Park 'N Fly, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 16 132 Park ‘N Fly, Inc. and International Brotherhood of Teamsters, Local 120. Cases 18–CA–17441 and 18–CA–17511 January 31, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On July 26, 2005, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The General Counsel also filed cross-exceptions and a supporting brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Decision and Or- der. The Respondent provides parking and shuttle services for airline passengers. Some of the Respondent’s em- ployees contacted the Union in June 2004.3 On July 13, the Union filed a petition for representation of all full- and regular part-time cashiers, shuttle drivers, mechanics, and dispatchers employed by the Respondent at its Bloomington, Minnesota facility. The parties agreed to hold a secret ballot election on August 24, but the Union withdrew its petition on August 23. A representation election was not held. We adopt the judge’s findings that the Respondent vio- lated Section 8(a)(1) by: Manager Daryl Anderstrom’s coercive interrogation of driver Robert Wadsworth; Su- pervisor Elaine Pessek’s coercive interrogation of Wadsworth and her threat of stricter enforcement of work rules;4 Pessek’s coercive interrogation of driver 1 There are no exceptions to the judge’s dismissal of the complaint allegation that the Respondent threatened employees that if the Union were voted in, bargaining would begin at zero. 2 The Respondent has excepted to some of the judge's credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In addition, the Respondent asserts that some of the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satis- fied that the Respondent’s contentions are without merit. 3 All dates are 2004 unless otherwise indicated. 4 In finding that Pessek threatened stricter enforcement of the rules, we do not rely on her statement to Wadsworth that employees could be Vince;5 Pessek’s coercive interrogation of driver Alvin Filipek; and Pessek’s threat that the Respondent would go broke if the Union came in.6 We also adopt the judge’s finding that the Respondent violated Section 8(a)(1) by soliciting grievances and promising to remedy them. We reverse; however, the judge’s findings that the Respondent created the impression that employees’ union activities were under surveillance and threatened employees that attempts to unionize would be futile by stating that the Respondent’s owner would not “go for a union” and that the Union would not “do the employees any good.” We also reverse the judge’s findings that the Respondent unlawfully discharged employee Dan Kassera, and unlawfully placed employee Troy Kirchner on 90-day probation, initially denied his re- quest for a leave of absence without loss of benefits, and issued a warning to him. 1. We adopt the judge’s dismissal of the complaint al- legation that Pessek’s statement to Kassera that the Re- spondent did not need a “damn union” and that he was nothing but a “damn troublemaker” violated Section 8(a)(1).7 As the judge noted, the statement that the Re- spondent did not need a “damn union” does not, standing alone, constitute a threat. Trailmobile Trailer, LLC, 343 NLRB 95 (2004) (words of disparagement alone con- cerning a union are insufficient for finding a violation of Sec. 8(a)(1)). We further agree with the judge that Pessek’s calling Kassera a “damn troublemaker” was not a threat of dis- charge or otherwise an independent violation of the Act. As was stated in Comcast Cablevision, 313 NLRB 220, 235, 253 (1993), enfd. mem. 48 F.3d 562 (D.C. Cir. 1995) (employer did not violate the Act by calling union supporters “troublemakers” in response to statement that people had changed since union activity started): [T]here is no authority for the proposition that the use of the word troublemaker(s) is a per se violation of Sec- tion 8(a)(1). . . . The expression of an opinion is pro- fired for having a pop can in their van, as such reliance is unnecessary, cumulative, and would not materially affect the remedy. 5 Member Schaumber finds it unnecessary to pass on the judge’s con- clusion that Pessek’s questioning of Vince was unlawful as such a finding would be cumulative and would not materially affect the remedy. 6 Member Schaumber dissents from this finding of a violation of the Act, infra. 7 Member Liebman would find that Pessek’s statement that Kassera was a “damn troublemaker” violated Sec. 8(a)(1) because in the context of the surrounding circumstances, the statement equated union activity with causing trouble and indicated that employees who engage in union activities are out of favor with the Respondent. See, e.g., U. S. Steel Corp., 279 NLRB 16 fn. 1 (1986); Perth Amboy Hospital, 279 NLRB 52 fn. 2 (1986). PARK ‘N FLY, INC. 133 tected by Section 8(c) of the Act, as long as it” contains no threat of reprisal or force or promise of benefit.” Because no threat was proven here, we find no violation of Section 8(a)(1). Id. The cases cited by our dissenting colleague make it clear that the designation of “troublemaker” is unlawful only if the context in which it is uttered is unlawful. In the instant case, the context in which the remark was made, indeed in the same conversation, the Respondent said that there was no need for a “damn union.” That remark was lawful, even in our colleagues’ view. Thus, the context of the word “troublemaker” was not unlawful. 2. The judge found that Supervisor Elaine Pessek vio- lated Section 8(a)(1) by asking employee Alvin Filipek whether he had spoken with a “union guy” and telling him that she knew he had because another employee, Dan McCauly, saw him speaking with a union represen- tative and reported it to her. As noted above, we adopt the judge’s finding that Pessek’s questioning of Filipek was an unlawful interrogation. We reverse; however, the judge’s finding that Pessek’s statements also unlawfully created an impression of surveillance. The Board’s “test for determining whether an em- ployer has created an impression of surveillance is whether the employee would reasonably assume from the statement that their union activities had been placed un- der surveillance.” Register Guard, 344 NLRB 1142, 1145 (2005), quoting Flexsteel Industries, 311 NLRB 257 (1993). Pessek’s statement made clear that she learned of Filipek’s union activity from another em- ployee and not as a result of any employer surveillance. Accordingly, the statement was not coercive. See Regis- ter Guard, supra. We recognize that Pessek’s statement did not take place in an atmosphere entirely free of unlawful conduct. As we have found, in the same conversation, Pessek unlawfully interrogated Filipek about his union activity. Even if the statement is viewed in light of the coercive interrogation, it does not establish an impression of sur- veillance because the statement clearly indicated that McCauley was Pessek’s source. Cf. SKD Jonesville Di- vision L.P., 340 NLRB 101, 102 (2003) (supervisor’s statement that he heard that employee was going to or- ganize, during conversation that included an unlawful threat of retaliation, did not establish an unlawful im- pression of surveillance).8 8 On the facts here, Member Liebman concurs in reversing the judge’s finding that the Respondent created an impression that employ- ees’ union activities were under surveillance. Supervisor Pessek told employee Filipek that another employee, McCauly, had reported Fili- pek’s meeting with a union representative. Filipek, in turn, knew that McCauly had seen the union representative when McCauly went to 3. The judge found that, later the same day, Pessek violated Section 8(a)(1) by making three statements, viz that the Respondent would probably go broke if the Un- ion came in, that the Union would not do employees any good, and that the Respondent’s owner would not “go for a union in there.” Chairman Battista and Member Liebman agree with the judge that Pessek’s statement that the Respondent would probably go broke was unlawful. In context, the statement referred to the Respondent’s going broke as a consequence of unionization. A reasonable employee would recognize that “going broke” leads to closure. Thus, the statement was a threat of closure, made without substantive support for a mere economic prediction. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). We also agree with the judge’s finding that the state- ment, although not alleged in the complaint, is properly found to be a violation of the Act. “It is well settled that the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.” Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Here, the complaint alleges, inter alia, that Pessek violated Section 8(a)(1) by stating that employees would get less money if the Union came in and that the Respondent’s owner would not go for a un- ion. These statements were made in the same conversa- tion as the statement that the Respondent would probably go broke. The common theme of the conversation was antiunion in nature. In view of this common theme, and the fact that all statements were part of the same conver- sation, we conclude that the violation found was closely connected to the subject matter of the complaint. We also find that the issue was fully and fairly liti- gated. At the hearing, there was no objection to Filipek’s testimony regarding Pessek’s statement and the Respon- dent had the opportunity to cross-examine him. More- over, Pessek testified at the hearing after Filipek, and the Respondent had full opportunity to question her about this statement as well as the statements specifically al- leged in the complaint, but chose not to do so. We there- fore find that the allegation was fully and fairly litigated Filipek’s house to drop off a lawnmower. Even properly considering Pessek’s other coercive behavior, on this record there was no reason- able basis for Filipek to believe that McCauly’s observation of the union representative was not coincidental or that his report to Pessek was not voluntary. Thus, an employee in Filipek’s situation would not reasonably assume from Pessek’s statement that the Respondent had placed his union activities under surveillance. Member Liebman does not rely on the decisions cited by her colleagues, from which she dis- sented, but finds them factually distinguishable in any case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134 and that the Respondent was not denied due process. See Golden State Foods Corp., 340 NLRB 382 (2003).9 Chairman Battista and Member Schaumber reverse, however, the judge’s finding that Pessek’s statement that the Union would not do the employees any good violated Section 8(a)(1). This was a lawful statement of opinion protected by the free speech provisions of Section 8(c) of the Act. Trailmobile Trailer, LLC, above (words of dis- paragement alone concerning a union are insufficient for finding a violation of Sec. 8(a)(1)). The statement did not indicate that the Respondent would refuse to deal with the Union or that it would refuse to give employees more than they received without union representation. Accordingly, the statement did not violate Section 8(a)(1). We also reverse the judge’s finding that Pessek violated Section 8(a)(1) by stating that the Respondent’s owner would not go for a union.10 While the statement indicated that the Respondent opposes unionization, it “did not state 9 Member Schaumber finds that this unalleged violation was not fully and fairly litigated. As relevant here, the complaint alleged that Pessek made two unlawful statements: that employees would get less money and that the owner would not go for a union. As noted, infra, the Board has not found those statements to be unlawful. The statement that the Respondent would go broke is a different statement, and was not alleged in the complaint. Instead, the General Counsel moved to amend the complaint to include a reference to the statement in his posthearing brief, after each side had rested its case and the Respondent had no opportunity to present evidence or cross-examine witnesses. Member Schaumber would not find this unalleged statement to be closely related simply because it was made during the same conversa- tion. For these reasons, he does not adopt this unfair labor practice finding. 