Durham School Services, L.P.

DURHAM SCHOOL SERVICES, L.P. 1575 364 NLRB No. 107 Durham School Services, L.P. and Teamsters, Chauf- feurs, Warehousemen and Helpers Local Union No. 991. Cases 15–CA–106217, 15–CA–112948, 15–CA–145094, and 15–CA–145797 August 26, 2016 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN On October 30, 2015, Administrative Law Judge Mi- chael A. Rosas issued the attached decision. The Re- spondent filed exceptions, a supporting brief, a reply, and an answering brief. The General Counsel filed cross- exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions and to adopt the recommended Order as modified. The Respondent provides school bus transportation services for the Santa Rosa County, Florida school dis- trict. It operates facilities in three towns—Navarre, Mil- ton, and Pace—from which drivers transport students to and from school. This case concerns a series of incidents that occurred between February 2013 and December 2014, around the time of the Union’s representation elec- tion campaign, and continued sporadically for the follow- ing 2 years, and involve several of the Respondent’s managers and employees. We agree with the judge, for the reason stated in his decision and the additional reasons set forth below, that the Respondent violated Section 8(a)(1) by interrogating employee Diane Bence about whether the Union was compensating her for attending a meeting of the Re- spondent’s parent organization in London, England; 1 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. 2 We shall modify the judge’s recommended Order and substitute a new notice to conform to the judge’s findings and to the Board’s stand- ard remedial language. In affirming the judge’s findings, we find it unnecessary to pass on whether the Respondent violated Sec. 8(a)(1) by interrogating employ- ee Diane Bence regarding what she would say at an upcoming meeting of the Respondent’s parent organization in London, England; by inter- rogating Bence again in London; and by interrogating employee Ashley Hammes about her union sympathies, as any such findings would not affect the remedy. threatening to deny Bence’s leave request if the Union was compensating her for attending that meeting; sug- gesting to employees Samantha Rast and Ashley Ham- mes that it was futile for employees to choose the Union for representation because it would take years for the Union to enter into a collective-bargaining agreement; and creating the impression that employees’ union activi- ty were under surveillance. A. Diane Bence Driver Diane Bence openly supported the Union; she wore prounion shirts and pins prior to, during, and after the election. She also publicly announced her intention to bring the Union into the Respondent’s facilities. During spring break in March 2013, Bence traveled to London, England to participate in a union protest at the headquarters of the Respondent’s parent organization, National Express. Following that trip, Bence decided to return to London to attend National Express’ May 2013 shareholder meeting, where she planned to complain about working conditions at the Respondent’s facilities. To attend that meeting, Bence needed to ask for and be granted leave. The Respondent routinely approved driv- ers’ leave requests.3 On April 23, 2013,4 Bence submit- ted a leave request stating that she would be “out of state” from May 6 to 10. The Respondent’s past practice was generally to find “out of state” as sufficient justifica- tion for requesting leave. On April 29, Bence asked her supervisor, Operations Supervisor John Willoughby, about the status of her leave request. Neither Willough- by nor his supervisor, Area Manager Bob Downin, had an answer. Downin contacted Region Manager Robert Bauman, who spoke with Bence about her request. Bauman asked Bence about the purpose of the trip,5 whether she was being compensated for the trip, and who was paying her expenses. He reminded her of the Re- spondent’s policy against outside employment while on leave and told her that the rule meant that she could not take leave if the Union would be compensating her for the trip. Bence replied that one of the Respondent’s “pension [holders]” asked her to attend, adding that she would call the pension holder to see if she would be compensated. 3 The Respondent expected employees to write the purpose of the leave. The Respondent’s policy states: “[T]he Company may grant leave for personal reason, but never for taking employment elsewhere or going into business for oneself. All personal leaves must be request- ed in writing with an explanation of why the leave is needed.” 4 All dates are in 2013 unless otherwise noted. 5 This was unusual as, prior to April 2013, the Respondent did not typically inquire into the purpose of requested leave for out-of-state or other travel. 1576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bence provided Bauman with additional answers to his questions on May 1, when she met with Bauman and Downin at one of the Respondent’s facilities. The two managers asked Bence whether she was being compen- sated; Bence acknowledged that she would receive a lump sum. Bauman reiterated the Respondent’s policy and stated that the Respondent would approve the request only if the Union was not compensating her. Bence re- plied that a shareholder was compensating her. The Re- spondent later granted Bence’s leave request. We agree with the judge that Bauman’s initial inquir- ies into whether Bence was receiving compensation were coercive. Bence’s leave request to attend National Ex- press’ shareholder meeting came little more than a month after she had taken leave to participate in a union protest at National Express’ headquarters, and the Respondent knew that May 6 to 10, the period for which Bence re- quested leave, was when National Express would be holding its annual shareholder meeting. As a result, it would have been reasonable for an employee in Bence’s position to assume that the Respondent knew, or at least suspected, that her “out of state” travel was another un- ion-related trip to London involving the Respondent’s corporate parent. Such an assumption would have been reinforced when, contrary to the Respondent’s usual pro- cedure, instead of an inquiry from Willoughby, or even his supervisor, it was Bauman, a high-level manager who actively opposed the union campaign, who inquired into the purpose of Bence’s leave and the funding for her “out of state” travel. In those circumstances, we find that a reasonable employee would tend to be chilled in the ex- ercise of her Section 7 right to support the union by Bauman’s questioning. Accordingly, we adopt the judge’s finding that the Respondent violated Section 8(a)(1) by coercively interrogating Bence. See North Hills Office Services, 344 NLRB 1083, 1094 (2005) (ap- plying the totality of the circumstances test adopted by Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local II v. NLRB, 760 F.2d 1006 (9th Cir. 1985), to find that the questioning of employees who attended a union meeting at the commencement of an organizing campaign would reasonably tend to coerce them); Stoody Co., 320 NLRB 18, 18 (1995) (interroga- tor’s position as a high-level supervisor supports a con- clusion that the questioning was coercive). We also agree with the judge that Bauman violated Section 8(a)(1) by threatening to deny Bence’s leave request. In determining whether an employer’s conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer’s intent, but whether the conduct reasonably tends to inter- fere with the free exercise of the rights guaranteed em- ployees by the Act. Idaho Pacific Steel Warehouse, 227 NLRB 326, 331 (1976). We find that standard satisfied here. Contrary to the Respondent’s usual procedure, under which an employee’s immediate supervisor handled leave requests, the Respondent assigned this matter to Bauman, a high-level manager, who repeatedly ques- tioned Bence about who was paying for her trip and “re- minded” her that the rule against outside employment would cover being compensated for the trip by the Un- ion. The May 1 “reminder” at issue here came after Bauman had already “reminded” Bence about the policy, and after Bence provided Bauman with answers to his questions.6 We reject the Respondent’s argument, endorsed by the dissent, that Bauman merely recited a lawful company policy. While the statement was a correct recitation of the Respondent’s policy, the context of the conversation was coercive—Bence was requesting leave to engage in protected activity, and was at the Respondent’s mercy as to whether she could engage in that activity. According- ly, we find Bauman’s statement that the Respondent would approve Bence’s request only if the Union was not compensating her, made after she had advised him about how her trip was being funded, was a violation of Sec- tion 8(a)(1) of the Act. B. Samantha Rast and Ashley Hammes Employees Samantha Rast and Ashley Hammes were uncertain about whether to support or oppose the Union. On several occasions, they expressed their concerns to Area Manager Jim Bagby. In September 2014, Rast and Hammes participated in a union-coordinated “practice strike” at a park. Participants chanted union slogans and held signs. Local media covered the event, and Bagby observed the event on television later that day. Addi- tionally, a photograph of Rast holding a prounion sign appeared on social media. Approximately a week before the practice strike, the Respondent had interviewed Rast and Hammes for a trainer position. The day after the practice strike, Ham- mes received a notice to meet with Bagby. That evening, Rast and Hammes met with Bagby at a local bar. Bagby told them that they would not get the trainer position and advised them to consider a mentor position, which would 6 The dissent notes that the General Counsel does not allege that the Respondent’s leave policy is unlawful, nor that it was unlawful for the Respondent to apply the leave policy to Bence’s situation. But the lawfulness of the Respondent’s leave policy is not before us. What is before us is Bauman’s treatment of Bence’s leave request and his ques- tioning her about a tie between the leave request and the Union. DURHAM SCHOOL SERVICES, L.P. 1577 not result in a pay increase or change in benefits, but would help prepare them for the trainer position. Eventually, their discussion shifted to the Union. Bagby stated that he “didn’t understand why people—we would want a union when it’s going to take years and years” before the Union would come in, and employees would have to pay dues regardless of whether they sup- ported or opposed the Union.7 Bagby added that Rast and Hammes should be careful who they “danced with in the park.” When Rast asked if he was referring to an evening concert in the park, Bagby clarified that he had seen her during the day. In acknowledging that these statements referred to the practice strike, Bagby stated that it was hard to miss Rast standing on a truck. 