Las Vegas Limousine

National Labor Relations Board - Board Decisions

Nov 10, 2003

340 N.L.R.B. 1005 (N.L.R.B. 2003)

LAS VEGAS LIMOUSINE 1005
A-NLV Cab Company d/b/a Las Vegas Limousine
and Stephanie Maitland and Julio Cavalcanti
and Michael Horrocks. Cases 28–CA–17748, 28–
CA–17803, 28–CA–17965, 28–CA–18081, 28–
CA–18309, and 28–CA–18313
November 10, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
On August 22, 2003, Administrative Law Judge Lana
H. Parke issued the attached decision. Charging Party
Stephanie Maitland filed exceptions and supporting ar-
gument.1
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 argument and has decided
to affirm the judge’s rulings, findings,2 and conclusions
and to adopt the recommended Order.

1 The Respondent filed a motion to strike the Charging Party’s ex-
ceptions. The motion is denied in part and granted in part, as explained
below. The Charging Party’s exceptions were timely filed pursuant to
the Board’s “postmark” rule. See Sec. 102.111(b) of the Board’s Rule
and Regulations. Additionally, the Board’s Rules do not require a party
to notify the other parties regarding when it submitted the exceptions to
the Board. With respect to whether the exceptions meet the criteria of
Section 102.46(b)(1) of the Rules, although the exceptions do not com-
ply in all respects with the Board’s Rule, they are not so deficient as to
warrant striking, particularly in light of the Charging Party’s pro se
status. See generally Phoenix Transit System, 335 NLRB 1263 (2001).
The Respondent’s motion to strike is granted, however, with regard to
those exceptions or those portions of exceptions that are based on an
alleged audiotape recording of conversations. As the audiotape is not
part of the formal record in this matter, the Board is unable to consider
such evidence. Electro-Tec, Inc., 310 NLRB 131 fn. 1 (1993).
2 The Charging Party 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.
The judge found that Owner Charles Frias’ May 2002 comment to
Maitland that she was causing problems and he was going to get rid of
her was not unlawful, because the judge found that the General Counsel
had failed to show that Frias’ remark was related to Maitland’s union
activity. The judge reached that conclusion in part because she found
that Maitland had not been involved in any union activity for nearly a
year when Frias made his comment. In fact, Maitland had filed an
unfair labor practice charge, alleging that the Respondent had disci-
plined her because of her union activity, 3 months before Frias’ remark.
Despite the judge’s error, we agree with the judge that Frias’ comment
reflected his dissatisfaction with Maitland’s job performance and record
of discipline—at least three suspensions in a 6-month period—rather
than her union activity, especially given the absence of any other record
evidence that Frias was referring to the latter. In these circumstances,
we affirm the judge’s finding that the allegation should be dismissed.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

John Giannoupolis, Atty., for the General Counsel.
Kevin C. Efroymson, Atty., of Las Vegas, Nevada, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, June 9–12, 2003.1 Pursuant to
charges filed by Stephanie Maitland (Maitland), an individual,
Julio Cavalcanti (Cavalcanti), an individual, and Michael Hor-
rocks (Horrocks), an individual, the Regional Director for Re-
gion 28 of the National Labor Relations Board (the Board)
issued an order further consolidating cases, third consolidated
complaint and notice of hearing (the complaint) on January 29,
2003.2 The complaint alleges that A-NLV Cab Company d/b/a
Las Vegas Limousine (Respondent) violated Section 8(a)(1),
(3), and (4) of the National Labor Relations Act (the Act).
Issues
1. Did Respondent violate Section 8(a)(3) and (1) of the Act
by suspending Maitland on December 21, 2001?
2. Did Respondent violate Section 8(a)(4), (3), and (1) of the
Act by suspending and discharging Maitland on May 29 and
October 17, respectively?
3. Did Respondent violate Section 8(a)(4), (3), and (1) of the
Act by imposing more onerous conditions of employment on its
drivers?
4. Did Respondent violate Section 8(a)(1) of the Act by
threatening employees with discharge because of their union
activities and because they had filed charges or given testimony
under the Act?
5. Did Respondent violate Section 8(a)(1) of the Act by in-
terrogating employees about their union activities?
On the entire record and after considering the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Nevada corporation, with an office and place
of business located at 5010 South Valley View Boulevard, Las

