Ambassador Services, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 2012

358 N.L.R.B. 1172 (N.L.R.B. 2012)

1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 130

Ambassador Services, Inc. and International Long-
shoremen’s Association, Locals 1922 and 1359,
AFL–CIO and Eric Swanson, Party in Interest.
Cases 12–CA–026758, 12–CA–026759, and 21–
CA–026832
September 14, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On September 13, 2011, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a reply
brief, and an answering brief to the Acting General
Counsel’s cross-exceptions. The Acting General Coun-
sel filed cross-exceptions, a supporting brief, and an an-
swering brief to the exceptions.
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,1 and conclusions,

1 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.
For the reasons stated by the judge, we adopt his findings that: (1)
employee J.D. Martin was not a supervisor; (2) Supervisor Donald May
violated Sec. 8(a)(1) by telling an employee he had assisted in the prep-
aration of the decertification petition and by soliciting Martin’s support
for the decertification petition; and (3) it is unnecessary to address the
applicability in this case of the Board’s successor bar holding in UGL-
UNICCO Services., 357 NLRB 801 (2011).
We agree with the judge that the Respondent’s refusal to recognize
and bargain with the Union was unlawful for two distinct reasons: the
Respondent’s reliance on a decertification petition that was tainted by
Supervisor May’s unfair labor practices (discussed above), and the
Respondent’s failure to prove the Union’s actual loss of majority status.
Regarding the former, we rely only on the unfair labor practices found
to taint the petition, and we do not pass on other circumstances cited by
the judge.
Member Hayes finds it unnecessary to pass on the judge’s finding
that the Respondent unlawfully failed and refused to recognize and
bargain with the Union on the basis of a tainted decertification petition.
He would instead find the violation based solely on the Respondent’s
failure to establish the Union’s actual loss of majority status.
There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by maintaining an unlawfully broad no-solicitation
rule and by informing an employee that solicitation and distribution on
the Respondent’s property were prohibited. There are also no excep-
tions to the judge’s dismissal of allegations that the Respondent violat-
ed Sec. 8(a)(1) by permitting employees to circulate a decertification
petition during working time in working areas, instructing employees to
report union activity, and threatening them with removal from the
premises if they distributed union literature, and that the Respondent
except in the two instances discussed below, and to adopt
the judge’s recommended Order as modified and set
forth in full below.2
1. Contrary to the judge, we find that the Respondent
violated Section 8(a)(1) of the Act by unlawfully interro-
gating employees about their union sympathies. Em-
ployee J. D. Martin testified that around mid to late May
2010, Supervisor Donald May told him that the Re-
spondent had received correspondence from the Union
demanding recognition and asked Martin where he stood.
Martin informed May that he attended all the union
meetings and wished to remain informed in the event that
there was a vote, and that his vote would not be influ-
enced by either a company or union spokesperson.
The judge found that the Respondent’s questioning of
employee Martin was not coercive. We disagree. In
doing so, we note that May was both a high-level man-
agement official and the son of one of the company’s
owners. Furthermore, Martin’s union sympathies were
unknown at the time of the interrogation, and May effec-
tively asked Martin if he supported the Union. Under the
totality of the circumstances, we find the interrogation
coercive. See Rossmore House, 269 NLRB 1176, 1178
fn. 20 (1984), affd. sub nom. UNITE HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).3
2. We also reverse the judge’s finding that the Re-
spondent did not violate Section 8(a)(1) by maintaining a
work rule prohibiting “walking off the job and/or leaving
the premises during working hours without permission.”
The Respondent argued, and the judge agreed, that the
rule is justified to ensure that supervisors knew employ-
ees’ whereabouts at all times in case of a security inci-
dent. The judge further concluded that no employee
would reasonably read the foregoing rule as nullifying
the right to strike. We disagree.
In Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), the Board set the standard for determining

violated Sec. 8(a)(5) by unilaterally altering its rules regarding no-
solicitation and leaving the premises.
2 We have modified the judge’s recommended Order to conform to
the violations found and to the Board’s standard remedial language.
We have substituted a new notice to conform to the Order as modified.
Consistent with the judge, we have not included a rescission provision
for the unlawfully broad no-solicitation/no-distribution rule because it
has already been rescinded.
3 Member Hayes would adopt the judge’s finding, for the reasons
stated in his decision, that the Respondent's supervisor, May, did not
coercively interrogate employee Martin by asking him “where he
stood.” The exchange between May and Martin was casual, very brief,
and occurred informally where they worked together on a daily basis,
rather than in a formal setting such as May’s office. There was no
history of employer hostility or discrimination. There was also no
indication that Martin’s reply was hesitant or untruthful. Under the
totality of the circumstances, Member Hayes finds that May’s question
was not coercive.
AMBASSADOR SERVICES

1173
whether an employer’s maintenance of a work rule vio-
lates Section 8(a)(1). If the rule explicitly restricts Sec-
tion 7 activity, it is unlawful. Id. at 646. If the rule does
not explicitly restrict Section 7 activity, it is nonetheless
unlawful if (1) employees would reasonably construe the
language of the rule to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Sec-
tion 7 rights. Id. at 647.
Here, the Respondent’s rule does not explicitly restrict
Section 7 activity, and the Acting General Counsel does
not contend that the Respondent promulgated the rule in
response to protected activity or applied it to restrict the
exercise of Section 7 rights. Therefore, applying Luther-
an Heritage, we must determine whether employees
would reasonably construe the language of the rule to
prohibit Section 7 activity. In Labor Ready, Inc., 331
NLRB 1656, 1656 fn. 2 (2000), the Board found unlaw-
ful a rule prohibiting employees from “walk[ing] off” the
job, noting that employees would reasonably construe
such a rule to prohibit Section 7 activity such as a strike,
given the common use of the term “walkout” as a syno-
nym for a strike. Consistent with that precedent holding
substantially identical language to be overly broad, we
find that the Respondent’s rule prohibiting “walking off
the job” would reasonably be construed as prohibiting
Section 7 activity and is unlawful.4