1. Threat of Futility We agree with the judge that the Respondent, through Bagby, violated Section 8(a)(1) by threatening that un- ionization would be futile. In doing so, we examine Bagby’s statement in context: Bagby, a high-level man- ager whose opposition to the Union was well known, made the statement during a conversation in which he also discussed Rast and Hammes’ advancement pro- spects with the Respondent and, as discussed below, gave the impression that their activities were under sur- veillance.8 See Valerie Manor, Inc., 351 NLRB 1306, 1319 (2007) (finding that, coupled with unlawful threats, a slide by the Respondent stating “[h]ow long does the bargaining process take? Weeks? Months? Years? How long could you wait?” constituted a threat of futility and violated Section 8(a)(1)); Airtex, 308 NLRB 1135 fn. 2 (1995) (finding that the Respondent issued a threat of futility by stating that it did not have to sign anything, it simply had to negotiate with the union; the Board noted that the statement did not stand alone, but occurred dur- ing a conversation in which the Respondent, among other things, threatened an employee with job loss; offered him a supervisory position; and stated that “things could be better.”). Accordingly, we agree with the judge that 7 The judge dismissed an allegation that Bagby threatened employ- ees by stating that the Union would collect dues during the litigation of the representation case. We affirm the dismissal, but we do not rely, as the judge did, on the fact that an employee initiated the conversation pertaining to the Union. Rather, under the totality of the circumstances, we find that the statement, while incorrect, was not coercive. 8 The dissent references a “lawful” letter the Respondent apparently circulated to employees, which he views as similar to Bagby’s state- ment here. The dissent’s reliance on the letter is misplaced for two reasons. First, there has been no finding that the letter was lawful; as our colleague concedes, it was not alleged to be unlawful and therefore the question was not litigated. Second, the Respondent failed to intro- duce the letter into evidence at the hearing, and thus it never became a part of the record. Bagby’s statement reasonably suggested to Rast and Hammes that it would be futile to continue supporting the Union. 2. Impression of surveillance In determining whether an employer’s statement has created an unlawful impression of surveillance, the test is “whether the employees would reasonably assume from the statement that their union activities had been placed under surveillance.” Bridgestone Firestone South Caro- lina, 350 NLRB 526, 527 (2007). The standard is an objective one, based on the perspective of a reasonable employee. Id. We agree with the judge that Bagby’s statements cre- ated the impression of surveillance. Among other things, Bagby stated that he saw Rast during the day, standing on a truck; Rast and Hammes should be careful who they danced with; and it was hard to miss Rast dancing on a truck. Bagby’s statements, on their face, reasonably suggested to Rast and Hammes that the Respondent was monitoring the degree and extent of their union activity. Bagby’s direct personal reference to Rast’s union ac- tivity would reasonably lead Rast to believe that her pro- tected activity was under surveillance. The dissent main- tains that Rast “would have understood” that Bagby had observed her on television or social media even though Bagby did not make this clear. However, we agree with the judge that, without any clarification as to how Bagby learned about her union activity, Rast could just as easily suppose that Bagby learned about it through unlawful means, especially since Bagby stated that he saw her “during the day.” Moreover, the issue here is not how Bagby acquired his knowledge, but whether Rast “would reasonably assume” from Bagby’s statements that her union activities had been placed under surveillance. See U.S. Coachworks, Inc., 334 NLRB 955, 958 (2001) (cit- ing Flexsteel Industries, 311 NLRB 257, 257 (1993)). Based on the totality of the circumstances, we find that she would. See Woodcrest Health Care Center, 360 NLRB 415, 416–417 (2014) (by advising an employee to “watch his back, be careful,” “tone it down,” and “keep it under wraps,” the Respondent created the impression that the employee’s union activities were under surveillance), enfd in rel. part 800 River Road Operating Co. LLC v. NLRB, 784 F.3d 902, 916–918 (7th Cir. 2015). Accord- ingly, we find that the Respondent, through Bagby, cre- ated the impression of surveillance in violation of Sec- tion 8(a)(1). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Durham 1578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD School Services, L.P., Santa Rosa County, Florida, its agents, successors, and assigns shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(a) and reletter the subsequent paragraphs. “a. Rescind the orally promulgated rule prohibiting employees from displaying union insignia on cakes served at potluck events in the workplace.” 2. Substitute the attached notice for that of the admin- istrative law judge. MEMBER MISCIMARRA, dissenting in part. I part ways with my colleagues on three issues in this case. For the reasons explained below, I believe that the Respondent did not violate Section 8(a)(1) of the Nation- al Labor Relations Act (NLRA or Act) when it (1) re- minded an employee of its policy against granting leave for employees to engage in outside employment; (2) ac- curately stated, under the circumstances, that it would take “years and years” before the Union and the Re- spondent would consummate a contract; and (3) referred to an employee’s highly visible and well-publicized par- ticipation in union activities. Accordingly, I would dis- miss these complaint allegations. 1. Reminder about the Respondent’s leave policy The Respondent maintains a policy against granting employees leave to engage in outside employment. On April 23, 2013,1 employee Diane Bence submitted a leave request, which stated that she would be “out of state” from May 6 to 10. The Respondent believed it was likely that Bence was requesting leave to attend its parent organization’s shareholders meeting in London, England, and that Bence, an active supporter of the Charging Party Union, intended to speak at that meeting on the Union’s behalf. On April 29, the Respondent asked Bence about the purpose of her trip, if she was being compensated, and who was paying her expenses.2 1 All subsequent dates are in 2013 unless otherwise indicated. 2 I join my colleagues in finding that the Respondent violated Sec. 8(a)(1) of the Act by coercively interrogating and polling employee Donna Marcus regarding her voting preference in a February 2013 representation election. I find it unnecessary to pass on my colleagues’ finding that the questions posed to Bence on April 29 constituted coer- cive interrogation in violation of Sec. 8(a)(1), since any additional coercive interrogation finding would be merely cumulative, i.e., it would not affect the remedy. On the same basis, I join my colleagues in finding it unnecessary to pass on the following additional, cumula- tive allegations: (i) whether the Respondent coercively interrogated Bence regarding what she would say at the shareholders meeting in London; (ii) whether the Respondent coercively interrogated Bence in London; and (iii) whether the Respondent coercively interrogated em- ployee Ashley Hammes about her union sympathies. The Respondent advised Bence that if the Union com- pensated her, it would be against company policy to grant her leave request. Bence said that she did not know whether she would receive compensation, but she would inquire further. On May 1, the Respondent again asked Bence whether she would receive compensation. Bence replied that she would receive a “lump-sum payment.” The Respondent reminded Bence that pursuant to its pol- icy, it would approve her leave request only if the Union did not compensate her. Contrary to my colleagues, I would not find that the Respondent’s May 1 reminder to Bence constituted an unlawful threat to dissuade Bence from speaking at the shareholders meeting. The General Counsel does not allege that the Respondent’s leave policy is unlawful, nor does he allege that it was unlawful for the Respondent to apply that policy to Bence’s situation. No party asserts that it was unreasonable for the Respondent to suspect that Bence intended to speak on the Union’s behalf at the meeting and that the Union might compensate her for doing so. On April 29, when the Respondent attempted to determine whether its suspicions were correct and re- minded Bence that company policy precluded granting her leave request if she were going to be compensated, Bence said that she did not know whether she would be paid but would inquire further. The General Counsel does not allege that the Respondent’s April 29 reminder to Bence of its leave policy—which was virtually identi- cal to the disputed May 1 reminder—was unlawful. On May 1, the uncertainty surrounding Bence’s trip re- mained. Thus, Bence was asked again whether she would be compensated. She replied that she would re- ceive a “lump-sum payment.” Given these facts, it was perfectly reasonable for the Respondent to again remind Bence of its lawful policy against granting leave for out- side employment. This statement was not a threat, any more than it is a threat to remind any employee of a law- ful workplace rule or policy. I would reverse the judge’s violation finding. 2. Statement about the status of contract negotiations I also disagree with my colleagues’ finding that Man- ager Jim Bagby unlawfully threatened that it would be futile to support the Union when he told employees Sa- mantha Rast and Ashley Hammes that it would be “years and years” before the Respondent and Union would con- summate a contract. Bagby made this statement in Sep- tember 2014—19 months after the February 2013 elec- tion. At the time, litigation concerning the election was still ongoing, and that litigation would continue until DURHAM SCHOOL SERVICES, L.P. 1579 May 2016.3 Rast and Hammes likely were aware that the Respondent was challenging the validity of the election. One month earlier, in August 2014, the Respondent sent employees a letter referencing this litigation and explain- ing that it would take “many months or a year or some- thing like that” before the Union “would come in.” The General Counsel did not allege that this letter—which does not substantially differ from Bagby’s statement to Rast and Hammes—was unlawful.4 Bagby’s statement, like the Respondent’s earlier law- ful letter, was based on circumstances that justified de- laying the start of collective bargaining—ongoing litiga- tion concerning the Respondent’s election objections— and the statement accurately reflected the reality that it could be years before the litigation ended, and even if the results of the election were ultimately upheld, it could take a further substantial period of time for the parties to negotiate an initial collective-bargaining agreement. Under these circumstances, Bagby’s statement was not a threat of futility. See Histacount Corp., 278 NLRB 681, 689–690 (1986) (statement that it “would take 2 years or more before the Company would be legally compelled to bargain” was not a threat of futility where the company had colorable grounds to file objections and where legal proceedings “might take a considerable length of time”). Moreover, Bagby’s statement was not of the kind typi- cally found to constitute a threat of futility. He did not say that the Respondent would never bargain with the Union, threaten employees with loss of benefits because they chose union representation, or in any other manner state or imply that the Respondent would ensure its non- 3 The Respondent filed objections to conduct affecting the election. In May 2014, the Board overruled those objections without a hearing. Durham School Services, LP, 360 NLRB 851 (2014). (I dissented in part and would have remanded for a hearing on one of the objections. Id., at 853–855.) In July 2014, the Respondent filed a motion for re- consideration of the Board’s decision. That motion was still pending when Bagby made the statement at issue here. In October 2014, the Board denied the motion for reconsideration. Durham School Services, LP, 361 NLRB 702 (2014). In order to exercise its right to appeal the Board’s decisions to a federal court of appeals, it was necessary for the Respondent to refuse to bargain with the Union. In December 2014, the Board issued its decision finding the refusal to bargain violated Sec. 8(a)(5) of the Act. Durham School Services, LP, 361 NLRB No. 121 (2014) (not reported in Board volumes). The Respondent then peti- tioned for review in the Court of Appeals for the District of Columbia Circuit, raising the underlying election-related issues, and the court issued its decision in May 2016. Durham School Services, LP v. NLRB, 821 F.3d 52 (D.C. Cir. 2016). 