We agree with the judge’s dismissal of the allegation that employee
Michael Horrocks was coercively interrogated, on the basis that the
allegation was time barred under Sec. 10(b) of the Act. However, the
10(b) period is not jurisdictional, as the judge stated, but rather is a
statute of limitations for filing unfair labor practice charges. Paul
Mueller Co., 337 NLRB 764 (2002).
1 All dates are in 2002 unless otherwise indicated.
2 At the commencement of the hearing, counsel for the General
Counsel amended the complaint to allege Art Rosson and Anita Bern-
holtz, marketing director, as supervisors of Respondent during relevant
periods. Respondent admitted these amended allegations and further
amended its answer to admit par. 1(h). At the close of his case, counsel
for the General Counsel’s motion to withdraw pars. 5(a) and (b) of the
complaint because of Cavalcanti’s failure to appear at the hearing was
granted.
340 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
Vegas, Nevada (Respondent’s facility), is engaged in the busi-
ness of furnishing limousine and other transportation services
to the public. During the representative 12-month period end-
ing February 19, Respondent derived gross revenues in excess
of $500,000 and purchased and received at its facility goods
valued in excess of $5000 directly from points outside the State
of Nevada. 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 Professional, Clerical & Miscellane-
ous Employees, Local 995, affiliated with International Broth-
erhood of Teamsters, AFL–CIO (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business Operations
Respondent provides limousine, sedan, and shuttle bus trans-
portation services in Las Vegas, including transportation from
Las Vegas-McCarran International Airport, under an operating
agreement between Respondent and Clark County, Nevada.
The operating agreement sets a specific staging and loading
area for Respondent’s use at the airport outside door 14 of the
airport baggage claim area. As potential customers exit the
airport from door 14, they pass by Respondent’s podium lo-
cated on the sidewalk directly in front of door 14 where Re-
spondent’s employees, responsible for assigning transportation
at the airport (starters) are placed. To the left, Respondent
maintains a ticket/cashier booth. On each shift Respondent
employs two starters, a cashier, and a shift supervisor. Starters
greet potential customers, describe the services available (lim-
ousine, sedan, shuttle bus) and the relative rates (e.g., standard
limousine $38 per hour, sedan $30 per hour), and direct cus-
tomers to the desired service. Driver solicitation of customers
is illegal. Drivers wait in line at the airport staging area for trip
assignments (charters). The limousines wait in the area imme-
diately outside door 14 and the sedans in an area across the
street.
Respondent also regularly assigns prearranged limousine or
sedan trips (office charters) to drivers. Respondent generally
makes such assignments by giving the designated driver a writ-
ten reservation/trip sheet when the driver reports to the facility
for work. The charter is not to be “passed off” to another driver
without supervisor approval. Although it appears to have been
a common practice among drivers to pass off charters without
supervisor approval, there is no evidence that Respondent has
condoned the practice. Employee Sandra Ellen Smith (Smith)
testified she did not think Respondent was aware that drivers
passed off charters without approval. In each instance that
Smith passed off a charter or accepted one from another driver,
the drivers involved “contacted the company right away” and
notified the office of the change. In May 2000, Respondent
suspended Horrocks for passing off an office charter.4

