Milum Textile Services

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 2047 (N.L.R.B. 2011)

MILUM TEXTILE SERVICES CO.
357 NLRB No. 169
2047
Milum Textile Services Co. and UNITE HERE! Cases
28–CA–020898, 28–CA–020906, 28–CA–020973,
28–CA–021050, and 28–CA–021203
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On October 5, 2007, Administrative Law Judge Lana
H. Parke issued the attached decision.1 The Respondent,
the General Counsel, and the Charging Party each filed
exceptions, a supporting brief, an answering brief, and a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,2
findings, and conclusions3 as modified, to modify the

1 This proceeding was heard on several dates in March and April
2007, in Phoenix, Arizona, before Administrative Law Judge Joseph
Gontram (the trial judge), now deceased. On August 7, 2007, the case
was transferred to Administrative Law Judge Lana H. Parke (the judge)
to render a decision based on the record made, all parties having agreed
to that procedure.
2 The Respondent has implicitly excepted to some of the judge's
credibility findings. The Board's established policy is not to overrule
an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In her decision, the judge inadvertently referred to Respondent’s
production supervisor, Jamie Chavez, as “Mr. Garcia” at p. 12, LL.
39–40. At par. 2(a) of the Order, the judge inadvertently directed rein-
statement of Evangelina Guzman. Guzman was unlawfully suspended.
The issue of Guzman’s termination was not before the judge.
3 We adopt the judge’s findings, in the absence of exceptions, that
the Respondent violated Sec. 8(a)(1) of the Act by granting employees
the benefit of providing nametags, impliedly threatening to reduce
employees’ wages if they selected the Union, and interrogating em-
ployees during preparation for the hearing in this case.
We also adopt the judge’s findings, for the reason she stated, that the
Respondent violated Sec. 8(a)(1) by promulgating and maintaining a
rule prohibiting employees from wearing union buttons while working,
and violated Sec. 8(a)(3) and (1) by suspending employee Evangelina
Guzman because she refused to take off a union button and by discrim-
inatorily discharging employees Denise Knox and Soe Moe Min.
Chairman Pearce and Member Becker find it unnecessary to pass on
the allegation that the Respondent solicited and promised to remedy
employee grievances when President Craig Milum told employees that
he would talk to Manager Angela Kayonnie after the employees com-
plained about her, as any such finding would be cumulative of the
violation involving the Respondent’s unlawful provision of nametags,
above, and therefore would not materially affect the remedy. Member
Hayes also does not find the violation, but he would adopt the judge’s
dismissal for the reasons the judge stated: After employees complained
about Manager Kayonnie, President Milum specifically refused their
requests to remove her and told employees that Kayonnie was a very
good supervisor. His statement that he would talk to her in no way
remedy, and to adopt the recommended Order as modi-
fied and set forth in full below.4
This case arises out of the Union’s efforts to organize
the Respondent’s approximately 70 commercial laundry
workers beginning in February 2006.5 The Union sought
to educate the public about its efforts and gain public
support through a publicity campaign that included let-
ters and handbills directed to the public at large, the Re-
spondent’s restaurant customers, and the customers’ pa-
trons.
I. THE RESPONDENT’S LAWSUIT AGAINST THE UNION
The complaint alleges that the Respondent unlawfully
filed a complaint and motion for a temporary restraining
order (TRO) in the United States District Court for the
District of Arizona, and unlawfully maintained its law-
suit for approximately 1 month. We agree with the ad-
ministrative law judge, but for different reasons as de-
scribed below, that the Respondent’s filing and mainte-
nance of the motion for a TRO violated Section 8(a)(1).
We have decided, however, to remand this case to the
judge to analyze whether the remaining aspects of the
litigation (the filing and maintenance of the District
Court complaint until shortly after the TRO proceeding)
were similarly unlawful.

amounted to a promise to change conditions, particularly here, where
he expressly denied their requests.
Except as discussed herein, we affirm the judge, for the reasons she
stated, with respect to the remaining complaint allegations that she
dismissed. In dismissing the allegation that the Respondent unlawfully
interrogated employee Ruiz about whether she was distributing buttons
during worktime, Member Becker notes that the Respondent had a
reason to believe that Ruiz had previously distributed union buttons
during working time. In dismissing the allegation that the Respondent
unlawfully disciplined employee Guzman in December 2006 and Janu-
ary 2007, Chairman Pearce and Member Becker find it unnecessary to
rely on the portion of the judge’s rationale that appears to suggest that
the Respondent’s inconsistent disciplinary history made it easier for the
Respondent to meet its rebuttal burden under Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Member Hayes would adopt the judge’s findings for
the reasons she stated.
4 We shall modify the judge’s conclusions of law and recommended
Order to conform to our findings, and we shall substitute a new notice
to conform to the Order as modified and set forth in full below.
In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), enf. denied on other grounds sub nom. Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011), we modify
the judge’s remedy by requiring that backpay and other monetary
awards shall be paid with interest compounded on a daily basis.
We modify the judge’s recommended Order to provide for the post-
ing of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
5 Dates are in 2006, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2048
A. Facts
On March 10, the Union began writing to some of the
Respondent’s restaurant customers, telling them that they
should be concerned about the risk of contaminated lin-
ens and urging them not to use the Respondent’s ser-
vices. The letters stated that they were from “Milum
Exposed,” which “is dedicated to informing the public of
important issues in infection control,” and the letterhead
further described Milum Exposed as an “independent
website in the Public Interest by UNITE HERE.” The
letters suggested that a 2002 Arizona Department of En-
vironmental Quality Notice of Violation and an Arizona
Division of Occupational Safety and Health “Citation
and Notification of Penalty” supported its claims.
On April 24 or 25, the Union distributed a press re-
lease headlined: “UNITE HERE Media Alert:
SCOTTSDALE AND PHOENIX RESTAURANT CUSTOMERS
BE AWARE: TABLE LINENS AND NAPKINS EXPOSED TO
BLOOD AND BACTERIA AT LOCAL LAUNDRY.” The re-
lease announced an April 27 rally at a mall where two of
the Respondent’s restaurant customers were located and
stated that employees would release a report at the rally
revealing “that restaurant customers cannot be assured of
the quality of the linen used in these establishments.”
The press release listed 11 restaurants that used the Re-
spondent’s services. The release further stated:

Bruce Raynor, General President of UNITE HERE will
accompany workers as they present the findings about
the laundry to Fox and restaurant customers in Phoenix
and Scottsdale. Milum workers will speak about dirty
and dangerous conditions in an effort to protect their
own health and safety and the health and safety of res-
taurant patrons.

On April 3, the Respondent filed a charge with the
Board’s Regional Office alleging that the Union’s com-
munications violated Section 8(b)(4)(ii)(B) and request-
ing an injunction.6
On April 26, while the above charge was pending, the
Respondent filed a complaint against the Union in Feder-
al district court, citing diversity jurisdiction. The com-
plaint alleged five causes of action: illegal secondary
boycott; intentional interference with economic relations;
intentional interference with prospective economic ad-
vantage; libel; and fraud. The complaint alleged that the
Union made knowingly false statements with malice and
that the Respondent suffered damages as a result. The
complaint sought a preliminary and permanent injunction
enjoining the Defendant and any affiliated persons or

6 On April 28, the Region dismissed the Respondent’s unfair labor
practice charge. On June 7, the Office of Appeals upheld the dismissal.
entities from directly or indirectly sending or transmit-
ting via any medium any unsolicited letters or documents
to Plaintiff’s customers or the customers of Plaintiff’s
customers, or verbally contacting or communicating with
Plaintiff’s customers or the customers of Plaintiff’s cus-
tomers. The complaint also sought damages in an
amount to be proven at trial, costs, and attorney’s fees.
With the complaint, the Respondent filed a motion for
a TRO. The motion was based exclusively on Section
303 of the Labor-Management Relations Act.7 In the
motion, the Respondent argued only that the Union’s
communications with the Respondent’s customers and
their customers constituted an unlawful secondary boy-
cott. The motion sought to enjoin the Union from “pick-
eting and distributing leaflets” to its customers’ custom-
ers and from distributing “false materials.”
At the hearing on the motion, the Respondent conced-
ed that it could not obtain an injunction under Section
303. It nevertheless argued for an injunction under its
pendent State law tortious interference and libel claims.
The court denied the motion. It found that the expressive
activity the Respondent sought to enjoin arose out of a
labor dispute and therefore the Respondent would have
to prove malice and actual damages in order to prevail on
its claim. The court found that the Respondent had of-
fered no proof of either of those essential elements of its
claim. The court further found that the petitioned-for
relief would constitute a highly disfavored prior restraint
on speech.
On May 26, the District Court dismissed the Respond-
ent’s lawsuit, without prejudice, at the Respondent’s re-
quest.
B. Analysis
The Judge Correctly Analyzed the TRO Proceedings
Separately From the Remainder of the Lawsuit
As an initial matter, we conclude, contrary to the Re-
spondent’s exceptions and our dissenting colleague, that
the judge correctly analyzed the filing and pursuit of the
motion for a TRO separately from the remainder of the
action. Separate consideration of the two phases of the
proceedings is appropriate under existing Board law, see,
e.g., Grinnell Fire Protection Systems Co., 328 NLRB
585, 603 (1999) (“the Board has enjoined an employer
from prosecuting specific portions of a lawsuit . . . while
deferring action on others”), enfd. 236 F.3d 187 (4th Cir.
2000), cert. denied 534 U.S. 818 (2001); Manno Electric,
Inc., 321 NLRB 278, 298 (1996), enfd. 127 F.3d 34 (5th
Cir. 1997), and the Respondent cites no authority to the

7 Under Sec. 303(a) it is unlawful for a union to engage in conduct
prohibited by Sec. 8(b)(4).
MILUM TEXTILE SERVICES CO. 2049
contrary.8 By analogy, Federal Rule of Civil Procedure
11 applies to “[e]very pleading, written motion and other
paper” presented to a Federal court. Fed. R. Civ. P.
11(a). Just as one pleading or motion filed in Federal
court can be grounds for sanctions under Rule 11 be-
cause it is baseless or filed for an improper purpose, even
if the filing of the original complaint or other actions
taken during the course of the litigation are not improper,
so the filing of one motion may violate the Act even if
the remainder of the litigation does not. A motion for a
TRO or preliminary injunction is a distinct phase of a
lawsuit and imposes separable costs on the defendant.
Moreover, the potential abuse of such motions has been
recognized in Federal labor law since before the passage
of the Act. See generally, Federal Anti-Injunction (Nor-
ris-LaGuardia) Act, Pub. L. No. 72-65, 47 Stat. 70
(1932), codified at 29 U.S.C. § 101 et seq. (2011); Felix
Frankfurter & Nathan Greene, The Labor Injunction
(1930). We thus first consider whether the judge correct-
ly concluded that the filing and maintenance of the mo-
tion for a TRO9 violated Section 8(a)(1).
The TRO Proceedings
All parties agree that the legality of the Respondent’s
efforts to obtain a TRO (and its filing and maintenance of
the lawsuit outside the TRO proceedings) should be
evaluated under the framework established by the Su-
preme Court in BE&K Construction Co. v. NLRB, 536
U.S. 516 (2002). Applying that framework, we find that
the pursuit of the motion was unlawful.10
In BE&K, the Supreme Court held that the Board
could not find all unsuccessful litigation unlawful simply
because it was initiated or maintained with a retaliatory
motive. Rather, the Court held that, due to the compel-
ling First Amendment interests at stake, the General
Counsel must ordinarily prove that even an unsuccessful

8 Although Grinnell and Manno involved different causes of action
rather than distinct phases of litigation, they support our decision to
consider the TRO separately from the remainder of the lawsuit.
9 Contrary to the suggestion in the dissent, the holding here extends
only to a motion for a TRO or similar immediate, preliminary relief, not
to any “other motions.”
10 The judge found that the Respondent’s request for a TRO was
barred by Federal labor law in the absence of any evidence of actual
malice. However, no party suggests that this case should therefore be
analyzed under fn. 5 of Bill Johnson’s Restaurant v. NLRB, 461 U.S.
731, 737 fn. 5 (1983), rather than under BE&K. Most importantly, the
General Counsel’s theory of the case, as reflected in the complaint and
the parties’ briefs, was that the Respondent’s lawsuit was unlawful
because it was both baseless and retaliatory, and the case was litigated
under that theory. The General Counsel did not argue before the Board
that the Respondent’s pursuit of the TRO motion should be found un-
lawful solely because the motion was preempted. Accordingly, and in
light of our determination that the motion was both baseless and retalia-
tory, we find it unnecessary to reach that issue.
action was both baseless and retaliatory in order for the
Board to conclude that its maintenance was an unfair
labor practice. On remand, the Board in BE&K articulat-
ed the following standard for determining whether a law-
suit is baseless: “[A] lawsuit lacks a reasonable basis, or
is ‘objectively baseless,’ if ‘no reasonable litigant could
realistically expect success on the merits.’” BE&K II,
351 NLRB 451, 457 (2007) (quoting Professional Real
Estate Investors v. Columbia Pictures Industries, 508
U.S. 49, 60 (1993)). In Allied Mechanical Services, 357
NLRB No. 101, slip op. at 10–11 (2011), the Board re-
cently considered what type of evidence will suffice to
prove that a baseless lawsuit was brought with a retalia-
tory motive. The Board held that retaliatory motive may
be inferred from, among other things, the facts that the
lawsuit was filed in response to protected activity; that
the employer-plaintiff bore animus toward the union-
defendant and particularly toward its protected activity;
and that the lawsuit obviously lacked merit. Id.
Applying the principles set forth in BE&K II and Al-
lied Mechanical to the present case, we find that the
General Counsel has demonstrated that the TRO motion
both lacked a reasonable basis and was filed with the
requisite retaliatory intent. First, the motion was baseless.
The Respondent’s written motion for a TRO relied ex-
clusively on Section 303. But while Section 303(b) per-
mits a party injured by a violation of Section 8(b)(4) to
seek damages in Federal court, on its face it does not
authorize private parties to seek injunctive relief. In fact,
over 30 years ago, the Supreme Court clearly held,
“[C]ongressional policy, as expressed in the NLRA, re-
mains that employers are not permitted to obtain injunc-
tions of secondary activity.” Burlington-Northern Rail-
road Co. v. Brotherhood of Maintenance of Way Em-
ployees, 481 U.S. 429, 448 (1987). The Act thus gives
the Board exclusive jurisdiction to seek injunctions
against unlawful secondary activity. For that reason, the
written motion for a TRO as filed with the District Court
was baseless. In fact, at the hearing concerning the mo-
tion, Respondent’s counsel conceded, “[w]ere we to have
only alleged a secondary boycott, we could not be in
federal court asking for an injunction because exclusive
jurisdiction for that would be [with] the NLRB.”
After conceding at the hearing that the only grounds
for a TRO advanced in its moving papers were clearly
inadequate, the Respondent attempted to advance other
causes of action pleaded in the complaint as grounds for
the TRO, specifically the libel and the tortious interfer-
ence with contract claims. Each of these claims is, how-
ever, subject to the partial preemption articulated in Linn
v. Plant Guard Workers, 383 U.S. 53 (1966) (applying
actual malice requirement to libel claims); see also Bev-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2050
erly Hills Foodland, Inc. v. Food & Commercial Work-
ers Local 655, 39 F.3d 191, 196 (8th Cir. 1994) (apply-
ing Linn requirement of actual malice to tortious interfer-
ence claim).11
Indeed, Federal courts have held that tortious interfer-
ence claims arising out of a labor dispute are wholly
preempted or, at least, preempted absent outrageous or
violent conduct. See, e.g., In re Sewell, 690 F.2d 403,
408 (4th Cir. 1982) (holding that the Act preempts state
law tortious interference with contract claim); Wilkes-
Barre Publishing Co. v. Newspaper Guild of Wilkes-
Barre, 647 F.2d 372, 381–382 (3d Cir. 1981), cert. de-
nied 454 U.S. 1143 (1982) (“where parties to a labor
dispute are charged with tortious interference with a col-
lective bargaining agreement, at least in the absence of
outrageous or violent conduct, state law causes of action
are preempted.”). The judge’s law clerk pointed this out
to Respondent’s counsel at the hearing, explaining that
the Respondent could not prevail on these claims absent
proof of actual malice, i.e., proof that the statements were
published with “knowledge that it was false or with reck-
less disregard of whether it was false or not.” New York
Times v. Sullivan, 376 U.S. 254, 280 (1964).
Despite the clear requirement of actual malice, Re-
spondent’s counsel pointed to no evidence suggesting
that the Respondent would be able to prove actual malice
and, in fact, made no argument addressing the issue.
Indeed, he appeared not to accurately understand the
concept, stating, “In terms of the actual malice, Your
Honor, we have an unfair labor claim against Unite Here
presently pending. . . . I will be happy to show you those
things that we have alleged against Unite Here that has
crossed the line and seems to have done all in their pow-
er to be as malevolent as can be under the circumstanc-
es.” In other words, counsel confused the legal concept
of actual malice which, as discussed above, requires
knowledge that the published statements are false or
reckless disregard of whether the statements are false or
not, with the ordinary meaning of malice, i.e., ill will.
See, e.g, Harte-Hanks Communications v. Connaughton,
491 U.S. 657, 666 (1989) (“the actual malice standard is
not satisfied merely through a showing of ill will or ‘mal-
ice’ in the ordinary sense of the term.”); Celle v. Filipino
Reporter Enterprises, 209 F.3d 163, 183 (2d Cir. 2000)
(“Standing alone, however, evidence of ill will is not
sufficient to establish actual malice.”); Dunn v. Air Line
Pilots Assn., 193 F.3d 1185, 1198 fn. 17 (11th Cir. 1999)
(“Ill-will, improper motive or personal animosity plays