4 Although Bagby testified that he was not “sure” about the exact content of the letter, the judge found credible Bagby’s testimony con- cerning its general content. The judge found that Babgy’s “years and years” remark “was consistent with the Company’s prior letter to em- ployees informing them that the issue was in litigation and could take a year to resolve.” There are no exceptions to this finding. union status by unlawful means. Cf. Libertyville Toyota, 360 NLRB 1298, 1298 (2014) (finding a threat of futility where an employer suggested that “bargaining might never begin” and employees would lose benefits, not because of the uncertainties of collective bargaining, but because they selected a union) (emphasis in original), enfd. sub nom. AutoNation, Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015); Winkle Bus Co., 347 NLRB 1203, 1204 (2006) (“An unlawful threat of futility is established when an employer states or implies that it will ensure its nonunion status by unlawful means.”) (citing Ready Mix, Inc., 337 NLRB 1189, 1190 (2002)); Venture Industries, 330 NLRB 1133, 1133 (2000) (manager unlawfully con- veyed that unionization would be futile by telling em- ployees that “as far as he was concerned the plant would never be a union shop” during speech in which he also threatened loss of jobs and loss of promotional opportu- nities).5 3. Reference to an employee’s participation in open, visible, and publicized union activities Also, in September 2014, the Union staged a “prac- tice” strike in a local park. Rast and Hammes were among the roughly 20 people who participated in the practice strike. The record shows, and the judge found, that (1) local television covered the event, (2) Bagby saw the television coverage, and (3) a photograph of Rast holding a prounion sign at the practice strike was posted on social media. Although the judge does not mention this in his decision, the record also establishes that Rast acknowledged the television coverage and that photo- graphs of her participating in the practice strike appeared on social media. Rast further testified that photographs taken at the strike and posted on social media showed employees standing in the back of her truck. And both Rast and Hammes testified that the practice strike took place alongside a busy highway. The practice strike took place the day before Bagby’s conversation with Rast and Hammes discussed in the previous section (concerning an alleged threat of futility). 5 In finding Bagby’s “years and years” statement to be a threat of fu- tility, the judge “blended” that statement with Bagby’s statement, earli- er in the same conversation, that the Respondent had decided not to select Rast or Hammes for a trainer position. The General Counsel did not allege that these employment decisions were unlawful, and Bagby went on to offer both Rast and Hammes the opportunity to act as men- tors, which he explained would prepare them for future trainer posi- tions. The record reveals nothing threatening about this brief and seem- ingly friendly discussion, which took place at a bar while the three shared drinks. Unlike the judge, I would not find that this earlier dis- cussion, when “blended” with Bagby’s accurate “years and years” statement, somehow indicated to Rast and Hammes that it would be futile to continue supporting the Union. 1580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD During this same conversation, Bagby told Rast that he had seen her “during the day.” Rast asked if Bagby was referring to the practice strike. Bagby said he was and added that it was hard to miss Rast standing on a truck. In agreement with the judge, my colleagues find that Bagby’s statement that he had seen Rast at the practice strike created the impression that employees’ union ac- tivities were under surveillance. The judge based his finding on the fact that Bagby did not expressly state that he knew Rast had participated in the practice strike be- cause he had seen her on television or social media, and my colleagues agree with the judge’s rationale. I believe that Rast would have understood as much without being told. Rast knew that local television covered the strike, that photographs of her at the strike had been posted on social media, and that photographs taken at the practice strike included individuals standing in her truck. Bagby’s reference to Rast “standing on a truck” would have left no doubt that Bagby was aware of Rast’s partic- ipation in the strike through social media. Although Hammes did not confirm that she also knew the event had been publicized, the event itself was highly visible, and Hammes testified that it occurred alongside a busy highway. When union activity is conducted openly, it is unreasonable to conclude that a statement indicating that the activity has been observed creates an impression of surveillance. See, e.g., Waste Management of Arizona, 345 NLRB 1339, 1339–1340 (2005) (manager did not create impression of surveillance by telling employee “he knew that employees had held a union meeting,” where the General Counsel did not show that the meeting was held in secret and “given the various other ways in which [the manager] might have learned of the nonsecret meet- ing”); Michigan Roads Maintenance Co., 344 NLRB 617, 617 fn. 4 (2005) (manager did not create impression of surveillance by telling employee who had just finished placing union flyers on vehicles parked in employer’s parking lot not to “start that union stuff on this property,” where the employee’s union activity was conducted “in the open”). Moreover, Bagby did not reveal detailed knowledge about the practice strike. Cf. United Charter Service, 306 NLRB 150, 151 (1992) (even assuming em- ployees’ union meeting at a restaurant was common knowledge, manager created an impression of surveil- lance when he “went into detail about the extent of the [meeting] and the specific topics [employees] dis- cussed”).6 6 During his conversation with Rast and Hammes, Bagby comment- ed that they should be careful who they “danced with in the park.” Given the totality of the circumstances noted above, I do not believe that this isolated comment would have suggested to Rast and Hammes In the ways and for the reasons set forth above, I re- spectfully dissent.7 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 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- fits and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively interrogate or poll you about your union support or union activities. WE WILL NOT threaten to deny your leave requests when you seek to engage in union or other protected ac- tivities. WE WILL NOT tell you that it is futile to choose the Un- ion for representation because it will take years for the Union to effectuate its representation. WE WILL NOT create the impression that your union ac- tivities are under surveillance. WE WILL NOT promulgate a rule prohibiting you from displaying union insignia on cakes served at potluck events in the workplace. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the orally promulgated rule prohibit- ing you from displaying union insignia on cakes served at potluck events in the workplace. DURHAM SCHOOL SERVICES, LP The Board’s decision can be found at www.nlrb.gov/case/15-CA-106217 or by using the QR code below. Alternatively, you can obtain a copy of the that Bagby was aware of their participation in the strike through surrep- titious means. Notably, the General Counsel did not allege that this comment constituted an independent violation of the Act. 7 I agree with my colleagues that the Respondent violated Sec. 8(a)(1) by prohibiting employees from serving cakes at company events that displayed union insignia. I do not agree, however, that this isolated incident constituted the promulgation of a “rule,” as found by the judge. DURHAM SCHOOL SERVICES, L.P. 1581 decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940. Charles Rogers, Esq., for the General Counsel. Charles P. Roberts, III, Esq. (Constangy, Brooks, Smith & Prophete, LLP), of Winston-Salem, North Carolina, for the Respondent. Lavon Lindsey, of Mobile Alabama, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. The case was tried in Fort Walton Beach, Florida, on August 10–12, 2015. The controversy involves an assortment of alleged unfair labor practices by Durham School Services L.P. (the Company) at its Santa Rosa County, Florida school bus facilities between February 2013 and December 2014. The root of contention begins with a contested representation election in February 2013 between the Company and Teamsters, Chauffeurs, Ware- housemen and Helpers Local Union No. 991 (the Union). With one exception, the complaint alleges violations of Section 8(a)(1) of the National Labor Relations Act (the Act)1 consist- ing of coercive statements made by Company supervisors around the time of the election and continuing sporadically for nearly 2 years thereafter while the election dispute winds its way through the appellate process. The remaining charge alleg- es the Company violated Section 8(a)(3) of the Act by decreas- ing the work hours and pay of employee Diane Bence, a promi- nent leader of the Company’s prounion contingent. On the entire record,2 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT I. JURISDICTION The Company, a limited partnership, provides school bus transportation services from offices and places of business in Milton, Pace, and Navarre, Florida, where it annually derives gross revenues in excess of $250,000 and purchases and re- 1 29 USC §§ 151–169. 2 The General Counsel’s unopposed motion to correct the record, dated September 16, 2015, is granted and received in evidence as GC Exh. 22. ceives goods valued in excess of $5000 directly from points outside the State of Florida. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Company’s Operations The Company is in the midst of a 5-year contract providing school bus transportation services for the Santa Rosa County, Florida school district. It operates three facilities in three towns—Navarre, Milton, and Pace—from which drivers transport students to and from school. The Company policy regarding the leave or time-off issue in this case states, in pertinent part: “in special circumstances, the Company may grant leave for personal reasons, but never for taking employment elsewhere or going into business for one- self.” The Company only provides paid days of absence for bereavement leave. All other leave or time off is unpaid.3 B. The Union Campaign At the time that the Company began Santa Rosa County op- erations in 2008, its drivers were represented by the Amalga- mated Transit Union (ATU). However, the employees became dissatisfied with ATU’s representation and decertified it in 2009. In November 2012, after an unsuccessful campaign to designate the United Brotherhood of Carpenters (UBC), em- ployees initiated a campaign to bring in the Union. The Union prevailed in the election vote tally on February 22, 2013, objec- tions to the results were overruled and, on May 9, 2014, the Board certified the Union as the Company employees’ labor representative. The Company appealed and the matter is pend- ing before the United States Court of Appeals for the D.C. Cir- cuit. Diane Bence, employed by the Company since 2008, has been a major cog in the Union’s drive for recognition since the campaign began in October 2012. Bence, who drives her regu- lar bus routes out of the Navarre facility, was active in the ATU decertification campaign and the unsuccessful UBC campaign. In October and November 2012, Bence informed Bauman of her intentions to bring in the Union to represent the Company’s Santa Rosa County drivers. Bence’s open and notorious support for the Union, including the wearing of prounion shirts and pins on her work clothing, continued through the election and con- tinues to the present.4 C. Company Statements During the Campaign During the month leading up to the February 22 representa- tion election, Bauman made several visits to the Company’s Santa Rosa facilities and served as its spokesman in presenting its argument against union representation. His standard mes- sage was that the vote was secret, the Company was working to 3 Leave and time off during the school year referred to interchangea- bly. In either instance, Company approval is required. (GC Exh. 5 at 56.) 4 The extent of Bence’s union activity since 2012 is not disputed. (Tr. 78–83, 108–111.) 1582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD improve communications, and a union was not necessary. Bauman was well aware of Bence’s leading role in the Un- ion’s organizing campaign, as well as in previous campaigns. Indeed, Bence usually approached Bauman whenever he visited the Navarre facility to discuss work-related issues. In one in- stance during the week leading up to the election, he asked Bence as she entered the Navarre facility, “I can count on your support in our vote?” Bence replied “no.” A few days later, as the election drew closer, Bauman asked Bence, “Isn’t that vest getting a little heavy?” The vest had several prounion pins on it.5 Bauman’s advocacy continued into the day of the election. On that day, he encountered Donna Marcus, a Milton facility driver assigned to office duty at the Navarre facility due to an injury. He asked Marcus, who was not wearing any election- related paraphernalia, “I guess we can count on you for a no vote, right?” Marcus nodded in the affirmative.6 D. Bence’s Request for Time Off to Attend the London Meeting Bence did not limit her advocacy on behalf of the Union to this country. In March 2013, she traveled to London, England, over the spring break to participate in a union protest at the headquarters of National Express, the Company’s parent organ- ization. The following month, she decided to return to London in May to attend the National Express’ shareholders meeting and complain about Company working conditions in Santa Rosa County. As the London meeting was scheduled during the school year, Bence submitted a time-off request on April 23 stating she would be “out of state” during the period of May 6 to 10.7 On April 29, Bence asked Willoughby, her supervisor, about the status of the time-off request.8 He did not know, but called his supervisor, Bob Downin, the area manager. This was unusual, since the Company routinely approves leave requests involving out of state travel.9 5 While I credit Bence’s testimony over Bauman’s denial that he asked if he could count on her vote and remarked about the prounion pins, I also credit his testimony that Bence frequently approached him to discuss various issues. (Tr. 84–85, 283–300.) 6 I found Marcus’ testimony credible. A former Company employee from September 2011 until February 20, 2014, she denied wearing a prounion Tshirt. (Tr. 152–154.) Bauman’s assertion that Marcus wore a union shirt was premised on faulty recollection regarding the facility to which she was regularly assigned. Moreover, his denial that he even spoke with her was less than credible since he admitted approaching employees about the election during that period of time. (Tr. 288–290, 301–304.) 7 The leave or time off form does not have a title. (GC Exh. 18; Tr. 85, 125.) 8 In cases where employees requested an extended amount of time off, Willoughby would ask about the purpose of the leave or time off if it was not stated in the request. (Tr. 31, 155–156.) This was not the case with Bence’s April 2013 time-off request. (Tr. 125, 128–129.) 9 The undisputed and credible testimony of Bence and another driv- er, Vera Nowling-Driggers, established that, prior to April 2013, no one ever asked them about the purpose of requested leave or time off for out of state or other travel. (Tr. 104–105, 175, 183,) Downin also did not know the answer, but called back a short time later with Bauman on the line. As Bence and Willoughby listened over the speaker phone, Bauman asked Bence about the purpose of the trip, whether she was being compensated for the trip and who was paying her expenses. Bauman, already knowing the likely purpose of Bence’s time off request, reminded Bence of the Company’s policy against other employment while on Company leave and the prohibition against the Union compensating her for the trip. Bence replied that a Company “pension holder” asked her to attend. Bauman asked again how Bence was being compensated and who was paying her expenses. Bence reiterated her lack of knowledge on that point. Bauman concluded the conversation by asking Bence to find out and get back to him. After further discussion, Bence stated that she would call the pension holder to see if she was being compensated. This ended the conversation.10 The next day, April 30, Bence attempted to contact Bauman with the answer, but they did not connect until May 1, when Bauman and Downin met her at the Milton facility. In response to Bauman’s question as to whether she was being compen- sated, Bence acknowledged that she would receive a lump-sum payment for the trip. Bauman reiterated that, in accordance with Company policy, Bence’s leave request would only be ap- proved if the Union was not compensating her for the trip. Bence replied that a shareholder was compensating her. The conversation ended with Bauman indicating that he would get back to Bence with a decision. The Company subsequently granted Bence’s leave request. Although she never identified the shareholder, it was Kim Keller, a union organizer.11 The day after Bence’s leave request was approved, Downin met Bence at her bus before her afternoon bus run. Downin asked Bence what she intended to say at the London meeting. Bence said she would speak about “issues.” A few days later, Bauman met Bence around the same time and location and also asked what she intended to say at the London meeting. Bence replied that she would speak about workers’ issues. Bauman told her to have a good time.12 E. Bence Goes to London Bence traveled to London and attended National Express’ shareholder meeting beginning on May 8. On May 9, she got the opportunity to address the shareholders and hierarchy of the Company and its parent organization. Bence expressed concern about her job security because she had been given a hard time 10 I find it unlikely that, in the absence of Bauman mentioning the policy, Bence volunteered to find out the source of compensation for her trip. (Tr. 85–88, 91, 125, 128.) Moreover, Bauman acknowledged he already knew the answer to his question since Bence traveled to London in March for a similar purpose. Prior to this conversation, he also consulted with counsel about the application of the Company’s leave policy to the funding of Bence’s trip. (Tr. 290–294, 307–309.) 11 Neither the connection of Keller to the Santa Rosa labor dispute nor the Company source who made the final decision to approve the leave was specified. (Tr. 88–93, 98–99, 293–296, 311–312.) 12 I based these findings on Bence’s credible testimony. (Tr. 144– 145, 149.) Downin did not testify, while Bauman paused before deny- ing any further conversations with Bence about her trip (Tr. 295–296). DURHAM SCHOOL SERVICES, L.P. 1583 about traveling to London to attend the meeting. National Ex- press’ President, Sir John Armitt, assured Bence her job was secure, while Dean Finch, the chief executive officer, apolo- gized for the difficulties she encountered. Bence then com- plained about the Company’s working conditions in the United States, including passenger overcrowding and the condition of its bus fleet’s tires and breaks. She spoke for about 10 to 15 minutes.13 After the meeting, Bence was speaking in the lobby with La- trisha Pringle, an employee at a Company facility in South Carolina, when David Duke approached and introduced himself as the Company’s chief executive officer in the United States. After discussing his history with the Company and explaining that he mistook Pringle for someone else, Duke turned to Bence and said, in a joking manner, “I know you’re really here with Teamsters.” Bence laughed and Duke said, “it’s okay, you can tell me, you know, it’s just us . . . You can tell me that you’re here with Teamsters and Teamsters paid for you.” Bence re- plied that a shareholder paid for her trip. Duke repeated the question, but Bence repeated her answer and walked away.14 Upon returning to work, Bence reported her conversation with Duke to numerous coworkers. F. Alleged Reduction in Bence’s Hours and Pay Prior to December 2012, Bence picked up students and dropped them off at three locations—Woodlawn Middle School, West Navarre Intermediate School, and Holley-Navarre Middle School. In the afternoons, she picked up students at the same schools and dropped them off at home. Bence’s route averaged approximately 35.24 hours per week.15 In December 2012, Willoughby, sought to alleviate the con- sistent overtime accruals of another driver, John Dore, by ask- ing Bence to take on an additional bus route from Navarre High School to Gulf Breeze. Bence agreed and picked up the addi- tional route through the end of the school year in June 2013. During this period, the additional route added over an hour to her average workday. Although Bence averaged 39.25 hours worked per week, it resulted in her working overtime hours during 10 weekly periods, including the final 6 weeks of the 2012–2013 school year.16 At the Company’s start-up meeting in August, Area Manager Jim Bagby and Routing Supervisor Dangela Bryant announced drivers’ bus routes for the 2013–2014 school year. The printed schedules were not yet available. As is typical at the annual start-up meeting, however, the drivers were told that most 13 Bence’s testimony about her statements during the meeting are undisputed. (Tr. 94–97.) 