3 Where not otherwise noted, these findings are based on the plead-
ings, the stipulations of counsel, and/or unchallenged credible evidence.
4 While counsel for the General Counsel attempts to distinguish Hor-
rocks’ discipline on the basis that it involved a VIP account, no evi-
dence was adduced to show that Respondent condoned any unapproved
charter pass off.
B. Union Activity, Alleged Union Animus,
and 8(a)(1) Statements
Respondent originally hired Maitland in September 1997.
For reasons unrelated to the issues herein, Respondent termi-
nated Maitland on July 13 and rehired her on December 29,
2000.
The Union filed a representation petition with the Board for
a unit of all full-time and regular part-time limousine drivers
employed by Respondent at its facility on September 25, 2000
(Case 28–RC–5891). The parties entered into a stipulated elec-
tion agreement on October 2, 2000. The Board conducted a
representation election on November 2 and 3, 2000, which the
Union won by a vote of 182 to 4. The Board issued a certifica-
tion of representative dated November 15, 2000. Commencing
in December 2000, Respondent and the Union engaged in col-
lective bargaining. Employee participants for the Union in the
collective-bargaining sessions included Daryl B. DeShaw (De-
Shaw), limousine driver and union activist, and several other
employees. Respondent and the Union entered into a collective-
bargaining agreement on January 29, effective by its terms Janu-
ary 29 to February 29, 2004 (the agreement).5 In March, De-
Shaw voluntarily terminated employment with Respondent.
In late 2000, shortly before Respondent rehired Maitland,
DeShaw and Maitland began living together.6 DeShaw accom-
panied Maitland when she met with Charles Frias (Frias),
owner of Respondent, and DeShaw spoke to Frias about her
reemployment. After her rehire, Maitland participated in col-
lective-bargaining negotiations for the Union and passed out
prounion paraphernalia and membership cards to fellow em-
ployees.
In early 2001, DeShaw obtained a permit to picket at Re-
spondent’s airport staging area and organized rotation of driv-
ers to maximize the number of picketers. Both he and Maitland
participated in the picketing which lasted an hour or two.
In June 2001, drawing on members of other teamster locals
and with Maitland’s assistance, DeShaw organized a rolling,
semitruck demonstration of union support in front of Respon-
dent’s facility. During the demonstration, many of Respon-
dent’s employees, including Maitland, picketed with signs read-
ing, inter alia, “Respect Workers’ Rights TEAMSTERS.”
On an unspecified date sometime after the union election but
before Respondent and the Union signed a collective-
bargaining agreement, Alex Kahalehili (Kahalehili), Respon-
dent’s general manager since July 15, 2001, and admitted su-
pervisor, asked Horrocks, who was wearing a union button,
“What the hell are you doing in that Union?” Horrocks replied
that he was one of the Union’s strongest members, and Kahale-
hili told Horrocks that if he were still driving he would not
want the Union representing him.
5 Among other provisions, art. X, sec. 3, established that “just cause
for discharge without prior discipline included (m) Abusive, disruptive
or improper behavior toward a supervisor (n) Refusal to follow an order
of a supervisor or other representative of the Employer, and (o) Insub-
ordination of any nature.”
6 The relationship continued at least through the dates of the hearing
and was known to Respondent’s supervisors.
LAS VEGAS LIMOUSINE 1007
In July 2001, DeShaw, attended a disciplinary meeting con-
cerning two of Respondent’s secretaries as their Weingarten7
representative. Frias, Kahalehili, inter alias, were present.
Frias asked DeShaw who he was. When DeShaw identified
himself, Kahalehili interjected that DeShaw was a union man.
Frias waved his arms, told DeShaw he had no right to be there,
and demanded he leave “before I shoot you.” According to
DeShaw, Frias added, “You’ll never see a union in my f—
company.”8
In mid-July 2001, shortly after Kahalehili became Respon-
dent’s general manager, DeShaw delivered a copy of a repre-
sentation petition covering Respondent’s office employees to
Kahalehili at Respondent’s office. With apparent sarcasm,
DeShaw told Kahalehili that without his help, the petition
would not have been possible. Kahalehili answered, “F— the
Union.”
According to DeShaw, in the fall of 2001 or 2002, Kahalehili
confronted DeShaw as he was reporting to work and told him to
put on his jacket. DeShaw pointed out that it was 115 degrees
that day and that he was not yet on duty. Kahalehili told him to
put on his jacket or go home. When DeShaw protested that
Kahalehili was changing working conditions, Kahalehili said,
“You’re never going to see a f— union in my company as long
as I am here.”9
In late 2001 or early 2002, unit employee Edward Lindsay
(Lindsay) requested DeShaw to be present at a disciplinary
meeting with Kahalehili. When the two employees entered
Kahalehili’s office, Kahalehili told DeShaw that he had no
business there. DeShaw said he was serving as Lindsay’s
Weingarten representative. Kahalehili told him the Union had
no authority there and to get out. When DeShaw protested that
Lindsay had representation rights, Kahalehili said Lindsay
could have any witness he wanted except DeShaw.10
During her May 29 suspension (set forth below), Maitland
went to Respondent’s office to get her suspension papers. She
arrived wearing shorts and a tank top. Supervisor Adam Lopez
said to her, “Oh, hello. Topless and bow-tie today, but I better
not say that because you’ll tell the union.”
Either before Maitland’s suspension or after she returned
from it,11 she reported to Respondent’s facility at the end of her
shift where she conversed with Supervisor Art Rosson (Ros-