4 See discussion of Labor Ready, as distinguished in 2 Sisters Food
Group, 357 NLRB 1816, 1817–1818 (2011) (Board held that the
maintenance of a rule prohibiting “[l]eaving a department or the plant
during a working shift without a supervisor’s permission,” did not
violate Sec. 8(a)(1), as the mere reference to leaving a department or
plant would not be reasonably construed as pertaining to Section 7
activity, unlike prohibiting employees from “walking off” the job).
The judge here, citing Wilshire at Lakewood, 343 NLRB 141 (2004),
vacated in part 345 NLRB 1050 (2005), revd. on other grounds Jochims
v. NLRB, 480 F.3d 1161 (D.C. Cir. 2007), found that the Respondent
presented a business justification for the rule, in light of its security
concerns. In Wilshire, the employer’s handbook prohibited employees
from “abandoning [their] job by walking off the shift without permis-
sion of [their] supervisor or administrator.” Id. at 144. The employer,
however, operated a nursing home for sick or infirm elderly patients
whose “mission” was “to ensure adequate care for its patients.” Id.
The Board held that “considering the rule in this context,” employees
“would necessarily read the rule as intended to ensure that nursing
home patients are not left without adequate care during an ordinary
workday.” Id. The Board has never extended Wilshire beyond the
context of employees who are directly responsible for patient care, and
we decline to do so here. In any event, assuming the Respondent’s
security concerns are legitimate, it has failed to show that its interests
are not adequately met by the lawful component of the rule prohibiting
leaving the premises during working hours without permission. See 2
Sisters Food Group, supra.
Member Hayes agrees with his colleagues that the Respondent has
failed to articulate a legitimate business justification for a rule against
“walking off the job” without permission that employees would reason-
ably view as restricting their Sec. 7 right to strike. However, in his
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Ambas-
sador Services, Inc., Cape Canaveral, Florida, its offic-
ers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an unlawfully broad rule prohibiting
unauthorized solicitation and/or distribution of literature.
(b) Maintaining an unlawfully broad rule prohibiting
walking off the job and/or leaving the premises during
working hours without permission.
(c) Informing employees that it had assisted with a pe-
tition to decertify the Union as its employees’ collective-
bargaining representative.
(d) Soliciting employees to sign a petition to decertify
the Union.
(e) Informing employees that they could not solicit or
distribute literature on the property at which they were
working.
(f) Coercively interrogating employees about their un-
ion activities.
(g) Failing and refusing to recognize and bargain with
the Union.
(h) 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) Rescind the unlawfully broad rule prohibiting
walking off the job and/or leaving the premises during
working hours without permission.
(b) Recognize and, on request, bargain with Interna-
tional Longshoremen’s Association, Locals 1922 and
1359, AFL–CIO, as the exclusive representative of the
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time porters/long-
shoremen employed by Respondent who receive and
transfer luggage and provisions on to and out of the
cruise vessels operated by DCL [Disney Cruise Lines]
at Port Canaveral, Florida, excluding all other employ-

view, there clearly could be circumstances in industries other than
health care where an employer could require employees—private fire-
fighters or security guards, for instance—to give adequate notice or
even to obtain permission prior to walking off the job when such re-
quirements are shown to be essential to the protection of property or
persons. No such showing was made here.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1174
ees, office clerical employees, managerial employees,
guards and supervisors as defined in the Act.

(c) Within 14 days after service by the Region, post at
its facilities in Port Canaveral, Florida, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
12 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by Re-
spondent at any time since March 27, 2010.
(d) 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

5 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.”
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain an unlawfully broad rule pro-
hibiting unauthorized solicitation and/or distribution of
literature.
WE WILL NOT maintain an unlawfully broad rule pro-
hibiting walking off the job and/or leaving the premises
during working hours without permission.
WE WILL NOT assist with a petition to decertify the Un-
ion as your collective-bargaining representative.
WE WILL NOT solicit you to sign a petition to decertify
the Union.
WE WILL NOT tell you that you cannot solicit or dis-
tribute literature on the property at which you are work-
ing.
WE WILL NOT coercively question you about your un-
ion activities or the union activities of other employees.
WE WILL NOT fail and refuse to bargain with the Un-
ion.
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 rescind the unlawfully broad rule prohibiting
walking off the job and/or leaving the premises during
working hours without permission.
WE WILL recognize and, on request, bargain with In-
ternational Longshoremen’s Association, Locals 1922
and 1359, AFL–CIO, as your exclusive representative in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time porters/long-
shoremen employed by Respondent who receive and
transfer luggage and provisions on to and out of the
cruise vessels operated by DCL [Disney Cruise Lines]
at Port Canaveral, Florida, excluding all other employ-
ees, office clerical employees, managerial employees,
guards and supervisors as defined in the Act.

AMBASSADOR SERVICES, INC.

AMBASSADOR SERVICES

1175
Christopher C. Zerby, Esq., for the General Counsel.
Daniel M. Shea and Matthew T. Gomes, Esqs., for the Re-
spondent.
Neil Flaxman, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Cocoa Beach, Florida, on June 8 and 9, 2011, pur-
suant to a consolidated complaint that issued on March 31,
2011.1 The complaint alleges that the Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) in
several respects and Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union and making certain uni-
lateral changes. The answer of the Respondent denies any vio-
lation of the Act. I find that the Respondent violated the Act
substantially as alleged in the complaint.
Eric Swanson is named as a party in interest because he filed
a decertification petition that is blocked by the charges herein.
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 the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Ambassador Services, Inc., the Company,
is a Florida corporation with an office in Cape Canaveral, Flor-
ida, engaged in providing stevedoring services at Port Canaver-
al, Florida. The Respondent annually purchases and receives
goods valued in excess of $50,000 directly from points outside
the State of Florida. The Respondent admits, and I find and
conclude, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Longshoremen’s Association, Locals 1922 and 1359,
AFL–CIO, the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Note
On August 26, 2011, the Board issued its decision in URC-
UNICCO Services Co., 357 NLRB 801 (2011). That decision
returns to prior Board precedent, St. Elizabeth Manor, Inc., 329
NLRB 341 (1999), with modifications, and precludes a succes-
sor employer from withdrawing recognition from an incumbent
union for a “reasonable period of time.” The Board held that it
would apply its decision in URC-UNICCO Services Co. retro-
actively in representation proceedings but noted that the “ques-
tion of retroactivity in the context of an unfair labor practice
proceeding” was not presented. Id. at 808. As hereinafter dis-
cussed, I find that the withdrawal of recognition herein was

