Sodexho Marriott Services, 7-CA-40637(1)(2)

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 538 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538
Sodexho Marriott Services, Inc. and Local 79, Service
Employees International Union, AFL–CIO,
CLC and Richard Bowie. Cases 7–CA–
40637(1)(2), 7–CA–40942, and 7–RC–21246
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On December 1, 1998, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Respondent filed exceptions, a supporting brief, an an-
swering brief, and a reply brief, and the General Counsel
filed cross-exceptions, a supporting brief, and an answer-
ing brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this decision and to
adopt the recommended Order as modified and set forth
in full below.3
On January 1, 1998, the Respondent, Sodexho Marriott
Services, Inc., assumed responsibility for providing envi-
ronmental services at Botsford Hospital in Farmington
Hills, Michigan. The Respondent brought in a new man-
agement team, but hired the former Botsford environ-
mental services employees.

1 There are no exceptions to the judge’s recommended dismissal of
the alleged 8(a)(1) violations discussed in the penultimate paragraph of
sec. II,C,1, and in secs. II,C,2 through 5 of his decision.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
3 Pars. 7(d) and 27 of the June 17, 1998 Second Amended Consoli-
dated Complaint allege, in conjunction, that the Respondent violated
Sec. 8(a)(1) of the Act on about January 21, 1998, by threatening em-
ployees with discipline and termination if they left the Respondent’s
facility in protest over a paycheck dispute. The judge set forth the facts
underlying this allegation in the third paragraph of sec. II,C,1 of his
attached decision, and he found the 8(a)(1) violation in the final two
paragraphs of that section. We affirm that finding. Par. 1(c) of the
judge’s recommended Order remedies this violation. However, the
judge inadvertently failed to refer to this unlawful conduct in his rec-
ommended notice to employees. We shall amend the notice to conform
to the Order in this respect.
Also, the judge found that the Respondent unlawfully discharged
several employees in violation of Sec. 8(a)(3) of the Act. Although par.
2 of the judge’s recommended Order contains the appropriate affirma-
tive remedies for these violations, there is no corresponding cease-and-
desist provision in par. 1 of the recommended Order (although the
judge did include appropriate language in his recommended notice).
We shall amend the Order to include an appropriate cease-and-desist
provision.
In December 1997, the Union, Local 79, Service Em-
ployees International Union, AFL–CIO, CLC, com-
menced an organizational campaign. That campaign
intensified in January 1998. The Union filed its petition
on February 4, 1998, and the election was held on March
12 and 13. The tally of ballots showed 62 for and 66
against the Union, with 17 challenged ballots. Both par-
ties filed objections to the election. In addition, the Un-
ion filed unfair labor practice charges against the Re-
spondent. The cases were consolidated. The judge con-
cluded that the Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act, and interfered
with the laboratory conditions required for a fair election.
He, therefore, recommended that the election be set aside
and rerun, if following the counting of five challenged
ballots (the challenges to which the judge found to be
without merit), the Union failed to prevail.
We agree with the judge that the Respondent violated
Section 8(a)(1) by interrogating employees concerning
their union sentiments, disparately enforcing its no-
distribution/no-solicitation policy against supporters of
the Union, threatening employees with loss of wages and
benefits, giving employees the impression that their ac-
tivities on behalf of the Union were under surveillance,
promising a raise and promotion to an employee if the
employee abandoned support for the Union, and threat-
ening employees about wearing buttons in support of the
Union.
In addition, we agree with the judge that the Respon-
dent violated Section 8(a)(3) by discharging employees
Dennis Tookes, Ebony Thurmand, Shalonda Davidson,
Dennis Barber, and Daryl Dillard, and lowering the per-
formance evaluation of Richard Bowie because of their
union activities. We also conclude, contrary to the judge,
that the discharge of Cecelia McBride violated Section
8(a)(1) of the Act.
I. THE DISCHARGE OF DENNIS TOOKES
Dennis Tookes had worked at Botsford as a house-
keeper since he was hired in August 1992, and he had an
unblemished work record prior to his discharge on Janu-
ary 22. He was also one of the earliest supporters of the
Union. As the judge found from the credited evidence,
the Respondent was aware that Tookes met with a union
organizer and signed and distributed authorization cards,
and the Respondent unlawfully interrogated and threat-
ened him for his union activities.
Tookes’ discharge occurred the day after a confronta-
tion between a group of employees and the Respondent
over a delay in receiving paychecks. On January 7, the
first payday after the Respondent took over the manage-
335 NLRB No. 43
SODEXHO MARRIOTT SERVICES 539
ment of environmental services at Botsford Hospital,
paychecks arrived late. On January 21, the following
payday, the paychecks were late again, and Team Leader
Gregory Mahone called a meeting of approximately 25
employees that afternoon to inform them that paychecks
would not arrive until later that evening or the following
morning. The employees became quite agitated, and
several, including Tookes, said, “No pay, no work.”
Tookes became the unofficial spokesman for the group
and demanded to see Connie Silverstein, the general
manager. The group proceeded to the door of the man-
agement office, where a number of employees shouted
and used obscenities. During this incident, Tookes used
several obscenities and kicked the office door, demand-
ing to see Silverstein. Security was summoned, and the
group dispersed. Silverstein emerged from her office
and spoke briefly with Tookes and several employees
who had not yet left the scene, but refused to answer
questions and returned to her office.
Immediately after the incident, Mahone followed
Tookes and two other employees into the restroom and
said, “Dennis, you‘re too outspoken and they don’t like
that, watch your step, Ron4 and Connie are out to fire you
guys and clean house.”
On January 22, the following day, on arriving for
work, Tookes was sent to Silverstein’s office. She told
him he was being terminated and gave him a termination
letter of the same date. The letter stated that Tookes was
being terminated for “gross misconduct,” “insubordina-
tion,” “verbal accosting of a manager,” and “failure to
return to work as instructed by management” on January
21. Neither Silverstein nor anyone else in management
discussed the reasons for his discharge with Tookes in
any further detail. No other employee was disciplined
for the preceding day’s incident.
The Respondent asserts that Tookes was discharged
solely for engaging in unprotected misconduct during the
January 21 protest. The judge, however, concluded from
the credited evidence that the Respondent used Tookes’
behavior outside the management office during that inci-
dent as a convenient pretext for discharging him for un-
lawful reasons.
We agree with the judge that the Respondent’s as-
serted reasons for the discharge were pretextual, and that
the real reason for the discharge was the Respondent’s
antiunion animus. As noted above, although several em-
ployees in addition to Tookes shouted and used profanity
during the January 21 confrontation, none but Tookes
was disciplined. Before the discharge, Mahone told
Tookes that he had seen him passing out union cards and

4 “Ron” referred to Ronald Plasky, another team leader.
gave him reason to believe he was under surveillance for
his union activity. Immediately after the January 21 in-
cident, Mahone told Tookes that management was “out
to fire you guys and clean house.”5 In addition, Tookes
was discharged on January 22 without any discussion,
and without being given any chance to explain his con-
duct even though he had a perfect 6-year employment
record. Given this evidence, we agree with the judge that
the Respondent took advantage of the January 21 inci-
dent to conceal its unlawful motive for the discharge.6
The discharge consequently violated Section 8(a)(1) and
(3) of the Act.
It is true, as our dissenting colleague emphasizes, that
an employee engaged in concerted activity may lose the
protection of Section 7 by engaging in that activity in an
egregious or abusive manner. If the factual context of
Tookes’ discharge were limited to the paycheck delay,
the employees’ consequent dissatisfaction, and Tookes’
conduct on January 21—i.e., if there were no established
surrounding context of union activity and employer ani-
mus—we would have no other evidence that the motive
for the discharge was unlawful. It would then be neces-
sary for us to determine whether Tookes’ behavior in
using profanity and kicking the Respondent’s office
door—which we do not condone—took him outside the
zone of Section 7’s protected concerted activity. How-
ever, because we agree with the judge that Tookes was
discharged for his union activity before January 21, we
need not make that determination. Even assuming ar-
guendo that Tookes’ behavior, viewed in isolation,
5 Mahone also described himself to another employee shortly after-
ward as a “union buster [who] was there to clean house and would get
rid of all the bad workers,” and made other unlawful statements indicat-
ing the Respondent’s intent to target union supporters.
6 The judge found that “Tookes was terminated for engaging in pro-
tected concerted activity over the paycheck issue,” but also that the
Respondent had a “predetermined plan to create a reason to terminate
Tookes and rid the facility of one of the leading union activists.” He
concluded by finding that the Respondent terminated Tookes “either for
his engaging in protected concerted activities in violation of Section
8(a)(1) . . . or for his engaging in union related conduct in violation of
Section 8(a)(1) and (3).”
In view of Mahone’s comment to Tookes immediately after the
January 21 incident, confirming that Tookes had already been targeted
by management, and the additional credited evidence of the Respon-
dent’s continuing union animus, we find that the Respondent dis-
charged Tookes for his union activity. Because we agree with the
judge that the Respondent’s stated reason for the discharge was pretex-
tual, we need not go through the burden-shifting inquiry as to whether
Tookes would have been discharged had he not engaged in union activ-
ity, as required by Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), of establishing
that it would have taken the same action absent Tooke’s union activi-
ties. Fluor Daniel, Inc., 304 NLRB 970, 971 (1991), enfd. 976 F.2d 744
(11th Cir. 1992); Arthur Young & Co., 291 NLRB 39 (1988), enfd. 884
F.2d 1387 (4th Cir. 1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540
would have been a lawful basis for discharging him, the
credited evidence affirmatively establishes that he was
discharged for another reason which was unlawful under
the Act.7 Tookes’ behavior on January 21 did not give
the Respondent a license to discharge him for engaging
in union activity. Accordingly, the discharge violated
Section 8(a)(3).
II. THE DISCHARGE OF CECELIA MCBRIDE
The General Counsel asserted that Cecelia McBride
was wrongfully terminated for refusing to answer ques-
tions at an investigatory interview for which she had re-
quested an employee witness. He argued that because
she had reasonable cause to believe that the meeting
would result in disciplinary action being taken against
her, she had the right to a witness. He also argued that
the Respondent had changed its past practice of allowing
employees to have witnesses during individual meetings
with the Respondent’s managers.
Rejecting the General Counsel’s argument, the judge
concluded that because McBride was not represented by
a union, she did not have the Section 7 right to represen-
tation enjoyed by unionized employees.8 Moreover, the
judge reasoned, even if McBride had such a Section 7
right, it was not applicable here because the meeting at
issue was not convened for the purposes of conducting
an investigation. The judge, relying on the Board’s deci-
sion in Sears, Roebuck & Co.,9 concluded, therefore, that
McBride was terminated for legitimate reasons unrelated
to any protected conduct.
In Epilepsy Foundation of Northeastern Ohio, 331
NLRB 676 (2000), which issued after the judge’s deci-
sion, the Board overruled Sears and held that the princi-
ples of Weingarten,10 should be extended to employees in
nonunionized workplaces. The facts here are as follows:
On February 27, 1999, McBride returned to work follow-
ing a 5-day absence for illness. Supervisor Greg Mahone
saw McBride in the elevator and requested that she re-
port to work in the linen room at the completion of her
current task. McBride insisted, however, that she had
been taken out of the linen room. Mahone testified that
McBride also gave him other reasons why she would not

