St. Pete Times Forum

National Labor Relations Board - Board Decisions

Jul 27, 2004

342 N.L.R.B. 578 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELAITONS BOARD
342 NLRB No. 53
578
Palace Sports & Entertainment, Inc. d/b/a St. Pete
Times Forum f/k/a Tampa Bay Ice Palace and
International Alliance of Theatrical Stage Em-
ployees, AFL–CIO.1 Cases 12–CA–21696, 12–
CA–22596, and 12–CA–22623

Palace Sports & Entertainment, Inc. d/b/a St. Pete
Times Forum f/k/a Tampa Bay Ice Palace and
Thomas W. Roberts. Case 12–CA–230382
July 27, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On July 22, 2003, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and Respondent filed a
reply brief. The General Counsel also filed exceptions
and Respondent filed an answering brief.3
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,4 and conclusions and
to adopt the recommended Order.5

1 We have corrected the case caption and the Order to reflect the
proper name of the Charging Party, pursuant to the General Counsel’s
unopposed motion.
2 This case is before the Board solely with regard to the Respon-
dent’s request for special permission to appeal (Appeal #04-22), and
this case has not been consolidated with Cases 12–CA–21696, et al.
3 There are no exceptions to the judge’s findings that the Respon-
dent did not violate Sec. 8(a)(1) by its restatement of its no-solicitation
rule during a meeting with employees on July 1, 2001, or by its July 18,
2001 statement that employees could be terminated for violating the no-
solicitation rule.
4 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
For the reasons stated by the judge, we find that the Respondent did
not violate Sec. 8(a)(1) and (3) by refusing to hire applicant Lewis
Taylor. In dismissing this allegation, we find it unnecessary to pass on
the judge’s finding that Taylor’s alleged threat of “labor strife” if he
was not hired was unprotected.
We also adopt the judge’s recommendation to dismiss the 8(a)(1) al-
legation that the Respondent coerced employees when it stated that the
“Union was out of the building” as of July 1, 2001. We agree with the
judge that this statement does not establish the complaint allegation that
the Respondent’s vice president, Sean Henry, informed the employees
that the Union would no longer be their collective-bargaining represen-
tative as of July 1, 2001.
We find it unnecessary to pass on the 8(a)(1) allegation based on the
Respondent’s Operations Manager Carson Williams’ statement in the
presence of employee Freire that if Williams found out who was going
We agree with the judge that the Respondent violated
Section 8(a)(1) and (3) when it discharged employee
Peter Mullins on November 3, 2002. The judge found
that Mullins had engaged in union activity and that the
Respondent was fully aware of that activity. The judge
also found specific animus against Mullins and that Mul-
lins’ discharge was an adverse action affecting the terms
and conditions of his employment. We agree with these
findings. Thus, the General Counsel made the required
initial showing that Mullins’ union activity was a sub-
stantial or motivating factor in his discharge. Manno
Electric, 321 NLRB 278, 280–281 (1996); Wright Line,
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, 398–403 (1982).
Under Wright Line, the burden then shifted to the Re-
spondent to show that it would have discharged Mullins
even in the absence of his protected, concerted activities.
The Respondent contended that it discharged Mullins
because of its apprehension of potential hostile environ-
ment sexual harassment liability under Title VII of the
Civil Rights Act of 1964, arising out of an encounter

to the NLRB, there was going to be “trouble.” The General Counsel
argues in his brief in support of exceptions that Williams’ remark con-
stitutes a threat of unspecified reprisals for cooperating in a Board
investigation. Even if we were to reverse the judge’s recommended
dismissal of this allegation and find a violation, such a violation would
in any event be cumulative to our adoption of the judge’s finding in the
preceding paragraph of his decision of another 8(a)(1) threat by Wil-
liams of unspecified reprisals for cooperating in a Board investigation.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by disciplining employee Peter Mullins on July 25,
2002, for violating its no-solicitation rule, Member Schaumber relies
solely on the judge’s conclusion that, under Mullins’ version of what
transpired, which the judge credited, Mullins did not violate the Re-
spondent’s rule.
5 We have modified the judge’s recommended Order to reflect that
the Respondent’s first unfair labor practice was on July 18, 2001. Excel
Containers, Inc., 325 NLRB 17 (1997). Additionally, we shall substi-
tute a new notice in accordance with our decision in Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004).
On July 31, 2003, the Regional Director issued a complaint in Case
12–CA–23038 alleging, in part, that the Respondent violated Sec.
8(a)(3) and (4) by discharging employee Thomas Roberts because of
his union activities and because he cooperated in the Board’s investiga-
tion of the charges filed in this case. On January 14, 2004, the Regional
Director postponed the hearing in Case 12–CA–23038 indefinitely,
pending the Board’s decision in this case. Thereafter, the Respondent
filed a motion to proceed with the hearing or dismiss the complaint.
Associate Chief Judge William Cates denied the Respondent’s motion
by order dated January 28, 2004. Thereafter, the Respondent filed a
request for special permission to appeal the administrative law judge’s
ruling. Because the Board has now issued a decision in this case, we
grant the Respondent’s request for special permission to appeal and we
direct the Regional Director to schedule the hearing in Case 12–CA–
23038.
ST. PETE TIME FORUM 579
between Mullins and Alice Castillo, an employee of a
vendor doing business on the Respondent’s premises.
According to Castillo, Mullins initiated a conversation
about the merits of unionization and when she expressed
some skepticism, Mullins called her a “Yankee bitch.”
Respondent argued that Mullins’ angry outburst at Casti-
llo created sufficient concern for Title VII liability that it
discharged him.
The judge credited Mullins’ testimony that he did not
make any offensive statement to Castillo. The judge nev-
ertheless concluded that the Respondent could rely on its
good faith belief that Mullins had engaged in this con-
duct. Analyzing the case under the Wright Line frame-
work, the judge concluded that the Respondent did not
establish that Mullins would have been discharged even
in the absence of his union activity because Mullins’
comment did not, in the judge’s view, constitute a sexual
advance.6
We agree with the judge that the Respondent failed to
show that it would have discharged Mullins even in the
absence of his union activity in order to avoid the impo-
sition of Title VII liability.7 We recognize that employers
have a legitimate interest in preventing workplace sexual
harassment and a correlative obligation to respond when
such incidents occur. In this case, however, we find that
the Respondent has not established that it had reasonable
grounds for determining that it had to remove or disci-
pline Mullins in order to avoid liability under Title VII.8

6 The General Counsel and Respondent’s exceptions do not take is-
sue with the analytical framework applied by the judge.
7 Member Schaumber notes that the test established in Wright Line
was a causation test under which the General Counsel must prove by a
preponderance of the evidence that the employee’s protected activity
was a substantial or motivating factor for the adverse employment
action. The Board, administrative law judges, and circuit courts of
appeals have variously described the evidentiary elements of the Gen-
eral Counsel’s initial burden of proof under Wright Line, sometimes
adding as a fourth element the necessity for there to be a causal nexus
between the union animus (i.e., Sec. 7 animus) and the adverse em-
ployment action. As noted in Shearer’s Foods, Inc., 340 NLRB No.
132, slip op. at 2 fn. 4 (2003), Member Schaumber agrees with this
addition to the Wright Line formulation. It is not necessary to address
the issue here, however, because the General Counsel has met his initial
burden under Wright Line. Member Schaumber agrees with his col-
leagues that the Respondent did not meet its burden under Wright Line
of showing that it would have discharged Mullins in the absence of his
union activity; however, he is of the view that the imposition of some
form of discipline short of discharge may have been justified.
8 The Supreme Court has held that a single, isolated comment gen-
erally is not sufficient to justify the imposition of Title VII liability.
Clarke County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001). More-
over, even where an employee has been shown to have sexually har-
assed a co-worker, Title VII does not necessarily require the em-
ployee’s discharge, so long as the employer takes reasonable action to
protect the complainant from further harassment. Baskerville v. Culli-
gan International Co., 50 F.3d 428, 432 (7th Cir. 1995).
Indeed, the Respondent’s director of human resources,
Beth Fields, admitted at the hearing that she did not be-
lieve that Mullins sexually harassed Castillo. In these
circumstances, we agree with the judge that the Respon-
dent’s asserted Title VII concerns are pretextual.9
In rejecting the Respondent’s Title VII defense, we are
mindful of the admonition of the United States Court of
Appeals for the District of Columbia Circuit in Adtranz
ABB Daimler-Benz Transportation v. NLRB, 253 F.3d
19, 27 (D.C. Cir. 2001), that the Board should interpret
the Act in a manner which is sensitive to employers’ re-
sponsibilities to address workplace harassment. This
case, however, does not present the issues that were of
concern in Adtranz. At issue in that case was the em-
ployer’s maintenance of a policy prohibiting “abusive or
threatening language” on company premises. Here, on
the other hand, the question presented is whether the Re-
spondent discharged Mullins because he was a union
supporter. Under the established principles set forth in
Wright Line, supra, once the General Counsel made the
required initial showing that Mullins’ union activity was
a motivating factor in the decision to discharge him, the
burden shifted to the Respondent to show that it would
have discharged him even in the absence of his union
activities, here, because of its Title VII concerns. For the
reasons set forth above, we have found that the Respon-
dent failed to make that showing. That finding is based
on the specific facts of this case, and thus does not raise
the issue of interfering with employers’ Title VII respon-
sibilities generally that was of concern to the court in
Adtranz.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Palace
Sports & Entertainment, Inc. d/b/a St. Pete Times Forum
f/k/a Tampa Bay Ice Palace, Tampa Florida, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Warning, discharging, or otherwise discriminating
against any employee for supporting International Alli-
ance of Theatrical Stage Employees, AFL–CIO, or any
other labor organization.”