14 Bence’s credible version of this encounter was corroborated by Pringle. (Tr. 65–69, 75, 97–98, 132–134, 147–148.) Duke did not testi- fy. 15 Given the regularity of Bence’s schedule amounting to over 30 hours per week, weeks when she worked less than 30 hours were atypi- cal and, thus, were not factored into the averages. (GC Exh. 16, 22.) 16 It is undisputed that Dore was working over 8 hours a day, which resulted in overtime pay (Tr. 117.) and Bence began to accrue similar amounts of overtime pay by covering the latter part of his route in the afternoons. (GC Exh. 9(e), 16; Tr. 32–38, 117, 348, 364–366.) schedules would remain the same. Bence picked up her sched- ule 2 days later and noticed she was still assigned to the same routes that she covered from December 2012 to June, including the Navarre to Gulf Breeze route in the afternoon.17 School started the following week. On the first day of school, Willoughby informed Bence that her schedule would revert to the one she drove prior to December 2012. As such, Bence would no longer drive the Navarre to Gulf Breeze route in the afternoon. When asked by Bence the next day why he removed that route from her schedule, Willoughby said he was the new supervisor and “was going to do things his way.”18 Although he did not mention it at the time, Willoughby was concerned about Bence’s accrual of overtime pay due to her covering the additional route.19 The Navarre to Gulf Breeze afternoon route was reassigned to John Dore, but with frequent assistance from several other drivers—none of which included Bence.20 The elimination of the Navarre High School to Gulf Breeze route from Bence’s schedule had the effect of reducing her average weekly total to 36.74 hours per week for the period of August to December 2013.21 G. September 26, 2014—Pier Bar Allegations Involving Jim Bagby Ashley Hammes and Samantha Rast were drivers in the Na- varre facility. Prior to September 2014, Hammes and Rast dis- cussed the merits of union representation with Bagby. They were clearly conflicted as to whether to support or oppose the Union. Rast, concerned about union dues, solicitation at home, and potential strike activity, even texted Bagby with such con- cerns. During those conversations, rather than refer Rast to the Board, Bagby urged her to contact the National Right to Work Legal Defense Foundation, an advocacy organization.22 17 The Company made periodic changes to route schedules during the school year based on several factors, including driver performance and changes to student enrollment. (Tr. 358–361; R. Exh. 2–5.) Indeed, Bence conceded that minor changes to assigned routes occur on a regu- lar basis, but insisted there was no mention of any assigned route changes at the meeting. (Tr. 100–101, 135–137, 139.) Marcus, Willoughby and Bagby did not recall whether changes were discussed. (Tr. 155, 318, 351.) However, Ashley Hammes, another driver called by the General Counsel, testified credibly that bus route changes were mentioned and it was typical for that to happen at the start-up meeting. As such, I based this finding on her testimony. (Tr. 221–224.) 18 Bence provided a detailed and credible recollection of these con- versations (Tr. 101–102, 136–138, 140.) Willoughby, on the other hand, simply could not recall any such conversations. (Tr. 351–352, 364.) 19 Bence acknowledged that the Company sought to avoid overtime. (Tr. 99–100, 117.) 20 None of the other drivers, including John Lashier, Melvin Green, and Sandra Brummette, accrued overtime while covering the Navarre to Gulf Breeze route. (R. Exh. 16–17; Tr. 31–43, 129–131, 352–357, 366– 367.) 21 Again, the hourly average does not include atypical weeks in which Bence worked less than 30 hours. (GC Exh. 16.) 22 I credit Bagby’s testimony that Rast and Hammes expressed past concerns about union solicitation and dues. (Tr. 326–332.) Rast and Hammes confirmed those conversations. (Tr. 234–238, 255–257.) 1584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By September 2014, however, Hammes and Rast resolved their conundrum and participated in a union-coordinated prac- tice strike at Navarre Park. During the practice strike, which lasted about an hour, about 20 employees chanted union slo- gans and held signs. The event was covered by local television. In addition, a photograph of Rast holding a prounion sign ap- peared on social media. Bagby observed the event on television later that day. 23 About a week earlier in September 2014, Hammes and Rast interviewed for a trainer position with Safety Supervisor Angie Quinn and Supervisor Trish Blair. On September 26, 2014, the day following the practice strike, Hammes was notified by Blair to meet with Bagby in Willoughby’s office for a second interview regarding the trainer position. After completing her morning route, Hammes went to Willoughby’s office and sat in the adjacent waiting room. She sat there for several hours as Bagby went about other business. At some point, Rast stopped by to inquire about the trainer position, but left. Bagby eventu- ally came out to meet Hammes, but due to time constraints, suggested she meet him after work for drinks at the Pier Bar. Hammes agreed. Bagby extended a similar invitation to Rast after her afternoon bus run. She also agreed to meet.24 Bagby was already at the Pier Bar when Hammes arrived with her young nephew. Hammes asked Bagby about a second interview. Bagby informed her that she would not get another interview since Quinn already selected someone else. He add- ed, however, that Hammes could become a mentor. Although there would be no pay increase or change in benefits, it would help Hammes prepare for future trainer positions. Hammes agreed to become a mentor.25 At that point, Rast arrived. While Hammes entertained her nephew, Bagby and Rast talked. Bagby explained that she, too, would not get the trainer position, noting that she was recently involved in an accident. Bagby advised her to consider a men- tor position. Rast also accepted his suggestion. At some point, they moved to a smoking table. After Bagby and Rast conclud- ed discussion of the trainer position, the conversation turned to the Union. At some point during the conversation, Bagby re- sponded to a question by Rast about the Union by stating that he “didn’t understand why people—we would want a union when it’s going to take years and years” before the Union would consummate a contract with the Company and employ- ees would have to pay dues regardless of whether they support- 23 It is undisputed that Hammes and Rast participated in the practice strike, and I credited Bagby’s testimony that he saw coverage of it on local television. (Tr. 208–213, 244–247, 259, 319–321.) 24 Rast and Bagby provided consistent testimony regarding the time of Bagby’s invitation when he stopped by the facility that afternoon. (246–250, 260–261, 322–325.) Although mistaken about Rast’s where- abouts that morning, Hammes provided detailed, credible testimony about being instructed by Quinn, who did not testify, to meet with Bagby. She waited for hours to meet with him and it resulted in an invite to meet with him later at the Pier Bar. (Tr. 211–216, 219–220, 227–230.) 25 Hammes acknowledged that Quinn informed her at the time of the interview that she had someone else in mind and Hammes was not yet ready for the trainer position. (Tr. 226–227.) ed or opposed the Union. Rast responded that she was neither for the Union nor for the Company, but she would listen to both sides.26 Bagby further stated that employees should be careful who they “danced with in the park.” Rast asked if he was referring to her attending a recent Music in the Park evening concert. Bagby replied that he saw Rast during the day. Seeking clarifi- cation, Rast asked if he was referring to the practice strike. Bagby acknowledged that he was, adding that it was hard to miss Rast standing on a truck. Hammes responded to Bagby’s comment by professing ignorance about, and disavowing any desire to be connected with, the Union. Bagby asked if she was “pulling his leg” because her past actions indicated otherwise.27 The entire conversation lasted about an hour.28 H. Have Your Cake—Just Not Here On special occasions or holidays, the Company has potluck lunch events in which it supplies food and employees supple- ment it with side dishes and desserts. Prior to December 19, 2014, there were no restrictions on the type of food brought into the facility for potluck events.29 This included sheet cakes brought in by employees from unidentified sources.30 On December 19, 2014, the Company held potluck lunches at its Pace, Milton, and Navarre facilities. Sheet cakes prepared at local bakeries and inscribed with a mélange of “Merry Christmas-Happy New Year” and “Teamsters Local 991” on the side of a school bus were delivered by Union Representa- 26 Rast was credible, but conceded that she could not recall portions of the conversation. (Tr. 248–254.) Hammes seemed to recall that Rast initiated discussion about the Union and stated she did not want to pay dues if the Union was not involved at Navarre facility. Each took turns watching Hammes’ nephew and did not hear everything spoken be- tween the other and Bagby. Moreover, Rast’s February 2015 Board affidavit omitted any mention of Bagby talking about union dues. In addition, Hammes testified that she did not hear Rast say anything in response to Bagby's union comments, but heard Rast ask Bagby several questions about the Union and express concerns about having to pay dues (Tr. 216–220, 230–232, 239–242, 249–250, 252–254, 258–268). In any event, I do not credit Bagby’s denial that he discussed the prac- tice strike or the Union. I do find, however, that it was in response to questions by Hammes and Rast that he stated that support for the Union would result in them paying dues for “years and years.” Such a remark was consistent with the Company’s prior letter to employees informing them that the issue was in litigation and could take a year to resolve. (Tr. 325, 331–332, 342.) 27 I base this finding on the fairly credible and generally consistent testimony of Hammes and Rast. (Tr. 219–220, 246–250.) Bagby’s terse denial that there was any discussion of the practice strike (“No, that was already pass”) was not credible given their past discussions about the Union. (Tr. 322–325.) 28 Rast and Hammes had vastly different estimates as to how long they discussed the Union. Rast testified that the union part of the dis- cussion lasted only a few minutes. (Tr. 258–266.) According to Ham- mes, however, the Union was discussed for about 60 minutes. (Tr. 216– 220.) 29 It is undisputed that the Company does not have any policies or procedures regarding potluck events at any of its facilities. 