Star Trek, The Experience

National Labor Relations Board - Board Decisions

Jun 6, 2001

334 N.L.R.B. 246 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
Paramount Parks, Inc. d/b/a Star Trek: The Experi-
ence and Local Joint Executive Board of Las
Vegas, Culinary Workers Union, Local 226, and
Bartenders Union, Local 165, AFL–CIO affili-
ated with Hotel Employees and Restaurant Em-
ployees International Union, AFL–CIO and
Cynthia Veto and Roger Guinn and John Stepp.
Cases 28–CA–15464, 28–CA–15549, 28–CA–
15592–4, and 28–CA–15793
June 6, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On August 28, 2000, Administrative Law Judge James
L. Rose issued the attached decision.1 The General
Counsel and the Charging Party, Local Joint Executive
Board of Las Vegas, Culinary Workers Union, Local
226, and Bartenders Union, Local 165, AFL–CIO, affili-
ated with Hotel Employees and Restaurant Employees
International Union, AFL–CIO (Culinary Workers Union
or CWU), filed exceptions and a supporting brief. The
Respondent filed cross-exceptions and a brief in support
and answering 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 exceptions,2 cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions as further discussed below, and to adopt
the recommended Order as modified and set forth in full
below.

1 We have amended the caption to reflect the fact that on January 11,
2001, the Board, by its Associate Executive Secretary, issued an order
approving the General Counsel’s supplemental motion to sever Cases
28–CA–15592, 28–CA–15926, and 28–RC–5692 and remand these
cases to the Regional Director for approval of settlement agreement and
withdrawal requests. This settlement agreement was reached between
the Respondent and the Professional, Clerical and Miscellaneous Em-
ployees, Local Union 995, affiliated with International Brotherhood of
Teamsters, AFL–CIO (Teamsters), which filed the charges in those
cases. We shall modify the judge’s recommended Order to reflect the
settlement agreement and withdrawal of charges in these cases. Under
the terms of the January 11, 2001 Order, Cases 28–CA–15464, 28–CA–
15549, 28–CA–15592–4, and 28–CA–15793 continued under consid-
eration by the Board.
2 No exceptions were filed to the judge’s dismissal of the allegations
in Cases 28–CA–15549, 28–CA–15592–4, and 28–CA–15793. In Case
28–CA–15464, no exceptions were filed to: (1) the judge’s finding that
the Respondent, by its floor supervisor Matthew Timothy, violated Sec.
8(a)(1) of the Act by threatening employees on various occasions with
loss of wages and other reprisals including layoff if employees selected
the Culinary Workers Union as their representative; and (2) the judge’s
dismissal of the allegation that the Respondent, by its assistant kitchen
manager William Artis, violated Sec. 8(a)(1) by interrogating employ-
ees.
1. The Culinary Workers Union has excepted to the
judge’s dismissal of the allegations in the fourth consoli-
dated complaint (complaint) alleging that the Respondent
violated Section 8(a)(1) of the Act by: (1) maintaining
and enforcing a rule in its employee handbook entitled
“Non-Disclosure of Information”; and (2) maintaining
and discriminatorily enforcing a rule in its employee
handbook regarding the solicitation and distribution of
literature which provides, inter alia, that “[o]ff-duty asso-
ciates are not to remain on or return to the Company
premises, except for regularly scheduled work shifts or
Company-sponsored events.”
These complaint allegations are fully encompassed by
the informal Board settlement agreement between the
Respondent and the Teamsters. The settlement agree-
ment specifically provides that the Respondent will ad-
vise its employees, in writing, that these handbook rules
“are no longer being maintained” and that its employees
“are free to discuss information relating to wages, hours
and working conditions with each other.” The Respon-
dent also by the settlement agreement is required to post
a Board notice for 60 days containing this assurance.3
The complaint allegations regarding the Respondent’s
handbook provisions have thus been fully remedied by
the settlement agreement. For this reason, we find no
merit in the CWU’s exceptions, and we affirm the
judge’s dismissal of the relevant complaint allegations.
2. The Respondent has excepted to the judge’s finding
that it violated Section 8(a)(3) and (1) of the Act by re-
fusing to allow Tania Lonkouski to rescind her resigna-
tion from employment. We agree with the judge’s find-
ing, for the reasons set forth by him and those set forth
below.
Under the test set forth in Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983),
s:
3 The notice to be posted by the Respondent further contains the
following provision
WE WILL NOT maintain any provision in our employee
handbook or our “Non-Disclosure of Information” policy in such
a manner as to prohibit our employees from discussing informa-
tion related to wages, hours, and working conditions with each
other.
WE WILL NOT enforce our no-solicitation/no-distribution
policy in an overly broad or discriminatory manner so as to ban
Union solicitations by our off-duty employees during nonworking
time or in noncustomer areas or ban distribution of Union-related
materials from nonworking areas of our premises.
WE WILL NOT discriminatorily enforce the provision in our
employee handbook which requires our employees to leave our
premises except for regularly scheduled work shifts or company-
sponsored events.
In addition, the settlement requires the Respondent to “comply with all the
terms and provisions” of the notice.
334 NLRB No. 29
STAR TREK: THE EXPERIENCE 247
the Board first requires the General Counsel to establish
by a preponderance of the evidence that antiunion senti-
ment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative de-
fense that it would have taken the same action even if the
employee had not engaged in protected activity. See,
e.g., Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
The record here shows that Lonkouski was the ob-
server for the CWU at the authorization card check con-
ducted on August 12, 1998,4 which resulted in the Re-
spondent’s recognition of the CWU as the representative
of a bargaining unit of its food and beverage employees.
The judge found, and the Respondent does not dispute,
that “[t]here is no question that Lonkouski was an active
supporter” of the CWU. The Respondent’s knowledge of
Lonkouski’s prounion activity is clearly established
based on her public and prominent role as the CWU’s
card check observer. Further, there is no doubt that the
Respondent expressed hostility toward unionization.
Thus, as noted above at footnote 2, the Respondent has
not excepted to the judge’s finding that the Respondent,
by its Floor Supervisor Matthew Timothy, on various
occasions unlawfully threatened employees, including
Lonkouski, with loss of wages and other reprisals includ-
ing layoff if employees selected the CWU as their repre-
sentative.
Finally, we find that antiunion motivation may rea-
sonably be inferred from the inconsistency between the
reason the Respondent gave Lonkouski for denying her
request and the Respondent’s actual practice on rescis-
sion of resignations.5 On September 22, Lonkouski re-
signed her employment position and gave 2 weeks’ no-
tice to Restaurant Manager Michael Muller. About 1
week later Lonkouski asked Muller if she could rescind
her resignation. He replied that it would be no problem
if her termination papers had not been processed.
Lonkouski then checked on this matter with Laverne
Newhouse, Respondent’s human resources coordinator
responsible for processing paperwork for incoming and
departing employees. Newhouse testified that the pa-
perwork for the resignation had not yet been processed at
the time Lonkouski made her inquiry. Newhouse di-
rected Lonkouski to speak with Human Resources Direc-
tor Fran Bailey. Newhouse informed Bailey that
Lonkouski would be coming to see Bailey and that
Lonkouski wanted to rescind her employment resigna-
tion. Bailey remarked, “[W]e don’t want her to take it
back” and asked Newhouse if the paperwork had been
completed to which Newhouse responded, “No.”
Lonkouski’s supervisor, Simon Liu, testified that he
checked with Bailey on this matter and was told by her
that “we don’t rescind resignations” and “we just accept
resignations.” Later that day Lonkouski was informed
by Liu and Restaurant Manager Muller that it was no
longer the Respondent’s policy to accept the rescinding
of resignations, a position, as discussed above, contrary
to what the Respondent acknowledges is its actual prac-
tice. This inconsistency is further evidence from which
we infer antiunion motivation.

4 All dates are in 1998.
5 The judge found that the Respondent’s practice is to consider an
employee’s request to rescind his or her resignation from employment
on a case-by-case basis. The judge described this approach as “essen-
tially a non-policy,” since it allowed the Respondent such broad discre-
tion. The Respondent in its brief to the Board effectively agrees with
the judge’s finding, characterizing its practice as one of “‘ad hoc’ con-
sideration” and that its “policy was to review an employee’s request to
rescind on a case by case basis; sometimes employees were allowed to
rescind (particularly if they were in hard to replace positions), some-
times the employee was not allowed to rescind. In sum, it depends on
the circumstances of the case.”
We find that, with the evidence summarized above, the
General Counsel has carried his burden of demonstrating
that Lonkouski’s protected union activity was a substan-
tial or motivating factor in the Respondent’s refusal to
permit her to rescind her resignation. The burden ac-
cordingly shifts to the Respondent to prove that the same
action would have taken place even in the absence of the
protected union activity.
The Respondent failed to meet this burden. The Re-
spondent, in its brief, asserts that it did not permit
Lonkouski to rescind her resignation because she was not
in a position necessary for its business and because she
was encouraging employees to leave the Respondent to
go to work with her at another Las Vegas area hotel. The
record does not establish, however, that the Respondent
relied on the latter reason in making its decision. Human
Resources Director Bailey did not cite that reason in her
conversation either with Laverne Newhouse or Simon
Liu. Nor was it relied on as the reason in the conversa-
tion on this matter between Bailey and Respondent’s
senior vice president for human resources and general
counsel Johnny Taylor.6
Further, the Respondent expressly acknowledges that
its policy on rescission of resignation is based on all the
circumstances involved, with no one factor being dispo-
sitive. Yet Taylor’s testimony shows that the Respon-
dent, at the time it made its decision regarding
Lonkouski, cited only one reason for refusing rescission
of her resignation—that she was not in a critical posi-
6 Rather, Taylor testified that he asked Bailey “one question:” Is
“Lonkouski in a critical position and for business reasons do we need
her?” Bailey replied in the negative. Taylor replied: “[T]hen we do not
allow her to rescind her resignation[.]”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
tion—without evaluating other pertinent circumstances.
Further, the Respondent did not tell Lonkouski that this
was the reason for its decision. Rather, the Respondent
told her a reason that it now admits is false: that it does
not allow resignation of employment to be rescinded.
The judge also found that the Respondent allowed two
other individuals employed at the Star Trek facility
where Lonkouski was employed to rescind their resigna-
tions of employment.7
Based on the foregoing, we find that the Respondent
has failed to prove that it would have refused
Lonkouski’s request to rescind her resignation even in
the absence of her union activity. Consequently, we
adopt the judge’s finding that the Respondent violated
Section 8(a)(3) and (1) of the Act.
3. The judge dismissed the complaint allegation that
the Respondent violated Section 8(a)(1) of the Act by
confiscating a cake displaying a prounion message. For
the reasons set forth below, we find, contrary to the
judge, that the Respondent’s conduct violated Section
8(a)(1) of the Act.
Tania Lonkouski’s last day of employment following
the Respondent’s unlawful refusal to allow her to rescind
her resignation was October 2. On that date, Lonkouski
brought to work to share with her coworkers a cake deco-
rated as a Culinary Workers Union authorization card
and inscribed “Goodbye Norma Rae.” (“Norma Rae,” a
reference to a movie heroine involved in union organiz-
ing, was the nickname given to Lonkouski by her co-
workers because of her prounion activity.) Human Re-
sources Director Bailey told Lonkouski that she would
have to “smear the cake over” or “throw it away, that it
was extremely inappropriate . . . for the workplace.”
Lonkouski refused. Bailey took the cake away and did
not return it.
Lonkouski’s unrebutted testimony establishes that em-
ployees had the practice of bringing a cake to the Re-
spondent’s workplace to share with coworkers to mark
an employee’s last day of work, or inscribed, e.g.,
“Happy Mother’s Day” to celebrate a holiday. There is
no evidence that these cakes were taken or otherwise
disturbed by the Respondent. Lonkouski’s cake was
placed in the same location as these other cakes.
These facts establish that the Respondent’s conduct
was discriminatory. The sole reason the Respondent
objected to Lonkouski’s cake was because it displayed
what was considered a prounion message. This is clearly
established because the Respondent was willing to allow
the cake to remain if the inscription was removed or
“smeared over.” Indeed, the record shows that the Re-
spondent’s past practice was to permit employees to
bring cakes to work to share with their colleagues in
celebration of special events, such as Mother’s Day or, as
in this instance, an employee’s last day on the job. By
treating Lonkouski’s cake differently because it dis-
played a prounion message, the Respondent acted in a
disparate manner and violated Section 8(a)(1) of the
Act.8