In finding that the Respondent has not shown that its decision to dis-
charge Mullins was justified by Title VII concerns, we do not, however,
rely on any implication in the judge’s decision that Title VII sexual
harassment liability attaches only to comments containing sexual ad-
vances or propositions.
9 A finding that an employer’s stated reason for taking disciplinary
action is a pretext supports an inference that the real motive was unlaw-
ful. ADS Electric Co., 339 NLRB 1020, 1023 (2003).
ST. PETE TIMES FORUM 580
2. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its facilities in Tampa, Florida, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 18, 2001.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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

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

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT warn, discharge, or otherwise discrimi-
nate against any of you for supporting International Alli-
ance of Theatrical Stage Employees, AFL–CIO, or any
other labor organization.
WE WILL NOT prohibit you from talking about the Un-
ion except on nonworking time, while permitting other
conversation.
WE WILL NOT interrogate you regarding your knowl-
edge of employee union activity and WE WILL NOT direct
you to report upon the union activities of your co-
workers.
WE WILL NOT interrogate you regarding your commu-
nications with the National Labor Relations Board and
WE WILL NOT threaten you with unspecified reprisals if
you cooperate in a Board investigation.
WE WILL NOT threaten you with discharge because of
your support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
your rights guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Peter Mullins full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Peter Mullins whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of Board’s Or-
der, remove from our files any reference to the unlawful
warnings and discharge of Peter Mullins, and WE WILL,
within 3 days thereafter notify Peter Mullins in writing
that this has been done and that the warnings and dis-
charge will not be used against him in any way.
PALACE SPORTS & ENTERTAINMENT, INC. D/B/A
ST. PETE TIMES FORUM F/K/A TAMPA BAY ICE
PALACE
Thomas W. Brudney, Esq., for the General Counsel.
Robert M. Vercruysse and Gary S. Fealk, Esqs., for the Re-
spondent.
Kathryn S. Piscitelli, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Tampa, Florida, on May 27, 28, and 29, 2003.1 The
consolidated complaint issued on December 31, 2002.2 The
complaint alleges various violations of Section 8(a)(1) of the
National Labor Relations Act and the failure to hire one em-
ployee because of his union activities and the warning and dis-
charge of Peter Mullins because of his union activities in viola-
tion of Section 8(a)(3) of the Act. The Respondent’s answer
denies any violation of the Act. I find that certain actions of the
Respondent did violate Section 8(a)(1) of the Act, that the fail-
ure to hire did not violate the Act, but that the warning and
discharge of employee Peter Mullins did violate the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following