30 Bus driver Donna Snead’s testimony regarding the Company’s past tolerance for cake eating at potluck events was credible and undis- puted. (Tr. 204–205, GC Exh. 4.) DURHAM SCHOOL SERVICES, L.P. 1585 tive Clark Cameron to an employee at each facility for con- sumption that day. Cameron delivered the cake for the Pace facility potluck lunch to bus driver Vera Nowling-Driggers. With the assistance of another employee in the rain, the cake was carried into the facility. After settling in, Nowling-Driggers placed the cake on the food table. Drivers Victoria Herring and Dawn Lysek were standing at the table with the cake still in the box, but the top open, when Bagby approached. Bagby asked Nowling-Driggers where the cake came from. She replied that it was brought to her by a friend from Milton Bakery. Bagby said that it did not matter and the cake would have to be removed from the facility because it was a company function. Nowling-Driggers asked if the cake could stay if she smeared the union inscription. He acquiesced to that option, stating “if you want to.” With that caveat, she smeared the Union’s name and the cake remained.31 Bagby eventually left and went to the Milton facility’s pot- luck lunch. That morning, Cameron also provided Donna Snead, a driver at the Milton facility, with another sheet cake from the same bakery topped with similar references to holiday cheer and the Union. Snead proceeded to take the cake into the facility and placed it on the food table. She opened the box and Shay Peek, a supervisor, was getting ready to cut it when Bagby approached and asked Snead several times where she bought the cake. Snead responded each time that she just brought it into the facility, but did not purchase it and did not know where it came from. Bagby responded that the cake could have stayed if she purchased it. However, since she did not purchase it, the cake had to be removed because he and Virgin- ia Sutler, an operations supervisor, were sponsoring the event and it was not a union function. Bagby started to put the cake under the table, but Peek retrieved it and put it in the dispatch- er’s office. Later on, several drivers cut up the cake and took it home.32 Bagby also stopped by the Navarre facility’s potluck lunch. When he arrived, he observed yet another sheet cake on the food table that contained references to the holiday season and the Union. By then, however, Bagby was done throwing union- inscribed cakes under the proverbial bus and took no action to remove it.33 31 It is not disputed that GC Exh. 2 fairly and accurately depicts the cake without the union inscription obliterated, while GC Exh. 3 depicts the cake after Nowling-Driggers smeared the union inscription. (Tr. 168, 170–174, 188–190, 192, 194.) Bagby conceded instructing Nowl- ing-Driggers to remove the cake because it was a company function. (Tr. 335–336.) 32 The less than credible reason given by Bagby for having the cake removed–it’s unknown source, even though he knew it came from a local bakery–contradicts a lengthy company history of unrestricted employee contributions to potluck events. It also indicates that he observed the writing on the cake when Snead opened the box. (Tr. 332, 334–335.) As such, I rely on Snead’s credible testimony as to what Bagby said about the sheet cake at the Milton facility. (Tr. 199–203, 376–378; GC Exhs. 2, 17.) 33 Bagby provided no explanation for his restraint toward the cake on the Navarre facility’s food table in contrast to his actions at the Pace and Milton facilities. (Tr. 337.) Legal Analysis I. BAUMAN’S PREELECTION INTERROGATION The General Counsel alleges that Bauman unlawfully inter- rogated and/or polled Bence and Marcus about the representa- tion election on two occasions in mid-February 2013. The Company denies that Bauman made the statements which, in any event, were not coercive under the circumstances. Bauman’s pitch to employees prior to the representation election conveyed the Company’s standard message their vote was secret, the Company sought to improve communication with employees, and a union was not necessary to represent their interests. During the week leading up to the election, Bauman’s approach became more intense when he asked Bence if he could “count on your support in our vote.” It was a peculi- ar statement by Bauman since he knew of Bence’s open and notorious advocacy for union representation. He could not have been surprised by Bence’s negative response. A few days later, Bauman expressed his disdain for the prounion paraphernalia on Bence’s work vest by sarcastically asking her if it was “get- ting a little heavy?” Bauman’s advocacy continued on the day of the election when he asked Donna Marcus, a driver working at the Navarre facility due to an injury, “I guess we can count on you for a no vote, right?” Marcus nodded in the affirmative. The Board looks at the totality-of-the-circumstances to de- termine whether under all the circumstances the questioning at issue would reasonably tend to restrain the affected employee from engaging in protected concerted activity. The standard for assessing the lawfulness of interrogation is found in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employ- ees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In conducting such analysis, it is also appropriate to consider the five factors set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): (1) whether there is a history of employer hostility and discrimination; (2) the nature of the information sought; (3) level of the supervisor or manager; (4) place and method of the interrogation; and (5) the truthfulness of the interrogated em- ployee’s response. However, relevant factors “are not to be mechanically applied in each case.” 269 NLRB at 1178 fn. 20. Applying the Rossmore criteria to the instant case, Bauman, a high-level manager for the Company, communicated the Company’s opposition to union representation in the weeks leading to the election. The questions suddenly posed to Bence and Marcus occurred in the open and not behind closed doors. While not directly asking how Bence and Marcus would vote, Bauman’s impliedly sought to elicit their preference in the up- coming secret election. In Bence’s case, Bauman conceded an awareness of her strong support for union representation, yet he still persisted in pressing her to reveal her inclination as a voter. By asking, Bauman asked Marcus whether the Company could count on her to vote “no,” he was not asking how she intended to vote, Marcus was placed in the position of ignoring Bauman’s question or revealing her position regarding the Un- ion. The Board has found that such interrogation regarding union elections is coercive and violates Section 8(a)(1). Shep- herd Tissue, Inc., 327 NLRB 98 (1998). Bauman’s statement also unlawfully polled Marcus because it suddenly placed her 1586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in a position where she reasonably felt pressured to express her voting preferences. Space Needle, LLC, 362 NLRB 35, 36 (2015). Under the circumstances, Bauman unlawfully interro- gated and polled an employee in violation of Section 8(a)(1) of the Act. Bauman’s statement to Bence, however, did not reasonably have the same effect of restraining the latter, an avid union supporter who consistently conveyed her position to Bauman and other Company managers since 2012. See, e.g., Gardner Engineering, 313 NLRB 755, 755 (1994), enfd. as modified on other grounds 115 F.3d 636 (9th Cir. 1997); Blue Flash Ex- press, 109 NLRB 591 (1954). The General Counsel relies on Cardinal Home Product, Inc., 338 NLRB 1004, 1007 (2003), for the proposition that Bau- man’s statement is no less coercive because Bence was openly supportive of the Union. Cardinal is, however, distinguishable. In Cardinal, a supervisor sought to elicit information from an employee who provided the Board with an affidavit relating to an unfair labor practice charge. In that case, the supervisor sought information relating to employee’s Section 7 activity. In this case, although the question touched on Bence’s right to protect the secrecy of her upcoming vote, the totality of the circumstances reveal that Bauman’s inquiry was facetious be- cause, by then, their positions were well known to each other. In the same way that Bauman’s level in the Company’s super- visory structure was considered, one must also consider Bence’s level of prominence in the union campaign in deter- mining whether an atmosphere of coercion reasonably existed. Under the circumstances, it did not. II. BAUMAN’S STATEMENTS REGARDING BENCE’S LONDON TRIP The complaint further alleges that Bauman unlawfully inter- rogated Bence on two other occasions after the election. In the first instance, he questioned Bence after she requested leave on April 29, 2013, as to whether the Union was compensating her for attending the annual meeting of the Company’s parent or- ganization in London. In the second instance, Bauman threat- ened to deny Bence’s leave request on May 1, 2013, if she was being compensated by the Union for the trip. The Company acknowledges Bence’s statutory right to en- gage in union activities, but insists Bauman’s inquiry was justi- fied because he reasonably believed she intended to travel to London for union-related business. If true, such activity amounted to other employment, which Bauman believed would violate the Company’s policy prohibiting employees from tak- ing leave to engage in other employment. As such, the Compa- ny contends that Bauman’s question was narrowly focused regarding its concern as to how Bence’s expenses and time were being compensated. In this regard, it refers to the Board’s recent decision in BFI Newby Island Recyclery, 362 NLRB 1599 (2015), which considered compensation as an indicia of employment. Neither the lawfulness of the Company’s policy against out- side employment nor Bauman’s suspicion as to the purpose of Bence’s leave request is the determining factor. The focus is on Bauman’s inquiry after Bence submitted a leave request simply stating the purpose as “out of state” travel. The Company had a custom and practice of regularly approving leave requests, but also expected employees to write the purpose of the leave or Willoughby might ask for some detail if he had staffing con- cerns. Here, however, there was no allegation or discernible fact to justify the questioning by Bauman, a high level manager who actively opposed the union campaign, as to the purpose of Bence’s leave, much less the funding of her travel “out of state.” The purpose of Bauman’s questioning was unlawfully targeted at uncovering the nature of Bence’s likely protected concerted activity. See Stevens Creek Chrysler Jeep Dodge, Inc., 353 NLRB 1294, 1295 (2009), affd. 357 NLRB 633 (2011), rev, denied, enf d. 498 Fed. Appx. 45 (D.C. Cir. 2012) (questioning employees as to who paid for food at a union meeting constituted unlawful interrogation). The coercive na- ture of Bauman’s statement was also evident by the clear impli- cation that Bence would violate Company policy if she accept- ed funding for the trip by the Union and, thus, subject to disci- plinary action. The Company, citing Johnnie’s Poultry Co., 146 NLRB 770, 774 (1964), enf. denied on other grounds, 344 F.2d 617 (8th Cir. 1965), contends that an employer may exercise the privi- lege of interrogating employees if it has a legitimate cause to inquire. See also M-B Co., 290 NLRB 68, 71 (1988) (mere “recitation of a company policy” not a threat). Applicable Board law suggests, however, that inquiring into employee’s Section 7 activities is not legitimate absent the existence of allegations of misconduct. Contrary to the Company’s position, the inquiry into Bence’s Section 7 activity in order to determine whether such activity would be funded by the Union in viola- tion of Company policy is distinguishable from cases in which interrogation was deemed justified based on alleged miscon- duct. Cf. Bridgestone Firestone South Carolina, 350 NLRB 526, 528–529 (2007) (employer lawfully questioned employee concerning his alleged violation of employer’s no-profanity policy while engaging in union-related discussion); Fresensius USA Mfg., Inc., 362 NLRB 1065 (2015) (employer lawfully questioned employee about harassment allegations arising out of concerted activity). Here, there was no allegation that Bence violated the employer’s outside employment prohibition. Bauman’s threat to deny Bence’s leave request—if she was being compensated for her out-of-state travel by the Union— suffers a similar fate. That Bauman’s statements related to company policy regarding its policy against other employment or that the leave was subsequently granted, are of no conse- quence. The statement stemmed from Bauman’s unlawful inter- rogation and sought to intimidate Bence from traveling to the National Express meeting in order to engage in concerted activ- ity. Thus, the statement went beyond merely restating company policy. See Arkansas Grain Corp., 166 NLRB 111 (1967) (vio- lation where statement was not limited merely to the company break policy). The Company’s coercive remarks regarding Bence’s leave did not cease when it approved her request. Within the days that followed, both Bauman and Downin, another higher-level supervisor, approached Bence near her bus and asked what she would say at the National Express meeting. Bence told Downin she would speak about issues and responded in similar fashion to Bauman (workers issues). Again, these statements also DURHAM SCHOOL SERVICES, L.P. 1587 stemmed from the initially unlawful interrogation about the purpose of Bence’s leave request. Under the circumstances, the Company’s continued questioning of Bence about the purpose of her London trip was clearly coercive. Under the circumstances, the aforementioned statements by Bauman and Downin violated Section 8(a)(1) of the Act. III. THE LONDON INTERROGATION The complaint alleges that on May 8, 2013, at the National Express meeting in London, the Company’s chief executive officer, David Duke, interrogated Bence regarding the source of her compensation for the trip. The Company denies the exist- ence of Board jurisdiction over this allegation because it ac- crued outside of the United States. Assuming that jurisdiction exists, the Company also denies that Duke’s question was coer- cive. A. Jurisdiction The Company contends that (1) federal legislation does not apply outside of the territorial jurisdiction of the United States absent a manifested contrary intent, and (2) the Act does not contain any such manifestation of intent to apply extraterritori- ally. The General Counsel argues that jurisdiction under the Act applies to statements made outside of the United States if: (1) the relationship is within the United States, (2) the employee performed regular work in the United States for an American employer, (3) the assignment abroad was temporary and brief, and the conduct causes unlawful effects in the United States. The Board has indeed asserted the Act’s jurisdiction beyond the United States’ territorial boundaries in certain circumstanc- es. In Asplundh, the Board upheld jurisdiction over an unfair labor practice committed in Canada. The case involved Ameri- can employees regularly employed by an American employer in the United States, but who were in Canada on a brief and temporary assignment where they were supervised by an Amer- ican supervisor. Asplundh Tree Expert Co., 336 NLRB 1106, 1107 (2001), decision vacated, 365 F.3d 168 (3d Cir. 2004). Thus, the principal effects of the employer threatening one with layoff and subsequently laying off two of them because they engaged in protected activities were felt in the United States. 336 NLRB at 1107. The Board also clarified that there was no conflict with Canadian laws by asserting jurisdiction over this dispute, given that it affected only American employees of an American employer whom were briefly in Canada. Id. The Board concluded that “Americans whose permanent employ- ment relationships are with American firms in the United States do not lose the protection of the Act while on temporary as- signment outside of this country, particularly where extending the Act's protections would not interfere with the laws of an- other nation.” Id. The Third Circuit subsequently disagreed and denied enforcement of the Board’s order, finding no Congres- sional intent in the Act sufficient to overcome the presumption against extraterritorial application of Congressional statutes. Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168, 173 (3d Cir. 2004). Nevertheless, the Board’s decision remains agency prec- edent. See, e.g., Pathmark Stores, Inc., 342 NLRB 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981); and Iowa Beef Packers, 144 NLRB 615, 616 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964). In California Gas Transport, shortly after the Third Circuit’s Asplundh decision, the Board also asserted jurisdiction over the actions of an American employer towards its American work force for unfair labor practices committed in Mexico. Califor- nia Gas Transport, Inc., 347 NLRB 1314, 1316 (2006), enfd., 507 F.3d 847 (5th Cir. 2007). Relying on Asplundh, the Board reasoned that jurisdiction existed because the controversy did not involve Mexican employees or implicate Mexico’s laws or employment conditions, the remedial order only had effect within the United States, and asserting jurisdiction did not in- terfere with Mexico’s ability to regulate its commercial affairs. Id. at 1316–1317. The Board also noted that actions by an American employer towards its American work force would escape liability just because the conduct occurred across an international border. Id. The Fifth Circuit enforced the Board’s order, although it relied on the employer’s actions within the United States alone to justify its remedy of a bargaining order, without resolving the issue of jurisdiction. 507 F.3d 847, 854 (5th Cir. 2007). Bence’s complaints at the National Express meeting ad- dressed working conditions involving the Company’s opera- tions within the United States. As such, the dispute involves an employment relationship between an American citizen and an American corporation. The employment at issue is performed solely within the United States. Although Bence was not on duty while briefly in London, she was informed by the Compa- ny that she was still subject to her usual terms and conditions of employment while abroad. England’s ability to regulate its affairs is not affected. However, the alleged unfair labor prac- tice continued having an effect in the United States after Bence returned to work and told coworkers about Duke’s attempt to elicit information from her about the source of her funding for the trip. Under the circumstances, application of Board prece- dent in Asplundh and California Gas Transport to the afore- mentioned facts clearly establishes Board jurisdiction over this controversy. B. The Coercive Nature of Duke’s Inquiry Duke approached Bence in the lobby of the hotel on May 9, 2013, after she criticized company working conditions in the United States and her difficulties obtaining leave. The Compa- ny insists the encounter was not coercive in nature because Duke’s conversation with Bence, whose leave was approved, was pleasant and she spoke at the meeting at the invitation of a shareholder who funded her trip. In doing so, however, Bence spoke about employee working conditions at a location outside the workplace. That the location where she made such state- ments lies across the ocean is no more significant than if she made the statement at a restaurant across the street from her workplace. In either instance, she would be entitled to express her views about terms and conditions of employment without being interrogated by the Company’s highest-level manager in the United States. Duke’s inquiry, like the earlier coercive statements by Bauman and Downin, were a continuation of the unlawful interrogation regarding Bence’s leave request and the 1588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD funding for her trip. Accordingly, Duke’s question was coer- cive and violated Section 8(a)(1) of the Act. See Cardinal Home Products, Inc., 338 NLRB at 1007. IV. REDUCTIONS IN BENCE’S PAY AND HOURS The complaint alleges that the Company reduced Bence’s hours and pay in August 2014 because she engaged in protected concerted activities earlier that year. The Company does not dispute that Bence was well known to the Company as an avid union supporter. It asserts, however, Bence did not suffer ad- verse action, but if so, the route change was unconnected to her union-related activities. In determination of whether adverse employment action is attributable to unlawful discrimination, the Board applies the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Wright Line framework requires proof that an employee's union or other protected activity was a motivating factor in the employer’s action against the employee. 251 NLRB at 1089. The elements required to support such a showing are union or protected concerted activity, employer knowledge of that ac- tivity, and union animus on the part of the employer. Amglo Kemlite Laboratories, 360 NLRB 319, 325 (2014); Consolidat- ed Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). Proof of animus and discriminatory motiva- tion may be based on direct evidence or inferred from circum- stantial evidence. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004); Purolator Armored, 764 F.2d 1423, 1428– 1429 (11th Cir. 1985). Factors which may support an inference of antiunion motivation include employer hostility toward un- ionization, other unfair labor practices committed by the em- ployer contemporaneous with the adverse action, the timing of the adverse action in relation to union activity, the employer’s reliance on pretextual reasons to justify the adverse action, disparate treatment of employees based on union affiliation, and an employer’s deviation from past practice. 764 F.2d at 1429. If the General Counsel makes a prima facie case, the burden shifts to the employer to show that it would have taken the same adverse action even in the absence of the employee’s protected activity. 