7 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
8 I cannot accept DeShaw’s testimony as to Frias’ latter statement.
By the date of this alleged statement, the parties were fully involved in
collective bargaining. It is inherently incongruous for Frias to have
said there would never be a union in his Company.
9 I cannot accept DeShaw’s testimony in this regard. By the first of
the dates DeShaw claimed for this incident, the Union had already won
the election and the parties were bargaining. By the second date, the
parties had executed a collective-bargaining agreement. It is as inher-
ently incongruous for Kahalehili to have said there would never be a
union in the company as it was for Frias as set forth above. Further, the
statements attributed by DeShaw to both Frias and Kahalehili bear such
a similarity that they ring false.
10 In cross-examination, DeShaw expanded his account of this inci-
dent to include a statement by Kahalehili that “the union had no rights.”
I find this alleged statement to be an afterthought, which I do not credit.
11 Maitland could not say when this incident occurred, only that it
was “around the area of the suspension time.”
son). Frias appeared and asked Rosson what he was doing with
Maitland, saying, “You’re not supposed to be hanging around
with her.” Rosson said Mailtland had just come to copy a pa-
per. Frias said, “Who is she? I thought we got rid of her.”
Rossen said, “No, no, that’s the girl that goes to college that
you liked.” Maitland understood Rossen was trying to stick up
for her. Frias asked Maitland’s name. When she identified
herself, he said, “Yeah, you. You, I thought we got rid of you.
Don’t worry about it, I’ll get rid of you; don’t worry, I’ll get rid
of you.”12 Maitland left the office without replying.
C. Maitland’s December 21, 2001 Suspension
On December 20, 2001, Respondent assigned Maitland a
charter to pick up client Abu Ali (Ali charter) from the baggage
area of the Las Vegas-McCarren Airport (the airport) and drive
him to his destination. In Maitland’s view, such charters “take
up a lot of your time, and lower your book [revenue].” Mait-
land drove to the airport and, without supervisory approval,
passed off the Ali charter to employee Roman Stadelman. Al-
though Maitland said she had a conflicting personal charter, her
trip sheet reports no trip for time of the Ali charter. On De-
cember 21, 2001, Respondent suspended Maitland. The em-
ployee action notice given to Maitland read, “Failure to follow
order of supervisor, improper action towards a customer or
potential customer. Violation of any company rule or policy.
Passing off office charter.”
D. Maitland’s May 29 Suspension
On the evening of May 23, Maitland awaited a limousine
charter assignment at Respondent’s airport staging area. At
around 10 p.m., a group of customers requested a limousine for
an hour (the Rio charter). Tabitha Grant (Grant), the starter,
attempted to assign the Rio charter to Maitland as the first in
line.13 Maitland objected, saying she had a personal, prior en-
gagement.14 The matter was referred to Respondent’s airport
supervisor who ordered Maitland to take the Rio charter. When
she refused, the supervisor gave the Rio charter to the driver
behind Maitland and thereafter declined to “load” Maitland
who had to leave “empty” to perform her personal charter,
which was scheduled for “11:00-ish.”15
12 Maitland’s testimony of this incident was not entirely consistent.
Under cross-examination, Maitland testified that Frias also said,
“You’re the one causing the problems.” In an affidavit given to the
Board on June 11, 2002, Maitland did not relate that Frias had said he
was going to get rid of her but did testify that Frias referred to her as
“the one causing the problems.”
13 According to Maitland, Grant attempted to assign the Rio charter
to four limousine drivers parked ahead of Maitland, but each declined.
Grant testified that Maitland’s limousine was the first in line. I do not
find Maitland’s testimony to be reliable. In her testimony, she initially
confused the December and May suspensions. She further testified she
was the last limousine in line but also said the “guy behind me did [the
charter].” I accept Grant’s testimony that Maitland was first in line.
14 Personal engagements are those arranged directly with the driver.
The personal charter Maitland had arranged involved relatives of her
brother-in-law.
15 Maitland’s trip sheet shows she picked up her personal charter,
two people, at 11:20 p.m., and the trip lasted an hour.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
Respondent again suspended Maitland. The suspension no-
tice dated May 29, reads, “#1 Refusing to perform assigned
work during a shift. #2 refusal to follow an order of a supervi-
sor or other representative of the company.” In the employee
comments section, Maitland noted, “had personal to pick-up 5
other people turned down.”16
E. Other Discipline of Maitland
Although the General Counsel has alleged only Maitland’s
December 21, 2001, and May 29 suspensions as predischarge
discipline violative of the Act, Respondent has taken other
disciplinary action against Maitland, including the following:
On December 7, 2001, Respondent suspended Maitland for 3
days for incomplete paperwork.
On March 13, Respondent suspended Maitland for 5 days.
The suspension notice reads, “2nd violation, failure to accept &
perform assigned charter #229661. Subsequent violation will
result in termination.” In employee’s comments, Maitland
wrote, “Forced to sign this was never a policy everyone else
gets to give back charters. And refuse charters. I had a per-
sonal that day. I’m the only one that gets written up for this
and suspended.”
On June 30, Respondent issued Maitland a written warning
for failure to complete required shift/failure to complete paper-
work
F. Maitland’s October 17 Discharge
On October 16, Respondent issued Maitland an office sedan
charter to pick up a customer, Catledge, in the Delta baggage
area of the airport and to display an identifying greeting sign
reading, “Mr. Catledge.” The trip sheet noted Catledge’s arri-
val time as 2215 (10:15 p.m.) Maitland reported to the airport
Delta baggage area as instructed at about 10 p.m., parking as
was customary one level below Respondent’s staging area. In
the baggage area, Maitland sported the specified greeting sign
and waited until all bags from the identified Delta flight had
been picked up but was unable to find Catledge.17
At Respondent’s staging area, Catledge approached Respon-
dent’s cashier station at 10:55 p.m. and complained to cashier
Kelly Bolognese (Bolognese) that his pickup had not appeared.
Catledge was “irate . . . upset.” Bolognese contacted Respon-
dent’s office, determined that the assigned driver was Maitland.
Bolognese told the office the customer was outraged and that
she would assign his charter to the next driver. The next avail-
able sedan driver in the staging area was David Kammerer
(Kammerer) who left the airport with Catledge at 10:57 p.m.
Catledge told Kammerer that he waited for Maitland in the
baggage area but did not see her.18