1 All dates are in 2002 unless otherwise indicated.
2 The charge in Case 12–CA–21696 was filed on July 30, 2001, and
was amended on January 3. The charge in Case 12–CA–22596 was
filed on November 4, and the charge in Case 12–CA–22623 was filed
on November 15.
ST. PETE TIME FORUM 581
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Palace Sports & Entertainment, Inc., d/b/a
St. Pete Times Forum, the Company, is a corporation engaged
in the management and operation of sports and entertainment
venues. The Company annually derives gross revenues in ex-
cess of $500,000 from its business operations and annually
purchases and receives at its Tampa, Florida facility goods and
materials valued in excess of $50,000 directly from points lo-
cated outside the State of Florida. The Respondent admits, and
I conclude and find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondent admits, and I conclude and find, that Inter-
national Alliance of Theatrical Stage Employees, AFL–CIO,
the Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a national enterprise headquartered in De-
troit, Michigan, where it operates a highly successful sports and
entertainment arena, the Palace of Auburn Hills, Michigan. In
1999, the Company acquired what was then known as the Ice
Palace in Tampa, Florida. The Company assumed various con-
tractual obligations that had been made by the Ice Palace, in-
cluding a contract with a company referred to as SMG which
employed fulltime employees who maintained the facility and
part-time employees who provided the labor to make the
changeovers necessary to convert the floor of the facility from
an ice rink for professional hockey to a stage for performers or
a dirt track for monster trucks.
SMG and the Union were parties to a collective-bargaining
agreement that expired on June 30, 2001, the same date that
SMG’s contract with the Ice Palace expired. As of early May,
the Company had determined that it would become the em-
ployer of the employees who maintained the facility and pro-
vided the labor for changeovers. On May 6 and 7, 2001, Vice
President Sean Henry informed the SMG employees of its plans
and advised that they could apply for positions that would soon
be posted. The positions were posted in late May and job inter-
views were conducted beginning on May 29. The Company is
not alleged to be a successor. Several prounion bargaining unit
employees, including Secretary/Treasurer Pamela Johnson,
employee Donald Bates, and employee Peter Mullins began
soliciting authorization cards from their fellow employees;
however, no representation petition was filed.
In 2002, the Union again solicited authorization cards. On
October 21, a representation petition was filed. An election was
conducted in November in which a majority of the employees
in the appropriate unit rejected representation.
The issues in this case relate to statements purportedly made
by various management officials in 2001 and 2002, the failure
of the Company to hire Lewis Taylor in June 2001, and the
discipline of employee Peter Mullins in July 2002 and his ter-
mination in November 2002.
B. The Refusal to Hire
1. Facts
Lewis Taylor had worked as a maintenance employee and
carpenter with SMG since 1996 when the facility opened as the
Ice Palace. On May 25, 2001, he was elected president of the
local at Tampa. The names of the officers elected at that meet-
ing were posted on the union bulletin board. Prior to May 2001,
the local union had no officers. The only formal union position
was that of shop steward, and that position was filled by em-
ployee Andy Lalewicz. Employee Peter Mullins had been on
the negotiating committee for the collective-bargaining agree-
ment between the Union and SMG. On May 25, 2001, when
Taylor was elected president, Lalewicz was elected business
representative, Johnson was elected secretary/treasurer, and
Mullins and George Freire were elected as delegates.
Taylor applied for a position with the Company and was in-
terviewed. The interviews were conducted by Vice President
Sean Henry, Director of Human Resources Beth Fields, and
Operations Manager Carson Williams. Taylor recalls that his
interview had initially been scheduled in the morning but was
moved to the afternoon. Taylor had been working all day. SMG
had no dress code. Taylor had shoulder-length hair and a full
beard. Since he had been working, he was sweaty and covered
with sawdust.
Taylor, who placed the interview on May 17, 2001, recalls
that, as he came into the meeting, Vice President Henry “shook
my hand and congratulated me.” He testified that, even though
this was prior to the interview, he thought he had the job. This
apparent nonsequitur was clarified by Fields who explained that
all interviews were on or after May 29, 2001, after the May 25
election of Taylor as president of the local. Henry recalls con-
gratulating Taylor upon his election. Taylor denied that the
Union was mentioned in any way during the meeting. He re-
calls being informed that the Company was changing the su-
pervisory structure and that he would be reporting to Carson
Williams. Taylor indicated that he had no problem in that re-
gard. He was also told that the Company had a dress code and
that he would have to be clean-shaven and have his hair cut.
Taylor responded that he had no problem in complying.
Vice President Henry testified that Taylor had grime on his
clothes, was disheveled, and exuded a rank odor that included
alcohol, which reminded him of “Bourbon Street at 7:00 a.m.”
He recalled that, as he was describing the Company’s goals,
Taylor would “snort and dismiss it,” and that he found this
disconcerting since it was Taylor who was being interviewed.
At one point, Henry addressed Taylor, asking why the Com-
pany should hire him and Taylor replied that the Company had
to hire him, otherwise “you are going to have problems.” Henry
asked what kind of problems and Taylor replied, “labor prob-
lems, . . . lock downs, . . . [s]hows will be cancelled.” Henry
suggested that everyone take a break, and Taylor said, “Just
give me my paperwork so I can sign it and move on.”
Director of Human Resources Fields confirms that Taylor
was covered with sawdust. She noted that he had not bothered
to wash his hands. Moreover, Taylor’s eyes were bloodshot,
and he exuded body odor and the smell of alcohol. His clothing
appeared dirtier that it would have been had he started the day
ST. PETE TIMES FORUM 582
wearing clean clothing. She recalled Taylor stating that if he
were not hired, there would be “labor strife.” At the conclusion
of the meeting he stated, “Just give me the paperwork and I’ll
sign it, and we can be done with this.”
Operations Manager Williams confirmed that Taylor was
dirty and smelled of sweat and alcohol. He noted that, upon
hearing management’s objectives, Taylor’s reaction was “very
negative.” Upon the conclusion of the meeting, Williams did
not want to hire Taylor.
Taylor was not offered a position. Although there had been
some friction between Taylor and his immediate supervisor,
there is no contention that the friction related to the Company’s
decision not to hire Taylor. There is no probative evidence that
Taylor’s job performance with SMG related to the employment
decision; rather, it resulted from his interview. Union officers
Lalewicz, Johnson, Mullins, and Freire were all hired.
On December 27, 2002, a year and a half after the Company
did not hire him, Taylor wrote his former supervisor, Tim
Friedenberger, and expressed regret for past problems with
him. He also acknowledged a past problem with alcohol and
drugs. Taylor stated that he had discontinued his affiliation with
the Union and offered to “fight to keep them [the Union] out.”
Despite his changed attitude towards the Union, Taylor did not
assert that he considered that affiliation to have affected his
employment. The letter states, “I have known and realized that
the drugs and drinking and letting people in my head . . .
screwed me out of a good job.”
2. Analysis and concluding findings
The Respondent acknowledges that it was aware of Taylor’s
union activities. As already noted, he was congratulated upon
his election as local president at his job interview. Pursuant to
the analytical framework set out in FES, 331 NLRB 9 (2000), I
find that the Respondent was hiring and that Taylor was quali-
fied for the job for which he applied. The third criteria set out
in FES is whether antiunion animus contributed to the decision
not to hire the applicant.
It is undisputed that Taylor, unlike the neatly groomed,
clean-shaven witness who appeared at the hearing, had long
hair and a full beard in late May 2001. The presence of sawdust
on his clothing and in his hair and beard when he came to his
job interview was understandable because he had been work-
ing. The description by Henry and Fields of the body odor Tay-
lor exuded exceeded what would have been expected had Tay-
lor been clean when he began the workday. There is no claim
that Taylor was inebriated at the meeting. He denied that he
smelled of alcohol or that he had drunk during the day or too
excess the night before this meeting. His acknowledgement in
his December 27, 2002 letter of a past problem with drugs and
alcohol diminishes the credibility of that denial. In Clock Elec-
tric, Inc., 323 NLRB 1226, 1233 (1997), the respondent refused
to hire an electrician whose “hair was matted, his clothes were
dirty, and he exuded an obnoxious body odor in addition to the
smell of alcohol on his breath.” In finding the failure to hire
justified, the administrative law judge determined that the re-
spondent was “rightfully concerned about . . . [his] appearance
and odor.”
Although the Respondent denies animus towards the Union,
as discussed, I find that the Respondent did bear animus to-
wards employee union activity. Notwithstanding the presence
of animus, the Respondent hired former shop steward Lalewicz,
the one individual who actually held a position with the Union
prior to May 2001, as well as Secretary/Treasurer Johnson,
negotiator Mullins, and newly elected delegate George Freire.
Unlike Johnson and Mullins, there is no evidence that Taylor
solicited union authorization cards in May and June 2001 im-
mediately prior to the Respondent becoming the employer. The
only prounion employee shown on this record not to have been
offered a position was Taylor.
The General Counsel argues that the Respondent’s witnesses
should not be credited regarding the manner in which Taylor
presented himself and that, even if I credit their testimony re-
garding Taylor’s alleged remarks regarding “labor strife,” that a
“union official’s threat to create labor problems unless hired
does not bring the official outside the scope of Section 7 protec-
tion.” No case authority is cited for the foregoing proposition,
and I am unaware of any case authority establishing that a
threat to take actions that would interfere with an employers’
business in retaliation for a hiring decision is protected activity.
The mutually corroborative testimony of Henry, Fields, and
Williams confirms that Taylor’s attitude left as much to be
desired as did his appearance. Taylor denied that there was any
mention of the Union at the meeting or that he made any state-
ments relating to labor strife. He did not deny that, as the meet-
ing was concluding, he stated, “Just give me the paperwork and
I’ll sign it, and we can be done with this.” Taylor’s undenied
parting remark is consistent with the negative attitude that the
Respondent’s management officials testified Taylor displayed
throughout the interview. The Respondent has established that
its decision not to offer a position to Taylor resulted from Tay-
lor’s presentation of himself at the job interview and was not
motivated by antiunion animus. I shall recommend that this
allegation be dismissed.
C. The 8(a)(1) Allegations
The complaint alleges that about May 6, 2001, at one of the
meetings when the Company announced it would become the
employer rather than SMG, Vice President Sean Henry and
Director of Human Resources Beth Fields promised employees
wage increases and benefits if they stopped supporting the Un-
ion. The complaint further alleges that Henry informed em-
ployees that the Union would no longer be their collective-
bargaining representative as of July 1. Although Henry and
Fields did inform employees of the application process and did
mention the benefits offered by the Company, both credibly
testified that no specific wage rates were mentioned. None of
the foregoing statements were related to the Union in any way.
Peter Mullins recalled that Henry, whom he had spoken with
prior to the meeting regarding the status of the Union, “kept
reiterating . . . that it would be up to the employees.” Employee
Pam Johnson acknowledged that Henry stated, “What you do
about the Union is your business.” Henry credibly testified that,
when he was asked whether the employees would continue to
be represented, he replied that it was “not up for us [the Com-
pany] to decide if the Union was going to be in there or not, our
ST. PETE TIME FORUM 583
employees would decide.” Johnson also recalls Henry saying
that “as of July 1, the union contract was over and that it was
out of the building.” Johnson’s testimony does not establish the
complaint allegation that the Union would no longer be the
employees’ collective-bargaining representative. There is no
allegation that the Company was a successor, and even if it
were, it could set initial terms and conditions of employment.
Upon expiration of the contract on June 30, 2001, the Union’s
privilege to maintain a bulletin board and obtain access for
representatives, privileges obtained through the contract, not
rights guaranteed by the Act, ceased. I shall recommend that
the foregoing allegations be dismissed.
On June 27, 2001, the Company posted the following valid
solicitation rule:

Solicitation of any kind, by one employee to another, is pro-
hibited while either is working. Working time is when an em-
ployee’s duties require that he/she be engaged in work tasks.
Working time does not include an employee’s own time, such
as meal periods, scheduled breaks, time before and after a
shift and personal cleanup time. We believe that you should
not be disturbed or disrupted in the performance of your job.
Solicitation by nonemployees on Ice Palace or Palace Sport &
Entertainment’s premises is prohibited at all times.