7 One of these individuals was Allan Blanchard, a food server. The
Respondent did not object at the hearing to the introduction of evidence
regarding Blanchard.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Paramount Parks, Inc. d/b/a Star Trek: The
Experience, Las Vegas, Nevada, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of wages and
other reprisals if employees choose the Union as their
bargaining representative.
(b) Refusing to allow employees to rescind their res-
ignation of employment in order to discourage union
activity.
(c) Discriminatorily confiscating an employee’s cake
displaying a prounion message.
(d) 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
Tania Lonkouski full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Tania Lonkouski whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, with interest, in the manner set
forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
rescind the employment resignation of Tania Lonkouski,
and within 3 days thereafter notify Tania Lonkouski in
writing that this has been done and that the unlawful re-
fusal to rescind her employment resignation will not be
used against her in any way.
8 In recommending that the complaint allegation be dismissed, the
judge relied on the fact that the cake was placed in a work area. The
record shows, however, that Lonkouski placed her cake in the same
area where the Respondent had permitted other employee cakes to
remain. The flaw in the judge’s analysis is that he overlooked the
evidence of disparate treatment.

STAR TREK: THE EXPERIENCE 249
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the 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 place of business in Las Vegas, Nevada, copies of the
attached notice marked “Appendix.”9 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s author-
ized 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 insure 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 May 2, 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.
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
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.

9 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.”
WE WILL NOT threaten you with loss of wages and
other reprisals if you choose Local Joint Executive Board
of Las Vegas, Culinary Workers Union, Local 226, and
Bartenders Union, Local 165, AFL–CIO, affiliated with
Hotel Employees and Restaurant Employees Interna-
tional Union, AFL–CIO as your bargaining representa-
tive.
WE WILL NOT refuse to allow you to rescind your
resignation of employment in order to discourage union
activity.
WE WILL NOT discriminatorily confiscate an em-
ployee’s cake displaying a prounion message.
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, within 14 days from the date of the Board’s
Order, offer Tania Lonkouski full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Tania Lonkouski whole for any loss
of earnings and other benefits resulting from the dis-
crimination against her, 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 our unlaw-
ful refusal to rescind the employment resignation of
Tania Lonkouski and WE WILL, within 3 days thereaf-
ter, notify her in writing that this has been done and that
the unlawful refusal to rescind her employment resigna-
tion will not be used against her in any way.

PARAMOUNT PARKS, INC. D/B/A STAR
TREK: THE EXPERIENCE

Nathan W. Albright, Benjamin W. Green, Esqs. and Jerry
Schmidt, Esq., for the General Counsel.
Bradley W. Kampas and Mark Theodore, Esqs., of San Fran-
cisco, California, and Johnny C. Taylor, Esq., of Charlotte,
North Carolina, for the Respondent.
Adam Stern, Esq., of Los Angeles, California, for Local Union
995.
Richard G. McCracken, Esq., of Las Vegas, Nevada, for Local
Unions 226 and 165.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Las Vegas, Nevada, on 11 days between
February 1 and March 16, 2000, on the General Counsel’s con-
solidated complaint which alleged multiple violations of Sec-
tion 8(a)(1), (3), (4,) and (5) of the National Labor Relations
Act (the Act). In part, the General Counsel contends that the
Respondent be ordered to bargain with the Professional, Cleri-
cal and Miscellaneous Employees, Local Union 995, affiliated

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
with International Brotherhood of Teamsters, AFL–CIO (the
Teamsters). Consolidated with the complaint are the objections
to the rerun election held on March 4, 1999, in Case 28–RC–
5692 filed by the Teamsters, along with the challenged ballots
in that election.
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that no bargaining
order should issue because the Teamsters never represented an
uncoerced majority of its employees.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation engaged in the
business of operating several theme parks in various States and
in Canada, including a facility at the Las Vegas Hilton Hotel
styled Star Trek: The Experience (STTE). During the course
and conduct of this business, the Respondent annually derives
gross revenues in excess of $500,000 and annually purchases
and receives directly from points outside the State of Nevada,
goods, products, and materials valued in excess of $50,000.
The Respondent admits and I conclude that it is an employer
engaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Joint Executive Board of Las Vegas, Culinary Work-
ers Union, Local 226 and Bartenders Union, Local 165, AFL–
CIO (the Culinary Workers), and Professional, Clerical and
Miscellaneous Employees, Local Union 995, affiliated with
International Brotherhood of Teamsters, AFL–CIO are admit-
ted to be, and I find are, labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Outline
Star Trek: The Experience is a kind of amusement ride lo-
cated in the Las Vegas Hilton Hotel. In brief, guests are es-
corted into the attraction by two actors playing the part of Hil-
ton employees and are “beamed up” to the “Enterprise” by
means of lighting and staging. They are then put on a shuttle
simulator and are taken for a ride. The experience ends with
the shuttle “crashing” in the Hilton Hotel basement. During the
ride, actors playing the parts of Star Fleet officers recite lines
according to a predetermined script. At the end of the ride,
guests are escorted to a promenade of retail shops and a restau-
rant. Throughout the promenade are other actors playing the
parts of aliens (Klingons and Ferengi). The ride takes about 20
minutes and the facility is equipped to do two at a time. Typi-
cally, the Respondent runs about 80 shows a day.
The actors playing the parts of Hilton employees and Star
Fleet officers are assigned to one of four “rotations” and begin
each workday playing a specific part. After a time, according
to a predetermined plan, each actor in a particular rotation will
bump to another part or to a break. When assigned to a specific
role, an actor must say precise lines at a specific time and place.
The aliens, however, have no set lines. They walk around the
facility outside the attraction ride, talking with guests, but stay-
ing in character.
In late 1997 the Culinary Workers began an organizational
campaign among the Respondent’s food service employees.
This culminated in a card check on August 12, 1998,1 and rec-
ognition by the Respondent in the following unit, admitted to
be appropriate for purposes of collective bargaining under Sec-
tion 9(b) of the Act:

All non-supervisory food and beverage employees and porters
employed by the Respondent.

It alleged that during the course of this organizational cam-
paign, and after recognition, the Respondent committed various
violations of Section 8(a)(1), (3), and (5) of the Act.
In late 1998, the Teamsters began an organizational cam-
paign among the Respondents actor/performers. An election
was held on December 14. The tally of ballots shows that of
approximately 100 eligible voters, 46 were casts for the Team-
sters, 35 against, and there were 15 challenged ballots.
Since the challenges were potentially determinative, they
were to be impounded according to the Board’s procedures and
opened after a ruling on each voter’s eligibility. Unfortunately,
and through no fault of the Teamsters or the employees who
sought union representation, the Board agent mishandled the
challenged ballots. Though there was no evidence that in fact
anything untoward occurred, the election was set aside. The
Regional Director concluded that such was necessary in order
to avoid the appearance of impropriety.
Thus a second election was held on March 4, 1999. The
tally of ballots shows that of approximately 85 eligible voters,
33 voted for the Teamsters and 40 against, with 14 challenged
ballots. Again the challenges were determinative and the
Teamsters filed objections to the election. Although some al-
leged objectionable conduct is beyond the complaint allega-
tions, counsel for the Teamsters stipulated that all the alleged
objectionable conduct is in the complaint and he offered no
additional evidence. Thus, the report on objections will con-
sider only those unfair labor practices found occurring after the
Teamsters petition was filed.
The Respondent is alleged to have engaged in multitudinous
violations of Section 8(a)(1), (3), (4), and (5) of the Act. It is
also alleged that because the Teamsters had valid authorization
cards from a majority of actor/performer employees, a bargain-
ing order ought to issue under the authority of NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). The facts and analysis of
each alleged violation of the Act will be treated separately be-
low.
B. Analysis and Concluding Findings
Many of the alleged violations of Section 8(a)(1), as well as
company knowledge of certain employees’ union sympathy, are
dependent on whether leads Steven Biggs, Gary T. Bondurant,
Federico Flores, Markus Kublin, David Nelson, Chad Randle,
and Kerstan Szczepanski were supervisors within the meaning