11 In fact, the Eight Circuit held in Beverly Hills Foodland that
peaceful handbilling is protected speech under the First Amendment
and cannot be restrained based on a tortious interference claim. Id. at
197.
no role in determining whether a defendant acted with
‘actual malice.’”), cert. denied 530 U.S. 1204 (2000);
Philander Smith College, 246 NLRB 499, 506 (1979)
(“[Defamation] liability, based upon hatred, spite, ill
will, or desire to injure is clearly impermissible.”). As
the judge found in denying the motion, “there’s really no
attempt at showing actual malice.”
The judge also denied the motion for a TRO on the
grounds that the Respondent advanced no argument that
would have justified a departure from the courts’ ordi-
nary reluctance to impose a prior restraint. See, e.g.,
Organization for a Better Austin v. Keefe, 402 U.S. 415,
419 (1971) (injunction that operates as a prior restraint
carries a “heavy presumption against its constitutional
validity”). This is particularly so in the context of the
libel claims and the tortious interference claim sounding
in libel given the longstanding rule against enjoining a
libel. See Metropolitan Opera Assn. v. Local 100,
HERE, 239 F.3d 172, 177 (2d Cir. 2001) (“[E]quity will
not enjoin a libel.”); Cmty. for Creative Non-Violence v.
Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987) ("The usual
rule is that equity does not enjoin a libel or slander and
that the only remedy for defamation is an action for dam-
ages.”) (internal quotations omitted); American Malting
Co. v. Keitel, 209 F.2d 351, 354 (2d Cir. 1913) (“Equity
will not restrain by injunction the threatened publication
of a libel, as such, however great the injury to property
may be. This is the universal rule in the United States”).
Further, while not raised by the District Court, “the
Norris-LaGuardia Act [NLA] establishes a strong Feder-
al policy against the issuance of labor injunctions, except
in very narrowly prescribed circumstances”12 and only
then if the movant satisfies the NLA’s heightened evi-
dentiary standards, which include a requirement that no
court “shall have jurisdiction to issue a temporary or
permanent injunction in any case involving or growing
out of a labor dispute . . . except after hearing the testi-
mony of witnesses in open court (with opportunity for
cross-examination) in support of the allegations of a
complaint made under oath.”13 Strict compliance with
the NLA’s provisions is a jurisdictional prerequisite to

12 Trinidad Corp. v. Marine Engineers Beneficial Assoc., 723 F.2d
70, 77 (D.C. Cir. 1983). The NLA denies jurisdiction to district courts
to issue preliminary injunctions that would prevent union members
from, inter alia, “(e) Giving publicity to the existence of, or the facts
involved in, any labor dispute, whether by advertising, speaking, patrol-
ling, or by any other method not involving fraud or violence; and (f)
Assembling peaceably to act or to organize to act in promotion of their
interests in a labor dispute.” 29 U.S.C.A. § 104. The Respondent’s
broad prayer for relief targeted both of the above-described types of
activities.
13 29 U.S.C.A. § 107 (a)–(e); Marine Engineers Beneficial Assoc.,
supra at 77 fn. 7.
MILUM TEXTILE SERVICES CO. 2051
the issuance of temporary restraining orders arising from
labor disputes.14 The Respondent proffered no testimony
in support of its motion. Thus, both substantively and
procedurally, the motion was baseless.
Moreover, even if the Respondent had set forth a col-
orable ground for some relief in its moving papers or at
the hearing and properly supported it with evidence, the
relief sought in the motion was so overbroad that we
would still find the motion was baseless. The motion
sought to restrain the Union from “[p]icketing and dis-
tributing leaflets to the customers of Fox Restaurants and
any other customers of Plaintiff.” Thus, the relief sought
was not limited to restraining communications urging a
secondary boycott (even if that were unlawful and en-
joinable at the request of a private party) or to restraining
defamatory or even false communications (even if the
Respondent had come forward with some evidence sug-
gesting it was likely to succeed in proving the essential
elements of its libel claim). Rather, the Respondent
sought to enjoin all communications with its customers,
even those clearly protected by the Act (e.g., flyers simp-
ly informing the customers of the organizing effort) and
those not even alleged to be unlawful in the Respond-
ent’s complaint. The Respondent’s attempt to obtain
such broad relief was clearly baseless.
For each of these reasons, applying the standard articu-
lated by the Board on remand in BE&K—whether a “rea-
sonable litigant could realistically expect success on the
merits”15—we conclude that the filing and maintenance
of the motion for a TRO was baseless.16
The second requirement of BE&K was also satisfied in
relation to the motion proceedings. We find that the mo-

14 Marine Engineers, supra at 76–77.
15 351 NLRB 451, 457.
16 In its exceptions, the Respondent relies heavily on San Antonio
Community Hospital v. Southern California District Council of Car-
penters, 125 F.3d 1230 (9th Cir. 1997). The Respondent argues that the
claims in that case paralleled those here and the court of appeals upheld
the grant of preliminary injunctive relief. In that case, however, the
District Court denied a motion for a TRO and granted a preliminary
injunction only after an evidentiary hearing. The Ninth Circuit (over a
dissent by now Chief Judge Kozinski) upheld the injunction based only
on a defamation claim, holding that the tortious interference claims
were preempted and that Sec. 303 does not permit a private party to
seek an injunction. Moreover, unlike in this case, the employer sought
only to enjoin the continued publication of a statement, the “most natu-
ral reading” of which, the Ninth Circuit found, “the Union concedes, is
not true, nor has the Union ever believed it to be true.” Id. at 1236.
Accordingly, the Ninth Circuit found there was a “reasonable probabil-
ity” that the employer would be able to “successfully prove” actual
malice. Id. at 1237.
The dissent also cites Sutter Health v. UNITE HERE, 186
Cal.App.4th 1193, 113 Cal.Rptr.3d 132 (2010), but, as the dissent
acknowledges, the verdict in that case was overturned on appeal based
on erroneous jury instructions. Moreover, it does not appear that any
injunctive relief was granted in that case.
tion was filed and maintained with a retaliatory motive
for two distinct reasons. First, on its face, the motion
sought to enjoin protected activity. As explained above,
the motion sought a TRO preventing the Union from
“Picketing and distributing leaflets to the customers of
Fox Restaurants and any other customers of Plaintiff.”
Communicating with customers in support of a union’s
position in a labor dispute is protected activity under the
Act. See DeBartolo Corp. v. Florida Building & Con-
struction Trades Council (DeBartolo II), 485 U.S. 568
(1988); D’Alessandro’s, Inc., 292 NLRB 81, 83 (1988)
(holding that Sec. 7 protects peaceful distribution of
handbills advertising a labor dispute to employer’s cus-
tomers). Even if some forms of communication with
customers are unprotected or even unlawful, the motion
was not limited to any such forms, but broadly sought to
enjoin all communication with customers and was thus
retaliatory on its face. Accordingly, we find that the Re-
spondent's TRO motion, by its very terms, demonstrated
that it was motivated by a desire to retaliate against the
protected activity of the Union and employees it sought
to represent. See Allied Mechanical Services, supra, 357
NLRB No. 101, slip op. at 11.17
Moreover, we cannot conclude that the Respondent’s
motion “reflected only a subjectively genuine desire to
test the legality of the conduct” that was targeted in the
motion and lawsuit.18 As we just explained, the Re-
spondent sought to enjoin Union and employee commu-
nications far beyond those it contended were illegal.
Further, in analyzing whether the Respondent had a retal-
iatory motive in filing the TRO motion, we may also
consider whether the Respondent’s other conduct
demonstrates animus against the Union. As we stated in
Allied Mechanical, supra, slip op. at 12, BE&K did not

17 The dissent’s position is that the requisite subjective, retaliatory
motive does not exist so long as the plaintiff genuinely desired to obtain
the relief prayed for in the complaint. But a genuine desire to obtain an
injunction on baseless grounds barring clearly protected conduct is a
retaliatory, not a proper motive. The dissent does not dispute the fact
that the motion for a TRO was baseless nor does it dispute the fact that
the TRO sought would have enjoined clearly protected activity, i.e.,
distribution of any and all leaflets to customers. Thus, this case illus-
trates our statement in Allied Mechanical: “the implications of our
colleague's position are that an employer can initiate an objectively
baseless action aimed directly at clearly protected conduct—for exam-
ple, suing employees for trespass in state court seeking an injunction
and damages on the grounds that the employees discussed forming a
union during a break in the employees' break room—and the lawsuit
would not ‘interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7’ absent some additional evidence
of retaliatory motive. Such a result is not suggested by either BE&K or
Petrochem, is not required by the First Amendment, and would be
jarringly inconsistent with the words and purpose of Section 8(a)(1).”
Slip op. at 12.
18 BE&K, supra, 536 U.S. at 533–534.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2052
rule out use of an employer's animus toward a union as
evidence that the employer's lawsuit against the union
had a retaliatory motive. Here, as the judge found,
throughout 2006–2007 the Respondent engaged in other
conduct demonstrating animus against protected activity
and a willingness to retaliate against those who engage in
protected activity. Thus, the Respondent retaliated
against employee efforts to publicize the labor dispute by
discharging employee Denise Knox shortly after she ap-
peared on a news program about the union campaign.19
The Respondent also unlawfully discharged employee
Soe Moe Min; suspended employee Evangelina Guzman
because she refused to take off a union button; granted
the benefit of providing nametags in order to discourage
employees from engaging in union activity; promulgated
and thereafter maintained a rule prohibiting employees
from wearing union buttons while working; created the
impression of surveillance by operating a security video
camera in its lunchroom; impliedly threatened to reduce
employees’ wages if they selected the Union as their
bargaining representative; and interrogated employees
during preparation for the hearing in this case.20 The
Respondent further demonstrated animus when, in dis-
cussing the union campaign with his customers, its presi-
dent referred to the Union as “cockroaches” and “mon-
sters” and compared the Union campaign to an organized
crime shakedown.
This evidence of animus and, in particular, the dis-
charges in retaliation for the publicity campaign support
our finding that the Respondent was motivated by a de-
sire to retaliate against the Union and employees who
publicized the labor dispute.21 Accordingly, we find

19 The dissent emphasizes the close relationship between the unlaw-
ful discharges and the lawsuit by explaining that “the unlawful dis-
charges were in response to the Union’s corporate campaign,” i.e., both
the discharges and the lawsuit aimed to stop the Union’s protected
speech.
20 Citing BP Amoco Chemical-Chocolate Bayou, 351 NLRB 614,
637 (2007), our dissenting colleague suggests that it is improper for us
to rely on conduct that occurred after the Respondent filed and with-
drew its lawsuit. That case is distinguishable. There, all of the mis-
conduct that postdated the discriminatory action at issue occurred 7 to 8
months later, and that misconduct was confined to statements violating
Sec. 8(a)(1). By contrast, as noted above, the Respondent here commit-
ted three “hallmark” violations—two discharges and a suspension—just
over 2 months after it sought the TRO against the Union, and unlawful-
ly prohibited the wearing of union insignia at about the same time.
21 The dissent’s suggestion that decisions in San Antonio Community
Hospital and Sutter are somehow relevant to the Respondent’s subjec-
tive motive is misplaced both for the reasons stated above and because
there is no evidence in the record that the Respondent was aware of
those decisions at the time it sought the TRO. In fact, the jury award in
Sutter (overturned on appeal) postdates the events at issue here.
that the Respondent had a retaliatory motive in filing the
TRO motion against the Union.22
The Remainder of the Lawsuit
As to the filing of the district court complaint itself and
the maintenance of the complaint for a limited duration
until it was voluntarily dismissed without prejudice
shortly after the court denied the TRO motion and prior
to any discovery, we remand to the judge to determine
whether the General Counsel sustained his burden of
showing that the action was baseless, and if so, that it
was retaliatory.
We believe the judge properly allocated the burden of
proof on the baselessness issue to the General Counsel.
Of course, ordinarily the General Counsel has the burden
to prove each element of an unfair labor practice and the
Board has not altered that rule in the context of allegedly
unlawful litigation. In fact, a contrary allocation here
might encourage a plaintiff in the position of the Re-
spondent to continue to litigate in court in order to con-
duct discovery and obtain evidence needed to demon-
strate that its initial filing was not baseless rather than
voluntarily dismiss or withdraw its complaint.
But while we agree that the judge properly imposed
the burden of proof on the General Counsel, she did not
adequately explain what the General Counsel must prove
or assess the considerable evidence produced by the
General Counsel against any standard.
The question of whether the initial filing and limited
maintenance of the complaint was baseless must be ana-
lyzed differently than we analyzed pursuit of the TRO
above. The motion for a TRO was litigated to comple-
tion. Thus, we are able to evaluate the actual arguments
and evidence presented by the Respondent in order to
determine if it had reasonable grounds for seeking the
TRO. At the complaint stage, however, the question is
different. At the complaint stage, the question is whether
a plaintiff, with the factual information in its possession
and whatever additional factual information a reasonable
potential litigant would have acquired prior to filing,
could reasonably have believed it had a cause of action
upon which relief could eventually be granted. This does
not mean that a plaintiff must possess all the evidence
necessary to prove its case at the time of filing. Some

