s activity conduct.

McDonald admits that as soon as Traube started his version of the altercation by stating
that a fan stopped him on the concourse, McDonald “made a judgment” to not believe anything
Traube said, based on his 90-second observation set forth above. McDonald also admits that he
never confronted Traube, at any time, about his concern that Traube had lied to him on both
occasions. In fact, at no time did McDonald ever confront Traube with his belief that Traube
lied to him, let alone tell Traube that he no longer had any credibility with him. McDonald
claims that the closest he came to telling Traube that he did not believe him was when he told
Traube that he “wasn’t going to back him.” “That’s the closest I came to telling him that I did
not believe his story.” (Tr. 57.) Which is not close at all to specifically confronting him with his
disbelieve and the specific reason therefore. Moreover, when asked the exact same question by
the Respondent’s counsel the following day, McDonald avers that he told Traube that he did not
believe him. (Tr. 465.)

McDonald attempts to couple “selling on the concourse” with “the reported remarks that
he (Traube) made after being asked to move” along and concludes that as result “it culminated in
a fight.” The first problem with this testimony has previously been addressed—that Traube told
him that he was making a customer sale and that McDonald had no facts to the contrary.
Similarly, McDonald admittedly had absolutely no knowledge of any remarks reported or
otherwise from Washington, regarding anything said or done by Traube, before McDonald
discharged Traube. Thus, McDonald had no knowledge of the facts concerning the altercation or
any of the surrounding circumstances, and he undertook no investigation to acquire any
information.

The time for assessing responsibility for the altercation has long passed. The adversaries,
not surprisingly, each testified and cast blame on the other for initiating the conflict, each deny
using racial epithets, but averred being the recipient of same. Unlike the “real time” incident,
there were no third party witnesses. Regardless, McDonald found no need to resolve the
conflict, and neither do I.

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It is striking, however, that McDonald not only disbelieved Traube’s version, but
assumed a completely opposite view, without any attempt at verification of his assumed belief.
This conduct is even more disturbing considering the physical disparity between Washington and
Traube. Washington is not only at least 8 inches taller than Traube, with commensurate reach,
but is obviously in far superior physical condition. I acknowledge that physical attributes,
regardless of how disparate, are not always valid predictors of outcome. On the night of the
incident, however, McDonald could not help but see Washington, literally looming over him,
and McDonald is taller than Traube. In addition to the foregoing, I also find, based on the
obvious physical characteristics of the participants, (and without deciding who initiated the
physical altercation), that McDonald did not have a reasonable good-faith belief that Traube
initiated or caused the physical altercation.

McDonald also testified that this was the first physical altercation between a vendor and a
concession manger during his 30 years of experience. With that testimony in mind I have
considered the record in light of the possibility that the Respondent was applying a draconian
rule requiring discharge for all physical altercations regardless of fault, somewhat akin to strict
liability in tort. I found nothing in the handbook concerning altercations and the record contains
no testimony regarding past physical altercations. Nor has the Respondent advanced that
contention in its brief. It also seems probable that had the Respondent applied such a rule, it
would have specifically told Traube that was the sole reason for his discharge, rather than an
“inappropriate comment” made to a commissary manager, and shortages in a commissary room.

Based on the foregoing I conclude find that the Respondent has no absolute rule requiring
discharge for engaging in physical altercations regardless of fault, nor did it discharge Traube
pursuant to such a rule.

In Diamond Electric Mfg. Corp., 346 NLRB No. 83, (Slip op. at 4)(2006), the Board
stated:

“[F]ailure to conduct a meaningful investigation or to give the employee who is the
subject of the investigation an opportunity to explain” may, under appropriate
circumstances, constitute an indicia of discriminatory intent [citation omitted.] The
Board has considered this factor in several recent cases to find discharges unlawful where
employees were denied the opportunity to provide a potentially exculpatory explanation
prior to being discharged. [footnote omitted.]

Not only did the Respondent fail to conduct an investigation it did not avail itself of the Aramark
investigation, nor did it attempt to obtain the police report. Traube located a witness and there
were obviously others, most of whom would probably be neutral third parties. If McDonald was
truly convinced of his assumption, what better way to have it affirmed than with the statements
of disinterested eyewitnesses. McDonald’s actions bring to mind the old saw “my mind is made
up, don’t confuse me with the facts.”

Based on the foregoing, I find that the Respondent's failure to conduct any investigation
is an indicia of discriminatory intent. I also find that it’s failure to investigate under the above
circumstances is evidence that the Respondent’s alleged “belief,” which it used in lieu of an
investigation, is not a reasonably held good-faith belief but is, instead, strong evidence of pretext.