7 This conclusion is further supported by the events which led to the
January 21 confrontation. Again, even assuming arguendo that
Tookes’ conduct outside the manager’s office was unprotected, we find
it highly unlikely that the Respondent would have terminated, without
discussion, an employee with a perfect work record for his reacting
with some heat to a second consecutive delay in receiving his pay.
8 See NLRB v. J. Weingarten, 420 U.S. 251 (1975) (employee repre-
sented by union has right to union witness in investigatory interview
which the employee reasonably believes may lead to discipline).
9 274 NLRB 230 (1985)
10 Id.
go to the linen room. Mahone then directed her to report
to his office to discuss the matter.
When McBride arrived at Mahone’s office around 9:35
a.m., Environmental Services Managers Dee Houston,
John Samara, and William Prout were present with Ma-
hone in the office. McBride was accompanied by fellow
employee Rodney Howard, whom she wanted to have as
her witness. Mahone asked Howard to return to his work
area. McBride protested that she wanted an employee
witness before she would participate in the meeting.
Mahone said that the Respondent did not have a policy of
permitting employee witnesses to attend meetings con-
cerning a work problem between an employee and su-
pervisor. Mahone told Howard to return to his work
area, and he did so.
Mahone then began the meeting, and after reiterating
that the Respondent did not have a policy of permitting
employee witnesses, he told McBride to report to the
linen position. McBride again protested that it was un-
fair that there were other managers present in the office
while she was not allowed to have an employee witness.
Mahone asked McBride why she could not perform the
linen room assignment. McBride protested again that
she did not have a witness and that the meeting was un-
fair. Mahone asked her if she could document a condi-
tion that would prevent her from working in the linen
department. McBride refused to answer. After attempt-
ing to elicit a response, Mahone said, “[B]y acting silent
and not responding to me you are indicating to me that
you are refusing to work in the position I am assigning.
This action is in violation of [the Respondent’s] work
rules, is an act of insubordination, and is grounds for
immediate termination.” (Emphasis added.) McBride
continued to remain silent. Mahone then terminated her,
effective immediately.
The judge concluded that Mahone held the meeting
with McBride for two reasons. The first was to explain
to McBride that the Respondent did not have a policy of
allowing employee witnesses during meetings to discuss
work problems between an employee and supervisor.
The second reason was to inquire whether McBride had
any explanation for her refusal to work in the linen room.
The record does not support a finding that one of the
purposes of the meeting was to explain the Respondent’s
policy regarding witnesses. McBride’s demand for a
witness occurred for the first time at the meeting. There-
fore, it could not have been a motivating factor in sched-
uling the meeting.
Contrary to the judge, we believe that the second rea-
son given for the meeting, to determine whether McBride
had a particular reason for refusing to go to the linen
room, supports the conclusion that the meeting consti-
SODEXHO MARRIOTT SERVICES 541
tuted an investigation. In her conversation with Mahone
at the elevator, McBride had refused to accept an as-
signment to the linen room. Refusal to accept an as-
signment was a violation of the Respondent’s work rules
constituting insubordination and could result in immedi-
ate dismissal. It was therefore reasonable for McBride to
believe that her meeting with Mahone was an investiga-
tory interview that might lead to disciplinary action
against her. This entirely reasonable belief would almost
certainly have been reinforced when McBride arrived for
her meeting, only to find that Mahone had been joined in
his office by three other managers, and when her chosen
employee witness was shortly thereafter sent away. In
the meeting, Mahone investigated McBride’s refusal,
trying to find out why McBride declined the assignment,
and whether she had any medical or other mitigating
circumstances to explain her refusal. Since the meeting
constituted an investigation and was reasonably likely to
lead to discipline, McBride had a right to a witness dur-
ing the meeting. Yet, Mahone refused her request for a
witness, and then proceeded to conduct the interview
with three other managers present.
Our dissenting colleague, citing Taracorp Industries,
273 NLRB 221 (1984), contends that the General Coun-
sel failed to prove that the discharge was based on
McBride’s assertion of her Epilepsy Foundation right to
have another employee present rather than on her refusal
to obey a work order. However, as noted above, the re-
cord establishes that Mahone discharged McBride spe-
cifically for remaining silent after she asserted her right
to an employee witness. The direct correlation between
the Respondent’s action and McBride’s assertion of her
rights is not altered by Mahone’s attempt to mischarac-
terize McBride’s refusal to answer as a refusal to obey a
work order. Taracorp Industries is therefore inapposite.
See Epilepsy Foundation, supra at 680 fn. 14; Safeway
Stores, 303 NLRB 989, 989–990 (1991).
III. UNION’S SECOND OBJECTION TO
ELECTION—EMPLOYEE DISCHARGES
The judge concluded that the Respondent terminated
five employees to discourage union activity, and thereby
destroyed laboratory conditions and precluded a free and
fair election. We agree with the judge that the five dis-
charges were unlawful. However, they all occurred be-
fore the filing of the petition. Laboratory conditions be-
gin with the filing of the petition. See Goodyear Tire &
Rubber Co., 138 NLRB 453, 455 (1962). Consequently,
the discharges cited by the judge could not be deemed to
destroy laboratory conditions.
However, contrary to the judge, we have found that the
discharge of Cecelia McBride violated Section 8(a)(1) of
the Act. The discharge occurred on February 27, after
the filing of the petition on February 4. We find that the
discharge of McBride did destroy laboratory conditions
and precluded a free and fair election. We therefore af-
firm the judge’s decision to uphold the Union’s second
objection.
ORDER
The National Labor Relations Board orders that the
Respondent, Sodexho Marriott Services, Inc., Farming-
ton Hills, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union
membership, sympathy, and activity.
(b) Giving employees the impression that their activi-
ties on behalf of the Union are under surveillance.
(c) Threatening employees with discipline and termi-
nation if they leave the Respondent’s facility in protest
over a paycheck dispute.
(d) Threatening an employee for wearing union but-
tons in support of the Union.
(e) Informing an employee that the employee’s less fa-
vorable evaluation is because of the employee’s activity
on behalf of the Union.
(f) Promising a raise and promotion to an employee if
the employee abandons support and ceases activity on
behalf of the Union.
(g) Disparately enforcing its no-distribution/no-
solicitation policy against supporters of the Union.
(h) Threatening employees with the loss of benefits
and jobs if they select the Union as their collective-
bargaining representative.
(i) Telling employees not to discuss working condi-
tions and the Union with other employees.
(j) Discharging or otherwise discriminating against
employees for supporting the Union.
(k) Discharging or otherwise disciplining employees
for requesting an employee witness or representative to
be present at an interview reasonably likely to lead to
discipline.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
employees Dennis Tookes, Ebony Thurmand, Shalonda
Davidson, Dennis Barber, Darryl Dillard, and Cecelia
McBride full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed. Addition-
ally, the Respondent must reinstate the original perform-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
ance evaluation of Richard Bowie prepared by his former
supervisor.
(b) Make employees Dennis Tookes, Ebony Thur-
mand, Shalonda Davidson, Dennis Barber, Darryl Dil-
lard, and Cecelia McBride whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from the files any reference to the unlawful discharges
and the February 16, 1998 performance evaluation of
Richard Bowie, and within 3 days thereafter notify the
employees in writing that this has been done and that the
discharges and the performance evaluation will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place 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.
(e) Within 14 days after service by the Region, post at
its facility in Farmington Hills, Michigan copies of the
attached notice marked “Appendix.”11 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 21,
1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

11 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.”
IT IS FURTHER ORDERED that the ballots of em-
ployees Gloria Fox, Dennis Tookes, Ebony Thurmand,
Dennis Barber, Cecelia McBride, and Darryl Dillard be
opened and counted, and that a revised tally of ballots
issue in Case 7–RC–21246.
IT IS FURTHER ORDERED that should the revised
tally of ballots show that a majority of votes has been
cast for the Union, then the Regional Director for Region
7 shall issue a certification of representative. If the re-
vised tally shows that a majority has not been cast for the
Union, the election shall be set aside and a rerun election
conducted.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I would find that the dis-
charges of Dennis Tookes and Cecelia McBride were
lawful.
I. DISCHARGE OF DENNIS TOOKES
The judge found that Tookes engaged in protected con-
certed activity on January 21 and that he was discharged
therefor, in violation of Section 8(a)(1). Alternatively, the
judge found that Tookes engaged in union activity prior to
January 21, and that he was discharged therefor, in viola-
tion of Section 8(a)(3). My colleagues rely solely on the
alternative theory of violation. In my view, Tookes en-
gaged in misconduct on January 21, and he was lawfully
discharged therefor. That is, even assuming arguendo that
union activity was a reason for the discharge, the Respon-
dent would have discharged him in any event for his mis-
conduct on January 21.
Under Wright Line,1 the General Counsel must prove
that antiunion animus was a substantial or motivating
factor in the employer’s decision to discharge. Once that
showing has been made, the Respondent has an opportu-
nity to prove its affirmative defense that it had a lawful
reason for the discharge, and would have discharged the
employee even in the absence of union activity. Here,
assuming arguendo that the General Counsel has met his
burden under Wright Line, the Respondent has shown
that Tookes would have been discharged, even in the
absence of union activity, because of his conduct on
January 21.
My colleagues say that they do not condone Tookes’
conduct of January 21. Further, they do not quarrel with
1 251 NLRB 1083 (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). See, e.g., New Orleans Cold
Storage & Warehouse Co., 326 NLRB 1471 (1998) (analytical frame-
work of Wright Line is applicable in dual or mixed motive cases after
the General Counsel has established employee union activity, employer
knowledge of that activity, animus towards such activity, and adverse
action taken against those involved in, or suspected of involvement in,
that activity).
SODEXHO MARRIOTT SERVICES 543
the proposition that Tookes’ conduct of January 21 could
have been a lawful basis for discharge. Rather, they say
that Tookes was “discharged for another reason,” i.e., his
antecedent union activity.
My colleagues’ position concerning Tookes’ conduct
of January 21 is understandable. Tookes played a leader-
ship role in the event. He exclaimed to Supervisor Ron
Plasky, “Where’s my pay check, mother-fucker?” . . . .
“You got paid . . . you asshole, you give me some
money.” Tookes kicked and banged the office door. He
demanded in a loud voice to see the General Manager
Connie Silverstein, and said, “Where’s fucking Connie?”
This outburst was not precipitated by any employer un-
fair labor practice. On the contrary, the Respondent was
trying to accommodate the employees by paying them on
Wednesdays, which had been the customary payday un-
der predecessor Botsford, rather than paying them on
Thursdays, which is the regular payday at all of the other
Respondent’s facilities nationwide. In sum, Tookes
acted as a leader and incited the hostile crowd; he di-
rected vulgar epithets to a supervisor, and about the gen-
eral manager; and he engaged in the physical outburst of
kicking and banging the office door.
My colleagues conclude that the discharge was based
on Tookes’ antecedent union activity. That conclusion is
clearly wrong. Tookes had been an open union advocate
since December 1997, and the Respondent had not acted
adversely toward him at all. It was only after he engaged
in the misconduct of January 21 that Respondent fired
him.
My colleagues also rely on the fact that Tookes was
the only one discharged, despite the fact that other em-
ployees shouted profanities and participated in the events
of January 21. However, Tookes was the leader and
spokesperson for the group of employees who demon-
strated on January 21. In addition, he alone was the per-
son who kicked and banged the door of the Respondent’s
office and shouted profanities at a supervisor on that
date. This was not a simple outburst of a few words.
Tookes’ action disrupted the workplace. In these cir-
cumstances, it is clear that the Respondent would have
fired Tookes on January 22 for his conduct of January
21, even if Tookes had not engaged in union activity. I
find, therefore, that Tookes’ discharge was not unlawful
under Section 8(a)(3) of the Act.
II. DISCHARGE OF CECELIA MCBRIDE
I also disagree with my colleagues’ conclusion that the
Respondent’s investigatory meeting with McBride, and
her subsequent discharge were unlawful. For the reasons
set forth in my dissent in Epilepsy Foundation of North-
east Ohio,2 I believe that the Board should continue the
principle, established in Sears,3 that an employee in a
nonunion facility has no Section 7 right to the assistance
of another employee at an investigatory interview.
Moreover, even if McBride had a right to such assis-
tance, and even if the denial of assistance was unlawful,
the Respondent was not precluded from discharging her
for the misconduct that led to the interview and which
was repeated at the interview.4 That is, the Respondent
discharged McBride for refusing to work in the linen
room. Such a refusal was insubordinate and provided
lawful grounds for the Respondent’s discharge of
McBride.
My colleagues appear to conclude that McBride was
discharged for making the request for employee assis-
tance, i.e., for asserting her right to an employee witness
under Epilepsy Foundation. However, the General
Counsel has not established that her request was the rea-
son for the discharge. The sequence of events at the
meeting is important. The Respondent did not discharge
McBride after she asked for assistance. Rather, The Re-
spondent simply denied the request. McBride was dis-
charged only after she refused the assignment to work in
the linen room. Thus, the refusal to work, and not the
request for assistance, was the reason for the discharge.
The Respondent asked McBride several times why she
could not, or would not, do the linen room work, and she
declined to answer. Finally, the Respondent advised her
that her silence would be construed as a refusal to work,
which would lead to discharge. Still McBride remained
silent. She was then discharged for refusing to accept the
work assignment to the linen room, a lawful basis for the
discharge.
In view of my conclusion that the discharge of Mc-
Bride was lawful, I also disagree with my colleagues’
decision to sustain the Union’s election objection which
is based on that discharge.
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.