1 All dates hereafter are in late 1998 or early 1999 unless otherwise
indicated.

STAR TREK: THE EXPERIENCE 251
of Section 2(11) and agents of the Respondent within the mean-
ing of Section 2(13) of the Act.2 Their agency status, if any, is
dependent on whether they were supervisors. Since the Gen-
eral Counsel is the proponent on this issue, he has the burden of
proof that the leads are supervisors by a preponderance of the
credible evidence. Chemical Solvents, Inc., 331 NLRB 312 fn.
3 (2000). This is a close question, but on balance I conclude
that the General Counsel did not sustain his burden of proof.
Section 2(11) defines a supervisor as:

Any individual having authority in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibility to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

There is no evidence that any of the leads had the authority
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, discipline, or adjust grievances (or effectively to
recommend such action). Thus they were supervisors if, and
only if, it can be found that they responsibly directed other
employees where such direction “is not of a merely routine or
clerical nature, but requires the use of independent judgment.”
In short, what the leads did during the workday is the primary
consideration and I find the evidence lacking that they respon-
sibly directed other employees.
The General Counsel offered some evidence that the leads
possessed indicia of supervisory authority—they were paid $1
per hour more than other employees; they used an office, the
operations leads wear street clothes and not uniforms; they kept
notes of their observations; they attending management meet-
ings; the operations leads perform preperformance safety
checks and power up the unit; the leads went to a training ses-
sion at a property in California. But, as noted by counsel for
the Respondent, these are secondary indicators of supervisory
status and do not answer the question of whether the leads re-
sponsibly direct other employees.
Under the job responsibilities section of the lead job posting,
there appears to be an indication that they direct other employ-
ees. However, as the Board has noted, “Mere paper authority
does not confer supervisory status.” The test is what the pur-
ported supervisor does. F. A. Bartlett Tree Expert Co., 325
NLRB 243 fn. 1 (1997).
The basic duty of the leads is to observe, critique, and correct
the performing employees. There are typically two operations
leads on a shift for 20 actors, and one or more supervi-
sor/managers. The leads spend most of their workday observ-
ing performances, and they make extensive notes in the “Lead
Log” and occasionally make out an “Observation Report” for
an employee, which is also signed by an admitted supervisor.
For extremely credible work, they will give the employee a
“positive contact” report. They are, in short directors of the 80
some performances each day. But they do not have the author-
ity to alter the script or the blocking (the timing and place
where lines are delivered).

2 It is alleged and denied that April Hebert was a supervisor and her
ballot was challenged. There are no substantive allegations concerning
her, and minimal evidence of her status at any material time. In light of
my conclusion to set aside the election, the allegation concerning her
status is moot.
In this respect, I conclude that their duty is analogous to the
producer/directors in Westinghouse Broadcasting Co., 216
NLRB 327 (1975), and the directors and choreographers in
Musical Theater Assn., 221 NLRB 872 (1985), where the
Board observed that “their work is essentially limited to direct-
ing the artistic aspects of the performers’ work.”
Here the critique of actors is within the strict confines of the
script. Their use of judgment is confined to the artistic aspect
of the performance. They do not responsibly direct the work
force.
The character leads, of which there is typically one per shift,
are in costume and as with the other characters, interact with
guests. As with the operations leads, they do observe, critique,
and correct other character employees. Again, however, they
do so focusing on the artistic aspects of the employees’ work.
The leads fill out the “pre-opening operations safety check-
list” and, as noted, the leads make out observation reports and
every day make notes on the “Lead Log” of what went on dur-
ing their shifts, along with concerns and suggestions. But in
doing so, the leads are really only performing a “reportorial
function” which does not prove that they exercise discretion in
directing employees. Passavant Health Center, 284 NLRB 887
(1987). Any written discipline is in fact given by an admitted
supervisor—e.g., the manager or assistant manager of opera-
tions, assistant manager of show, and so forth.
Whatever limited authority the leads have in assigning em-
ployees to a particular spot in a rotation, and even allowing an
employee to leave early are routine, sporadic, and do not indi-
cate the use of independent judgment. Such limited exercise of
authority is insufficient to confer supervisory status. Lincoln
Park Nursing & Convalescent Home, 318 NLRB 1160 (1995)
(the maintenance supervisor not a statutory supervisor).
Finally, the fact that the leads receive $1 per hour more than
other employees is merely a reflection of the Respondent’s
determination that they possess greater skills than the others
and does not prove supervisory status. Brown & Root, Inc., 314
NLRB 19 (1994).
I therefore conclude that at all times material, the leads were
not supervisors within the meaning of Section 2(11) of the Act.
As there is no evidence that they otherwise were agents of the
Respondent, I shall recommend that those paragraphs of the
complaint alleging that they engaged in unfair labor practices
be dismissed. They are paragraphs: 8(c), (f) (which was with-
drawn), (l), (m), (n) (which was withdrawn), (u), and (v).
1. The alleged violations of Section 8(a)(1)
a. Interrogation by William Artis
It is alleged in paragraph 8(a) that Assistant Kitchen Man-
ager William Artis on an unknown date in June 1998 unlaw-
fully interrogated employees. This issue was not briefed by
either party. Artis did not testify and I find no evidence that the
event alleged occurred. Accordingly, I will recommend that
paragraph 8(a) be dismissed.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252
b. Threats by Matthew Timothy
In paragraph 8(b) it is alleged that on various dates between
May 2 and August 12, 1998, Matthew Timothy unlawfully
threatened employees with termination and other reprisals. The
Respondent denied the substance of this allegation as well as
Timothy’s supervisory status.
Simon Liu, the director of food and beverage during the ma-
terial time here, and an admitted supervisor, testified that Timo-
thy was a floor supervisor with the authority to discipline, as-
sign, and direct employees. He also testified that Timothy
spent “most of his week being a server.” I conclude from Liu’s
testimony that in fact Timothy had supervisory authority, not-
withstanding that he also performed the same work as rank-
and-file employees.
Food server Tania Lonkouski3 testified that on various occa-
sions between the time the Culinary union activity started and
the card check Timothy “would bring up that if we—if we Star
Trek went union, there would be no teamwork. We would lose
our 17 percent gratuity on parties of six or more, people would
be laid off, many different things at different—.” She testified
that he “said that an awful lot, no 17 percent, he repeated a lot.”
I find in these statements an implicit threat of loss of benefits
should employees exercise their Section 7 rights. This is not
the kind of statement protected by Section 8(c) of the Act but
rather was a threat, repeatedly made, in violation of Section
8(a)(1).
c. No-solicitation and distribution rule
It is alleged in paragraph 8(d) and paragraph 8(e)(2) that the
Respondent maintained and discriminatorily enforced an overly
broad no-solicitation and distribution rule. Presumably, the
8(d) allegation is that the rule set forth in the “Associate Hand-
book” is unlawful on its face, and the allegation in paragraph
8(e)(2) is that Director of Operations William Ossim unlaw-
fully enforced the rule. The handbook provides:

1. No solicitation of any kind on Company premises
during work time.
2. No distribution of literature or printed matter on
Company premises during work time.
3. No distribution of literature or printed matter in
work areas at any time.
4. No solicitation or collection of contributions or dis-
tribution of written or printed matter at any time by non-
Associates on Company premises.
5. Off-duty Associates are not to remain on or return
to the Company premises, except for regularly scheduled
work shifts or Company-sponsored events.
6. The Company maintains bulletin boards to commu-
nicate Company information to Associates and to post no-
tices required by law. These bulletin boards are for the
posting of Company information and notices. Only per-
sons designated by the Human Resources Department may
place notices on, or take down material from, the bulletin
boards. The unauthorized posting of notices, photo-
graphs, or other printed or written materials on bulletin
boards or any other Company property is prohibited.

3 In the complaint, and sometimes in the record her name is spelled,
Tayna Lonkowski.

Work time, as referenced above, does not include meal and
break periods.
Contrary to the apparent assertion of the General Counsel, I
conclude that the rule as published is presumptively valid. Our
Way, Inc., 268 NLRB 394 (1983).
In support of the 8(e)(2) allegation, Tracy Jordan testified
that in August or September, in a meeting with Ossim and As-
sistant Manager of Operations Jennifer Ogden he was told by
Ossim that “he had been made aware that I was distributing
union cards on Star Trek premises and asked that I refrain from
doing so as it was not company policy to disseminate union
material on the premises.” The General Counsel alleges this is
discriminatory enforcement of the no-distribution rule since
Ossim referred only to union cards and not other matters. I
disagree. By his testimony, Jordan was only distributing cards.
Cards were the subject of discussion, not anything else.
Jennifer Vandenberg testified that Human Resources Direc-
tor Felix Massey said to her in casual conversation that every-
thing “we post or hand out has to be approved by HR. We’re
not allowed to post anything on the board [in the break room]
without HR and then we have a no solicitation policy.” She
went on to testify that “The walls were wallpapered with anti-
union information.” “I mean, there was so much antiunion
information on the wall you couldn’t see the wall. Everywhere
in the break room, on the employee board, in the hallway, out-
side of the ops office.”
The impression left by this testimony is that only antiunion
literature was posted and such was allowed by the Respondent.
Vandenberg’s testimony about the massiveness of antiunion
postings was not corroborated; however the Respondent does
not deny that certain antiunion notices were posted in the
breakroom (which Massey had taken down) as well as an anti-
union letter written by Lead Steven Biggs.
The Respondent argues that it has the right to post antiunion
literature notwithstanding a no-solicitation/no-distribution rule
and that to do so is not per se violative of the Act, citing NLRB
v. Steelworkers (Nu Tone, Inc.), 357 U.S. 357 (1958). There is
no evidence of who may have posted this literature. Further,
Massey in fact had one such poster taken down. On these facts,
I conclude that the General Counsel did not establish a viola-
tion of the Act as alleged in paragraph 8(e)(2).
d. Creating the impression of surveillance
It is alleged in paragraph 8(e)(1) that Ossim created the im-
pression of surveillance when he told Jordan that he had
learned Jordan was passing out union cards. Mere knowledge
of employees’ union activity is not sufficient to establish that
an employer created the impression of surveillance. To estab-
lish a violation, it must also be shown that this knowledge
could only have come from surveillance. Thus to tell an em-
ployee that the Respondent had heard he was passing out cards,
particularly where that activity took place on company prop-
erty, does not without more make out a violation of the Act.
South Shore Hospital, 229 NLRB 363 (1977).