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In any case the suspension of Traube on the evening of August 4 generated memory
bubbles in the minds Anthony Coleman, and subsequently McDonald, that can only be described
as serendipitous.

2. Coleman’s testimony

Coleman is the cashier for the commissary in room 327, and Linda Floyd is the
commissary inventory manager. The commissary in room 327 is also where Traube was
assigned to buy his beer. Coleman and Floyd were working in room 327 the night of the
altercation. Coleman remembers that the incident occurred before they were assigned to work
out of the commissary in room 501. Here is how he describes his revelation on direct
examination:

Actually I think that’s the night when I told him, that night, that it was either that
night or the next night. I think it was that night, you know, once I found out about it, I
said let me tell you what this guy [Traube] said to me and Linda, you know, and that
happened a couple of weeks beforehand. I felt kind of dumb. I didn’t want to tell him
but once that happened, I was like, look, he’s been doing this for four or five years. He’s
not a new kid on the block. He knows not to sell out on the concourse but if he wanted to
be arrogant about that, and he was arrogant when he came in to even to look at, you
know.

[He continues with McDonald’s response.]

Dave’s response was like, from what I recall was okay, I’ll handle it. That’s
what—I don’t remember him being upset about it or not being upset, he was like, okay,
thank you for telling me. [Tr. 378.]

Coleman claims that Traube’s statement was made within 5 or 6 weeks after he began working
for the Respondent in late April. That would place the incident around mid-June, at the latest.
This would be at least 2 weeks before July, when Traube remembers making a jocular comment
about Floyd running a tight ship.

The following is Coleman’s description to McDonald of either Traube’s jocular comment
that was made in July, or of an entirely different incident which happened at least 2 weeks
earlier:

Well, Fred had come in there, he was totally brazen about it, and had told me and
Linda, I mean I was new doing this, and she was new, too, and he came down to the room
and said, you know, this was the room to come down to. All the vendors knew it, he said
you guys don’t know what the hell you’re doing. So, you know, we could get away with
stuff down here, you know, and there were many nights when Linda and I would sit there
until 12:00, 1:30 in the morning, you know, trying to find a case of beer, two cases of
beer that are missing, you know. She’s looking after me, I’m trying to after her happen
[sic]. How does this happen every night. He [Traube] came down and he was brazen
about it. I mean he just sat right there and looked at me and it was like this is the room

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that you came down to because you guys didn’t know what the hell you were doing, so
we came down here to try to get it, you know. [Tr. 376.]

McDonald confirms that he first heard about Traube’s alleged comment from Coleman
on the evening of August 4. What follows is his explanation of how it happened:

When, you know, of course, something like that happens, it’s a rarity, so people
start talking. So it was like oh, yeah, you heard what he said to Linda, right? And
I said no. And then Linda told me the remark that he made, which was something
to the effect of, you know, yeah, we miss the old Linda. You know, we can’t get
you anymore. The early part of the season, you know, it was like yeah, go to
Linda. He [Traube] said now we can’t get you anymore. [Tr. 44–45.]

Later, after hearing Coleman’s testimony, McDonald acknowledges that it was Coleman
from whom he first heard the story. He explains why he found the story believable:

I believed [the story] because I had actually been—I counsel the managers and the
cashiers if they have losses and basically go over the procedure and the controls
on how that will not happen again. And by that time, the season, by August—
Linda was catching on and had pretty much got it, so that comment was true, that
the beginning of the season she was getting beat and it kind of leveled off toward
the end, so I thought there’d be an accurate comment, an inappropriate comment
and a comment that just kind of further fueled my suspicions of Fred Traube
being involved in this theft. [Tr. 478.]

I do not believe either McDonald’s or Coleman’s testimony regarding their conversation
and Floyd, for some unexplained reason, did not testify. (Tr. 419.) If Coleman was referring to
the incident that Traube testified about, on some unknown date in July, then Coleman’s
testimony is a total distortion. If Coleman is testifying about another incident, it is a complete
fabrication. To be clear, Coleman swears that Traube and other vendors were stealing from the
commissary located in room 327. On cross-examination counsel for the General Counsel
established that Coleman did not know what “stuff,” Traube was allegedly saying the vendors
could get away with. The inference being that “stuff” could mean staying longer than necessary
in the commissary room. When the counsel for the General Counsel intimated that Coleman
merely arrived at his own conclusion, Coleman, becoming visibly upset, replied, “No, no, no.
I’ll tell you exactly . . . what he—and there was really no inference, like the word was, this is the
room to come down here to because you guys don’t know what you’re doing and we can get
away with stuff down here with you.” (Tr. 381.)