Section 7 of the Act gives employees these rights.

To organize

2 331 NLRB 676 (2000).
3 Sears, Roebuck & Co, 274 NLRB 230 (1985).
4 Taracorp Industries, 273 NLRB 221 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate our employees concerning
their union sentiments; disparately enforce a no-
distribution/no-solicitation policy against supporters of
the Union; threaten employees with loss of benefits;
threaten to discharge employees who support the Union;
threaten employees with loss of wages and benefits; give
employees the impression that their activities on behalf
of the Union are under surveillance; tell employees not to
discuss working conditions and the Union with other
employees; lower performance evaluations because of an
employee’s protected activity; promise a raise and pro-
motion to an employee if the employee abandoned sup-
port for the Union; and threaten employees about wear-
ing union buttons.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 79, Service Em-
ployees International Union, AFL–CIO, CLC, or any
other union.
WE WILL NOT threaten employees with discipline
and termination if they leave our facility in protest over a
paycheck dispute.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL allow employees to have witnesses present
in any meeting which is reasonably likely to lead to dis-
cipline or discharge and we will not discharge or other-
wise discipline any of you for requesting a witness or
representative to be present at an interview reasonably
likely to lead to discipline.
WE WILL, within 14 days from the date of the Board’s
Order, offer Dennis Tookes, Ebony Thurmand, Shalonda
Davidson, Dennis Barber, Darryl Dillard, and Cecelia
McBride full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Dennis Tookes, Ebony Thurmand,
Shalonda Davidson, Dennis Barber, Darryl Dillard, and
Cecelia McBride whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Dennis Tookes, Ebony Thurmand, Sha-
londa Davidson, Dennis Barber, Darryl Dillard, and
Cecelia McBride, and the February 16, 1998 perform-
ance evaluation of Richard Bowie and WE WILL, within
3 days thereafter, notify each of them in writing that this
has been done and that the discharges and the perform-
ance evaluation will not be used against them in any
way.

SODEXHO MARRIOTT SERVICES, INC.

Richard Czubaj, Esq. and Dara J. Diomande, Esq., for the
General Counsel.
Dennis M. Devaney, Esq., of Detroit, Michigan, for the Re-
spondent-Employer.
Rita Smith, Esq., of Detroit, Michigan, for the Charging Party-
Petitioner.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on July 6 through 10 and August 10
and 11, 1998,1 in Detroit, Michigan, pursuant to a second
amended consolidated complaint and notice of hearing (the
complaint) issued by the Regional Director for Region 7 of the
National Labor Relations Board (the Board) on June 17. In
addition, on May 26, Region 7 ordered consolidated certain
issues arising from the representation election in Case 7–RC–
21246. The complaint, based upon original and amended
charges in Cases 7–CA–40637(1)(2) filed by Local 79, Service
Employees International Union, AFL–CIO, CLC (the Charging
Party or the Union) and an original and amended charge filed
by Richard Bowie (Bowie) in Case 7–CA–40942, alleges that
Sodexho Marriott Services, Inc. (the Respondent or the Em-
ployer) has engaged in certain violations of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act).
The Union’s petition was filed on February 4, and sought an
election among certain of Respondent’s employees. An elec-
tion was held pursuant to a Stipulated Election Agreement, on
March 12 and 13. The tally of ballots issued on March 13,
shows that of approximately 149 eligible voters, 145 ballots
were cast, 62 in favor of representation by the Union, 66
against, and 17 were challenged. The challenged ballots are
sufficient in number to affect the outcome of the election. The
Union and Respondent filed objections to conduct affecting the
results of the election on March 20.
Thereafter, as noted, the Regional Director concluded that
the allegations of the objections to the election along with the
issues raised by the determinative challenged ballots in Case 7–
RC–21246 parallel certain issues with the complaint allegations
in Cases 7–CA–40637(1)(2) and 7–CA–40942, and ordered the
consolidation of those cases for hearing before an administra-
tive law judge. The Respondent filed a timely answer to the
complaint denying that it had committed any violations of the
Act.

1 All dates are in 1998, unless otherwise indicated.
SODEXHO MARRIOTT SERVICES 545
Issues
The complaint alleges that the Respondent discharged seven
employees, changed an employee’s performance evaluation to a
lower rating, and engaged in numerous independent violations
of Section 8(a)(1) of the Act including coercive interrogation,
the disparate enforcement of its no-distribution/no-solicitation
policy against supporters of the Union, threatened employees
with loss of benefits, threatened to discharge employees who
supported the Union, threatened employees with loss of wages
and benefits, gave employees the impression that their activities
on behalf of the Union were under surveillance, solicited em-
ployees to report the activities of other employees’ on behalf of
the Union, promised a raise and promotion to an employee if
the employee abandoned support for the Union, and threatened
employees about wearing buttons in support of the Union. The
objections to the election track the complaint in part and raise
similar issues.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the provision of
a variety of food and environmental services to Botsford Hospi-
tal, with an office and place of business located at Botsford
Hospital in Farmington Hills, Michigan, where it annually re-
ceived materials and supplies in excess of $50,000 directly
from points located outside the State of Michigan. The Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Before January 1, Respondent managed the food services
function at Botsford Hospital. Effective January 1, it took over
the environmental service responsibilities at Botsford and also
continued with the management of food services. Respondent
hired the former Botsford environmental service employees to
perform this function. For this purpose, a management startup
team was assembled and all new employees were subject to a
90-day probationary period. The transition period proved a
difficult one for all parties concerned.
At all material times Gilbert Sherman was the district man-
ager of Respondent; Connie Silverstein held the position of
general manager, food, and environmental services; Ronald
Plasky and Gregory Mahone served as team leaders for envi-
ronmental Services; Kirk McBride and James R. Fuerst held the
positions of human resource director and security manager;
respectively, and John Samara held the position of an environ-
mental services manager.
Janette Lovely, an employee of the Union, assumed the posi-
tion of chief organizer in late December 1997, and was actively
involved in soliciting union authorization cards from Respon-
dent’s employees.
B. The Union Campaign and Authorization Cards
The union campaign began in December 1997, when Lovely
visited the Botsford Hospital cafeteria and discussed the bene-
fits of the Union with a number of Respondent’s employees.
Thereafter, Lovely intensified her efforts and appeared in the
cafeteria on January 15 and on three separate occasions on
January 21, to meet with Respondent’s employees. On January
21, authorization cards were passed out to numerous employees
who signed same and returned them to Lovely. Around the
lunch hour, a number of employees who were sitting at a table
and discussing the Union, pointed out to Lovely that Team
Leader Gregory Mahone was standing about 5 feet away and
was watching them while they signed authorization cards.
On January 22, Mahone saw Lovely in the hallway and
asked her, whether she was the union lady? On that same day,
around lunchtime, Lovely was escorted out of the cafeteria by
Botsford Hospital security personnel and was told that she
could not meet with Respondent’s employees. A member of
the security detail told Lovely that Mahone called them and
requested that Lovely be removed from the cafeteria. Accord-
ing to Lovely, Mahone made it a point to come to the cafeteria
whenever she was there to meet with employees. Thereafter,
on January 27, while Lovely was in the cafeteria, Mahone ap-
proached her, looked at his watch and told a number of em-
ployees sitting with her, “that he was watching and they better
not be late for work.”
C. The 8(a)(1) Violations
1. Allegations concerning Gregory Mahone
The General Counsel alleges in paragraphs 7(a) through (r)
of the complaint that Mahone, during the period between mid-
January 1998 and May 13, engaged in numerous independent
violations of Section 8(a)(1) of the Act, including coercive
interrogation, the disparate enforcement of Respondent’s no-
distribution/no-solicitation policy against supporters of the
Union, threatened employees with loss of benefits, threatened
to discharge employees who supported the Union, threatened
employees with loss of wages and benefits, gave employees the
impression that their activities on behalf of the Union were
under surveillance, promised a raise and promotion to an em-
ployee if the employee abandoned support for the Union, and
threatened employees about wearing buttons in support of the
Union.
On or about December 15, 1997, employee Dennis Tookes
met Lovely in the Botsford cafeteria to discuss the possibility
of getting the Union to represent Respondent’s employees and
received a number of union authorization cards from Lovely.
While Tookes was talking to Lovely, he saw Mahone observing
their conversation. Later that day, Mahone asked Tookes who
the lady was in the cafeteria. On January 15, Tookes met with
Lovely in the cafeteria and told her a number of employees
wanted to sign up for the Union. Tookes obtained additional
union authorization cards and commenced passing them out.
The next day, Mahone approached Tookes and told him he
heard that Tookes was passing out union authorization cards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
In a conversation between Tookes and Ronald Plasky on Janu-
ary 21, Plasky told Tookes that he wished he would reconsider
getting a union in the hospital and wait to see what the Respon-
dent had to offer.
Tookes attended a meeting in the afternoon of January 21,
wherein Mahone apprised the employees in attendance that
their paychecks would be delayed. A number of employees
including Tookes said to Mahone, “[N]o pay, no work.” Ma-
hone replied, “[I]f you sign out you will be fired.” Immedi-
ately after a group of employees confronted Plasky and
Silverstein about the delayed paychecks, Mahone followed
Tookes and fellow employees Daryl Dillard and Richard Bowie
into the restroom. Mahone said, “Dennis, you are to out spoken
and they don’t like that, watch your step, Ron and Connie are
out to fire you guys and clean house.”
Employees Carol Hammond, Richard Bowie, Ebony Thur-
mond, Shalonda Davidson, Gregory Sawyer, Daryl Dillard, and
Cecilia McBride all testified that Mahone was present in the
cafeteria on January 21, and observed them talking to Lovely
and signing union authorization cards. Sawyer further testified
that Mahone accused him on January 21, of passing out union
cards and told him he could lose his position for passing out
union cards. Later that day, Thurmond testified that Mahone
observed her give a union authorization card to a coworker and
told her that “he saw someone from the Union at the facility.”
In late January or early February 1998, employee Richard
Bowie had a conversation with Mahone in the hallway of the
hospital. Mahone asked Bowie why he wanted to be in the
Union and then said, “[H]e was a union buster and was there to
clean house and would get rid of all the bad workers.” On Feb-
ruary 12, Bowie was shown his performance evaluation by his
then immediate supervisor who was shortly leaving Respon-
dent’s employ. The ratings for each factor were scored as 1’s
and 2’s on a 1–5 scale with 1 being the highest rating. On Feb-
ruary 16, Bowie attended a meeting with Mahone, Connie
Silverstein, and employee Carol Hammond. Mahone apprised
Bowie that he was now his supervisor and showed him his re-
vised performance appraisal that he changed to now reflect
lower ratings in several categories. Mahone crossed out the
prior supervisor’s signature and inserted his own on the desig-
nated supervisory rating line. After the meeting, Mahone told
Bowie, “[T]hat’s what you get for union organizing.”
On February 17, employee Rodney Howard had a conversa-
tion with Mahone concerning work problems and friction be-
tween Howard and his then supervisor. During the course of
the conversation, Mahone said, “[I]f you do not vote for the
union, I will give you a raise and promote you to the crew
leader position.”
Employee Richard Bowie was the union election observer on
March 12. After the morning election session, Bowie was re-
turning to his work area and overheard Mahone addressing the
cafeteria workers in a meeting. Mahone said, “[I]f the workers
voted no they won’t lose their benefits.”
On March 23, Bowie had a conversation with Mahone in the
hallway of the hospital. Bowie regularly wore a union button
to work and Mahone asked him why he continued to wear his
union button to work now that the election was over and the
Union lost. Mahone told Bowie that “if he wore his union but-
ton the next day, he would be terminated.” Bowie wore four
union buttons the next day but was not disciplined or termi-
nated.
On May 13, Bowie received a memorandum from Mahone
concerning daily job duties. Upon receipt of the memorandum,
Mahone told Bowie to stop talking to his coworkers about the
Union. In part, the memorandum stated:

On a different note, I wanted to again ask you not to “vocal-
ize” your concerns with management to co-workers and hos-
pital staff. This type of behavior is “very disruptive” and
must be stopped immediately. Your constant negative com-
ments about your job and the work you do has become “irri-
tating,” “agitating” and “embarrassing” to several of your co-
workers, hospital staff and patients. They have all com-
plained to me that you are constantly putting down the De-
partment they take pride in and enjoy working for and that
they would “appreciate you keeping your comments to your-
self.” One such comment came from a patient who thought
your comments were “unprofessional & disturbing.”

The general test applied to determine whether employer
statements violate Section 8(a)(1) of the Act is “whether the
employer engaged in conduct which reasonably tends to inter-
fere with, restrain, or coerce employees in the free exercise of
rights under the Act.” NLRB v. Aimet, Inc., 987 F.2d 445 (7th
Cir. 1993); Reeves Bros., Inc., 320 NLRB 1082 (1996).
I find that all of the above noted employees including Union
Organizer Lovely credibly testified concerning their individual
or group discussions with Mahone. Each of the employee’s
testimony has a ring of truth to it and was buttressed by their
pretrial affidavits given to the Board at times close to when the
conversations with Mahone occurred. I am suspect of Ma-
hone’s testimony, in which he denied all of the allegations at-
tributed to him, for the following reasons. Mahone asserted
that he did not become aware of the union organizing campaign
until January 28. In addition to crediting the above noted tes-
timony of Lovely and the other employees, which contradicts
Mahone’s assertions, Security Manager Fuerst visited the facil-
ity on January 22. On January 23, Fuerst met with Botsford
Security Director Dave Brower, who informed him that the
Union has made efforts to organize the employees. Fuerst me-
morialized this conversation (GC Exh. 19). Likewise, Plasky
told Dennis Tookes on January 21, that he wished Tookes
would reconsider getting a union in the hospital. Thus, it is
inconceivable, with all of the above testimony to the contrary
including the Fuerst memorandum, and Plasky’s statement
about the Union, that Mahone did not know of the Union’s
efforts to organize the employees before January 28. Accord-
ingly, I conclude that if Security Manager Fuerst and Plasky
knew about union organizing activity at the facility before
January 28, then Mahone and all other Respondent managers
were aware of its existence.1 Accordingly, I find that Mahone
made the statements attributed to him by the above noted em-
ployees.

1 Fuerst is not an employee at the Botsford facility. Rather, his work
location is in West Allis, Wisconsin. He arrived at the Botsford facility
on January 22, to assist in the investigation of the paycheck situation.
SODEXHO MARRIOTT SERVICES 547
Therefore, I conclude that the General Counsel sustained its
burden of proof regarding paragraphs 7(a), (b), (c), (d), (e), (f),
(h), (j), (k), (l), (o), (p), (q), and (r) of the complaint. In regard
to paragraph (g) of the complaint, employee Cecelia McBride
testified that she attended a meeting at the end of January 1998,
which was conducted by Mahone and Connie Silverstein. Dur-
ing the course of the meeting, a union video was shown to the
employees. At the conclusion of the meeting, McBride testified
that Mahone stated that the Union would provide the employees
with lies to which McBride responded that the Employer has
lied about certain issues. Under these circumstances, I do not
find that McBride’s testimony regarding any statements that
were made by Mahone during the course of the meeting vio-
lated the Act. Thus, I recommend that paragraph 7(g) of the
complaint be dismissed. Concerning paragraphs 7(i), (m), and
(n), the General Counsel did not present any evidence to sustain
those allegations. Therefore, I recommend that paragraphs 7(i),
(m), and (n) be dismissed.
In summary, I find that Mahone made the statements attrib-
uted to him in the noted paragraphs and conclude that those
statements tend to coerce employees in the exercise of their
Section 7 rights and that they violate Section 8(a)(1) of the Act.
See T&J Trucking Co., 316 NLRB 771 (1995) (threatening
discharge); Tube-Lok Products, 209 NLRB 666, 669 (1974)
(futility of selecting a union as collective-bargaining repre-
sentative); Marriott Corp., 310 NLRB 1152 (1993) ( promising
a wage increase during union campaign); and House Calls, Inc.,
304 NLRB 311, 319 (1991) (coercive interrogation).
2. Allegations concerning Debbie Brandemihl
The General Counsel alleges in paragraph 8(a) of the com-
plaint that in early February 1998, Retail Manager Brandemihl
threatened employees with loss of wages if employees selected
the charging party as their collective-bargaining representative.
Employee Reginald Burines testified that he had a conversa-
tion with Brandemihl in early February 1998, wherein she
raised the issue of the Union promising a $3-an-hour raise to
employees, and questioned if that was guaranteed as unions
make a lot of promises they cannot keep. Burines admitted that
Brandemihl did not say anything about benefits during the con-
versation and did not threaten him with a loss of wages if the
Union was selected as the bargaining representative. Bran-
demihl testified that she did have a conversation with Burines
wherein she told him that if the Union came in, you could get a
raise or you could not get a raise.
Under these circumstances, I do not find that the Act was
violated and recommend that paragraph 8(a) be dismissed.
3. Allegations concerning John Samara
The General Counsel asserts in paragraph 8(b) of the com-
plaint that on April 30, Samara threatened an employee with
discharge if the employee continued to wear buttons in support
of the Charging Party.
The General Counsel did not present any evidence to sustain
this allegation. Accordingly, I recommend that paragraph 8(b)
be dismissed.
4. Allegations concerning Connie Silverstein
The General Counsel alleges in paragraphs 9(a), (b), (c), and
(d) of the complaint that on February 13, Silverstein in an em-
ployee meeting threatened employees with discharge and loss
of benefits, gave employees the impression that their activities
on behalf of the Union were under surveillance, and solicited
employees to report back to Respondent regarding other em-
ployees’ activities on behalf of the Union.
Employee Rodney Howard testified that he attended a meet-
ing on February 13, conducted by Silverstein and Mahone
wherein a union-related video was shown to the employees.
After the completion of the video, Silverstein asked employees
their opinion of the video to which some responded they were
for unions and others were against them. Silverstein told the
employees that she has received reports that union organizers
were harassing them and if this was true to let her know about
such conduct. Howard further testified that Silverstein stated at
the meeting that she knew which employees were for the Un-
ion.
Silverstein testified that she did conduct a number of em-
ployee meetings at which union video’s were shown but denied
the remarks that were attributed to her. In regard to the allega-
tions set forth in paragraphs 9 (a), (b), and (d) of the complaint,
the General Counsel did not present any evidence to sustain
such violations. Accordingly, I recommend that those para-
graphs be dismissed.
With respect to paragraph 9(c) of the complaint, I have grave
doubts that Silverstein told employees at the February 13 meet-
ing that she knew who was for the Union. In this regard, before
the election petition was filed on February 5, Director of Em-
ployee and Labor Relations David Bradford visited the Bots-
ford Hospital facility and conducted extensive management
training on what you can do and not do during an election cam-
paign. Bradford instructed Respondent’s managers in atten-
dance at this mandatory training, including Silverstein, not to
engage in any “TIPS” (threats, interrogation, promises, or spy-
ing). Bradford credibly testified that he utilized four videos
during the course of the campaign that were shown to small
groups of employees at the facility. The videos were also
shown during the course of the hearing. The video’s, entitled,
“Little Card-Big Trouble,” “Behind the Promises,” “The Party
is Over,” and “SEIU 25th Hour” (R. Exh. 2, 3, 4, and 5), show
that you can lose wages and benefits through bargaining, that
there is no obligation to continue all existing benefits, it is not
an unfair labor practice to offer less, that union’s can trade
away emoluments, and current benefits could be less through
collective bargaining. I conclude that the video’s are legitimate
campaign propaganda and are not violative of the Act. I find,
however, that the propaganda set forth in the video’s caused
Howard to interpret that Silverstein knew who was for the Un-
ion. I fully credit Silverstein’s denial that she never stated dur-
ing the course of the February 13 meeting that she knew who
was for the Union. As set forth later in the decision concerning
the discharge of Howard, I have grave concerns about his
credibility as a witness. Thus, I find that Silverstein did not
make the statement attributed to her by Howard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
Under these circumstances, I find that the General Counsel
has not proven the allegations in paragraph 9(c) of the com-
plaint and recommend that they be dismissed.
5. Allegations concerning Kirk McBride and Gilbert Sherman
The General Counsel asserts in paragraph 10 of the com-
plaint that during employee meetings in early March 1998,
McBride and Sherman threatened employees with loss of bene-
fits if the employees selected the Charging Party as their collec-
tive-bargaining representative.
Employee Carol Hammond testified that she attended a
March 3 meeting in the linen room conducted by McBride and
Sherman wherein they stated that employees could lose their
benefits and wages would decrease if they selected the Union
as their collective-bargaining representative. Employee Renee
Hinton testified that she attended a meeting conducted by
McBride in the first week of March 1998, wherein McBride
said the employees could lose all their benefits and would have
to negotiate all over again on benefits. Based on my review of
the four video’s discussed above, I am of the opinion that
McBride and Sherman merely restated what was contained in
the election campaign video’s and did not independently state
to employees that wages or benefits would decrease if the Un-
ion was voted in. I base this conclusion on McBride’s position
as human resources director, his experience in election cam-
paigns and the fact that he assisted Bradford with the training of
managers prior to the commencement of the Respondent’s elec-
tion campaign. Moreover, I fully credit the denials of McBride
and Sherman that they never threatened employees with the
loss of benefits in any meetings that they conducted at the Bots-
ford facility.
Under these circumstances, I find that the allegations set
forth in paragraph 10 of the complaint have not been estab-
lished and recommend that they be dismissed.
D. The 8(a)(1) and (3) Violations
1. The termination of Dennis Tookes
Dennis Tookes commenced work with Botsford Hospital in
August 1992 as a housekeeper, and continued employment with
Respondent after January 1, when they took over the Hospital’s
environmental service responsibilities. He possessed an un-
blemished work record, having never been disciplined at Bots-
ford Hospital or Respondent until January 22.
Tookes was one of the earliest supporters of the Union and
met with Union Organizer, Lovely, on December 15, in the
Hospital cafeteria to discuss the possibility of getting the Union
to represent Respondent’s employees. Tookes credibly testified
that on that date, while he was talking to Lovely, Mahone ob-
served them engaged in conversation. Indeed, later that day,
Mahone stopped Tookes and asked him who was that lady.
On January 15, Tookes met Lovely in the cafeteria and told
her a number of employees wanted to sign up for the Union.
He obtained additional union authorization cards and com-
menced passing them out. The next day, Mahone said, “I heard
you were passing out union cards.”
Tookes met again with Lovely in the cafeteria on January 21,
and saw Mahone observing their conversation and witnessed he
and other employees signing union authorization cards.
In an afternoon meeting on January 21, Mahone announced
to approximately 25 assembled employees that their paychecks
would arrive late because of delays experienced by the airborne
express carrier. The mood of the employees became agitated,
as this was the second time since Respondent took over on
January 1, that the paychecks were late. A number of employ-
ees including Tookes said, “[N]o pay, no work.” Mahone re-
plied that “if you sign out, you will be fired.” Tookes became
the spokesperson for the group and demanded in a loud voice to
see Silverstein. The group of employees then proceeded to
Respondent’s office and although Tookes denied banging and
kicking on the office door and using profanity, I find based on
the credible testimony of Ronald Plasky, Debbie Brandemihl,
Office Manager Cheryl Kniffen, and Food Service Manager
Sharon Ciaramitaro that Tookes did kick the office door and
use profanity. He said, “[W]here is my pay check, mother-
fucker,” “[Y]ou got paid asshole, give me your money,” “and
where is fucking, Connie.” Plasky was able to locate
Silverstein and security was summoned to break up the crowd
and order employees to return to their jobs. While the crowd
was breaking up, Silverstein came out of her office and briefly
met with Tookes and the other employees but replied that she
would not answer his questions because of the crowd’s hostility
and returned to her office.
Immediately after the crowd disbursed, Mahone followed
Tookes, Darryl Dillard, and Richard Bowie into the restroom.
The three employees credibly testified that Mahone said, “Den-
nis, your to out spoken and they don’t like that, watch your
step, Ron and Connie are out to fire you guys and clean house.”
On January 22, Tookes went to pick up his paycheck but was
told by Samara that his check was not there and he should pro-
ceed to the office. Tookes immediately went to the office and
was told by Silverstein that he was being terminated. He was
given a January 22 letter that states in pertinent part:

This letter serves as formal notification that your employment
with Marriott Management Services is hereby being termi-
nated effective immediately for the following work related in-
fractions which occurred on January 21, 1998;
1. Gross Misconduct
2. Insubordination
3. Verbal Accosting of a manager
4. Failure to return to work as instructed by manage-
ment

Tookes proceeded to fill out paper work for the next 30 min-
utes but at no time did Silverstein or any other respondent offi-
cial discuss with or explain to him any of the four reasons set
forth in the letter as grounds for the termination.
The General Counsel asserts in paragraph 23 of the com-
plaint that Tookes was terminated because he concertedly com-
plained to Respondent regarding the failure of Respondent to
distribute paychecks as previously promised. The Respondent
takes the position that Tookes was lawfully terminated for the
reasons set forth in the January 22 letter, with specific emphasis
on the fact that he banged and kicked the office door and ut-
tered profanity to Plasky and Silverstein.
The protected nature of Tookes and other employees efforts
to protest Respondent’s timely delivery of their paychecks has
SODEXHO MARRIOTT SERVICES 549
long been recognized by the Board who has held that similar
conduct comes within the guarantees of Section 7 of the Act.
See Joseph De Rairo, DMD, P.A., 283 NLRB 592 (1987). The
Board has also held in Mike Yurosek & Sons, 306 NLRB 1037,
1038 (1992), that “individual action is concerted where the
evidence supports a finding that the concerns expressed by the
individual are [sic] logical outgrowth of the concerns expressed
by the group.” In this case, I find that Tookes’ complaints, on
his own and the employees behalf, about the delayed paychecks
and the statement “[N]o work, no pay,” fall within protected
concerted activity. See Meyers Industries, 268 NLRB 493, 497
(1984). This action, coupled with Mahone’s January 21 state-
ment that if you sign out, you will be fired, and the restroom
conversation on the same day leads me to the inescapable con-
clusion that Tookes was terminated for engaging in protected
concerted activity over the paycheck issue. Moreover, I find
that Tooke’s use of the words “motherfucker,” “asshole,” and
“where is fucking Connie” while impulsive and ill advised, is
not such violent or outrageous conduct which would render
Tookes unfit for continued employment. See Burle Industries,
300 NLRB 498, 503–504 (1990). In this regard, I note that for
the 6 years of employment with Botsford Hospital and Respon-
dent, Tookes had an unblemished work record.2
The General Counsel also alleges in paragraph 28 of the
complaint that Tookes was terminated because of his active
participation in union activities.
In Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321
NLRB 278, 280 fn. 12 (1996), the Board restated the test as
follows. The General Counsel has the burden to persuade that
antiunion sentiment was a substantial or motivating factor in
the challenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative defense that
it would have taken the same action even if the employee had
not engaged in protected activity.
For the following reasons, I find that the General Counsel
has made a strong showing that the Respondent was motivated
by antiunion considerations in terminating Tookes. First, the
evidence establishes that Mahone knew Tookes met with
Lovely in the hospital cafeteria on a number of occasions and
signed a union authorization card on January 21. Second, Ma-
hone accused Tookes of passing out union cards. Third, Ma-

