Colonial Parking, Inc.

National Labor Relations Board - Board Decisions

Jan 5, 2016

363 NLRB No. 90 (N.L.R.B. 2016)

363 NLRB No. 90
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Colonial Parking and Unite Here Local 23. Case 05–
CA–141241
January 5, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On September 30, 2015, Administrative Law Judge
Michael A. Rosas issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed 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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified.4

1 No exceptions were filed to the judge’s dismissal of the following
allegations: that the Respondent violated Sec. 8(a)(5) and (1) of the Act
by announcing a new policy that employees’ schedules are subject to
change based on operational needs without affording the Union an
opportunity to bargain over the change and its effects; that the Re-
spondent violated Sec. 8(a)(3) and (1) by refusing to give Yosef
Woldhanna a letter of recommendation; and that the Respondent violat-
ed Sec. 8(a)(3) and (1) by refusing to approve Elene Gebremariam’s
vacation request.
The judge found that the Respondent violated Sec. 8(a)(1) when its
Manager Mesfin Taye created the impression that employees’ protect-
ed, concerted activities were under surveillance. Pursuant to Sec.
102.46(b)(2) of the Board’s Rules and Regulations, the Respondent’s
bare exception to this finding without supporting argument is disre-
garded. Even if the exception were properly before us, we would af-
firm the judge’s finding, but in doing so we would not rely on New
Vista Nursing and Rehabilitation, 358 NLRB No. 55 (2012), cited by
the judge. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We affirm the judge’s conclusions that the Respondent violated
Sec. 8(a)(3) and (1) by warning, placing on probation, suspending, and
discharging Gebremariam because she engaged in protected, concerted
activity. In so doing, we note that regardless of whether the Respond-
ent’s attendance policy allowed late arrivals, with or without prior
notice, the Respondent failed to meet its burden of showing that the
discipline of Gebremariam was similar to the discipline of other em-
ployees who violated the attendance policy but did not engage in pro-
tected, concerted activity. We also note that the Wright Line standard
does not require a showing of particularized animus toward the em-
ployee’s specific protected activity. See Libertyville Toyota, 360
NLRB No. 141, slip op. at 4 fn. 10 (2014), enfd. 801 F.3d 767 (7th Cir.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Colonial
Parking, Washington, DC, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
“(c) Compensate Elene Gebremariam for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters.”
2. Substitute the following for paragraph 2(d).
“(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful warn-
ing, probation, suspensions, and discharge, and within 3
days thereafter, notify Elene Gebremariam that this has
been done and that said disciplinary actions will not be
used against her in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. January 5, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

2015); Encino Hospital Medical Center-Prime, 360 NLRB No. 52, slip
op. at 2, fn. 6 (2014). We therefore do not rely on the judge’s citation
to American Gardens Management, Co., 338 NLRB 644 (2002).
4 We shall modify the judge’s recommended Order to conform with
the judge’s unfair labor practice findings and in accordance with Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
We shall substitute a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we
violated 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-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT threaten you with discharge or other un-
specified reprisals because of your membership in or
support of Unite Here Local 23.
WE WILL NOT suspend, discharge, discipline, or other-
wise discriminate against you because of your member-
ship in or support for Unite Here Local 23.
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, within 14 days from the date of the Board’s
Order, offer Elene Gebremariam full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Elene Gebremariam whole for any loss
of earnings and other benefits resulting from her dis-
charge, less any net interim earnings, plus interest.
WE WILL compensate Elene Gebremariam for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file a report with the Social
Security Administration allocating backpay to the appro-
priate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warning, probation, suspensions, and discharge of
Elene Gebremariam, and WE WILL, within 3 days thereaf-
ter, notify her in writing that this has been done and that
the said disciplinary actions will not be used against her
in any way.
COLONIAL PARKING
The Board’s decision can be found at
www.nlrb.gov/case/05-CA-141241 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Timothy P. Bearese, Esq., for the General Counsel.
Peter G. Fischer and Bryan O’Keefe, Esqs. (Baker & Hostetler,
LLP), for the Respondent.
Samantha Schnoerr, Esq. (Unite Here), of Washington, D.C.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Washington, D.C. on July 7–10 and 13, 2015.
United Here Local 23 (the Union) timely filed a charge and two
amended charges and the General Counsel issued a complaint
on April 21, 2015. The complaint, as amended, alleges that two
managers employed by Colonial Parking at a Ritz-Carlton Ho-
tel in Washington, D.C. (the Company), at various times be-
tween August and December 2014,1 unlawfully interrogated
employees, created the impression that employees’ union activ-
ity was under surveillance, threatened employees with termina-
tion and other unspecified reprisals related to their union activi-
ties, and engaged in reprisals by disciplining, denying leave
requests and employment references to employees who en-
gaged in union activity. The Company denies the managers
made any coercive statements, asserts the alleged adverse ac-
tion against two employees were not motivated by discrimina-
tory animus, but rather, valid business reasons and practices,
and contends the allegations stem from the Union’s attempts to
exert pressure on the Company through the Board’s legal pro-
cesses during on-going first contract negotiations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, is engaged in providing park-
ing valet services at hotel facilities in Washington, District of
Columbia (the District) where it annually purchases and re-
ceives products, goods and materials valued in excess of $5,000
directly from points located outside the District. 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 National

1 All dates are in 2014 unless otherwise indicated.
COLONIAL PARKING 3
Labor Relations Act (the Act)2 and the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
The Company manages the parking operations of the two
Ritz-Carlton hotels in Washington, D.C.—one at 22nd Street
NW and another in the Georgetown section. It employs ap-
proximately 40 full-time and part-time valet attendants, lead
attendants, cashiers, and maintenance workers at both facilities.
Twenty-five of those employees are based at the Ritz-
Carlton’s 22nd Street location (the facility).
The allegations in the complaint focus on the activities of the
Company’s two managers at the facility—Mesfin Taye and
Hana Jorji. Taye, a former parking attendant fluent in English
and Amharic, has served as the Company’s senior operations
manager at both facilities since the Company took over the
facility’s parking contract from Central Parking on August 1,
2013. He worked in a similar capacity for Central Parking
before the transition in August 2013.
Jorji, a former cashier, has been the facility’s project manag-
er since 2012. In that capacity, she supervises daily operations,
sets employee schedules, approves leave requests, supervises
employee time, attendance and performance, and issues disci-
pline in consultation with Taye.
Taye and Jorji have a long history with unions, first as mem-
bers and then as managers. Jorji, in particular, was an active
supporter and shop steward with the Union and its predecessor,
Local 27. As managers, their labor relations with unions prior
to August 2013 have been uneventful. Taye is a member of the
Company’s collective-bargaining committee.3
Originally from Ethiopia like most of their subordinates,
Taye and Jorji succeeded in having the Company retain most of
them after it assumed operations in 2013. The employees who
made the transition included Elene Gebremariam, Fissha Abra-
ham, and Yosef Woldhanna, all involved in the activities of the
Union’s executive committee.4