10 In finding this violation, the judge relied on Commercial Erectors, Inc., 342 NLRB 940, 942 fn. 4 (2004). The case is distinguishable. There, the Board found threats of futility in a supervisor’s statements to applicants to “forget” about organizing and his prediction that the com- pany “will not go union.” The statement that employees should “forget” about the union implies that unionization efforts are futile. The statement that the Company would not go for a union simply indicates that the company opposes unionization. Further, the statements in that case were made during the hiring process and were coupled with a “pointblank” refusal to accept union referrals. No facts of this character are present here. Rather, Pessek was merely stating her personal opinion. Member Schaumber participated in Commercial Erectors, but did not find the threat of futility discussed above. He agrees, however, that the case is distinguishable. In response to the dissent’s contention that Pessek’s statements should be viewed as unlawful because they were made in the context of an unlawful threat of plant closure and an unlawful interrogation, Mem- ber Schaumber further notes that, as discussed infra, he does not find unlawful the threat of plant closure referred to by the dissent. Although Chairman Battista agrees that Pessek uttered an unlawful threat, that does not mean that employee efforts to unionize are futile and that employees should therefore “forget” the Union. Although Chairman Battista and Member Schaumber agree that Pessek coercively interrogated Filipek, that questioning was during a separate conversation than the alleged threat of futility. In these cir- cumstances, they do not find that a coercive context has been estab- lished. or imply that the Respondent would ensure its nonunion status through unlawful means.” Winkle Bus Co., 347 NLRB 1203, 1205 (2006). See Weldon, Williams & Lick, 348 NLRB 822, 825–826 (2006) (supervisor’s statement that “they are not going to let that [unionization] happen. No way” was not an unlawful threat of futility); Ready Mix, Inc., 337 NLRB 1189, 1190–1191 (2002) (employer lawfully stated that it was not union and had no plans to go union). Under these circumstances, we find that this com- ment did not constitute a threat of futility and was not oth- erwise coercive.11 4. In mid-October, the Respondent discharged Dan Kas- sera and placed Troy Kirchner on 90-day probation after concluding that the men had sexually harassed dispatcher Pessek. The judge found that the Respondent’s actions were motivated by Kassera’s and Kirchner’s union activi- ties, and thus violated Section 8(a)(3) and (1). We dis- agree. Contrary to the judge, we find that the Respondent showed it would have imposed the same discipline even in the absence of the employees’ union activity. In May or June, Kassera and Kirchner contacted the Union and met with a union representative to discuss organizing the Re- spondent’s employees. Kassera and Kirchner, along with others, distributed union literature and solicited authoriza- tion cards. By late June or early July, the Respondent was aware that Kirchner and Kassera were union supporters. On August 23, the Union withdrew its petition for a repre- sentation election. On September 22, dispatcher Elaine Pessek showed Manager Daryl Anderstrom an envelope that she had re- ceived at her home. The envelope contained a Playboy centerfold and a note which read: TO THE WICKED WITCH: DON’T YOU WISH YOU LOOKED LIKE THIS YOU UGLY BEAST THE DRIVERS 11 Member Liebman dissents and would find that taken together, and in context, Pessek’s statements that the Respondent’s owner would “not go for a union” and that the Union would not do the employees any good would reasonably be interpreted by an employee to mean that the Respondent would not tolerate a Union, regardless of the employees’ wishes. In her view, the judge appropriately relied on Commercial Erectors, Inc., 342 NLRB 940, 942 fn. 4 (2004), to find a violation of Sec. 8(a)(1) here. The majority unpersuasively distinguishes Commer- cial Erectors on the ground that it involved unlawful refusals to hire. Here, too, the statements were made in a coercive context, including an unlawful threat of plant closure and an unlawful interrogation. Contrary to the majority’s view, this case is not analogous to cases involving an employer’s simple disparagement of a union, see Trailmo- bile Trailer, supra at 95, or cases where the employer merely states, in response to employee questions, that it does not currently recognize a union and has no plans to do so, see Ready Mix, Inc., 337 NLRB 1189, 1190–1191 (2002). The clear, and unlawful, message of Pessek’s statements was that supporting the union would be futile. PARK ‘N FLY, INC. 135 Pessek was very upset about receiving the mailing and told Anderstrom, “I will own [Respondent] if you don’t do something about this.” Anderstrom referred the matter to the corporate office in Atlanta, Georgia. The corporate office ordered an immediate investigation into the matter, to be conducted by its attorney.12 The Respondent’s attorney conducted his investigation on September 28 and 29. He interviewed approximately one-fourth of the Respondent’s work force at the Bloom- ington facility and gathered handwriting samples. During his interview with the Respondent’s attorney, Kassera denied sending the centerfold and note to Pessek. He explained that drivers held animosity towards Pessek because they felt she issued excessive discipline and treated the drivers poorly. Although the judge did not note it in her decision, Kassera admitted that he referred to Pessek as “Godzilla” to other employees. He also stated that he was not surprised that someone sent her the mailing because of her poor relations with most of the night-shift drivers, and that he thought it was ridiculous for Pessek to be making such a “big deal out of it.” During his interview, Kirchner denied ever hearing other employees call Pessek a “bitch, witch, or beast,” and denied ever referring to her in such a manner him- self. He did state that he heard Kassera refer to Pessek as Godzilla. Kirchner also denied sending Pessek the cen- terfold mailing, or knowing who did it, and he provided a handwriting sample. Employee Bruce Swanson told the Respondent’s attor- ney that he had heard Kassera and Kirchner refer to Pessek as “the witch” and “the bitch.” He also told the Respondent’s attorney that Kassera and Kirchner were upset about the security cameras in the vans and were afraid the Company was going to spy on them. Swanson said that Kassera told him, “I guess they’ll be able to see Troy and me looking at our Playboys.” Swanson also told the Respondent’s attorney that driver Jim Himmer- ick, who the Respondent also suspected was a union sup- porter, referred to Pessek as bitch and witch, but to a lesser extent than Kassera and Kirchner. Alvin Filipek told the Respondent’s attorney that Kas- sera called Pessek “Godzilla” when speaking to him. Filipek also told the Respondent that Kassera and Kirchner were the employees who initially contacted the Union and began the organizing effort at the facility. On October 13, the Respondent’s attorney reported that, although the evidence was not conclusive, “it would not be unreasonable to conclude that Kassera and Kirchner were involved to one extent or another in send- 12 Apparently Anderstrom interpreted Pessek’s statement as a threat of a lawsuit. ing the offensive letter to [Pessek].” He based this con- clusion on the fact that Kassera and Kirchner referred to Pessek in a “fashion similar to the written terms con- tained in the offensive note,” and that Kassera made ref- erence on occasion to looking at Playboy centerfolds while at work. The attorney also concluded that Kas- sera’s references to Pessek as “Godzilla,” “bitch,” and “witch” were sufficient to create a hostile work environ- ment, and confirmed the existence of a strong antipathy towards her. The attorney concluded that Kirchner lied in his interview when he denied hearing other employees call Pessek a witch, bitch, or beast or that he had never referred to her in that manner. Finally, the attorney con- cluded that use of such demeaning language was likely to continue. Based on the attorney’s report, the Respondent, through its corporate office, determined that Kassera should be discharged and Kirchner placed on 90-day probation for violating the “Company’s Sexual and Other Harassment Policy.” The policy broadly prohibits har- assment of any kind, and emphasizes that sexual harass- ment is specifically prohibited. It mandates a prompt investigation of “all complaints of harassment,” and pro- vides that the Respondent “may discharge any employee immediately for harassment of any kind.” Anderstrom, who was not involved in either of the dis- ciplinary decisions, used language provided to him by the corporate office to prepare the disciplinary notices. Kassera was discharged on October 15. His termination notice read, in pertinent part: During a recent Company investigation you admitted to referring to a fellow employee in a derogatory manner when speaking with other employees. This admission was confirmed by more than one of your coworkers who testified that they had heard your comments re- garding the same employee. Due to such language, and evidence of your engagements in other acts, we have concluded that you have violated the Company’s Sex- ual Harassment Policy . . . Due to your violations of the aforementioned policies, your employment with Park ‘N Fly is terminated effective immediately. Kirchner was placed on 90-day probation on the same day. His disciplinary notice read, in pertinent part: A recent Company investigation has uncovered evi- dence that you have engaged in conduct that is in viola- tion of the Company’s Sexual and Other Harassment Policy. Your actions towards a fellow employee helped create an intimidating, offensive, or hostile work envi- ronment . . . The evidence was not conclusive enough to warrant discharge, but is serious enough to warrant DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136 placing you on an immediate ninety (90) day probation period. Himmerick, who was found to be less culpable than either Kassera or Kirchner, received a verbal reprimand. That dis- cipline is not alleged as a violation of the Act. The judge found that the true motivation for Respon- dent’s disciplinary actions against Kassera and Kirchner was their union activities, and that the Respondent failed to establish that it would have taken the same action in the absence of those activities. We disagree. To satisfy his threshold burden of proof under the Board’s decision in Wright Line,13 the General Counsel must establish that Kassera’s and Kirchner’s union activity was a substantial or motivating factor in the Respondent’s adverse employment actions. Manno Electric, 321 NLRB 278, 281 (1996). If the General Counsel makes the re- quired initial showing, the burden then shifts to the em- ployer to prove, as an affirmative defense, that it would have taken the same action even in the absence of Kas- sera’s and Kirchner’s union activity. Id. at 280 fn. 12, 281. Assuming arguendo that the General Counsel met his burden here of showing that Kassera’s and Kirchner’s union activities were a motivating factor in their disci- plines, we find nevertheless that the Respondent met its rebuttal burden of establishing that it would have taken the same actions against Kassera and Kirchner even in the absence of those activities. Employers have a legitimate interest in preventing workplace sexual harassment and an obligation to respond when such incidents occur. St. Pete Times Forum, 342 NLRB 578, 579 (2004), enfd. in part and remanded 411 F.3d 212 (D.C. Cir. 2005).14 Consistent with its sexual harassment policy, the Respondent thoroughly investi- gated Pessek’s complaint. That investigation disclosed substantial evidence that Kassera and Kirchner had sexu- ally harassed Pessek. Based on that evidence, we find that the Respondent reasonably believed that Kassera and Kirchner sent the centerfold to Pessek.15 When imposing 13 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 14 The Board rejected the employer’s Title VII liability defense in St Pete Times Forum, supra. In that case, the employer’s director of hu- man resources admitted that she did not believe that the discharged employee sexually harassed another individual by calling her a “Yan- kee bitch.” By contrast, in the present case, there is no such admission by the Respondent regarding its opinion as to the nature of the allega- tion. Indeed, given the prompt and thorough investigation into the allegation, the record supports the finding that the Respondent took the allegation very seriously and was sincerely concerned about liability. 15 The judge found that there was no credible evidence that the em- ployees sent the centerfold, and asserts that the Respondent’s attorney characterized the evidence as “insufficient.” In fact, the attorney con- discipline, the Respondent carefully considered the rela- tive culpability of those involved. While Kassera was dis- charged, Kirchner was only placed on 90-day probation, and suspected union supporter Himmerick, whose disci- pline was not challenged, received a verbal reprimand. The discipline imposed is also consistent with the Respon- dent’s sexual harassment policy, which authorizes disci- pline up to discharge. There is no evidence that the Re- spondent has failed to discipline employees who engaged in similar misconduct. For these reasons, we find that the Respondent has established that it would have imposed the same discipline in the absence of the employees’ union activity. In finding the discipline unlawful, the judge cited the Respondent’s failure to investigate an earlier incident in which a picture of Adolf Hitler with Pessek’s name writ- ten on it was anonymously posted in the break room. We disagree with the judge’s conclusion that the Respon- dent’s lack of action in this matter is evidence of dispa- rate treatment. As noted above, the Respondent’s sexual harassment policy only calls for an investigation of “complaints of harassment.” Pessek did not ask for an investigation into the “Hitler” poster. Instead she told Anderstrom that she would “let it go.” Because the cen- terfold mailing here involved sexual harassment, and because in contrast to the Hitler poster, Pessek demanded that the Respondent “do something about this,” the two incidents are distinguishable and do not establish evi- dence of disparate treatment. See Krystal Enterprises Inc., 345 NLRB 227, 228–229 (2005) (no disparate treat- ment where respondent investigated sexual harassment when an employee complained, but did not investigate other incidents when there was no complaint).16 The judge also found that the investigation was flawed because the Respondent interviewed “only” a quarter of the workplace and took statements from “only” four em- ployees, including Kassera and Kirchner. Again, we dis- agree. The Respondent’s investigation was conducted by the Respondent’s attorney over 2 days, and included get- ting handwriting samples and interviewing a substantial cluded that it would not be unreasonable to conclude that they were involved, but that the evidence is “insufficient to support this conclu- sion with any degree of certainty.” In any event, in assessing the Re- spondent’s disciplining of the two employees, the relevant question is whether the Respondent was motivated by a genuine belief that they were guilty. We find that it was. In light of our disposition of this case, we do not reach the judge’s further finding that Kassera’s and Kirchner’s use of the terms Godzilla, bitch, and witch were in reference to Pessek’s management style and thus protected concerted activity. 