Coleman was a singularly unimpressive witness. In addition to his poor demeanor he
admits exaggerating his testimony, and having a bias against Traube, who he considered brazen
and arrogant. He testified that he and Linda stood beside each other and worked together for the
entire season, sometimes under stressful circumstances—yet he did not know her last name. His
testimony was inconsistent with other credited testimony and documentary evidence. He was an
unusually enthusiastic witness, at least when testifying for the Respondent. He appeared to enjoy
testifying against Traube, and in support of the Respondent's cause. While testifying on direct
examination, I observed him making furtive glances toward McDonald, in almost a fawning
manner, as if seeking McDonald’s approval.

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Coleman claims not to know when Traube made the statement which he conveyed to
McDonald. He does recall that he was new and had only been working as a cashier for 5 or 6
weeks. If that is correct, the incident Coleman relates happened in mid-June, not July which is
when Traube remembers making his comment. It would also detract from McDonald’s rationale
for believing that the statement was true because the shortages “kind of leveled off toward the
end” of the season. Regarding McDonald’s contention “kind of leveled off” is ambiguous. It
does not necessarily mean that the shortages were substantially less than in the beginning of the
season. At most it indicates that the amount that the Respondent was “getting beat” had not
changed for a period of time. The Respondent apparently maintained sales records that should
have substantiated McDonald’s claim, but those were never offered into evidence. In either case,
and of even more importance, Coleman waited somewhere between over a month and a half
(according to Coleman’s estimate from mid-June to August 4) or at least a week, (according to
Traube’s more specific testimony that he made his comment sometime in July) before telling
McDonald. And even then Coleman claims that it was the incident involving Traube on August
4 that, incredibly, somehow triggered Coleman to tell McDonald what was tantamount to a
confession by Traube.

Traube clearly had a passion for being a vendor, especially at baseball games. His
demeanor when testifying about his job makes it difficult to believe that he would risk losing
something that gave him great pleasure, in exchange for however much he could get for selling
stolen cases of Miller Lite (McDonald claims the total lost was $1800). That being said, I find it
even more unbelievable that having successfully “beaten” rookie commissary employees Floyd
and Coleman, for over half the season, he somehow feels compelled, to not only brag to them
about this accomplishment, but to also implicate his fellow vendors. Coleman’s statement that
“all vendors” were virtually lining up at commissary room 327 to “get away with stuff” is
inconsistent with Traube’s uncontested testimony that vendors are assigned commissary rooms
(Tr. 71). This prohibition is also contained in the Respondent’s handbook, in bold print under
“Vendor Policies and Procedures.” (R. Exh. 1.)

Coleman did not hesitate to place blame on Traube even when Coleman admittedly was
not present when the alleged incident occurred, and the alleged statement was inconsistent with
all the other evidence of record. Coleman claims that “Linda,” who did not testify, told him that
Traube went to commissary room 501 and commented “like, oh you’re up here now. Let me go
to where you are.” (Tr. 379.) Coleman placed the time frame for this comment as after he and
Linda moved to the commissary in room 501. That move occurred after August 4, which was
the last day Traube worked in RFK, and thus would have absolutely no reason to try and “beat”
Linda, or to remind her that he had done so.

The testimony as well as the employee handbook establishes that the employees who are
primarily responsible for all cash and inventory shortages in any commissary room are the
cashier and inventory manager. In the commissary in room 327, those positions were occupied
by Coleman and Floyd, respectively. Certainly, under the circumstances, this fact alone provides
ample motive for Coleman’s mendacious testimony.

It is possible that Coleman fabricated his baseless scenario without prior consultation
with McDonald. Possible but not plausible. Certainly it is evident that McDonald was again a
willing listener for any evil doing attributed to Traube. When viewed in conjunction with

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McDonald’s previous conduct, his statements prior to and on the evening of August 4, his
conduct following Coleman’s tale, and Traube’s discharge, I am convinced that Coleman’s story
was fabricated in collaboration with McDonald.

I also have a jaundiced view of McDonald’s testimony and conduct regarding the
information he so readily accepted from Coleman. Just as I discredit Coleman’s statement as to
why he approached McDonald on the evening of August 4, I do not completely accept
McDonald’s reasoning that “people talk” after an incident such as the altercation. I agree that
“people talk,” but I see no connection between selling on the concourse and the altercation, with
Coleman finally informing McDonald what he alleges Traube said to him and Floyd. I also
observe that the incident did not have the same impact on Floyd. The record does not establish
that she somehow felt the need to talk with Coleman or McDonald about Traube. Ugboaja was
absent on the August 4, but even after he learned of the incident 2 days later, he did not remind
McDonald of the “theft in progress” that McDonald believes he interrupted. Indeed, McDonald
indicates that it was not until Coleman provided him with the final piece of the puzzle—Traube’s
admission—that he was able to connect the dots and confirm his suspicion.