2 29 USC §§ 151–169.
3 The Company attempted to elicit testimony from employee
Elfenesh Gedele that Taye never asked him about the Union. After the
General Counsel’s objection was sustained, the Company proffered
additional, but similarly objectionable, testimony by 23 witnesses who,
if allowed to testify, would have testified that it was not part of Taye’s
past practice to speak with employees about union matters, including
the petition. As indicated in the record, I refused to receive such testi-
mony, citing the inapplicability of FRE 406. I also explained the inap-
plicability of the past bad acts provision of FRE 404 in this instance.
(Tr. 381–385.) See United States v. Barry, 814 F.2d 1400, 1403–1404
(9th Cir.1987). In any event, there is no evidence, prior to 2014, that
Taye had any grievances or unfair labor practice charges filed against
him. Nor was there any evidence that he ever expressed antiunion
sentiments prior to August 2014. (Tr. 391–392.)
4 The contentions of Taye and Jorji that they advocated for the
Company’s retention of most personnel are undisputed. (Tr. 621–624.)
B. The Company’s Time and Attendance Rules
In August 2013, the Company provided employees with an
employee handbook which includes an attendance and punctu-
ality policy:
To maintain a safe and productive work environment, Coloni-
al Parking expects employees to be reliable and to be punctual
in reporting for scheduled work. Absenteeism and tardiness
place a burden on other employees and on Colonial. In the
more instances when you cannot avoid being late to work or
are unable to work as scheduled, you should notify your su-
pervisor as soon as possible in advance of the anticipated tar-
diness or absence, at a minimum of one hour in advance.5
The Company’s progressive disciplinary policy includes the
following levels of discipline: oral warning, written warning,
probation, suspension, and termination.6 The policy is not,
however, always implemented in a progressive manner as man-
agers have the discretion to assess the level of discipline
deemed appropriate under the circumstances.7
Instances of discipline for time and attendance were rare,
however, as the Company merely asked that employees notify
Jorji or, in her absence, Taye, in advance by cellular telephone
call or text message if they were going to be late or absent.
Jorji was easily accessible by telephone or text communication,
and it was only those instances of lateness or absence in which
employees did not call that created operational difficulties.8
C. The Union
Employees at both facilities were represented by the Union
during Central Parking’s tenure. As noted above, the Company
retained most Central Parking employees when it assumed the
facility’s parking operations in August 2013. On February 17,
the Company formally recognized the Union as their collective-
bargaining representative. The recognition agreement defines
the bargaining unit for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and part-time employees employed by Colonial
at the Ritz Carlton Parking operations located at 3100 South
Street, N.W. and 1150 22nd Street, N.W., in Washington,
District of Columbia, including Attendants, Valet Attendants,
Cashiers, and Maintenance employees, but excluding manag-
ers, confidential employees, clerical employees, guards, and
supervisors as defined in the National Labor Relations Act.9
D. Employee Scheduling Changes
During Central Parking’s parking operations at the facility
prior to August 2013, employee monthly schedules were posted
in the valet office on a board with a note at the top stating that
“no changes can be made without manager approval.” Below

5 The Company-wide distribution of the employee handbook is not
disputed. (R. Exh. 9; Tr. 129, 204, 337, 365, 394, 410–411, 620.)
6 GC Exh. 3.
7 The Company skips disciplinary levels when the nature of an in-
fraction warrants more severe discipline. (Tr. 556–559.)
8 Jorji provided undisputed testimony that she was easily accessible
during work and nonworking hours. (Tr. 581–582, 599, 617–618, 633–
635.)
9 GC Exh. 10.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the list of employees with assigned schedules were the names
of several on-call employees without assigned shifts.10
Upon assuming parking operations at the facility on August
1, 2013, the Company issued a policy regarding work sched-
ules, as reflected in the employee handbook, stating in pertinent
part:
Staffing needs and operational demands may necessitate vari-
ations in starting and ending times, as well as variations in the
total hours that may be scheduled each day and week.” . . .
Your work schedule may include assignments on Saturdays
and Sundays. At its discretion, the Company may require you
to work overtime, including weekends if necessary, depend-
ing on your position, assigned location, and general require-
ments of the business.11
Upon taking over parking operations in August 2013, with-
out notifying the Union, the Company implemented the afore-
mentioned scheduling policy by replacing the note at the top of
the posted monthly schedules with another one stating: “this
schedule is subject to change based on operation[al] needs . . .”
Employees’ schedules did not change, however, as a result of
the changes to the notation at the top of the posted monthly
schedules.12
E. Employees Unsatisfied With Collective Bargaining
Engage in Protected Activity
After the Company recognized the Union as its employees’
labor representative, the parties commenced bargaining. From
April to August, they met for two bargaining sessions, but were
unable to conclude an agreement. On August 1, several mem-
bers of the Union’s bargaining committee, including
Woldhanna and Abraham, met with Union Representatives
Sarah Jacobsen and Burt Bayou. They discussed bargaining
strategy and a series of actions demonstrating unity among unit
employees and their desire for a quick resolution. Toward that
end, Jacobsen and Bayou recommended generating a petition to
be signed by employees at both locations. The employees
agreed with that approach and Jacobsen and Bayou produced a
petition for these employees to circulate among coworkers at
both hotel locations.13 The “Petition for a Fair Contract” stated,
in pertinent part:

10 GC Exh. 9.
11 R. Exh. 9.
12 Several employees testified that the schedule posted during Cen-
tral Parking’s operations, GC Exh. 9, carried over until approximately
September, 2014, when it was replaced by GC Exh. 8. (Tr. 119–120,
125, 329–334, 342–343, 346, 354–355, 361, 364.) However, Jorji
identified the names of 10 employees (5 employees with scheduled
shifts and 5 on-call employees) listed on GC Exh. 9 who were not hired
by the Company after it assumed operations in August 2013. The Gen-
eral Counsel did not refute such evidence and, under the circumstances,
I find that the posted monthly schedule listed in GC Exh. 8 was posted
in August 2013, and still in place as of September 2014. (Tr. 693–697.)
13 There was conflicting and confusing employee witness testimony
as to the purpose of the petition and the dates of meetings and employ-
ees who attended. Some of this was attributable to difficulties with the
interpretation of witness testimony or the Company’s cross-
examination, which confused bargaining sessions with other employee
meetings. (Tr. 64–65, 74, 91–92, 100, 154, 322, 325–326.) I did, how-
Since the company has now started bargaining with us, we
would like to express our desires of what we believe we de-
serve. As valued workers of Colonial Parking at Ritz Hotels,
we demand to have the same rights and benefits as other un-
ion parking workers in the city…We ask that Colonial Park-
ing not delay our bargaining and to give us a contract that is
only fair to the hard work that we do to make its operations
successful.14
Woldhanna, Gebremariam, Abraham and Ayele Dema began
circulating the undated petition in August.15 Over the course of
August and September, a group of employees took the petition
to coworkers and secretly got 18 of them to sign it.16
Jacobsen and Bayou met again with employees at an area
church on September 13. Those in attendance included
Woldhanna, Gebremariam, and Abraham. They discussed
strategy, which included having coworkers sign the petition and
deciding how and when to deliver it to Taye.17
F. Taye and Jorji Interrogate and Threaten Employees
Notwithstanding the secretive nature by which employees
solicited petition signatures, the subsequent conduct of Taye
and Jorji reveals that they learned the names of employees who
circulated and/or signed the petition.
On August 13, after he began circulating the petition,
Woldhanna asked Taye for a letter of recommendation in con-
nection with an application for taxi driver’s license. Taye re-
fused and remarked: “you expect me to write you this letter
while at the same time you are making papers to sign petition to
join the Union . . . I have already reported to headquarters that
you are not going to join the Union . . . I could have written a
bad letter to you. Up until now you and we were like family
members, living in peace, in good terms. From now on, we are
not going to continue the sentiment of family-ship.” He also
asked Woldhanna why he thought the petition would not hurt
the Company and why he signed it.18
During late August, Jorji asked Tewodoros Wadimu, a valet
attendant, why he signed the petition. Wadimu lied, denying

ever, find Sarah Jacobsen generally credible and base most of the chro-
nology regarding the meetings on her testimony. (Tr. 28–29.)
14 GC Exh. 2.
15 Again, there was conflicting testimony among the General Coun-
sel’s witnesses as to when this activity began, but it, the credible evi-
dence indicates that the petition circulated among employees after mid-
August. (Tr. 81, 154, 350–351.)
16 The General Counsel’s witnesses provided vague testimony as to
when they signed the undated petition during August and September.
(Tr. 72, 154, 160.)
17 Jacobsen credibly recollected this date because it took place 2
days after the Ethiopian New Year. (Tr. 30.) The employee witnesses
confused this date with other meetings. (Tr. 94–95, 103–104, 219–220,
322, 336, 361.)
18 Woldhanna’s detailed version of the conversation was more cred-
ible than Taye’s explanation . (Tr. 73–74, 81–82, 102–103.) Taye in-
sisted he did not feel comfortable explaining the reasons to Woldhanna,
professing uncertainty about Woldhanna’s qualifications for a taxi
driver license. However, it also became clear that recommendation
letters were a personal decision and Taye did not always agree to pro-
vide one. (405–409, 527–530, 568–570.)
COLONIAL PARKING 5
that he signed the petition. Jorji responded that signing the peti-
tion was “useless” and “doesn’t help the employee.”19
During the same period of time, Jorji approached
Gebremariam in the cashier’s office and asked if she signed the
petition. Gebremariam acknowledged signing it. Jorji re-
sponded that, by signing the petition, the employees made her a
“liar” with the “office” and asked Gebremariam why she signed
the petition if she previously mentioned she would not join the
Union. Gebremariam denied ever telling Jorji that she would
not join the Union. Jorji concluded with a cryptic remark that
“whoever signed on this paper, you guys will pay for it.”20
Jorji followed up those remarks on September 1 by remind-
ing Gebremariam that she did employees a favor by getting
them rehired, and was being made out to be a “liar” to the
Company. She also mentioned how much “power” the Com-
pany had, including her ability to change schedules, knowing
that most of them had second jobs. Jorji concluded her remarks
by noting the Company could get the employees fired by “writ-
ing letters and letters.”21
G. Employees Attempt to Deliver Petition to Taye
On September 26, several employees, including Abraham,
Woldhanna and Dema, asked Taye to meet with them by the
cashier’s booth where Gebremariam was working at the time.
When Taye arrived, Woldhanna attempted to hand him the
petition. Although he did not read the document, Taye, indicat-
ing he knew what it was about, said there was a collective-
bargaining process in place, refused to accept it and instructed
any off-duty employees to leave. The employees left without
delivering the petition.22 Later that day, however, a copy of a
petition containing the signatures of seven employees at the
Georgetown location was faxed to the hotel and delivered to
Taye. Jorgi also learned about the petition on that day.23