16 Member Liebman dissented in Krystal Enterprises, above at 235- 236, and concluded that there was disparate treatment. Here, however, she agrees with the majority that the Respondent did not engage in disparate treatment. PARK ‘N FLY, INC. 137 percentage of the work force. Under these circumstances, we find that the record does not support the judge’s con- clusion that the Respondent failed to conduct a meaning- ful investigation. See Washington Fruit & Produce Co., 343 NLRB 1215, 1220–1221 (2004) (employer lawfully discharged a leading union adherent for violating work rules after the employer investigated incident, including getting statements from three supervisors and six em- ployees, and reasonably concluded that the employee deliberately violated the work rule).17 In any event, the investigation was not so flawed as to suggest that it was carried out for pretextual reasons. For all of the forgoing reasons, we shall dismiss these complaint allegations. 5. The judge found that the Respondent violated Sec- tion 8(a)(3) and (1) by initially denying Kirchner’s re- quest for a leave of absence without loss of benefits. For the following reasons, we reverse the judge’s finding. In December, Kirchner requested a leave of absence for early January through mid-April 2005 in order to work at H & R Block preparing tax returns. Kirchner had been granted similar requests during previous tax seasons and retained his full-time status without loss of benefits. During the summer of 2004, however, Anderstrom asked Respondent’s vice president of operations, Brett Bode- nan, whether employees who leave for a substantial pe- riod of time should retain all of their benefits. Bodenan responded that full-time employees who leave for more than 30 days should be placed on standby status, with no accrual of benefits. When Kirchner requested a leave of absence for the 2005 tax season, Assistant Manager Bruce Prahm responded that he would “probably” have to go to standby status, consistent with the Respondent’s policy. Bodenan subsequently reconsidered and decided that Kirchner should be allowed to take his leave without loss of benefits. It would appear from the record that Kirchner’s request was granted before he commenced his leave, and it is clear that he was not placed on standby status and did not suffer any loss of benefits. The judge found that the Respondent’s initial response to Kirchner’s leave request violated Section 8(a)(3) and (1) primarily because it granted employee Lloyd Van Sickle’s leave request without requiring him to go on standby. We disagree. 17 Bourne Manor Extended Health Care Facility, 332 NLRB 72, 80– 81 (2000), cited by the judge, is distinguishable. In that case, the Board found that the respondent unlawfully terminated an employee for steal- ing, when it relied solely on the employee’s estranged husband’s alle- gations and failed to conduct any investigation into the allegations before discharging the employee. By contrast, the Respondent here carefully investigated Pessek’s complaint and disciplined employees according to its own conclusions and reasonable belief. There is no evidence that the Respondent’s initial re- sponse to Kirchner’s request was motivated by union animus. The request occurred months after the Union ceased its organizing efforts at the Respondent’s facility and after any union activity by Kirchner. There was no evidence presented to indicate that the Respondent based its decision on anything other than its policy regarding long absences by employees. Contrary to the judge, the Respondent’s treatment of Van Sickle does not establish disparate treatment. There was no evidence presented regarding Van Sickle’s union sympathies or the Respondent’s knowledge of those sympathies. Moreover, the record establishes that Kirchner and Van Sickle were both granted their requests for leave, not treated disparately as the judge found. In these circumstances, a finding that antiunion animus was a substantial or motivating factor in the Respondent’s initial response to Kirchner is unwarranted. Because we find that the General Counsel failed to meet his initial burden under Wright Line, we shall dismiss the com- plaint allegation. 6. Finally, the judge found that the Respondent vio- lated Section 8(a)(3) and (1) by issuing Kirchner a “re- medial discussion” warning on January 12, 2005, for failing to turn off the accessories in his van and parking the van in such a way that it would be difficult for the next driver to get the van out. The judge found that the warning was motivated by Kirchner’s union activity, primarily because she found no evidence that other em- ployees had been similarly disciplined. For the reasons that follow, we reverse this finding of an unfair labor practice. Even assuming, arguendo, that the General Counsel met his initial burden under Wright Line, we find that the Respondent established that it would have taken the same action even absent Kirchner’s union activity. Although no evidence was presented that Pessek had warned other drivers about parking in the wrong place, the record is replete with evidence of Pessek’s strict enforcement of rules and policies. For example, Pessek regularly issued similar warnings to drivers for such infractions as failing to turn in a gas slip with other paperwork, putting differ- ent van numbers on a gas slip and gas report, putting the wrong van number on a gas slip, failing to fill out a “Van Check Out Form,” and failing to sweep the van and roll up the seat belts. Well before the union campaign, Kirchner received a warning for leaving the radio and air conditioner on in his van at the end of his shift. The judge failed to address this evidence. Furthermore, Kirchner did not deny that he parked the van in a way that might make it difficult for the next driver to get out, but stated that it was “unavoidable.” While Kirchner ini- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138 tially denied leaving accessories turned on, he subse- quently admitted that he might have left the am-fm radio on. Thus, the record supports a finding that Pessek’s re- medial warning to Kirchner was accurate and consistent with past practice. For these reasons, we shall dismiss that complaint allegation. ORDER The National Labor Relations Board orders that the Respondent, Park ‘N Fly, Inc., Bloomington, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their un- ion activities or the union activities of other employees. (b) Threatening employees with unspecified reprisals for supporting the Union. (c) Threatening employees with stricter enforcement of work rules if the Union were selected. (d) Threatening that it might go broke if employees se- lected a union. (e) Soliciting employee grievances and promising to remedy them in order to dissuade employees from sup- porting the Union. (f) 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 after service by the Region, post at its facility in Bloomington, Minnesota, copies of the at- tached notice marked “Appendix.”18 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 18, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current and former employees employed by the Respondent at any time since June 2004. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 18 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." sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 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 Federal Labor Law and has ordered us to post and obey this notice. FEDERAL LABOR LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively interrogate you about your union activities or those of other employees. WE WILL NOT threaten you with unspecified reprisals for supporting the Union. WE WILL NOT threaten you with stricter enforcement of work rules if the Union is selected to represent you. WE WILL NOT threaten to go broke if you select a union to represent you. WE WILL NOT solicit employee grievances and promise to remedy them in order to dissuade you from supporting the Union. 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. PARK ‘N FLY, INC. Nichole L. Burgess-Peel, Esq., for the General Counsel. Clifford H. Nelson Jr., Esq., of Atlanta, Georgia, for the Re- spondent. Martin J. Costello, Esq., of St. Paul, Minnesota, for the Charg- ing Party. DECISION MARY MILLER CRACRAFT, Administrative Law Judge. This case involves various allegations that Park ‘N Fly, Inc. (Re- spondent) committed violations of Section 8(a)(1) and (3) of PARK ‘N FLY, INC. 139 the National Labor Relations Act (the Act).1 International Brotherhood of Teamsters Local 120 (the Union) initially filed an unfair labor practice charge in Case 18–CA–17441 on Octo- ber 20, 2004,2 and amended it on December 13. The Union filed the unfair labor practice charge in Case 18–CA–17511 on January 4, 2005, and amended it on February 8, 2005. An order consolidating cases, consolidated complaint, and notice of hear- ing was issued by the Regional Director for Region 18 of the National Labor Relations Board (the Board) on February 24, 2005. The trial took place in Minneapolis, Minnesota, on May 9–11, 2005. On the entire record, including my observation of the de- meanor of the witnesses,3 and after considering the briefs filed by counsel for the General Counsel, counsel for the Charging Party, and counsel for the Respondent, I make the following FINDINGS OF FACT A. Jurisdiction and Labor Organization Status Respondent is a Delaware corporation with an office and place of business at the Minneapolis-St. Paul International Air- port in Bloomington, Minnesota, where it provides parking and shuttle services for airline passengers. During calendar year 2004, Respondent derived gross annual revenue in excess of $500,000 and purchased and received goods and services val- ued in excess of $50,000 directly from points located outside the State of Minnesota. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the National Labor Relations Act. Respondent admits and I find that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. B. Background Respondent provides parking and shuttle services for airline passengers at airports throughout the United States. At its Bloomington, Minnesota facility, near the Minneapolis-St. Paul International Airport, Respondent employs full-time, part-time, and standby van drivers as well as cashiers. Since April 2002, Daryl Anderstrom has been the manager of the Bloomington operation. Anderstrom’s assistant managers are Bruce Pram and Bruce Davidson. Two full-time dispatch- ers, Elaine Pessek and Lee Majeski, complete the facility’s management team. Six nonsupervisory, part-time dispatchers are utilized for weekend work. 1 Sec. 8(a)(1) provides “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the Act].” Sec. 7 sets forth the rights of employees, including, inter alia, the right to form, join, or assist labor organizations. Sec. 8(a)(3) prohibits discrimination which encourages or discourages membership in any labor organization. 2 All dates are in 2004 unless otherwise referenced. 3 Credibility resolutions have been made based on witness de- meanor, the weight of respective evidence, established or omitted facts, apparent probability, and reasonable inferences drawn from the record as a whole. Testimony contrary to my findings has been discredited on some occasions because it was in conflict with credited testimony or documents or because it was inherently incredible and unworthy of belief. Currently, Anderstrom reports to Brett Bodenan, vice presi- dent of operations for the East Coast. Bodenan works in the cor- porate office in Atlanta, Georgia. However, until November or December, Anderstrom reported to Dennis O’Riley, former vice president of operations. Former vice president Billy Gipson, at all times material, has been a consultant to Respondent. The Bloomington facility employs about 47 full-time and part-time drivers, 10 standby drivers, and 10 cashiers (some of whom are also drivers). Drivers work one of three shifts: early morning, early afternoon, or early evening. Drivers’ starting times are staggered. Elaine Pessek, the early morning dis- patcher, works from 4 a.m. to 1 p.m., while Lee Majeski, the early afternoon dispatcher, works from 1. to 9 p.m. In June, the Union was contacted by some of Respondent’s employees. Respondent acknowledged it knew of this union activity by late June. Following execution of employee authorization cards, on July 13, the Union filed a petition for representation. The par- ties agreed to hold a secret ballot election on August 24. How- ever, no election was held because the Union withdrew the petition. On August 23, the Regional Director for Region 19 approved withdrawal of the petition. The General Counsel alleges that Respondent reacted to the union campaign by committing various actions in violation of Section 8(a)(1) and (3) of the Act. These allegations are dis- cussed seriatim. C. Alleged Independent Interference, Restraint, or Coercion 1. About mid-July Anderstrom interrogated an employee about who started the Union—consolidated complaint paragraph 5(a) Night-shift driver/cashier Robert Wadsworth, a 9-year em- ployee of Respondent’s, testified that while he and manager Daryl Anderstrom were in a waiting room at the facility, Anderstrom told Wadsworth to sit down.4 No one else was present. Anderstrom asked Wadsworth if he knew who started the Union. Anderstrom also asked Wadsworth if he knew what the Union was all about and if he knew what he was voting for. While Anderstrom agreed that he spoke to many employees about the Union, he could not recall which employees and what was said. Anderstrom recalled that the conversations were gen- erally about the importance of voting. Nevertheless, Ander- strom denied that he ever solicited employee feelings about the Union, asked employees how they would vote, or asked whether employees were engaged in union activity. Anderstrom did not specifically deny asking employees, or Wadsworth specifically, who started the Union. Because Anderstrom did not specifically deny asking who started the Union and because Wadsworth’s testimony was credible, I find that Anderstrom did ask Wadsworth if he knew who started the Union. 