22 In concluding that the TRO motion was brought with retaliatory
motive, we also find, as we did in Allied Mechanical, supra, slip op. at
11, that the motion’s “obvious lack of merit is further evidence that the
Respondent sought to retaliate against the Union[ ] by imposing on [it]
the costs and burdens of the litigation process.”
Because the dissent’s discussion of the retaliatory motive issue
largely parallels the dissent in Allied Mechanical and was fully ad-
dressed by the majority opinion in that case, supra, slip op. at 11–12,
we do not repeat the analysis here.
MILUM TEXTILE SERVICES CO. 2053
necessary evidence is not within the possession or con-
trol of the plaintiff and cannot be acquired without dis-
covery. In respect to the actual malice element of the
libel claim, for example, the Second Circuit has observed
that “resolution of the . . . actual malice inquir[y] typical-
ly requires discovery.” Karedes v. Ackerley Group, 423
F.3d 107, 113 (2d Cir. 2005), quoting Church of Scien-
tology International v. Behar, 238 F.3d 168, 173 (2d Cir.
2001), cert. denied 534 U.S. 814 (2001). In contrast, a
reasonable plaintiff would be in possession of evidence
of the actual damages that it would have had to prove at
trial under Linn. See id., 383 U.S. at 65 (“We . . . hold
that a complainant may not recover except upon proof of
such harm.”). See also Intercity Maintenance Co. v. Lo-
cal 254, Service Employees, 241 F.3d 82, 89–90 (1st Cir.
2001) (“In explicitly requiring proof of harm, Linn
preempts . . . reliance on the common law presumption
of damages in those jurisdictions where libel is actiona-
ble per se.”), cert. denied 534 U.S. 818 (2001); Beverly
Health & Rehabilitation Services, 336 NLRB 332, 333
(2001) (“For the plaintiff to prevail, he must prove not
only defamation under State law, but also the Federal
overlay of actual malice and damages.”).
So what was the General Counsel’s burden here? The
General Counsel had to prove that the Respondent, when
it filed its complaint or during the time before it voluntar-
ily dismissed the action, did not have and could not rea-
sonably have believed it could acquire through discovery
or other means evidence needed to prove essential ele-
ments of its causes of action. In Bill Johnson’s, supra,
461 U.S. at 746 fn. 11, the Supreme Court explained that
“in making reasonable basis determinations, the Board
may draw guidance from the summary judgment and
directed verdict jurisprudence.” Under summary judg-
ment procedure in the Federal courts, a party moving for
summary judgment against a plaintiff need not prove the
absence of a genuine dispute of material fact in respect to
each element of the claims in relation to which the non-
moving party will bear the burden of proof at trial. Ce-
lotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rather,
“the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—
that there is an absence of evidence to support the non-
moving party’s case.” Id. If the motion is made prior to
the close of discovery, the nonmoving party may, under
Fed. R. Civ. P. 56(d) (formerly 56(f)), respond by pre-
senting via affidavit an explanation of why it is unable at
that time to present evidence needed to support its claim.
This standard is instructive, but the General Counsel’s
burden here is a heavier one. The General Counsel must
prove not simply that summary judgment would have
been granted had the Union moved for it prior to the vol-
untary dismissal, but that the Respondent would not have
been able to present a colorable argument in opposition
to the grant of summary judgment at that time.
In order to determine if the General Counsel has car-
ried this burden, a judge must determine the elements of
the causes of action that the General Counsel has placed
at issue and then evaluate the evidence offered by the
General Counsel to prove that the Respondent did not
have, and could not reasonably have believed it could
acquire through discovery or other means, evidence
needed to prove essential elements of its causes of action,
and consider also evidence offered by the Respondent to
prove the contrary, including evidence in the nature of a
statement under Fed. R. Civ. P. 56(d). In this case, the
General Counsel presented substantial evidence relevant
to the truth of the allegedly defamatory statements, the
lack of actual malice on the part of the Union in publish-
ing the statements, and the lack of actual damage suf-
fered by the Respondent as a result of the statements.
The judge, understandably, did not evaluate the evi-
dence using the above-described standard. Unfortunate-
ly, the judge did not expressly evaluate the evidence at
all.23
Rather, she dismissed the complaint allegation as it re-
lated to the filing and maintenance of the lawsuit apart
from the TRO proceeding on the sole grounds that
“[w]hile relevant, the voluntary dismissal of the remain-
ing allegations of the lawsuit does not establish that the
Respondent subjectively believed its lawsuit had no mer-
it when it was filed and prosecuted or that it acted in bad
faith in doing so.” While the judge’s statement is true,
the General Counsel did not rest his case solely on the
voluntary dismissal but presented substantial additional
evidence.
Given our clarification of the General Counsel’s bur-
den above and our recent clarification of the evidence
necessary to prove a retaliatory motive in Allied Mechan-
ical,24 we believe fairness to the parties requires that we
remand this portion of the case to the judge with direc-
tions that she permit the parties to file additional post-
trial briefs addressing the question of whether the Gen-
eral Counsel carried his burden of proving baselessness
and retaliatory motive under these clarified standards.25

23 The dissent suggests that the judge did consider “much of the evi-
dence,” but other than briefly stating the facts of the case, the judge did
not do so and, specifically, did not do so in relation to any of the ele-
ments of the Respondent’s causes of action.
24 Retaliatory motive would, of course, be relevant here only if the
filing and maintenance of the action was found to be objectively base-
less.
25 The dissent proceeds to analyze the evidence without the benefit
of any additional arguments the parties may make on remand. We
believe the record produced by 14 days of hearing and contained in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2054
II. UNLAWFULLY CREATING THE IMPRESSION
OF SURVEILLANCE
There are three unlawful surveillance allegations. We
adopt the judge’s finding that the Respondent unlawfully
created the impression of surveillance by installing a
security video camera in the employees’ lunchroom in
January 2007. As the judge found, the Respondent did
not communicate to employees any reason for placing a
security camera in the lunchroom.26 We agree with the
judge that the “unprecedented and unexplained” place-
ment of a security camera in the lunchroom where union
activity regularly took place would reasonably lead em-
ployees to assume that their protected activity was under
surveillance.
We thus find it unnecessary to reach the allegation that
Supervisor Parra created an impression of surveillance
by telling employee Guzman that the cameras were to
“keep her in check,” as any such finding would be cumu-
lative of the other surveillance violation, supra, and
therefore would not materially affect the remedy.
We dismiss the surveillance allegation concerning
Manager Kayonnie for the reasons the judge stated.
III. TELLING EMPLOYEES THAT IT WOULD BE FUTILE
TO SELECT THE UNION
Contrary to the judge, we find that the General Coun-
sel properly pleaded the allegation that the Respondent
told employees that it would be futile to select the Union
as their bargaining representative, despite imprecise dates
in the complaint, but we dismiss the allegation. The
judge found that the Respondent told employees that “the
process of getting a union could be a long one; there
could be a lot of problems because employees could
strike, and they might have to go to court to obtain a un-
ion election.” An employer does not violate the Act
merely by telling employees that it intends to oppose
unionization by lawful means or that bargaining may be
delayed while the employer exercises its lawful right to
contest a union’s certification in court. Winkle Bus Co.,
347 NLRB 1203, 1205 fn. 12 (2006). Such a statement
is unlawful only if, in context, it discloses a “threat of
reprisal of force or promise of benefit.” Id. Notably, the
Respondent’s president’s statement to employees about

2270 pages of transcript and numerous exhibits contains sufficient
evidence, particularly concerning actual malice and actual damages, to
merit a remand to permit the parties to address the matter under the
clarified standards and for the judge to decide it in the first instance.
We thus do not believe it would be appropriate to respond to the dis-
sent’s characterization of the evidence at this time. Moreover, contrary
to the dissent’s suggestion, nothing in our remand order precludes the
parties from moving the judge to reopen the record.
26 In fact, as the judge noted, the Respondent never articulated any
reason for placing a security camera in the lunchroom until it was pre-
paring for the hearing in this case.
the possibility of going to “court” to obtain an election
did not mention that the Respondent would unnecessarily
delay proceedings or that it would refuse to deal with the
Union in any event. Cf. International Medication Sys-
tems, 244 NLRB 861, 869 (1979) (employer’s statement
that he would not deal with the union until after a court
fight implied futility in violation of Section 8(a)(1)). The
inaccuracy of the Respondent’s statement, i.e., that it is
necessary to go to “court” to obtain an election, rather
than to the Board, amounts, at most, to an unobjectiona-
ble misrepresentation. In these circumstances, we find
that the Respondent’s statement did not disclose a threat
of reprisal of force or promise of benefit, and we dismiss
the allegation.
IV. TELLING EMPLOYEES TO REPORT UNION ACTIVITIES
Also contrary to the judge, we find that the General
Counsel properly alleged that the Respondent unlawfully
asked employees to report on their own and other em-
ployees’ union activities, as the trial judge had granted
the General Counsel’s motion to amend the third consol-
idated complaint to include that allegation. However, we
dismiss the allegation on the merits. At the March 4
meeting, an employee complained that a union organizer
told her niece, who had not wanted to sign the union peti-
tion, that the organizer would sign the petition for her.
The Respondent’s President Milum testified that he
“probably” told employees that “you should report that,
that’s wrong.” Notably, Milum’s request that employees
report instances of fraud was unaccompanied by a re-
quest that they also report other lawful conduct that they
felt was pressuring or harassing. In these circumstances,
we find that Milum’s statement to employees was a law-
ful response to an account of an unprotected threat of
fraud.
V. THE GISSEL BARGAINING ORDER
The judge found that the Union obtained authorization
signatures from a majority of the Respondent’s employ-
ees in March, and that its majority support was dissipat-
ed, “at least in part,” by the Respondent’s unfair labor
practices.27 Nevertheless, she found that the Respond-
ent’s unfair labor practices did not warrant a bargaining
order, noting that “the Respondent has not discouraged
employees from openly meeting with union representa-
tives outside the facility, wearing prounion stickers, dis-
tributing prounion literature, displaying a prounion ban-
ner and setting up in the lunchroom a union-donated mi-
crowave decorated with prounion stickers.” She con-
cluded that the Respondent’s “partial respect for employ-

27 Employees presented the authorization petition to the Respondent
on March 4. It was signed by 42 of the approximately 70 production
employees.
MILUM TEXTILE SERVICES CO. 2055
ees' Section 7 rights” suggested that the Board's tradi-
tional remedies could adequately remedy the coercive
effects of the Respondent's conduct. For the reasons
stated below, we disagree.
In NLRB v. Gissel Packing Co.,28 the Supreme Court
identified two categories of employer misconduct that
may warrant imposition of a bargaining order: “Category
I” cases involving outrageous and pervasive unfair labor
practices that make a fair election impossible, and “Cate-
gory II” cases involving less extraordinary and less per-
vasive unfair labor practices, but which nonetheless have
a tendency to undermine majority union support, once
expressed through authorization cards, and render the
possibility of a fair election slight.29 The case at bar
meets the standard for a category II bargaining order. In
reaching this conclusion, we have examined the serious-
ness of the violations, the number of employees directly
affected by the violations, the extent of the dissemination
among employees, and the position of the individuals
committing the unfair labor practices.30
The Respondent’s unfair labor practices include the
unlawful, discriminatory discharges of two union sup-
porters. The Board and courts have long considered the
discharge of union adherents to be among the “hallmark”
violations justifying the issuance of bargaining orders.31
Such violations are among “the most flagrant forms of
interference with Section 7 rights and are more likely to
destroy election conditions for a longer period of time
than are other unfair labor practices because they tend to
reinforce the employees' fear that they will lose their
employment if union activity persists.” Traction Whole-
sale Center Co.32 In NLRB v. Jamaica Towing, Inc.,33
the Second Circuit Court of Appeals noted, in enforcing
a Board Order, that the discharge of an active union ad-
herent would likely “have a lasting inhibitive effect on a
substantial percentage of the work force,” and would
remain in employees' memories for a long time. Indeed,
here it did: the judge found from the evidence that the
Union obtained authorization from a majority of employ-
ees in March and that the Respondent’s unfair labor prac-
tices “at least” contributed to the erosion of union sup-

28 395 U.S. 575 (1969).
29 Id. at 614; California Gas Transport, 347 NLRB 1314, 1323
(2006), enfd. 507 F.3d 847 (5th Cir. 2007).
30 Abramson, LLC, 345 NLRB 171, 176 (2005) (citing Garvey Ma-
rine, Inc., 328 NLRB 991, 993 (1999), enfd. 245 F.3d 819 (D.C. Cir.
2001) (footnotes omitted)).
31 Adam Wholesalers, Inc., 322 NLRB 313, 314 (1996), citing Ex-
change Bank, 264 NLRB 822, 824 fn. 12 (1982), enfd. 732 F.2d 60 (6th
Cir. 1984).
32 Adam Wholesalers, Inc., 322 NLRB 313, 314 (1996), citing Ex-
change Bank, 264 NLRB 822, 824 fn. 12 (1982), enfd. 732 F.2d 60 (6th
Cir. 1984).
33 632 F.2d 208, 212–213 (2d Cir. 1980).
port, particularly after the Respondent discriminatorily
discharged Knox and Min.34 As Union Organizer Daisy
Pitkin testified, attendance at union meetings fell from
10–15 per meeting to just 1 or 2, and some employees
reported to her that they were afraid to wear union insig-
nia. It is plain that knowledge of the violations was dis-
seminated throughout the work force and significantly
affected union support.35
Further, the involvement of the Respondent's president
heightened the coercive impact of the violations. The
Board has long held that “[w]hen the highest level of
management conveys the employer's antiunion stance by
its direct involvement in unfair labor practices, it is espe-
cially coercive of Section 7 rights and the employees
witnessing these events are unlikely to forget them.”36
Here, the Respondent’s president, right after learning of
Knox’s appearance on a television news broadcast about
the labor dispute, went to the worksite early in the morn-
ing for the sole purpose of catching her violating time-
clock rules that until then had not been punishable by
termination, and discharged her along with her coworker
Min. It was also the Respondent’s president who sus-
pended Guzman for wearing her union button and who
sought the TRO to silence clearly protected publicity
efforts directed at the Respondent’s customers.
In addition to the discriminatory discharges and sus-
pension, we also rely on the coercive impact of the Re-
spondent's other violations, including seeking to enjoin
clearly protected Section 7 activity through the TRO mo-
tion, implicitly threatening to reduce employees’ wages
if they selected the Union, prohibiting employees from
wearing union buttons while working, and giving em-