19 I based this finding on the credible testimony of Wadimu over the
terse and conclusory denial of Jorji in response to leading questions.
(Tr. 117–119, 132–134, 687–688.)
20 Gebremariam’s testimony as to the August conversation with
Jorji was detailed, spontaneous and generally consistent. Moreover, her
reference to “petition” instead of “paper” when asked to testify again
about this incident was insignificant and, in all likelihood, attributable
to inconsistencies in the interpretation of her testimony. (Tr. 154–157,
166–167, 215–216, 221, 224–225, 228, 230, 237–238.) As such, I
credit her testimony over Jorji’s terse denials in response to leading
questions that any of the alleged conversations in August or September
occurred. (Tr. 683–687.)
21 I also credit Gebremariam’s testimony about a second incident in
which Jorji confronted her on September 1. (Tr. 165–167.), but do not
credit her vague testimony describing an October encounter that was
virtually identical to the August incident. (Tr. 167–169, 253–255, 301–
306.)
22 This occurrence is not disputed and the weight of the credible ev-
idence indicates Taye flatly refused to read the document or accept it.
However, it is also evident that he knew what the document was about
since he referred to the bargaining process and omitted any explanation
as to why he did not even ask his subordinates what it was about. (Tr.
86, 88, 324, 341–342, 352, 421, 496–497, 587.)
23 The faxed document was the third page of the petition that em-
ployees attempted to deliver to Taye that day. It contained only the
names of seven Georgetown location employees. (Tr. 420–421, 683; R.
Exh. 11.)
The petition, containing 25 signatures, including 18 from fa-
cility employees and 7 from Georgetown location employees,
was finally delivered to the general manager of the Ritz-Carlton
Hotel on November 21, 2014. It was on that day that Taye first
saw all four pages of the petition containing 26 signatures.24
H. Elene Gebremariam
Gebremariam worked as a cashier at the facility for 9 years
before her discharge in December. She previously served as a
shop steward and attended meetings of the Union’s executive
committee. Gebremariam’s relationship with Taye and Jorji
was uneventful until August when, as previously explained,
Jorji questioned her as to why she signed the petition.
1. Gebremariam’s vacation request
There was only one cashier on duty at any given time.
Gebremariam worked the weekday shifts from 7 a.m. to 3 p.m.
and was followed by another employee who worked until clos-
ing time at 10:30 p.m. Two part-time employees split the week-
end shifts.25
In the past, Gebremariam, would ask Jorji if she could take
time off on a particular date before submitting a leave request
form, copies of which were readily available to employees.26 If
Jorji agreed, Gebremariam would fill out a leave request form
and submit it for approval. During September 2014,
Gebremariam asked Jorji for time off because family would be
visiting in about 2 weeks. Jorji responded that there was no one
to replace her and Gebremariam did not bother to submit a
written leave request form.27 Had she submitted a form, the
Company’s practice was to routinely approve leave requests.
In fact, between August and December, Jorji and Taye ap-
proved written requests for vacation leave submitted by Abra-
ham, Dema, and Woldhanna.28
2. Elene Gebreariam’s discipline for late attendance
For years, Gebremariam was assigned a fixed shift from 7
a.m. to 3 p.m. For the past several years, however,
Gebremariam had a verbal agreement with Taye to arrive after
7 a.m. and stay later than 3 p.m., as needed. This resulted in
Gebremariam working less than 40 hours per week, kept her
within the public housing income limit, and enabled Taye to
avoid paying her overtime. As a result, Gebremariam usually
arrived late to work and was never disciplined prior to Septem-

24 Woldhanna incorrectly testified in his Board affidavit that he
helped collect 19 signatures. (Tr. 108.) It actually contained 18 signa-
tures on the first two pages from facility employees. Page 4 was identi-
cal to page 3, except that the latter had two additional signatures. (GC
Exh. 2; Tr. 43, 106, 495.)
25 GC Exh. 8.
26 The forms were available at both locations. (Tr. 338, 399, 401,
592–593.)
27 I found Gebremariam’s detailed version of this conversation more
credible than the terse denial offered by Jorji. However, there is no
proof demonstrating that someone was available to replace
Gebremariam during the period requested. (Tr. 163–164, 249–252, 266,
405, 680–682.)
28 Abraham’s vacation requests were approved in August and Octo-
ber. (Tr. 339–340, 402, 405, 608–609; R. Exh. 7.) Dema’s request was
approved in October. (Tr. 385; R. Exh. 10(d).) Woldhanna’s request
was approved in December. (R. Exh. 10 at 1–2.)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber.29 This was consistent with Taye and Jorji’s practice of not
disciplining any employees for lateness, and there were many
such instances in 2013 or 2014.30
Gebremariam’s arrangement with Taye was upended on Sep-
tember 12 when she arrived 3 hours late and received a verbal
warning. Earlier that morning, she called Jorji to advise that
she overslept and would arrive late. Upon arriving at work,
however, Gebremariam was called to a meeting with Taye and
Jorji. After they issued the verbal warning, Gebremariam ob-
jected to the discipline, noting her longstanding arrangement
with Taye. Taye replied that “from now on, there would not be
like before, it will never be like before.”31
About a week or two later, Jorji asked Gebremariam to cover
a special hotel event on November 4. Gebremariam, still seeth-
ing over Taye’s cancellation of her flexible-time arrangement,
refused. Taye subsequently approached Gebremariam about 2
weeks before the event and asked why she refused to come in
early to cover it. After Gebremariam attributed her refusal to
the September 12 discipline, Taye reinstated the previous flexi-
ble time arrangement if she agreed to cover the upcoming
event.
Gebremariam’s attendance practices returned to “normal” as
she resumed arriving to work after 7 a.m. over the next several
weeks. On October 30, however, Gebremariam got into an
automobile accident and arrived late to work as usual. She
called Jorji and informed her she would not arrive on time to
cover the November 4 event because of her accident.32
On November 4, after arriving late to work, Taye and Jorji
issued a notice placing Gebremariam on probation for 30 days.
Taye attributed the suspension to the fact that the flexible time
agreement was once again cancelled because Gebremariam
failed to cover the special hotel event earlier that day.
Gebremariam explained that she was late because of her acci-
dent. She disagreed with the discipline and initially refused to
sign the notice, but relented after Taye assured her it was only
to acknowledge receipt.33