4 Wadsworth placed the time of this conversation as “before the vot- ing” but after the organizing started. Wadsworth believed the organiz- ing began in July (although it actually began in late May or early June). The election was scheduled for August 24. Thus, Wadsworth’s testi- mony places his conversation with Anderstrom somewhere between July 1 and August 24. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 140 Asking an employee about his knowledge of union activities may, depending on the totality of the circumstances, reasonably tend to interfere with, restrain, or coerce employees in the exer- cise of Section 7 rights. Blue Flash Express, 109 NLRB 591, 592–595 (1954); see also Michigan Roads Maintenance Co., 344 NLRB 617 (2005), citing Donaldson Bros. Ready Mix, 341 NLRB 958, 959 (2004). Although not exhaustive, the circum- stances which may be considered in evaluating the tendency to interfere are the background, the nature of the information sought, the identity of the questioner, and the place and method of the interrogation. Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985); Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984). My examination of the totality of the circumstances con- vinces me that Anderstrom’s questioning of Wadsworth rea- sonably tended to interfere with, restrain, or coerce employees in the exercise of the Section 7 right, inter alia, to form a labor organization. Anderstrom, the highest official of Respondent at the facility, requested that Wadsworth sit down for a one-on- one conversation. Anderstrom immediately asked Wadsworth who started the Union. No valid business reason was apparent for requesting this information. An employee would reasonably assume from such a question that the person who started the Union might be in trouble. Moreover, there is no evidence that Wadsworth was an open supporter of the Union. In fact, ac- cording to Anderstrom, the only open supporter of the Union was Larrys Krueger. For these reasons, based upon a prepon- derance of the credible evidence, I find that Anderstrom’s ques- tioning of Wadsworth reasonably tended to interfere with, re- strain, or coerce employees in the exercise of Section 7 rights, including the right to form a labor organization. 2. About mid-July, Pessek interrogated an employee about who started the Union, threatened the employee with unspecified reprisals for supporting the Union, and threatened the em-ployee that he could be fired for insignificant issues if theUnion were selected—consolidated complaintparagraph 5(b), (c), and (d) Driver/cashier Robert Wadsworth testified that dispatcher Elaine Pessek called him into her dispatch booth in about the last half of July or the first few weeks of August.5 Wadsworth drove his van to the booth and emerged from it carrying a pop can. Pessek stated, “When the union comes in here they can fire you for [having a pop can in your van].” At the time of the conversa- tion, Respondent’s policy was to write up employees for having beverage containers in the van. Thus, Pessek’s remark indicated more severe punishment, i.e., discharge, in the event the Union were selected to be the employees’ representative. Wadsworth rejoined, “It’s not my pop can. A customer left it.” Pessek continued, “Do you know who started [the] union?” Wadsworth said he did not. Pessek also told Wadsworth that if the Union came in, employees would have to pay union dues 5 Wadsworth testified that this conversation occurred before the vot- ing but after he knew when the election would be. The parties stipu- lated to the August 24 election date on July 21 based upon the Union’s July 13 petition for representation. Thus, Wadsworth’s testimony places the conversation roughly in the last half of July or the first few weeks of August. and the workplace would be run more strictly. Finally, Pessek told Wadsworth that the facility might close if light rail slowed traffic.6 Pessek did not refute Wadsworth’s testimony. Because Pessek did not dispute Wadsworth’s testimony, I find that Pessek made the statements attributed to her by Wadsworth, who was a credible witness. It is unlawful to threaten stricter enforcement of rules or policies because em- ployees may vote to have union representation. See, e.g., Miller Industries Towing Equipment, 342 NLRB 1074, 1084 (2004) (statement that rules would be enforced to the letter if the union came in held violative), citing Mid-Mountain Foods, 332 NLRB 229, 237–238 (2000), enfd. 269 F.3d 1075 (D.C. Cir. 2001). Thus, Pessek’s statement: that the workplace would be more strictly run if a union came in, reasonably tended to inter- fere with, restrain, or coerce employees in the exercise of their Section 7 rights. Similarly, Pessek’s threat of discharge for insignificant pol- icy infractions, such as possession of a pop can, constitutes a threat that an employee could be fired for insignificant issues if the Union were selected. Such a threat reasonably tends to in- terfere with, restrain, or coerce employees in the exercise of their Section 7 rights. See, e.g., Genesee Family Restaurant & Coney Island, 322 NLRB 219, 224 (1996), enfd. as modified, 129 F.3d 1264 (6th Cir. 1997), relied upon by General Counsel. Finally, based upon the totality of the circumstances, as set forth in Blue Flash Express, supra at 592–595, I find that Pessek’s questioning of Wadsworth about who started the Un- ion reasonably tended to interfere with, restrain, or coerce em- ployees in the exercise of their Section 7 rights. Thus, Pessek, Wadsworth’s immediate supervisor, summoned Wadsworth to her dispatch booth for a one-on-one conversation. Prior to inter- rogating him, Pessek first threatened that he could be fired for insignificant infractions if the Union came in. Pessek’s tone of voice indicated animosity toward the Union. Pessek had no legitimate business reason for wanting to know the name of the person who started the Union and her tone of voice indicated no friendliness to the employee who instigated the Union. Accord- ingly, it was reasonable for Wadsworth to assume that Pessek did not intend anything positive for an employee who started the Union. Based upon a preponderance of the credible evi- dence, I find that the totality of the circumstances warrants a finding that Respondent’s question reasonably tended to inter- fere with, restrain, or coerce employees in the exercise of their Section 7 rights. 3. About mid-July, Pessek threatened an employee that Re- spondent did not need a union and that the employee was a troublemaker—consolidated complaint paragraph 5(e) Van driver Dan Kassera testified that he encountered dis- patcher Elaine Pessek in the break room shortly after July 13, the date the petition for representation was filed by the Union. At this point, the employees were talking about union represen- tation and expected that the Union would win the election. 6 There is nothing in Wadsworth’s pretrial affidavit given to the NLRB which refers to closing of the facility. Wadsworth testified that he remembered this remark only when going through pretrial prepara- tion. The consolidated complaint does not allege a threat of closure. PARK ‘N FLY, INC. 141 Pessek angrily stated, “[W]e don’t need a damn union around here. . . . You are nothing but a damn troublemaker.” Pessek did not refute Kassera’s testimony. I credit Kassera’s testimony and find that Pessek told Kassera that Respondent did not need a “damn union” and that Kassera was nothing but a “damn troublemaker.” The General Counsel argues that characterizing Kassera as a “damn troublemaker” in the context of stating that Respondent does not need a “damn union” constitutes an unlawful threat, relying on L. C. Cassidy & Son, 272 NLRB 123 fn. 2 (1984), enfd. 745 F.2d 1059 (7th Cir. 1984). In that case, the judge found that Cassidy Sr. said that employee Turk was a trouble- maker who started the union and agitated employees. Cassidy Sr. continued that he knew Turk was waiting to get fired so he could get money from the company. Cassidy Sr. then said that Turk would get nothing because when the company fired Turk, they would ensure that they would beat Turk. Id. at 124. The Board found that the company violated Section 8(a)(1) by de- scribing Turk as a “troublemaker” who started the union and would be fired. The Order characterizes this finding as a threat to discharge because of union activity. Read literally, the Board’s finding in L C. Cassidy & Son, above at 123 fn. 2, might serve as authority for a separate find- ing that characterizing an employee as a troublemaker because he started the union constitutes an independent violation of Section 8(a)(1). However, read in the context of the order, the characterization as a “troublemaker,” is simply part of the threat of discharge. Although there is ample authority that char- acterization of a union supporter as a “troublemaker” consti- tutes evidence of animus,7 I do not find an independent 8(a)(1) violation based on characterization of Kassera as a “damn trou- blemaker” in the context of stating that Respondent does not need a “damn union.” Moreover, Pessek’s statement that Re- spondent did not need a union does not, standing alone, consti- tute a threat. 4. In about late July, Pessek interrogated an employee about employees’ union activities—consolidated complaint paragraph 5(f) Dispatcher Elaine Pessek testified that she questioned a mid- night driver, Vince, asking why none of the employees who constituted the “Employees for Justice Coalition” had signed a letter they sent to the homes of all employees. The letter con- cluded by urging employees to vote for the Union on Tuesday.8 There is no evidence that Vince was an open union supporter. General Counsel argues that Pessek’s question was clearly an attempt to determine the union sympathies of Vince and other employees, relying on Sundance Construction Manage- ment, 325 NLRB 1013 (1998) (supervisor who initiated a con- versation with employee by asking how many employees sup- ported the union violated Sec. 8(a)(1) by interrogating the em- ployee, who was not an open union advocate). 7 See, e.g., United Parcel Service, 340 NLRB 776, 777 (2003) (evi- dence of animus in characterizing employee as troublemaker; Del Rey Tortilleria, 272 NLRB 1106, 1115 fn. 21 (1984) (calling employee a troublemaker is evidence of animus). 8 This letter was typed in all capital letters. Asking an employee about his knowledge of union activities may, depending on the totality of the circumstances, reasonably tend to interfere with, restrain, or coerce employees in the exer- cise of Section 7 rights. Blue Flash Express, above at 592–595. Although not exhaustive, the circumstances which may be con- sidered in evaluating the tendency to interfere are the back- ground, the nature of the information sought, the identity of the questioner, and the place and method of the interrogation. Sunnyvale Medical Clinic, above at 1218; Rossmore House, above at 1178 fn. 20. My examination of the totality of the circumstances convinces me that Pessek’s questioning of Vince reasonably tended to inter- fere with, restrain, or coerce employees in the exercise of the Section 7 right, inter alia, to form a labor organization. Pessek, Vince’s immediate supervisor, questioned him about the employ- ees constituting a prounion employee coalition. There was no apparent valid business reason for requesting this information. There is no evidence that Vince was an open union supporter. Pessek’s question sought information about a group of prounion employees. An employee would reasonably assume from Pessek’s question that Pessek was attempting to determine the union sympathies of Vince and other employees. Based on a preponderance of the credible evidence, I find that the totality of the circumstances warrants a finding that Respondent’s question reasonably tended to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. 