I find even stronger evidence of collusion in what McDonald failed to say and do.
McDonald offered no evidence that he asked even one follow-up question after initially asking
Coleman, and then Floyd, to tell him what Traube was alleged to have said. He did not ask why
vendors were “beating” him in a commissary room to which they were not assigned. He did not
ask the names of those vendors. He did not ask when Traube made the statement. He did not
ask why they thought Traube would make such an admission. He did not ask the most important
and most obvious question—why Coleman waited to report Traube’s admission and why Floyd
never felt that it was necessary to make a report at all.

To accept that there was no collusion is to believe that McDonald accepted, on face
value, the statements of the prime suspects—without question or hesitation—and that I am
unwilling to do. Once again McDonald “finds” confirmation of his preconceived notions.

3. Ugboaja’s testimony

Another of McDonald’s beliefs is that he interrupted a theft in progress. This perception
is based on Ugboaja’s testimony. Ugboaja is an experienced, high volume vendor, who sells
Miller Lite, and works out of the commissary in room 327. He and Traube testified that they sell
Miller Lite because of it’s popularity. They are competitors, in what appears to be a highly
competitive job.

I find Ugboaja’s concern about the case of Miller Lite near Traube puzzling. Ugboaja
testified that it was a hot day and beer was selling well. He was buying and selling two cases at a
time, as the Respondent encourages vendors to do. (R. Exh. 2.) As Ugboaja entered the
commissary in room 327 to buy more Miller Lite, he noticed Traube icing down a case of Miller
Lite. This was not unusual because Traube and Ugboaja both sold Miller Lite. Ugboaja also
noticed another case of Miller Lite in proximity to Traube. A reasonable assumption would be
that Traube was going to ice the second case after he finished icing the first. This assumption
becomes almost a certainty if, as Ugboaja further testifies, only he and Traube were selling
Miller Lite that day. It is uncontested that the Respondent assigns approximately 12 vendors to a
commissary room and they are not allowed to switch. It follows that, absent some unusual

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circumstance, any case of Miller Lite that is beyond the commissary counter, if not Ugboaja’s
must be Traube’s. I see nothing wrong with that picture and there is absolutely no reason for
Ugboaja to make a general announcement asking who owns the case on the floor.

Ugboaja makes the announcement and he does so because his testimony that there were
only two vendors selling Miller Lite on that day is incorrect. A perusal of the Respondent’s
records (R. Exhs. 15B–S) rarely shows fewer than two vendors selling any brand of beer, and
never less than three vendors selling Miller Lite, and frequently more. Having more than two
vendors is also consistent with Ugboaja’s testimony, as well as Traube’s, that Miller Lite is one
of the most popular brands on any day, and this would be especially true on a hot day. This
explains why Ugboaja made his announcement asking who owns the case, to the entire room.
Although Ugboaja testified that the unclaimed case was “in front of Fred,” such phraseology,
without more, does not mean that the beer was not also in front of, or near, another vendor, i.e.,
between two vendors.

McDonald enters on what he considers to be a “theft in progress.” The use of that phrase
generally indicates that the thief is still present. If that is McDonald’s understanding his reaction
can best be described as unconcerned. He apparently is clueless as to what, if anything, is
occurring. The total extent of his investigation is to ask the commissary crew, presumably
Coleman and Floyd, “How did it get over there?” Rather than “who stole this beer,” a more
appropriate response for someone who truly believes they have interrupted a theft in progress.
The fact that none of the people in the room claimed ownership of the case, does not mean that
they were without knowledge of how the case got to its current resting place, from its previous
location behind the commissary counter. McDonald asks no questions.

I credit Ugboaja’s testimony that at some point in time there was an unclaimed case of
Miller Lite in commissary room 327. I note that even a most rudimentary inventory system
would have disclosed if the case had been stolen or purchased The Respondent offered no
records to demonstrate that a theft occurred, or even that commissary in room 327 was unable to
reconcile its accounts for that day. Presumably this is because McDonald was not sufficiently
concerned with the “theft in progress” to even bother noting the date. The Respondent claims
that it is frequently being “beaten” by the theft of cases of Miller Lite from commissary in room
327, but not once does the Respondent undertake any credible investigatory or preventative
measures consistent with its contention.

