Park 'N Go of Minnesota LP

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1260 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 152
1260
Park ‘N Go of Minnesota LP and International
Brotherhood of Teamsters Local 120.1 Cases 18–
CA–17473 and 18–RC–17320
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On May 17, 2005, Administrative Law Judge Keltner
W. Locke issued the attached bench decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed limited cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommend Order of the administrative law judge as modi-
fied below and orders that the Respondent, Park ‘N Go
of Minnesota LP, Minneapolis, Minnesota, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this order.”
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of employee Robin Lokken, and within 3 days
thereafter, notify her in writing that this has been done
and that the unlawful discharge will not be used against
her in any way.”

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001).
We find merit in the General Counsel’s exception and shall modify the
judge’s recommended Order to add a requirement that the Respondent
expunge from its records any reference to the unlawful discharge of
Robin Lokken.
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights guaranteed to
them by Section 7 of the Act.
WE WILL NOT tell employees that we have discharged
an employee because that employee supported a union or
engaged in other activities protected by the Act.
WE WILL NOT tell employees that supporting a union
may make an employee ineligible for reinstatement.
WE WILL NOT condition the reinstatement of an em-
ployee on the employee’s renouncing or abandoning
support for a union.
WE WILL NOT discourage employees from supporting
the Union by asking them to tell us their work-related
grievances and promising to remedy those grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Robin Lokken immediate and full rein-
statement to her former position, or to a substantially
equivalent position if her former position is not available,
and WE WILL make Robin Lokken whole, with interest,
for all losses she suffered because of our unlawful dis-
crimination against her.
WE WILL notify Robin Lokken that we have removed
from our files any reference to her discharge and that the
discharge will not be used against her in any way.
PARK ‘N GO OF MINNESOTA LP
PARK ‘N GO OF MINNESOTA LP 1261
Sandra C. Francis, Esq., for the General Counsel
James F. Hendricks Jr., Esq. and Becky L. Voss-Kalas, Esq.
(Fisher & Phillips, LLP), of Chicago, Illinois, for the Re-
spondent.
Martin J. Costello, Esq. (Hughes & Costello), of St. Paul, Min-
nesota, for the Charging Party
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on March 9, 2005, in Minneapolis, Minnesota. On March
10, 2005, after the parties rested, I heard oral argument, and on
March 11, 2005, I issued a bench decision pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations. In accor-
dance with Section 102.45 of the Rules and Regulations, I cer-
tify the accuracy of, and attach hereto as “appendix A,” the
portion of the transcript containing this decision.1 The Findings
of Fact, Conclusions of Law, Remedy, Order and notice provi-
sions are set forth below.
Complaint Paragraph 5(d)
Inadvertently, the bench decision did not address the allega-
tions in complaint paragraph 5(d). Therein, the General Coun-
sel had alleged that on about November 22, 2004, Respondent,
by its Director of Operations Paul Rutigliano, in a memo circu-
lated to all of its employees, warned them that supporting a
union made an employee ineligible for employment. Respon-
dent’s answer admitted that it had circulated a memorandum
indicating that Robin Lokken would not be reinstated.
Rutigliano had written the memo, to “All Park ‘N Go Em-
ployees,” because employees had signed a petition asking that
Respondent reinstate Lokken. The memo stated that he had
received this petition and continued:
I always thought of Robin as a good worker, and un-
derstood that her reasons for attempting to organize a un-
ion have had everything to do with the problems she had
with [Manager] Keith [Bateman]. So, I took steps to work
out an arrangement with Robin that would allow her to re-
turn to work with full back pay and without loss of any of
her benefits. I met with Robin twice last week to discuss
her potential return. It was my full intention that she re-
turn to work as soon as possible.
It came to my attention on Friday that on Thursday
night Robin was helping the union to distribute handouts
at the terminal pickup area. Furthermore, I have since
heard that Robin is purporting to “Set the Record Straight”
by telling you that I never planned to hire her back. That
is simply not true.
While I don’t dispute her right to help the Teamsters
while she is not employed here as a supervisor, the reason
that we terminated Robin’s employment in the first place
was because we found that she was actively involved in
the organizing drive. As a supervisor, we expected her to

1 The bench decision appears in uncorrected form at pp. 247 through
276 of the transcript. The final version, after correction of oral and
transcriptional errors, is attached as appendix A to this certification.
act in the best interests of the company, and we don’t feel
that having a union here is in the best interests of the com-
pany.
You should understand that under the National Labor
Relations Act, which protects the rights of non–
supervisory employees, we were well within our rights to
do so. “Employees,” as defined by the Act, do not include
“supervisors.” Supervisory employees are not included
for reasons that are intended to protect YOU. Allowing a
supervisor, who has the power to recommend or initiate
employee terminations, to take sides and get involved in
union organizing activities would be to allow the Union
the power to have employees who didn’t support them
fired.
As you undoubtedly know by now, I have decided not
to pursue bringing Robin back. Robin’s continued in-
volvement with the union while discussing reinstatement
with me, in my view, indicates that she’s not invested in
making the relationship work. We just don’t need that
kind of divisive presence here.
This memo clearly communicates to employees that Respon-
dent would not reinstate Lokken because of her continued un-
ion activities. There can be little doubt that such a statement
violates Section 8(a) (1) of the Act. Hospital Shared Services,
330 NLRB 317, 318 (1999); Grimmway Farms, 314 NLRB 73,
74 (1994).