29 Taye and Jorji denied Gebremariam’s assertion regarding a verbal
agreement in which she had flexibility in arriving to work after the start
of her shift at 7 a.m. (Tr. 36, 147–152, 204–206, 210, 410, 502–504,
549, 574–578, 583–584, 635–636, 728.) However, her testimony was
corroborated by Gebremariam’s time clock records from August 2013
to November 2014, indicating that she rarely arrived by 7 a.m. (GC
Exh. 4.)
30 The only instance that the Company could point to was the June
3, 2015 discipline of Ermias Getachew, an overnight valet attendant,
who received an oral warning after a no call/no show to work. (R. Exh.
12, 15.)
31 I credit Gebremariam’s recollection of this conversation because
Taye’s version—that she had never arrived 3 hours later before—was
also contradicted by time records. (Tr. 158–159, 415–416, 584, 637,
641, 709; GC Exh. 3; GC Exh. 4 at 12, 53, 59.)
32 Although Gebremariam’s excuse was vague, I credit her testimo-
ny that she called Jorji earlier that day to say she would be late. (Tr.
171, 174, 218.)
33 I credit Gebremariam’s version of this conversation, as corrobo-
rated by the timing of the special hotel event on November 4. (Tr. 173–
174, 672; GC Exh. 5.) Jorji acknowledged that Gebremariam had a
medical appointment on that day (Tr. 672.), but still wrote her up be-
cause she failed to arrive early, by 6:30 a.m., for the special event. (Tr.
Over the next several days, Gebremariam arrived to work on
time.34 During the morning of November 7, however, she got
into an argument with Abiy Habtemariam, a valet attendant,
who only provided a picture of a claim check presented by a
customer. For security reasons, Gebremariam insisted
Habtemariam get a copy of the customer’s driver’s license and
an argument ensued. Subsequently, Gebremariam retaliated
against Habtemariam by refusing to hand him a customer’s car
keys when it was his turn to retrieve a vehicle. Habtemariam
repeatedly asked her for the keys, but she refused to hand them
to him. Another valet, Ashenafi Balcha, tried to calm her
down, but she was angry and continued to refuse
Habtemariam’s requests. Habtemariam missed two more turns
in the rotation and was steaming as Gebremariam continued
handing car keys to Balcha. At some point, they argued in
front of a customer waiting for his vehicle. Gebremariam men-
tioned to Balcha that the customer was waiting, but still warned
him not to give the keys to Habtemariam. An angry
Habtemariam grabbed Balcha’s hand and insisted he give him
the key because it was his turn. Balcha tried unsuccessfully to
calm Habtemariam down and assured him that he would give
him the tip. Gebremariam left the cashier’s booth, told them to
stop arguing and implored Balcha to get the vehicle because the
customer was watching the episode unfold. At some point,
Gebremariam called security and then called Jorji to complain
that Habtemariam was interfering with her work.35
After the argument, Taye and Jorji interviewed
Gebremariam, Habtemariam, and Balcha. Each described
his/her version of the incident. Later that day, Taye suspended
Gebremariam, but did not discipline Habtemariam in any re-
spect. Her 2-day suspension notice also alluded to
Gebremariam’s discipline on November 4 for lateness.36
Upon returning to work on November 14, Gebremariam ar-
rived late at 7:45 a.m. and explained to Jorgi that she locked
herself out of her apartment by accident. Jorji said that she did
not care. After learning later that day that Gebremariam arrived
late, Taye told Jorji to inform Gebremariam that she was sus-
pended pending investigation.37

643–644.) Taye simply relied on the fact that Gebremariam arrived less
than an hour late on October 30 and had been warned on September 12.
(Tr. 424.)
34 GC Exh. 4 at 89–90.
35 Gebremariam and Habtemariam provided slightly different ac-
counts of the incident (Tr. 175–179, 184–185, 247, 429, 476, 478, 651,
653, 655–656, 764–766–774.) However, the very credible testimony of
Balcha provided the most credible account of the incident, essentially
laying blame on both participants. (Tr. 476–477, 484-486.)
36 The incident was clearly a serious one, especially with the hotel’s
events manager calling Taye to report a related complaint later that day.
(Tr. 433, 463–464, 471, 656–657; R. Exh. 17) Neither Taye nor Jorji
provided an explanation, however, as to why Habtemariam was not also
disciplined to any extent for his conduct during the incident. (GC Exh.
6; Tr. 185–188, 426, 434–435, 661–664.)
37 I did not give any weight to Gebremariam’s testimony that Taye
attempted to harass, sexually harass or assault her on November 14.
(Tr. 198-199.) Any altercation between Gebremariam and Taye on
November 14, given the former’s assertion that any discipline issued
her in November was due to her “union leadership,” had no bearing on
the labor related acrimony leading up to that point.
COLONIAL PARKING 7
On November 15, Jorji called Gebremariam and informed
her she was suspended.38 On December 12, the Company noti-
fied Gebremariam that she was terminated after she declined to
accept the Company’s December 9, 2014 “last chance” agree-
ment relating to the November 15 suspension.39 The notice
stated that termination was based on a “failure to comply with
company policies.40
LEGAL ANALYSIS
I. STATEMENTS BY TAYE AND JORJI
The complaint alleges that Company Supervisors Taye and
Jorji made unlawful statements to Gebremariam, Wondimu,
and Woldhanna in August and September 2014, in violation of
Section 8(a)(1). The Company denied that the allegations.
A. Taye’s Statements Regarding the Union
On August 13, after he began circulating the petition,
Woldhanna asked Taye for a letter of recommendation in con-
nection with his application for taxi driver’s license. Taye’s
response indicated his utter disappointment with Woldhanna’s
role in generating the petition and suggested that he would have
written a bad recommendation letter. Describing their relation-
ship prior to that point like close family members who enjoyed
a good working relationship, Taye predicted the petition would
hurt the Company and asked why Woldhanna signed it. He
warned that the relationship would change. In expressing his
disappointment, Taye alluded to the interest of his superiors at
Company “headquarters,” to whom he reported that Woldhanna
would not join the Union.
Conversations about union activity between employers and
employees are considered lawful when they involve open union
supporters, in a casual setting, and are unaccompanied by coer-
cive statements. Toma Metals Inc., 342 NLRB 787 (2004) (law-
ful for a supervisor to ask an employee what is up with the
rumor of the union where they had a friendly relationship);
Emery Worldwide 309 NLRB 185, 186–187 (1992) (no viola-
tion where a low-level supervisor engaged in a casual, amicable
conversation with an employee that did not involve coercive
statements).
Taye’s statements in response to Woldhanna’s requests for a
letter of recommendation violated Section 8(a)(1) in several
respects. First, they reasonably conveyed the message that
Woldhanna’s secret union activities in generating the petition
and soliciting employee support were under surveillance by the
highest level manager at the facility. Register Guard, 344
NLRB 1142, 1144 (2005) (the Board’s test for an unlawful
impression of surveillance is “whether the employee would
reasonably assume from the statement that their union activities
had been placed under surveillance”); New Vista Nursing and
Rehabilitation, 358 NLRB No. 55, slip op. at 15 (2012) (unlaw-
ful impression of surveillance created “when an employer re-
veals specific information about a union activity that is not
generally known, and does not reveal its source”); Flexsteel