34 Our dissenting colleague cites no basis for his assertion that the
unlawful discharges were motivated by the Union’s “corporate cam-
paign, as opposed to employee organizing efforts.” Moreover, it is
undisputed here that the employees’ activity was protected and that it
was connected to both the Union and the organizing effort. In fact, the
Respondent’s president confirmed that he had perceived Knox’s televi-
sion appearance as “promoting the Union.” Thus, there is little doubt
that the discharges would chill employees’ association with and support
for the Union.
35 In Desert Aggregates, 340 NLRB 289, 294 (2003), cited by our
dissenting colleague, the two temporary layoffs at issue were found to
have had a “colorable explanation . . . from the perspective of other
employees,” and the only other violation of the Act found was a solici-
tation of grievances. In Cardinal Home Products, 338 NLRB 1004,
1010 (2003), the only “hallmark” violation found to have been widely
disseminated (a discharge) occurred shortly after the union had lost an
election, and all but one of the 8(a)(1) violations found occurred in one-
on-one situations between an employee and a supervisor. The miscon-
duct found in those two cases consequently did not have the same de-
gree of destructive impact as we find here.
36 Stevens Creek Chrysler, 357 NLRB No. 57, slip op. at 7 (2011),
citing California Gas Transport, supra at 1324 (quoting Michael's
Printing, Inc., 337 NLRB 860, 861 (2002), enfd. 85 Fed. Appx. 614
(9th Cir. 2004)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2056
ployees the impression that their union activities were
under surveillance.
In light of the violations found and their corrosive ef-
fect on union support, we conclude that the possibility of
ameliorating the effects of the Respondent's conduct and
of ensuring a fair election by the use of traditional reme-
dies is slight.37 In deciding that a bargaining order is
necessary, we have considered the Section 7 rights of all
employees involved. As the Board has stated, “the Gis-
sel opinion itself reflects a careful balancing of the em-
ployees' Section 7 rights ‘to bargain collectively’ and ‘to
refrain from’ such activity.”38 The rights of the Re-
spondent's employees favoring unionization, which were
expressed in the March petition, are protected by the bar-
gaining order. The rights of those employees who may
be opposed to the Union are safeguarded by their access
to the Board's decertification procedure under Section
9(c)(1) of the Act, following a reasonable period of time
to allow the collective-bargaining relationship a fair
chance to succeed.
Finally, we reject the Respondent’s argument that the
passage of time since the foregoing violations weighs
against a bargaining order. As we have stated on previ-
ous occasions, the Board’s established practice is to
evaluate the appropriateness of a Gissel bargaining order
as of the time that the unfair labor practices occurred;
changed circumstances following the commission of the
violations are generally not considered. See, e.g., Ever-
green America Corp., 348 NLRB 178, 181–182 (2006).
AMENDED REMEDY
We amend the remedy as stated at footnote 4, and
above. In addition to the remedies set forth by the judge,
the Respondent is ordered, on request by the Union, to
bargain in good faith with the Union as the exclusive
collective-bargaining representative of the unit employ-
ees in the appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement. The
Respondent is also ordered to reimburse the Union for all
legal and other expenses incurred in defending against
the motion for the temporary restraining order, with in-
terest as computed in New Horizons, 283 NLRB 1173
(1987),39 compounded daily as set forth in Kentucky Riv-

37 We reject our dissenting colleague’s suggestion that a respond-
ent’s apparent respect for Sec. 7 rights on some occasions negates the
coercive impact of the serious violations of those rights it committed on
other occasions.
38 Stevens Creek Chrysler, above, slip op. at 7, quoting Mercedes
Benz of Orland Park, 333 NLRB 1017, 1019 (2001), enfd. 309 F.3d
452 (7th Cir. 2002).
39 Teamsters Local 776 (Rite Aid Corp.), 305 NLRB 832, 835–836
fn. 10 (1991), enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S.
959 (1993).
er Medical Center, supra. The amount shall be deter-
mined at the compliance stage of this proceeding.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Milum Textile Services Company, Phoenix,
Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promising and/or granting benefits in order to dis-
courage employees from engaging in union activity.
(b) Instituting and pursuing any lawsuit against the
Union that is preempted by federal law or that lacks a
reasonable basis and is motivated by an intent to retaliate
against activity protected by Section 7 of the Act.
(c) Promulgating and maintaining an overly broad rule
prohibiting employees from wearing union buttons while
working.
(d) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(e) Threatening to reduce employees’ wages or other
benefits if they select the Union as their bargaining rep-
resentative.
(f) Unlawfully interrogating employees about their un-
ion membership, activities, and sympathies and the union
membership, activities, and sympathies of other employ-
ees.
(g) Suspending any employee for engaging in union or
other protected concerted activities.
(h) Discharging any employee for engaging in union or
other protected concerted activities.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule prohibiting employees from wear-
ing union buttons while working and inform employees
that it has been rescinded.
(b) Reimburse the Union for all legal and other ex-
penses incurred in the defense of the Respondent’s un-
lawful motion for a temporary restraining order, with
interest as described in the remedy section of this deci-
sion, as amended.
(c) On request, bargain with the Union as the exclusive
representative of unit employees concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment. The appropriate bargaining unit is:

MILUM TEXTILE SERVICES CO. 2057
All full-time and regular part-time production employ-
ees employed by the Respondent at its laundry facility
located at 333 North 7th Ave., Phoenix, Arizona, ex-
cluding all other employees, office clericals, mechan-
ics, route drivers, confidential employees, guards and
supervisors as defined in the Act.

(d) Within 14 days from the date of this Order, insofar
as it has not already done so, offer full reinstatement to
Denise Knox and Soe Moe Min to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(e) Make Evangelina Guzman, Denise Knox, and Soe
Moe Min whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them
in the manner set forth in the remedy section of the deci-
sion, as amended.
(f) Expunge from its files any reference to the unlawful
suspension of Evangelina Guzman and discharges of
Denise Knox and Soe Moe Min and thereafter notify
them in writing that this has been done and that the sus-
pension or discharges will not be used against them in
any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Phoenix, Arizona copies of the attached
notice marked “Appendix.”40 Copies of the notice, in
English, Spanish, Burmese, Karen, Arabic, Somali, and
Russian, on forms provided by the Regional Director for
Region 28 after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such

40 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.”
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 4, 2006.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the portion of this pro-
ceeding relating to the filing and maintenance of the Dis-
trict Court complaint until shortly after the TRO proceed-
ing is remanded to Administrative Law Judge Lana H.
Parke for further appropriate action as set forth above.41
IT IS FURTHER ORDERED that the judge to whom the
case is assigned shall afford the parties an opportunity to
file additional post-trial briefs addressing the remanded
issues and shall prepare a supplemental decision setting
forth findings of fact, conclusions of law, and a recom-
mended Order. Copies of the supplemental decision
shall be served on all parties, after which the provisions
of Section 102.46 of the Board’s Rules and Regulations
shall be applicable.

MEMBER HAYES, dissenting in part.
The nonunion Respondent understandably sought to
exercise its First Amendment right to petition a court for
redress of the Union’s corporate campaign claims that
the Respondent’s laundry service provided its restaurant
clients with table linens contaminated by blood, feces,
and pathogens. It filed a lawsuit in a Federal district
court and, as part of that lawsuit, sought a temporary
restraining order (TRO). The court denied the request
for a TRO, and shortly thereafter the Respondent with-
drew the lawsuit without prejudice. My colleagues today
find that the TRO request violated Section 8(a)(1) of the
Act and remand to the judge the issue of whether the
lawsuit was likewise unlawful. I dissent from both ac-
tions.1

41 The Board has been advised that Judge Lana H. Parke is scheduled
to retire shortly. In the event that Judge Parke is now retired, the issue
is remanded to Chief Administrative Law Judge Robert A. Giannasi,
who may designate another administrative law judge in accordance
with Sec. on 102.36 of the Board’s Rules and Regulations.
1 For the reasons stated below, I also dissent from my colleagues’
imposition of a bargaining order in this case.
I also disagree with my colleagues’ finding that the first-time instal-
lation of a security camera in the lunchroom was unlawful. The instal-
lation was part of a plantwide upgrade of the Respondent’s existing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2058
The isolated focus on the legality of the TRO stage of
litigation is unprecedented. Further, as in the recently
decided Allied Mechanical Services,2 the analysis of both
the TRO and the overall lawsuit is inconsistent with
precedent set forth in Supreme Court3 and Board4 prece-
dent establishing a two-part test for determining whether
a lawsuit is baseless and retaliatory. That test was care-
fully crafted to insure that the First Amendment right to
petition the courts for redress of legitimate grievances is
not chilled by the prospect of Board litigation. Although
the majority purports to follow this precedent, their opin-
ions in this case and in Allied represent an interpretation
that effectively nullifies the prophylactic purpose under-
lying requirements for proof of the retaliatory prong of
the BE&K test.
I. THE LAWSUIT
To coerce the Respondent to recognize it, the Union, in
the guise of a public interest group dedicated to “infec-
tion control,” targeted the Respondent’s restaurant clients
and their customers with claims that their table linens
were contaminated with blood, feces, and pathogens as a
result of the Respondent’s laundry practices. The goal
was to force the Respondent’s restaurant clients to stop
using the Respondent’s services or face a loss of custom-
ers who believed that dining at the restaurants posed
health risks. The Respondent filed a lawsuit against the
Union on April 26, 2006,5 alleging libel, fraud, intention-
al interference with economic relations and prospective
economic advantage, and illegal secondary boycott. The
Respondent also moved for a temporary restraining order
(TRO) under Section 303 of the Labor-Management Re-
lations Act. As previously stated, that motion was de-
nied, and the lawsuit was thereafter dismissed, without
prejudice, at the Respondent’s request on May 26.6

security camera system. In my view, the General Counsel failed to
adduce sufficient evidence that the installation of the lunchroom cam-
era would reasonably convey to employees the impression that their
union activities in that area were under surveillance. I would also adopt
the judge’s dismissal of the allegation that Supervisor Parra gave em-
ployee Guzman the impression that her union activities were under
surveillance. The General Counsel failed to show why a reasonable
employee would assume unlawful surveillance from what the judge
described as Parra’s “jocular statements.” There is no evidence that
Guzman would even reasonably believe that Parra even knew of Guz-
man’s union activity.
Except as noted herein, I join the majority’s disposition of this case
in all other respects.
2 357 NLRB No. 101 (2011).
3 BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).
4 BE&K Construction, 351 NLRB 451 (2007).
5 All dates are in 2006, unless otherwise noted.
6 I note that The Union’s claims of laundry cross-contamination mir-
ror accusations it leveled in a 2003 corporate campaign against another
nonunion laundry, Angelica Textile Services. One targeted hospital,
Sutter Health, sued the Union for defamation and intentional interfer-
The Board’s postremand decision in BE&K Construc-
tion which implemented principles formulated by the
Supreme Court, establishes the framework for our analy-
sis. The Board held in BE&K that a lawsuit targeting
protected activity may only be found to be an unfair la-
bor practice if it is both objectively baseless and was
brought with the requisite kind of subjective retaliatory
purpose.7
The majority begins their BE&K analysis by separating
the TRO motion from the remainder of the litigation and
analyzing it as an independent lawsuit. My colleagues
conclude that no reasonable litigant could have expected
success on the merits of the motion. They further find the
requisite retaliatory motive based on the following: (1)
the motion sought to enjoin activity the Act protects, i.e.
leafleting and picketing, and the relief sought swept too
broadly, encompassing nondefamatory communications
without any secondary objective; (2) the Respondent’s
purported animus against union activity, as shown by its
other unfair labor practices; and (3) the asserted objective
baselessness of the motion. They remand the remainder
of the lawsuit for the judge to more fully explain her
finding that the lawsuit itself did not violate the Act, un-
der a standard purportedly clarifying the General Coun-
sel’s burden under BE&K Construction, and under the
retaliatory motive standard they crafted in Allied Me-
chanical, supra.
A. My Colleagues Err by Treating the TRO Motion
as a Separate Lawsuit
Contrary to my colleagues, I would not carve out a
motion for injunctive relief from the remainder of the
lawsuit for separate scrutiny as an unfair labor practice.
Such motions are part and parcel of the litigation as a
whole. Treating them separately impermissibly exposes
lawsuits to unfair labor practice findings regardless of
their overall merit.8 Our precedent requires that we pro-

ence with prospective economic relations in California state court and
was awarded $17 million in damages by a jury. Sutter Health v. UNITE
HERE, 186 Cal.App.4th 1193, 113 Cal.Rptr.3d 132 (Cal.App. 3
Dist.,2010) (overturning verdict based on faulty jury instructions).
7 351 NLRB at 458.
8 Manno Electric, 321 NLRB 278, 298 (1996), enfd. 127 F.3d 34
(5th Cir. 1997), on which my colleagues rely, involved jurisdictional
issues where some allegations were preempted by the Act and two
others fell within state-court jurisdiction. Such jurisdictional questions
concern allegations that must be handled separately, in separate venues.
Contrary to my colleagues, a discrete complaint allegation is not analo-
gous to a mere request for temporary relief, the merits of which are
largely tied to the merits of the complaint. My colleagues also rely on
the similarly inapposite Grinnell Fire Protection Systems, 328 NLRB
585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied 534 U.S.
818 (2001), where the administrative law judge quoted Manno for the
proposition that the Board could separately analyze federal and pendent
state-law counts of an ongoing lawsuit, some of which were alleged to
MILUM TEXTILE SERVICES CO. 2059
vide sufficient breathing room to avoid chilling the First
Amendment right to petition the courts for redress of
grievances. Thus, “[t]he filing and prosecution of a well-
founded lawsuit may not be enjoined as an unfair labor
practice,” 9 and even a baseless lawsuit is afforded pro-
tection unless filed for retaliatory purposes.10 If a plain-
tiff’s failure to adequately argue a motion in the course
of litigation can be fodder for an unfair labor practice
complaint even where the overall lawsuit is not unrea-
sonable, that would turn all litigation—meritorious and
not—into a potential minefield of Board complaints and
would have precisely the deterrent effect on protected
petitioning that the Supreme Court mandates that we
avoid. It flouts Board and Supreme Court precedent to
suggest that, where a lawsuit cannot be condemned as an
unfair labor practice, requests for temporary relief and
other motions occurring during the litigation are never-
theless fair game.
B. Viewed as a Whole, the Lawsuit was not Filed
for a Retaliatory Purpose
As explained in my dissent in Allied Mechanical,11 the
subjective retaliatory motive prong of the BE&K test
requires the General Counsel to prove that the litigation
was subjectively intended to abuse process, consistent
with the antitrust sham litigation standard in Professional
Real Estate Investors, Inc. v. Columbia Pictures Indus-
tries (PRE).12 The PRE subjective prong requires proof
that the litigant's subjective motivation “conceals an at-
tempt to interfere directly with the business relationships
of a competitor . . . through the use [of] the governmental
process—as opposed to the outcome of that process
. . . .” BE & K Construction Co. v. NLRB.13 Here, that
showing has not been made.14
The General Counsel effectively concedes that the Re-
spondent was motivated to file the lawsuit by a desire to
stop defamatory claims about the safety of its laundering
services, explaining in its brief to the Board that the Re-
spondent filed its verified complaint and TRO motion
because it was “concerned about the Union’s April 27
press conference and the report criticizing its practices,
and anxious about the circulation of the customer let-