5. About early August, Pessek interrogated an employee about the employee’s union activities and created the impression that the employee’s union activities were under surveillance—consolidated complaint paragraph 5(g) and (h)9 Van driver Alvin Filipek testified that he spoke to dispatcher Elaine Pessek in the lunchroom in early August. She asked if Filipek had talked to a union guy and he said, “No, I did not.” Pessek accused him of lying and he said, “Okay. I have talked to a union guy.” Pessek explained that another employee, Dan McCauly, had seen Filipek talking to a union representative (identified by Filipek as Leland Johnson) and McCauly re- ported the incident to Pessek. Pessek accused Filipek of being in the Union. Pessek agreed that she asked some employees how they felt about the Union and whether it would be worth paying union dues. However, Pessek did not deny making the statements attributed to her by Filipek. An employer engages in unlawful surveillance or creates the impression of surveillance when it engages in conduct from which, under the circumstances, the employee could reasonably conclude that his protected activities are being monitored. See, e.g., Sam’s Club, 342 NLRB supra at 620, 621 (manager cre- ated impression surveillance by telling employee that he heard 9 The General Counsel moves to withdraw 5(h), “In view of the re- cord testimony regarding Pessek’s statements.” McCauly legitimately found out about Filipek visiting with Johnson. See fn. 11, p. 18 of brief. However, the Board does not require that an employer’s words to an employee reveal on their face that the employer acquired its knowl- edge of the employee’s activities by unlawful means. Sam’s Club, 342 NLRB 620 (2004); United Charter Service, 306 NLRB 150, 151 (1992). Accordingly, General Counsel’s motion is denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 142 employee had circulated a petition); Martech Medical Prod- ucts, 331 NLRB 487 fn. 4, 501 (2000) (manager’s statement that she heard there was a list circulating with 80 names clearly created the impression of monitoring employees’ activities). Pessek stated that Filipek was lying when he denied talking with a union representative and told Filipek that another em- ployee had reported that Filipek was talking with a union repre- sentative. Based on these statements, Filipek could reasonably conclude that his union activity was being monitored. More- over, based on the totality of the circumstances, I find that Pessek’s questioning of Filipek about his union sympathies constitutes an independent violation of Section 8(a)(1) as well, because it reasonably tends to interfere with, coerce, or restrain Section 7 activity. Regarding the alleged interrogation, I note that Pessek, Fili- pek’s immediate supervisor, began the one-on-one conversation in the lunchroom by asking if Filipek had talked to a union representative. When Filipek denied that he had, Pessek ac- cused Filipek of lying and reported that another employee had, in fact, seen Filipek talking to a union representative and re- ported his activity to her. The conversation was, thus, some- what adversarial. There is no evidence that Filipek had engaged in open union activity. Based on this totality of circumstances, I find that a preponderance of the credible evidence proves that Respondent’s interrogation reasonably tends to interfere with, coerce, or restrain Section 7 activity. 6. About early August, Pessek threatened an employee that employees would get less money if the Union came in and that the owner of the company would not go for the Union—consolidated complaint paragraph 5(i) Following the above conversation, van driver Filipek went out on a run and cogitated about dispatcher Elaine Pessek’s com- ments. Filipek returned to Pessek’s dispatch booth and said, “I cannot drive under these conditions any more. It’s tearing me up. I did not bring in the Union. I had nothing to do with it.” Pessek told Filipek that the Union would not do the employees any good. She said that she only had 2 years left prior to retirement and she did not want to pay union dues. She said things would not be the same and Respondent would probably go broke. She added that Respondent’s owner would not “go for a union in there.” Pessek insisted that Filipek had brought the Union in and he kept deny- ing it. Finally he broke down and cried. Kassera encountered Filipek while he was sitting on a stool outside the breakroom, sobbing. Kassera inquired what was wrong and Filipek responded that Pessek had yelled at him because of his union activity and support. Filipek told Kassera that he could not take any more. Filipek left work for the re- mainder of his shift. Filipek’s testimony is credited. I find that Pessek told Filipek that Respondent would not go for a union and the Union would not do employees any good.10 This statement constitutes a threat of futility. See, e.g., Commercial Erectors, 342 NLRB 10 There is no evidence that Pessek told Filipek that employees would earn less money if the Union represented them. Accordingly, that portion of the complaint allegation is dismissed. 940, 942 fn. 4 (2004) (prediction that company will not go un- ion constitutes a threat of futility). Although the complaint does not allege that Respondent vio- lated the Act by Pessek’s statement to Filipek that Respondent would probably go broke, General Counsel urges that Pessek’s statement that the Company would probably go broke, although not specifically alleged, should nevertheless be found a viola- tion, asserting that this issue is closely connected to the subject matter of the complaint and was fully litigated. An unpleaded but fully litigated matter may support an un- fair labor practice finding despite lack of an allegation in the complaint. Garage Management Corp., 334 NLRB 940 (2001). Generally, amendments are permitted when they are sufficiently related to existing allegations and no undue preju- dice would be visited on the respondent. See Payless Drug Stores, 313 NLRB 1220, 1220–1221 (1994). Where cross ex- amination by Respondent would not have differed had General Counsel’s evidence been directed at the additional violation sought in the motion to amend the complaint, amending the complaint does not present a violation of Respondent’s right to due process. See Free Flow Packaging v. NLRB, 566 F.2d 1124, 1131 (9th Cir. 1978) (no due-process violation when cross-examination would not have been any different if evi- dence had been directed toward additional violation). I find that the allegation herein is closely related to the subject matter of the complaint and was fully litigated. In this connection, I find that Respondent violated the Act when Pessek told Filipek that Respondent would probably go broke if the Union came in. This reasonably tended to interfere with, coerce, or restrain employees’ Section 7 activity. 7. About mid-August, O’Riley and Gipson threatened employ- ees that if the Union were voted in, the bargaining would begin from zero—consolidated complaint paragraph 5(j) Van driver Alvin Filipek testified that at an August 5 meet- ing11 at the local Hilton Hotel, Respondent showed films about how unions damage companies. According to Filipek, consult- ant Billy Gipson then told employees that if Respondent had to bargain with the Union, everything would start from zero. Fili- pek admitted on cross-examination that he did not recall any- one’s exact words because he was quite upset and in tears dur- ing the meeting due to his earlier encounter with dispatcher Elaine Pessek, as discussed above. Cashier and van driver Troy Kirchner testified that he attended the same meeting. He re- called that one of the speakers, he could not recall which one— either then-Vice President of East Coast Operations Dennis O’Riley or Gipson, said that unions are outdated. They are a bunch of mobsters. The speaker warned that during bargaining, a union may actually agree to wages lower than the employees’ current wages, because the parties “have to start from zero when [they] bargain.” Billy Gipson, who was senior vice president of Respondent from 1994 to 2004 and since then, a consultant for Respondent, testified he visited the Bloomington facility during the union campaign. He described his purpose in visiting the facility as 11 The date of the meeting was stipulated by the parties. PARK ‘N FLY, INC. 143 educational—to let employees know what they were voting for and to stress the importance of voting. Gipson also told em- ployees that Respondent did not feel that the employees needed a union. Gipson recalled employee comments after the films were shown at the Hilton on or about August 5. He character- ized employee comments as assertions that they would auto- matically get certain benefits or wages if the Union came in. In response, Gipson recalled telling employees that if the Union came in, everything was subject to negotiations. Everything was basically on the table and negotiable. Employees could have the same level of wages and benefits or they could have more or less, depending on the outcome of negotiations. Gipson specifically denied telling employees that bargaining would begin from zero or bargaining would start from scratch. Gipson did not believe that anyone else in management spoke to em- ployees about bargaining. Anderstrom corroborated Gipson’s testimony. Anderstrom recalled that Gipson told employees that everything was nego- tiable. Anderstrom did not recall that Gipson stated that bar- gaining would begin at zero. I credit the testimony of Gipson and Anderstrom. Although Filipek and Kirchner were generally credible witnesses, Filipek admitted that he was upset from the earlier incident with Pessek and Kirchner recalled negative statements about the Union, but was unable to recall the speaker. Gipson was generally truthful and demonstrated an understanding of labor law. Anderstrom’s testimony supports Gipson’s statement in detail and, absent a further showing that either Gipson or O’Riley made the state- ment that parties “have to start from zero when [they] bargain,” I find insufficient evidence to support that O’Riley or Gipson threatened employees. 8. About mid-to-late August, O’Riley and Gipson, while meet- ing with individual employees, solicited grievances and promised to remedy them—consolidated complaint paragraph 5(k) In late June, Anderstrom e-mailed O’Riley about the advent of union activity at the facility. Anderstrom noted that in con- versations with employees, three topics had been brought up: a coupon in the newspaper stating “complimentary luggage assis- tance,” cameras in the vans, and relatives no longer being al- lowed to park free. When O’Riley visited the facility in July, he addressed these three issues when he spoke at two employee meetings. By memorandum of July 29, Respondent noted a drop in tips since the “complimentary luggage assistance” newspaper ad. Respondent announced that future ads would eliminate the word “complimentary.” Troy Kirchner recalled meeting with O’Riley in the ramp of- fice. O’Riley asked Kirchner what the employees were mad about.12 Kirchner responded that employees were upset by Pessek’s treatment of them. They viewed her issuance of disci- pline as unfair. Kirchner told O’Riley that he thought a com- 12 Kirchner could not recall O’Riley’s specific words. The above tes- timony was given after he refreshed his recollection by reference to the affidavit which he gave to the Board. Prior to looking at the affidavit, Kirchner said he could not recall the specific words but the intent was to find out why the employees were unhappy or why the Union was trying to come in. pany policy requiring that drivers who accidentally picked up a competitor’s customers had to take them back to the airport rather than dropping them across the street at the competitor’s facility was bad for Respondent’s business. According to Kirchner, Respondent had no practice of inquiring into em- ployee discontent. Kirchner recalled a suggestion box in 1994 but did not know what had happened to it. Kirchner also recalled speaking with O’Riley shortly after the meeting at the Hilton Hotel on August 5. Kirchner told O’Riley about his concern regarding cameras in the vans. O’Riley told Kirchner that the Company was going to look into the matter. Dan Kassera testified that O’Riley and Gipson approached him in the break room at the ramp and asked “what the problems were, why all of a sudden the employees wanted a union.” They said they were willing to listen and willing to be reasonable. Kas- sera believed that this conversation occurred in mid-July, shortly after the petition for representation was filed. In response, Kas- sera explained that the employees liked their prior manager Lora Boley and missed her. He also told O’Riley and Gipson that dur- ing the last two summers, drivers could not turn on their air con- ditioners until they picked up customers and started to the airport. He explained that it was “murderously hot” inside the unaircondi- tioned vans, which felt like “a steam bath.” Kassera opined that such heat was difficult for many customers, as well as the drivers. Kassera also suggested that the corporate office institute a sug- gestion form in order that employees could set out their thoughts and problems. As to this idea, either O’Riley or Gipson said they would take the idea back to the corporate office. Kassera also complained that Pessek was not fair and reported that she took drivers’ tips sometimes. Both O’Riley and Gipson expressed concern about this. Gipson stated that the Company tried to have employee meetings at each terminal one or two times per year. No spe- cific dates were provided and it is undisputed that no one from the corporate office had spoken to the employees at the Bloom- ington facility for several years. Gipson testified that generally, someone from the corporate office reported to employees about policies of the Company and the status of the Company. The meetings were also for management to hear local concerns or questions from employees at each facility. Gipson recalled that he told employees that he was there to hear their concerns and to try to answer any questions they might have. Gipson recalled specific discussions with Kassera regarding problems that Kas- sera believed existed in management of the facility. Anderstrom recalled that he held an employee meeting in May 2002. At the meeting, he discussed appropriate driver behavior. The meeting ended with a question and answer period during which drivers could bring up anything they wanted. Thereafter, Anderstrom testified he conducted such meetings on a 6-month basis. Anderstrom acknowledged that sometimes there was a 5-month or 7-month hiatus between meeting dates. Anderstrom explained that he usually concluded these meetings by asking if anyone had any questions or anything to discuss. Anderstrom agreed that he did not explicitly solicit employee problems at these meetings. On August 6, Anderstrom posted a memorandum stating, in- ter alia, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 144 We want to particularly thank all of you who voiced your concerns, brought problems to our attention, and made sug- gestions to improve not only the efficiency of how we oper- ate, but most importantly, the service to our customers . . . . As we committed, we