16 Maitland did not explain why, in her employee comment, she
numbered her personal charter customers as five when her testimony
and her trip sheet show only two customers.
17 Missing customer connections was not an uncommon occurrence
for Respondent’s drivers. However, company rules required the driver
to contact the dispatch or reservations offices in that situation, which
Maitland did not do, although she apparently had a cell phone.
18 Respondent argues the evidence shows Maitland did not report to
the baggage area as assigned. I find it unnecessary to resolve that ques-
tion as the discharge clearly relates to Maitland’s conduct after the
failed pickup.
At about 11 p.m., Maitland drove to Respondent’s staging
area, arriving about 11:05 p.m. Learning that Catledge had left
with another driver, Maitland joined the sedan line at the stag-
ing area. According to Maitland, a starter and the supervisor at
the staging area, Jimmy Irvine (Irvine) solicited potential cus-
tomers as they exited the airport and loaded limousines but did
not provide a load for her sedan. Maitland left her sedan and
stood on the curb by a limousine. Irvine told her to get back to
her car. She refused, saying, “You guys are not selling my car;
I need to stay here and make sure you sell my car.” Irvine said,
“I am going to sell your car.” Maitland said, “No, you haven’t
mentioned my car at all.”
Irvine again told her to return to her sedan. Again, she re-
fused. At least three times, Irvine then told her, “Since you
won’t go back to your car, return to the yard.” Maitland re-
fused those orders as well because she was “sick of being har-
assed.” When Irvine thereafter assigned customers to Mait-
land’s sedan, she left the airport to carry out the trip. Following
her shift, Maitland reported to Respondent’s office where
Kammerer asked her for the Catledge trip sheet so he could
present it for payment as he had completed the charter. Mait-
land refused to give the trip sheet to him. Irvine then asked her
for the Catledge trip sheet, and she refused his request also.
She insisted Respondent pay her for the Catledge trip.
Irvine prepared and gave to Kahalehili the following memo-
randum dated October 16:

I was informed by Diane (The reservationist) that
Maitland missed her charter around 10:55 p.m. I went to
the airport around 11:15 p.m. to close the airport booth
and to find out why Maitland missed her charter. When I
arrived Dennis (Starter) informed [me] that the customer
waited 20 to 30 minutes for Maitland inside the airport,
but could not find his driver. The customer finally came
out the door 14 and rode with another driver, Dave Kam-
merer. I saw Maitland at the door 14 but she said nothing
to me about the missed charter. Maitland, instead, came
up to the podium and refused to stand by her car. I repeat-
edly asked her to stand by her car like the other drivers but
she refused. When I asked her what her problem was she
said that she wanted to make sure that I mentioned her se-
dan and therefore she will not leave the podium! I then
ordered her to go back to the yard and she refused to go
back as well. I took a moment to walk down toward the
end of the limo line, and when I turned around towards the
podium, I was amazed to see Maitland soliciting custom-
ers by talking to them. I immediately went back to the po-
dium and told her not to speak to the customers and once
again asked her to go back to her car and once again she
refused. It was obvious that Maitland was deliberately
provoking a confrontation therefore I decided to speak
with her in the yard. Maitland finally got a ride around
11:25 p.m. from the airport. At about 12:20 a.m., I spoke
with Maitland along with Kammerer in front of the key
room and asked her what happened with her charter. She
told me that she will not speak to me without Stella (the
union rep). I then asked her to give the charter papers to
Kammerer, who actually did the run, and Maitland once
LAS VEGAS LIMOUSINE 1009
again refused. She actually said that she did the charter
therefore she will not turn over the charter to Kammerer. I
then asked her to explain herself but she just reiterated that
she would not speak to me without Stella. I told her that I
am just trying to do my job and you are making it very dif-
ficult for me. Kammerer then said, “It’s okay Jimmy, I
don’t need it.” I then made a copy of the charter from our
yellow copy for Kammerer to turn in to the cashier.