2 I make this finding, notwithstanding the Respondent’s argument,
that work-related infractions such as gross misconduct, insubordination,
and profanity may be grounds for immediate dismissal.
hone informed Tookes on January 21, that Connie was ready to
fire him and they will clean house.
The burden shifts to the Respondent to establish that the
same action would have taken place even in the absence of the
employee’s protected conduct.
The Respondent contends, as set forth in the January 22 let-
ter, that Tookes was lawfully terminated for his actions on
January 21, when he banged and kicked on the office door and
uttered profanity to Plasky and Silverstein.
I find that the reasons advanced by Respondent are pretex-
tual and suggest a predetermined plan to create a reason to ter-
minate Tookes and rid the facility of one of the leading union
activists. I base this finding on the fact that Mahone and other
management officials had knowledge of Tookes union activi-
ties, accused him of passing out union authorization cards, and
told him in the restroom that Connie was ready to fire him. It is
apparent to me that the Respondent seized upon Tookes bang-
ing and kicking on the door and uttering profanity to shield its
true motivation and reasons for the termination. I also note that
Tookes was a longstanding employee at Respondent with an
unblemished work record and at no time did the Respondent
discuss, explain or give him an opportunity to respond to the
reasons for the termination. Thus, I find that the Respondent
relied upon pretextual reasons to shield its true motivation for
Tooke’s termination.
Accordingly, for the reasons noted above, I find that the Re-
spondent terminated Tookes either for his engaging in protected
concerted activities in violation of Section 8(a)(1) of the Act or
for his engaging in union related conduct in violation of Section
8(a)(1) and (3) of the Act.
2. The terminations of Ebony Thurmand and
Shalonda Davidson
The General Counsel alleges in paragraph 26 of the com-
plaint that Thurmand and Davidson were terminated because of
their activities on behalf of, and in support for, the Union. Con-
trary to the General Counsel’s argument in its brief, I do not
find that the complaint alleges that these employees were ter-
minated because of engaging in protected concerted activities.
The Respondent opines that both employees were terminated
for legitimate business reasons because they falsified company
documents signed out but noted 3:30 p.m. on the timesheet. In
this regard, the timesheet reflects that Mahone signed his ini-
tials next to the entries of Thurmand and Davidson and in-
formed both employees that if they signed out it could be
grounds for job abandonment.
Thurmand and Davidson commenced work as housekeepers
for Botsford Hospital on October 1, 1997, and continued em-
ployment with Respondent after January 1. Neither employee
was disciplined during the course of their employment until
January 22.
Thurmand and Davidson credibly testified that they were in
the hospital cafeteria on January 21, with union organizer
Lovely and other coworkers, and were observed by Mahone
when they signed union authorization cards. Mahone asked
both employees what were they doing.
Around 2 p.m. on January 21, Thurmand and Davidson at-
tended a group meeting wherein Mahone apprised those in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
attendance that their paychecks would be delayed because of
problems with the airborne express carrier. Employee Dennis
Tookes, who also attended the meeting said, “[N]o work, no
pay” and Mahone replied to the employees at the meeting,
“[T]hat if you sign out, you will be fired.” As the meeting was
about to break up, Thurmand and Davidson were upset and
decided to sign out putting there regularly scheduled 3:30 p.m.
sign-out time on the timesheet although it was approximately
an hour earlier (2:15 or 2:30 p.m.). A number of the employees
demanded to see Silverstein and the group proceeded down the
hall to Respondent’s offices. After Mahone ordered all the
employees to return to work, both employees credibly testified
that they went directly to their work stations, restocked their
carts, and proceeded to the linen room. Neither Mahone nor
any other respondent representative could conclusively estab-
lish that Thurmand and Davidson left the facility or abandoned
their work area. Around 3 p.m. on January 21, Thurmand gave
a union authorization card to a coworker and testified that she
was observed by Mahone who said, “[T]hat he heard that some-
one named Jeanette was here earlier from the union hall.”
On January 22, when both employees were given their pay-
checks, Respondent apprised them that they were being termi-
nated for signing out early. Each employee informed Mahone
and Silverstein that while they signed the timesheet 1 hour
early, neither left the facility, nor punched out until their regu-
larly scheduled 3:30 p.m. shift ended.
Under Wright Line, supra, the General Counsel has the bur-
den to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
I find that the General Counsel has established that the Re-
spondent was motivated by antiunion considerations in termi-
nating Thurmand and Davidson. In this regard, Mahone ob-
served both employees signing union authorization cards on
January 21, and later in the afternoon observed Thurmand give
a union card to a fellow employee.
Respondent takes the position that both employees were ter-
minated for falsification of company documents and refusal to
complete job tasks. I find revealing that both employees were
terminated the very next day after signing union authorization
cards and that neither employee has an adverse work record.
Second, both employees informed Respondent on the date of
their discharge that they did not leave the facility at 2:30 p.m.,
but returned to their work area and did not punch out until there
scheduled 3:30 p.m. work shift ended. At no time, however,
did Respondent attempt to investigate these assertions by
checking with other employees or reviewing the timeclock to
verify if the employee’s statements were accurate.3 In this
regard, employee Renee Hinton credibly testified that she saw
Thurmand and Davidson punch out at 3:30 p.m. on January 21.
Moreover, Director of Employee and Labor Relations David
Bradford admitted that if Thurmand and Davidson did not leave
3 Respondent’s posthearing motion to strike the assertions in fn. 7 of
the General Counsel’s brief is granted. As admitted by the General
Counsel, no such testimony appears in the transcript.
the facility at 2:30 p.m. and returned to their work area before
punching out at 3:30 p.m., they should not have been termi-
nated. Lastly, examples of employee sign in/sign out sheets
show that other employees have placed incorrect entries on the
timesheets but were not disciplined (GC Exh. 22, 23, and 24).
While Respondent argues, in regard to these other employees
that it was not brought to their attention, I find that had they
investigated the assertions raised by Thurmand and Davidson
and examined other employee sign in/sign out sheets, they
would have uncovered other incorrect entries.
Therefore, I conclude that Respondent did not conduct an
impartial investigation, review other employee sign in/sign out
sheets or check the timeclock, because Thurmand and Davidson
engaged in protected conduct and were active union adherents.
In sum, the General Counsel made a strong prima facie case
by presenting conclusive evidence showing that the union ac-
tivity of Thurmand and Davidson was a motivating factor in the
Respondent’s decision to terminate them. Respondent has
failed to carry its substantial burden of showing by a prepon-
derance of the evidence, that in the absence of their union activ-
ity, the Respondent would have taken the same action. Accord-
ingly, I find that by terminating Thurmand and Davidson on
January 22, the Respondent violated Section 8(a)(1) and (3) of
the Act.
3. The terminations of Dennis Barber and Darryl Dillard
The General Counsel alleges in paragraph 26 of the com-
plaint that Dennis Barber, a 10-year employee, and Darryl Dil-
lard, a 3-year employee, was terminated because of their activi-
ties on behalf of, and in support for, the Union. Respondent
contends that both employees were terminated for legitimate
business reasons because they willfully falsified company re-
cords by signing in at 7 a.m., when admitting to being 1-hour
late for work.
Barber and Dillard signed union authorization cards on Janu-
ary 21, and were observed by Mahone talking to Lovely in the
cafeteria. Both employees participated in the paycheck protest
and after the crowd dispersed to return to work, Mahone fol-
lowed Dillard into the locker room. Mahone told Dillard off
the record, “[T]hat they were there to fire everyone in his de-
partment.” Indeed, before Dillard was discharged on February
3, Respondent conducted a criminal search to discern whether
he was convicted of any felonies from 1991 to the present.
On January 26, Barber called in around 7 a.m. and informed
then-supervisor, Gloria Fox, that he and Dillard would be late
for work. The employees arrived around 8 a.m. but were un-
able to sign the timesheet since it was collected and forwarded
to the office. Both employees discussed the matter with Fox,
who promised to put their names on the deviation sheet.4 At
the end of the day on January 26, both Barber and Dillard
signed the timesheet to reflect that they worked from 7 a.m. to
3:30 p.m., rather than from 8 a.m. to 3:30 p.m. On January 30,
Plasky spoke with both employees and asked whether they
were late on January 26. They both admitted that they arrived
1-hour late on January 26 and Plasky said, “[D]on’t worry
4 A deviation sheet is filled out by a supervisor if an employee is
late. The employee is paid for the hours he/she is actually present and
working at the facility.
SODEXHO MARRIOTT SERVICES 551
about it.” On February 3, both employees were called to the
office and were told by Silverstein that because their names did
not appear on the deviation sheet for January 26, they would be
terminated for falsification of company records.
Under Wright Line, supra, the General Counsel has the bur-
den to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
I find that the General Counsel has established that the Re-
spondent was motivated by antiunion considerations in termi-
nating Barber and Dillard. In this regard, Mahone observed
both employees signing union authorization cards on January
21, and later in the afternoon told Dillard that they were out to
fire everyone in his department.
Respondent takes the position that both employees were ter-
minated for falsification of company records and that their
names did not appear on the January 26 deviation sheet. I find
telling that Fox, who was not called by Respondent to testify,
did put Barber and Dillard on the deviation sheet for coming in
at 8 a.m. on January 26. During the February 3 termination
meeting, Respondent made no attempt to check with Fox as to
the assertions raised by the employees that she promised to
place their names on the deviation sheet. I conclude that when
Silverstein told Barber and Dillard that their names did not
appear on the deviation sheet, she misrepresented this fact be-
cause of their active support and activity on behalf of the Un-
ion. I also credit Barber’s and Dillard’s testimony that at the
end of the day on January 26, while 30 employees were waiting
behind them to sign out, they automatically signed the time-
sheet with their regular 7 a.m. to 3:30 p.m. hours of work,
rather then willfully trying to get paid for an hour they did not
work. In this regard, as reflected in Fox’s January 30 memo-
randum, she did put Barber and Dillard on the deviation sheet
that should have resulted in both employees being paid for their
actual work hours of 8 a.m. to 3:30 p.m. (GC Exh. 25.) It is
also highly suspect, that a number of other employees signed
time-sheets either at the beginning of or at the end of the day
with their starting and quitting times, yet none of these employ-
ees were terminated. Lastly, I find telling that Plasky told both
employees not to worry about the discrepancy when they both
admitted being 1-hour late. Thus, I conclude that the Respon-
dent manufactured reasons to support the terminations of Bar-
ber and Dillard. The evidence supports and, I find, that the
protected conduct of these employees was the true reason for
their terminations.
In sum, the General Counsel established a strong prima facie
case by presenting conclusive evidence showing that the union
activity of Barber and Dillard was a motivating factor in the
Respondent’s decision to terminate them. Respondent has
failed to carry its substantial burden of showing by a prepon-
derance of the evidence, that in the absence of their union activ-
ity, the Respondent would have taken the same action. Accord-
ingly, I find that by terminating Barber and Dillard on February