Assuming that the case was stolen, I find no evidence that Traube had anything to do
with the theft. Ugboaja admits that he never saw Traube touch the case. Neither Ugboaja nor
McDonald questioned or confronted Traube. Ugboaja initially tended to slant his testimony to
place the Respondent’s position in the best light, and Traube’s in the worst, rather than
objectively report the facts. I am uncertain whether this was because of a professional rivalry
with Traube, or if he was intimidated by McDonald, who was present when he testified. In any
case his opinion is not fact. McDonald has established no reason to believe that Traube had
anything to do with the unclaimed case of Miller Lite and his actions are consistent with that
finding, and in no way are they actions of an individual who honestly believes that he has walked
in on a theft in progress.

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4. Unacceptable variances
`
Based on McDonald’s description of how a vendor “steals” a case of beer from the
Respondent, it is readily apparent that the theft requires, at the very least, the cooperation of the
inventory manager, either by design or accident, and possibly the cashier. According to
McDonald, the vendor buys two cases of beer three or more times in a row. The next time the
vendor buys one case, but the manager, conditioned to giving him two cases, continues to do so
and the vendor sells his “free” case and pockets the proceeds. Clearly this method of stealing is
nothing more than the combination of an individual who is inclined towards dishonesty, with a
careless manager.

The procedure for buying product in the commissary is not in dispute. The vendor orders
and pays the cashier. The cashier counts the money and issues a perforated commission ticket.
The inventory manager, who stands beside the cashier, is presumably watching the transaction.
The cashier gives the manager half the receipt and the vendor the other half. The inventory
manager instructs the support staff to get the beer from the cooler and give it to the vendor. The
procedure appears, on its face, to be too slow to develop a rhythm of sufficient rapidity so as to
honestly overlook a case of beer, at least on anything like a regular basis. Certainly in order to
make the outcome more predictable it would help to recruit the inventory manager, and to make
it even more foolproof, the cashier, as conspirators.

Because the cost of a case of beer is the constant, any shortage attributable to cases of
beer must be in multiplies of $144. McDonald’s agreement, notwithstanding, he claims that the
Respondent lost $1800 as the result of Traube’s alleged thievery. McDonald testified that he
arrived at $1800 by multiplying $144 by the number of the times he “suspected that Fred may
have done this.” (Tr. 527.) Not only is 1800 not a multiple of 144, but significantly McDonald
admits, well after he discharged Traube, that his decision was based solely on suspicion.

Moreover, the Respondent presents no documentary evidence from which to conclude
that McDonald had any legitimate reason to suspect Traube. The extent that the Respondent
relies on its records as validation for its suspicion is entirely set forth in footnote 20 of its brief:

McDonald testified that he reviews the inventory/cash reconciliation after every game
and was aware, prior to Charging Party’s termination, that there were many instances of
unacceptable variances out of Room 327 (Tr. 511, 519-20, 532). General Counsel Ex.
15(a)–15(s) and Respondent Ex. 13 contain records of three different three game series
which reflect sales trends that caused McDonald to be suspicious of Charging Party’s
sales activity in the middle game of each three game series (Tr. 500-10).

Of all the reasons put forth by the Respondent for discharging Traube, there was never any claim
that he was responsible for every variance in room 327. And yet the records supplied by the
Respondent that are alleged to have been reviewed by McDonald, are not even segregated by
individual commissary rooms, but instead are combined totals for all commissary rooms. The
“Commission Slip Audit” reflects only the number of units sold by the individual vendors.
Traube was a superior vendor and there is no contention that there is any problem with his
productivity. McDonald never inquired of Traube why, in McDonald’s opinion, Traube’s sales
were below McDonald’s expectations for any given day. As stressed by counsel for the General
Counsel in her brief, on June 3 Traube sold six cases of beer, an amount that McDonald found

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suspicious. William Pow, the top sales vendor, also sold six cases. McDonald contends that on
days Traube’s sales do not meet McDonald’s undeclared expectations, Traube must have spent
his time selling stolen cases of Miller Lite. McDonald offers no explanation for Pow’s identical
sales numbers. He asked neither vendor for an explanation, nor is there any evidence that he
considered common denominators, such as attendance and weather, before going directly to his
assumption about Traube.

Significantly McDonald did no audit, nor reviewed any documents before he discharged
Traube for “beating” him by stealing cases of Miller Lite. He claims that cases of Miller Lite
were stolen and that Traube was “suspected of being the culprit” but that he never confronted
Traube with his suspicion. McDonald claims that the information provided by Coleman caused
him to change Traube’s status from suspect to perpetrator. I fully credit Traube’s testimony
concerning the statement he made to Floyd. Also, given my finding that McDonald and
Coleman dissembled, I specifically reject their testimony that Floyd, who did not testify,
corroborated Coleman’s statement.