STAR TREK: THE EXPERIENCE 253
e. Threats by Scott S. Miller, Diana Tennyson, and
Christy Snearing
Paragraph 8(g) alleges that on September 22, Miller, Tenny-
son and Snearing impliedly threatened employees with unspeci-
fied reprisals because they engaged in protected, concerted
activities. Presumably this allegation is based on the testimony
of Cynthia Veto, since she is the only witness who testified to a
meeting on September 22 with the three named supervisors. I
find nothing in her testimony to support this allegation and I
will recommend it be dismissed.
f. Rescinding the retroactive application of attendance policy
It is alleged that sometime in September or October, the Re-
spondent rescinded the retroactive application of an attendance
policy initiated on September 7 in order to dissuade its employ-
ees from supporting the Teamsters.
There is no question that on September 7 the Respondent
made its attendance policy retroactive, and that such was re-
scinded. Johnny Taylor, senior vice resident of human re-
sources and administration, testified that he became aware of
this retroactive application when an employee called him in
Charlotte telling him that the “policy had been distributed about
two days ago and she was complaining about it.” He then
called Fran Bailey, whom he identified as the human resources
director at the time, asked her to explain what was going on and
told her to rescind the retroactive application.
The General Counsel argues that rescission of the retroactive
application was a benefit to employees during an ongoing union
campaign and was given without justification. Therefore this
act necessarily had a tendency to discourage employees from
engaging in union activities, citing Wise-Pak Foods, 319 NLRB
933 (1995). I agree that the judge’s reasoning there, adopted by
the Board, is controlling. He concluded that whether granting a
benefit to employees during a union campaign was unlawful
depends on whether the Company would have done so in the
absence of any union activity. Thus he concluded that granting
a wage increase to maintenance employees was based on busi-
ness considerations and was not unlawful, but changing over-
time policy was.
Here I find that the Respondent in fact had a business justifi-
cation for rescinding the retroactive application. It was patently
unfair and employees were complaining. I believe the Respon-
dent would have taken the same action in absence of any union
activity. Further, it is questionable whether the Respondent
even knew of activity on behalf of the Teamsters when this
occurred. The first contact with the Teamsters was in Septem-
ber and the first cards signed in mid-September, yet the credible
evidence reflects that the rescission occurred around September
9. In any event, I conclude that changing the policy was not
violative of Section 8(a)(1) as alleged in paragraph 8(h).
g. Confiscating a cake displaying a prounion message
On September 22, Lonkouski resigned as a culinary em-
ployee. Then on September 30 changed her mind. That the
Respondent would not accept this change of mind is alleged
violative of Section 8(a)(3), to be discussed below.
Thus Lonkouski’s last day of work was October 2. She
brought to work, to be shared by fellow employees, a cake
decorated like a Culinary Union card and inscribed, “Goodbye
Norma Rae.”
Lonkouski testified that on other occasions employees have
brought cakes to work, noting such events as Mothers’ Day,
without any problem. She also testified that Bailey took her
aside and told her she would have “to smear the cake over or I
needed to throw it away, that it was extremely inappropriate
and for the workplace.” Lonkouski refused, and ultimately
Bailey took the cake. The General Counsel alleges that this act
of Bailey interfered with employees’ Section 7 rights.
Massey testified that he was present when Bailey confronted
Lonkouski about bringing the cake to food serving area and that
Bailey told Lonkouski she should take the cake to the employee
break area. Lonkouski denied that Bailey told her this. In any
event, there is no dispute that Lonkouski put the cake in a work
area, where food to be served customers is placed.
The General Counsel has directed me to no authority holding
that an employer may not, without running afoul of the Act,
limit what employees may place in work areas on working
time. Bailey’s act was tantamount to enforcing a lawful no-
distribution rule. I find her act not to have been unlawful. I
shall recommend that paragraph 8(i) be dismissed.
h. Nondisclosure rule
It is alleged that the first week of November, the Respondent
promulgated and thereafter maintained and enforced the follow-
ing rule in its employee handbook:

Non-Disclosure of Information

Associates will neither disclose nor use for their own
or another’s benefit, during or after their employment, any
information not publicly known (after called “Confidential
Information”) relating to Paramount Parks, its corporate
parent Viacom Inc. and their respective subsidiaries and
affiliates, (after collectively called “Paramount Parks”)
unless authorized in writing by the Company.
Confidential information shall include, but not be lim-
ited to, Paramount Parks’ administrative procedures and
manuals; business and financial plans, operations, projec-
tions, results and prospects; computer programs; customer,
Associate, stockholder and supplier information or lists;
research efforts, trade secrets and technical information;
trademarks under consideration; terms and conditions of
contracts and agreements; as well as any information dis-
closed to Paramount Parks in confidence by third parties.

First, this language is essentially identical to the “Confiden-
tiality, Conflicts of Interest and Proprietary Property Agree-
ment,” new employees were required to sign well before the
advent of union activity. Thus I find that it was not, as alleged,
promulgated in November, nor do I agree with the General
Counsel’s argument that the language was promulgated to
thwart activity on behalf of the Teamsters.
Further, I disagree that the language is unlawful per se. The
test of whether a nondisclosure rule violates Section 8(a)(1) is
whether employees would reasonably be led to believe that the
rule prohibits discussion of wages and working conditions.
Lafayette Park Hotel, 326 NLRB 824 (1998); Super K-Mart,
330 NLRB 263 (1999).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254
The General Counsel argues that included in information not
to be disclosed is “administrative procedures and manuals,”
which relate to “working conditions and indirectly, the wages,
of Respondent’s employees.” I disagree. I do not believe em-
ployees could reasonably conclude that “administrative proce-
dures and manuals” means, or includes, wages and working
conditions. I conclude that the nondisclosure rule does not
violate Section 8(a)(1) and I will recommend that paragraph
8(j) be dismissed.
i. Granting two additional holidays
Greg Lawrence testified that when hired he had “the usual
federal holidays plus one personal day.” Then in December
“[w]e were given two additional personal days.” This is al-
leged to have been a grant of benefit to full-time employees in
violation of Section 8(a)(1).
The Respondent admits that the holiday schedule was
changed, which was noted in a memorandum from Massey
dated November 11, which stated that all employees would
receive 8 paid holidays each year and employees with more
than 1 year of service would also get 3 floating holidays. The
change, according to Massey’s undenied and generally credible
testimony, was in conformity with a new handbook received
from corporate headquarters, and dealt only with the way in
which holidays were set. There was no change in the number
of holidays received by employees. Thus, before the change
employees received 10 set holidays and 1 floating holiday. The
change was to eight set holidays and three floating ones.
While there was no doubt a change in holiday pay policy af-
ter the beginning of the Teamsters organizational campaign, I
cannot conclude that the change was either a benefit, or a det-
riment to employees. The holiday pay benefit remained the
same as to the number of total days and employees could, if
they wished, take the 2 floating days for the 2 discontinued set
days. I conclude that the General Counsel has not established
the factual basis for the allegation in paragraph 8(k) and I will
recommend that it be dismissed.
j. Delay of performance evaluations and merit pay increases
In paragraph 8(o) it is alleged that on December 21, Vice
President and General Manager Tom Rapone informed em-
ployees that their performance evaluations and merit pay in-
creases were delayed because of the organizational activity on
behalf of the Teamsters. The memorandum reads:

This note is meant to tell you about a change in the schedule
for performance evaluations and merit increases.

Unfortunately, the Teamsters campaign and election com-
bined with having an opening in the HR department makes it
impossible to complete the process (of performance evalua-
tions) by January 1, 1999 as originally planned. We now plan
to complete the process by January 31, 1999.

Even though the review process has been delayed, I would
like to make it very clear that any performance-based merit
pay increases awarded will be made retroactive to January 1,
1999. [Emphasis in original.]

This delay will affect all members of our team including su-
pervisors, managers, directors and me.

Please accept my sincere apology for this delay. Thank you
for your understanding and if you have any questions please
talk with you director.

The General Counsel contends that by naming the Teamsters
campaign as one reason for the delay in making employees’
evaluations the Respondent violated Section 8(a)(1), citing
Feldkamp Enterprises, 323 NLRB 1193 (1997), and Laidlaw
Waste Systems, 307 NLRB 52 (1992). Neither of these cases is
authority for the proposition asserted.
I find nothing in Rapone’s memorandum which is not per-
missible under Section 8(c). While he noted the organizational
campaign and election as being a factor in the delay, he also
accepted that the Respondent was responsible for a staffing
shortage. But, he emphasized that any merit pay increases
would not be affected—they would be made retroactive. I find
no threat or unlawful promise of benefit in Rapone’s words and
I concluded that paragraph 8(o) should be dismissed.
k. Rule prohibiting employee discussions of work-rela-
ted issues
It is alleged that on January 2, 1999, Massey and Manager of
Operations Susan Gaffney orally promulgated an overly broad
rule prohibiting employee discussion of work-related issues and
concerns. Apparently this allegedly occurred during a session
Massey and Gaffney had with employee Tracy Jordan prelimi-
nary to his discharge (which will be treated below). Jordan
wanted to have fellow employee Jennifer Wallace present as a
witness, and, according to Jordan, Massey “indicated to me that
it was company policy that matters discussed between employ-
ees and management was not privy to—or other employees
were not privy to those discussions and that she would not be
able to stay.”
The General Counsel does not say how this is an unlawful
promulgation of an overly broad rule prohibiting employees
from discussing work-related issues or concerns. I find it is
not, nor can I find anything in the record which would be
unlawful under this allegation. Accordingly, I shall recom-
mend that paragraph 8(p) be dismissed.
l. Denying an employee’s request for a witness
During the January 2 session discussed above, Massey de-
nied Jordan’s request that he be allowed to have Wallace pre-
sent. This is alleged to have been violative of Section 8(a)(1)
because Jordan had reasonable cause to believe that the session
would result in disciplinary action being taken against him.
The issue is whether the right set for in Weingarten v. NLRB,
420 U.S. 251 (1975), is available to employees not represented
by a labor organization.
The Board has gone back and forth on this issue, and most
recently concluded that in fact nonrepresented employees do
have Weingarten rights. Epilepsy Foundation of Northeast
Ohio, 331 NLRB 676 (2000) (decided following the close of
the hearing). At the time of the events here E. I. du Pont &
Co., 289 NLRB 627 (1988), was the standard and a nonrepre-
sented employee “does not possess a right under Section 7 to
insist on the presence of a fellow employee in an investigatory
interview by the employer’s representatives, even if the em-