The complaint alleges that, on July 1, 2001, Supervisor Tim
Friedenberger informed employees that all soliciting was pro-
hibited, and that in mid-July he threatened employees with
discharge for soliciting on behalf of the Union on Ice Palace
property. Employee Donald Bates recalled that, shortly after
July 1, Supervisor Friedenberger requested him to remove un-
ion materials from the bulletin board to which the Union had
access pursuant to the collective-bargaining agreement that had
expired on June 30, 2001. Bates recalled that he asked why
Friedenberger was making the request and that Friedenberger
replied “there was no soliciting in the building at all.” Frieden-
berger denied making any statement relating to solicitation
other than reading the policy to employees at a meeting. The
only testimony relating to a threat of discharge by Friedenber-
ger is that of employee Jarvis Sheeler who recalled that, before
a concert, the conversion supervisors and conversion techs, all
statutory employees, were called to a meeting at which Super-
visor Friedenberger reiterated that there was a no-solicitation
policy and that “if people were caught handing out any type of
union cards and/or solicitations, there would be disciplinary
actions against them.” There is no corroboration whatsoever
from any other employee who attended this meeting that
Friedenberger orally promulgated an unlawful rule broader than
the published rule and accompanied it with a threat. I credit
Friedenberger’s denial that he did so. The Respondent had the
right to deny the Union access to the bulletin board upon expi-
ration of the collective-bargaining agreement. Bates’ testimony
was clear regarding what he was directed to do. Friedenberger
denied directing that union materials be removed or making any
statement prohibiting all solicitation. Insofar as the Respondent
was privileged to deny the Union access to a bulletin board,
there would have been no reason for Friedenberger not to have
admitted doing so if, in fact, he had been the individual that had
directed that action. Although I credit Bates regarding the
transaction, I find that he was mistaken regarding the identity of
the individual who spoke with him. Having found that Supervi-
sor Friedenberger was not the individual involved, there is no
evidence that the individual who spoke with Bates was a super-
visor of the Respondent. I shall, therefore, recommend that the
foregoing allegations attributed to Supervisor Friedenberger be
dismissed.
On July 18, 2001, the Company held a meeting at which Di-
rector of Human Resources Fields was to explain various bene-
fits. Prior to Fields’ beginning her presentation, Vice President
Henry addressed the employees. The complaint alleges that
Henry threatened employees with discharge for engaging in
union activities and promulgated a rule prohibiting talking
about the Union while permitting employees to discuss other
subjects.
Henry recalls that, prior to this meeting, several employees,
none of whom he named, reported to him that they had been
coercively solicited on behalf of the Union. He testified that
those employees refused to identify the individual or individu-
als who had allegedly coercively solicited them and that he did
not press the matter. Despite the unwillingness of the reporting
employees to give Henry the information that he needed in
order to properly investigate the complaint, he did address the
solicitation policy at the beginning of the meeting. He testified
that he reviewed the policy and noted that if someone violated
that policy, “no matter what they were soliciting for,” they
could be terminated. Henry recalled explaining, “you can’t
solicit for Girl Scout cookies, Amway, church raffles, Little
League candy bars,” noting that solicitation when working was
a “detraction from what we all do, [s]o, let’s reserve that for
when we are on breaks, when we are walking in the building,
when we are at lunch and truly not bother each other with it.”
Henry acknowledged that he also said, “[W]hen you are on
break, when you are on lunch, and obviously before work and
after work you can talk about what you would like to talk
about. You can solicit each other. You know, you can talk
about virtually anything you want. But during working time
you can[‘t] solicit for any initiative, whatever it may be.”
Fields recalled that Henry told the employees that he “didn’t
care if they were soliciting for union cards, or Amway or Avon
or Girl Scout cookies or for the Boy Scouts but that it could not
happen during working time.” Employee Pam Johnson recalls
Henry stating that he had been “approached by several people
coming to him complaining that people were trying to coerce
them into signing union cards and that he wanted it to stop. And
that anybody . . . caught doing this would be terminated.”
Henry continued stating that he “didn’t care if we talked about
Amway, Boy Scout cookies, Avon, just not the Union.”
Employee Peter Mullins testified that, after condemning co-
ercive solicitation, Henry referred to talking, stating that, “we
were allowed to talk about Amway, Avon, Boy Scouts, Girl
Scouts, but if we talked about the Union we would be fired.”
Complaints regarding solicitation on behalf of the Union were
what prompted Henry to address the employees regarding the
solicitation policy. Despite this, when testifying to the remarks
that he made, Henry did not include the Union in the list of or-
ganizations for which there should be no solicitation except on
nonworking time. His omission of the very organization that
ST. PETE TIMES FORUM 584
prompted his comments from the list he recited gives credence to
the testimony of Johnson and Mullins that the list was of organi-
zations employees could talk about, “just not the Union.” Henry
admitted informing the employees that solicitation in violation of
the Respondent’s rule could result in termination. There was no
violation in that regard, and I shall recommend that the allegation
that the Respondent threatened employees with discharge for
engaging in union activities be dismissed. Consistent with the
testimony of Johnson (“didn’t care if we talked about Amway,
Boy [sic] Scout cookies, Avon, just not the Union”) and Mullins,
(“we were allowed to talk about Amway, Avon, Boy Scouts, Girl
Scouts, but if we talked about the Union we would be fired”), I
find, as alleged in the complaint, that Henry did promulgate a
rule prohibiting conversation regarding the Union. Henry’s ad-
mission that he told employees that they could “talk about virtu-
ally anything” but could not solicit on working time, together
with the credible testimony of Johnson and Mullins, establishes
that “virtually anything” excluded the Union because Henry
viewed any discussion regarding the Union as solicitation. An
employer may not restrict union-related conversation while per-
mitting conversation relating to other topics. Opryland Hotel, 323
NLRB 723, 728–729 (1997). By prohibiting employees from
talking about the Union except on nonworking time, while per-
mitting other conversation, the Respondent violated Section
8(a)(1) of the Act.
The remaining 8(a)(1) allegations relate to conduct by Op-
erations Manager Carson Williams.
The complaint alleges that, in early July 2001, Williams in-
terrogated employees regarding their union activities and di-
rected them to report upon the union activities of their cowork-
ers. Employee Thomas Roberts recalls that, in mid-July, he was
at the loading dock heading towards the freight elevator when
he encountered his immediate supervisor, Carson Williams.
Operations Manager Williams asked Roberts whether “anybody
[had] approached me about the union organization process,
things like that.” Roberts responded that no one had. Williams
then stated, “I know if anyone comes to you, you will let me
know.” Roberts replied, “Well, either way I don’t want to say
yes, I will come to you or no, I won’t come to you. I just want
to come in to do my job.”
Williams denied having any conversation in July 2001 with
Thomas Roberts in which he discussed the Union. Although
making several general denials, Williams was not asked and did
not deny stating to Roberts, “I know if anyone comes to you,
you will let me know.” The foregoing conversation related to
the union activities of employees, not the Union itself; thus,
Williams’ denial of having discussed the Union with Roberts
was, literally, truthful. I credit Roberts. Williams’ conversation
with Roberts was coercive. Williams was probing to determine
the extent of union activity among the employees. The exis-
tence of that activity is established by Henry’s testimony that
employees had complained to him regarding alleged coercive
solicitations. When Roberts initially denied having any knowl-
edge of employee union activity, Williams continued, not ask-
ing a question, but stating to an employee whom he directly
supervised that he knew the employee would let him know if
anyone came to him regarding union organizational efforts. In
the face of this supervisory direction, Roberts responded that he
just wanted “to come in to do my job.” By interrogating em-
ployees regarding their knowledge of employee union activity
and directing them to report upon the union activities of their
coworkers, the Respondent violated Section 8(a)(1) of the Act.
The complaint alleges that, in mid-July 2001, Williams pro-
hibited employees from talking about the Union. Employee
George Freire spoke with a new employee, Carlos Gonzales,
regarding the Union and provided Gonzales with a union au-
thorization card. The following day, Operations Manager Wil-
liams spoke with Freire and told him “not to be discussing un-
ion issues on the clock or in the building.” Freire acknowledged
that he knew that he could talk about the Union at lunch and on
break. Counsel for the Respondent asked Freire whether it was
true that Williams had stated that he could not be talking about
the Union when he was working. Freire acknowledged that he
had. Williams denied telling any employees not to discuss the
Union. I do not credit that denial. The prohibition against talk-
ing about the Union was exactly the prohibition that Henry had
announced on July 18, 2001, equating discussion about the
Union with solicitation. Williams reiterated the orally promul-
gated rule that Henry had announced on July 18. By prohibiting
employees from talking about the Union except on nonworking
time, while permitting other conversation, the Respondent vio-
lated Section 8(a)(1) of the Act.
The complaint alleges that, on November 20, 2001, Williams
interrogated employees regarding their communications with
the Board and threatened unspecified reprisals if employees
cooperated in an investigation being conducted by the Board.
Employee Thomas Roberts testified that this occurred before
lunch as he was working “outside the compound.” Several em-
ployees in the front office had been terminated. Roberts re-
called that the conversation began when Operations Manager
Williams asked him “what the scuttlebutt was about the fir-
ings.” Roberts responded that some people were saying that the
firings were over but others thought that more people were
going to be fired. Williams responded that it “was only admini-
stration that was hit and that’s all over with.” Williams told
Roberts that he “didn’t like rumors” and that he was going to
address one. He then stated that he “had heard that I had went
to the NLRB, and I had went to the NLRB about him and like
what did I have to say about that.” Roberts responded that he
did not know what Williams was talking about, that he had not
gone to the NLRB. William responded that he did not know
whether it was Roberts or another employee named Thomas
Roberts who had a different middle initial, but that “it would all
come out and once it did . . . he would take care of it at that
time once the information got to him.”
Operations Manager Williams generally denied interrogating
employees regarding their communications with the Board. He
did not deny or address any conversation with Roberts in No-
vember. He did not deny threatening unspecified reprisals for
cooperating with the Board in an investigation. Roberts was
fully credible. His demeanor was impressive. His recollection