38 The suspension was paid but a stop payment was placed on the
paycheck mailed to Gebremariam. (R. Exh. 1; Tr. 190, 198, 668.)
39 R. Exh. 2.
40 GC Exh. 7.
Industries Inc., 311 NLRB 257, 257 (1993) (employer created
the unlawful impression of surveillance when circumstances
indicated that the employer was closely monitoring the degree
of an employee’s union involvement).
Second, Taye’s inquiry as to why Woldhanna signed the pe-
tition and did not realize that it would hurt the Company consti-
tuted unlawful interrogation. Although the record does not
establish a prior history of antiunion hostility, Taye confronted
Woldhanna at work in a hostile manner in an effort to intimi-
date him for engaging in protected activity relating to employ-
ees’ efforts to attain a first collective-bargaining agreement.
The remarks were a clear message that engaging in Section 7
activity was harmful to the Company. Hoffman Fuel Co., 309
NLRB 327, 327 (1992) (employer’s questioning coupled with a
veiled threat unlawful where there was no legitimate purpose
for ascertaining the employee’s prospective union activities).
Lastly, the remarks also constituted an unspecified threat of
future reprisals since, unlike the close and good relationship
that they enjoyed in the past, Taye warned Woldhanna’s terms
and conditions of employment would change for the worse
because of his protected activities. Atlas Logistics Group, 357
NLRB No. 37, slip op. at fn. 2 (2011) (employer’s unspecified
threats of reprisal due to employee’s Section 7 were unlawful);
F. W. Woolworth Co., 310 NLRB 1197, 1200 (1993) (employ-
er’s statement that “if you think I’m a bitch now, wait” consti-
tuted an unlawful threat of reprisal).
B. Jorji’s Statements regarding the Union
Sometime in August, Wondimu, a valet attendant, secretly
signed the petition seeking a first collective-bargaining agree-
ment which, at the time, had not yet been presented to the
Company. During late August, Jorji, the second highest level
supervisor at the facility, surprised Wondimu at work by asking
why he signed the petition. The conversation occurred outside
the presence of Wondimu’s coworkers. Obviously intimidated
by his supervisor, Wondimu denied signing the petition. Jorji
concluded the coercive exercise by adding that signing the peti-
tion was “useless” and “doesn’t help the employee.” Jorji’s
interrogation violated Section 8(a)(1). Sunnyvale Medical Clin-
ic, 277 NLRB 1217, 1217 (1985) (the Board analyzes the totali-
ty of the circumstances to determine whether an interrogation
reasonably tends to restrain, coerce, or interfere with employees
in the exercise of their Section 7 rights); BJ’s Wholesale Club,
319 NLRB 483, 484 (1995) (interrogation was unlawfully coer-
cive where a supervisor unexpectedly approached an employee
who was not an open union supporter, began to directly ques-
tion the employee about her stance on the union, and communi-
cated an antiunion message).
During the same period of time, Jorji approached
Gebremariam in the cashier’s office and asked if she signed the
petition. After Gebremariam acknowledged signing it, Jorji
responded that, by signing the petition, the employees made her
a “liar” with the “office.” She then asked Gebremariam why
she signed the petition if she previously told Jorji she would not
join the Union. Gebremariam denied making such a statement.
Jorji concluded the conversation with a cryptic remark that
“whoever signed on this paper, you guys will pay for it.” Jorji’s
statements during this encounter constituted an unlawful inter-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rogation and unspecified threat that Gebremariam and anyone
else who signed the petition would experience undesirable
changes to their terms and conditions of employment. Atlas
Logistics Group, supra at fn. 2 (employer statements making
unspecified threats of reprisal for an employee’s engaging in
Section 7 activities violate Section 8(a)(1) of the Act); F. W.
Woolworth Co., 310 NLRB at 1200; Hoffman Fuel Co., 309
NLRB at 327.
Jorji followed up those remarks on September 1, 2014 by
reminding Gebremariam that she was responsible for getting
Gebremariam and her coworkers rehired by the Company, yet
they repaid her by making her look like a ‘liar” with the Com-
pany. That remark gave the reasonable impression that Jorji’s
superiors were not pleased that employees engaged in Section 7
activity by taking a more aggressive approach toward a first
contract and were inclined to punish those who persisted. Jorji
described two likely avenues of reprisal based on the Compa-
ny’s “power” over such employees: (1) a more stringent en-
forcement of Company rules in order to facilitate the termina-
tion of such employees; and (2) changing employees’ schedules
in ways that would interfere with their ability to attend to se-
cond jobs. These statements constituted clear threats of dis-
charge or unspecified reprisals in violation of Section 8(a)(1).
Publix Super Markets, Inc., 347 NLRB 1434, 1435 (2006) (su-
pervisor’s threats to discipline or discharge employees for con-
certed activity violated Section 8(a)(1)); Braswell Motor
Freight Lines, 156 NLRB 671, 674–675 (1966) (supervisor’s
statement that “you can see the trouble signing cards has
caused” was an unlawful threat of discharge in the context of a
discussion about another employee’s termination).
II. EMPLOYEE SCHEDULING CHANGES
The complaint alleges that the Company announced a new
policy on or about October 2014 that employees schedules are
subject to change based on operational needs. It is further al-
leged that, by announcing such a change to employees terms
and conditions of employment without affording the Union an
opportunity to bargain over such a change and the effects of
this change, the Company violated Section 8(a)(5) and (1) of
the Act.
The General Counsel does not dispute the applicability of the
company rule as set forth in the employee handbook, but relies
on its implementation through a posted monthly schedule. Prior
to August 2013, the posted monthly schedule stated that sched-
ules could only be changed with management approval. When
the Company took over in August 2013, however, the afore-
mentioned statement on the posted monthly schedule regarding
changes was replaced with one stating that all employees’
schedules are subject to change based on operational needs.
The Section 8(a)(5) charge, however, is premised on the notion
that the change occurred in October 2014, which did not occur.