1 All dates are in 2010, unless otherwise indicated. The charge in
Case 12–CA–026758 was filed on June 3. The charge in Case 12–CA–
026759 was filed on June 3 and was amended on July 6, August 11, and
November 2. The charge in Case 12–CA–026832 was filed on August
12.
predicated upon a tainted petition and that the Respondent did
not establish that a majority of the unit employees did not de-
sire representation insofar as an insufficient number of the sig-
natures on the petition were authenticated, thus the issue of
retroactivity in the context of this unfair labor practice proceed-
ing is not presented. Insofar as my findings should be altered by
any reviewing authority, the issue of retroactivity in an unfair
labor practice proceeding would be presented.
B. Background
The Union was initially certified as the exclusive bargaining
representative of the longshoremen (porters) who receive and
transfer luggage and provisions onto and out of Disney Cruise
Line vessels at Port Canaveral on March 22, 2002.2 The Union
has been recertified three times, on August 6, 2003, July 19,
2007, and November 18, 2008, following decertification elec-
tions. Despite its election victories, the Union never obtained a
collective-bargaining agreement with the predecessor employ-
er. The two local Unions are jointly certified. Local 1359 repre-
sents longshoremen, and Local 1922 represents clerks and
checkers.
On or about March 27, 2010, Ambassador Services obtained
the service contract with Disney Cruise Lines (Disney) and
replaced the predecessor, Florida Transportation Services, Inc.
(FTS). The Company hired a majority of the employees who
formerly worked for FTS, and it admits that it is a successor
under NLRB v. Burns Security Services, 406 U.S. 272 (1972).
Randall May is one of the three owners of Ambassador Ser-
vices. His son, Donald May, is vessel supervisor of the Disney
operation. The unit employees are referred to as porters. Am-
bassador Services also provides stevedoring services to cargo
vessels at Port Canaveral and did so prior to its obtaining the
Disney service contact. Those separate operations have no con-
nection to the issues herein, although I note that some unit em-
ployees also perform stevedoring work on cargo vessels served
by Ambassador when a Disney ship is not in port.
In May 2010, the relevant time period herein, only one Dis-
ney ship was operating from Port Canaveral. It arrived at 6 a.m.
and departed at 5 p.m. on Thursdays and Sundays. The inter-
vening hours were “controlled chaos” in which garbage from
the prior cruise was unloaded, new provisions were loaded,
approximately 2750 passengers and a crew of 1300 disem-
barked, and approximately 2750 new passengers and a new
crew came onto the ship. The baggage of departing passengers
was removed and reunited with the appropriate owners. The
baggage of arriving passengers was screened by x-ray and de-
livered to the appropriate cabins on the ship.
The porters were assigned to teams of about eight employ-
ees, and each team had a lead employee, referred to as a header.
In May 2010, the total employment complement was 38, which
included vessel supervisor, Donald May, porter supervisor, J.
D. Martin, and dock supervisor, Christopher Justice. Employee

2 The appropriate unit is: All full-time and regular part-time por-
ters/longshoremen employed by Respondent who receive and transfer
luggage and provisions on to and out of the cruise vessels operated by
DCL [Disney Cruise Lines] at Port Canaveral, Florida, excluding all
other employees, office clerical employees, managerial employees,
guards, and supervisors as defined in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1176
Robert Ford recalled that, at that time, there were four teams.
Martin recalled that there were five. One team was assigned x-
ray, the other teams to unloading garbage and loading provi-
sions and unloading and loading the luggage of the passengers.
The porters loaded the luggage into cages which elevators
brought to the appropriate deck where the porters distributed it
to the appropriate cabins. In the afternoon, the curb team greet-
ed arriving passengers. The teams rotated so that no team per-
formed the exact same work the next ship day. As Martin testi-
fied, the “porters know what they have to do.”
The Company was unaware that the employees of FTS were
represented. On May 19, counsel for the Union, Neil Flaxman,
wrote and sent by facsimile a copy of a letter to Ambassador
advising that it had come to the attention of the Union that Am-
bassador was servicing Disney. The letter demands recognition
and that Ambassador bargain with the Union.
The day after the Company received the demand for recogni-
tion from the Union, Donald Bartlett, a former employee of
FTS who had not been hired by Ambassador, went to a parking
lot in which Company employees parked, and he distributed
copies of the May 19 letter that demanded recognition of the
Union. Donald May observed him doing so and questioned a
Port Authority security guard about the distribution. There is no
claim or allegation that any attempt was made to stop the distri-
bution.
On June 2, counsel for the Company responded to Attorney
Flaxman. The letter states that the first occasion upon which the
Company became aware of “any potential union affiliation” of
the former FTS employees was when the Company received the
letter dated May 19. The letter notes that “individuals repre-
senting your client were handing out copies” of the May 19
letter “last week” and that, thereafter, the Company had re-
ceived a petition “signed by 75%” of the employees stating that
“they do not wish representation.” The letter concludes by stat-
ing that the Company “declines to recognize” the Union.
The central issue herein is whether the Company was privi-
leged to refuse to recognize and bargain with the Union. Sub-
sidiary issues include alleged 8(a)(1) violations that the General
Counsel asserts taint the petition and the supervisory status of J.
D. Martin.
C. Supervisory Status of J. D. Martin
J. D. Martin served as a police officer with the Royal Cana-
dian Mounted Police for 34 years. He began working for the
predecessor, FTS, in 2002. His title was leadman. He voted in
all three decertification elections. His job title with Ambassador
is porter supervisor. Martin credibly testified that, when he
began working for Ambassador, his job duties did not change.
He drove a forklift, moving luggage and other items, 80 percent
of the time.
Many of the employees who testified, when authenticating
their signatures on the petition, named Martin as one of their
supervisors. I have no doubt that they perceived him to be a
supervisor in view of his over 8 years experience with the Dis-
ney operation as an employee of the predecessor and his de-
meanor consistent with his prior employment as a police of-
ficer. Some employees did not identify Martin as a supervisor.
“It is well-settled that, absent evidence of the existence of one
of the primary indicia of supervisory status, secondary indicia
are not dispositive.” Pacific Coast M.S. Industries, 355 NLRB
1422, 1423 fn. 13 (2010).
The Respondent argues that, if Martin is not a supervisor, the
ratio of supervisors to employees would be “unreasonable.” If
the work being performed by these employees was more com-
plicated than moving the luggage of passengers, I might well
agree. Even when the work involved is more complicated than
moving luggage, the Board has held that a general foreman
over foremen of subgroups, in this case the teams, each of
which has a header, is not a supervisor absent a showing that he
exercises statutory supervisory authority. Clock Electric, Inc.,
338 NLRB 806, 825–826 (2003). Admitted Supervisor May is
present throughout the day.
Martin credibly denied that he possessed or exercised the au-
thority to hire, discharge, transfer, suspend, promote, reward, or
adjust the grievances of the porters. There is no probative evi-
dence to the contrary, nor is there any evidence that he had the
authority to lay off or recall an employee.
There is also no evidence that Martin had the authority to as-
sign employees. The Board, in Oakwood Healthcare, Inc., 348
NLRB 686, 689 (2006), held that the term “assign” referred to
“designation of significant overall duties . . . not to the . . . ad
hoc instruction that the employee perform a discrete task.” The
porters are divided into teams, and the uncontradicted testimo-
ny of Martin establishes that May makes the team assignments
and sets the calendar days showing which team would be per-
forming which work on which day. Martin does not “assign.”
Discipline was administered by Donald May. Martin
acknowledged that he did have authority relative to minor dis-
cipline, such as directing an employee to display his or her
nametag to comply with Disney’s uniform standards. Such
verbal admonishments do not establish authority to discipline.
Capri Sun, Inc., 330 NLRB 1124, 1131 (2000). Donald May
testified that his father, Randall May, told Martin that, if he saw
someone “not working in the Disney fashion,” to “send
them home” and “pull Donnie [May] over there if you
need to.” Randall May did not testify, thus the record reflects
what Donald May recalled, not what Randall May actually said.
Martin, when asked what he would do if an employee refused
to comply with the Disney dress code, answered that he would
“[t]ake it to Donnie May.” There is no probative evidence that
Martin had authority to send anyone home for disciplinary rea-
sons. May testified that Martin twice sent an employee home
because the employee was sick. Sending a sick employee home
does not establish supervisory authority. Webco Industries, 334
NLRB 608, 610 (2001). The only evidence of purported disci-
pline issued by Martin was his verbally reprimanding an em-
ployee for being disrespectful to another employee. He reported
the incident to Donald May who stated that he would follow up.
Martin prepared no document relating to the incident. Verbal
admonishments that are not placed in personnel files and do not
result in adverse action do not constitute discipline. In this case,
as in Capri Sun, Inc., supra at 1132, “the lead’s role in the pro-
cess is simply reportorial and does not constitute authority to
discipline or recommend discipline.” The absence of authority
of Martin to discipline was confirmed by employee Tamara
Kelley who testified regarding Martin, “He doesn’t write peo-
AMBASSADOR SERVICES