The memo asserts that Lokken did not enjoy the protection
of the Act because she was a supervisor. For the reasons stated
in the bench decision, I have concluded that Lokken was not a
supervisor within the meaning of Section 2(11) of the Act. The
fact that the memo incorrectly claims that Lokken’s union ac-
tivities were unprotected does not take the coercive effect out
of the statement that Lokken would not be rehired or reinstated
because of her continued support for the union. Accordingly, I
recommend that the Board find that Respondent violated the
Act by the conduct alleged in complaint paragraph 5(d).
The Representation Case
To expedite resolution of the representation case, I recom-
mend that the Board sever Case 18–RC–17320 and remand it to
the Regional Director so that the challenged ballots cast by the
five dispatchers may be opened and counted. The Employer
asserted that these individuals were statutory supervisors but,
for the reasons discussed in the bench decision, I have con-
cluded that the Employer failed to carry its burden of proof on
this issue.
It may be noted that the unit description set forth in the Oc-
tober 29, 2004 Stipulated Election Agreement does not mention
the dispatchers. Rather, the Employer and the Union agreed
that the dispatchers could vote subject to challenge. The Em-
ployer has contested the voting eligibility of these individuals
only on the basis that they are supervisors, and has not ad-
vanced any other arguments for excluding these employees
from the bargaining unit. The Stipulated Election Agreement
describes that unit as follows:
All full–time and regular part–time shuttle drivers,
valets, and cashiers employed by the Employer at its 7901
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1262
International Drive, Minneapolis, Minnesota facility, ex-
cluding maintenance employees, office clerical employees,
managers, and guards and supervisors as defined in the
Act.
Like the shuttle drivers, valets and cashiers, the dispatchers
receive an hourly wage rather than a salary. Some of the dis-
patchers regularly perform cashier duties. All are employed at
a single location and have common supervision.
Although the dispatchers receive a higher hourly wage rate
than other employees, and although they may work shorter
shifts than some of the other employees, these differences do
not cause the dispatchers’ interests to diverge significantly from
those of the other hourly workers. Accordingly, I conclude that
the dispatchers share a community of interest with the other
employees in the bargaining unit and appropriately should be
included in that unit.
To summarize, I recommend that the Board overrule the
challenges to the ballots cast by the five dispatchers (Annette
Carlson, Melissa Dale, Gary Engelstad, Lilia Gomez, and
Robin Lokken) and that these ballots be opened and counted.
For the reasons discussed in the bench decision, I recommend
that the challenge to the ballot cast by James Rock be sustained.
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, including posting the notice to em-
ployees attached as appendix B.
Additionally, Respondent must offer Robin Lokken immedi-
ate and full reinstatement to her former position or to a substan-
tially equivalent position if her former position no longer is
available. Respondent also must make Lokken whole, with
interest, for all losses suffered because of its unlawful discrimi-
nation against her.
CONCLUSIONS OF LAW
1. The Respondent, Park ‘N Go of Minnesota LP, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party, International Brotherhood of Team-
sters, Local 120, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
telling its employees that it had discharged an employee be-
cause of her union activities, by conditioning the employee’s
reinstatement on her abandoning support for a union, by warn-
ing employees that supporting a union made an employee ineli-
gible for reinstatement, and by soliciting employee grievances
and promising benefits to dissuade employees from supporting
a union.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by discharging employee Robin Lokken on about October
15, 2004, and thereafter failing and refusing to reinstate her.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6. The Respondent did not engage in any unfair labor prac-
tices alleged in the complaint not specifically found herein.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended2
ORDER
The Respondent, Park ‘N Go of Minnesota LP, Minneapolis,
Minnesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting and promising to remedy employee grievances,
or making any other promise of benefits to employees to dis-
suade them from supporting a labor organization.
(b) Telling employees that it had discharged an employee
because of her support for a labor organization or that her sup-
port for a labor organization made her ineligible for reinstate-
ment.
(c) Conditioning the reinstatement of an employee on her
abandoning support for a labor organization.
(d) Discharging and refusing to reinstate an employee be-
cause the employee joined, supported or assisted a labor or-
ganization.
(e) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer immediate and full reinstatement to employee
Robin Lokken to her former position or, to a substantially
equivalent position if her former position is no longer available,
and make her whole, with interest, for all losses she suffered
because of her unlawful discharge.
(b) Preserve and, on request, make available to the Board or
its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its fa-
cilities in Minneapolis, Minnesota, copies of the attached notice
marked “Appendix B.”3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.

2 If no exceptions are filed as provided by Sec.102.46 of the Board’s
Rules and Regulations, these findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all pur-
poses.
3 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.”
PARK ‘N GO OF MINNESOTA LP 1263
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 current employees and former employees employed by the
Respondent at any time since October 15, 2004.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the
steps that the Respondent has taken to comply.
3. Case 18–RC–17320 is hereby severed from Case 18–CA–
17473 and remanded to the Regional Director for Region 18 for
further proceedings consistent with this Decision and Order.
APPENDIX A
Bench Decision
This consolidated proceeded concerns the eligibility of cer-
tain individuals to vote in a Board conducted representation
election, and whether the employer of these individuals com-
mitted unfair labor practices. In particular, the Complaint al-
leges that Respondent unlawfully discharged employee Robin
Lokken because of her Union activities. Because I conclude
that she was not a supervisor within the meaning of Section
2(11) of the Act, I find that her discharge was unlawful. Fur-
ther, I conclude that she and four other persons employed as
supervisor/dispatchers were eligible to vote in the November
30, 2004 election, and recommend that the Board overrule the
challenges to their ballots. I am issuing this bench decision
pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations.