will research the individual issues that were brought to our attention and will respond personally to those individuals and we will discuss and get back to every- one on those issues and concerns that impact everyone. By letter of August 18, Frederick D. Clemente, president and CEO of Respondent, thanked employees for voicing their con- cerns and bringing problems to Respondent’s attention. The letter continued, “I want to assure you that I have been made aware of the various items and have instructed Operations to work with Daryl [Anderstrom] to resolve each of them.” In Clark Distribution Systems, 336 NLRB 747, 748 (2001), relied on by General Counsel, the Board summarized the prin- ciples regarding solicitation of grievances with a promise to remedy them as follows:13 Absent a previous practice of doing so . . . the solicitation of grievances during an organizational campaign accompanied by a promise, expressed or implied, to remedy such griev- ances violates the Act. . . . [I]t is the promise, expressed or implied, to remedy the grievances that constitutes the essence of the violation . . . . [T]he solicitation of grievances in the midst of a union campaign inherently constitutes an implied promise to remedy the grievances. Furthermore, the fact an employer’s representative does not make a commitment to specifically take corrective action does not abrogate the an- ticipation of improved conditions expectable for the employ- ees involved. . . . [T]he inference that an employer is going to remedy the same when it solicits grievances in a pre-election setting is a rebuttable one. There can be little doubt that Respondent’s actions violated these principles. As the credible evidence set forth above indi- cates, Respondent had no practice of soliciting grievances prior to the advent of the Union. No corporate managers had visited with employees for years prior to the union campaign. Manager Anderstrom’s meetings with employees, held on a more or less regular basis, included question and answer periods. There is no evidence beyond this assertion and I find, accordingly, that this evidence does not constitute evidence of a regular solicitation of employee grievances. Both testimonial and documentary evidence amply supports a finding that Respondent systemati- cally solicited employee grievances as soon as it learned there was a union campaign. Moreover, on two occasions, Respon- dent explicitly promised to remedy employee concerns. I find by a preponderance of the credible evidence that by soliciting employee grievances and both implicitly and explicitly promis- ing to remedy them, Respondent interfered with, restrained, or coerced employees in the exercise of their Section 7 rights. 13 In doing so, the Board quoted the language set forth by Judge Wil- liam N. Cates in Capitol EMI Music, 311 NLRB 997, 1007 (1993), enfd. 23 F.3d 399 (4th Cir. 1994). C. Termination of Dan Kassera 1. Respondent’s disciplinary policy Preliminarily, it should be noted that Respondent maintains a written progressive disciplinary policy. The first enumerated step, a “remedial discussion,” is limited to a “minor offense.” A “re- medial discussion” is noted in the employee’s personnel file. The second step for a “minor offense” is a “verbal reprimand.” A “verbal reprimand” is also noted in the employee’s personnel file. A “written reprimand” is issued for “misconduct” and may be accompanied by “disciplinary time off without pay.” Finally, an “employee will be discharged as the result of a serious of- fense or upon receipt of three (3) written warnings within a one (1) year period.” Respondent’s policies and procedures manual explains that immediate discharge “may” follow a single instance of 1 of 23 enumerated offenses, including “immoral, indecent, or violent misconduct while on duty, while on [Respondent’s] premises, or while in [Respondent’s] vehicle,” “off-duty misconduct harmful to [Respondent],” and “harassment of any kind of any [Respondent] employee or member of the public.” 2. Reasons relied upon for termination of Kassera The General Counsel asserts that Kassera was discharged for three reasons: his protected, concerted activity of presenting a group idea to Anderstrom for a problem-solving committee; his protected, concerted activity of complaining about disciplinary action of dispatcher Elaine Pessek; and/or his union activity. Respondent argues that Kassera was discharged because Kassera referred to dispatcher Pessek as “Godzilla” in speaking to his fellow employees. Respondent’s discharge notice to Kas- sera characterized this language as harassment, insubordination, and gross misconduct. Thus, in analyzing whether Kassera was discharged for the activity of presenting a group idea for a problem-solving com- mittee or for his union activity, mixed motives are ascribed. On the other hand, in analyzing whether Kassera was discharged for the activity of speaking to his coworkers about dispatcher Elaine Pessek’s disciplinary actions and referring to her as “Godzilla” during these conversations, the parties rely on a single set of circumstances. In cases involving dual motivation, such as the General Counsel’s assertions that Kassera was discharged for his activ- ity of presenting a group idea for a problem-solving committee and/or for his union activity, the Board employs 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, 399–403 (1983). Initially, the General Counsel must establish by a preponderance of the credible evidence that anti- union sentiment was a “motivating factor” for the discipline or discharge. This means that General Counsel must prove that the employee was engaged in protected activity, that the employer knew the employee was engaged in protected activity, and that the protected activity was a motivating reason for the em- ployer’s action. Wright Line, supra at 1090. Unlawful motiva- tion may be found based upon direct evidence of employer animus toward the protected activity. Robert Orr/Sysco Food PARK ‘N FLY, INC. 145 Services, 343 NLRB 1183, 1184 (2004). Alternatively, proof of discriminatory motivation may be based on circumstantial evi- dence, as described in Robert Orr/Sysco Food Services, supra: To support an inference of unlawful motivation, the Board looks to such factors as inconsistencies between the proffered reasons for the discipline and other actions of the employer, disparate treatment of certain employees compared to other employees with similar work records or offenses, deviations from past practice, and proximity in time of the discipline to the union activity. Embassy Vacation Resorts, 340 NLRB, 846, 848 (2003). When the General Counsel has satisfied the initial burden, the burden of persuasion shifts to Respondent to show by a preponderance of the credible evidence that it would have taken the same action even in the absence of the employee’s pro- tected activity. If Respondent advances reasons which are found to be false, an inference that the true motive is an unlaw- ful one may be warranted. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). However, Respondent’s defense does not fail simply because not all the evidence supports its defense or because some evidence tends to refute it. Merrilat Industries, 307 NLRB 1301, 1303 (1992). Ultimately, the General Counsel retains the burden of proving discrimination. Wright Line, supra at 1088 fn. 11. In cases in which the parties rely upon the same set of cir- cumstances to justify the discipline or discharge, the only issue is whether the employee lost the protection of the Act. Felix Industries, 331 NLRB 144, 146 (2000). Specifically, did Kas- sera’s use of the term “Godzilla” (and the terms “bitch” and “witch” reasonably attributed to Kassera by Respondent) to refer to Pessek, when speaking to his coworkers, caused Kas- sera to lose the protection of the Act. 3. The General Counsel’s initial burden under Wright Line a. Protected concerted activity At the time of his termination, Dan Kassera, a night-shift van driver, had been employed by Respondent for about 11 years. Kassera testified that in approximately May or June, after speaking with his coworkers, he presented Anderstrom with the idea to have a problem-solving committee at the facility. Anderstrom said, “No, absolutely not.” Kassera asked why and Anderstrom responded “Because that sounds too much like a labor union.” I find that the General Counsel has not sustained the initial burden of showing that Kassera’s activity of putting forth a suggestion that Respondent set up a problem-solving committee at the facility was a motivating factor for his discharge. Al- though the credible evidence indicates that Kassera took this action with and/or on the authority of other employees and not solely on his own behalf, Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988), there is no evidence that Respondent knew that Kassera was present- ing a group idea. The relevant testimony is as follows: A. And so then me and Troy [Kirchner] and some of the other drivers, we were feeling really frustrated. Q. So what did you do? A. I kind of got elected. We thought it would be nice if we could have a problem solving committee. . . . Where a few drivers from each shift could occasionally meet with Daryl [Anderstrom] . . . and we would actually have per- mission to make suggestions, to even have ideas that are different from his . . . and discuss the issues and problems that we were having and try to solve the problem together as a team. Q. And so did you make that suggestion? A. Yes, I did. I went to Daryl’s office . . . and I did make the suggestion to him. . . . . Q. And what did he say? A. Well . . . He allowed me to speak and give him the ideas . . . he said “No, absolutely not” and I asked him why. I said “Well, Daryl, why not work together as a team. Why can’t we have a problem solving committee” and he said “Because that sounds too much like a labor union”. The Respondent’s knowledge of the concerted nature of Kas- sera’s actions must be shown by General Counsel. Reynolds Electric, 342 NLRB 156, 157 (2004) (the issue is whether the decision maker knew of concerted activity, not whether deci- sion maker reasonably should have known). From the above testimony, I find insufficient evidence that Respondent knew Kassera was presenting a group idea. The sole plural reference in Kassera’s discussion with Anderstrom: Why can’t we have a problem solving committee, would not, in my view, alert the listener to the group genesis of the idea. Further, there is no evidence of any other presentation of the idea of a problem- solving committee by any other employee nor was it brought up at a meeting attended by employees and management. See, e.g., Consumers Power Co., 282 NLRB 130, 131–132 (1986); Every Woman’s Place, 282 NLRB 413 (1986). Accordingly, I find that General Counsel has failed to prove that Respondent had knowledge of the concerted nature of Kassera’s action. Never- theless, I credit Kassera’s testimony that Anderstrom rejected the idea as too similar to a labor union. b. Union activity Thereafter, Kassera and Troy Kirchner contacted the Union and met Union Representative Leland Johnson to discuss orga- nizing Respondent’s employees. Armed with union literature, pamphlets, and authorization cards, Kassera, Kirchner, and others gathered signatures on the authorization cards. Kassera testified that he personally solicited four or five signatures. Bloomington Manager Daryl Anderstrom recalled that he learned about union activity from employee Tom Deegan, who reported that a union representative had called on him at his home. A June 29 e-mail from Anderstrom to East Coast Vice President of Operations Brett Bodenan conveyed this knowl- edge to corporate headquarters. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 146 Through conversations with employees, Anderstrom de- duced which employees supported the Union. In late June, Anderstrom exchanged e-mails with Bodenan and Dennis O’Riley, former vice-president of operations, regarding these conversations in which he reported that Alvin Filipek, Jim Himmerick, Dan Kassera, Troy Kirchner, Bob Wadsworth, and Georgette Dietrich were supportive of the Union, although none of them was openly supportive of the Union. Anderstrom also forwarded to the corporate office a note from Assistant Man- ager Bruce Davidson reporting that Kirchner, Kassera, and Himmerick were definitely in favor of the Union. Consultant Billy Gipson agreed that he was aware that both Kassera and Kirchner were in favor of the Union. Following filing of the petition for representation on July 13, Kassera spoke with Pessek in the break room. This was the occasion, discussed infra, in which Pessek told Kassera, “We don’t need a damn union around here.” “You are nothing but a damn troublemaker.” Finally, during an investigation conducted on September 29, Filipek told Anderstrom and Respondent’s labor attorney that Kassera and Kirchner brought in the Union. Based on a preponderance of the credible evidence, I find that General Counsel has sustained the initial burden of show- ing that Kassera’s union activity was a motivating factor for his discharge. There is little dispute that Kassera engaged in union activity and that Respondent was aware that Kassera was a union sympathizer. Then in late September, Respondent learned that Kassera was one of two employees who started the union movement. His discharge followed within weeks. This timing14 as well as the specific animus expressed by Pessek against Kas- sera for his union activity, and the general animus against union activity, as discussed in the 8(a)(1) findings, provide ample evidence that antiunion sentiment was a motivating reason for Respondent’s discharge of Kassera. 