1177
ple up.” Employee Robert Ford, when asked whether Martin
had authority to discipline, answered, “No. He has always had
to take it up a level.”
May recalled that, when he hired Martin, he told him that he
was “the supervisor,” that he would be “in charge when I’m not
there” and that, since Martin knew “more than I know” about
the operation, he would look for his “recommendations on how
to do things.” Neither Martin’s title as porter supervisor nor his
being told that he was in charge for the brief periods of time
that May was absent, such as when he went to lunch, establish-
es supervisory authority. St. Louis Auto Parts Co., 315 NLRB
717, 720 fn. 2 (1994). May’s reliance upon Martin to educate
him regarding “how to do things” relates to Martin’s familiarity
with the operation, not supervisory authority over employees.
May consults Martin, but May makes the decisions. May, when
addressing recommendations made to him by Martin, answered,
“I follow them. You know, I respected his opinion . . . I follow
pretty much.” The revision of May’s answer to “pretty much”
as it was being given confirms that Martin did not effectively
recommend. For instance, May abolished the early release ros-
ter used by the predecessor pursuant to which, if work permit-
ted, some employees were permitted to leave early. Martin gave
advice and opinions when requested to do so. May made the
decisions. Seeking the advice or opinion of an experienced
employee does not invest that employee with supervisory au-
thority.
The determination of whether Martin exercises statutory su-
pervisory authority rests upon a determination of whether he
has the authority “responsibly to direct” employees using “in-
dependent judgment.” Martin acknowledged that if the porters
got backed up loading the ship that he would consult with May
and then “pull a couple people off the x-ray and reassign them
to the ship” to assist. Asked whether he would take it upon
himself to do that if May was not present, Martin answered,
“Yes.” Martin explained that his choice of who would be asked
to assist depended upon availability, “[w]ho is standing in close
proximity” and their job assignment for the day. Employee
Robert Ford confirmed that “the work is generalized” and, if
assistance was needed somewhere, Martin “would select who-
ever was available.”
Counsel for the General Counsel questioned Martin regard-
ing assisting disembarking passengers on deck 3. Martin ex-
plained that there were two escalators and that, when the pas-
sengers began disembarking, porters lined up on either side. If
Martin was advised that an unforeseen problem had occurred
with regard to a guest and luggage he would “normally go and
ask . . . the first person . . . if they wish to go up to Deck 3 to go
up and retrieve the luggage and also the guests. If they reply in
a negative answer, I will ask the other side first person in that
list. And unless it becomes very cumbersome or time consum-
ing, some person either volunteers or I will go myself.”
The foregoing evidence establishes Martin does direct em-
ployees to perform ad hoc tasks. The evidence does not estab-
lish that the foregoing direction requires the exercise of inde-
pendent judgment. In Oakwood Healthcare, Inc., supra at 692
fn. 38, the Board noted that responsible direction with inde-
pendent judgment involves exercising “’significant discretion
and judgment in directing’ others.” The Board pointed out that
actions “of a merely routine or clerical nature” do not involve
independent judgment and gave as examples situations in
which there is only one obvious choice or situations in which
the workloads needed to be equalized. Id. at 693.
It is incumbent upon the party with the burden of proof to
adduce “concrete evidence showing how assignment decisions
are made.” Franklin Home Health Agency, 337 NLRB 826, 830
(2002). “The assignment of tasks in accordance with an Em-
ployer’s set practice, pattern or parameters, or based on such
obvious factors as whether an employee’s workload is light,
does not require a sufficient exercise of independent judgment
to satisfy the statutory definition [of a supervisor].” Ibid. The
Respondent offered no evidence contradicting Martin’s testi-
mony that his selection of employees to perform a discrete task
was based upon the availability of the employee or employees
chosen. There is no evidence that Martin’s actions involved
“significant discretion and judgment.”
Even if it is assumed that Martin’s direction of employees to
perform ad hoc tasks, such as assisting coworkers when bag-
gage got backed up, constituted responsible direction, there is
no evidence that the foregoing direction required the use of
independent judgment.
The burden of establishing supervisory status is upon the
party asserting that status. The Respondent has not met that
burden. The evidence does not establish that Martin responsibly
directed exercising independent judgment. Martin was a straw-
boss. May made the decisions. Martin was not a supervisor and
should not be denied the protections of the Act.
D. Procedural Matters
At the hearing, when the rule relating to sequestration was
invoked, counsel for the General Counsel designated J. D. Mar-
tin as his representative. Counsel for the Respondent did not
raise any objection or claim that Martin was a supervisor of the
Company. Following Martin’s direct testimony, counsel for the
Respondent stated that Martin was a supervisor and that the
Region had acted improperly in the investigation by not advis-
ing counsel that Martin was being spoken with.
Following the completion of the examination of Martin,
counsel for the General Counsel withdrew his designation of
Martin as his representative under the sequestration rule. The
General Counsel moved to amend the complaint to allege that,
in the event Martin was found to be a supervisor, he solicited
employees to sign the decertification petition. The proffered
amendment was predicated upon Martin’s testimony that, when
employees asked him about the petition, he stated that “if they
felt their job was being threatened and they required or need a
paycheck to keep a roof over their head, food on their table,
that they should up and sign the petition. It would be resolved
at a later date through lawyers.”
Counsel for the Respondent objected to the amendment and
referred to “sanctionable misconduct” relating to the failure of
the Region to advise counsel that Martin was being spoken
with. Counsel for the Charging Party, at the hearing, pointed
out that “the purpose of the Act is to do what's right for the
employees and not to try it on a technical basis.” I advised that
I would hold my ruling on the amendment in abeyance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1178
In its brief, the Respondent requests that all testimony of
Martin be stricken and, as a sanction, that the complaint be
dismissed. I deny that request.
Martin was not a supervisor. Thus, the motion to amend the
complaint is denied.
E. The 8(a)(1) Allegations
1. Work rules
The Company maintains an Employee Safety & Environ-
mental Handbook that applies to all employees. The complaint
alleges that two of the rules were unlawfully broad.
The first, a no-solicitation rule, prohibited:

Unauthorized solicitation and/or distribution of literature, ser-
vices or products.