Procedural History
Case 18–RC–17320
On October 19, 2004, the International Brotherhood of
Teamsters, Local 120, which I will refer to as the “Union” or
the “Charging Party,” filed a petition to represent certain em-
ployees of Park ‘N Go of Minnesota LP, which I will call the
“Employer” r “Respondent.” The parties entered into a Stipu-
lated Election Agreement which the Board’s Regional Director
for Region 18 approved on October 29, 2004. This agreement
provided that the Board would conduct an election on Novem-
ber 30, 2004 and that the following employees would be eligi-
ble to vote:
All full–time and regular part–time shuttle drivers,
valets, and cashiers employed by the Employer at its 7901
International Drive, Minneapolis, Minnesota facility, ex-
cluding maintenance employees, office clerical employees,
managers, and guards and supervisors as defined in the
Act.
By entering into the Stipulated Election Agreement, the par-
ties agreed that this unit was appropriate for collective bargain-
ing. The parties did not agree, however, about the voting eligi-
bility of the Employer’s dispatchers. Instead, they agreed that
these individuals could vote, subject to challenge.
At the election on November 30, 2004, the Board agent chal-
lenged the ballots of five persons employed as dispatchers be-
cause their names were not on the voter eligibility list. The
Board agent also challenged the ballot of James Rock for the
same reason. The Employer contends that Rock earlier had
resigned, but the Union asserts that Rock was on a leave of
absence.
The November 30, 2004 tally of ballots indicates that chal-
lenged ballots could determine the outcome of the election.
More specifically, the tally of ballots states as follows:
Approximate number of eligible voters……….…………56
Number of void ballots…………………………..……None
Number of votes cast for Petitioner……………..………25
Number of votes cast against participating labor
Organization …..……...………………..………..……...24
Number of valid votes counted…………………………49
Number of challenged ballots……………………….…...6
Number of valid votes counted plus challenged ballots…55
Challenges are sufficient in number to affect the results of
the election.
Accordingly, the Board must determine the voting eligibility
of James Rock and the 5 dispatchers, whose names are Annette
Carlson, Melissa Dale, Gary Engelstad, Lilia Gomez, and
Robin Lokken.
On February 1, 2005, the Regional Director issued a Report
on Challenged Ballots, Order Directing Hearing and Order
Consolidating Cases, which I will refer to as the “Report and
Order.” It consolidated the representation case, 18–RC–17320,
with an unfair labor practice case which I will now describe.
Case 18–CA–17473
On November 16, 2004, the Union filed the initial unfair la-
bor practice charge in Case 18–CA–17473. The Union
amended the charge on November 23, 2004 and again on Janu-
ary 24, 2005. As amended, the charge alleged that Respondent
interfered with, restrained and coerced employees in the exer-
cise of rights guaranteed by the National Labor Relations Act,
thereby violating Section 8(a)(1) of the Act, and discharged an
individual, Robin Lokken, in violation of Section 8(a)(1) and
(3) of the Act.
On February 1, 2005, after investigation of the charge, the
Regional Director issued a Complaint and Notice of Hearing,
which I will call the “Complaint.” In issuing this complaint,
the Regional Director acted on behalf of the General Counsel of
the Board, whom I will refer to as the “General Counsel” or as
the “ government.” On the same date, the Regional Director
issued the Report and Order which consolidated the representa-
tion and unfair labor practice cases.
On March 9, 2005 a hearing opened before me in Minneapo-
lis, Minnesota. The parties presented evidence on that date.
On March 10, counsel presented or\al argument and today,
March 11, 2005, I am issuing this bench decision.
Admitted Allegations
Respondent’s Answer to the Complaint admits a number of
allegations. Based upon those admissions, and upon a stipula-
tion during the hearing, I find that the government has proven
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1264
the allegations in Complaint paragraphs 1(a), 1(b), 1(c), 2(a),
2(b), 2(c), 2(d), 3, 5(a), and 6(a). More specifically, I find that
the Union filed and served the unfair labor practice charge and
amended charges as alleged, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act, that Respondent meets the Board’s standards
for assertion of jurisdiction, and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Additionally, based on Respondent’s admissions, I find that
on about October 29, 2004, Respondent, in a letter signed by its
Director of Operations Paul Rutigliano, told an employee that
the employee was fired for supporting a union organizing drive,
as alleged in Complaint paragraph 5(a).
Similarly, based on Respondent’s admissions, I find that on
about October 15, 2004, Respondent discharged Robin Lokken,
as alleged in Complaint paragraph 6(a).
Respondent has admitted some, but not all, of the allegations
raised in certain other paragraphs of the Complaint. For sim-
plicity, I will discuss these admissions later in this decision, in
connection with the associated allegations which Respondent
has denied.
Disputed Allegations
The 8(a)(1) Allegations
In subparagraphs 5(a) through 5(e), the Complaint alleges
that Respondent violated Section 8(a)(1) of the Act by making
certain statements to employees during the union organizing
campaign leading up to the November 30, 2004 election. The
first three of these subparagraphs concern statements Respon-
dent allegedly made to dispatcher Lokken in connection with
her discharge. The fourth subparagraph concerns a statement
about Lokken’s discharge which Respondent allegedly made to
other employees. For clarity, at this point I will defer consid-
eration of these allegations and address them later, in connec-
tion with the allegation that Respondent violated Section
8(a)(3) by terminating Lokken’s employment.