Therefore, the Company’s change in its employee scheduling
policy in August 2013 did not violate Section 8(a)(5) and is
dismissed.
III. THE REFUSAL TO GIVE WOLDHANNA A LETTER
OF RECOMMENDATION
The complaint alleges that the Company discriminated
against Woldhanna in violation of Section 8(a)(3) of the Act by
refusing to give him a letter of recommendation because he
assisted the Union and engaged in concerted activities. The
Company denies the allegations, asserting that Taye did not feel
comfortable providing a recommendation for a taxi driver li-
cense application and was entitled to rely on his personal dis-
cretion.
In order to establish unlawful discrimination under Section
8(a)(3) of the Act, the General Counsel must show that an em-
ployee engaged in protected Section 7 activity, the employer
had knowledge of the employee’s protected activity, animus
against the employee’s Section 7 activity, and the employer’s
animus was a motivating factor in the decision to take adverse
action against the employee. Wright Line, 251 NLRB 1083,
1089 (1980); FES, 331 NLRB 9 (2000) (clarifying the alloca-
tion of burdens in the Wright Line framework).
Taye’s unlawful remarks to Woldhanna on August 13—how
Woldhanna could expect him to write him a letter of recom-
mendation while he was involved in generating a petition for a
first contract—confirm Taye’s knowledge that Woldhanna was
engaged in protected concerted activities on behalf of the bar-
gaining unit. They further revealed the animus that Taye har-
bored toward such activity and its direct connection to his deci-
sion declining to sign a letter of recommendation for
Woldhanna enabling him to apply for a taxi driver’s license.
Austal USA, LLC, 356 NLRB No. 65 (2010) (employer’s
statements to employee that indicated animus towards the em-
ployee’s protected activity established unlawful discriminatory
motivation); Wells Fargo Armored Services Corp., 322 NLRB
616, 616 (1996) (unlawful motivation found where employer’s
threatened consequences of protected activity were consistent
with actions taken against employees for protected activity).
The only issue here is whether Taye’s discriminatory refusal
resulted in adverse action with respect to a term or condition of
employment. There is Board precedent holding it unlawful to
refuse an employee a reference letter because he/she engaged in
protected conduct. See Café La Salle, 280 NLRB 379, (1986)
(violation of Section 8(a)(4) for employer to refuse to give an
employee a letter of recommendation for another job due to
involvement in proceedings before the Board). Here, however,
the General Counsel failed to meet his burden of establishing
the regularity with which Taye issued reference letters since
there is undisputed evidence that he also refused certain re-
quests. See Eugene Iovine, Inc. 353 NLRB 400 (2008), reaf-
firmed 356 NLRB No. 134 (2011) (practices are terms and
conditions of employment when they occur regularly and fre-
quently such that employees could reasonably expect the prac-
tice to continue); Sunoco, Inc., 349 NLRB 240, 244 (2007)
(“employer’s regular and longstanding practices that are neither
random nor intermittent become terms and conditions of em-
ployment”). As previously explained, Taye’s otherwise dis-
criminatorily motivated statements for denying the request were
coercive in several respects and violated Section 8(a)(1), there
is insufficient credible evidence demonstrating that letters of
reference were among the terms and conditions of employment
that Company employees have come to expect on a regular
basis. Thus, the refusal to grant Woldhanna a letter of recom-
mendation did not constitute adverse action and this charge is
COLONIAL PARKING 9
dismissed.41
IV. THE COMPANY’S TREATMENT OF GEBREMARIAM
The complaint alleges that the Company discriminated
against Gebremariam in violation of Section 8(a)(3) of the Act
by refusing her vacation request and then issuing a series of
disciplinary actions that ultimately resulted in her discharge on
December 12. The Company denies the allegations, asserting
that she was discharged based on her disciplinary history and
refusal to sign a “last chance” agreement to return to work.
As in the case of the Company’s response to Woldhanna’s
request for a letter of recommendation, the General Counsel
must show that an employee engaged in protected Section 7
activity, the employer had knowledge of the employee’s pro-
tected activity, animus against the employee’s Section 7 activi-
ty, and the employer’s animus was a motivating factor in the
decision to take adverse action against the employee. Wright
Line, supra at 1089.
Gebremariam engaged in protected concerted activity by
signing the petition in August advocating for a collective-
bargaining agreement. Jorji’s knowledge of and animus toward
Gebremariam’s Section 7 activities became evident toward the
end of August and beginning of September when she angrily
interrogated and threatened Gebremariam because she signed
the petition. Austal USA, LLC, supra at 363. Jorji was extreme-
ly resentful of Gebremariam’s activity because she had assured
her superiors that Gebremariam and others would not engage in
such activity and it made her look like a liar with the Company.
Her remarks were significant since they threatened the eventual
termination of employees through stricter enforcement of com-
pany rules and changing employees’ schedules in order to cre-
ate havoc with the ability of most employees to perform their
second jobs. Taye subsequently reinforced those remarks by
revoking his longstanding arrangement with Gebremariam
permitting her to arrive late to work nearly every day.
A. Denial of Gebremariam’s Vacation Request
Whether Jorji’s denial of a vacation request was motivated
by animus or even qualifies as adverse action, however, is not
as evident. Gebremariam, as she had in the past, asked Jorji if
she could take time off a few weeks later. Jorji responded neg-
atively, indicating that she had no one to cover the cashier posi-
tion for Gebremariam. Gebremariam was only one of 4 cash-
iers on staff, 2 of whom are full-time during weekdays and 2 of
whom work part-time on weekends. The General Counsel did
not establish that one of the other 3 cashiers were available to
cover Gebremariam’s scheduled shifts during the requested
leave period. As a result, Gebremariam did not bother to submit
the required leave request form even though leave was routine-
ly granted during the same period of time to other employees