be baseless. In any event, my colleagues concede that neither of these
cases involved the legality of a particular phase of a lawsuit.
9 Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743
(1983).
10 BE&K Construction, supra, 351 NLRB at 458.
11 357 NLRB at slip. op. 13–16.
12 508 U.S. 49, 60–61 (1993).
13 536 U.S. 516, 526 (2002), citing PRE, 508 U.S. at 60–61 (empha-
sis in original).
14 Given the absence of evidence of a subjective retaliatory purpose,
and because the TRO motion in any event should not be treated sepa-
rately from the lawsuit, I need not pass on my colleagues’ application
of the objectively baseless prong of the BE&K standard to that motion.
ters,” and that the Respondent sued “to stop these prac-
tices from occurring.”
Further, the Respondent attached an affidavit to its
complaint and motion contesting the Union’s claims, the
substance of which is uncontroverted. The Respondent’s
president Craig Milum testified, also without contradic-
tion, about the inaccuracy of the Union claims, and that
he filed the lawsuit because he believed the Union’s con-
duct was “illegal, libelous, hurtful, and interfering with
our customer relations . . . that our recourse was through
the court system to have that behavior restrained,” and
that he wanted to prevent problems for his customers.
The General Counsel did not adduce evidence undermin-
ing Milum’s credibility, and the judge did not question
his credibility. Her only basis for finding retaliatory mo-
tive (only with respect to the lawsuit as a whole) was that
it targeted activity that is normally protected, a rationale
the Supreme Court has expressly rejected, as discussed
below.
Moreover, the Respondent’s lawsuit and its pursuit of
a TRO track closely other litigation involving similar
union tactics. See San Antonio Community Hospital v.
Southern California District Council of Carpenters, 125
F.3d 1230, 1236 (9th Cir. 1997) (hospital prevailed on
defamation claim where Union banner falsely stated
“THIS MEDICAL FACILITY IS FULL OF RATS”);
Sutter Health v. UNITE HERE, above. While these cases
may differ in certain particulars from the plight in which
the Respondent found itself, its independent decision to
choose the same path as other litigants, who were at least
initially successful with similar claims, supports a find-
ing that the Respondent acted out of a “genuine desire to
test the legality” of the Union’s conduct here and to ob-
tain a favorable result in court, rather than to impose the
burden of litigation costs.15
C. My Colleagues Rely on Rationale Previously
Rejected by the Courts to Find Retaliatory Motive
As noted above, my colleagues contend that the mo-
tion was retaliatory because it sought to enjoin protected
activity. In my dissenting opinion in Allied Mechanical,
I note that the BE&K Court expressly rejected that ra-
tionale, explaining that the Board’s prior view that a re-
taliatory suit is one “brought with a motive to interfere
with the exercise of protected [NLRA § ] 7 rights . . .
broadly covers a substantial amount of genuine petition-
ing:”16

. . . an employer may file suit to stop conduct by a un-
ion that he reasonably believes is illegal under federal

15 BE&K, 536 U.S. at 533–534.
16 Id. at 533.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2060
law, even though the conduct would otherwise be pro-
tected under the NLRA. As a practical matter, the filing
of the suit may interfere with or deter some employees'
exercise of NLRA rights. Yet the employer's motive
may still reflect only a subjectively genuine desire to
test the legality of the conduct. Indeed, in this very
case, the Board's first basis for finding retaliatory mo-
tive was the fact that petitioner's suit related to protect-
ed conduct that petitioner believed was unprotected . . .
If such a belief is both subjectively genuine and objec-
tively reasonable, then declaring the resulting suit ille-
gal affects genuine petitioning.17

My colleagues further err by relying on the Respond-
ent’s purported animus to infer an unlawful retaliatory
motive. This too is rationale the BE&K Court expressly
rejected:

The Board also claims to rely on evidence of antiunion
animus to infer retaliatory motive. . . . Yet ill will is not
uncommon in litigation. Cf. Professional Real Estate
Investors, 508 U.S. at 69 . . . (STEVENS, J., concurring
in judgment) (“We may presume that every litigant in-
tends harm to his adversary”). Disputes between ad-
verse parties may generate such ill will that recourse to
the courts becomes the only legal and practical means
to resolve the situation. But that does not mean such
disputes are not genuine. As long as a plaintiff's pur-
pose is to stop conduct he reasonably believes is illegal,
petitioning is genuine both objectively and subjective-
ly.18

Even if animus evidence were relevant to the issue of retali-
atory motive, which it is not, my colleagues rely on conduct
that occurred after the Respondent filed and withdrew its
lawsuit.19 Most of this conduct occurred after the Union
intensified its campaign and escalated its claims about the
safety of the Respondent’s restaurant clients, and has no
bearing on the Respondent’s motivations at the time it filed
its complaint. The Respondent’s only unfair labor practice
occurring before the lawsuit was that it provided nametags
to employees—after an employee asked for them—because
the employees complained that an unpopular manager

17 Id. at 533. See also Petrochem Insulation, Inc. v. NLRB, 240 F.3d
26, 32 (D.C. Cir. 2001), cert. denied 534 U.S. 992 (2001) (same).
Contrary to my colleagues, my position is not “inconsistent with the
words and purpose of Section 8(a)(1)” but is instead dictated by the
Supreme Court and Board decisions in BE&K in order to ensure the
required “breathing room” for activity protected by the First Amend-
ment.
18 536 U.S. at 534.
19 BP Amoco Chemical-Chocolate Bayou, 351 NLRB 614, 637
(2007) (unlawful statements made 7–8 months after other allegedly
unlawful conduct are not evidence that animus motivated the prior
conduct).
poked them to get their attention instead of using their
names. This cannot seriously be found to infer animus and
is not relevant to the motive for filing the lawsuit.
My colleagues further err, as they did in Allied Me-
chanical,20 by finding that the motion’s “obvious lack of
merit is further evidence that the Respondent sought to
retaliate against the Union[ ] by imposing on [it] the
costs and burdens of the litigation process.” By allowing
evidence of baselessness to substitute for an independent
showing of retaliatory motive, the majority diminishes
the quantum of evidence required to establish a violation
of the Act, and thereby subverts the purpose of requiring
a subjective component, which is to provide constitution-
ally protected breathing room for even unmeritorious
lawsuits.21
In sum, the General Counsel has failed to show the Re-
spondent was motivated by “the requisite kind of retalia-
tory purpose,” and the majority’s contrary holding cannot
be reconciled with the Supreme Court’s decision in
BE&K Construction. As such, this complaint allegation
must be dismissed.
D. A Remand is Unwarranted
My colleagues remand for the administrative law judge
to consider whether the remainder of the lawsuit was
baseless under the standard they articulate here, and
whether it was retaliatory under the standard they formu-
lated in Allied Mechanical, supra. Because I would dis-
miss the complaint allegation for the reasons stated
above, I find no need for a remand. Even on its own
terms, however, the remand for a retaliatory motive find-
ing is erroneous because it is based on the flawed Allied
Mechanical framework. And for the reasons that follow,
the remand to determine if the lawsuit was baseless is
flawed as well.
The judge found that the General Counsel failed to es-
tablish that the lawsuit had no reasonable basis in fact or
law, and that the Respondent’s voluntary dismissal of the
lawsuit was insufficient to compel a contrary conclusion.
The General Counsel’s exceptions argue that the judge
erred in so finding on the basis that the Respondent failed
to prove malice or actual damages at the hearing in this
case. My colleagues properly reject this contention, and
place the burden of proof where it belongs—on the Gen-
eral Counsel. They nevertheless overturn the judge’s
finding on the basis that the judge failed to consider
“substantial evidence” presented by the General Counsel

20 Supra, 357 NLRB No. 101, slip op. at 11.
21 Id. See also Petrochem v. NLRB, supra, 240 F.3d at 32 (“Yet not
all meritless suits against unions or employees amount to unfair labor
practices. Otherwise, Bill Johnson's would not have required the Board
to determine whether unmeritorious lawsuits were filed for retaliatory
reasons.”)
MILUM TEXTILE SERVICES CO. 2061
relevant to the truth of the allegedly defamatory state-
ments, the lack of malice on the part of the Union, and
the lack of actual damage suffered by the Respondent. I
respectfully disagree.
First, it appears that the judge did consider much of the
evidence my colleagues cite. Her decision notes that the
Union sent letters to restaurants using the Respondent’s
laundry service stating that they should be concerned
about the risk of contaminated linens because the Re-
spondent allegedly mixed hospital linens with restaurant
linens. The judge found that the letters cited a 2002 re-
port by the Arizona Department of Environmental Quali-
ty and Arizona OSHA as authority for this proposition,
that the Respondent was cited in a 2006 report for addi-
tional violations, but that the Union admitted at the hear-
ing that its only basis for believing the Respondent
mixed hospital and restaurant linens was employee re-
ports. The 2002 and 2006 reports were not admitted for
the truth of the matter asserted therein, and for this rea-
son alone do not support the Union’s claims.22 Moreover,
Milum’s affidavit and uncontroverted testimony refutes
these claims. The judge evidently found the evidence as a
whole insufficient to show that the Union’s claims were
true, and the majority offers no reason to disturb that
finding. Insofar as the majority asserts that the hearsay
on which the General Counsel relies is “substantial evi-
dence,” I respectfully disagree.23
Second, the trial judge improperly excluded evidence
directly relevant to the issues my colleagues remand. The
trial judge did not allow counsel for the Respondent to
elicit testimony from union organizer Daisy Pitkin, who
directed the letters to the Respondent’s customers, about
whether the Union had any evidence that Milum mixed
restaurant and medical linens in the washers or that doing

22 The Respondent asserts that the 2002 report did not involve its fa-
cility that handles commercial laundry for restaurants and the 2006
report did not find any cross-contamination issues relating to restaurant
linens. As such, it contends that neither report supports the General
Counsel’s case, and that all linens are disinfected during washing and
thus there is no safety issue in any event.
23 The same is true with the issue of damages, where the “substantial
evidence” presented by the General Counsel appears to be media re-
ports of statements by Milum that he had not lost customers as a result
of the Union’s campaign. But my colleagues agree that it was the
General Counsel’s burden to show that the Respondent could not have
established damages, which “may include general injury to reputation,
consequent mental suffering, alienation of associates, specific items of
pecuniary loss, or whatever form of harm would be recognized by state
tort law” and are not confined to whether the Respondent’s customers
sought to break their contracts with the Respondent, the limit of the
General Counsel’s “substantial evidence.” Linn v. Plant Guards, 383
U.S. 53, 65 (1966). In this regard, the General Counsel had ample op-
portunity to question Milum at the hearing regarding such damages, but
failed to do so. Media reports are no substitute for evidence of this
character.
so might pose a health risk, and precluded questioning
probative on the issue of malice. Likewise, the trial judge
sustained the General Counsel’s objections to evidence
the Respondent sought to introduce that was relevant to
these issues on the basis that it went beyond the allega-
tions of the Respondent’s complaint. The majority effec-
tively concedes that this ruling was too narrow given the
preliminary stage of the litigation, as the Respondent at a
minimum was entitled to explain why it was not able to
offer evidence essential to its case at the time the case
was dismissed.24 But my colleagues appear to contem-
plate that the judge will decide the remanded issues on
the basis of the flawed record all the same.
In these circumstances, a remand unjustifiably gives
the General Counsel a second opportunity to litigate this
issue despite his failure to persuade the judge the first
time around. And a remand that does not require consid-
eration of the clearly relevant evidence the trial judge
improperly excluded would make a mockery of due pro-
cess. I cannot join in this ill-considered course.
II. THE BARGAINING ORDER
I agree with the judge that a remedial bargaining order
is unwarranted. The judge found that the evidence as a
whole indicates the Respondent’s “partial respect” for the
employees’ organizing efforts, which suggests that the
coercive effects of its conduct can be ameliorated
through traditional remedies. Further, the Respondent’s
unfair labor practices are not sufficiently egregious or
pervasive to warrant a bargaining order.25 Here, the un-
lawful discrimination directly affected only three em-
ployees out of approximately seventy.26 Additionally, the
unlawful discharges were in response to the Union’s cor-
porate campaign, as opposed to employee organizing
efforts within the facility, and employees would likely
view them as an unlawful effort to protect the Respond-
ent’s public reputation rather than to stop the Union from
coming in.27 In any event, I would not issue a bargaining
order on the basis of the passage of time since the March
2006 petition. Wallace International de Puerto Rico,

24 The majority specifically requires the judge to consider any evi-
dence of this character, but the Respondent obviously was not on notice
during the hearing that any such showing was required or permitted.
25 Desert Aggregates, 340 NLRB 289, 294–295 (2003) (traditional
remedies adequate to redress employer's discriminatory layoff of two
union supporters and its solicitation and promise to remedy grievances,
notwithstanding unit’s small size of 11 employees).
26 Cardinal Home Products, 338 NLRB 1004, 1010 (2003) (viola-
tions not directly impacting a significant portion of unit unlikely to
require more than traditional remedies).
27 In analyzing these discharges, the judge cited Milum’s hostility to
the Union’s corporate campaign, in which Knox actively participated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2062
Inc.28 (declining to issue bargaining order where 5 years
had passed since the election).
For all the foregoing reasons, I respectfully dissent.
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-
fit and protection
Choose not to engage in any of these protected
activities

WE WILL NOT promise and/or grant you benefits in or-
der to discourage you from engaging in union activity.
WE WILL NOT institute and pursue any lawsuit against
the Union that is preempted by federal law or that lacks a
reasonable basis and is motivated by an intent to retaliate
against activity protected by Section 7 of the Act.
WE WILL NOT promulgate and maintain an overly
broad rule prohibiting you from wearing union buttons
while working.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT threaten to reduce your wages or other
benefits if you select the Union as your bargaining repre-
sentative.
WE WILL NOT unlawfully interrogate you about your
union membership, activities, and sympathies or the un-
ion membership, activities, and sympathies of other em-
ployees.
WE WILL NOT suspend you for engaging in union or
other protected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in union or other protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

28 328 NLRB 29 (1999).
WE WILL rescind the rule prohibiting you from wear-
ing union buttons while working and inform you that it
has been rescinded.
WE WILL reimburse the Union for all legal and other
expenses incurred in the defense of the Respondent’s
unlawful motion for a temporary restraining order, with
interest.
WE WILL, on request, bargain with the Union as the
exclusive representative of unit employees concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement. The unit is:

All full-time and regular part-time production employ-
ees employed by the Respondent at its laundry facility
located at 333 North 7th Ave., Phoenix, Arizona, ex-
cluding all other employees, office clericals, mechan-
ics, route drivers, confidential employees, guards and
supervisors as defined in the Act.