On October 17, Kahalehili met with Maitland and her union
representative, Stella Havis (Havis). He gave Maitland an em-
ployee action notice dated October 17 with “TERMINATION”
check marked. The notice read, “Refusal to follow an order of
a supervisor or other representative of the Employer. Failure of
a driver to perform an assigned charter.”
G. Alleged Imposition of More Onerous Conditions
In October, Maitland complained to Havis that starters at the
airport were carrying customers’ bags across the street to char-
tered sedans and soliciting tips. While Maitland liked help with
the baggage, she objected to the starters hustling tips. A meet-
ing to discuss the problem was held among Havis, Maitland,
Kahalehili, and Irvine. When Maitland explained the problem,
Kahalehili agreed with her concerns. As a resolution, Irvine
and Kahalehili proposed the substance of the following memo-
randum, which Havis said the Union could live with. On Octo-
ber 11, Respondent issued the memorandum to employees
without first showing it to the Union:

If you are first up at the door 14, you must stand by
your sedan and wait for an appropriate signal from a
starter. When a starter gives you a signal, you must walk
to the podium and bring the customers to your sedan.
You, the Driver, will load the luggage, and do not have the
customers load the luggage for you.

Maitland testified the memorandum directives constituted a
change that made conditions more difficult for her as she often
needed help with luggage either from the starters or from cus-
tomers. According to Smith, however, it was always the driv-
ers’ responsibility to take luggage to the vehicle and to load it.
III. DISCUSSION
A. Union Activity, Alleged Union Animus, and
8(a)(1) Statements
Maitland was indisputably involved in union activities at all
times relevant to the issues herein. It is not clear that her activ-
ity level was higher than that of other employees, but she did
live with DeShaw who was known to Respondent as the chief
union proponent and toward whose union activities Respondent
had evidenced animosity. Thus, both Frias and Kahalehili ex-
pressed hostility toward DeShaw’s attempts to represent em-
ployees at disciplinary meetings. There is no evidence that
Respondent projected its antagonism toward DeShaw’s pro-
tected activities onto Maitland, but it is not unreasonable to
infer that Respondent linked her with DeShaw, as counsel for
the General Counsel argues. Moreover, a sort of animus, albeit
mild, was directly specifically at Maitland in May, when Su-
pervisor Adam Lopez said, essentially, that he had better not
joke about her apparel, as she would complain to the Union. It
is reasonable to conclude that his comment reflected Respon-
dent’s apparent opinion that Maitland was involved with the
Union and likely to utilize their representational services.
Although I have accepted Maitland’s testimony of her inter-
action with Frias sometime around her May 29 suspension, I
cannot find Frias’ statements evidenced union animus or consti-
tuted a threat in violation of Section 8(a)(1) of the Act as al-
leged in the complaint. The General Counsel has not met his
burden of proof as to that. The evidence shows that Frias’
comments may have been made during or after Maitland was
suspended for the second time. His statements that she was
causing problems and that he would get rid of her may have
referred to the incidents giving rise to her suspensions and not
to any union activity. Indeed, it is more likely that his com-
ments referred to her recent work-related problems than her
union activity since her last conspicuous union activity had
been her involvement in the June 2001 semitruck demonstra-
tion and picketing nearly a year earlier. In any event, as part of
his burden, the General Counsel must link Frias’ May 2002
disapprobation to Maitland’s union activity rather than unpro-
tected conduct, and the General Counsel has not done so.
Therefore, I shall dismiss the allegation of the complaint relat-
ing to Frias having threatened employees.
The complaint also alleges, at paragraph 5(d), that at about
the end of July 2002, Kahalehili interrogated employees about
their union membership, activities, and sympathies. The only
evidence supporting that allegation was Horrocks’ testimony of
being asked by Kahalehili sometime between November 3,
2000, and January 29, what he was doing in the Union. His
testimony creates, as counsel for the General Counsel concedes,
a 10(b) problem. Horrocks filed the relevant charge on De-
cember 13 (Case 28–CA–18313), and Horrocks’ testimony puts
the alleged interrogation outside the relevant 10(b) period.
Section 10(b) of the Act is jurisdictional and the General Coun-
sel has the specific burden of establishing this statutory re-
quirement, which he has not done. I shall, therefore, grant the
Respondent’s motion to dismiss this allegation of the com-
plaint.19 Notwithstanding the General Counsel’s failure to es-
tablish a violation of Section 8(a)(1) by Kahalehili’s interroga-
tion of Horrocks, I find the interrogation is evidence of Re-
spondent’s animus toward the Union.
In sum, while the General Counsel has not established any
independent violations of Section 8(a)(1) of the Act in this
matter, the General Counsel has proven Respondent held ani-
mosity toward its employees union or other concerted protected
activities. There is, however, no evidence of animosity toward
employee activity protected by Section 8(a)(4) of the Act.
B. Maitland’s December 21, 2001, and May 29 Suspensions
and October 17 Discharge
The question of whether Respondent violated the Act in
twice suspending and discharging Maitland rests on its motiva-
tion. The Board established an analytical framework for decid-