Complaint subparagraph 5(e)
Complaint subparagraph 5(e), which Respondent denied, al-
leges that on or about November 26 and 27, 2004, Respondent,
by its Owner and President John Bona Sr., in conversations
with several employees, solicited employee grievances, prom-
ised a benefit package, and promised to address employees’
concerns about scheduling in order to dissuade employees from
supporting a union. To establish this allegation, the General
Counsel relies upon the testimony of two Park ‘N Go employ-
ees, Marvin Wallace and Jean Lee.
Wallace described an occasion when he went to Respon-
dent’s facility to pick up his paycheck. Wallace and another
employee saw that Park ‘N Go’s president and owner, John
Bona Sr., was present. They went over to Bona and introduced
themselves.
Wallace testified that “after we introduced ourselves, Mr.
Bona said he wants to make it clear that he doesn’t want a un-
ion there.” According to Wallace, Bona told them that he
dropped the ball by hiring Keith Bateman to be manager of the
Minneapolis operation, “but if we gave him another year he
would make the working conditions a lot better. He promised
to get us a benefit package.”
Bona did not testify. Based on my observations of the wit-
nesses, I believe that Wallace’s testimony is reliable and credit
it.
Employee Jean Lee described a similar meeting with Bona.
Lee’s testimony is somewhat confusing, but she indicated that
Bona made comments about the Union and also promised to
correct a problem with an employee’s work schedule.
For several reasons, including demeanor observations, I do
not credit Lee’s testimony, which tended to be vague. Addi-
tionally, she first testified that Bona said he would “fix” the
employee’s schedule problem but later quoted Bona as saying
he would “work on it.”
When asked, during cross–examination, if she harbored any
animosity or anger towards the company, Lee answered with a
single word: “No.” However, her tone of voice was so sharp it
seemed to contradict the denial. Moreover, Lee then acknowl-
edged that Respondent had discharged her father. Obviously,
she might bear bad feelings towards Respondent for that rea-
son, so I suspect that her tone of voice may have revealed her
state of mind more accurately than what she said. In sum, I do
not have a lot of confidence in Lee’s testimony, and do not rely
upon it.
Although Respondent’s owner Bona did not take the witness
stand, Respondent did call Paul Rutigliano, who was operations
manager at Respondent’s Minneapolis facility at the time.
According to Rutigliano, Respondent’s President Bona visited
the Minneapolis facility on the weekend after Thanksgiving
2004, which was less than a week before the election.
In meetings with various employees, Bona—sometimes ac-
companied by Rutigliano, expressed his concerns about the
Union. According to Rutigliano, Bona met with a total of more
than 35 employees during this visit.
Bona carried a written speech and referred to it for “talking
points,” but did not read it verbatim. Bona’s speech, which
Respondent introduced into evidence, states as follows:
Let me open this meeting by telling you how much I
appreciate having you working at Park ‘N Go. You are
the backbone of our organization.
You have truly opened our eyes with this union cam-
paign. Until we started receiving some charges of dis-
crimination and the petition from the Teamsters, we
thought we had a happy group of co-workers. Paul tells
me that’s what it was like when he left here in ______.
I want to assure you that we have been and continue to
take the steps necessary to make this a place where our
employees want to work.
I can’t tell you how disappointed I was to learn that
you went to a third-party—the Teamsters—to speak for
you. Our policy has always been that any employee can
call either me or Roseann if they had any problems or is-
sues with Park ‘N Go in Minneapolis.
I made the decision to have Paul come here to find out
what the problems were prior to receiving the petition
from the Teamsters. It didn’t take Paul long to find out
that we had a serious management problem.
PARK ‘N GO OF MINNESOTA LP 1265
Based on Paul’s recommendation, I terminated Keith’s
job as a member of our management team. I readily admit
that I made a mistake in promoting Keith to a manager’s
position. That became very evident as soon as Paul ar-
rived here.
I promise that Keith will not hold a position in man-
agement at this facility again. I’ve been told that the
Teamsters have told you that Keith will be back—you
have my word that Keith will never manage this facility
again.
Paul has been meeting and talking with you in an ef-
fort to let you know what this election involves—what the
results of the election mean to all of us. We have also
given you information about this union. Frankly, they ap-
pear to be bad people. It appears they take your money
and reward themselves very generously—hundreds of
thousands of dollars per year!
While I have admitted my mistakes, I think bringing in
the Teamsters to represent you would be a huge mistake
for your [sic] personally. All they can do for you is take
your money. The Teamsters don’t give you anything.
Only our company can give you wages and benefits.
The Teamsters have a reputation for strikes and vio-
lence. Are these the people you want as your representa-
tive. I’m shocked at the information we have found on
this union. I truly believe working with Paul, Roseann and
me can be far better for you—and we don’t charge you to
work with us.
(Respondent’s Exh. 11; original in all capital letters.) In the
speech, “Paul” refers to operations manager Paul Rutigliano
and “Keith” refers to former facility manager Keith Bateman.
Operations Manager Rutigliano testified that he didn’t hear
Bona promise employees anything except on one issue. Ac-
cording to Rutigliano, when an employee requested that infor-
mation concerning an employee’s accrued sick and vacation
days appear on the payroll stub, “we said that’s something that
we could probably do with our payroll company.”
Before discussing whether any of Bona’s statements to em-
ployees violated Section 8(a)(1) of the Act, a preliminary mat-
ter should be addressed. Complaint paragraph 4 alleges that
Bona and Rutigliano are Respondent’s supervisors within the
meaning of Section 2(11) of the Act and its agents within the
meaning of Section 2(13) of the Act. However, Respondent
has not admitted these allegations.
Instead, it answered Complaint paragraph 4 by stating as fol-
lows: “Respondent does not know what is meant by the phrase
‘at all material times. . .’ in the context of this paragraph, and,
therefore, is without sufficient knowledge or information to
form a belief as to the truth or falsity of the allegations in para-
graph 4 and demands strict proof thereof.”