STAR TREK: THE EXPERIENCE 255
ployee reasonably believes that the interview may lead to disci-
pline.” 289 NLRB at 268.
Nevertheless, as in Epilepsy Foundation, I conclude that the
right of Jordan to have an employee witness with him should be
applied retroactively. Accordingly, I conclude that the allega-
tion in paragraph 8(q) has been established and that by denying
Jordan the witness he requested, the Respondent violated Sec-
tion 8(a)(1).
m. Disparaging employees for engaging in concerted activities
It is alleged in paragraph 8(r) that on January 8, Ossim dis-
paraged employees for engaging in protected concerted activi-
ties, specifically making safety complaints. This apparently is
to have occurred during a discussion Ossim had with employee
Rececca Linton following her filing of a “Notice of Injury or
Occupational Disease Incident Report” on January 14. She
made this report after fellow employee Vandenburg became ill
and was sent to the breakroom. Linton wrote, and testified, that
she had a “bitter taste & a headache followed.”
In meeting with Ossim, she testified that he questioned her
about what happened, “and then he went into something about
how every time someone gets sick or lodges a complaint then
there’s a costly investigation that he has to do and he’s been in
the business for a long time and the safety of his guests and his
employees were always uppermost, and that from that point on
if people were going to be lodging these complaints and the
investigations came up empty handed then there would be con-
sequences.”
Massey testified that Ossim told Linton he had caused an in-
vestigation to be made and it was determined that lavender
scented aerosol spray had been used in the area, but there had
been many complaints about a variety on workplace environ-
mental concerns and they had all been investigated by engi-
neers and OSHA.
I credit Linton and conclude that Ossim’s comments to her
about her complaint to be disparaging, which in the context of
Massey suggesting that employees don’t have to work for the
Respondent conveys the message that engaging in protected
activity is incompatible with continued employment. Such
violates Section 8(a)(1). Fieldcrest Cannon, Inc., 318 NLRB
470 (1995). I conclude that the allegation in paragraph 8(r) has
been established.
n. Inviting employees to quit
It is alleged that on January 8, Massey invited the Respon-
dent’s employees to quit because they engaged in union and
protected activities. This allegedly occurred in connection with
the safety report that Linton filed after Vandenberg became ill
on January 7. During the meeting with Ossim set forth above,
Linton testified that Massey said: “they had a business to oper-
ate and although they, you know, always try to do better that
they will still run the business the way they deem fit and that if
people didn’t want to abide by that that they didn’t have to
work here.” By this (and disparaging her) the General Counsel
argues that the Respondent violated Section 8(a)(1) and (3) of
the Act.
Massey testified that “I don’t run the company,” and he de-
nied telling Linton “if she didn’t like it, that she could leave.”
While Massey may not have made the precise statement coun-
sel asked him, I conclude that Linton’s version of the meeting
is credible. Whether a statement along the lines testified to by
Linton violates Section 8(a)(1) depends on whether it is reason-
able to conclude that such a remark would “clearly convey to
an employee the threat that management considers engaging in
union activities and continued employment essentially incom-
patible.” Padre Dodge, 205 NLRB 252 (1973). I conclude that
in the context of Linton filing a safety claim which resulted in
the meeting with management, such was a reasonable conclu-
sion for an employee to draw. I therefore conclude that the
Respondent violated Section 8(a)(1) as alleged in paragraph
8(s).
o. Promise of wage increases
It is alleged that on January 17, then Vice President and
General Manager Tom Rapone promised employees wage in-
creases and improved benefits it they rejected the Teamsters.
Vandenberg testified that this occurred at the Christmas party
on January 17. She testified that she and two other employees
were sitting at the bar when Rapone came up and engaged her
in a conversation. Rapone “commented to me that I was more
attractive than Geri Ryan (from the Star Trek TV series). She
asked him why they didn’t have more food at the Christmas
party. “He asked me what the problem was with the employ-
ees. And I said, ‘Well, I don’t know, you know, what are you
talking about.’ And I said, ‘Why don’t you give us all a raise,’
kind of jokingly, and he said he was going to give us all a raise
if we would quit all the union nonsense. It was a very light-
hearted conversation but still kind of disturbing.” Rapone was
not called as a witness and, necessarily, did not deny the sub-
stance of Vandenberg’s testimony.
The Respondent argues that since this was flirtatious conver-
sation in the context of a party (and presumably drinking) that it
cannot be found to be a promise of benefit in violation of the
Act. I disagree. Just as a threat can be made with a smile—the
fist inside a velvet glove—so a promise can be made during
light banter. The point is, Rapone represented the employer
during an ongoing organizational campaign. What he said,
even if lighthearted, would reasonably be interpreted by em-
ployees as interfering with their Section 7 rights. I conclude
that Rapone violated the Act as alleged in paragraph 8(t).
p. Telling an employee to quit
It is alleged that on February 16, Assistant Manager of Op-
erations Jennifer Ogden told an employee who was engaged in
union activities she should quit. This is alleged to have oc-
curred following written counseling given to Theresa Leger on
February 16 for a safety violation (attempting to close the gull-
wing door on the shuttle with a wheelchair in the way). On
receiving this counseling, Leger wrote her comments which
included a statement that a supervisor (Diana Tennyson) was
observing the show which made Leger nervous and this caused
her to commit the safety violation. “It just happens I was nerv-
ous around her but have not been nervous around anyone else
including even George Lucas or Patrick Stewart coming thru.
Go Figure.” She also stated that in 14 months of employment,
she had never been observed, a statement which I find incredu-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
lous considering the overwhelming evidence that in fact man-
agement and leads observed shows many times each day.
Leger testified that when called to discuss this matter with
Ogden and Tennyson, Ogden said, “[W]ell I can see that you’re
not happy working here. You had brought up some concerns
regarding your evaluation and nothing will be said on your
evaluation. You’ll get no answer as to specifics. You’ve been
asking too many questions. Perhaps you should find a job
elsewhere. We don’t consider you a cooperative with man-
agement and a desirable employee.”
Ogden testified that she was concerned by Leger’s statement
to effect that she could not perform her job safely with a mem-
ber of management present (which despite Leger’s contrary
assertion, is common). Ogden testified that she told Leger “that
I needed her to reevaluate whether or not she was going to be
able to safely operate and do her job responsibilities, and then
get back to me and let me know that she was going to be able to
safely do that.” I credit Ogden.
It is certainly possible that Leger could have interpreted
Ogden’s statement to her as suggesting she find another job.
But I conclude that is not what Ogden said. Further, given
Leger’s statement that she was nervous in the presence of a
manager and such caused the safety violation, I believe
Ogden’s query to her was reasonable. Accordingly, I conclude
that the allegation in paragraph 8(w) has not been established
and it should be dismissed.
2. Refusal to bargain with the culinary union4
It is alleged in paragraph 6(b) that on or about September 7,
the Respondent changed its policy and practice of allowing
employees to rescind their resignations from employment with-
out notice to or bargaining with the Union.
The Respondent contends that the policy relating to rescis-
sion of resignations occurred in July, and before it had a bar-
gaining duty with the Culinary Union. This is based on the
testimony of Taylor. According to Taylor this subject arose in
late July when the vice president of marketing and communica-
tions and PR tendered her resignation, and then 2 days later
said she would like to rescind it—that she had given her resig-
nation only to get more money. The CEO had a talk with Tay-
lor about the appropriateness of individuals resigning and then
asking for their resignations to be rescinded. The CEO told
Taylor to create a policy to which Taylor said he responded:

Well, you know, here’s my idea of the policy, this is what I
think we should do. Our policy should be, if, in fact, an indi-
vidual tenders his or her resignation it’s final unless the busi-
ness needs that person to remain, in which case we will nego-
tiate with that person to come back.

Taylor went on to testify that in this particular case, they
needed the individual and did allow her to rescind her resigna-
tion. He also testified that throughout the Company, this issue
rarely arises—at most once or twice a year.
4 The allegation in par. 6(a) relating to tests for line cooks, and in
pars. 7(a) and (b) alleging that Dante Arancibia was discharged for
protesting this were not pursued by the General Counsel since the Culi-
nary Union and the Respondent entered into a non-Board settlement of
these issues.
I have difficulty concluding that in fact there was a change in
policy. Taylor, in effect, testified that a resignation is final,
unless it isn’t. In the case of the marketing vice president, her
resignation was not final.
Although the Respondent and the General Counsel agree that
there was a change in the resignation policy, I conclude that
there was no change. Rescission of a resignation is something
which happens rarely and then is handled on a case-by-case
basis. Accordingly, I conclude that paragraphs 6(b), (c), and
(d) should be dismissed.
3. The alleged violations of Section 8(a)(3)
a. The discharge of Tania Lonkouski
There is no question that Lonkouski was an active supporter
of the Culinary Union, and this was known to the Respondent’s
managers. At a minimum, she was the Union’s observer at the
card count on August 12. There is also no question that on Sep-
tember 22 she resigned, giving Restaurant Manager Michael
Muller 2 weeks’ notice. Then about 1 week later, she asked
Muller if she could rescind her resignation. He told her that it
would be no problem if her termination papers had not been
processed, which apparently had not yet happened.
Her attempt to rescind her resignation ultimately reached
Taylor, who asked if she was essential. On being advised she
was not, he told Bailey that consistent with the policy the Re-
spondent had established in July, Lonkouski could not rescind
her resignation.
As noted above, I conclude that the Respondent’s newly
adopted policy of not allowing one to rescind a resignation is
essentially a nonpolicy. The individual allegedly causing the
policy change was allowed to continue her employment. Simi-
larly, Liu testified that he learned through Muller that employee
Allan Blanchard was allowed to rescind his resignation in the
summer of 1998.5
Given Lonkouski’s known activity on behalf of the Culinary
Union, the lack of any objective basis for concluding that she
was other than a competent employee, I conclude that the Gen-
eral Counsel established a prima facie showing that Lonkouski
was denied continued employment in violation of Section
8(a)(3) of the Act. I further conclude that the Respondent did
not meet its burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), to show that the same action
would have been taken in the absence of union activity.
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(3) by refusing to allow Lonkouski to rescind her res-
ignation on September 30.
b. The discharge of Cynthia Veto
It is alleged that the Respondent discharged Cynthia Veto on
September 25 because of her activity on behalf of the Team-
sters. The Respondent contends that Veto was discharged for
having falsified a payroll record and notes that she received
other corrective counseling just prior to her discharge. The
5 The Respondent argues that this is hearsay and should be rejected.
It was not objected to at the hearing and in any event, would be admis-
sible as being a fact assertion against interest by an agent of the Re-
spondent.