Violation of the foregoing rule, classified as a class II infrac-
tion, generally called for the issuance of a final disciplinary
warning.
There is no evidence of enforcement of the rule, and it was
rescinded on or about July 30, following the filing of the charge
in Case 12–CA–026759. Despite the absence of any evidence
of enforcement, “the mere existence of a broad no-solicitation
rule may chill the exercise of employees’ [Section 7] rights.”
Alaska Pulp Corp., 300 NLRB 232, 234 (1990), citing NLRB v.
Beverage-Air Co., 402 F.2d 411, 410 (4th Cir. 1968). The Re-
spondent, by maintaining an unlawfully broad rule prohibiting
all solicitation on company property without authorization,
violated Section 8(a)(1) of the Act.
The second rule relates to leaving the worksite. It prohibited:

Walking off the job and/or leaving the premises during work-
ing hours without permission.

Violation of the foregoing rule was a class III infraction,
which generally results in discharge, or, in certain circumstanc-
es, the issuance of a final disciplinary warning.
The General Counsel cites Crown Plaza Hotel, 352 NLRB
382, 387 (2008), a summary judgment case decided by the two
sitting Board Members who found that employees would “rea-
sonably read” the rule as requiring permission before engaging
in Section 7 activity. The Board distinguished Wilshire at
Lakewood, 343 NLRB 1050 (2005), in which the Board had
held such a rule valid, noting that those employees worked in a
nursing home and would read the rule in the context of their
need “to ensure adequate care” for the patients.
The Respondent, citing Jury’s Hotel Boston, 356 NLRB 109,
125 (2011), and the rationale therein, argues that the rule does
not infringe upon the statutory right of employees to engage in
protected concerted activity. Furthermore, the Respondent
points out that the rule is justified by security concerns. Thus, if
a weapon or explosive device is discovered by the baggage x-
ray, a “code red” is issued, at which time a headcount of all
personnel is made.
The rule makes no mention of strikes or other protected Sec-
tion 7 activity. As in Wilshire at Lakewood, the Respondent
presented a business justification for the rule. I cannot conclude
that any employee would reasonably read the foregoing rule as
nullifying the right to strike guaranteed by Section 13 of the
Act. I shall recommend that this allegation be dismissed.
2. Conduct by Donald May
The complaint contains several allegations relating to con-
duct by May.
Subparagraph 9(a) alleges that May interrogated employees
about their union sympathies. The uncontradicted testimony of
J. D. Martin establishes that May mentioned that he had re-
ceived “correspondence from the Union,” an apparent reference
to the May 19 demand for recognition. May then asked Martin,
“where I stood.” Martin replied that he “attended all the union
meetings and that I wished to remain informed in the event that
there was a vote and that my vote would not be influenced by
either a company spokesperson or a union spokesperson, that I
would make up my own mind.”
I find no coercion in the foregoing exchange. Although an
employee’s subjective reaction to a question is not dispositive
regarding whether the question constitutes coercive interroga-
tion; it does provide a context for evaluation of the circum-
stances. Martin’s forthright response reveals that he did not
consider the inquiry by May to be coercive. No threat was
made. “To hold that any instance of casual questioning con-
cerning union sympathies violates the Act ignores the realities
of the workplace.” Rossmore House, 269 NLRB 1176, 1177
(1984). I shall recommend that this allegation be dismissed.
Subparagraph 9(b) alleges that May told employees that the
Respondent “had assisted in the circulation of a petition to de-
certify the Union.”
The foregoing allegation is predicated upon the testimony of
employee Brian Postmus. Postmus, when reporting to work on
May 27, had received from Donald Bartlett the letter from the
Union requesting recognition. Shortly after lunch that day,
employee Eric Swanson approached Postmus and requested
that he sign the petition. Postmus did not sign. Later that day
Postmus informed Vessel Supervisor May that Swanson had
approached him and rhetorically questioned “it was a coinci-
dence that the letter had come out the same day that Don [Bart-
lett] handed me that paperwork.” May responded, “[I]t was no
coincidence. Eric [Swanson] and I had been working on it for a
couple of weeks.” Further testimony by Postmus confirms that
the “letter” to which he referred was the petition. Postmus re-
ferred to the document that Swanson asked him to sign as “[t]he
letter that . . . Eric [Swanson] gave to me at lunchtime after
lunch.”
May specifically denied the foregoing comment. He recalls
that Postmus spoke with him at the end of the workday on May
27, stating that Swanson had asked him to sign “a decertifica-
tion petition,” and that he did not sign it. He asked whether that
would affect his employment. May said, “[N]o, . . . if Eric is
passing around [a] decertification petition, it has nothing to do
with your job security.” [Emphasis added.] May says that he
told Postmus “[I]f you want to sign it, sign it. If you don’t,
don’t.” Postmus inquired about additional work, and May in-
formed him that the Company had a “full operation on the
south side of the port” and that he could put him in touch with
the Company’s controller who could tell him what kind of posi-
tions “we are looking for.”
I credit Postmus. May knew that Swanson was passing out a
decertification petition and therefore would not have predicated
his response with the word “if.” When Postmus mentioned a
AMBASSADOR SERVICES