Bona’s speech, which Respondent introduced into evidence,
states in part “Based on Paul’s recommendation, I terminated
Keith’s job as a member of our management team. I readily
admit that I made a mistake in promoting Keith to a manager’s
position.”
The speech thus indicates that Bona possesses and exercises
authority to promote and discharge employees. That admission
is consistent with the commonsense impression that a com-
pany’s owner and president would have some of the powers of
a supervisor which Section 2(11) of the Act enumerates. Ac-
cordingly, I find that at the time he spoke with employees in
late November 2004, Bona was Respondent’s supervisor and
agent within the meaning of Sections 2(11) and 2(13) of the
Act, respectively.
The same portion of Bona’s speech just quoted also indicates
that Operations Manager Paul Rutigliano made an effective
recommendation that one of Respondent’s managers be dis-
charged. Moreover, Rutigliano testified that his duties as op-
erations manager included overseeing all facets of the operation
on a daily basis. Based on this testimony and the record as a
whole, I conclude that while employed as Respondent’s opera-
tions manager, Rutigliano was Respondent’s supervisor and
agent within the meaning of Sections 2(11) and 2(13) of the
Act.
In sum, the statements which Bona and Rutigliano made to
employees can be imputed to the Respondent. I will now con-
sider whether such statements violated the Act.
Absent a previous practice of doing so, the solicitation of
grievances during an organizational campaign accompanied by
a promise, expressed or implied, to remedy such grievances
violates the Act. See Laboratory Corporation of America
Holdings, 333 NLRB 284 (2001). The present record does not
establish that Respondent had a previous practice of soliciting
grievances, and I conclude that it did not.
When an employer institutes a new practice of soliciting em-
ployee complaints during an organizational campaign, there is a
compelling inference of an implicit promise to correct the ineq-
uities discovered and to convince employees that the combina-
tion of inquiry and correction will make union representation
unnecessary. The Park Associates, Inc., d/b/a Hill Park Health
Care Center, 334 NLRB 328 (2001), citing DTR Industries,
311 NLRB 833, 834 (1993).
In the present case, Respondent’s own evidence indicates
that Bona made more than an implicit promise to remedy past
problems and thereby make union representation unnecessary.
Bona’s written speech, which formed the basis for his oral
statements to employees, more than hints at such a promise. It
conveys the promise inescapably.
At the outset, Bona’s speech tells employees that “you have
truly opened our eyes with this union campaign.” In the next
paragraph, the speech assures employees “that we have been
and continue to take the steps necessary to make this a place
where our employees want to work.” The two adjoining para-
graphs, considered together, clearly convey the message that
after the union campaign made management aware of work-
place problems, Respondent acted promptly to correct them and
would continue to improve working conditions.
The speech then points out the action Respondent already
had taken to remedy the situation which caused employees to
seek union representation: Respondent discharged the facility
manager. Going further, Bona’s speech tells employees “you
have my word that Keith will never manage this facility again.”
The speech leaves no doubt about the connection between
the union campaign and Respondent’s promise to improve
working conditions. At one point in the speech, Bona ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1266
presses disappointment that employees had gone to the Union,
and then he reminds employees that they may come directly to
him with their concerns.
Later in the speech, Bona states that the “Teamsters have a
reputation for strikes and violence” and asks the employees
rhetorically if these are the people they want as their represen-
tative. At another point in the speech, Bona says “Frankly, they
appear to be bad people.”
The Complaint does not allege this comment as a violation
of Section 8(a)(1), so I need not decide whether it constitutes an
expression of opinion lawful under Section 8(c) of the Act.
Additionally, the record does not disclose whether Bona actu-
ally made this “appear to be bad people” statement during any
of his conversations with employees. The written speech does
not prove what words Bona used but only memorialized the
ideas—the “talking points”—which Bona wished to communi-
cate.
Moreover, as a rule, establishing that a statement violates
Section 8(a)(1) does not require proof of the speaker’s intent.
Rather, the Board judges the lawfulness of a statement by con-
sidering the message it reasonably would convey to employees.
The speech does not acquire relevance as a reflection of the
speaker’s intent because the 8(a)(1) allegation raises no issue of
intent.
Nonetheless, the speech still has probative value because
Bona referred to it when he spoke with employees and pre-
sumably it helped him stay “on message.” Although the gov-
ernment need not prove the speaker’s intent to establish an
8(a)(1) violation, evidence of the speaker’s intent still sheds
light on what the speaker actually communicated. Stated an-
other way, it usually would be more likely that a speaker suc-
cessfully communicated the message he intended to convey
rather than some other message.
The written speech bears a definite similarity to the words
which employee Wallace attributed to Bona. Wallace’s cred-
ited testimony establishes that Bona said he did not want a un-
ion and assured Wallace that “if we gave him another year he
would make the working conditions a lot better. He promised
to get us a benefit package.” Applying an objective standard, I
conclude that an employee reasonably would understand
Bona’s statement to be a promise of benefits linked to the em-
ployees’ rejection of the Union.
In its prehearing brief, Respondent argues that Bona’s state-
ments to employees “are simply not enough to constitute solici-
tation of grievances. While it is true that the Board has stated
in the past that solicitation of grievances during a union orga-
nizing campaign constitutes an implied promise to remedy such
grievances, that ‘does not change the requirement that an em-
ployer must pose the question to employees: ‘What are your
gripes?’” Respondent cites EFCO Corp., 327 NLRB 372
(1998), and the administrative law judge’s decision in Wal-
Mart Stores, Inc., 2003 NLRB LEXIS 302, Case No. 16–CA–
20391–0001–0 (June 10, 2003).