STAR TREK: THE EXPERIENCE 257
General Counsel argues that the other corrective counseling
given Veto is irrelevant since the stated reason for her dis-
charge was the alleged falsification, which, apparently, the
General Counsel contends did not occur.
Sometime around September 15 Veto submitted a stardate
correction notice (payroll correction request) indicating that on
September 11 her clock in time should have been 9 a.m. and
her clock out time 5 p.m. The payroll department referred this
back to Veto’s supervisor, noting that she was given an early
out on that date after 2 hours and asking whether Veto was
owed another 6 hours of pay. She was suspended pending in-
vestigation for this apparent attempt to get pay for time she did
not work. The micros system showed that she clocked in at
9:21 a.m. but did not clock out; however, the investigation also
showed that she was given an early out at 10:45 a.m.
Being active on behalf of a union does immunize one from
discipline or discharge. In this case, the record demonstrates
that in fact Veto submitted a payroll correction report which
was patently false. Such is certainly cause for discipline or
discharge. Indeed company records show that other employees
have been discharged for falsifying time records both before
and after the advent of the union activity here. And given the
other corrective counseling Veto received at about the same
time, I conclude that the Respondent reasonably would have
discharged her even absent her union activity. Accordingly, I
conclude that the Respondent did not violate Section 8(a)(3).
c. Rescinding accommodation for Tracy Jordan’s
reporting time
Tracy Jordan was hired in November 1997 to work the swing
shift as an actor/performer. At the time, the swing shift em-
ployees went on duty at 4:30 p.m., but were required to attend a
pre-shift meeting which, according to Jordan, typically began at
4:20 p.m. Due to the fact that he needed to pick up his children
from school and take them to a babysitter, he and management
(Theresa Fields) reached an accommodation that he could ar-
rive late, which was set forth in a letter from him to Fields
dated April 19, 1998, and placed in his personal file. In the
letter he stated: “my arrival time on Wed—Fri will be in the
range of 4:20–4:30, but should arrive in time to make shift
change.”
In the fall of 1998, Ogden confronted Jordan about being
tardy and he told her of the arrangement he had with Fields.
Ogden said that she would honor it. Then, undisputedly, on
November 30, the Respondent changed the starting times for all
shifts, such that the swing shift employees would have to arrive
at 4 p.m. and be ready for the pre-shift meeting at 4:10 p.m.
They would still bump out the day shift at 4:30.
Shortly after the December 14 election, at which Jordan was
the Teamsters observer, he was called in to see Massey about
his tardiness. (The General Counsel contends this occurred on
December 18. The Respondent argues it occurred before the
election. Given the timing of subsequent events, I conclude it
probably happened after the election. Regardless, Jordan was
known to be active on behalf of the Teamsters, having been
confronted for passing out authorization cards.) Jordan told
Massey that he had an accommodation with Fields and then
Ogden about arriving late. In effect, Massey told him that did
not matter, he was to be at work on time. They agreed that
Jordan would discuss the matter with his wife and determine
what options he had. There followed a second meeting in
January at which Jordan requested the presence of an employee
witness (above), which resulted in his discharge (below).
Notwithstanding that Jordan had been counseled about tardi-
ness even prior to any union activity, it is clear that he did have
a special accommodation concerning his arrival time and this
was canceled, certainly during the organizational campaign and
probably immediately following the first election. Given Jor-
dan’s known activity on behalf of the Teamsters, and the lack
of any specific reason offered by the Respondent why the ac-
commodation for him needed to be lifted, I conclude that the
General Counsel established that by doing so, the Respondent
violated Section 8(a)(3) of the Act. I therefore conclude that
the allegation in paragraph 7(f) has been sustained.
d. The discharge of Tracy Jordan
In early January, Jordan was again called to meet with
Massey and Gaffney. When he arrived he was told that the
meeting was in reference to the earlier discussion, whereupon
Jordan asked to be excused. He found fellow employee Jenni-
fer Wallace in the breakroom and asked her to come with him
to be a witness. Massey told Jordan that he would not be al-
lowed to have a witness since the Teamsters lost the election
and did not represent him. Jordan refused to discuss the matter
without a witness (which is apparently the allegation of con-
certed activity in paragraph 7(s)), and also mentioned that he
had filed a charge with the Board and thought that ought to be
resolved first. Massey acknowledged the charge, but also said
that if Jordan did not participate in the meeting without a wit-
ness, such would be considered an act of insubordination and
he would be subject to discipline. Jordan then asked if he could
return to work.
A short time later, Gaffney and Massey and a security guard
confronted Jordan, told him he was suspended and escorted him
off the premises. On January 5 Gaffney called to tell Jordan
that he was discharged for insubordination.
Although the Respondent does not dispute, in general, Jor-
dan’s testimony about this event, both the counseling report and
termination signed by Gaffney state that Jordan’s offense was
his refusing to leave his work area and come to the human re-
sources office. For whatever reason, Gaffney misstated Jor-
dan’s action. I find that Jordan did come to Massey’s office as
requested, but there refused to participate without a witness.
And it was for this he was suspended and then discharged.
Although at the time of this event, the Board rule did not al-
low for unrepresented employees to have Weingarten rights, the
recent holding in Epilepsy Foundation clearly establishes that
they did. That is, the rule in Epilepsy Foundation relates back.
An employer denying nonrepresented employees the presence
of a witness during a counseling session reasonably thought to
result in discipline did so at its peril.
It is further clear that Massey knew Jordan had filed a charge
with the Board, and given his treatment of Jordan, I conclude
that in part the suspension and discharge were in retaliation for
that in violation of Section 8(a)(4). Accordingly, I conclude

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
that the Respondent violated Section 8(a)(3) and (4) as alleged
in paragraphs 7(g), (s), and (t).
e. Refusal to grant Roger Guinn an early out
Roger Guinn testified that on December 25 he asked to go
home early. Counsel for the General Counsel did not ask him
whether this request was denied. According to the Respon-
dent’s records, the request was granted. In fact, of all the em-
ployees who worked that day, only Guinn clocked out early. I
conclude that the General Counsel did not establish the fact
allegation set forth in paragraph 7(h) and it will be dismissed.
f. Refusing Roger Guinn light duty
The General Counsel asserts that Guinn hurt his shoulder on
or about December 23, went to a physician, and received a note
that he could only perform light duty which he presented to the
Respondent on December 27. The note stated, in part, “no
straining or lifting more than 5 lbs with the arm for 7 to 10
days.”
Guinn was a Hilton Hotel janitor in the performance. When
the shuttle “crashes” into the hotel basement, the janitor (who is
“clueless”) finds the guests and opens the shuttle door by push-
ing a button. There is no show requirement that he use one
hand rather than the other. Nevertheless, he claims that to push
the button would have been too much of a strain. The Respon-
dent demonstrated rather conclusively that to push the button
would not be a strain, particularly if he used his good arm.
Beyond that, I found Guinn’s demeanor to be negative and
generally I found him not credible. Finally, the Respondent did
in fact put Guinn in a different (light-duty) job in early January.
I therefore conclude that the Respondent did not deny Guinn
light duty, or otherwise treat him unlawfully with regard to his
injury. Paragraph 7(i) will be dismissed.
g. Discharge of Roger Guinn
It is alleged that the Respondent unlawfully discharged
Guinn on January 20. The Respondent admits that Guinn was
discharged on that day, but argues that it was for cause—Guinn
left early on January 18 without permission and only January
12 had been given a “final counseling” for poor attendance.
The General Counsel argues that the “final counseling” was
necessarily a pretext since of the nine listed absence days, five
were excused and one was his day off. Therefore, he only had
3-1/2 points, which was one point less than the minimum for
counseling under the Respondent’s policy. I disagree. Guinn
admits that on September 13 he was given a “final counseling
attendance” and was told by Gaffney “that I had like seven
points or something.” “She just told me how many points I had
and that I—if I incurred another point, I would be terminated.”
He testified that he was told that the points (one for an unex-
cused absence, one-half for tardy) accrued from the beginning
of his employment.
The retroactive aspect of the attendance policy was re-
scinded. Nevertheless, it is clear, from the documentary evi-
dence as well as Guinn’s testimony, that he had a serious atten-
dance problem and that the Respondent kept him on long after
he might have been discharged. In such circumstances, I can-
not find a pretext.
Notwithstanding the “final counseling” he received on Janu-
ary 12, on January 15 Guinn left work early. He was con-
fronted by Tennyson and claimed that he had permission from
the admissions lead. When told that leads do not have the au-
thority to grant early outs, he said that permission came from
Ossim, and on this basis, Tennyson allowed him to leave. She
later learned from Ossim that he had not given early out per-
mission to Guinn. Thus Gaffney suspended him on January 16.
Former security officer Henry Redding testified that he was
present on January 15 when Lead Federico Flores told Guinn
that he was free to leave, that his clock out time would be 11:30
a.m. Redding made out a statement to this effect and gave it to
Guinn; however, Guinn did not give it to any responsible offi-
cial of the Respondent. While this testimony tends to corrobo-
rate Guinn, it is not at odds with Tennyson’s testimony. After
being confronted by Tennyson and Flores, Guinn was told he
could leave. It was only later that it was determined that Guinn
did not have permission.
As indicated above, I do not find Guinn a credible or reliable
witness, and even if Redding is credited, I conclude that the
Respondent reasonably believed that he left work early on
January 15 without permission. This superimposed on his
demonstrated poor attendance record, I conclude, was ample
justification for the Respondent to discharge him.
It may be that Guinn was a known activist on behalf of the
Teamsters. That, however, did not immunize him from reason-
able discipline, including discharge. I do not believe that the
discharge of Guinn was a pretext to disguise an unlawful mo-
tive. I conclude that the allegation that Guinn was discharged
in violation of Section 8(a)(3) should be dismissed.
h. Requiring Scott M. Bolt to take a drug or alcohol test
Scott Miller no longer works for the Respondent, but time
material here was the assistant manager of show. He testified
that on the morning of January 4, he held a make-up rehearsal
for all actors who were unable to make the original rehearsal.
This included Scott Bolt. However, Bolt was not present for
the make-up rehearsal. When Bolt arrived for work that after-
noon, Miller approached him to ask where he had been. Miller
testified that he smelled what appeared to be alcohol on Bolt’s
breath. Miller then went to superiors for guidance and ulti-
mately, he pulled Bolt from rotation and they went to Massey’s
office. Massey testified that he also smelled alcohol and they
asked if Bolt had been drinking. He denied that he had. He
was asked if he would submit to a blood test, and he agreed.
A few days later the test results came back negative and Bolt
was so informed. He was told that he could return to work.
Upon returning, he asked for and filled out a 2-week resigna-
tion.
Bolt testified that he attended three union meetings, made
some comments at them and signed a card. The General Coun-
sel argues that since leads were present at these meetings, Bolt
was a known union supporter and since the blood test was
negative, it was unwarranted and discriminatory in violation of
Section 8(a)(3).
I disagree. Bolt’s union activity was, at best, limited and un-
remarkable. Beyond that, Miller credibly testified that he
smelled what he thought was alcohol on Bolt’s breath. Since