1179
“coincidence,” May spontaneously acknowledged his involve-
ment, that he and Swanson “had been working on it [the decer-
tification petition] for a couple of weeks.” The relevant ship
days herein were Thursday and Sunday, May 20, 23, 27, and
30. May 19 was the week before May 27, thus the reference to
a “couple of weeks” was perfectly logical.
By informing employees that the Respondent had assisted in
the preparation of a petition to decertify the Union, the Re-
spondent violated Section 8(a)(1) of the Act.
Subparagraph 9(c) alleges that May “permitted employees to
circulate a petition to decertify the union . . . during working
time in working areas in his presence, thus coercing employees
to sign the petition and coercively polling employees about
their union sympathies.”
In midafternoon on May 27, as employee Robert Ford and
several other employees were moving to a new luggage cage,
Eric Swanson approached them with regard to the petition that
he was circulating. Ford stated that he was not interested in
signing it. Near the end of the workday, as the employees were
preparing to leave, Ford was leaning against a work table. The
table, a luggage table, was about 3-1/2- or 4-feet high. Donald
May was on the other side of the table, about 6 feet away, do-
ing paperwork. Swanson was sitting on an adjoining table. He
spoke to Ford, saying, “[I]f you are not going to sign the peti-
tion, will you at least read what it says.” May stood up and
moved to a nearby table. Ford asked where the petition was and
then saw it was on the table against which he had been leaning
and at which May had been sitting. Ford read the petition and
signed it. He was unaware whether May observed him sign. He
explained that it “was a little intimidating when somebody calls
you out in front of a boss,” and that he “probably” would not
have signed it otherwise, noting that he did not sign “the first
time he [Swanson] asked me.”
Swanson testified that he did not remember, but that it
“wasn’t like the three of us were together.” May testified that
he did not see either Ford or Swanson, that he was busy with
other employees, his telephone, or something else.
I credit Ford. Nevertheless, mere presence at a location at
which signatures upon a decertification petition are being solic-
ited, without more, does not violate the Act. Saginaw Control
& Engineering, Inc., 339 NLRB 541, 566 (2003). Although
May learned that Ford had previously refused to sign the peti-
tion, that information came from Swanson. Insofar as the no-
solicitation rule in existence at that time was overly broad, if
May had interrupted and invoked the rule, the complaint herein
might well have included an additional 8(a)(1) allegation. There
is no evidence that, although on the clock, either Swanson or
Ford was supposed to be doing anything other than preparing to
go home. I shall recommend that this allegation be dismissed.
Notwithstanding my dismissal of this allegation, May’s
movement to an adjoining table rather than leaving the area
suggested tacit approval of Swanson’s solicitation.
Subparagraph 9(d) alleges that May on May 27 and 30 “so-
licited employees to sign a petition to decertify the Union.”
May, although claiming to have had no involvement with re-
gard to the decertification petition, twice requested Martin to
sign it. On May 27, May asked Martin if he wished to sign the
petition. Martin responded that he felt, “as supervisors we
should remain neutral.” Martin’s response, citing supervisory
neutrality, is immaterial insofar as the evidence establishes that
he was not a supervisor as defined in the Act. On Sunday, May
30, as he and May were preparing to leave the terminal, Martin
testified that May asked again if he wished to sign, and he
“pulled the paper out the, out of his backpack.” Martin said,
“[S]ure,” and signed and dated his signature. May denied that
he solicited any employee to sign the petition but did not ad-
dress Martin’s credible testimony. By soliciting employees to
sign a decertification petition, the Respondent violated Section
8(a)(1) of the Act.
Paragraph 12 alleges that, on or about July 30, the Respond-
ent instructed employees to report union activity to the Re-
spondent, threatened that the Respondent would cause individ-
uals distributing union literature to be removed from a parking
lot owned by Canaveral Port Authority, and instructed employ-
ees not to solicit or distribute literature at work or on the Re-
spondent’s premises. The foregoing allegations relate to com-
ments allegedly made by May when he informed employees
that the Company had revised the unlawfully broad no-
solicitation rule.
Martin recalled that, at a group meeting on July 30 in which
May announced the changed solicitation rule, he specifically
mentioned Don Bartlett, stating that “if Don Bartlett is in the
parking lot, if you wish to take the correspondence from him
you may . . . and bring it in to me. Or if you don't wish to up
and speak with him, you don’t have to. Let me know, and . . . I
will have him removed, have Don Bartlett removed from the
parking lot.”
May denied instructing employees to report union activity or
threatening removal, but he did not address Martin’s testimony.
There is no evidence that Bartlett was distributing “correspond-
ence” in late July. Although I find that Martin was generally
credible, the absence of corroboration by any other employee at
the July 30 group meeting regarding any comment by May
regarding reporting union activity or removing Bartlett compels
the conclusion that Martin was mistaken regarding any such
comments being made on July 30. There is no allegation or
evidence that the comments Martin attributed to Donald May
were made on a different date. I shall recommend that the alle-
gations regarding instructing employees to report union activity
and threatening removal be dismissed.
Employee Dan Schmidt was working when the July 30 meet-
ing occurred. As he was preparing to leave work, May spoke
with him. May stated that “there is not going to be any more
soliciting,” there would be “no more handing out anything that
applied to anything at all, even the Union.” Schmidt replied, “I
can go to the parking lot or to the bar at the beach and talk
about anything I want.” May said that “the main thing is on the
property right there, not to talk about anything.” He then had
him sign for copies of the revised rules.
Although May denied informing any employee that solicita-
tion or distribution was prohibited, he did not address the spe-
cific testimony of Schmidt. When Schmidt referred to talking at
a bar, May replied that the “main thing is on the property right
there, not to talk about anything.” That reply suggests that May,
notwithstanding the new rule, did not understand the distinction
between distribution in working areas and solicitation on work-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1180
ing time. I credit Schmidt. The Respondent, by informing an
employee that solicitation and distribution on the property upon
which the Respondent worked was prohibited, violated Section
8(a)(1) of the Act.
F. The Petition
Eric Swanson, who filed the decertification petition, circulat-
ed a petition with the following heading: “PETITION FOR
DECERTIFICATION (RD)—REMOVAL OF REPRESENT-
ATIVE.” The wording of the petition was as follows:

The undersigned employees of _Ambassador Services, Inc._
(employer name) do not want to be represented by _ILA Lo-
cal 1922 and/or ILA Local 1359_ (union name). Should the
undersigned employees make up 30% or more (and less than
50%) of the bargaining unit represented by _ILA Local 1922
and/or ILA Local 1359_ (union name), the undersigned em-
ployees hereby petition the National Labor Relations Board to
hold a decertification election to determine whether a majority
of employees no longer wish to be represented by this union.
Should the undersigned employees make up 50% or more of
the bargaining unit represented by _ILA Local 1922 and/or
ILA Local 1359_ (union name), the undersigned employees
hereby request that _Ambassador Services, Inc._ (employer
name) withdraw recognition from this union immediately, as
it does not enjoy the support of a majority of employees in the
bargaining unit.

Swanson testified regarding his motivation in circulating the
petition:

I had worked for FTS for I believe around six years, and they
had been, you know, dealing with the Union . . . . I just kind
of wanted to see where everybody felt, you know, we got a
new company come [in], and I know that the Union was in-
volved with the previous company, and they couldn't really do
anything for us . . . . So I just kind of wanted to find out where
everybody stood, you know, we had some new employees
come in . . . . So I wanted to see, you know, the opinions had
changed or, you know, just kind of find out what, you know,
the census was, you know, of the employees. If they were for
it or against it or, you know, if they still wanted them to be
our bargaining agent or, you know, that kind of stuff.