5. Haskett’s testimony

I also do not credit Haskett’s testimony that he too “had a couple of suspicions” that
Traube was a thief. The first incident allegedly occurred before Haskett actively recruited
Traube to work for the Respondent. The second, allegedly occurred while Traube was employed
by the Respondent. Incredulously, Haskett states that he is not sure if he told McDonald about
either incident. Surely, if Haskett had a good-faith suspicion about Traube he would have, at the
very least, told McDonald that his suspicions had also been confirmed after McDonald informed
him he was going to discharge Traube for theft. It also stains credibility to imagine that
McDonald would not mention any “additional suspicions” entertained by Haskett when
testifying.

Regardless of any real or imagined suspicions, Haskett told Traube that “he never had
any problem” with him, before rehiring Traube. Not only do I credit Traube’s testimony on this
matter, I note that Haskett was in the hearing room when Traube testified, and did not refute his
testimony. Haskett therefore did not have a problem with Traube selling on the concourse. He
also either did not have a problem with Traube “beating” him (Haskett is a co-owner of the
Respondent) for cases of Miller Lite, or what is far more likely, he did not believe that the
accusation was true. I find the latter. Haskett rehired Traube shortly after McDonald discharged
Traube—for theft. A fact known to Haskett.

Haskett’s testimony and conduct in rehiring Traube appears to be inconsistent with the
actions of a person who honestly believes in the validity of the discharge. Traube was
discharged for stealing, denied any guilt, offered no apology, and was contesting the discharge.
Haskett avers that Traube was rehired so he could smooth things over with McDonald. I find
Haskett’s statements incredible, and additional evidence from which to conclude that the reasons
advanced by the Respondent are not the real reasons for Traube’s discharge.

The Respondent’s failure to investigate the alleged reasons for Traube’s discharge
demonstrate that those reasons were not determinative in the decision, and that the discharge
would occur without regard to the viability of the alleged reasons. Moreover, the Respondent
never confronted Traube about any of the issues that it now presents as reasons that allegedly

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lead to his discharge. Thus, Traube was “denied the opportunity to provide potentially
exculpatory” explanations before being discharged. Diamond Electric Mfg., Corp, 346 NLRB
No. 83, slip op. at 6 (2006); Sociedad Española de Auxilio Mutuo y Beneficencia de P. R., 342
NLRB 458, 460 (2004), enfd. 414 F.3d 158 (1st Cir. 2005).

The Respondent also argues that the Hahn brothers, who it describes as “individuals
identified as union organizers” continued employment with the Respondent, mitigates against a
finding of union animus. The Respondent cites no specific transcript page where the Hahn
brothers are identified as “union organizers,” and I am aware of none. Although the Hahn
brothers were active in the organizing campaign, Traube was the only employee identified as a
“lead worker.” (Tr. 214.) Regardless, I find the argument without merit. The Board and the
courts have long held that a finding of discriminatory motive “is not disproved by an employer’s
proof that it did not weed out all union adherents.” E.g., American Petrofina Co. of Texas, 247
NLRB 183, 193 (1980); Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir. 1964).

In addition to the foregoing, the General Counsel urges that I find that the Respondent
presents shifting reasons for Traube’s discharge. Shifting reasons have long been held to be a
clear indicium of discriminatory or unlawful intent. E.g., C. D. S. Lines, Inc., 313 NLRB 296,
300 (1993). I agree that the Respondent’s statements have made it difficult to ascertain the
specific reasons it alleges for discharging Traube. I observe that the Respondent’s counsel
appears to have the same problem. Thus, at one point the following reasons are given:
“suspected theft, repeated violations of work rules related to selling on the concourse, and the
physical altercation.” (R. Br. at 16.) Shortly thereafter, the decision to terminate is “based on (i)
Charging Party’s repeated violation of the rule against selling on the concourse, which
culminated in the fight on August 4, and (ii) suspected theft, which was based on the time
McDonald stopped a theft in progress, the comment Charging Party made to Coleman and Floyd,
and cash variances out of Room 327.” (R. Br. at 17.)

I am of the opinion that the Respondent has added reasons, “the most important being the
confirmation of [McDonald’s] suspicion about Traube stealing from the Company” (R. Br. 33),
rather than shifting from previously espoused positions.