STAR TREK: THE EXPERIENCE 259
Bolt had missed a mandatory rehearsal, Miller’s suspicion was
not unreasonable. Though Bolt denied having been drinking,
he did agree to take a blood test (as given other similarly situ-
ated employees). The fact that the test turned out negative does
not mean that Bolt was discriminated against when asked to
take it. Accordingly, I conclude that the General Counsel failed
to prove the allegation in paragraph 7(k) of the complaint and it
will be dismissed.
i. Written reprimand to Mark Durden
It is alleged that on January 6, the Respondent issued Mark
Durden an unwarranted and undeserved written reprimand in
violation of Section 8(a)(3). The General Counsel’s proof of
this allegation is that Durden signed an authorization card and
attended two union organizational meetings in the fall of 1998.
And, on January 6, his performance was observed by Scott
Miller and Chad Randle, after which he was given corrective
counseling to the effect that after a year of employment he
should be doing better. Therefore, he was told that he would
have to be retrained. Durden said “I’ll tell you what, I’m off
for the next two days. If I’m not back by such and such day,
you have my answer.” He did not, in fact, return to work.
The General Counsel appears to argue that if one is a known
union supporter, demonstrated by his attendance at two organ-
izational meetings, then any criticism of his work, without
more, is violative of Section 8(a)(3). I disagree and conclude
that there is insufficient evidence discrimination in this incident
to justify finding an unfair labor practice. Accordingly, the
allegations with regard to Durden will be dismissed.
j. Verbal reprimand to Rebecca Linton
The alleged verbal reprimand to Rebecca Linton is essen-
tially the same allegation as in paragraph 8(r) it was alleged,
and found, that Ossim disparaged Linton for having filed a
safety complaint. While I credit Linton’s version of the meet-
ing she had with Ossim and Massey, I find nothing in her testi-
mony which would suggest that she was reprimanded (other
than the disparaging remarks). A reprimand typically is the
first step in a chain of discipline. I do not believe such oc-
curred here. Therefore I conclude that the Respondent did not
violate Section 8(a)(3) by giving Linton a verbal reprimand as
alleged in paragraph 7(m).
k. Unwarranted and undeserved negative performance ratings
It is alleged in paragraph 7(n) that in January, the Respon-
dent give 31 employees “inferior performance evaluations and
assigned unwarranted and undeserved negative performance
ratings.” This allegation as to five employees was withdrawn.
There is no question that the Respondent initiated a perform-
ance review for each employee beginning in about April 1998
and these reviews were finalized in late January 1999. Each
employee was given one of four ratings in each of 11 catego-
ries, as well as an overall rating, using the following standards:

E-exceptional: Performance is exceptional and is recogniz-
able as being far superior to others.

H-highly proficient: Results clearly exceed position re-
quirements. Performance is of high quality and is achieved
on a consistent basis.

P-proficient: Competent and dependable level of perform-
ance. Meets the performance standards of the job.

I-improvement required. Performance is deficient. Im-
provement is necessary. Action plan is required.

Also on the form is a space for the rater to enter two specific
examples of the employee’s major accomplishments during the
rating period, and to suggest specific areas needing improve-
ment. There is also a space for the employee’s comments and
finally, an overall rating of exceptional, highly proficient, pro-
ficient or improvement required (action plan required). Each
employee’s annual merit increase is calculated from the per-
formance review, with higher rated employees receiving greater
increases.
According to the Respondent, all 350 employees at the facil-
ity were given a performance review; however, this matter
concerns only employees in the bargaining unit sought to be
represented by the Teamsters.
In the fall, review forms were given to first line supervisors,
who completed them for the employees whom they worked
with. How the supervisors picked whom to rate was not very
definitive; however, they did so and submitted first drafts by
early November. These drafts were reviewed by Taylor and
others in human resources for form (spelling, grammar, and the
like) as well as consistency. The final version was completed
and then checked by someone in corporate Human Resources
who assigned a merit pay increase from zero to four percent,
depending on the ratings in the 11 categories. The final review
was given to each employee in late January or early February.
Employees were allowed to question their ratings, and some did
so, with the result that evaluations in one or more categories
were changed, along with the merit increase.
The General Counsel seems to argue that the 26 employees
finally named in paragraph 7(n) were each given inferior per-
formance ratings because of their union activity as demon-
strated by: (a) the fact that each signed a union card and at-
tended meetings (and in some cases spoke in favor of the Un-
ion) and (b) the evaluation of each was negative. Additionally,
the General Counsel seems to argue that as a class, the evalua-
tions of union adherents were discriminatory, because evalua-
tions given to employees who apparently did not support the
union were uniformly better. Neither of these theories is sup-
ported by a preponderance of the credible evidence.
Ten of the 26 received highly proficient overall ratings.
Though questioned at the hearing, counsel for the General
Counsel did not answer how such a rating could be considered
negative. Testimony from some of the individuals was to the
effect that in their opinion, they should have been rated higher
in one or more categories. But the subjective opinion of the
rated individual that he or she should have been rated excep-
tional rather than highly proficient is, I conclude, insufficient to
prove that the evaluation was an “unwarranted and undeserved
negative performance rating.” The same is true for the 156 who

6 The performance review for Stephanie Calvert is missing from the
record, though received into evidence. Since she received a 3.2-percent
merit increase, consistent with the other evaluations, hers must have
been proficient or possibly highly proficient.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
received proficient evaluations. On the record here, I conclude
that highly proficient and proficient evaluations are in fact posi-
tive.
It may be that some of the individuals believe they should
have been rated higher; and perhaps their work would justify a
higher rating. However, the Board does not operate as some
kind of human resources review authority. Unless there is clear
objective evidence that in spite of one’s work history, the
evaluation is patently too low, the Board will not second guess
management.
I further reject the General Counsel’s argument that a pattern
of discrimination is proven by comparing these 26 evaluations
with the evaluations of individuals not shown to have been
union supporters. Though the General Counsel and the Re-
spondent agree that 77 performance reviews were given to em-
ployees in performer/actor unit; I was only able to locate 56 in
the record (plus 6 drafts which were not given). Of the 38
evaluations given to card signers, 16 were highly proficient, 15
proficient, and 6 improvement required.7 Of the 20 evaluations
for individuals not shown to be card signers, 1 was exceptional,
13 highly proficient, 4 proficient, and 2 improvement required.
Such numbers do not demonstrate a clear pattern of treating
card signers (assuming such was known to management) dis-
parately from non card signers.
It does appear that the scoring was not consistent between
raters. Focusing on attendance because it is the least subjective
category, there are instances where one rater would give a pro-
ficient on attendance if the employee met the attendance re-
quirements where another rater would give a highly proficient
to an employee with a similar record. Nevertheless, most em-
ployees who received overall highly proficient ratings, had
proficient in attendance. Thus, for an employee with an essen-
tially perfect attendance record to have been rated proficient is
not, as argued by the General Counsel, inexplicable. Indeed
such would be the rating suggested under the guidelines. Per-
fect attendance merely “meets the performance standards of the
job.”
Notwithstanding some inconsistency between raters, I cannot
conclude that the Respondent used the performance review
system to retaliate against union supporters. Whatever incon-
sistency there is, I conclude, is attributable to the fact that the
system was newly implemented. Accordingly, I conclude that
the allegations in paragraph 7(n) should be dismissed.
l. Granting lower wage increases to the employees above
In paragraph 7(o), the General Counsel alleges that “the Re-
spondent has granted lower wage increases to its employees
named above in paragraph 7(n).” Unquestionably, annual merit
increases were based on the performance evaluations; however
there is no argument, or proof, that the merit pay formula was
disparately applied. In short, the General Counsel’s proof for
this allegation is dependent on finding that the evaluations of
the 26 employees named in paragraph 7(n) were unlawful.
Having concluded that the Respondent did not discriminate
against the 26 employees named in paragraph 7(n) in violation
of the Act, I conclude that paragraph 7(o) should be dismissed.