When asked whether the distribution by former employee
Bartlett of the letter demanding recognition “influenc[ed]” him,
Swanson answered that he “was already kind of in the middle
of it.” Insofar as Swanson had taken no action at that point, the
response suggests that something other than Swanson individu-
ally conducting a “census” was occurring.
Swanson testified that he obtained the wording for the peti-
tion from a website on the internet, but was uncertain which
website. He admitted that “maybe I went back on another
website.” The Respondent’s brief attaches website documents
that were not introduced at the hearing and are immaterial inso-
far as Swanson’s testimony that he went to some website was
not contradicted. What is not explained is why Swanson went
to a website and obtained the wording for a decertification peti-
tion in the first place insofar as he purportedly simply “wanted
to see” whether “opinions had changed.” He could have satis-
fied his claimed personal curiosity by conducting a straw poll.
The evidence suggests that May directed Swanson to the web-
site that contained the decertification petition that he circulated.
When questioned regarding his conversations with employ-
ees when circulating the petition, Swanson testified, “I just
presented it and they signed it, and other people I said, like, oh,
it’s this, and I said, you know, just decertify it, kind of find out,
you know, what people want.” [Emphasis added.] Swanson did
not explain how a census to find out “what people want” be-
came a request to “decertify it.”
Swanson acknowledged that, when questioned as to whether
May knew “what you are doing, what’s up” when he was circu-
lating the petition, he would reply that May knew “what's going
on, yeah, he was aware.”
May himself informed the employees that he was aware of
the petition. Two of the Company’s witnesses, when authenti-
cating their signatures on the petition, recalled that, on May 27,
the day they signed the petition, Donald May spoke with a
group of employees near the end of the day. Employee Tracy
Hance recalled that May told the employees that the “Union
stuff is on, and there’s a petition here, you know. If you want
decertification, just to let you know it’s here. You know, we are
not pushing you either way. You know, make your own deci-
sion for it.” Hance was corroborated by employee Shane Lee
who recalled that, on the day he signed the petition, May men-
tioned that “they didn’t like . . . having anybody . . . trying to
get in between him . . . and the employees.” Lee recalled that
May “never told us that we had to do anything. He just said,
this is how I feel. You guys do what you want and, you know, it
doesn’t make a difference to me.”
May’s testimony that his comments related to the Company
response to the charges subsequently filed by the Union was
not credible. Hance and Lee were clear that the comments were
made on May 27, the day that each of them signed the petition.
The message that May communicated was not vitiated by his
informing the employees to make their own decision. May’s
message was clear. As Martin explained to employees who
asked him, if they wanted to keep a roof over their head and
food on their table, they “should up and sign the petition.”
Several employees who signed the petition were not solicited
by Swanson. Employee Kyle Dampier, whose signature is the
first on the petition, found it “sitting on the table” in midmorn-
ing when he was coming back from break. The table upon
which the petition was lying was the “table where all the pa-
perwork is at throughout the whole day . . . . Pretty much every-
thing that tells you where you where you are going to be work-
ing at is on that table.”
Chester Dampier, when signing out on May 30, asked where
the petition was and then saw it on the table with other paper-
work, “the manager’s paperwork for when everything starts and
stops is there. The sign-out sheets for your time.” Dampier
claims not to have noticed that the name immediately above
where he signed was that of Donald May. I do not credit that
portion of his testimony.
Tracy Hance found the petition on a table “about three tables
over” from the table upon which the employees’ worksheets are
kept. Steve Collins found the petition lying on a table upon
which there was nothing else. Tamara Kelley found the petition
AMBASSADOR SERVICES