19 Following Horrocks’ testimony at the hearing, Respondent moved
to dismiss par. 5(d) of the complaint, contending that the General
Counsel had failed to show any unlawful interrogation within the 10(b)
period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
ing cases turning on employer motivation in Wright Line.20 To
prove that an employee was discharged in violation of Section
8(a)(3), the General Counsel must first persuade, by a prepon-
derance of the evidence, that an employee’s protected conduct
was a motivating factor in the employer’s decision. If the Gen-
eral Counsel is able to make such a showing, the burden of
persuasion shifts “to the employer to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra at 1089. The burden shifts
only if the General Counsel establishes that protected conduct
was a “substantial or motivating factor in the employer’s deci-
sion.” Budrovich Contracting Co., 331 NLRB 1333 (2000).
Put another way, “the General Counsel must establish that the
employees’ protected conduct was, in fact, a motivating factor
in the [employer’s] decision.” Webco Industries, 334 NLRB
608 fn. 3 (2001).
The elements of discriminatory motivation are union activ-
ity, employer knowledge, and employer animus. Farmer Bros.
Co., 303 NLRB 638, 649 (1991). Here, the first two elements
are met: Maitland was actively involved in supporting the Un-
ion, and Respondent had to have been aware of her involve-
ment. As to the third element, although Respondent expressed
strong animosity toward DeShaw’s union activities, there is no
significant, direct evidence that Respondent bore animosity
toward Maitland for her union support. However, such direct
evidence is not essential. In determining whether the General
Counsel has met his initial burden of proving that an em-
ployee’s protected activity was a motivating factor in an em-
ployer’s decision to discharge the employee, the Board has held
that “a discriminatory motive may be inferred from circumstan-
tial evidence and the record as a whole, and that direct evidence
of union animus is not required.” Tubular Corp. of America,
337 NLRB 99 (2001), citations omitted. Here, where Maitland
was closely allied with DeShaw and participated with him in
union activities, I find that the strong animosity expressed to
him may reasonably reflect on Maitland. Even after DeShaw
left Respondent’s employ, Lopez’ comment to Maitland shows
Respondent pejoratively considered her to be likely to turn to
the Union with work-related complaints. Accordingly, I find
the General Counsel has met his initial burden of showing that
Maitland’s protected activity was a motivating factor in Re-
spondent’s decision twice to suspend and ultimately to dis-
charge her.
The General Counsel having carried his initial burden, the
burden shifts to Respondent to demonstrate that it would have
twice suspended and ultimately discharged Maitland even in
the absence of her protected activities. I find Respondent has
met its burden as to all three disciplinary actions against Mait-
land.
Regarding Maitland’s December 21, 2001 suspension for
passing off an office charter, the evidence shows that Respon-
dent prohibited drivers from passing off assigned charters to
other drivers without prior supervisory approval. Counsel for
the General Counsel accurately argues that witness testimony