7 Fourteen of the card signers either received no evaluations, or were
terminated before the evaluation process was finalized.
m. Failing to grant wage increases to five employees
Laura Gubbins, Janet Lennox, Vicki Lobo, Kim Solsaa, and
Jennifer Vandenberg each were given an improvement required
overall rating on their respective performance evaluations. As
such, they did not receive a merit pay increase. This is alleged
to have been unlawful discrimination against them because of
their activity on behalf of the Union.
As to Solsaa, the facts do not support the complaint allega-
tion. After receiving her evaluation, Solsaa asked to speak to
Gaffney, which she did 3 weeks later. Gaffney heard what in
effect was Solsaa’s appeal, and changed the rating in several
categories, as well as her overall rating. Solsaa testified that
she in fact received a retroactive pay raise. That her rating was
changed is some evidence that the rating system was not used
to retaliate against union supporters. If discrimination was the
motive, her rating would not likely have been changed.
The General Counsel does not contend that refusing to give
merit increases to those receiving improvement required rating
is unlawful. Therefore, implicit in this allegation is the conten-
tion that these five employees were unlawfully evaluated too
low. However, the fact that a few individuals who signed union
cards received unsatisfactory performance evaluations does not
of itself prove discrimination. As noted above, there is no pat-
tern that those who signed cards were, as a group, treated dis-
parately from those who apparently did not. Thus, to find that
the allegation in this paragraph has been proved, one must look
to the individual evaluations.
Each of the five signed an authorization card, attended one or
more of the union organizational meetings. There was nothing
in their activity on behalf of the Teamsters which particularly
stands out or would suggest a motive for discriminating against
any of these five.
The allegations as to these five then are based on their re-
spective evaluations and the contention that they were objec-
tively rated too low. Again, arguments could be made that the
rater gave too low an evaluation in one or more categories.
However, it is not the Board’s function to reevaluate employ-
ees. The Board will consider the evidence to determine if the
evaluation is patently unreasonable, for such tends to be some
proof that the true motive was the employer’s antiunion ani-
mus. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th
Cir. 1966). Although each might have been rated higher, I
cannot conclude that any of these evaluations was patently
unreasonable.
For instance, Lomax received improvement required in just
three categories, yet had an overall improvement required.
Thus her overall rating might have been better, but to so con-
clude would mean judging the relative weight to be given a
particular category. Gubbins, Vandenberg, and Lobo had more
improvement required entries than Lomax and their evaluations
were not internally inconsistent. The General Counsel contends
that Lobo should have been rated higher because in February
the year before, she received a commendation for helping a
non-English speaking guest. Though her action reflected well

STAR TREK: THE EXPERIENCE 261
on the Respondent, a single event one year previously does not
tend to prove that her evaluation was discriminatory.
In short, I conclude that the General Counsel failed to estab-
lish that Gubbins, Lennox, Lobo, Solsaa, or Vandenberg were
discriminated against with regard to their performance reviews.
It follows that the Respondent not violate the Act by denying
them merit increases.
n. Placing Gubbins, Lennox, Lobo, Solssa, and Vandenberg on
60-day reevaluation plans
Consistent with the Respondent’s performance review policy
(about which there is no complaint) employees receiving an
overall rating of improvement required must submit to a 60-
day action plan after which the employee is reevaluated. Inas-
much as I have concluded that the evaluations of these five
employees were not discriminatory, I conclude that requiring
them to submit to an action plan and to be reevaluated at the
end of 60 days was not unlawful. (Presumably, Solssa did not
undergo the action plan and reevaluation.)
o. The discharges of John Stepp and Nick Prvulov
John Stepp and Nick Prvulov were both reasonably active on
behalf of the Teamsters, passing out authorization cards and
attending meetings. And their activity was known. For in-
stance, one day on leaving the facility, Prvulov emptied his
pack for inspection and there were many authorization cards,
which event was observed by a supervisor.
In December 1998 both Stepp and Prvulov were injured
while working and until their terminations in April 1999, they
were on workmen’s compensation administrative leave. In
April, Stepp received a letter from the Respondent (Prvulov did
not pick up his registered letter from the post office) which
stated that due to the fact he had been off work for l6 weeks, he
was being terminated.
The Respondent contends that the terminations of Stepp and
Prvulov were not motivated by their union activity, but were
the result of a consistent companywide policy to terminate any-
one who had been off work for l6 weeks within a rolling 12-
month period.
Prior to January 1999, the Respondent’s policy in this regard
had been to terminate employees after being off work for 26
weeks. Then during a meeting of senior human resources per-
sonnel in January, it was determined to reduce the time to 16
weeks. This was after the first election (at which the Teamsters
received a majority of votes counted, and but for the action of
the Board agent might have been certified) and before the sec-
ond. The policy change was effective March 1. The second
election was March 4 but Stepp and Prvulov were not affected
until April.
The General Counsel argues that the change in policy must
necessarily have been conceived in order to “quickly terminate
pro-Teamster employees,” presumably meaning Stepp and
Prvulov, since they were the only two card signers affected by
this change in policy. The problem with this argument is two
fold. First, when the new policy was agreed on at the manag-
ers’ meeting in January, there is no evidence that the Respon-
dent had any way of knowing how much longer Stepp or Prvu-
lov would be on administrative leave. At the time each had
been off less than 4 weeks. Second, if, in fact, the Respondent
sought to terminate Stepp and Prvulov by changing its adminis-
trative leave policy, it would have made the new term suffi-
ciently short so as to insure that Stepp and Prvulov would not
be eligible to vote in the second election. They both were eli-
gible and voted.
Changing an administrative policy which could affect
whether bargaining unit employees might be terminated, during
an ongoing organizational campaign is certainly suspicious.
Nevertheless, an employer has the right to do so, so long as
such changes are not motivated by antiunion considerations. In
this case, there is no direct evidence of an unlawful motive, and
some evidence that the policy change was based on business
considerations. Reducing administrative leave from 26 to 16
weeks is not patently unreasonable. And the policy change was
companywide, not just affecting STTE employees. To con-
clude that the policy change here was violative of the Act
(which would be necessary in order to find a violation with
regard to the Stepp and Prvulov terminations) would be to con-
clude that a company cannot make policy changes during ongo-
ing union campaigns regardless of motive. I reject such a con-
clusion. Indeed, the General Counsel does not argue that
changing the policy was per se a violation—only that its effect
caused the termination of two union activists and for this reason
must have been implemented with a discriminatory motive.
Though finding that Stepp and Prvulov were known support-
ers of the Teamsters and gave testimony in Case 28–CA–
25592, I conclude that their terminations were based on the
Respondent’s lawful change administrative leave policy and
were not violative of Section 8(a)(3) or (4) of the Act.
4. Report on objections
The Teamsters filed 34 objections to the results of the second
election held on March 4, many of which track allegations in
the consolidated complaint and some of which do not. The
Regional Director entered an “Order Consolidating cases, Di-
recting Hearing on Objection and Challenged Ballots.” At the
hearing, counsel for the Teamsters withdrew those objections
which were not also alleged to be unfair labor practices. Thus
the objections issue is whether the unfair labor practices found
are sufficient to set aside the second election. I conclude they
are.
Although the complaint alleges numerous unfair labor prac-
tices which I find did not occur, those which are found are suf-
ficient to conclude that the second election was not conducted
in an atmosphere free of coercion. Accordingly, I conclude
that the results of the second election should be set aside and a
third election ordered.
No specific evidence was submitted with regard to the chal-
lenges. Leads were challenged, as were individuals who were
no longer employed and were therefore not on the eligibility
list. Since I conclude that the election should be set aside, the
challenged ballot issues are moot.
5. Bargaining order
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Supreme Court ruled on the propriety of the Board entering a
bargaining order where the majority of bargaining unit employ-
ees had signed authorization cards and the employer had com-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
mitted unfair labor practices. The Court considered three types
of situations: (1) cases which involve such outrageous and per-
vasive unfair labor practices that traditional remedies would be
insufficient to cease the effects of that activity; (2) cases where
the unfair labor practices are less extraordinary, yet have the
tendency to undermine the union’s majority and impede the
election process; and, (3) where the unfair labor practices are
minor and insufficient to support a bargaining order. In the
first two categories of cases, the Court held that, on balance, a
bargaining order would be the appropriate remedy, but not in
the third. This is the third type of case.
I conclude that at all times material, and especially from and
after the first election on December 14, the Teamsters had des-
ignations of representation from a majority of the bargaining
unit—52 cards of 96, the number of valid votes cast in the first
election plus challenges.
The Respondent contends that many of the authorization
cards were obtained by fraud and therefore should not be
counted; however, counsel offered, at best, limited support for
this assertion. Each card received in evidence, I conclude, was
a reliable indicator of the signatory’s desire to be represented
by the Teamsters, notwithstanding that some employees might
also have been told that the card could be used for a showing of
interest. The clear language on the cards designates the Team-
sters as the employee’s bargaining agent. I conclude that any
testimony that an employee was told the sole purpose of the
card was to get an election was ambiguous and not sufficient to
reject a card. As the Supreme Court noted in Gissel, employees
are bound by the clear language of what they sign. Only in the
strongest cases will a card with the language of the cards here
be set aside because of what the solicitor said.
The Respondent also contends that the actor/performer bar-
gaining unit exceeded 100, and therefore, presumably, the
Teamsters did not have majority representation as demonstrated
by authorization cards. Since the only record evidence shows
that the bargaining unit was less than 100, I conclude that in
fact the Teamsters had a majority of authorization cards. The
Respondent had the burden of proving that the unit was larger
than 100 and it failed to do so. The assertion of counsel is not
sufficient proof.
Nevertheless, I conclude that this case falls into the third
category described by the Supreme Court. The unfair labor
practices found are not “hallmark” violations. For instance, the
discharge of Jordan was predicated on a reasonable interpreta-
tion of his rights under Weingarten. At most the unfair labor
practices found represent “stepping over the line” during a con-
tested organizational campaign. They are not sufficient to jus-
tify other than the traditional remedy and ordering a rerun elec-
tion. Pyramid Management Group, 318 NLRB 607 (1995),
where the unfair labor practices found, including 2 discharges
in a unit of 69 employees, were deemed insufficient to order
bargaining.
Accordingly, I conclude that the Section 7 rights of employ-
ees will be protected here by ordering a notice posting followed
by a rerun election.
IV. REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including offering
Tania Lonkouski and Tracy Jordan reinstatement to their for-
mer jobs, or if those jobs no longer exists, to a substantially
equivalent position of employment, and make them whole for
any loss of earnings and other benefits they may have suffered,
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 election held on March 4, 1999, will be set aside and
Case 28–RC–5692 remanded to the Regional Director for Re-
gion 28 to conduct a rerun election at an appropriate time.
[Recommended Order omitted from publication.]