4. Respondent’s rebuttal under Wright Line On September 22, Pessek came into Anderstrom’s office, closed the door, put an envelope on his desk, and began crying. She asked Anderstrom if she had done something wrong. Noting that the envelope was addressed by hand to Pessek’s home, Anderstrom opened the envelope and discovered that it contained a Playboy centerfold featuring Miss April. Anderstrom said to Pessek, “I don’t understand this. I don’t understand what the message is here.” He held the envelope upside down and a note fell out. Pessek was surprised and told Anderstrom that neither she nor her husband had seen the note. The note stated,15 TO THE WICKED WITCH: DON’T YOU WISH YOU LOOKED LIKE THIS YOU UGLY BEAST THE DRIVERS Pessek responded, “I will own [Respondent] if you don’t do something about this.” Anderstrom immediately referred the matter to the corporate office. 14 See, e.g., Trader Horn of New Jersey, 316 NLRB 194, 198 (1995); Sawyer of Napa, 300 NLRB 131, 150 (1990). 15 The entire note was typewritten in capital letters. All parties agree that during the summer, at about the same time as the union campaign, a poster of Hitler was posted in the break room. In fact, Anderstrom was told that a picture of Adolf Hitler was posted in the breakroom and that it had Pessek’s name written on it. No investigation of this matter occurred. According to Anderstrom, Pessek told him she was upset about the posting but she would “let it go.” Pessek agreed that she did not ask for an investigation of the matter. Dave Ward, cashier, observed the Hitler posting on several occasions. The last time he observed this poster, the name “Elaine” was written beneath the picture. Ward told Pessek about the posting. Driver and weekend dispatcher Bruce Swanson also spoke to Pessek about the Hitler posting around the time of the union campaign. This happened because he entered the main area and could tell Pessek, the only person there, was upset. He asked if she was okay. She seemed distraught, upset, almost livid. No investigation of the Hitler matter was conducted. Regard- ing the centerfold, Respondent’s attorney conducted an investi- gation into the matter including interviews of about one-fourth of the work force on September 28 and 29. Many of those in- terviewed were asked to provide handwriting samples for com- parison with the hand-addressed envelope. Four of those inter- viewed (Kassera, Kirchner, Swanson, and Filipek) signed writ- ten statements prepared by Respondent’s attorney. During Kassera’s interview with Anderstrom and Respon- dent’s attorney, Kassera denied sending the centerfold and note to Pessek. He voluntarily provided a handwriting sample for analysis. Kassera was asked by Respondent’s attorney why the drivers held animosity towards Pessek. Kassera explained that she issued discipline excessively and treated the drivers poorly. Kassera admitted to Respondent’s attorney that he referred to Pessek as “Godzilla” when he spoke about her to his fellow employees. Bruce Swanson, who had been with Respondent for 6 months, told Respondent’s attorney that he heard Kassera refer to Pessek as “the witch” and “the bitch.” Additionally, Swanson told the investigators that when Kassera was upset about the security cameras in the van, Swanson reassured Kassera that the cameras were not used to spy on the drivers. Kassera said to Swanson, “You mean they can’t see us when Troy and I are looking at our Playboy magazines out there.” Swanson re- sponded that was correct. Alvin Filipek was also interviewed on September 29. Filipek told Respondent’s attorney that Kassera called Pessek “God- zilla” when speaking to him about her disciplinary actions. On October 13, Respondent’s attorney reported his findings. Although he concluded that the interviews and the expert handwriting analysis failed to adduce conclusive evidence re- garding the source of the letter and centerfold, by crediting some employees and discrediting others, he noted that, “it would not be unreasonable to conclude that Kassera and Kirchner were involved to one extent or another in sending the offensive letter . . . [although] the evidence is insufficient to support this conclusion with any degree of certainty.” In any event, Respondent’s attorney concluded that because Kassera, in conversations with fellow employees, referred to Pessek as “Godzilla,” “bitch,” and “witch,” and showed no remorse at use PARK ‘N FLY, INC. 147 of these terms, there was “a strong likelihood for continuation of such demeaning language in the workplace.” Contractor Billy Gipson testified that the decision to dis- charge Kassera was made by consensus between himself, Brett Bodenan, vice president of operations, and Fred Clemente, president of Respondent. They relied on their attorney’s writ- ten report, with four supporting employee statements.16 The consensus was that given Kassera’s actions in violation of Respondent’s sexual harassment policy, a hostile working environment was created. Gipson noted that the group also relied on the lack of any remorse from Kassera. The group felt that they could not allow their employees to be treated this way so they decided to terminate Kassera. Gipson further explained: Well, the statements he continually made [such as “Godzilla,” which Kassera admitted and “beast,17 witch, bitch,” which other employees attributed to Kassera] were regarding our su- pervisor that he repeated to other people. And while there was nothing necessarily conclusive on—on some of the issues, some of the mailings, et cetera, given it was so consistent with what he admitted to, we had—we had a reasonable amount of certainty ourselves, personally, that combined with, you know, his own statements, that other actions of his probably were directed at the supervisor. . . . It [Kassera’s statement] was not one time fly-off-the-handle. It seemed to be kind of a concerted pattern, or a consistent pattern. Gipson admitted that there was no certain proof that Kassera sent the centerfold and note to Pessek. The employee handwrit- ing samples submitted during interviews with Respondent’s attorney did not yield definitive results. However, Gipson noted that Kassera admitted talking about centerfolds on a “number of occasions right around the time [of Pessek’s mailing].” Gipson further explained: It was just all consistent and seemed to give some credence to the fact that, even though we couldn’t prove it conclusively, we believed that he probably was involved in those, in mail- ing those mailings, and that combined with what he had ad- mitted himself and what others testified to or stated, we felt we had no choice but to terminate him. Although Anderstrom had made decisions to discharge three or four employees in prior situations, he was not involved in this decision. Anderstrom read a written statement from the corporate office when he discharged Kassera. Based on the above evidence, I find that Respondent has not shown that it would have discharged Kassera absent his union activity. Initially, I note that no investigation was undertaken regarding the Hitler posting. Anderstrom’s excuse—that he had never seen the Hitler posting therefore he had no duty to inves- tigate it—was illogical and I discredit it. Although characteriz- ing a supervisor as “Hitler” may not have any sexual harass- ment component, it nevertheless had as much pure harassment, insubordination, and gross misconduct as “Godzilla.” Yet, 16 These statements were from Troy Kirchner, Dan Kassera, Bruce Swanson, and Alvin Filipek. 17 Although Gipson testified that the term “beast” was attributed to Kassera by other employees, there is no evidence of this. Accordingly, this portion of his testimony is inaccurate and is disregarded. nothing was done. The record contains no explanation for dif- ferent treatment of the two incidents. Secondly, as argued by General Counsel, Respondent’s in- vestigation was flawed. I note that in investigating the center- fold mailing, Respondent interviewed only a quarter of the work force and took statements from only four employees, including the two employees who started union activity at the facility. Failure to conduct a meaningful investigation is an important indicia of discriminatory intent. Bourne Manor Ex- tended Health Care Facility, 332 NLRB 72, 81 (2000), and cases cited therein. Further, when confronted with evidence from Swanson that Kassera called Pessek “Godzilla,” bitch, and witch, Respondent did not seek to counsel Kassera about its conclusion that his language to other employees was creating a hostile working environment. Rather, Respondent assumed from Kassera’s demeanor that he “showed no remorse.” Kas- sera was never offered the opportunity to alter his language. Such action indicates that Kassera’s discharge was a foregone conclusion. In making a finding that Respondent unlawfully discharged Kassera, I am sensitive to an employer’s responsibility to address workplace harassment. See St. Pete Times Forum, 342 NLRB 578, 579 (2004), citing Adtranz ABB Daimler-Benz Transporta- tion v. NLRB, 253 F.3d 19, 27 (D.C. Cir. 2001). Nevertheless, the record leaves me unconvinced that Kassera’s discharge was mandated by Title VII of the Civil Rights Act of 1964. Moreover, to the extent Respondent relies on its conclusion that Kassera had something to do with the centerfold mailing, Respondent’s attorney notes that this is a flawed conclusion, characterizing the evidence as “insufficient” to support such a conclusion. I also note in this regard that the handwriting analy- sis was inconclusive. Accordingly, both in Respondent’s inves- tigation and on the record before me, there is no credible evi- dence that Kassera played any part in sending a Playboy center- fold to Pessek. Finally, Respondent learned on September 29 that Kassera was one of two employees who started the Union. The decision to discharge him was made about 2 weeks later. This timing supports an inference of unlawful motive. In conclusion, I find that Respondent has failed to show by a preponderance of the evidence that it would have discharged Kassera absent his un- ion activity. Based on a preponderance of the credible evidence, I find that Respondent’s discharge of Kassera was motivated by his union activity. 5. Did Kassera’s use of terms such as “Godzilla” in the context of his complaints about Pessek’s disciplinary actions to his coworkers cause him to lose the protection of the Act On August 16, O’Riley received an anonymous letter dated August 8, from “CONCERNED [Respondent] EMPLOYEES IN MINNEAPOLIS, regarding “UNION.”18 It was signed sim- ply “MINNEAPOLIS DRIVERS.” The first paragraph of the letter, constituting a grievance against dispatcher Pessek, is as follows: SOME OF US HERE ARE UNDECIDED ABOUT VOTING FOR THE UNION AUGUST 24. HOWEVER, 18 The entire letter is typewritten in capital letters. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 148 THERE ARE A COUPLE OF THINGS WE ARE VERY UPSET OVER: WE HAVE ALL REACHED THE END OF OUR ROPE WITH ELAINE PESSEK’S CONTINUED HARASSMENT. SPYING ON US, BELITTLING US, WRITING US UP FOR THINGS WE DIDN’T EVEN DO. THE WORST PART IS THAT DARYL [ANDERSTROM] DOES NOTHING TO STOP IT!! ELAINE MAKES $13/HR AND SHE IS HARDLY EVER IN THE DISPATCH BOOTH. SHE CALLS ON OTHER DRIVERS TO DO HER WORK WHILE SHE IS DOWN IN THE OFFICE DOING NOTHING MEANINGFUL. THAT MAKES US SHORT ON DRIVERS WHICH CERTAINLY IS NOT GOOD FOR PROMPT CUSTOMER SERVICE. PLUS, THOSE DRIVERS LOSE TIPS WHILE THEY ARE DISPATCHING. SOMETIMES SHE GETS IN OUR BUS AND CONFISCATES OUR TIPS! WE NEVER GET THEM BACK! WHERE DOES THIS MONEY GO? DO YOU GUYS KNOW THIS IS HAPPENING? ELAINE RUNS THIS PLACE AND DARYL [ANDERSTROM] AND BRUCE DAVIDSON DO WHATEVER SHE WANTS. SHE IS NOT EVEN MANAGEMENT! HER LAST JOB WAS AT A PRISON AND SHE TREATS US LIKE WE’RE HER PRISONERS! WE WANT HER OUT!!! The missive also complained that Anderstrom “relentlessly harassed” employees, it questioned Respondent’s discharge of an employee, and Respondent’s failure to give that employee his 10-year reward. Anderstrom agreed that employees complained about Pessek, and specifically, that they complained because they felt she is- sued unwarranted warnings about “nit-picky little things.” Anderstrom agreed that Pessek issued one or two warnings a month. Moreover, the attorney’s report of October 13 notes that both Kassera and Kirchner disliked Pessek. As O’Riley, Gipson, and Anderstrom knew, this dislike was, at least in part, due to Kas- sera’s, Kirchner’s, and the “MINNEAPOLIS DRIVERS’” shared belief that Pessek issued unwarranted disciplinary action for mi- nor infractions of the rules. Thus, when both Kassera and Kirchner were questioned about why the employees wanted a Union, both responded with examples of Pessek’s disciplinary behavior. As the General Counsel notes, separately expressed dissatisfaction is concerted where the individual concerns are a logical outgrowth of the concerns expressed by the group. Mike Yurosek & Son, 307 NLRB 1037, 1038–1039 (1992), enfd. 53 F.3d 261 (9th Cir. 1995). Respondent was aware that Kassera used the term “Godzilla” when speaking to other employees, referring to Pessek’s man- agement style. Thus, Anderstrom agreed that as far as he knew, Kassera only used the term “Godzilla” when he was speaking with other employees. Moreover, in Swanson’s statement to Re- spondent’s attorney dated September 29, credited by Respon- dent’s attorney and relied upon in discharging Kassera, Swanson notes that Kassera and Kirchner made references to Pessek as “Godzilla” “in conjunction with describing her, Elaine, as being overbearing and as applying the work rules too strictly.” Simi- larly, Filipek’s statement to the attorney notes “[Kassera] regu- larly referred to [Pessek] as ‘Godzilla’ when speaking to me. He said she was writing employees up too often and with no basis.” As noted above, because the parties rely on the same set of cir- cumstances, the only issue before me in analyzing whether Kas- sera’s discharge was due to his concerted activity of complaining about Pessek’s disciplinary action, is whether his use of the term “Godzilla,” which Kassera admits, or use of the terms “witch” or “bitch,” which Swanson attributed to Kassera, in speaking to his coworkers, removes Kassera’s actions from the protection of the Act. In order to determine whether concerted activity retains the protection of the Act, the right of employees to engage in con- certed activities must be balanced against the right of an em- ployer to maintain order and control. See, e.g., New Process Gear, 249 NLRB 1102, 1109 (1980). Examination of four factors informs this analysis: (1) the place of the discussion, (2) the sub- ject matter of the discussion, (3) the nature of the employee’s comments, and (4) whether the comments were, in any way, provoked by the employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814, 816–817 (1979). Generally, an employee will lose the protection of the Act if his actions are opprobrious, malicious, defamatory, profane, egregious, or offensive. See, e.g., HCA/Health Services, 316 NLRB 919 (1995); American Hospital Assn., 230 NLRB 54, 56 (1977). Importantly, it must be emphasized that there is no evidence that Kassera ever called Pessek anything derogatory to her face. Employee discussions about Pessek’s disciplinary actions were held outside management’s presence, usually in the breakroom. The discussions were about perceived favoritism of Pessek and her strict enforcement of Respondent’s policies in what employ- ees believed was “nit-picky.” No matter how derogatory, use of the terms “Godzilla,” “witch,” or “bitch,” about a management style when speaking to coworkers does not rise to the level of egregious conduct. Cf. Beverly Enterprises, 310 NLRB 222, 225–226 (1993) (Respondent would have fired employee in any event for telling other employees that director of nursing was a “wicked old witch who practiced witchcraft on her patients and other employees” in light of prior outbursts of profanity directed at the director of nursing). These factors militate in favor of re- tention of the protection of the Act. Moreover, Respondent’s attempt to characterize Kassera’s language as an expression of personal animosity toward Pessek must fail in the absence of record evidence to support the assertion. Finally, I find the evi- dence inconclusive as to whether Kassera’s language was pro- voked by Respondent’s unfair labor practices. Certainly, Pessek’s calling Kassera a “damn troublemaker,” would not en- dear her to Kassera. However, Kassera’s use of the terms appar- ently predated this unfair labor practice to some extent. Based on a preponderance of the credible evidence, I find that employees’ Section 7 right to discuss their working conditions outweighs any interference with Respondent’s right to maintain order and control that use of the terms such as “Godzilla,” “bitch,” and “witch” may have caused. Moreover, in examina- tion of the place, subject matter, and nature of Kassera’s com- ments, these factors militate in favor of retention of protection of the Act. The fourth factor yields an indeterminate effect. Finally, I conclude that Kassera’s language was not sufficiently egregious to constitute activity unprotected by the Act. PARK ‘N FLY, INC. 149 E. Discipline of Kirchner The General Counsel alleges that van driver Troy Kirchner was placed on a 90-day probationary period on October 15 be- cause of his protected concerted and union activity. Respondent claims that the basis for this action was its conclusion that Kirchner had engaged in sexual harassment by creating a hostile working environment in using the term “Godzilla” to refer to Pessek. Thus, for the reasons stated above regarding the appro- priate analysis in dual motivation cases, the analysis set forth in Wright Line will be utilized to determine whether Kirchner was disciplined for his union activity. The analysis set forth in Tower Industries is applicable to the allegation that Kirchner was given a 90-day probationary period for his concerted activity of com- plaining about Pessek’s management style. 1. The General Counsel’s initial Wright Line burden Troy Kirchner began working for Respondent as a van driver in 1994. With Kassera, Kirchner contacted the Union, distrib- uted union literature, and solicited union authorization cards. It is undisputed that Respondent was aware by late June or early July that Kirchner and Kassera were supporters of the Union. It is also undisputed that on September 29, Respondent learned that Kirchner, together with Kassera, were the two employees who started the Union. Although there is no direct evidence of animus toward Kirchner, specifically, there is substantial evidence of animus toward the Union and toward those who supported the Union, generally. Based on this evidence and the timing of imposition of the 90-day probationary period immediately after Respon- dent learned of Kirchner’s involvement in bringing in the Un- ion, I find that General Counsel has sustained the initial Wright Line burden. 2. Respondent’s rebuttal Driver/weekend dispatcher Bruce Swanson told Respon- dent’s attorney that Kassera and Kirchner both referred to Pessek as a bitch and a witch and “Godzilla.”19 Swanson also recalled Kassera being upset about the cameras mounted on the vans and remarking, “I guess they’ll be able to see Troy [Kirchner] and me looking at our Playboys.” Swanson’s written statement, provided to Respondent’s attorney on September 29, incorporates these assertions. On September 29, Respondent’s attorney also interviewed Kirchner and prepared a statement for his signature. In this statement, the following appears: “I have never heard any em- ployee call Elaine a bitch, witch or beast. I have never referred to Elaine in that way. The only thing other than Elaine that I have heard her referred to as is ‘Godzilla’ by [Kassera]. He would be the first to admit that.” Additionally, Kirchner denied sending the centerfold and note to Pessek and stated that he had no knowl- edge about who did this. Kirchner also provided a handwriting sample. On October 13, Respondent’s attorney presented his findings to Respondent. He noted that he believed Swanson’s statement 19 Swanson could not remember the name of the monster that Kas- sera and Kirchner utilized. Undoubtedly, it was “Godzilla” to which he was referring. over that of Kassera and Kirchner. Thus, he concluded that both Kassera and Kirchner referred to Pessek as a bitch, witch, or “Godzilla.” He noted that the note enclosed with the centerfold used similar language, i.e., “wicked witch” and “ugly beast.”20 Further, he concluded that both Kassera and Kirchner harbored a high degree of “personal animosity” towards Pessek and that Kassera made a reference to looking at Playboy centerfolds while at work. Finally, regarding Kirchner, the report concluded: [T]he evidence shows that [Kirchner] shared Kassera’s strong antipathy and dislike of [Pessek] and that he likely used derogatory terms in referring to her to co-workers. I also conclude that Kirchner lied in this interview when he stated that he had “ever heard any employee call [Pessek] a bitch, witch or beast,” and that he “never referred to [Pessek] in that way.” Gipson testified that the decision to discipline Kirchner was made by himself, Brett Bodenan, and Fred Clemente. Although Anderstrom has made decisions to discharge three or four em- ployees in prior situations, he was not involved in this decision. Anderstrom read a written statement from the corporate office when he imposed the 90-day probationary period on Kirchner. Gipson testified: [Kirchner] admitted to the same sorts of derogatory state- ments against [Pessek]. I believe also “Godzilla, beast.” I’m not sure exactly. We didn’t—though we didn’t see some of the other evidence or didn’t believe that there was as much there as there was with Mr. Kassera, but we felt there was enough there that there needed to be some sort of discipline. [Kirchner] was knowingly referring to [Pessek] in ways that are prohibited under our sexual harassment policy. For the same reasons set forth with regard to Kassera, I find that Respondent’s evidence does not show that it would have imposed a 90-day probationary period on Kirchner absent his union activity. Specifically, I note there was no investigation of the Hitler incident. Investigation of the centerfold mailing was flawed in that only a quarter of the work force was interviewed, only four employees gave statements, and no counseling of Kirchner occurred. Respondent had no proof that Kirchner was involved in mailing the centerfold to Pessek and, finally, it learned of Kirchner’s lead role in organizing the Union at the facility about 2 weeks before it imposed the 90-day probationary period. Accordingly, I conclude that Kirchner would not have received a 90-day probationary period absent his union activity. 3. Did Kirchner’s use of terms such as “Godzilla” to his co- workers in the context of his complaints about Pessek’s disciplinary actions cause him to lose the protection of the Act As set forth in the identical analysis about Kassera, Respon- dent was fully aware of written and oral statements by many of the employees, including Kirchner and Kassera, criticizing 20 Although Respondent’s attorney cites Kassera’s admission of use of the term “beast” and “ugly” to describe Pessek, there is no reference to these terms in Kassera’s statement to the attorney or any other em- ployee’s statement to the attorney and there is no testimonial evidence in this record to support the assertion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 150 dispatcher Elaine Pessek’s disciplinary actions. In balancing employees’ Section 7 right to discuss their terms and conditions of employment against any interference that use of terms such as “Godzilla” may have caused to Respondent’s ability to main- tain order and control, for the reasons set forth in section D.5 infra, I find that Kirchner retained the protection of the Act. 4. Kirchner’s December leave-of-absence request and his January 10, 2005 disciplinary warning From the beginning of his employment, Kirchner was al- lowed to work for H & R Block preparing tax returns during the tax season. Kirchner worked sporadically during the tax season but continued his full-time status and did not lose any benefits. According to Anderstrom, during the summer of 2004, he consulted Brett Bodenan about whether a 90-day leave of ab- sence should continue to accrue benefits. Bodenan told Ander- strom that after 30 days, the employee would have to be placed on standby and no benefits would accrue. Respondent’s policy limits a personal leave of absence to 30 days. In January 2005, Kirchner requested the tax season off. As- sistant Manager Bruce Prahm told Kirchner that he would have to be reclassified as “standby” during that period. Standby em- ployees do not accrue benefits. However, another employee, Van Sicle, was given time off from January 28 through March 3, 2005, and was not forced to go on standby. Eventually, Kirchner’s request was granted. He did not lose any benefits due to the initial denial of his request. Kirchner received a “remedial discussion” employee warn- ing report from dispatcher Elaine Pessek on January 12, 2005. It stated that at the end of his shift, Kirchner had left accesso- ries turned on in the van and he had parked the van in such a way that, had spaces behind the van been filled, it would have been difficult for the next driver to get the van out. There is no evidence that any other employee has been disciplined for park- ing in a place where the potential for pulling away might be difficult. Kirchner testified without contradiction that van park- ing is difficult when the lot is full. Pursuant to the Wright Line analysis, I have found that the General Counsel has shown union activity, knowledge of union activity, and animus in general toward union activity. With regard to Kirchner’s request for leave during the tax season, General Counsel has also shown disparate treatment. Respon- dent did not present any evidence regarding this allegation. Accordingly, I find that Respondent told Kirchner that he would have to go to standby status because Kirchner engaged in union activity. Similarly, I find that Pessek’s employee warn- ing report was motivated by Kirchner’s union activity. CONCLUSIONS OF LAW 1. By unlawfully interrogating employees about who started the Union and about other employees’ union activities, Re- spondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By threatening an employee with unspecified reprisals for supporting the Union, Respondent violated Section 8(a)(1) of the Act. 3. By threatening an employee that he could be fired for in- significant issues if the Union were selected, Respondent vio- lated Section 8(a)(1) of the Act. 4. By creating the impression that employees’ union activi- ties were under surveillance, Respondent violated Section 8(a)(1) of the Act. 5. By threatening that the employer would not go for a union and that the employer would probably go broke if employees selected a union, Respondent violated Section 8(a)(1) of the Act. 6. By soliciting employee grievances and promising to rem- edy them, Respondent violated Section 8(a)(1) of the Act. 7. By discharging employee Dan Kassera and imposing a 90- day probationary period on employee Troy Kirchner, refusing Kirchner’s request for a period of leave, and issuing him a dis- ciplinary warning, Respondent violated Section 8(a)(1) and (3) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent, having discriminatorily discharged Dan Kassera, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quar- terly 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 com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). Because Respondent did not deprive Kirchner of his benefits while he was absent during the tax season, there is no need for an affirmative order with regard to that violation. [Recommended Order omitted from publication.]