I also find, in agreement with counsel for the General Counsel, that all of the reasons
advanced are similar. Each is baseless and pretextual—designed to conceal an unlawful motive.
I find that the Respondent took opportunistic advantage of the fortuitous altercation, in order to
rid itself of a “lead worker” in the union organizing campaign. It took this action less than 2
weeks after the Union held its one and only meeting with the employees. Based on the
foregoing, and the record as a whole, I find that counsel for the General Counsel has met her
burden. I also find that every reason advanced by the Respondent for discharging Traube is a
pretext. A finding of pretext defeats any attempt by the Respondent to show that it would have
discharged Traube absent his union and protected concerted activities. “This is because where
the evidence establishes that the reasons given for the Respondent’s action are pretextual—that
is, either false or not in fact relied upon—the Respondent fails by definition to show that it would
have taken the same action for those reasons, absent the protected conduct, and thus there is no
need to perform the second part of the Wright Line analysis.” Rood Trucking Co., 342 NLRB
895, 898 (2004) (internal quotation omitted) (citations omitted).

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The evidence set forth above shows that the Respondent knew of Traube’s involvement
in union and protected concerted activities, and that the Respondent’s asserted reasons for
discharging him are pretextual and designed to disguise its unlawful motivation. Accordingly, I
find that Traube’s discharge violates Section 8(a)(1) and (3) of the Act.

B. The 8(a)(3) and (4) Allegations

The complaint also alleges that the Respondent violated Section 8(a)(1), (3), and (4) of
the Act when it discharged Traube Error! Not a valid link.M&T Bank (Ravens) Stadium
operation on
September 11.

There is no dispute that McDonald discharged Traube on September 11. According to
McDonald, as soon as he got within earshot he said “Fred Traube, you’re not working.” Despite
the Respondent’s arguments to the contrary, Traube was an employee of the Respondent when
he was once again discharged by McDonald. The discharge was simply a continuation of the
Respondent’s unlawful conduct that began on August 4, and was only momentarily interrupted
by Haskett’s rehiring of Traube on September 1. Accordingly, it would serve little purpose to
reiterate the Wright Line findings explicated above. Based on those findings, I find that the
Respondent violated Section 8(a)(1) and (3) of the Act when it again discharged Traube on
September 11 because of his union and protected concerted activities.

McDonald additionally acknowledges that he told Traube, once or twice, that “I’ll see
you at the hearing.” Based on the foregoing admission, the complaint alleges that the
Respondent also violated Section 8(a)(1) and (4) of the Act.

Section 8(a)(4) prohibits an employer from discharging or otherwise discriminating
against an employees for filing charges or giving testimony under the Act. To establish a
violation, the General Counsel must produce evidence, either directly or by inference, that the
employer took some adverse action against Traube, and that the adverse action was motivated by
the filing of the charge. Wayne W. Sell Corp., 281 NLRB 529, 534 (1986). Violations of
Section 8(a)(4) are analyzed using the Wright Line methodology, above. McKesson Drug Co.,
337 NLRB 935, 936 (2002).

Counsel for the General Counsel argues that because McDonald told Traube that he
would see him at the hearing, immediately after discharging Traube, this remark provides a
strong inference that McDonald discharged him because he filed the unfair labor practice charge.
I agree. The Respondent argues; that Traube was not an employee on that day and thus there can
be no retaliation for filing the charge. I reject that argument as being without merit. In the
alternative, the Respondent argues that there is no evidence that McDonald knew of the unfair
labor practice charge on September 11 and thus McDonald was thinking of some other hearing,
other than the NLRB hearing.

Lawrence Sherman, Traube’s counsel, credibly testified that he filed two charges against
the Respondent and Aramark as joint employers on August 29. (Tr. 581, GC Exh. 21.) He
mailed the charges to the Respondent’s business addresses at RFK and a post office box in
Baltimore. Additionally, because he did not have a fax number for the Respondent he faxed
copies of the charges to RFK in care of Costa of Aramark and requested that the charges be

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given to the Respondent. The charges were never returned to Sherman as “undelivered” mail.
Lite Flight, Inc., 285 NLRB 649, 650 (1987) (failure of ordinary mail to be returned indicates
service).

Counsel for the General Counsel also argues that McDonald’s testimony, contending that
he was referring to some type of possible future employment related hearing, is incredible and
unworthy of belief. Counsel for the General Counsel, more specifically, argues that McDonald
testified under oath in a Board affidavit signed on October 26, that when he discharged Traube
from Ravens Stadium on September 11, he told Traube he would see him at the hearing because
he received notice of an NLRB charge on or about August 29. (Tr. 496.)