Respondent’s argument focuses on the question posed to
employees rather than the benefit the employer promises in
response. However, it “is the promise, expressed or implied, to
remedy the grievances that constitutes the essence of the viola-
tion.” Laboratory Corporation of America Holdings, above.
As Respondent appears to concede, the Board has held that a
new practice of questioning employees about their work–
related complaints, begun during an organizing campaign, cre-
ates a rebuttable presumption that the employer is promising to
remedy the problems. Respondent has not rebutted that pre-
sumption. Indeed, in this case Respondent’s promise was not
merely implied but overt.
In sum, based on Wallace’s testimony, I find that Respon-
dent’s President Bona solicited employee grievances and prom-
ised a benefit package to dissuade employees from supporting
the Union, as alleged in Complaint subparagraph 5(e). Further,
I recommend that the Board find that Respondent thereby vio-
lated Section 8(a)(1) of the Act, as alleged in Complaint para-
graph 7.
Complaint paragraph 5(e) also alleges that Respondent, by
its President Bona, promised to address employees’ concerns
about scheduling to dissuade employees from supporting a
union. Because I have not credited the testimony of Jean Lee, I
conclude that the General Counsel has not established this alle-
gation and recommend that the Board dismiss it.
The Discharge of Robin Lokken
Robin Lokken began work for Respondent, as a “dis-
patcher/supervisor,” in November 2001. Respondent admits
that it discharged her on October 15, 2004 because of her par-
ticipation in the Union’s organizing drive. Respondent’s Direc-
tor of Operations, Paul Rutigliano, sent Lokken an October 29,
2004 letter giving the following explanation for her discharge:
Your employment was terminated on October 15, 2004
because we were made aware that you were instrumentally
involved in soliciting and obtaining employee signatures
in support of a union organizing drive. As a supervisor for
Park ‘N Go of Minnesota, LP, you should not have been
engaging in such activities.
This letter not only provides evidence of Respondent’s rea-
son for discharging Lokken, it also forms the basis for the
8(a)(1) allegation raised in Complaint subparagraph 5(a). It
alleges that on about October 29, 2004, Respondent, in a letter
signed by its Director of Operations Paul Rutigliano, told an
employee that the employee was fired for supporting a union
organizing drive.
Respondent admits sending Lokken the letter, which is in
evidence, but denies that the letter violated Section 8(a)(1) of
the Act, as alleged in Complaint paragraph 7. Respondent’s
defense turns on whether Lokken was a supervisor within the
meaning of Section 2(11). In view of Respondent’s admission
and the letter itself, I find that the General Counsel has proven
the factual allegations raised by Complaint paragraph 5(a).
Respondent made other statements either to Lokken or to
others about her discharge, and the Complaint alleges that some
of these statements violated Section 8(a)(1). More specifically,
Complaint subparagraph 5(b) alleges that on about November
16, 2004, Respondent, by its Director of Operations Paul
Rutigliano, at a restaurant near the Embassy Suites Hotel in
Bloomington, Minnesota, conditioned an employee’s rein-
statement on abandoning support for a union.
PARK ‘N GO OF MINNESOTA LP 1267
In its Answer to this allegation, Respondent admitted that
Paul Rutigliano met with “former supervisory employee”
Robin Lokken on or about November 16, 2004, to discuss her
possible reinstatement. The Answer further stated that Lokken
was told that because her position was supervisory, she would
be expected to cease her union organizing activities in the event
she were reinstated. During the hearing, Rutigliano gave testi-
mony consistent with this admission. Accordingly, I find that
the government has proven the factual allegations set forth in
Complaint paragraph 5(b).
Complaint subparagraph 5(c) alleges that on about Novem-
ber 19, 2004, Respondent, by its Director of Operations, Paul
Rutigliano, warned an employee that the employee’s handbill-
ing and other activities in support of a union prevented the em-
ployee’s reinstatement. Respondent’s Answer admitted that
Rutigliano spoke with Lokken on about November 19, 2004.
The Answer further stated as follows: “Lokken was told that
because she had been seen handing out union literature on the
evening of November 18, after her discussion with Paul
Rutigliano regarding reinstatement to her supervisory position,
Respondent was no longer interested in reinstating her. Re-
spondent denies the remaining allegations contained in para-
graph 5(c).” At the hearing, Rutigliano gave testimony consis-
tent with this admission. Based on Respondent’s Answer and
Rutigliano’s testimony, I find that the General Counsel has
proven the factual allegations raised in Complaint subparagraph
5(c).
Having found that the government has proven the factual al-
legations raised by Complaint subparagraphs 5(a), 5(b), 5(c)
and 5(d), I must now consider whether Respondent’s actions
violated Section 8(a)(1), as alleged in Complaint paragraph 7.
The lawfulness of Respondent’s statements concerning Lok-
ken’s discharge depends on the lawfulness of the discharge
itself, an issue I will now address.
Respondent has raised the defense that Lokken was a statu-
tory supervisor, but before considering this defense I must de-
termine whether Lokken’s discharge would be lawful if she
were not a supervisor. Obviously, if that were the case, Re-
spondent’s defense would be unnecessary.
In most cases, the Board evaluates the lawfulness of a dis-
charge by applying the criteria it set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Where an employer clearly has
discharged an employee for engaging in protected activities, a
Wright Line analysis is not necessary. See, e.g., Phoenix Tran-
sit System, 337 NLRB 510 (2002); Saia Motor Freight Line,
Inc., 333 NLRB 784 (2001).