3, the Respondent violated Section 8(a)(1) and (3) of the Act.
4. The performance appraisal of Richard Bowie
The General Counsel alleges in paragraph 26 of the com-
plaint that Richard Bowie’s performance appraisal was lowered
because of his activities on behalf of, and in support for, the
Union. Respondent opines, that Bowie’s performance appraisal
was legitimately lowered when another supervisor who had
direct knowledge of his performance reviewed it.
In early February 1998, employee Richard Bowie had a con-
versation with Mahone in the hallway of the hospital. Mahone
asked Bowie why he wanted to be in the Union and then said,
“[H]e was a union buster, would clean house and would get rid
of all the bad workers.” On February 12, Bowie was shown his
performance evaluation by his then supervisor who was shortly
leaving Respondent’s employ. The ratings for each factor were
scored as 1’s and 2’s on a 1–5 scale with 1 being the highest
rating. Mahone testified that the supervisor only supervised
Bowie for 3 or 4 days before he prepared the evaluation and
overstepped his bounds by completing the numerical and narra-
tive ratings for Bowie and 40 other employees. In this regard,
Mahone asserted that it was necessary for him to rewrite all of
these evaluations and discuss them with each of the employees.
On February 16, Bowie attended a meeting with Mahone, Con-
nie Silverstein, and employee Carol Hammond as a witness.
Mahone apprised Bowie that he was now his direct supervisor
and showed Bowie his revised performance appraisal that he
changed to now reflect lower ratings in several categories.
Mahone crossed out the prior supervisor’s signature and in-
serted his own. After the meeting, Mahone told Bowie,
“[T]hat’s what you get for union organizing.”
Under Wright Line, supra, the General Counsel has the bur-
den to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
I find that the General Counsel has established that the Re-
spondent was motivated by antiunion considerations in lower-
ing Bowie’s performance appraisal. In this regard, I fully credit
Bowie’s unrebutted testimony that Mahone told him, “[T]hat’s
what you get for union organizing.” Indeed, although Mahone
testified at length during the hearing, he never denied the
statement attributed to him by Bowie. Based on my earlier
discussion regarding Mahone’s credibility, I find that he made
the above statement to Bowie.
In sum, the General Counsel established a strong prima facie
case by presenting conclusive evidence showing that the union
activity of Bowie was a motivating factor in the Respondent’s
decision to lower his performance evaluation. Respondent has
failed to carry its substantial burden of showing by a prepon-
derance of the evidence, that in the absence of his union activ-
ity, the Respondent would have taken the same action. In this
regard, I reject Respondent’s argument that because it issued a
new performance evaluation to Bowie, it did not violate the
Act. I find that the initial action of lowering Bowie’s perform-
ance evaluation was solely undertaken to punish him for engag-
ing in protected activities. Accordingly, I find that by lowering
Bowie’s performance evaluation on February 16, the Respon-
dent violated Section 8(a)(1) and (3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552
5. The termination of Cecelia McBride
The General Counsel asserts in paragraphs 24 and 26 of the
complaint that Cecelia McBride was terminated on February
27, because she refused to answer questions at a meeting that
she had reasonable cause to believe would result in disciplinary
action against her, and because of her activities on behalf of,
and in support for, the Union.
Respondent argues that McBride was terminated for refusing
to complete a work assignment and no investigatory interview
or meeting was held on February 27.
McBride was hired at Botsford Hospital on August 26, 1997,
and continued her employment with Respondent after the take-
over on January 1.
McBride was present in the cafeteria with Lovely and fellow
employees on January 21, and credibly testified that Mahone
observed her and other employees sign union authorization
cards.
McBride attended an inservice meeting in late January 1998,
wherein a video about the Union was shown to those employ-
ees in attendance. At the conclusion of the meeting, McBride
responded to a statement of Connie Silverstein that the Union
was spreading lies during the election campaign with the state-
ment that Respondent has also lied about certain issues.
McBride credibly testified about several instances after the
January 1 takeover, wherein Respondent permitted employee
witnesses to attend meetings when work problems are dis-
cussed between a supervisor and an employee. For example,
McBride was permitted to have an employee witness at a Feb-
ruary 17 meeting she had with John Samara, to discuss a work
problem in environmental services. Additionally, on February
21, McBride attended another meeting with an employee wit-
ness and was given a coach and counseling memorandum by
Samara. Silverstein testified that after the takeover, she became
aware that Botsford had a practice of permitting employee wit-
nesses to be present and attend meetings when work problems
are discussed between a supervisor and an employee. In order
to accommodate employees during the transition period, Re-
spondent decided to continue this practice during the months of
January to late February 1998, despite the fact that Respondent
had no such policy at any of its facilities nationwide. Indeed,
after discussing this issue with Sherman, Silverstein communi-
cated to all her supervisors around February 25, that the prac-
tice of permitting employee witnesses to attend work-related
discussions between a supervisor and an employee must cease
immediately. Silverstein estimated that during the 2-month
period, approximately five or six meetings took place in the
presence of an employee witness.
McBride was out of work for about 1 week and returned on
February 27. Around 8:45 a.m. Mahone saw McBride in the
elevators and requested that she report to the linen room at the
completion of her current duties. McBride replied, “I told you
guys I was not going to do the Linen, you took me out of the
Linen, I don’t want to do the Linen.” Mahone requested that
McBride report to his office to discuss the matter. McBride
reported to the office around 9:35 a.m. accompanied by em-
ployee witness Rodney Howard. Mahone requested that fellow
Managers Dee Houston and John Samara attend the meeting
and Manager William Prout was already in the office perform-
ing other duties. Mahone requested that Howard report back to
his work area, and McBride protested that she wanted an em-
ployee witness before she would participate in the meeting.
Mahone informed McBride that Respondent did not have a
policy or practice requiring that an employee witness be present
at meetings of this nature. Howard was instructed to leave the
meeting and he returned to his work area. Mahone commenced
the meeting and restated that Respondent did not have a policy
of permitting employee witnesses to attend meetings concern-
ing work problem issues between a supervisor and an em-
ployee. Mahone told McBride to report to the linen position for
the remainder of the day and to work with Gloria Fox. Mc-
Bride again protested and stated that it was unfair that there
were other managers in the office, and she was not entitled to a
witness. Mahone then asked McBride to provide a specific
reason why she could not perform the linen room assignment.
McBride protested again that she did not have a witness and the
meeting was unfair. Mahone again asked McBride if she had
any documentation that would prevent her from performing the
linen room assignment. McBride refused to answer Mahone’s
questions. Mahone then told McBride that if she did not report
to the linen position and refused to respond to his questions, it
would be a violation of Respondent’s work rules and an act of
insubordination, giving rise to immediate termination. Mc-
Bride stood silent and Mahone said, “[B]y acting silent and not
responding to me you are indicating to me that you are refusing
to work in the position I am assigning. This action is in viola-
tion of Respondent’s work rules, is an act of insubordination,
and grounds for immediate termination.” Mahone, after
McBride remained silent, terminated her effective immediately
and demanded her ID badge and any other property of the Hos-
pital that she had in her possession.
Under Wright Line, supra, the General Counsel has the bur-
den to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
I find that the General Counsel has established that the Re-
spondent was motivated by antiunion considerations in termi-
nating McBride. In this regard, Mahone was aware that
McBride signed a union authorization card on January 21, and
Silverstein knew from the dialogue she had with McBride in
the inservice meeting, that she was an active suporter of the
Union.
Respondent relies on McBride’s refusal to accept the work
assignment in the linen room and comply with orders as the
reason for her termination (R. Exh. 16, item 9).
I am aware that Respondent knew that McBride was an ac-
tive union supporter and signed a union authorization card on
January 21. On the other hand, McBride admitted going to the
laboratory to clean the restrooms rather than to the linen room
as instructed. Likewise, the record establishes that Respondent
knew about other employees that signed union authorization
cards on January 21, yet those employees were not terminated.
Under these circumstances, I conclude that the Respondent
has met its burden and find that it would have terminated
SODEXHO MARRIOTT SERVICES 553
McBride for refusing to follow a work assignment even in the
absence of her union activities.
The General Counsel also argues that McBride was terminated
because she refused to participate in a meeting that she reasona-
bly believed could lead to discipline without a witness and that
the Respondent altered its policy of allowing employee witnesses
as a result of the employee engaging in union activity.
It is axiomatic that an employee has a Section 7 right to re-
quest union representation at an investigatory interview where
the employee reasonably believes that the investigation will result
in disciplinary action. NLRB v. J. Weingarten, 420 U.S. 251
(1975). The Board in Baton Rouge Water Works Co., 246 NLRB
995 (1979), held that under the Supreme Court’s decision in
Weingarten, an employee has no Section 7 right to the presence
of his union representative at a meeting with his employer held
solely for the purpose of informing the employee of, and acting
upon, a previously made disciplinary decision. It went on to
state, however, that if an employer engages in any conduct be-
yond merely informing the employee of, and acting upon, a pre-
viously made disciplinary decision, the full panoply of protec-
tions accorded the employee under Weingarten may be applica-
ble. In Sears, Roebuck & Co., 274 NLRB 230 (1985), the Board
held that nonunion employees do not have the same right of rep-
resentation. Indeed the General Counsel acknowledges in its
brief that, at present, the Board recognizes Weingarten rights are
only applicable to union represented employees.
Applying the foregoing guidance to the instant case estab-
lishes that the employee witness is not a union representative as
McBride’s request for Howard was made at a time before the
Board election. Thus, the protections and safeguards of Wein-
garten are not applicable in the subject case.5 I also find that
even if the Weingarten safeguards were applicable, the meeting
was not convened for the purposes of conducting an investiga-
tion. Rather, Mahone held the meeting for two reasons. First,
to explain to McBride that the Respondent did not have a policy
that permitted employee witnesses at meetings held to discuss
work problems between a supervisor and an employee and
second, to inquire whether McBride had any reasons or docu-
mentation why she could not perform the linen room assign-
ment. At this point, it cannot be established that the meeting
involved an investigation or that there was any reasonable ex-
pectation of discipline. Thus, contrary to the General Counsel,
I do not find that McBride was terminated for refusing to an-
swer questions at an investigatory meeting in which she re-
quested an employee witness because she had reasonable cause
to believe that the meeting would result in disciplinary action
being taken against her. Likewise, I do not find that the Re-
spondent changed its practice of allowing employees to have an
employee witness during individual meetings with Respon-
dent’s agents. In this regard, I find that Respondent never had a
practice of permitting employee witnesses to be present at
meetings regarding work problems between a supervisor and an
employee. Rather, I conclude as an accommodation to the
employees during the transition period, the Respondent permit-