The following colloquy is between McDonald and Respondent’s counsel after McDonald
was asked why he signed the Board affidavit, containing the language set forth above:

Q. Why did you sign the statement with that language?
A. Because I think the guy [the Board agent] was asking me, and I think he
pointed to—he had papers all over the desk and I think he pointed to—and I think I said
yeah, but it was—as I look at it now and I see the date, August 29th, that’s not correct.
Q. But you read this statement before you signed it. didn’t you?
A. Yeah, all 12 pages.
Q. And in fact, right above your signature it says, I read this statement consisting
of 12 pages, including this page. I fully understand its contents and I certify it as true and
correct to the best of my knowledge and belief.
A. Yeah, I sure did—but to be honest with you, I really didn’t think this thing, and
I still don’t think. you know, that it’s—as far as what I know about Fred and things that
happened and I guess I should’ve been a little bit more careful. (Tr. 496–497.)

I find the forgoing to be another example of McDonald’s lack of veracity. Accordingly, I
find that counsel for the General Counsel has met her burden and that the Respondent has
violated Section 8(a)(1) and (4) of the Act, as alleged in the complaint.

CONCLUSIONS OF LAW

1. The Respondent, All Pro Vending, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

2. By the following acts and conduct the Respondent violated Section 8(a)(1) of the Act:

(a) Impliedly threatening to not reinstate employee Frederic A. Traube because of his
protected concerted activities.

(b) Telling employee Frederic A. Traube that he was not allowed to engage in union
and/or protected activities at work.

3. By the following acts and conduct the Respondent violated Section 8(a)(1) and (3) of
the Act:

(a) By suspending and later discharging employee Frederic A. Traube on August 4, 2005,

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because of his union and protected activities.

(b) By discharging employee Frederic A. Traube on September 11, 2005, because of his
union and protected activities.

4. By the following acts and conduct the Respondent violated Section 8(a)(1) and (4) of
the Act:

(a) By discharging employee Frederic A. Traube on September 11, 2005, because he filed
an unfair labor practice charge with the National Labor Relations Board.

5. The foregoing unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.

REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent, having discriminatorily discharged employee Frederic A. Traube, must
offer him reinstatement and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

The record reflects that the Respondent only maintains a post office box in Baltimore,
Maryland. It apparently has the use of commissary rooms at RFK and Ravens Stadium but using
those venues makes the notice posting dependent on the season. Additionally, because the work
is seasonal, employee turnover may be high. Accordingly, although not requested by the counsel
for the General Counsel, I shall recommend that the Respondent be ordered to mail the notice to
all employees employed at either location, since August 4, 2005.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
2

ORDER

The Respondent, All Pro Vending, Inc., Baltimore, Maryland, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

2
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.

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(a) Impliedly threatening to not reinstate employees because of their protected concerted
activities.

(b) Telling employees that they are not allowed to engage in union and/or protected
activities at work.

(c) Suspending and discharging its employees because of their union and protected
activities.

(d) Discharging employees because they have filed unfair labor practice charges with the
National Labor Relations Board.

(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer Frederic A. Traube full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Frederic A. Traube whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him in the manner set forth in the remedy section of the
decision.

(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful suspension and discharges, and within 3 days thereafter notify the
employee in writing that this has been done and that the unlawful suspension and discharges will
not be used against him in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, mail copies of the attached notice marked
Appendix,
3 at its own expense, to all current and former employees who were employed as

3 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Mailed by Order of the National Labor Relations Board” shall read “Mailed
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”

Continued

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vendors by the Respondent at RFK or Ravens Stadium at any time from August 4, 2005, the
onset date of the unfair labor practices found in this case. The notice shall be mailed to the last
known address of each of the employees after being signed by the Respondent’s authorized
representative.

(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C. December 27, 2006

____________________
John T. Clark
Administrative Law Judge

_________________________

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APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL labor RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT impliedly threaten to not reinstate you because of your protected concerted
activities.

WE WILL NOT tell you that you are not allowed to engage in union and/or protected activities at
work.

WE WILL NOT suspend and discharge you because of your union and protected activities.

WE WILL NOT discharge you because of your union and protected activities.

WE WILL NOT discharge you because you have filed unfair labor practice charges with the
National Labor Relations Board.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order, offer Frederic A. Traube full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

WE WILL make Frederic A. Traube whole for any loss of earnings and other benefits resulting
from our unlawful action against him, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful suspension and discharge, and within 3 days thereafter notify Frederic
A. Traube in writing that this has been done and that the unlawful suspension and discharge will
not be used against him in any way.

ALL PRO VENDING, INC.

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(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.