Respondent’s October 29, 2004 letter to Lokken plainly
states that it discharged her for engaging in union activities.
Under this unusual circumstance, Phoenix Transit System rather
than Wright Line applies, and a Wright Line analysis is not
necessary.
However, in case the Board should disagree with my conclu-
sion that Phoenix Transit System applies, I will analyze the
facts alternatively under the Wright Line framework. That
framework requires the judge first to consider whether the Gen-
eral Counsel has presented sufficient evidence to associate the
discharge with the protected activities of the discharged worker
or other employees. If so, then the burden shifts to the Respon-
dent to establish that it would have discharged the employee
even in the absence of protected activities.
To make the required initial showing, the government must
prove four elements. First, it must establish the existence of
activity protected by the Act. Second, it must show that the
Respondent knew about the protected activity. Third, the gov-
ernment must prove that Respondent took an adverse employ-
ment action against the worker. Finally, the government must
show some kind of link or nexus between the protected activity
and the adverse employment action.
Together, Respondent’s admissions and its October 29, 2004
letter to Lokken satisfy all four requirements. Indeed, a single
sentence of that letter establishes protected activity, employer
knowledge, an adverse employment action, and the necessary
connection: “Your employment was terminated on October 15,
2004 because we were made aware that you were instrumen-
tally involved in soliciting and obtaining employee signatures
in support of a union organizing drive.”
The burden therefore shifts to Respondent to show that it
would have taken the same action regardless of Lokken’s pro-
tected activity. Typically, an employer meets that burden by
establishing that it took the same action against other employ-
ees in circumstances which were similar except for an absence
of protected activity. Respondent did not present evidence that
it had discharged other employees in similar circumstances
devoid of union activities and logically, it could not do so be-
cause it admittedly terminated Lokken’s employment because
of her union activities. For that reason, I have concluded that
Wright Line does not apply.
In sum, if Lokken is an employee within the meaning of Sec-
tion 2(3) of the Act, her discharge violated the Act. However,
Respondent contends that Lokken was not a Section 2(3) em-
ployee but instead was a Section 2(11) supervisor.
The party asserting that someone is a supervisor, in this case
the Respondent, bears the burden of proving it. Benchmark
Mechanical Contractors, Inc., 327 NLRB 829 (1999); Alois
Box Co., Inc., 326 NLRB 1177 (1998); Youville Health Care
Center, Inc., 326 NLRB 495, 496 (1998). If Respondent does
not carry this burden, Lokken’s discharge was unlawful and so
were Respondent’s statements about it described in Complaint
subparagraphs 5(a) through 5(d).
Section 2(11) of the Act defines “supervisor” to mean “any
individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.” See 29
U.S.C. § 152(11).
To warrant a conclusion that a particular person meets the
statutory definition of supervisor, the evidence must establish
three elements: (1) That the individual had authority to per-
form at least one of the functions listed in the statute; (2) that
the individual exercised this authority in the interest of the Em-
ployer, and (3) that the exercise of such authority is not of a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
merely routine or clerical nature but requires the use of inde-
pendent judgment.
Lokken worked for Respondent about 3 years. Her job title
was “dispatcher/supervisor.” Lokken testified that she some-
times referred to herself as a “supervisor” because the manager
to whom she reported, Keith Batemen, used that term. Al-
though there is some uncertainty, the record suggests that
Bateman used the term “supervisor,” rather than “dis-
patcher/supervisor,” when referring to individuals in such posi-
tions.
Generally, Lokken worked the 2 p.m. to 10 p.m. shift, Mon-
day through Friday, and typically, during the later part of that
shift no one higher in the chain of command was present at the
facility.
Lokken credibly described her job duties as greeting custom-
ers when they came in, telling them where to park, signalling
for a shuttle to pick up the customers, making sure that a driver
was at the proper airport location to pick up a customer return-
ing from a trip, occasionally sending drivers to a terminal to
pick up passengers, answering the telephone, and completing
paperwork. The paperwork included a dispatch sheet and a
Supervisor/Dispatcher Office Report form used as a kind of log
to record events that happened on her shift. Other dispatchers
also filled out such sheets. Lokken had a key to the cash box
and counted the money received during her shift.
The record does not establish that Lokken ever exercised or
possessed authority to hire, transfer, suspend, lay off, recall,
promote, discharge, reward, or discipline other employees, or
effectively recommend such action. However, the parties dis-
agree concerning how much authority Lokken possessed to
assign employees, to responsibly direct them, and to adjust their
grievances.
The Supervisor/Dispatcher Office Report forms which Lok-
ken completed documented some occasions when she allowed
an employee to leave early. For example, on the report for
August 10, 2004, Lokken wrote, “Jim Rock left early because
of other job injury. I let Derek leave early—very slow (Busi-
ness not Derek).”
Lokken testified that when work was slow, she selected
which driver could leave early based on the amount of hours
each driver already had worked. She would choose the driver
who had worked the most hours, to minimize the amount of
overtime the Respondent had to pay.
On a report which Lokken completed on September 9, 2004,
she wrote “I called Tuan in early.” Lokken denied that she
possessed or ever exercised any authority to compel an em-
ployee to report for work early, rather than merely requesting it.
The evidence does not establish that she had such authority.
Lokken’s boss, Keith Bateman, issued an August 23, 2004
memo to supervisors, overnight cashiers and drivers, concern-
ing problems with the shuttles being dirty. The memo stated
that the supervisors must inspect the outside of the shuttle for
damage and the inside for cleanliness before the driver parked
the shuttle at the end of the shift. The memo set forth other
guidelines pertaining to the shuttle and concluded “Supervisors
are responsible for overseeing that these guidelines are met.”