41 Had I determined that Taye’s denial to issue a recommendation
letter constituted adverse action, the burden would have shifted to the
Company to demonstrate that it would have taken the same action even
in the absence of the protected conduct. Wright Line, supra at 1089.
There is no doubt that the Company failed to sustain its burden, as Taye
failed to provide a credible, detailed explanation for his refusal as to
Woldhanna’s request. Consolidated Bus Transit, 350 NLRB 1064,
1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009).
engaged in protected concerted activities. As such, there is
insufficient proof demonstrating that Gebremariam suffered an
adverse action or that her oral request for leave was denied due
to discriminatory reasons. American Gardens Management,
Co., 338 NLRB 644, 645 (2002) (motivational link or nexus
must be shown connecting the employee’s protected activity
and the adverse employment action).
B. Gebremariam’s Discipline
The disciplinary events that unfolded during this period,
however, clearly constituted adverse action—the September 12
oral warning, the November 4 probation, the November 7 sus-
pension, the November 15 suspension, and the December 12
discharge.
The first of these events, the September 12 warning, unfold-
ed shortly after Jorji’s interrogation and threats relating to
Gebremariam’s protected concerted activities in signing the
petition in August. Gebremariam arrived late to work that
morning, as she did routinely prior to that date without ever
being disciplined. Even though Gebremariam called Jorji earli-
er that morning to report that she would arrive late, Jorji still
issued her an oral warning to comply with the Company’s time
and attendance rules. Coupled with the absence of any prior
history of enforcement of its time and attendance rules, the
Company’s decision to suddenly discipline Gebremariam for
coming late to work was attributable to discriminatory motiva-
tion.
The retaliatory consequences of Jorji’s threats snowballed af-
ter Gebremariam’s coworkers attempted to deliver the petition
to Taye on September 26 at the cashier’s booth where
Gebremariam was working.
Prior to November 4, Taye reinstated his agreement with
Gebremariam permitting her to routinely arrive late to work.
On that day, Gebremariam arrived late to work, disappointing
Taye and Jorji because she failed to arrive early in order to
cover a special event at the facility. Thus, after permitting
Gebremariam to resume reporting late for work for at least
several weeks, Taye cancelled the agreement again and placed
her on a 2-day suspension. The conflicting reasons offered by
Taye and Jorji for the suspension—Gebremariam’s pattern of
lateness and her failure to arrive early for the special event –
reveal shifting defenses. See Lucky Cab Co., 360 NLRB No.
43, slip op. at 6 (2014) (finding of animus supported by persua-
sive evidence that employer’s reasons for discharge were
pretextual and included the use of shifting explanations); NLRB
v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1268 (7th Cir.
1987) (upholding an unlawful animus finding based upon cir-
cumstantial evidence and close timing of adverse actions to
organizing activity). When coupled with Taye’s inexplicable
leapfrog over the next disciplinary level of a written warning to
probation, the evidence strongly supports an inference of dis-
criminatory motivation. Embassy Vacation Resorts, 340 NLRB
846, 848 (2003), rev. denied 2004 WL 210675 (D.C. Cir. 2004)
(inference of unlawful motive drawn from inconsistencies be-
tween the proffered reasons for discipline employer’s other
actions, disparate treatment of employees with similar work
records or offenses, deviations from past practice, or proximity
of discipline to union activity).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The November 4 discipline subsequently mushroomed into a
2-day suspension on November 7 after Gebremariam got into a
workplace dispute with Habtemariam, a valet attendant. Their
altercation in front of a hotel customer was certainly inappro-
priate. The incident, accurately reported to Taye by a neutral
and credible coworker, revealed that Gebremariam and Abbe
both engaged in misconduct. However, Habtemariam, equally
at fault for carrying on in front of a customer whose complaint
was reported to the facility, was not even counseled.
The November 7 suspension was also unlawfully motivated
for several reasons. First, it was premised in part on the previ-
ous unlawful discipline. See Dynamics Corp., 296 NLRB 1252,
1253–1254 (1989), enfd. 928 F.2d 609 (2d Cir. 1991) (disci-
pline or discharge of an employee is a violation of the Act
where it is tainted by reliance on prior discipline that was un-
lawful under the Act). Second, the suspension was a clear ex-
ercise of disparate treatment since Taye was also informed
about Habtemariam’s misconduct during the incident, but did
not discipline him in any manner. See Embassy Vacation Re-
sorts, 340 NLRB at 848 (inference of unlawful motive drawn
from “disparate treatment of certain employees compared with
employees with similar work records or offenses”).
After a long history of accommodating Gebremariam’s rou-
tine lateness, the Company was waiting to pounce when she
returned to work after the suspension on November 14. That
day, however, she arrived 45 minutes late. The following day,
November 15, she was suspended pending an “investigation”
that resulted in her discharge on December 12. Gebremariam’s
November 15 suspension and December 12 discharge also em-
anated from the three previous unlawful disciplines. Addition-
ally, the discipline runs counter to the Company’s virtually
nonexistent enforcement of its time and attendance rules.
Under the circumstances, the September 12 oral warning,
November 4 probation, November 7 suspension, November 15
suspension, and the December 12 discharge were issued to
Gebremariam in violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By stating on August 13, 2014 that an employee petition
advocating for a first collective bargaining would hurt the
Company and asking an employee why he signed it, the Com-
pany gave the impression that employees’ protected concerted
activities were under surveillance, and constituted coercive
interrogation and an unspecified threat of future reprisals in
violation of Section 8(a)(1) of the Act.
2. By questioning employees in August and September,
2014, as to why they signed a petition advocating for a first
collective-bargaining agreement, referring to the petition as
“useless,” stating it “doesn’t help the employee,” threatening
that employees who signed the petition that things will change
for the worse and employees “will pay for it” by more stringent
terms and conditions of employment, including discharge, the
Company violated Section 8(a)(1) of the Act.
3. By warning, placing on probation, suspending and ulti-
mately discharging Elene Gebremariam because she engaged in
protected concerted activity by signing the petition, the Com-
pany violated Section 8(a)(3) and (1) of the Act.
4. By the aforementioned violations, the Company has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
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.
The Company, having discriminatorily discharged an em-
ployee, must offer her reinstatement and make her whole for
any loss of earnings and other benefits. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
The Company shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. The Company shall also compensate the
discriminatee for the adverse tax consequences, if any, of re-
ceiving one or more lump-sum backpay awards covering peri-
ods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44
(2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
The Company, Washington, D.C., its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Giving employees the impression that we are watching
their activities on behalf of Unite Here Local 23.
(b) Coercively interrogating employees about their support
for or activities on behalf of Unite Here Local 23.
(c) Threatening employees with termination or other un-
specified reprisals because of their membership in or support of
Unite Here Local 23.
(d) Suspending, terminating, or otherwise disciplining em-
ployees because of their membership in or support of Unite
Here Local 23.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Elene Gebremariam full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Elene Gebremariam whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the
decision.

42 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
COLONIAL PARKING 11
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful warning, sus-
pensions and discharge, and within 3 days thereafter notify the
employee in writing that this has been done and that said disci-
plinary actions will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Washington, D.C., copies of the attached notice
marked “Appendix.”43 Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Company customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Company to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Company has
gone out of business or closed the facility involved in these
proceedings, the Company shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Company at any time since
August 13, 2014.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Company Respondent has taken to comply.
Dated, Washington, D.C. September 30, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

43 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT suspend, discharge, discipline or otherwise
discriminate against you because of your membership in or
support for Unite Here Local 23 or any other union.
WE WILL NOT threaten you with suspension, discharge or
other unspecified reprisals because of your membership in or
support of Unite Here Local 23.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT give you the impression we are watching your
activities on behalf of Unite Here Local 23 or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Elene Gebremariam full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Elene Gebremariam whole for any loss of
earnings and other benefits resulting from her discharge, less
any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Elene Gebremariam for the adverse tax
consequences, if any, of receiving a lump-sum backpay award
covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Elene
Gebremariam, and WE WILL, within 3 days thereafter, notify her
in writing that this has been done and that the discharge will not
be used against her in any way.
COLONIAL PARKING
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-141241 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.