1181
on a table with a pen and paper. She recalled that “[e]verybody
just kind of knew it was there.”
Both May and Swanson deny that the Company was in-
volved in the decertification effort. May claims that, when
Swanson informed him of his intention to circulate the petition,
he told him that he “thought it was a great idea and to go for it.”
He says he also explained that, being in a management position,
“I cannot have anything to do with it.” Swanson claims, con-
sistent with May’s testimony, that May informed him that he
could not be involved. I do not credit the testimony of either
May or Swanson relating to the absence of involvement by
May. May testified that Swanson asked him to sign the petition
and that he did so. Swanson gave the petition to May. If May
had no involvement, there would have been no reason for
Swanson to have given the petition to him. May solicited Mar-
tin to sign the petition. May informed the employees that a
decertification petition was being circulated.
If, as he testified, Swanson “wanted to see . . . [what] the
census was,” he could have taken a notepad and recorded the
responses of his fellow employee or circulated a piece of paper
relating to the Union, “yes or no.” His circulation of a formal
decertification petition rather than an informal census is persua-
sive evidence that Respondent’s management was involved and
that Swanson was “in the middle of it.” He testified that, on
May 30, he gave “it [the petition] to Donnie [May] because I
said I wasn’t going to even get the signatures.” Swanson was
not asked what he meant with regard to the foregoing cryptic
comment. Insofar as he had already obtained 23 signatures, it
would appear that he was telling May that he was unable to get
any more signatures. The critical evidence is that he gave the
petition to May. Contrary to Swanson’s testimony that the
Company was not involved and that he simply wanted to con-
duct a census, Swanson circulated a petition providing for de-
certification or withdrawal of recognition that he provided to
May after he had obtained all of the signatures that he was able
to obtain.
Direct evidence relating to initiation of the petition by the
Respondent is the testimony of employee Brian Postmus. As
already discussed, I credit Postmus that, when he mentioned the
petition being a coincidence, May spontaneously informed him
that “[i]t was no coincidence. Eric [Swanson] and I had been
working on it for a couple of weeks.”
G. The 8(a)(5) Allegations
1. Refusal to recognize and bargain
An incumbent union enjoys a continuing presumption of ma-
jority status, and a successor employer is obligated to recognize
and bargain with the union absent evidence that the union no
longer enjoys majority support. An employer may withdraw
recognition from an incumbent union or, in the case of a suc-
cessor employer, refuse to recognize and bargain with the union
only if the “the expression of employee desire to decertify rep-
resents ‘the free and uncoerced act of the employees con-
cerned.’” SFO Good-Nite Inn, LLC, 357 NLRB 79 (2011).
The Board, in SFO Good-Nite Inn, LLC, pointed out that
Hearst Corp., 281 NLRB 764 (1986), is the applicable prece-
dent “when an employer has engaged in unfair labor practices
directly related to an employee decertification effort, such as
‘actively soliciting, encouraging, promoting, or providing assis-
tance in the initiation, signing, or filing of an employee petition
seeking to decertify the bargaining representative.’ In those
situations, the employer’s unfair labor practices are not merely
coincident with the decertification effort; rather, they directly
instigate or propel it. The Board therefore presumes that the
employer’s unlawful meddling tainted any resulting expression
of employee disaffection, without specific proof of causation,
and precludes the employer from relying on that expressed
disaffection to overcome the union’s continuing presumption of
majority support.” SFO Good-Nite Inn, LLC, supra at 80. [Cita-
tions omitted.]
The Board specifically held that an “employer’s commission
of unfair labor practices assisting, supporting, encouraging, or
otherwise directly advancing an employee decertification effort
taints a resulting petition,” and that, because of the taint, the
petition “is per se insufficient to rebut the presumption of con-
tinuing majority status.” Id. at 81.
Although Swanson only wanted to “kind of find out . . . the
census” regarding support for the Union, once the demand for
recognition was made he found that he “was already kind of in
the middle of it.” Neither Swanson nor May acknowledged
their collaboration regarding the decertification petition; how-
ever, May’s statement to employee Postmus, that “Eric [Swan-
son] and I had been working on it for a couple of weeks,” es-
tablishes that there was collaboration and that a decertification
petition, rather than a census, was instigated by the Respondent.
On the morning of May 27, the petition was lying on the ta-
ble that contained the “the manager’s paperwork for when eve-
rything starts and stops,” the table upon which paperwork that
“tells you where you where you are going to be working” is
placed. I am mindful that there is no direct evidence that May
was aware that the petition was on that table, but its presence
suggests that Swanson had permission to place it there.
Near the end of the day, May, who claimed that he could not
be involved, informed employees that the “Union stuff is on,
and there’s a petition here, you know. If you want decertifica-
tion, just to let you know it's here.” He then commented that he
“didn’t like . . . having anybody . . . trying to get in between
him . . . and the employees.”
May remained nearby when Swanson, for the second time,
solicited employee Robert Ford to sign the petition. Although
May’s conduct did not violate the Act, it reflected tacit approv-
al of the decertification effort.
On May 30, notwithstanding May’s claimed noninvolve-
ment, Swanson gave the petition to May because he “wasn't
going to even get the signatures.” May signed the petition. Em-
ployee Dampier’s signature and name appear directly under
that of May, and I have not credited his testimony that he did
not notice the name immediately above his when he signed the
petition. May asked Martin to sign the petition, although Martin
had previously refused to do so. I have found that the foregoing
solicitation violated the Act.
The petition herein was tainted insofar as it was instigated by
the Respondent. May informed employees of his involvement
in the instigation of the petition, and he solicited Martin to sign
the petition. Although not violative of the Act, May encouraged
employee support of the petition by informing them of the ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1182
istence of the petition and the Respondent’s tacit approval of it.
The Respondent’s actions “tainted any resulting expression of
employee disaffection.” A tainted petition reflecting employee
disaffection with a union may not be relied upon to justify a
withdrawal of recognition or a refusal to recognize and bargain.
The Respondent, by failing and refusing to recognize and bar-
gain with the Union, violated Section 8(a)(5) of the Act.
2. Unilateral changes
The complaint alleges that the Respondent violated the Act
by unilaterally altering the no-solicitation and leaving the prem-
ises rules. There is no evidence that the unlawfully broad no-
solicitation rule was enforced. There is no allegation or claim
that the revised rule, promulgated after a charge challenging the
unlawful rule was filed, is unlawful. There is also no evidence
that the revised rule has been enforced. The leaving the premis-
es rule was changed to: “Leaving the job or premises during
working time without notice.” The revised rule is not alleged as
being unlawful. There is no evidence that any employee was
affected by either of the foregoing changes. The changes did
not result in a “’material, substantial, and significant’ change in
a term of employment” of the unit employees. Fresno Bee, 339
NLRB 1214, 1215–1216 (2003). I shall recommend that these
allegations be dismissed.
H. Majority Status
I am mindful that no analysis relating to majority status is
applicable in cases where the expression of employee disaffec-
tion with a union is tainted by the involvement of management.
Nevertheless, insofar as any reviewing authority should alter
my finding that the decertification petition was tainted, it is
appropriate to note that the Respondent did not establish that a
majority of employees in the unit signed the decertification
petition.
The Board, in Levitz Furniture Co. of the Pacific, 333 NLRB
717, 725 (2001), held that an employer withdraws recognition
or, in this case, refuses to recognize an incumbent union, “at its
peril.” If “the union contests the withdrawal . . . the employer
will have to prove by a preponderance of the evidence that the
union had, in fact, lost majority support.” Ibid.
The Board, in Flying Foods, 345 NLRB 101, 103 fn. 9
(2005), noted that an employer’s withdrawal of recognition is
not unlawful where the employer does not verify the authentici-
ty of the signatures on a disaffection petition before withdraw-
ing recognition. Nevertheless, the decision therein, consistent
with Levitz, confirms that, if the withdrawal is challenged, the
ultimate determination relating to objective evidence justifying
withdrawal of recognition because of a loss of majority status
does require that the signatures upon a disaffection petition be
authenticated. Id. at 103–104. The logic therein is indisputable.
A union, seeking to obtain a bargaining order after having its
support undermined by unfair labor practices, is required to
establish, generally by authorization cards, that a majority of
the employees in the unit signed the card without coercion or
any misrepresentation regarding the purpose of the card. Signa-
tures may be authenticated by the testimony of the signer, a
witness to the signature, delivery to the solicitor of the card, or
by handwriting exemplars that sometimes involve the testimony
of an expert witness. The standard should be no different when
an employer seeks to establish the loss of majority of an in-
cumbent union.
Respondent’s Exhibit 13 reflects that, in May, there were 38
individuals working under the Disney service contract, includ-
ing Donald May and J. D. Martin, both of whom signed the
petition. The Company presented no evidence that Dock Super-
visor Christopher Justice, who did not testify and who did not
sign the petition, was a statutory supervisor. Of the 38 individ-
uals working on the contract, 26 signed the petition, but that
number includes admitted supervisor Donald May as well as J.
D. Martin, whom I have found was an employee.
In addition to May and Martin, the signatures of 18 employ-
ees who signed the petition were authenticated. The Respond-
ent did not authenticate the signatures of six employees: Dana
Davis, Dan Dombroski, Michael Fiore, Curtis Jeffers, Bradley
Riggs, and Jacob Vega. The General Counsel’s brief lists 5
unauthenticated signatures, but it inadvertently omits the unau-
thenticated signature of Dombroski.
Vessel Supervisor May is not in the unit. Martin was not a
supervisor. Thus the unit consisted of 37 employees. Martin’s
signature was coerced insofar as it was solicited by May and
should not be counted. The remaining 18 authenticated signa-
tures do not constitute a majority of the unit.
If, contrary to my finding, Martin were found to be a super-
visor, the unit would consist of 36 employees. The 18 authenti-
cated signatures do not constitute a majority of the unit of 36.
Thus, in either circumstance, the Respondent did not estab-
lish that a majority of the employees in the unit did not desire to
continue to be represented by the Union.
CONCLUSIONS OF LAW
1. The Respondent, by maintaining an unlawfully broad rule
prohibiting unauthorized solicitation and/or distribution of lit-
erature, informing employees that it had assisted with a petition
to decertify the Union as its employees’ collective-bargaining
representative, soliciting employees to sign a petition to decerti-
fy the Union, and informing employees that they could not
solicit or distribute literature on the property at which they were
working, violated Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. The Respondent, by failing and refusing to recognize and
bargain with the Union, violated Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The unlawfully broad rule prohibiting unauthorized solicita-
tion and/or distribution has been rescinded, thus no rescission
order is necessary.
The Respondent, having unlawfully failed and refused to
recognize and bargain with the Union must recognize and, upon
AMBASSADOR SERVICES

1183
request, bargain with International Longshoremen’s Associa-
tion, Locals 1922 and 1359, AFL–CIO, as the exclusive collec-
tive bargaining representative of its employees in the appropri-
ate unit.
The Respondent will also be ordered to post and email an
appropriate notice.
[Recommended Order omitted from publication.]