was clear. In addressing several crucial matters, including
whether Peter Mullins denied using any offensive language in
an incident in October 2002, Williams testified that he had no
independent recollection. I credit Roberts. When Roberts de-
nied having gone to the Board, Williams noted that he was
ST. PETE TIME FORUM 585
aware that there was another Thomas Roberts who had a differ-
ent initial but that “it would all come out” and that he would
“take care of it.” The foregoing threat conforms the coercion
inherent in the interrogation. By interrogating employees re-
garding their communications with the Board and threatening
unspecified reprisals if employees cooperated in a Board inves-
tigation, the Respondent violated Section 8(a)(1) of the Act.
The complaint further alleges that, on or about December 11,
2001, Williams threatened to discharge employees if they co-
operated in an investigation being conducted by the Board. The
Union filed the charge in Case 12–CA–21696 on July 30, 2001.
On December 11, employee George Freire was working at a
desk when Operations Manager Williams walked through the
room. According to Freire, Williams did not address him.
Rather, Williams was speaking to himself out loud. The state-
ment Freire recalls hearing was that, “if he found out who was
going to the NLRB that there was going to be trouble.” Wil-
liams did not make the statement to Freire, and Freire made no
response. Unlike the direct threat to Roberts that he would
“take care of it,” the reference to “trouble” does not unambigu-
ously establish that Williams would be the instigator of the
unspecified trouble. Freire gave no context for the remark that
he overheard. The record does not establish whether Williams’
dialogue with himself referred to the charge that had been filed
by the Union in July or to some other matter. Absent any con-
text whatsoever, I cannot find that the foregoing ambiguous
overheard comment threatened any employee with adverse
action, much less discharge as alleged in the complaint. I shall
recommend that this allegation be dismissed.
The final allegation relating to Operations Manager Williams
is that, on June 18, 2002, he threatened the discharge of em-
ployees who supported the Union. On that date, employee Peter
Mullins was called by Williams to the office because of a prob-
lem with the building automation system. Mullins identified the
problem and he and Williams corrected it. Williams, who was
soon to leave on vacation, commented that he would be “lost,”
without Mullins, and Mullins replied that he was not planning
on going anywhere. Williams then stated to Mullins that if he
and “Pam [Johnson] and the rest of the union supporters file for
a new election, then you are going to be terminated.” Mullins
replied that he could not be terminated for “doing something
legal.” Williams then stated that the Company was going to
terminate the leader, an apparent reference to Mullins, “and
then the rest of you will get in line.” Mullins asked who had
told him that and Williams replied, “Sean Henry.”
Williams, without addressing whether he had a conversation
with Mullins shortly before going on vacation in June, denied
threatening to discipline or discharge employees for engaging
in union activities. He did not deny having a conversation with
Henry in which Henry stated his intention to terminate Mullins
if the Union sought an election. Mullins testified that, at the
time, this conversation occurred, he had become concerned
regarding his tenure as an employee. He made a contemporane-
ous note immediately following this conversation. Williams’
general denial was unconvincing. I credit Mullins testimony,
the details of which Williams did not deny, including the spe-
cific reference to employee Pam Johnson and Vice President
Sean Henry. By threatening employees with discharge because
of their support for the Union, the Respondent violated Section
8(a)(1) of the Act.
D. The Warnings of July 25, 2002
1. Facts
As set out above, the Company has a presumptively valid so-
licitation rule that prohibits solicitation by employees if either
is working. On July 11, employee James Carpenter obtained
permission from his supervisor to speak with Vice President
Sean Henry “about this certain individual about bringing the
union in.” Henry recalls that Carpenter reported to him that
Peter Mullins was “always . . . talking to me and telling me the
merits of the Union. Telling me, you know, why I should join.
Why I have to reaffirm it. Why I should get other people to
join.” Henry testified that Carpenter reported that initially it
was “three, four, five times a week” but now it was “every
time” he saw Mullins. Henry testified that Carpenter told him
that he had told Mullins to leave him alone “dozens of times.”
Henry referred the matter to Director of Human Resources
Fields.
On July 12, Henry, Fields, and Operations Manager Wil-
liams met with Carpenter who reported being “harassed and
solicited” by Mullins. He specifically reported one incident. In
that incident, which Carpenter placed in the breakroom at 7:30
on the morning of July 11, which was before Carpenter clocked
in but after Mullins had begun work at 7 a.m., Carpenter and
another employee went to the breakroom. Carpenter reported
that Mullins asked him why he would not join the Union. Car-
penter said that he replied that he liked working for the Com-
pany, and that Mullins responded that the Union could negoti-
ate a better raise for him. Carpenter said that he told Mullins
that he was not interested and left. The memorandum of this
meeting further notes that Carpenter reported that Mullins
“confronts him about a labor union at least 3–5 times per week”
and that it was interfering with his work. The memorandum
does not reflect that he had ever stated to Mullins that he did
not want to hear anything further about the Union.
Following this meeting, at Fields’ request, Carpenter wrote a
statement dated July 17, in which he states that “[f]or the past
couple of weeks” he had “been stopped in the hallways” and
“in the office inside the breakroom,” an apparent reference to
the breakroom inside the hockey operations office, by Mullins
“about hav[ing] the Union back into this building.” The state-
ment notes that Carpenter is “getting tired” of being talked to
about the Union. The statement reports the breakroom encoun-
ter in which Mullins asked him “about the Union” and, unlike
the memorandum of the July 12 meeting, concludes by noting
that Carpenter told Mullins, “I don’t want to hear about it any
more.”
Although the statement was written 6 days after July 11,
there is no evidence of any occasion after July 11 that Carpen-
ter again complained about being approached by Mullins. Mul-
lins testified that he never initiated a conversation about the
Union with Carpenter, that Carpenter brought up the subject,
that he was “confused, . . . afraid that . . . he was going to lose
his job if he supported the Union.” Regarding the conversation
in the breakroom on July 11, Mullins recalled that Carpenter
“brought up the subject about how his father-in-law had told
ST. PETE TIMES FORUM 586
him that he didn’t need a union.” Mullins responded, “Well,
James, you know, in a perfect world you don’t need a union . . .
[but we are] already making a lot less money since Palace
Sports and Entertainment eliminated the contract and, you
know, we’re not getting overtime after eight.”
Fields, Henry, and Williams interviewed Mullins on July 18.
Consistent with Mullins’ testimony at the hearing, Henry re-
calls that Mullins stated: “I have no idea what he’s [Carpen-
ter’s] talking about. You know, James is a member of the Un-
ion. He has a card in the Union. Any time I talk to him is only,
you know, to answer his questions.” Henry recalls that he noted
that Carpenter claimed that he had asked Mullins to stop
“countless times.” Mullins replied, “I don’t recall him ever
asking me to stop.”
Henry testified that Carpenter was “nervous” and “upset” on
July 11, and that he believed him because he was “so detailed
and . . . upset.” Fields testified that she also believed Carpenter.
When questioned as to whether she had ever accepted the word
of Mullins over that of another employee, Fields cited only one
incident, an occasion in which Mullins had complained that
Operations Manager Williams and his assistant were smoking
in the building. Further testimony established that Williams and
the assistant admitted doing so, thus there was no conflict.
Counsel for the General Counsel questioned Fields regarding
whether she would conclude that an employee was being har-
assed when an employee had continuously declined a fellow
employee’s invitations to dinner. Fields acknowledged that a
critical consideration regarding any action she might take
would be whether the employee had specifically told the other
individual to stop, “that it was bothering her or offensive to her.
It would depend.”
On July 25, Mullins was issued two warnings. The first was a
written warning for violation of the company solicitation rule. It
cites the incident on July 11 when Mullins was purportedly on
worktime. It states that Mullins “asked an employee why he
would not join a labor union,” that the employee stated that he
wanted to give the Company a chance, that Mullins told the em-
ployee that the Union could get him a better raise, and that the
employee told Mullins that he was not interested and walked
away. Mullins’ written comment on the warning notes that the
accusation was not true, that Carpenter was “already” a member.
The second warning, a final written warning, was for violation of
the policy against harassment. It states that “during the months of
June and July” Mullins, “at least 3 to 5 times a week stopped him
[Carpenter] in his work area and . . . ‘intimidated’ him about
joining a labor union while he was on work time. The employee
repeatedly asked Peter [Mullins] to stop . . . but Peter continued
until the employee reported the harassment to his supervisor.”
In testimony, Carpenter stated that Mullins had spoken with
him about bringing the Union back and that he had replied that
he wanted to give the Company a chance. Mullins replied
“Okay.” He testified that, a couple of weeks later, Mullins
spoke with him again and that he replied, “No. I don’t want it
yet.” [Emphasis added.] Carpenter testified that Mullins ap-
proached him on “several occasions” including when he was in
the breakroom before clocking in and “even when I’m going
from one job to another job . . . he approaches me and stops and
asks me about the Union.” Carpenter testified that, on those
occasions, he replied, “I don’t want to discuss it right at this
moment.” [Emphasis added.] He denied approaching Mullins
about the Union. He acknowledged that, when Mullins spoke
with him as he was walking from job to job, that Mullins did
not physically restrain him. On cross examination, Counsel
referred Carpenter to the statement he had written on July 17,
and asked: “You have testified that he [Mullins] did this [ap-
proached about the Union] on several occasions, before you
wrote this statement in front of you; was the frequency once a
week?” Carpenter answered, “Yes.”
Mullins testified that he did not have an official break time
because of the nature of his job, that he had to respond when
necessary. He recalled one occasion that he had stated to Op-
erations Manager Williams over the two-way radio that he was
on break and that Williams had responded “You’re not on
break; you answer any time there is an emergency.” Williams
did not deny the foregoing conversation and acknowledged that
Mullins, “relative to his normal duties, . . . could go into the
breakroom and get coffee and keep on going.”
On October 2, Carpenter signed a union authorization card.
Mullins testified that Carpenter requested the card. Carpenter
admitted signing the card but denied that he had requested it.
There is no evidence that he made any complaint to manage-
ment on that occasion. Regardless of the circumstances sur-
rounding the signing, Carpenter’s signing of the card casts seri-
ous doubt upon his assertion that he informed Mullins that he
was not interested in the Union and supports Mullins’ testi-