251 NLRB at 1089. If the employer shows that it would have taken the action for legitimate reasons re- gardless of the protected activity, the General Counsel may rebut that contention with evidence that the employer’s prof- fered explanation is pretextual, thereby restoring the inference of unlawful motivation. NLRB v. United Sanitation Serv., 737 F.2d 936, 939 (11th Cir.1984). The Company contends there were no meaningful changes in Bence’s route in August 2013 and she continued to service the same three schools she has served since 2011. Moreover, while Bence’s hours and pay may have been reduced from what they were between December 2012 and June 2013, they were con- sistent with her historical hours and pay over the past several years. The fact remains, however, that Bence received a new schedule when she took on a portion of Dore’s route in Decem- ber 2013 and proceeded to accrue significant overtime pay. The schedule was preliminarily confirmed at the first staff meeting in August 2013, but was changed by Willoughby a few days later. As a result of the scheduling change, Bence’s weekly work diminished by 2.51 hours (39.25 hours reduced to 36.74 hours per week). Although Bence’s schedule reverted to the one she enjoyed for years until December 2012, there is no credible evidence establishing that her December–June assign- ment was temporary in nature. As such, the August 2013 revi- sion to Bence’s schedule constituted adverse action. Cf. Webb v. International Business Machines Corp., 458 Fed. Appx. 871, 877 (2012) (failure to receive temporary assignment did not constitute adverse employment action). Although Bence suffered adverse action, the weight of the credible evidence strongly suggests that Willoughby made the scheduling change for legitimate business and operations rea- sons. The timing of the change is not suspect; it was announced at the beginning of the new school year. Moreover, Bence con- firmed the Company’s contention that it abhors the accrual of overtime work and pay, which concern was ameliorated when the Company returned that route to Dore and /or provided route support for Dore by dividing the effort among several other employees. The legitimacy of the Company’s action is not suf- ficiently undermined based on the Company’s commission of several unfair labor practices during the year prior to August 2014, including several coercive statements made to Bence. See FiveCAP, Inc., 294 F.3d 768, 781 (6th Cir. 2002) (where a legitimate reason exists for adverse action, antiunion animus cannot be simply inferred from separate acts involving other employees). Under the circumstances, the General Counsel failed to es- tablish that the adverse action experienced by Bence when the Company assigned her a new bus route in August 2013 was motivated by antiunion animus and the Section 8(a)(3) and (1) allegation is dismissed. V. BAGBY STATEMENTS AT THE PIER BAR The complaint alleges that on September 26, 2014, at the Pier Bar in Navarre, Bagby (a) interrogated employees, (b) informed employees it would be futile to select the Union, as it would take years for the Union to come in, (c) created an im- pression of surveillance, (d) and threatened employees that they would be required to join the Union and/or pay dues. The record revealed a history of indecisiveness on the part of Hammes and Rast as to whether to support the Union. They previously spoke with Bagby about the Union, including dues, and were well aware of his antiunion views. On one particular day in September 2014, however, they decided to participate in a union-sponsored practice strike at Navarre Park. Bagby ob- served them take part in that exercise on local television later that day. The next day, he invited Hammes and Rast to meet him at a local bar after work to discuss why they were not se- lected for trainer positions. Both agreed. Bagby did not initiate discussion about the Union or the payment of union dues. As indicated from Hammes’ testimony, discussion about the Union and the payment of dues came up after Bagby discussed the trainer position and his personal background. In fact, Hammes recalled that it was Rast who brought up the Union. Under the circumstances, the factual context provided does not support a conclusion that Bagby initiated an unlawful interrogation of Hammes and Rast or ut- DURHAM SCHOOL SERVICES, L.P. 1589 tered an unsolicited threat regarding the Union’s collection of dues during drawn-out litigation over representation, at the Pier Bar on September 26, 2014. Regardless of the fact that Bagby did not initiate the discus- sion about the Union, he did express other unsolicited views. Three of those crossed the line. In one instance, he opined it would be “years and years” before union representation materi- alized. That comment, blended into a conversation by a high- level supervisor about the potential for future promotion, rea- sonably suggested to Hammes and Rast that it would be futile to continue supporting the Union. Libertyville Toyota, 360 NLRB 1298 (2014), enfd., 801 F.3d 767 (7th Cir. 2015) (im- plicit threat of futility to select union). In the second instance, Bagby diverted the discussion by im- plying that he observed Rast and Hammes participate at the union-sponsored practice strike in Navarre Park. He also sug- gested that Rast, standing on top of a vehicle holding a proun- ion sign during the practice, should be careful who she was dancing with in Navarre Park. Although the event was on social media and local television, Bagby simply noted that he saw her “during the day.” He did not clarify, however, that his knowledge derived from television or social media, reasonably leaving them with the impression that their activities at the park were under surveillance by the Company. Under the circum- stances, Hammes and Rast would have reasonably assumed from Bagby’s comment that their Section 7 activities were un- der surveillance in violation of Section 8(a)(1). See Woodcrest Health Care Center, 360 NLRB 415 (2014), affd. in part, va- cated in part, 784 F.3d 902 (3d Cir. 2015); Golden Stevedoring Co., 335 NLRB 410, 416 (2001); the employees would reason- ably assume from the employer’s statements or conduct that their organizing activities have been placed under surveil- lance.” Michigan Roads Maintenance Co., 344 NLRB 617, 623 (2005) (unlawful interrogation where there was an “obvious connection” between the questioned activity and a contempora- neous unfair labor practice). Responding to Bagby’s coercive remark about her participa- tion in the practice strike, Hammes equivocated, telling Bagby she was unsure about her support for the Union. Bagby re- sponded by asking if Hammes “was pulling his leg” with her shifting allegiances. By questioning Hammes’s veracity after she indicted that she was not sure about her position, Bagby interrogated her unlawfully in violation of Section 8(a)(1). VI. THE UNION CAKES The complaint alleges that on December 19, 2014, Bagby prohibited employees at the Pace and Milton facilities from eating cake topped with the Union’s name. In addition, he al- legedly promulgated a rule at the Milton facility restricting the type of food that can be brought to potluck lunches. The Com- pany does not dispute what transpired at the Milton potluck lunch, but denies the allegations regarding the Pace potluck lunch and, in both cases, insists that this issue borders on the trivial. The parties agree that the applicable analysis is that which is applied to cases involving the wearing of union insignia. Both also agree that employees have a Section 7 right to display union insignia in the workplace, except where there are “special circumstances” justifying restrictions to the contrary. See Re- public Aviation Corp., 324 U.S. 793 (1945). Special circum- stances exist “when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees).” Komatsu America Corp., 342 NLRB 649, 650 (2004). Every year during the holiday season, the Company spon- sored a potluck lunch at each of its Santa Rosa County facili- ties. The Company provided food entrees, which employees supplemented with homemade and purchased food and des- serts. Their culinary contributions were neither coordinated nor restricted by supervisors or managers in any respect. On December 19, cakes topped with buses inscribed with un- ion insignia were brought to the Company-sponsored potluck lunches at the Milton, Pace, and Navarre facilities. The Navarre cake’s presence at that event was uneventful. However, the cakes brought to the Milton and Pace facilities encountered different fates. At the Pace facility, Bagby questioned an employee who placed the cakes on the food tables as to its origin. The employ- ee identified the local bakery where it came from, but that ex- planation did not satisfy Bagby and he instructed her to remove the cake because it was a Company function. After she suggest- ed smearing the icing on the school bus figurine so that the union insignia was no longer decipherable, Bagby relented (“if you want to”) and the cake remained. Bagby made a similar inquiry about the union cake at the Milton facility. After an employee explained that she did not know where it came from, Bagby directed it be removed and added the additional imped- iment that it was a Company event. Bagby offered two rationales for requiring employees to alter the cake or remove them altogether: employees failed to identi- fy the origin of the cakes and/or it was a Company-sponsored event. The Company explains the origination factor as a com- mon sense consideration relating to the health implications of a cake brought by an employee to a traditional potluck event. Common sense aside, there is no evidence that supervisors and managers ever concerned themselves in the past over the origin of food brought to potluck events. As such, Bagby’s actions were not justified based on past practice and were obviously aimed at eliminating the promotional value that the insignia atop the cake represented to the Union. In the absence of spe- cial circumstances, it is clear that Bagby spontaneously and unlawfully created a new rule for the obvious purpose of sti- fling Section 7 activity in violation of Section 8(a)(1). See Southern Monterey County Hospital, 348 NLRB 327, 346 (2006) (employer’s ban on wearing union insignia violated Section 8(a)(1) where it was not limited to patient care areas); Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004) (violation where rule was promulgated in response to union activity, would be reasonably construed as prohibiting Section 7 activity or was applied to restrict Section 7 rights). CONCLUSIONS OF LAW 1. The Company violated Section 8(a)(1) of the Act on Feb- ruary 22, 2013, when Supervisor Robert Bauman interrogated 1590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and polled employee Donna Marcus as to her voting preference in the representation election held that same day. 2. The Company violated Section 8(a)(1) on April 29, 2013, when Bauman interrogated employee Diane Bence as to wheth- er the Union would compensate her for attending a meeting of the Company’s parent organization in London, England during her requested leave, and again on May 1, 2013, by threatening to deny her leave request if that was the case. 3. The Company violated Section 8(a)(1) in May 2013 when Bauman and another supervisor, Bob Downin interrogated Bence about what she intended to say at the upcoming meeting of the Company’s parent organization in London, England. 4. The Company violated Section 8(a)(1) on May 9, 2013, when its chief executive officer, David Duke, interrogated Bence in London, immediately after she complained at the parent organization’s about Company working conditions, as to whether the Union paid for her trip. 5. The Company violated Section 8(a)(1) on September 26, 2014, when supervisor James Bagby told employees Samantha Rast and Ashley Hammes that it is futile to choose the Union for representation because it will take years for the Union to effectuate its representation, created the impression that Rast's union activities were under surveillance by telling her to watch who she dances with in Navarre Park, and interrogated Ham- mes about her union sympathies. 6. The Company violated Section 8(a)(1) on December 19, 2014, when Bagby spontaneously promulgated a rule prohibit- ing employees Vera Nowling-Driggers at the Pace facility and Donna Snead at the Milton facility from serving cakes because they were adorned with union insignia and/or could not identify the source of the cake. 7. The aforementioned unfair labor practices affected com- merce within the meaning of Section 2(6) and (7) of the Act. 8. All other complaint allegations not specifically addressed above are dismissed. REMEDY Having found that the Company has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended order omitted from publication.]