20 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
shows that unapproved charter pass offs were not uncommon
among Respondent’s drivers. However, no testimony or other
evidence established that Respondent condoned the practice.
Smith, the General Counsel’s witness, testified she did not
think Respondent was aware that drivers passed off charters. In
2000, Respondent disciplined Horrocks for passing off a char-
ter. Respondent’s inability to deter all its drivers from passing
off charters does not translate into condonation. When, there-
fore, in December 2001 Respondent found Maitland had passed
off an assigned office charter without supervisory approval,
Respondent’s suspension of her was neither pretextual nor un-
reasonable. The evidence shows Respondent had a rule against
passing off charters. There is no evidence that Respondent
winked at violations of its rule. In the past, a driver had been
suspended for violating the rule. Maitland also violated the
rule, and she was disciplined. I conclude that Respondent
would have so disciplined Maitland for violating its established
policy even in the absence of her protected activities. Accord-
ingly, I shall dismiss the allegations of the complaint relating to
Maitland’s December 21, 2001 suspension.
As to Maitland’s May 29 suspension, there is no dispute that
on May 23, Maitland refused a supervisory order to take the
Rio charter at the airport. Counsel for the General Counsel
argues, essentially, that it was unfair of Respondent’s airport
supervisor to give the order and that Maitland was justified in
refusing it. But with employer work orders, like discipline, the
Board will not substitute its judgment for the employer’s.
Rather, the Board’s role is to determine if the employer’s prof-
fered basis for its action is the actual one, rather than a pretext
to disguise antiunion motivation.21 It is not extraordinary that
an employer should expect employees to follow supervisors’
directions. Indeed, Respondent and the Union provided in their
collective-bargaining agreement that refusal to do so would
constitute “just cause for discharge [even] without prior disci-
pline.” There is no evidence that Respondent’s airport supervi-
sor was motivated by considerations of union animus in direct-
ing Maitland to take the Rio charter or that he wished to “create
[an] incident,” as counsel for the General Counsel contends, on
which Respondent might base discriminatory action. The sim-
ple facts are that on May 23, Maitland refused a direct order
from a supervisor, and she was disciplined for doing so. There
is no evidence that any other driver refused direct supervisory
orders with impunity and no evidence as to why Maitland
should have been buffered from the consequences of a refusal.
I find that Respondent would have disciplined Maitland for her
refusal to comply with a supervisory order even in the absence
of her union or other protected activities. Accordingly, I shall
dismiss the allegations of the complaint relating to Maitland’s
May 29 suspension.
As to Respondent’s discharge of Maitland, an analysis simi-
lar to the one I have applied to her May 29 suspension pertains.
The underlying issue surrounding Maitland’s discharge is not
whether she excusably missed the Catledge charter, as counsel
for the General Counsel argues, but whether she once again
21 See Detroit Paneling Systems, 330 NLRB 1170, 1171 fn. 6 (2000).
LAS VEGAS LIMOUSINE 1011
refused to follow supervisory orders.22 Even accepting Mait-
land’s testimony of what occurred on October 16, the evidence
shows that Maitland blatantly and contentiously refused several
direct orders from her supervisor. Her defiance of supervisory
authority can in no way be justified, as counsel for the General
Counsel urges, by the arguable “legitimacy” of her concern
about the marketing of her sedan. Maitland’s October 16 refus-
als to follow orders constituted egregious misconduct. There is
no evidence that any other driver ever flouted Respondent’s
authority as Maitland did on October 16, and there is no evi-
dence that Respondent would have tolerated such conduct if
one had. Therefore, there is no basis for finding pretext in Re-
spondent’s termination of Maitland. Accordingly, I find that
Respondent has met its burden of showing that Maitland would
have been discharged for her conduct even if she had engaged
in no union or other protected activity, and I shall dismissed the
allegations of the complaint relating to Maitland’s discharge.23
C. Alleged Imposition of More Onerous Conditions
The General Counsel alleges Respondent’s October directive
to sedan drivers to load their customers’ luggage without cus-
tomer or starter assistance to violate Section 8(a)(3) and (4) of
the Act. The directive came after consultation with the Union
following Maitland’s complaints. There is no evidence to show
that the directive had anything to do with, or was in any way
motivated by, Maitland’s or other employees’ union activities
or filing charges or giving testimony under the Act. Respon-
dent showed no animosity toward Maitland for having taken
her concerns to the Union and, in fact, agreed with her position.

22 Although Maitland’s termination notice mentions her failure to
perform an assigned charter, it is clear that Respondent’s review of her
conduct centered on her refusal to follow her supervisor’s orders.
23 The complaint alleges that Respondent’s May 29 suspension and
October 17 discharge of Maitland was also motivated by her having
filed charges or given testimony under the Act in violation of Sec.
8(a)(1) and (4) of the Act. The analysis herein applies equally to the
8(a)(4) allegations of the complaint.
Moreover, the Union agreed with the terms of the directive.
Accordingly, I shall dismiss the allegations of the complaint
relating to imposition of more onerous conditions.
Conclusion
I conclude the General Counsel failed to meet his burden of
proving that Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge or by interrogating em-
ployees and failed to meet his burden of proving that Respon-
dent violated Section 8(a)(1), (3), and (4) of the Act by impos-
ing more onerous conditions of employment on employees. I
further find that Respondent has proven its affirmative defense
under Wright Line of demonstrating that it would have sus-
pended Maitland on December 21, 2001, and May 29, and dis-
charged her on October 17 even in the absence of her protected
activities. Therefore, I recommend the complaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The complaint is dismissed.

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.