WE WILL, within 14 days from the date of the Board’s
Order, insofar as we have not already done so, offer full
reinstatement to Denise Knox and Soe Moe Min to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL, insofar as we have not already done so,
make whole Evangelina Guzman, Denise Knox, and Soe
Moe Min for any loss of earnings and other benefits re-
sulting from their suspension or discharges, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension of Evangelina Guzman and discharges of
Denise Knox and Soe Moe Min, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the suspension or discharges will not be
used against them in any way.
MILUM TEXTILE SERVICES, CO.

John Giannopoulos, Esq., for the General Counsel.
Laurie A. Laws, Esq. (Farley, Robinson & Larsen), of Phoenix,
Arizona, for the Respondent.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. Judge Joseph
Gontram heard this case in Phoenix, Arizona, on March 5
through 9, 20, and 21, April 2 through April 5, 9, and 10,
2007.1 The hearing closed on April 11, 2007, and the parties

1 All dates herein are 2006, unless otherwise specified.
MILUM TEXTILE SERVICES CO. 2063
submitted their briefs on June 15, 2007.2 Judge Gontram died
on July 18, 2007, prior to issuance of his decision in this case.
Thereafter, all parties agreed that a trial de novo was unneces-
sary and that the case could be transferred to another adminis-
trative law judge to write the decision based on the record cre-
ated before Judge Gontram without the need for demeanor
credibility findings. On August 7, 2007, the case was trans-
ferred to me for decision.
This matter was tried upon a third consolidated complaint
(the complaint) issued February 23, 2007, by the Regional Di-
rector for Region 28 of the National Labor Relations Board (the
Board) based upon charges filed by the UNITE HERE! (the
Union). After issuance of the complaint, the Regional Director
amended the complaint on February 27, March 16, and April 9,
2007. The complaint, as amended, alleges Milum Textile Ser-
vices, Co. (the Respondent) violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act). The Respondent
essentially denied all allegations of unlawful conduct.
II. ISSUES
1. Did Respondent violate Section 8(a)(1) of the Act by the
following conduct:

soliciting employee grievances, promising and granting bene-
fits, interrogating employees, implying employee organizing
efforts were futile, filing and maintaining a lawsuit against the
Union, promulgating a rule prohibiting employees from wear-
ing union buttons at work, seeking the arrest of union sup-
porters, creating the impression of surveillance and engaging
in surveillance of employees’ union activities, threatening
employees with reduced wages, and violating employees’
Johnnies Poultry3 rights.4

2. Did Respondent violate Section 8(a)(3) of the Act by dis-
charging Denise Knox and Soe Moe Min on July 8?
3. Did Respondent violate Section 8(a)(3) of the Act by sus-
pending and placing on probation Maria Minjarez on October
19?
4. Did Respondent violate Section 8(a)(3) of the Act by sus-
pending Evangelina Guzman on July 4 and disciplining her on
December 26 and January 20, 2007?
5. Is a bargaining order pursuant to NLRB v. Gissel Packing
Co.,5 an appropriate remedy?
III. JURISDICTION
At all times relevant, the Respondent, an Arizona corpora-
tion, with a facility and place of business located in Phoenix,
Arizona (the facility), has been engaged in the business of
providing commercial laundry services.6 During the 12-month
period ending July 6, the Respondent, in conducting its busi-

2 Counsel for the General Counsel’s unopposed posthearing motion
to correct the transcript is granted. The motion and the corrections are
received as ALJ Exh. 1.
3 146 NLRB 770 (1964).
4 In his posthearing brief, counsel for the General Counsel withdrew
complaint allegation 5(b)(2), which alleged the Respondent unlawfully
prohibiting employees from wearing union T-shirts at work.
5 395 U.S. 575 (1969).
6 Unless otherwise explained, findings of fact herein are based on
party admissions, stipulations, and uncontroverted testimony.
ness operations purchased and received at its facility goods
valued in excess of $50,000 directly from points outside the
State of Arizona. The Respondent admits, and I find, it has at
all relevant times been an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act. The
Union is a labor organization within the meaning of Section
2(5) of the Act.
IV. THE FACTS
A. The Respondent’s Business Operation
The Respondent commercially launders restaurant and
healthcare linens at its laundry in Phoenix, Arizona, which
occupies a block between Sixth and Seventh Avenues and pro-
vides pickup and delivery services to customers in the area,
including hospitals and restaurants.
During the relevant period, the following individuals served
as supervisors and agents of the Respondent in the indicated
positions:

Craig Milum (Milum)—President
Angela Kayonnie (Kayonnie)—Production Manager
Jaime Chavez (Chavez)—Production Supervisor
Rafael Parra (Parra)—Chief Engineer
Jason Myer (Myer)—IT Director

The Respondent’s production department, which includes
finishing, washing, and sorting employees, numbering approx-
imately 70, operates Monday through Saturday in two basic
shifts: 6 a.m.–2 p.m. and 2 p.m. until the work is completed for
the day. The washing and sorting employees generally start a
few hours before the finishing employees. Employees “clock”
in and out of work using a computer system into which individ-
ual employees type their respective employee numbers. Com-
pany policy requires employees to notify and to obtain authori-
zation from supervisors for absences or to leave work.
Both the Respondent and counsel for the General Counsel in-
troduced into evidence copies of written disciplinary notices
given to employees since 2003. Review of the notices reveals
that at all relevant times the Respondent exercised significant
discretion as to the scope and number of oral or written warn-
ings given for infractions of company rules. The majority of
the disciplinary notices deal with such time and attendance
issues as unexcused absences, tardiness, and leaving work
without permission or before work is finished. Other notices
warn against misuse of worktime, e.g., smoking, slowness, and
talking. The notices show that occasionally employees are
placed on probation in connection with warnings, including
first warnings. Frequently, the disciplinary notices include
warnings that additional infractions will result in suspension or
termination.
I find that at all times relevant, the Respondent’s disciplinary
practices have followed no clearly discernible pattern. The
evidence does not show clear-cut disciplinary progression from
warnings to suspension or termination. However, except in
extraordinary circumstances, it appears that the Respondent has
generally given employees one or more oral and/or written
warnings before imposing suspension or termination. After one
or more warnings, the Respondent has both suspended and
failed to suspend employees for time and attendance problems.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2064
In the year preceding the union campaign, various employees
left work without permission and received warnings with the
threat of subsequent suspension or discharge upon repeated
offense.
B. The Union Organization Drive
The Union distributed union literature to production employ-
ees at the facility beginning February 27. Thereafter, employ-
ees supporting the Union passed out union flyers at work and
placed stacks of flyers in the employee lunchroom. By letter
dated March 3, Kurt Edelman, laundry director of the Union,
asked Milum to discuss participating in a neutral-party exami-
nation of written employee union authorizations to determine
whether a majority of the Respondent’s employees wished to be
represented by the Union, which the Respondent declined.
On March 4, at about 3 p.m., all scheduled production em-
ployees (about 40) stopped working and asked to speak to Mi-
lum. Milum joined the employees in the production area, and
an employee presented him with a multipage document (the
petition), saying that the workers wanted the Union to represent
them. The petition was in Spanish and English, the fore page
of which read, “For Respect and Dignity [and] Safer Working
Conditions.” Succeeding pages bore the following heading and
the seriatim names, addresses, telephone numbers, and dated
signatures of 42 individuals:
WE DEMAND TO JOIN WITH UNITE HERE
AND 40,000 UNION
LAUNDRY WORKERS ACROSS THE COUNTRY!
I hereby accept membership in UNITE HERE, the interna-
tional laundry workers union, and authorize UNITE HERE to
represent me in negotiations with my employer about wages,
hours and all other conditions of employment.

On March 7, the Union distributed to employees entering
work adhesive name tags on which union representatives had
written “Unite Here!” Receptive employees wrote their names
on the tags and affixed them to their clothing without comment
or objection from any supervisor.
During the Union’s organizational efforts, the Union held
biweekly employee meetings and recruited employees to dis-
tribute union literature and paraphernalia at the facility.7 Many
employees wore the union-distributed items at work, including
approximately 3-inch-diameter adhesive paper emblems that
bore the words “QUEREMOS UNION YA~WE WANT
UNION NOW” around the circumference and UNITE HERE!
in the center. The Union provided employees with a 9-by-4
foot banner that employees displayed in the employee lunch-
room, which read, as translated from Spanish, “THE
COMMUNITY SUPPORTS YOU! UNITE.” The Union also
presented employees with a microwave oven for the lunchroom
on which employees affixed multiple stickers bearing the fol-
lowing messages (in English and Spanish): UNITE HERE!
IT’S TIME FOR A UNION! UNION ORGANIZE! WE
WANT A UNION! After their placement in the employee
breakroom, both the microwave oven and the banner remained

7 Employees handed out union flyers, shirts, wristbands, stickers,
and buttons.
there at least until the date of the hearing. No evidence was
adduced that any supervisor objected to or commented on the
union paraphernalia worn or displayed at the facility except for
metal union buttons, as related below.
Beginning March 10, the Union, assertedly relying on the
findings of governmental regulatory agencies and employee
reports, wrote to some of the Respondent’s restaurant custom-
ers and leafleted their patrons, asserting that the Respondent
disregarded established health and safety practices. The Union
also created a web site entitled “milumexposed,” on which
safety and employee issues were discussed. Sometime in April,
a television newscast featured an interview with employee Den-
ise Knox (Knox) as a union supporter. On April 24, the Union
issued a press release repeating its criticism of the Respond-
ent’s health and safety record. On April 28, The Arizona Re-
public published an article bearing the headline, “Laundry ser-
vice targeted by Valley union officials,” which dealt with the
same issues. In June, union representatives and employee sup-
porters, accompanied by a television news crew, filmed a news
segment at the facility.8 On July 6, the Union sponsored a
community forum in Tucson, Arizona. A news segment of the
event in which some of the Respondent’s employees appeared
was televised.9 The Respondent has referred to the Union’s
appeal to the Respondent’s customers and to the community as
the “corporate campaign,” distinguishing it from the Union’s
organizational campaign among employees. The Respondent’s
posthearing brief describes the so-called corporate campaign as
“a form of economic warfare,” which the Respondent had as-
sertedly been defending since 2005.
Over the course of the union organizational campaign,
Kayonnie reported to Milum which union organizers were at
the facility and which employees were talking to them. By
April, Milum believed that several production employees were
“strong” union supporters, including Evangelina Guzman
(Guzman), Maria Minjarez (Minjarez), Knox, and Brandy Ibar-
ra (Ibarra).10
C. Alleged 8(a)(1) Violations
1. The March 4 meeting
On March 4, after the Respondent’s employees presented
Milum with the petition, Milum spoke with them for about 45–
60 minutes (the March 4 meeting) with Chavez translating.
Witnesses to the March 4 meeting gave essentially corrobora-
tive accounts. The following is an amalgam of credible testi-
mony. Upon presentation of the petition, Milum asked the
congregated employees why they wanted a union. Some em-
ployees complained that Kayonnie did not treat them with re-
spect and dignity and that she clapped her hands or poked them
instead of using their names. Milum said he could not tell the
employees anything for or against the Union, but the process of

8 The employee supporters included Knox, Brandy Ibarra, and Zu-
lema Ruiz.
9 Milum went to Tucson in anticipation of being interviewed, but the
interview did not take place.
10 In a February 9 email to the manager of the Respondent’s custom-
er, Fox Restaurant, Milum identified Guzman as the “number one union
supporter” at the Company.
MILUM TEXTILE SERVICES CO. 2065
getting a union could be a long one; there could be a lot of
problems because employees could strike, and they might have
to go to court to obtain a union election. He said there was no
need for the Union, as he could resolve the problems at the
plant, and he would speak to Kayonnie. Employees suggested
Milum change supervision, but he refused, telling them Kayon-
nie was a very good supervisor. Minjarez recommended Mi-
lum provide employees with nametags, to which Milum agreed.
In response to an employee’s description of union persistence
in urging a relative to sign an authorization card, Milum told
employees they should report such conduct.11
About a week after the meeting, Milum disseminated to em-
ployees 3-by-1-1/4 inch plastic nametags on which were print-
ed employee first names. The nametags were secured to cloth-
ing by a 1-1/4-inch horizontal metal pin on the back of the
nametag that could be secured by a rotating closure. Employ-
ees wore the nametags, some of which fell off and were lost.
2. The Respondent’s lawsuit against the Union
By letters dated March 10, the Union wrote to some of the
Respondent’s restaurant customers warning that they “should
be concerned about the risk of contaminated linens” processed
by the Respondent, as the Company “mixed hospital linens
with restaurant linens in the washers.” For authority, the Union
cited 2002 investigative reports by the Arizona Department of
Environmental Quality and Arizona OSHA.12 On April 3, the
Respondent filed an unfair labor practice charge with the Re-
gion alleging that the Union violated Section 8(b)(4)(ii)(B) of
the Act by transmitting the letters and requesting injunctive
relief.13 On April 28, the Region, citing NLRB v. Servette, 377
U.S. 46 (1964), dismissed the charge, noting that unions are not
prohibited from making “noncoercive entreaties” to secondary
employers to cease doing business with primary employers.14
On April 26, the Respondent filed a verified complaint for in-
junction and damages (Respondent’s complaint) and a motion
for temporary restraining order (Respondent’s motion) in Ari-
zona Federal District Court. Respondent’s complaint set forth
five causes of action: illegal secondary boycott, intentional
interference with economic relationships, intentional interfer-
ence with prospective economic advantage, libel, and common
law fraud. The Respondent contended the Union sought to in-
duce the Respondent’s customers to cease doing business with
the Respondent by mailing and faxing letters to them that con-
tained false and misleading material, and to damage the Re-
spondent’s reputation by making statements the Union knew
were false or without reasonable grounds for belief of truthful-