However, the memo does not indicate that the supervi-
sor/dispatchers possessed any authority to enforce the guide-
lines by imposing or effectively recommending disciplinary
action. No other evidence establishes that supervi-
sor/dispatchers had such authority, and I conclude that they did
not.
In sum, although the record does not indicate that the super-
visor/dispatchers possessed or exercised any authority to act on
the employer’s behalf in adjusting grievances, I find that Lok-
ken and other supervisor/dispatchers did possess and exercise
some authority to assign and direct employees.
To establish that an individual is a Section 2(11) supervisor,
however, Respondent must show that the exercise of this au-
thority was not of a merely routine or clerical nature, but re-
quired the use of independent judgment. Respondent points
out that the complexity of a task does not determine whether or
not the individual used independent judgment. On the other
hand, a party asserting that someone is a supervisor must show
that the judgment exercised was something more than merely
routine or clerical.
The present record does not establish that Lokken or any of
the other supervisor/dispatchers exercised any judgment, or
made any decision, which went beyond the routine. Clearly,
deciding which employee could leave early based on hours
worked does not entail the use of much independent judgment
and neither did the other decisions made by the supervi-
sor/dispatchers.
Respondent stresses that during half of each shift, no higher
management personnel were present at the facility even though
13 or so employees might be on duty. Respondent also notes
Respondent had a large amount of expensive equipment at the
jobsite and that Lokken had the only key to the cash box, which
typically might contain thousands of dollars.
These arguments go to the amount of trust Respondent
placed in the supervisor/dispatchers rather than to the amount
of independent judgment they possessed and exercised.
In sum, I conclude that the evidence fails to establish that ei-
ther Lokken or the other supervisor/dispatchers were supervi-
sors within the meaning of Section 2(11) of the Act. Therefore,
I conclude that Respondent violated the Act by discharging
Lokken and also by the statements described in Complaint sub-
paragraphs 5(a) through 5(d).
The Challenged Ballots
As already noted, during the November 30, 2004 election,
the Board agent challenged the ballots of five persons in the
supervisor/dispatcher job category because these individuals
were not listed on the voter eligibility list. In its prehearing
brief, Respondent expressed willingness to stipulate that one of
these supervisor/dispatchers, Annette Carlson, was not a 2(11)
supervisor. She worked on the day shift, the brief explained,
where higher management was present.
However, for reasons already discussed I have concluded
that none of the individuals met the Section 2(11) definition of
supervisor. Moreover, one of them, Robin Lokken, had been
discharged unlawfully. Accordingly, I recommend that the
challenges to their ballots be overruled.
The Board agent also challenged the ballot of driver James
Rock because his name wasn’t on the voter eligibility list. The
Union contends that Rock was on a leave of absence at the time
PARK ‘N GO OF MINNESOTA LP 1269
of the election. Respondent asserts that Rock, a part-time em-
ployee, earlier had informed management that he could no
longer work for Respondent during the scheduled hours be-
cause those hours conflicted with his fulltime job as a mechanic
with Northwest Airlines. Accordingly, Respondent asserts,
Rock’s employment was terminated.
To support its argument that Respondent never terminated
Rock’s employment, the Union states that Rock never received
an employment termination notice prescribed by Minnesota
law. It also alludes to evidence suggesting that Respondent was
ordering a jacket for Rock to wear upon his return to work in
January.
With respect to the notice of termination argument, Minne-
sota Statutes 2002, section 181.933, subdivision 1, states as
follows:
Notice required. An employee who has been involun-
tarily terminated may, within 15 working days following
such termination, request in writing that the employer in-
form the employee of the reason for the termination.
Within ten working days following receipt of such request,
an employer shall inform the terminated employee in writ-
ing of the truthful reason for the termination.
No one contends that Rock suffered an involuntary termina-
tion. Rather, the issue concerns whether he quit or took a leave
of absence. Moreover, the record does not establish that Rock
requested a written statement concerning termination of his
employment. In these circumstances, the state law pertaining to
involuntary terminations does not apply.
Because the cited Minnesota statute did not impose a duty on
Respondent to provide Rock with a written termination notice,
and because no evidence establishes either that Respondent
otherwise had a duty to provide such notice or a practice of
doing so, no inference can be drawn from the fact that Rock did
not receive one.
With respect to the jacket argument, the evidence does not
convince me that Respondent intended to order a jacket for
Rock. Additionally, its payroll records indicate that Rock’s
employment was terminated on October 27, 2004.
The Union contends that this termination date is suspicious
because it was a considerable time after Rock informed man-
agement of the job conflict and stopped working for Respon-
dent part–time. However, that argument is not persuasive.
The general rule is that to be eligible to vote in an election,
an employee must be working during the specified eligibility
period and also at the time of the election. When they entered
into the Stipulated Election Agreement, the parties agreed that
the eligibility period would be the payroll period ending Octo-
ber 29, 2004. Clearly, Rock was not working for Respondent
on that date. Rock also was not working for Respondent on
November 30, 2004, the day of the election.
Accordingly, Rock was not eligible to vote in the election.
Therefore, I recommend that the challenge to his ballot be sus-
tained.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, Remedy, Order and Notice.
When that Certification is served upon the parties, the time
period for filing an appeal will begin to run.
Throughout this proceeding, all counsel have demonstrated
high standards of professionalism and civility, which are truly
appreciated. The hearing is closed.