mony that Carpenter was “confused.”
2. Analysis and concluding findings
“Employees who engage in union activities are not immune
from nondiscriminatory discipline when they violate lawful
plant rules unrelated to employee Section 7 rights. . . . When an
employee is disciplined for an alleged violation of a lawful rule
while engaging in activity protected by Section 7 of the Act, the
employer is not privileged to act upon a reasonable belief if, in
fact, the employee is innocent of any wrongdoing.” Avondale
Industries, 333 NLRB 622, 640 (2001). As the Supreme Court
stated in NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964), “A
protected activity acquires a precarious status if innocent em-
ployees can be discharged while engaging in it, even though the
employer acts in good faith.” The burden of proof is upon the
General Counsel to show that the employer’s honest belief was
mistaken, that the alleged misconduct did not in fact occur.
Avondale Industries, supra at 640.
The first warning issued to Mullins on July 25 was for viola-
tion of the Respondent’s solicitation rule. The Respondent’s
brief states that, on July 11, Mullins “violated the solicitation
policy by soliciting James Carpenter to sign a union card when
Mullins was on working time.” There is not an iota of evidence
that Mullins asked Carpenter to sign a union card. Carpenter
never made such an assertion. According to Carpenter, Mullins
asked, “why he would not join a labor union.” Mullins wrote on
the warning that this did not occur, that Carpenter was “al-
ready” a member. There is no evidence contradicting that
comment. Carpenter was not asked, as Mullins testified,
whether he had approached Mullins and mentioned that his
ST. PETE TIME FORUM 587
father-in-law had stated that the employees did not need a un-
ion. I credit Mullins.
Even if I did not credit Mullins, the record does not establish
that Mullins violated the Respondent’s rule. Rules prohibiting
solicitation during working time are presumptively valid. Our
Way, 268 NLRB 394 (1983). The Respondent’s rule, in perti-
nent part, states: “Solicitation of any kind, by one employee to
another, is prohibited while either is working. Working time is
when an employee’s duties require that he/she be engaged in
work tasks.” Mullins duties did not require that he be engaged
in work during the brief interval that he obtained coffee. Opera-
tions Manager Williams acknowledged that employees, includ-
ing Mullins, get coffee in the morning and may take their cof-
fee with them as they go from job to job. The Respondent ar-
gues that Mullins was not on break. Not to belabor the point,
but the acknowledgement that employees are permitted to get
coffee entails going to the coffee machine, waiting while the
cup fills, and then returning to work. The reason for the no-
solicitation rule, as stated in the rule, is that the Company “be-
lieve[s] that you should not be disturbed or disrupted in the
performance of your job.” The total time required for the entire
conversation that Carpenter reported is 15 seconds. Although it
seems unlikely that one employee questioning another at the
coffee machine regarding why that employee did not support
the Tampa Bay Lightning, the hockey team that plays at the
facility, would constitute solicitation, the Respondent character-
ized Mullins’ questioning of Carpenter regarding “why he
would not join a labor union” as solicitation. Accepting that it
did constitute solicitation, there was no disturbance or disrup-
tion in the performance of Mullins’ work. He was not working.
He was, as his supervisor permitted him to do, getting coffee.
I find that Mullins did not solicit Carpenter. Carpenter initi-
ated the short conversation by referring to a statement made by
his father-in-law to which Mullins replied with a prounion
statement. I further find, regardless of who initiated the conver-
sation, that Mullins did not violate the Respondent’s solicitation
rule because he was engaged in a nonwork activity, getting
coffee, an activity in which his supervisor had permitted him to
engage. The Respondent’s warning of Mullins for violation of
its solicitation rule violated Section 8(a)(1) of the Act.
The second warning, a final warning, also issued to Mullins
on July 25, was for violation of the Respondent’s harassment
policy. It states that Mullins “intimidated” Carpenter “about
joining a labor union” and that this occurred “at least 3 to 5
times a week even after the employee being harassed asked
Peter [Mullins] to stop.”
Although Henry testified that he believed Carpenter because
he was “so detailed and . . . upset,” examination of Carpenter’s
inconsistent statements reveals little detail. Henry did not con-
sider that Carpenter may have been “nervous” and “upset” be-
cause he was fabricating a false report. As of July 25, the Re-
spondent had three versions of Carpenter’s account regarding
his encounters with Mullins. The most extreme was Henry’s
recollection that Carpenter told him that Mullins was confront-
ing him “every time” they saw each other and that Carpenter
had requested him to stop “dozens of times.” Carpenter did not
repeat this account when he met with Henry, Fields, and Wil-
liams on July 12. He referred to encounters only 3 to 5 times a
week and the memorandum does not reflect over what period
this occurred. It also does not mention that Carpenter claimed
that he had told Mullins to stop “dozens of times.” The third
account, Carpenter’s written statement dated July 17, limits the
encounters to the last “couple of weeks” and mentions that he
said that he did not want to hear any more about the Union only
on July 11. Mullins denied that he had approached Carpenter
and asserted that he did not recall Carpenter ever asking him to
stop talking to him about the Union. Notwithstanding the Re-
spondent’s decision to believe Carpenter, it did not seek to
reconcile Carpenter’s differing accounts.
The warning issued to Mullins states that Carpenter had “re-
peatedly asked Peter [Mullins] to stop talking to him about
joining a labor union,” although the only reference to repeated
requests was in Carpenter’s statement to Henry that he had
asked Mullins to stop “dozens of times.” The warning does not
adopt the implicit assertion that Mullins would have to have
approached Carpenter at least 24 times for the “dozens of
times” statement to be correct. Carpenter’s statement of July 17
reports that the conduct had been occurring only “[f]or the past
couple of weeks,” which would have been the first 2 weeks of
July. The warning refers to conduct occurring in June and July,
without specifying 2 weeks, and states that Carpenter had been
“intimidated.” The memorandum of July 12 reports that Car-
penter felt “antagonized” and his statement of July 17 simply
states that he was “getting tired” of being talked to about the
Union.
Carpenter’s testimony differs from the foregoing accounts.
Contrary to the representation that Mullins was approaching
him three to five times a week and then “every time” he saw
him, Carpenter testified that Mullins approached him on “sev-
eral occasions” and he agreed that the frequency was once a
week. Prior to July 11, Carpenter testified that he had told Mul-
lins, on one occasion, that he did not want the Union “yet” and,
on another occasion, that he did not want to discuss it “right at
this moment.” His July 17 statement reports that, on July 11, he
told Mullins that he did not want to talk about the Union. There
is no evidence of any undesired contact between Mullins and
Carpenter after July 11. Although Carpenter testified that, when
approached, he would stop walking, he acknowledged that
Mullins never sought to physically restrain him.
Mullins denied approaching Carpenter, and I credit his testi-
mony. Even if Mullins had initiated conversations on some of
the unspecified occasions to which Carpenter referred, Carpen-
ter’s testimony does not establish harassment. If he was walk-
ing somewhere when Mullins approached, he stopped; Mullins
did not stop him. Henry, when addressing the employees on
July 18, acknowledges telling the employees, “let’s reserve that
[solicitation] for when we are on breaks, when we are walking
in the building.” [Emphasis added.] Even assuming that Car-
penter told Mullins that he did not want to discuss the Union
“right at this moment,” that statement did not put Mullins on
notice that he did not want to discuss the Union at any time.
Carpenter testified to no coercion and his own statement of July
17 reports only that he was “getting tired” of being talked to
about the Union. I credit Mullins that Carpenter was confused
and, as Mullins told Henry, that he spoke with Carpenter “to
answer his questions.” Even if I credit Carpenter that Mullins
ST. PETE TIMES FORUM 588
initiated the conversations once each week, Carpenter did not
testify that he had told Mullins that he did not want to speak
about the Union “dozens of times.” Mullins, when interviewed,
told the management officials that he did not recall Carpenter
“ever asking me to stop.” The memorandum of the meeting
with Carpenter on July 12 reflects no statement by Carpenter
that he had told Mullins that he did not want to talk about the
Union. It was not until he wrote out his statement on July 17
that Carpenter claimed that he had told Mullins that he did not
wish to engage in any such conversations on July 11. There is
no evidence that Mullins approached Carpenter between July
11 and July 25 when he was issued the warning for harassment.
An employer may not characterize encounters in which one
employee is advocating a union as harassment simply because
the employee to whom prounion statements are directed “re-
jects them and feels ‘bothered’ or harassed’ or ‘abused’ when
fellow workers seek to persuade . . . about the benefits of un-
ionization.” Frazier Industrial Co., 328 NLRB 717, 719 (1999),
citing Greenfield Die & Mfg. Corp., 327 NLRB 237 (1998).
Carpenter’s written statement reflects only that he was “getting
tired” of being talked to about the Union. The General Counsel
has established that the conduct for which Mullins was warned,
harassment, did not occur. The warning of Mullins for engaging
in conduct protected by the Act violated Section 8(a)(1).
The warnings issued to Mullins also violated Section 8(a)(3)
of the Act. Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
relates to dual or mixed motive cases. In the instant case, Mul-
lins was warned for engaging in union activity, an adverse ac-
tion relating to his terms and conditions of employment that
discouraged union activity. By warning Mullins for engaging in
union activity the Respodent violated Section 8(a)(3) of the
Act.
E. The Discharge
1. Facts
Mullins was discharged on November 3 after Alice Castillo,
an employee of SportService, a retail business that sells sports
merchandising items from a store located within the facility,
accused him of calling her a “Yankee bitch.” Mullins and Casti-
llo agree that he would, from time to time, drop by the store and
that they would engage in conversation. Both Mullins and Cas-
tillo had grown up in New York City.
On October 21, the Union filed a petition for a representation
election. The conversation between Mullins and Castillo oc-
curred 2 days later, on October 23. Both agree that wages were
discussed. Mullins recalls referring to a newspaper article relat-
ing to low job wages in Florida, that of “the 200,000 jobs a year
created by Bush . . . most of them were below $20,000 per
year.” Castillo testified that Mullins “came to the store and was
talking about unions. I asked . . . about pay scales in Alabama
and Mississippi, [a]nd he called me a ‘Yankee bitch.”’
Castillo spoke with her husband, Antonio (Tony) Castillo,
who is the Company’s director of security, about the foregoing
conversation. At his suggestion, she wrote out a statement and
then reported her version of the incident to her assistant man-
ager, identified in the record as “Jason,” the following morning.
Jason asked her to write out a statement. Castillo provided the
statement that she had already written, and he typed it. The
statement, after noting that conversations with Mullins were not
unusual, states:

Peter spoke to me about the union and the upcoming election.
I replied he must be happy (I really don’t know about union or
union procedures). We then spoke of paychecks statewide and
up north vs. the south. He told me he had a newspaper article
he would bring up to me [to] read. I then replied, “Well what
is the pay in other southern states like Alabama and Missis-
sippi?” He then loudly called me “Yankee Bitch.” He saw my
surprised expression and quickly in a low voice said “Oh I’m
a Yankee Asshole.”

Peter is at times disturbing and hostile. I feel disrespected by
him and would like his behavior toward me to end. I would
like him to just leave me alone and stay away from my work
area.

The assistant supervisor forwarded that report to Bruce
Ground, general manager for SportService, who reported the
incident to Palace Sports. Prior to the Company’s receipt of the
report, Vice President Henry heard about the incident directly
from Castillo whom he happened to encounter while coming
into the building. Director of Human Resources Fields initially
testified that she learned of the incident from the memo from
Bruce Ground but then amended that testimony to note that
Tony Castillo had mentioned it to her the day after the incident.
Fields spoke with Alice Castillo who repeated that Mullins
had called her a “Yankee bitch.” Castillo also told Fields that
“it had been going on for a long time and that she had just had
enough.” Castillo, when testifying, acknowledged that she had
neither complained about nor reported any past alleged im-
proper comments by Mullins. Furthermore, she did not inform
Mullins that any statement that he had made offended her. In
testifying to the “embarrassing things” that Mullins had pur-
portedly previously said, she recalled that Mullins had referred
to her as an “elitist” and “Miss Ivy League.” She asserted that,
on one occasion, “I don’t remember why . . . he called me a
‘fucking idiot.’” Mullins denied making the foregoing com-
ment. Alice Castillo testified that she told her husband, Tony
Castillo, who replied, “Peter’s crazy. Just ignore him.” He did
not suggest that she report the comment. Tony Castillo testified
that, when Mullins sought to speak with him after the purported
“Yankee bitch” comment, he told Mullins, “Get the fuck out of
my face.” Thus, notwithstanding Mullins’ denial of the “fuck-
ing idiot” comment, it appears that use of the “f” word is at
least tolerated in the Company’s workplace since an acknowl-
edged supervisor used the word when addressing an employee.
Mullins heard from a fellow employee that Castillo was up-
set with him for making some objectionable comment. Mullins,
who denied making the “Yankee bitch” comment, sought and
says he received Tony Castillo’s permission to apologize to his
wife. He went to Alice Castillo and said, “Alice, if I said any-
thing that was misconstrued, I am sorry. But I don’t even know
what I said that would have offended you.” He asked Castillo
what he had said, and she said, “bitch.” Whether Mullins apolo-
gized with or without the permission of Tony Castillo is imma-
terial. It is uncontraverted that he apologized, that he made the
ST. PETE TIME FORUM 589
apology before being interviewed about the incident, he re-
ported that he had apologized when he was interviewed.
On October 31, Henry, Fields, and Williams met with Mul-
lins. Henry testified that Mullins immediately stated that he did
not say anything offensive to Castillo and that he had “heard a
lot of things and I know this is all about the Union.” Vice
President Henry’s “meeting notes,” dated November 1, reflect
that Fields conducted the meeting and began by stating, “[We]
were not meeting to discuss any union issues” but were “meet-
ing as part of an investigation into a complaint.” Mullins inter-
rupted, saying that he did not recall offending Castillo and that
he had apologized for anything he might have said. Fields
stated the alleged “Yankee bitch” comment, and Mullins stated
that, “he could not recall saying that,” and that he was surprised
that, “people would say that he said such an offensive thing to a
woman.”
Henry’s “meeting notes,” before setting out Mullins’ com-
ments, inaccurately state that Castillo was “put into a very
threatening position.” Castillo’s statement reports only that
Mullins is, at times, “disturbing and hostile” and that this
makes her feel “disrespected.” The word “threatened” does not
appear in her statement. Castillo testified that she was “[n]ot
physically threatened,” that she did not “feel like he [was] go-
ing to do something to me.” The “meeting notes” also state that
the conversation “quickly turned sour, and argumentative.”
Castillo’s statement does not provide any basis for such a con-
clusion. In testimony Castillo stated that the conversation
“wasn’t argumentative or sour.”
Fields asserted that she believed Castillo because Mullins did
not deny making the comment, “Yankee bitch.” She acknowl-
edged that Mullins stated that “he didn’t recall saying that.” She
further acknowledged that she considered the statements, “I
don’t recall” and, “I don’t recall saying that” to be different
statements. She acknowledged that Mullins informed the man-
agement officials who were interviewing him that he had al-
ready apologized. She did not admit that there was any differ-
ence in saying “I’m sorry . . . if I said anything that may have
offended you” and saying “I’m sorry . . . that I said something
that offended you.”
Fields testified that the Company terminated Mullins because
he “made inappropriate comments and his conduct was inap-
propriate.” When asked what was inappropriate about his con-
duct “as distinct from his comments,” Fields testified that Cas-
tillo told her that Mullins was “up in her face, yelling in her
face.” Castillo’s written statement, prepared the evening of the
incident, reports only that Mullins spoke “loudly.” Despite
believing that Mullins called her Castillo a “Yankee bitch,”
Fields acknowledged, “I don’t think he sexually harassed her.”
As Williams accompanied Mullins to his locker following
the termination, Mullins commented that “it was a set up. He
knew it was coming.” Williams did not reply.
On December 8, 2000, employee Anthony Medina, an em-
ployee in guest services, was warned following a report that he
had used vulgar and profane language and complaints from
customers about his rude behavior. Upon a repeat of the same
conduct in January 2001, Medina was terminated. The Respon-
dent argues that the record does not establish that Medina was
not terminated for his December conduct and that Fields was
not involved in that termination, implying that, if she had been,
Medina would have been terminated for the first offense. Not-
withstanding her absence of involvement, Fields was the direc-
tor of human resources at that time, having assumed her re-
sponsibilities in January of the year 2000. Furthermore, Sean
Henry was in overall charge of the facility and had been since
July 3, 1999.
2. Analysis and concluding findings
I credit Mullins that he did not make any offensive statement
to Castillo. I find that Castillo misunderstood or misheard
whatever comment he may have made, perhaps the reference to
jobs created by “Bush.” Despite this, as the Respondent cor-
rectly argues, it may “rely on its good-faith belief” in Castillo’s
version of the incident because Mullins was not engaged in
protected activity. See GHR Energy Corp., 294 NLRB 1011,
1013–1014 (1989). Thus, my analysis shall proceed on that
basis.
In assessing the evidence under the analytical framework of
Wright Line, supra, I find that Mullins engaged in union activ-
ity and that the Respondent was fully aware of that activity. I
also find animus and specific animus towards Mullins. The
discharge was an adverse action affecting the terms and condi-
tions of his employment. I find that the General Counsel has
carried the burden of proving that union activity was a substan-
tial and motivating factor for the Respondent’s action. Manno
Electric, 321 NLRB 278 (1996).
The General Counsel having established a prima facie case,
the burden shifts to the Respondent to establish that Mullins
would have been discharged in the absence of any union activ-
ity on his part. Thus, the Respondent “not only must separate its
tainted motivation here from any legitimate motivation, but it
must persuade that its legitimate motivation outweighs its
unlawful motivation so much that the Company would have
imposed the discipline even in the absence of any union activi-
ties.” Formosa Plastics, 320 NLRB 631, 648 (1996).
Mullins, upon hearing that Alice Castillo was upset regard-
ing something that he had purportedly said, immediately tried
to set the situation right. Regardless of whether Tony Castillo
granted him permission to do so, Mullins apologized to Alice
Castillo for whatever offensive comment he may have made.
Castillo had never informed Mullins that any prior comments
that he may have made upset her in any way, and she had never
previously made any complaint. Her statement requests that
Mullins be directed to leave her alone. She acknowledged that
she was surprised that he was discharged.
In New Era Cap Co. 336 NLRB 527 (2002), the Board ad-
dressed an alleged unlawful suspension and found, with one
member dissenting, that the discipline was unlawful. In assess-
ing the evidence the Board concluded as follows:

. . . [E]ven were we to accept that some discipline was war-
ranted, we would find, contrary to our colleague, that the pun-
ishment the Respondent chose was so disproportionately
harsh as to suggest an illicit motive. We do not substitute our
business judgment for that of the Respondent. Rather, under
the Respondent’s progressive discipline policy, Baldwin
should have been verbally warned for a first violation. Only
after the third incident would she have been suspended. Ad-
ST. PETE TIMES FORUM 590
mittedly, the rules permitted the Respondent to vary the pun-
ishment for “gross misconduct.” However, in the only other
documented instance of punishment being imposed for har-
assment . . ., the punishment was a first step verbal warning.

Although Henry and the Respondent’s brief characterize the
“Yankee bitch” comment as sexual harassment, there is no
evidence of any sexual advance by Mullins. Fields admitted
that the use of the term did not constitute sexual harassment.
The Respondent’s “Rules of Conduct” prohibit the use of “in-
decent conduct or language” and set out a progressive discipli-
nary system beginning with an oral reprimand or written warn-
ing. The Respondent’s rules note that “if repeated violations
occur after corrective action had been taken . . . [t]ermination is
the last step.” [Emphasis added.] There had been no complaint
that Mullins had not complied with the Respondent’s prior,
albeit unlawful, corrective action regarding approaching Carter.
Neither Castillo nor any other employee had ever complained
about any language that Mullins had used. Mullins, prior to any
conversation with management, apologized to Castillo.
The only other documented incident regarding indecent con-
duct or language is the December 8, 2000, warning of Em-
ployee Medina for using vulgar and profane language towards
customers. Medina was retained and not terminated until an-
other incident in January 2001. The Respondent argues that
there is no evidence that Medina was not discharged for his
December conduct. That argument is belied by the fact that he
was working in January and that the discharge document, dated
January 10, 2001, states that “[o]n more than one occasion”
problems had been addressed but that “matters have gotten
worse.”
In October 2002, the two leading union adherents employed
by the Respondent were Peter Mullins and Pam Johnson. In
June 2001, local union president, Lewis Taylor, had, by his
own admission, “screwed himself out of a good job.” Former
shop steward Andy Lalewicz had been promoted to manage-
ment. On June 18, Operations Manager Carson Williams had
told Mullins that if employee Pam Johnson and the rest of the
union supporters filed for an election, “then you are going to be
terminated,” and that then the rest of the employees would “get
in line.” On October 21, the Union filed a petition for an elec-
tion. Fields began the meeting with Mullins by stating, “[We]
were not meeting to discuss any union issues,” apparently in
response to Castillo’s statement that Mullins had mentioned the
upcoming election. After his discharge, Mullins stated to Wil-
liams that, “it was a set up,” and Williams did not deny the
assertion.
The General Counsel established that Mullins’ union activity
was “a substantial and motivating factor” in its action. The
Respondent has not established that Mullins would have been
discharged in the absence of his union activity. By terminating
Peter Mullins because of his union activity the Respondent
violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By prohibiting employees from talking about the Union
except on nonworking time while permitting other conversa-
tion, interrogating employees regarding their knowledge of
employee union activity and directing them to report upon the
union activities of their coworkers, interrogating employees
regarding their communications with the Board and threatening
unspecified reprisals if employees cooperated in a Board inves-
tigation, and threatening employees with discharge because of
their support for the Union, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By warning Peter Mullins on July 25, 2002, and discharg-
ing him on November 3, 2002, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily warned and dis-
charged Peter Mullins, it must expunge those unlawful actions
from his record and offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Palace Sports & Entertainment, Inc., d/b/a
St. Pete Times Forum, Tampa, Florida, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Warning, discharging, or otherwise discriminating
against any employee for supporting International Alliance of
Theatrical Stage Employees, AFL–CIO, or any other union.
(b) Prohibiting employees from talking about the Union ex-
cept on nonworking time, while permitting other conversation.
(c) Interrogating employees regarding their knowledge of
employee union activity and directing them to report upon the
union activities of their coworkers.
(d) Interrogating employees regarding their communications
with the Board and threatening unspecified reprisals if employ-
ees cooperated in a Board investigation.
(e) Threatening employees with discharge because of their
support for the Union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ST. PETE TIME FORUM 591
(a) Within 14 days from the date of this Order, offer Peter
Mullins full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Peter Mullins whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warnings and discharge,
and within 3 days thereafter notify Peter Mullins in writing that
this has been done and that the warnings and discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Tampa, Florida, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt 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 altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since July 18, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

4 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.”