5 In view of this holding, Respondent’s posthearing motion to strike
the General Counsel’s legally insufficient argument regarding Board
precedent, is denied.
ted employee witnesses to be present on five or six occasions at
work problem meetings between a supervisor and an employee.
In my opinion, five or six occasions does not ripen into a term
and condition of employment nor does it establish that the Re-
spondent had a firm practice of permitting employee witnesses
to be present at such meetings between a supervisor and an
employee. Therefore, if there was never a practice of permit-
ting employee witnesses to be present at individual meetings
with Respondent’s agents, McBride could not have been termi-
nated for refusing to answer questions related to a change in the
practice. Moreover, it was only after McBride refused to an-
swer any questions about the work assignment and remained
silent, that Mahone terminated her employment.
For all of the above reasons, I find that McBride was termi-
nated for legitimate reasons unrelated to her protected conduct
and not for refusing to answer questions at a meeting without
an employee witness. Therefore, I recommend that the 8(a)(1)
and (3) allegations in paragraph 28 of the complaint relating to
McBride be dismissed.
6. The suspension and termination of Rodney Howard
The General Counsel alleges in paragraph 26 of the com-
plaint that Rodney Howard was suspended on February 27 and
thereafter terminated on March 6, because of his activities on
behalf of, and in support for, the Union.
Respondent contends that Howard was suspended and termi-
nated because he communicated threats of violence in the
workplace rather than for his engaging in protected conduct.
Howard commenced employment with Botsford Hospital on
March 1, 1992, in the housekeeping department and continued
with Respondent after the takeover on January 1. Howard was
one of the leading union adherents having met with Lovely in
the cafeteria in December 1997, and again on January 21, when
he signed a union authorization card. He also was instrumental
in distributing authorization cards, union literature, and buttons
to other employees and discussing the benefits of the Union
with coworkers. On January 21, Howard participated in the
group protest wherein employees were upset about the delay in
the delivery of their paychecks. During the course of the pro-
test, Howard told Plasky that the employees needed a union
because they did not trust management. Plasky said that those
are harsh words.
In early February 1998, Howard and Mahone had a conver-
sation wherein Howard told him that the employees were trying
to organize a union. Mahone told Howard that the employees
do not need a union and everything will be all right. On Febru-
ary 17, Mahone told Howard that if he did not vote for the Un-
ion, he could receive a raise and be promoted to the crew leader
position.
Secretary Cheryl Kniffen testified that on February 20,
around 11:30 a.m. she was working in her locked office, heard
a noise and observed Howard exiting the office. She immedi-
ately notified Silverstein as Howard was not authorized to be in
the locked office. Howard asserts that he found the office door
unlocked and opened the door to request Kniffen to inform a
manager that he was leaving the facility to have lunch. Accord-
ing to Howard, Kniffen promised to apprise a manager that
Howard was going to lunch. After Howard returned from lunch,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
he was informed that security wanted to see him. He went to
the designated place and was accused by security of breaking
into the office. The security person checked his key ring but
was unable to determine that Howard possessed an extra key to
the office. Accordingly, he was cleared of any charges associ-
ated with breaking into the office. Kniffen further testified that
around 12:30 p.m. on that day, she observed Howard in the
hallway outside of the administrative office with other employ-
ees. Howard was pointing at Kniffen and saying, “There she is,
she’s the one that told them I have a key.” She asserts that
Howard made the same remarks on February 23. On February
24, around 10 a.m., as Kniffen was returning to her office she
passed Howard in the hallway, and heard him state, “I’m going
to kill everyone in the office.” Kniffen further testified that on
February 25, around 12 p.m., she observed Howard pointing at
her from outside the office and said, “She’s the one.” Kniffen
was so concerned about Howard’s statements, that she filed a
police report and reported the matter to Silverstein.
Training Manager Judith McMahon testified that on Febru-
ary 27, around 7:45 a.m., Howard walked by the administration
office. She heard Howard say, “[Y]ou better watch out, I may
have a key.” “Oh, no, that’s right they changed the locks.” A
short while later, Howard returned to the office, jiggled the
door and said, “There she is, she thinks I’m out to kill every-
body.” McMahon thought that Howard mistook her for Cheryl
Kniffen, the secretary who reported what Howard previously
stated on February 20 and 24.
Howard met with Security Manager Fuerst in the Hospital on
February 27, and denied making the statements attributed to
him. Fuerst advised Howard of Respondent’s zero tolerance
policy for communicating threats of violence in the workplace
and informed him that he was being placed on suspension
pending further review of the incident. On March 6, Silverstein
notified Howard that the results of the investigation established
that his actions and statements were threatening to the individu-
als involved. As Respondent has a zero tolerance for commu-
nicating threats of violence in the workplace, Howard was ter-
minated effective March 6.
Under Wright Line, supra, the General Counsel has the bur-
den to persuade that antiunion sentiment was a substantial or
motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employee had not engaged in protected activity.
I find that the General Counsel has established that the Re-
spondent was motivated by antiunion considerations in sus-
pending and terminating Howard. In this regard, Mahone was
aware that Howard was one of the leading union adherents and
signed a union authorization card on January 21. Additionally,
Mahone offered Howard a raise and promotion to the crew
leader position if he did not vote for the Union.
Respondent’s affirmative defense asserts that Howard was
suspended and terminated for communicating threats of vio-
lence in the workplace rather than for engaging in protected
conduct. I find that Kniffen’s and McMahon’s testimony con-
cerning this matter to be credible, concise, and supported by the
interview notes of Fuerst recorded on March 2, a period close
in time to the events in question (GC Exh. 18). Howard, on the
other hand, appeared defensive and evasive as a witness and
steadfastly denied making any of the statements attributed to
him. Thus, I conclude his version of events cannot be credited.
Under these circumstances, I find that Howard was sus-
pended and terminated for communicating threats of violence
in the workplace rather than for his engaging in protected con-
duct and recommend that the 8(a)(1) and (3) allegations in
paragraph 28 of the complaint related to Howard be dismissed.
III. THE UNION OBJECTIONS
The Union objected on 10 grounds to conduct that they claim
affected the results of the election. As set forth in the Board’s
Order Consolidating Cases, a number of the union objections to
the conduct of the election are coextensive and encompassed by
the complaint.
1. The Union asserts that the Respondent granted wage in-
creases on the Friday before the election, only if employees
took their union buttons off and a manager stated that raises
will go to the no voters. No evidence was presented to sustain
this objection and I conclude it should be dismissed.
2. The Union contends that Respondent fired 15 employees
to discourage union activity by other employees. In addition to
the seven discriminatee’s alleged in the complaint the Union
introduced evidence in only one additional situation to establish
that employees were terminated to discourage union activity.
In this regard, the Union contends that Jermol Robinson was
terminated because of his protected activity. I am not per-
suaded that Robinson was terminated because of his activities
on behalf of the Union. Robinson was a part-time worker who
continued in this status after Respondent’s takeover on January
1. He did not meet with fellow employees in the cafeteria on
January 21, and no evidence was submitted that he signed a
union authorization card on that date. His union activities were
minor at best. Robinson was terminated for lying on his em-
ployment application by not reporting that he had been con-
victed of a crime during the last 5 years. In this regard, Re-
spondent conducted a background check on Robinson because
a coworker reported to Silverstein that Robinson along with
other employees had made threats about some of the managers.
Mahone called him into the office and asked whether he was
convicted of a crime in the last 5 years. Robinson admitted that
he was convicted of a crime but told Mahone that he thought it
occurred more than 5 years ago. The record establishes though
that Robinson was convicted of a felony on September 8, 1995
(R. Exh. 22), and did not report it on his employment applica-
tion. Under these circumstances, I find that the Union did not
establish that the Respondent was motivated by antiunion con-
siderations in terminating Robinson. Moreover, I find under
Wright Line, that the Respondent would have taken the same
action even in the absence of Robinson’s union activities. On
the other hand, I previously found that the Respondent termi-
nated five employees to discourage union activity. Under these
circumstances, I conclude that the Respondent’s actions de-
stroyed laboratory conditions and precluded a free and fair
election. Thus, I conclude that Objection 2 should be sus-
tained.
3. The Union asserts in this objection that Respondent
threatened the loss of jobs if employees disseminated union
SODEXHO MARRIOTT SERVICES 555
literature on nonworktime. Employee Renee Hinton credibly
testified that in a conversation she had with Mahone, he stated
that it was grounds for termination if you passed out union
literature. I found Hinton to be a credible witness and consis-
tent with my prior findings regarding the numerous violative
statements made by Mahone to employees during the critical
period, I conclude that Mahone made the statement attributed to
him. Under these circumstances, I sustain Objection 3.
4. The Union asserts in this objection that Respondent
threatened employees with the loss of their 401(k) plan if they
vote for the Union. Employee Reginald Burines testified that
on March 12, he walked in on an employee meeting held in the
kitchen before the afternoon session of the Board election. He
stayed in the meeting for approximately 10 minutes and heard
Mahone state two things concerning the Union. Mahone told
the employees that temporary employees could replace them
and you could lose your 401(k) plan, if you do not vote, no. He
testified that he listened attentively to that last statement be-
cause he was not familiar with the term 401(k) plan. I am in-
clined to credit Burines’s testimony to this effect. First, he
appeared very positive about this meeting and specifically re-
membered the term 401(k) plan. Second, as stated above, I
previously found that Mahone engaged in numerous independ-
ent acts of 8(a)(1) conduct. Moreover, Burines’s testimony is
consistent with other witnesses who attended and testified
about other meetings held on the days of the election. Accord-
ingly, I find conduct of that nature interferes with a free and fair
election and sustain the objection.
5. The Union alleges in this objection that Respondent’s ob-
server repeatedly asked employees how they would vote on
both days of the election. Employee Melvalynn Brown testi-
fied that Respondent’s observer, Ernskine Wade, asked pro-
spective voters how they intended to vote despite repeated in-
structions from the Board agent to the contrary. Wade denied
that he asked prospective voters how they would vote but did
admit that he asked voters, do you want to vote blue or red.
These are the colors used by Board observers to make a check-
mark next to a prospective voter’s name after they receive a
ballot for the election. Wade also admitted that he was a prac-
tical joker and knew everyone who intended to vote by name.
He was somewhat cavalier as a witness and I am inclined to
believe that he did ask prospective voters how they intended to
vote. Under these circumstances, I credit the testimony of
Brown and find that such conduct precluded a free and fair
election. Thus, Objection 5 is sustained.
6. The Union alleges in this objection that Mahone stated in
the preelection conference that Dennis and Darryl are the indi-
viduals that were terminated for their union activities. Em-
ployee Richard Bowie was the union observer during the morn-
ing session of the election on March 12. He testified that Ma-
hone stated in front of Union Representative Lovely and the
Board agent that Respondent would challenge Barber and Dil-
lard because they were dismissed for union activities. Lovely
testified that she also heard Mahone make this statement and
said to the Board agent, did you hear that? Mahone denied that
he made such a statement during the prelection conference.
Based on my prior credibility findings concerning Mahone, I
find that he made the statement imputed to him and conclude
that it interfered with a free and fair election. Therefore, objec-
tion 6 is sustained.
7. The Union contends that on both days of the election, Re-
spondent assembled groups of employees in mandatory meet-
ings with antiunion films and speeches. I previously found in
Objection 4 that Mahone conducted a meeting on election day
and discussed issues related to the Union with employees.
Richard Bowie also credibly testified that he stood outside and
overheard Mahone tell the dietary employees in a meeting
around 8:45 a.m. on March 12, that if you vote no, you will not
lose your benefits and if they voted yes, they would be replaced
with temporary workers. Mahone denied that he conducted any
meetings with employees on the days of the election. As I pre-
viously found, Mahone was not a credible witness and each of
the employee’s testimony regarding meetings held on the days
of the scheduled election has a ring of truth to it. Under these
circumstances, I find that the Respondent blatantly violated the
rules applicable to parties that forbids election speeches on
company time to massed assemblies of employees within 24
hours before the scheduled election. Peerless Plywood Co.,
107 NLRB 427, 429 (1953). This alone is a ground for setting
aside the election and I find such conduct in the subject case
precluded a fair and free election. Thus, this objection is sus-
tained.
8. The Union alleges in this objection that Respondent
threatened to use a temp service, if employees vote yes. In both
Objections 4 and 7, I found that Mahone threatened employees
that they could be replaced with temporary workers if they
voted yes. Under these circumstances, I find statements of this
nature interfere with the free and fair choice in an election and
sustain this objection.
9. The Union alleges that Respondent used antiunion films
portraying strike violence. In the body of the subject decision, I
found that Respondent’s use of four videos did not violate the
Act. Each of the four presentations was a legitimate exercise of
election campaign propaganda and did not threaten employees
with the loss of benefits. Therefore, I do not find that such
conduct interfered with the election.
10. The Union charged in this objection that Respondent
managers intimidated groups of employees with statements
indicating that employees will lose all benefits, and can refuse
to bargain in favor of the Union. As I previously found, Re-
spondent’s representatives held a number of meetings either
after the presentation of the videos or independently to answer
questions about numerous issues in the campaign. In none of
these meetings did I find evidence that Respondent threatened
employees with the loss of benefits. Rather, the representatives
merely restated the content of the videos, which in my view
employees mistakenly perceived as threatening conduct. Under
these circumstances, I do not find that the underpinnings of this
objection were sustained.
IV. THE RESPONDENT OBJECTIONS
The Respondent filed two objections to the conduct of the
election.
1. The Respondent alleges in its first objection that a number
of union adherents congregated at the end of the hallway lead-
ing to the voting area and attempted to influence voters by say-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
ing things such as “vote the right way.” Employee Mary John-
son testified that after casting her vote on March 12, two indi-
viduals she thought were Darryl and Troup asked her if “she
did the right thing.” While I credit this testimony, Johnson
could not specifically identify who the individuals were or if
they were affiliated with the Union. Additionally, the question
took place after Johnson’s vote was cast and did not address
whether she voted for or against the Union. Under these cir-
cumstances, I do not find that laboratory conditions were dis-
turbed and conclude the objection should be dismissed. In any
event, the Respondent withdrew this objection (fn. 7 of R. Br.).
2. The Respondent contends that after the submission of the
Excelsior list on February 25, it provided a revised Excelsior
list on March 10, which reflected the deletion of the names of
four individuals (Inez Crumpler, Rodney Howard, Lionel Wil-
liams, and Cecelia McBride) who were no longer members of
the unit as they had been terminated. The Board agent did not
accept the revised Excelsior list but did receive into the record
the cover letter identifying these four individuals who were no
longer employed by Respondent. Respondent further alleges
that employee, Cecelia McBride, who was previously termi-
nated was permitted to cast a ballot during the voting. After its
objections were filed, Respondent withdrew Objection 2, inso-
far as it alleged that Cecilia McBride, whom it contended was
no longer eligible to vote, cast a ballot during the election. I am
not inclined to sustain this objection for the following reasons.
First, in accordance with the parties stipulated election agree-
ment, the Excelsior list had to be and was provided to the Board
on February 25. No agreement or provision was made to per-
mit the Respondent to submit an additional revised Excelsior
list. Second, the appropriate procedure for the Respondent to
follow was to challenge any of these employees attempting to
vote which is the mechanism the Respondent used as it related
to Rodney Howard. In regard to employees Inez Crumpler,
Lionel Williams, and Cecelia McBride, the record establishes
that none of these employees attempted to vote in the election
and were not challenged by the parties or the Board agent.
Under these circumstances, the integrity of the election process
was maintained and the laboratory conditions were not dis-
turbed. Thus, I conclude that this objection should be dis-
missed.
In sum, I find that Union Objections 2, 3, 4, 5, 6, 7, and 8 are
meritorious and recommend that the election be set aside and a
rerun election conducted.
V. THE CHALLENGED BALLOTS
There were 17 challenged ballots during the March 12 and
13 election, 15 of which were challenged by the Board agent
conducting the election because the names of the individuals
did not appear on the voter eligibility list. Four of the chal-
lenged ballots involve the terminations of employees Dennis
Tookes, Ebony Thurmand, Dennis Barber, and Darryl Dillard.
Considering my prior findings that the above noted employees
were terminated either because of engaging in protected con-
certed conduct and/or union activities, I conclude that their
names should have appeared on the list of eligible voters and
find that the challenges to their ballots should be overruled, that
their ballots be counted and a revised tally of ballots issue.
With respect to the challenged ballot of Gloria Fox, the par-
ties entered into an agreement in the report on determinative
challenged ballots that Fox is included in the unit (GC Exh. 1).
Therefore, the challenge to her ballot is overruled and it should
be opened and counted.
In regard to the challenged ballot of Rodney Howard, and
consistent with my above finding that he was lawfully termi-
nated prior to the election, I find that the challenge to Howard’s
ballot should be sustained.
Concerning the remaining eleven challenged ballots, the par-
ties agree that Vanessa Johnson, Cheryl Kniffen, Jeanette
Mattox, Terry May, Velton Lee, Scott Kennedy, and Melvin
Williams, are ineligible voters and their ballots should not be
counted.6 Thus, the challenges to their ballots should be sus-
tained.
With respect to the challenged ballot of Karen Franklin, the
Respondent introduced evidence to confirm that she is em-
ployed by Botsford Hospital and was ineligible to vote (R. Exh.
18). Accordingly, and particularly noting that the Union did
not rebut this evidence, I find that the challenge to Franklin’s
ballot should be sustained.
In regard to the ballots of Alfonso Andrews and Margo
Spencer, the charging party presented no evidence to establish
that these employees were eligible voters. Accordingly, I find
the challenges to their ballots should be sustained.
Lastly, the charging party asserts that Jermol Robinson was
terminated for engaging in union activities and therefore,
should be considered an eligible voter. Contrary to this posi-
tion, and consistent with my above finding that Robinson was
lawfully terminated prior to the election, I find that the chal-
lenge to his ballot should be sustained.
In sum, I recommend that the ballots of Gloria Fox, Dennis
Tookes, Ebony Thurmand, Dennis Barber, and Darryl Dillard
be opened and counted, and that a revised tally of ballots issues.
If the revised tally of ballots shows that a majority of votes has
been cast for the Union, then the Regional Director for Region
7 should issue a certification of representative. If the revised
tally shows that a majority has not been cast for the Union, the
election shall be set aside, based on the objectionable conduct
discussed above, and a rerun election conducted.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by interrogating employ-
ees concerning their union sentiments, the disparate enforce-
ment of its no-distribution/no-solicitation policy against sup-
porters of the Union, threatening employees with loss of bene-
fits, threatening to discharge employees who supported the
Union, threatening employees with loss of wages and benefits,

6 With respect to Johnson, Kniffen, Mattox, Lee, and Kennedy, the
report on determinative challenged ballots confirms this fact. In regard
to the ballots of May and Williams, the parties agreed during the course
of the subject hearing that they were ineligible voters and their ballots
should not be counted.
SODEXHO MARRIOTT SERVICES 557
giving employees the impression that their activities on behalf
of the Union were under surveillance, promising a raise and
promotion to an employee if the employee abandoned support
for the Union, and threatening employees about wearing but-
tons in support of the Union.
3. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by discharg-
ing employees Dennis Tookes, Ebony Thurmand, Shalonda
Davidson, Dennis Barber, and Darryl Dillard and lowering the
performance evaluation of employee Richard Bowie.
4. Respondent did not engage in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act when it ter-
minated employees Cecelia McBride and Rodney Howard.
3. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees Dennis Tookes, Ebony Thurmand, Shalonda Davidson,
Dennis Barber, and Darryl Dillard, it must offer each of them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Additionally, Re-
spondent must reinstate the original performance evaluation of
Richard Bowie prepared by his former supervisor.
[Recommended Order omitted from publication.]