11 Guzman testified that Milum asked employees in favor of the Un-
ion to so indicate by a show of hands or by moving to one side. No
other witness testified of this incident, which would reasonably have
been expected to excite recall, and I give the testimony no weight.
12 On May 4, Arizona OSHA issued another report citing the Re-
spondent for five “serious” violations relating to blood or other poten-
tial infectious material contamination. At the hearing, the Union admit-
ted its only basis for believing the Respondent mixed hospital and
restaurant linens was employee reports.
13 Case 21–CC–001008.
14 By letter dated June 7, the NLRB Office of Appeals upheld the
Region’s dismissal of charges.
ness. The Respondent sought damages and prohibition against
the Union’s contacting its customers.
On April 27, the District Court denied the Respondent’s re-
quest for injunction on grounds the issues were preempted by
Federal law. The Respondent continued to maintain and prose-
cute its lawsuit until May 26 when it obtained voluntary dis-
missal of the action without prejudice. The Union incurred
legal expenses consequent to the lawsuit.15
3. The Respondent’s alleged prohibition on distributing
and wearing union buttons at work
On June 27, Zulema Ruiz (Ruiz), order assembler, appeared
at work wearing a round metal button on which the message
UNITE HERE! was enscripted (union button) and gave a simi-
lar button to a coworker. The attachment device on the union
button consisted of an approximately 1-inch pointed horizontal
shaft with a crookneck safety latch to hold the shaft in place
after insertion in fabric. Milum asked Ruiz if she were handing
out union buttons during work hours, which Ruiz denied do-
ing.16 Milum told Ruiz she could not wear the union button
while working because the attachment pin posed a danger to
employees when holding piles of linens close to the body and a
danger to equipment if it fell into the machinery.17 Ruiz asked
why the Respondent permitted name badges. Milum explained
he had ensured the badges had a rotating locking mechanism to
enhance safety, but since it was impractical to inspect every pin
an employee might wear, the Company had a rule not to wear
pins in production. Ruiz protested she did not work around
equipment. Milum said order assemblers worked near equip-
ment, were sometimes assigned to work on equipment, and it
was not practical to remind employees to remove pins during
reassignments.
On July 4, Guzman appeared at work wearing a union but-
ton. Milum told her she could not work unless she removed the
button because it created a safety problem. He said he did not
care what the button said, but it could fall into and scratch the
ironer or hurt her. Guzman protested, and Milum told her she
could not work while wearing the button and if she left she
would lose the July 4 holiday pay. Guzman left work rather
than remove the button; she did not thereafter wear it at work.18
Although a warning notice on the feeding machine cautioned
employees: “Tie hair back, no loose clothes, Remove all jewel-
ry,” employees commonly wore watches, earrings, chains, and
necklaces while working.19 Demonstrations conducted at the

15 Counsel for the General Counsel sets the amount of expenses at
$2000; the Union sets them at $3000.
16 Ruiz testified, “He told me if I was handing buttons over to em-
ployees during work hours.” In his posthearing brief, counsel for the
General Counsel characterizes Milum’s words as a declarative state-
ment. However, it is clear that Ruiz understood Milum to be asking a
question.
17 Milum had not examined the union button, but he assumed it had a
sharp pin on the back, as he saw no other type of fastening.
18 The General Counsel alleges this incident as a independent viola-
tion of 8(a)(1) as well as a suspension of Guzman in violation of Sec.
8(a)(3).
19 Kayonnie testified she told employees to remove long necklaces
and loose bracelets at work, but in an affidavit given to the Board, she
denied telling employees to remove jewelry. I accept employee testi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2066
hearing showed the nametags readily separated from material
upon abrupt movement, and several employees testified that the
nametags fell off as they worked. After conducting tests, ex-
pert witness, Dr. Gary Bakken, industrial engineer and college
professor at the University of Arizona, concluded the nametags
furnished by the Respondent were more likely to become un-
latched during work activities than the union button.
4. Soliciting third parties to contact law enforcement
agencies and attempting to instigate the arrest of
union handbillers
After the Union commenced its publicity campaign directed
toward the Respondent’s customers, the Respondent regularly
contacted the Phoenix police department seeking police re-
sponse to and intervention in the handbilling the Union con-
ducted at customer facilities. Milum e-mailed some customers
with suggestions on how to effectuate arrests of handbillers for
trespassing, urging them to warn handbillers of criminal liabil-
ity and to contact the police. He occasionally referred to the
Union as cockroaches and monsters. Milum also urged cus-
tomers to file unfair labor practice charges with the Board
against the Union.20 One of Respondent’s customers reported
to the Respondent that the police had caused union handbillers
to leave its private property. In an interview given to a local
newspaper in February 2007, Milum compared the union or-
ganizational campaign to “an organized-crime shakedown.”
5. Alleged unlawful surveillance/creating impression
of surveillance
While eating lunch in her husband’s truck parked on 6th Av-
enue outside the facility, Kayonnie saw various employees
meeting with union agents and reported her observations to
Milum the first time she saw them.21
When the union campaign commenced in early 2006, the
Respondent’s security system included seven to eight video
cameras mounted at various locations, only a few of which
were functional. In January, the Respondent’s information
technology director, Meyers inquired if Milum wanted to re-
place its 3-year old security camera system with a new one.
Milum initially declined but at the end of 2006, when Meyers
again proposed a camera revamp, authorized the change, saying
business was good and it might be a good time to do it. In late
January 2007, the Respondent installed approximately 15 cam-
eras in the production, laundry, storage, office, and some pe-

mony that employees regularly wore jewelry without supervisory ob-
jection.
20 In consequence, one customer and the Respondent on behalf of
another customer filed unfair labor practice charges alleging illegal
secondary boycotts by the Union, which the Region later dismissed.
21 Counsel for the General Counsel urges that Kayonnie’s testimony
of a long history of eating lunch in her husband’s truck be discredited.
It is true that Kayonnie appeared to equivocate on this point, but
Kayonnie’s primary language is Navajo, and the transcript shows she
did not always clearly understand questions put to her. Although em-
ployee Maria Velasquez testified it was “really rare” that Kayonnie
would eat lunch in her husband’s truck on 6th Avenue, she also testi-
fied that she had never been on 6th Avenue when Kayonnie was there.
I accept Kayonnie’s testimony that her choice of a lunch spot preceded
the Union’s organizational campaign.
rimeter areas of the facility. Milum vetoed placement of a
camera on the 6th Avenue perimeter because employees regu-
larly met with the Union there but approved one in the lunch-
room where no camera had before been placed.
During the installation, Guzman asked Parra why cameras
were being installed. Parra laughingly replied they were to
keep her “in check” and that while all other images would be in
color, she would appear in black and white.
6. The computer video presentation to employees
In December, the Respondent individually showed employ-
ees a company-created computer video. At that time, the Re-
spondent paid new employees between $8 and $9.25 and expe-
rienced employees between $8 and $9.25 per hour. In pertinent
part, the video pointed out that the Respondent paid its employ-
ees higher wages than its Arizona competitors, including sever-
al unionized companies, and stated:

If the Union was representing employees and bargaining for
wages, wages would be open to serious bargaining between
the Company and the Union and the result of the bargaining
could be wages of $6.75 per hour or higher.
7. Prehearing employee interviews
In preparation for the hearing, the Respondent’s attorney,
Laws, in company with Milum interviewed a number of em-
ployees at the facility. The following employees testified as to
what the interviews entailed: Maria Zambrano (Zambrano),
Carlos Zambrano, Edgar Villagrande, Pat Goebel, Edel Davilla,
Alvaro Munoz, Maria Martinez, Rosa Reyes, Maria Teresa
Velasquez, and Lydia Roberts (the latter four employees were
interviewed at a group). Although each employee described a
slightly different notification by Milum or Kayonnie that the
Respondent wanted to interview them, all employees denied
that they had been informed their participation in the interview
was voluntary or that they had been assured no reprisals would
be taken.22 At the interview itself, neither Laws nor any repre-
sentative of the Respondent assured any employee that the
meeting was voluntary and/or that the employee need not fear
reprisal.
D. Alleged 8(a)(3) Violations
1. The discharges of Denise Knox and Soe Moe Min
Prior to their discharges on July 8, Knox and Soe Moe Min
(Min) worked for Respondent as soiled laundry sorters. Be-
cause she openly championed the Union, Milum believed Knox
to be a strong union supporter. Min, a Burmese-speaking em-
ployee, also openly supported the Union, wearing T-shirts en-
scripted “UNITE HERE” to work almost daily.
On Thursday, July 6, Knox appeared on a Tucson television
newscast as a union supporter. On Friday, July 7, Zambrano,
lead person for the Respondent’s early shift soil sort depart-
ment, told Kayonnie and Chavez that after clocking in Knox

22 Pat Goebel testified that Milum asked her to meet with the compa-
ny lawyer, “If you want to.” Maria Teresa Velasquez testified that
Milum asked her if she wanted to help him in supporting him; he told
her he was not demanding anything of her. I do not find Milum’s
statements assured either employee that the prospective interview was
voluntary.
MILUM TEXTILE SERVICES CO. 2067
and Min sat in the lunchroom instead of working.23 Kayonnie
relayed the complaint to Milum, who knew of Knox’s July 6
Tuscon television appearance.24
On Saturday, July 8, Knox and Min, who were scheduled to
start work at 4 a.m. in the soil sort department, clocked in at
3:53 a.m.25 With the object of verifying Zambrano’s report,
Milum arrived at the facility before 4 a.m. and covertly recon-
noitered the lunchroom, waiting outside it until 4:08 a.m., at
which time he entered.26 According to Milum, he saw Knox
and Min, the former sitting and the latter talking with a janitor.
Milum asked Knox if she had punched in. When she said she
had, he asked her if it was normal for her to punch in and then
go sit down. She said it was not. Milum asked why she was
doing it that day, and she said she was waking up. Milum told
her it was wrong to punch in and sit in the lunchroom rather
than start work and that stealing time was stealing money.
Milum directed her to punch out and go home. Knox replied
that everyone, including Zambrano, went to the lunchroom
after clocking in.27 Knox clocked out at 4:11 a.m.
Knox did not testify. According to Min, after clocking in on
July 8, he worked at assigned tasks for about 5 or 10 minutes,28
after which he repaired to the lunchroom to get a drink from the
vending machine. In the lunchroom, Min saw Milum talking to
Knox. He obtained a soda, drank some of it, and returned with
the soda to his station, the round trip taking about 3 to 5

23 Counsel for the General Counsel argues that Zambrano gave in-
consistent testimony as to whether she had told Kayonnie that Knox
and Min delayed starting work. It is true that Zambrano’s testimony
given during the Respondent’s case was fragmented and sometimes
ambiguous. However, her testimony engendered a number of objec-
tions, counsel colloquy, and procedural discussions among the judge
and the parties, and I cannot blame her resultant confusion on lack of
credibility. In spite of some imprecise and nearly incoherent testimony,
Zambrano consistently maintained that she had told Kayonnie the two
employees “would be talking in the dining room and then would go to
work . . . it was already worktime and we were already working.”
24 Regarding his knowledge of Knox’s July 6 Tuscon television ap-
pearance, Milum initially testified that on July 8 he was aware firing
Knox was “a pretty explosive situation with Denise being on television
Thursday in Tucson and promoting the union against Milum Textile
Services and here we are less than two days later and I’m firing her.”
He almost immediately corrected his testimony, stating that although he
knew of Knox’s April television appearance, he did not know she had
been on television in Tucson until after he fired her. Given Milum’s
spontaneous and specific initial testimony, I do not credit his later
denial. I find that at the time Milum heard of Zambrano’s complaint,
he knew of Knox’s July 6 television appearance.
25 Min initially testified that he arrived at work at 4:10 a.m. The Re-
spondent’s time records show he clocked in 17 minutes earlier. The
inconsistency is probably due to translation error, as Min also testified
that he arrived before 4 a.m.
26 Milum waited until after 4:07 a.m. to satisfy the vagaries of the
Respondent’s timeclock, which reverts to the quarter hour if activated
on or before 7 minutes after the quarter hour.
27 In an affidavit given to the Board on September 1, Zambrano ad-
mitted that all soil sort department workers went to the lunchroom after
clocking in, including herself, remaining there the several moments
between clocking in and actual start time plus “several minutes after the
exact hour.”
28 Min initially testified he worked for 10 minutes, then said for 5
minutes.
minutes. Min worked for about 10 more minutes, after which
Milum approached and spoke to him, gesturing at the time
clock. Although Min did not speak English, he understood
Milum to be accusing him of wasting time and not working.
Milum left for 6 to 7 minutes and returned with Arafat, a Bur-
mese-speaking janitor, who told Min he was fired. Min
clocked out at 4:17 a.m.29 Two days after the terminations,
Milum and Chavez asked Zambrano if Knox and Min often
stayed in the lunchroom after clocking in.
Before he fired Knox and Min, Milum did not discuss the
disciplinary action with supervisors, to whom he generally
referred disciplinary issues; he did not review the two employ-
ees’ personnel files, which were devoid of any prior warnings,
and he did not, apparently, consider Knox’s assertion that early
morning lunchroom loitering was a common employee prac-
tice. Although there is no evidence any employee had commit-
ted an identical infraction in the past, the evidence shows the
lunchroom was a draw for many employees who stopped work
early, delayed work, extended a break, or detoured from a re-
stroom trip to pause there. Milum’s practice was to give new
employees engaging in such work evasions a “stern discus-
sion,” and before Knox and Min’s discharges, no such employ-
ee had been disciplined beyond a written warning. In January,
Kayonnie issued a written warning to an employee who, among
other work violations, left his workstation to visit the restroom
every 15 minutes after reporting to work. Two months prior to
the discharges, an employee who twice left work for smoking
breaks was issued a written warning. Milum estimated that in
the 5 years prior to July 8, he had terminated without prior no-
tice about 10 employees for severe misbehavior. However,
Milum detailed far fewer terminations for that period, citing
terminations that spanned a period of more than 25 years and
involved significant property theft: 1983 and late 1980s, office
employees fired for depositing checks in separate accounts;
1989, production employee fired for stealing linens; 1994, su-
pervisor fired for fraudulently claiming gasoline expense; 2003,
engineer fired for theft of a tool; 2003–2004 security janitor
fired because of missing hand tools.
2. Maria Minjarez
The Respondent hired Minjarez as a production worker in
January. Without notice, Minjarez voluntarily terminated her
employment on May 10 by not showing up for work. In July,
the Respondent rehired Minjarez on condition she would notify
the Company every time she had to be off.
Beginning in October, Minjarez actively participated in un-
ion organizing: distributing union fliers to employees at the
facility and collecting signatures on a petition asking for set
work schedules. At all relevant times, Milum knew Minjarez to
be a firm union supporter.
On October 16, while at work Minjarez felt ill and left work
without permission because she did not think the Company

29 I cannot fully credit Min’s testimony. Although Min insisted the
timeclock was off by a few minutes, there is no evidence of that; I
accept that Min clocked in at 3:53 a.m. and clocked out at 4:17 a.m.
Min’s testimony appeared calculated to fit the established time period
rather than to present a straightforward account. Accordingly, I give
weight to Milum’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2068
would authorize her absence.30 Minjarez had her mother notify
Chavez on the following day that she would not be at work.
When Minjarez returned to work on October 18, Kayonnie sent
her home, telling her she had quit.31 Minjarez returned to the
facility that afternoon and spoke to Chavez. Chavez told her
Kayonnie had said she had quit and that she was “very prob-
lematic.” Minjarez waited several hours to speak to Milum
who told her that Kayonnie had reported she was a “trouble-
maker.” Milum also told Minjarez she was slow and not at the
level of the rest of the workers. According to Minjarez, a few
weeks earlier Milum had told her she could not receive a re-
quested transfer from her department because she was a very
good worker. Minjarez had no prior record of discipline.
On October 19, the Respondent suspended Minjarez for 3
days and placed her on probation for 90 days. The accompany-
ing employee warning notice, signed by Chavez, read, in perti-
nent part:

On Monday, October 16, early evening you left your
position without seeking approval or notifying your super-
visor. You later indicated that you were feeling too ill to
work and that you were afraid that I would not approve of
your leaving before the work was done.
Since you . . . were re-hired in July after you quit
without notice in May at which time you committed to not
again leaving the company’s employment without notice,
1) you have been missed days of work and 2) you have
been late days. You also have also 3) worked at a slower
pace than is considered a good and acceptable on a long
term basis.32
3. Evangelina Guzman
Guzman worked for the Respondent during three separate
periods (in 2005, in 2006 until September 28, and commencing
again in early October), beginning each period as a new em-
ployee. During her second period of employment, a photo-
graph of Guzman and the regional manager of the Union ap-
peared in an April 28 news article in The Arizona Republic.
The caption read: “Unite Here workers protest conditions at

30 Minjarez’ testimony on this score was somewhat equivocal. She
testified that she did not ask anyone for permission because “they had
just switched the person that used to work with me, I didn’t think they
were going to replace that person and I didn’t—couldn’t find the super-
visor and I went home.” When questioned further, Minjarez testified
that she did not know how long she looked for Chavez and that she did
not think about notifying Milum. She then agreed that the statement in
her Employee Warning Notice was accurate: “You later indicated that
you were feeling too ill to work and that you were afraid that I would
not approve of your leaving before the work was done.” I infer from
her testimony that she did not seek permission to leave because she
thought it might be denied.
31 In its posthearing brief, the Respondent states that Minjarez
missed a second day of work on October 18 without notice to the Com-
pany. Although Minjarez testified under cross-examination that she did
not report a prospective absence for October 18, it is clear from her
credible testimony that she did not voluntarily miss work on October
18, rather the Respondent refused to let her work.
32 Minjarez agreed that she had missed work because of her child’s
bouts with asthma and that she sometimes clocked in late but denied
working slowly.
Milum Textile Services. Unite Here Regional Manager Chris-
tina Vasquez (center) interprets for Evangelina Guzman, who
tells of an injury she suffered on the job.” On July 4, also dur-
ing Guzman’s second period of employment, as detailed above,
the Respondent refused to permit Guzman to work unless she
removed the union button she wore. Guzman terminated her
second period of employment on September 28 when her work
permit expired. When Guzman presented the Respondent with
a renewed work permit on October 10, the Respondent rehired
her.
On December 25, during Guzman’s third period of employ-
ment, Guzman worked until 5:43 p.m. and then told Kayonnie
she was leaving because she had finished her work and her ride
had arrived. Kayonnie told her she had to stay until the entire
production was finished and if she left she would not have a
job. Guzman said, “Okay” and left. When Guzman reported to
work the following day, December 26, Kayonnie signaled to
her that there was no work. Guzman left but returned sometime
later and spoke to Milum with Kayonnie present. Kayonnie
denied she had fired Guzman, telling Milum that on the preced-
ing day, contrary to specific instructions, Guzman had left work
before her assigned tasks were completed. Later that afternoon,
Kayonnie gave Guzman an employee warning notice that im-
posed a 3-day suspension and 90-day probation, and which
stated in pertinent part:

On Monday, December 25, you left your position without se-
curing [my] approval. . . . In the future, you may not leave
your work position until directed by the supervisor on duty.
Yesterday, we had an unusually bad day. It was Christmas
and we were all in a hurry to finish the production. . . . When
you left without the rest of us being finished, this was a seri-
ous failure to perform your duty and will not be tolerated in
the future.

On January 20, Guzman was scheduled to work. According
to Chavez, she requested the day off but was refused. Accord-
ing to Guzman, she intended to report to work, but while in
transit, her car malfunctioned. Guzman called the Respondent
and left a message when no one answered. On January 22,
Guzman reported to work and tried to give Kayonnie an invoice
from Gorditos Emission Repair to show her car had been re-
paired the preceding Saturday. Kayonnie told her to show it to
Garcia. Because she believed Garcia had gotten the message
she left on January 20, Guzman did not show him the invoice,
which read in pertinent part: “Car Needs Mass Air Flow Sen-
sor, Oz sensor & Fuel Pressure Regulator Fix To Continue
$537.00.”
On January 23, 2007, Chavez told Guzman he was going to
give her a warning for her absence on the preceding Saturday.
Guzman told him she had been absent because her car had bro-
ken down and that Kayonnie had refused to look at the mechan-
ic invoice. She asked if he had gotten the message she left on
the answering machine. Chavez said he had not and that the
warning he was going to issue her would be her third, as the
Company was counting a warning Guzman had received in
MILUM TEXTILE SERVICES CO. 2069
September.33 Guzman protested that as the Company had hired
her as a new employee in October, her warnings from the past
should not count. Chavez told Guzman to speak to Kayonnie
about that.
In Spanish, Chavez read to Guzman an employee warning
notice bearing his signature, which stated in pertinent part:

Last week, you asked me if you could not work Satur-
day, the 20th, and instead work on the following Thursday
which is your normal day off. I responded that we could
not do that and that you needed to be here on Saturday,
your regular work day.
You failed to come to work on Saturday. You indicat-
ed today when questioned about your unexcused absence
that you went to look for a car to purchase on Saturday.
Looking for a new car is not sufficient reason for an unex-
cused absence.
This is the third time in less than six months where you
have either left work early against direct instructions . . .
or have failed to come to work on a [scheduled] day. . . .
This is the third and final warning. If you again fail to
timely report to work or leave early without authorization
before the end of your shift, you will be subject to imme-
diate dismissal. This status will be in effect through July
23, 2007.

Guzman protested that she had not gone to buy a car but that
her car had broken down. Chavez said it was the same thing.34
E. Majority Authorization of the Union and Later
Dissipation of Union Support
As of March 4, the Respondent employed 70 production
workers at its facility. As evidenced by the signatures of pro-
duction employees on the March 4 petition, 43 of the produc-
tion employees had authorized the union to represent them.35
Prior to Guzman’s suspension and Knox and Min’s dis-
charges, the Union held biweekly meetings of the Respondent’s
employees with an average attendance of 10–15 employees.
Following the suspension/discharges, employee attendance at
union meetings decreased, and the Union’s two August meet-

33 The Respondent had issued Guzman an employee warning notice
dated September 26, stating, “Warning for absent on 9/23/06 & 9/25/06
which is your workday. (No call in).”
34 I do not find Guzman’s account credible. The proffered mechan-
ic’s invoice does not support her testimony of car trouble. The invoice
evidences no malfunction; rather it shows only that the vehicle needed
emission control procedures performed. Under cross-examination,
Guzman testified that her car broke down after she left “emissions” at
12:30 p.m. and while she was on her way to work. Under cross-
examination, Guzman said she left the emissions facility at 10:30 a.m.
Although she was scheduled to report for work at 1 p.m., by her ac-
count Guzman did not telephone the Company and leave a message
until 3 p.m. The inconsistencies prevent my crediting her account, and
I find that she deliberately failed to report for work on January 20 after
being denied leave.
35 I discount the testimony of three employees who variously
claimed they did not read the petition, did not understand the petition,
or signed in reliance on union promises as inconsistent with their testi-
monies as a whole and at odds with the clear meaning of the petition
language.
ings were attended by only one and two employees, respective-
ly. Before the suspension/discharges, employee volunteers
distributed union flyers to other employees inside the plant;
afterwards, they declined to do so. Employees also declined to
accept union buttons. Employee Salvador ____ told union
representatives he no longer wanted to wear the union sticker
because he was afraid he would be fired. Milum estimated that
by February 2007, of the 40 employees participating in the
March 4 work stoppage, only Guzman still wanted the Union.
A. Alleged 8(a)(1) Violations
1. Alleged interrogation, promise, and grant of benefits,
threat of futility
The complaint alleges that in the course of Milum’s March 4
meeting with employees, he engaged in the following conduct:
(1) interrogated employees about their union membership, ac-
tivities, and sympathies; (2) solicited employee complaints and
grievances, promised employees increased benefits, and im-
proved terms and conditions of employment if employees re-
frained from selecting the Union as their bargaining representa-
tive.
When the Respondent’s employees presented Milum with
the petition, Milum asked them why they wanted a union.
Counsel for the General Counsel contends this question consti-
tuted unlawful interrogation in violation of Section 8(a)(1) of
the Act, but an employer’s questioning of employees about
their union sentiments does not necessarily violate Section
8(a)(1) of the Act, particularly where the employees are open
and active union supporters. The test is whether, under all the
circumstances, the interrogation reasonably tends to restrain,
coerce, or interfere with statutory rights. To support a finding
of illegality, the words themselves, or the context in which they
are used, must suggest an element of coercion or interference.
Rossmore House, 269 NLRB 1176, 1177–1178 (1984), affd.
sub nom. UNITE HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985) (questioning of open and active union supporter
about prounion mailgram he sent to employer was not coer-
cive). Here, the employees, having engaged in a work stoppage
for the purpose of presenting a signed union authorization peti-
tion to their employer, could scarcely have more openly or
actively demonstrated their union support. Milum’s subsequent
question was posed without animosity or intimidating comment
and did not, therefore, tend to restrain, coerce, or interfere with
the employees’ statutory rights. I shall, therefore, dismiss this
allegation of the complaint.
Counsel for the General Counsel also argues that Milum un-
lawfully interrogated employees by asking prounion employees
to raise their hands or to separate themselves from other em-
ployees. I have not credited testimony to that effect and there-
fore find no violation of the Act with regard to it.36
After listening to employees’ complaints—primarily about
an unpopular supervisor—Milum told them there was no need
for the Union, as he could resolve the problems at the plant, and
he would speak to the supervisor. He rejected employee sug-

36 In light of the disposition of this allegation of the complaint, I find
it unnecessary to consider the Respondent’s arguments that the allega-
tion is outside the 10(b) period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2070
gestions that he get rid of the supervisor but agreed with an
employee recommendation that he provide nametags. Counsel
for the General Counsel argues that Milum thereby solicited
grievances and promised improved terms and conditions of
employment. The Board has held that a solicitation of griev-
ances by an employer during a union campaign is not itself
unlawful but merely raises a rebuttable inference that the em-
ployer is promising to remedy the grievances, which implicit
promise violates Section 8(a)(1) of the Act. George L. Mee, 348
NLRB 327, 329 (2006). Here, Milum made no express promis-
es to employees. Indeed, he specifically rejected a proposal
that he remove an offending supervisor. However, his agree-
ment with and later provision of individual nametags to assist
supervisors in addressing employees was a grant of benefit in
response to employee grievances and violated Section 8(a)(1)
of the Act.
In his posthearing brief, counsel for the General Counsel ar-
gues that other March 4 statements also violated the Act: (1)
Milum’s statement that unionization could take years and could
lead to strikes and lawsuits conveyed to employees that their
support for the Union was futile, and (2) his direction to em-
ployees to report to him if they were being harassed or pres-
sured into signing with the Union violated Section 8(a)(1) of
the Act. Although the complaint sets forth the first allegation,
it places its occurrence in mid-March and clearly contemplates
statements separate from those made on March 4. The com-
plaint fails to allege the second statement as a violation of the
Act. Neither the complaint allegations nor the General Coun-
sel’s presentation of evidence put the Respondent on notice that
these statements were at issue. Accordingly, I do not address
them. See International Baking Co., 348 NLRB 1133 (2006);
Dilling Mechanical Contractors, 348 NLRB 98, 106, 107
(2006).
The complaint alleges that in mid-March Milum informed
employees that it would be futile for them to select the Union
as their collective-bargaining representative. No evidence was
presented in support of this allegation. I shall, therefore, dis-
miss it.37
The General Counsel argues that on June 27 Milum unlaw-
fully interrogated Ruiz when he accused her of passing out
union buttons. I have found that Milum did not accuse Ruiz of
anything but merely asked her whether her open distribution of
a union button in the workplace occurred on worktime. For a
finding of unlawful interrogation, a supervisor’s words them-
selves, or the context in which they are used, must suggest an
element of coercion or interference. Rossmore House, supra at
1177–1178. Here, Milum apparently accepted Ruiz’ denial that
she had given out the button on worktime and, although he told
her she could not wear the button while working because of
safety considerations, he said nothing to dissuade her from
distributing buttons. His question could not reasonably have
tended to restrain, coerce, or interfere with Ruiz’ statutory
rights. I shall, therefore, dismiss the complaint allegation that
the Respondent unlawfully interrogated employees on June 27.

37 In light of the disposition of this allegation of the complaint, I find
it unnecessary to consider the Respondent’s arguments that the allega-
tion is outside the 10(b) period.
2. The Respondent’s lawsuit against the Union
The General Counsel argues that by filing a lawsuit and mo-
tion for a temporary restraining order against the Union, the
Respondent violated Section 8(a)(1) of the Act, asserting the
lawsuit lacked a reasonable basis in law or fact and was retalia-
tory.
Drawing on the principles enunciated in Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983), and BE & K Construc-
tion Co. v. NLRB, 536 U.S. 516 (2002), the Board in Manufac-
turers Woodworking Assn. of Greater New York Incorporated,
345 NLRB 538, 541 (2005), notes:

[A]s a general rule a lawsuit enjoys special protection and can
be condemned as an unfair labor practice only if it is filed
with a retaliatory motive, i.e., motivated by a desire to retali-
ate against the exercise of a Section 7 right, and if it has no
reasonable basis in fact or law. However, a lawsuit that is
aimed at achieving an “unlawful objective” (or is preempted)
“enjoys no special protection” under Bill Johnson’s and may
be enjoined. . . .” In determining whether an employer’s
[conduct] violates Section 8(a)(1), the Board considers the
“totality of the relevant circumstances.” Saginaw Control &
Engineering, Inc., 339 NLRB 541 (2003).

The General Counsel bears the burden of proving that the
Respondent’s motive in filing the lawsuit was a desire to retali-
ate against the exercise of a Section 7 right and that the lawsuit
had no reasonable basis in fact or law. As the General Counsel
argues, to the extent the Respondent sought a temporary injunc-
tion for the Union’s alleged illegal secondary boycott and inter-
ference with economic relationships, its lawsuit was preempted
by Federal law,38 and the district court so found. The Respond-
ent’s attempt to obtain injunctive relief under those theories
had, therefore, no reasonable basis in law and was unlawful
under Section 8(a)(1) of the Act.
As to the remaining causes of action alleged in the Respond-
ent’s lawsuit—fraud, slander, and libel—I accept, arguendo,
that the lawsuit embodied the Respondent’s desire to retaliate
against the Union’s appeal to the Respondent’s customers to
cease doing business with the Respondent, an activity normally
protected by Section 7 of the Act. NLRB v. Servette, Inc., 377
U.S. 46 (1964); DeBartolo Corp. v. Florida Building Trades
Council (DeBartolo II), 485 U.S. 568 (1988); Great American,
322 NLRB 17 (1996). However, the existence or nonexistence
of a reasonable basis for those allegations is not clear. While
the question of whether a lawsuit has a reasonable basis in fact
or law may be answered by its outcome in court, here the Re-
spondent obtained voluntary dismissal of its lawsuit before an
outcome was reached. Consequently, other evidence must
provide the key.
Both the General Counsel and the Charging Party argue that
the Respondent’s failure to provide evidence that the Union
made false statements with actual malice (i.e., with knowledge
of falsity or in reckless disregard of the truth) proves absence of
reasonable basis. But the General Counsel and the Charging

38 See Teamsters v. Morton Local 20, 377 U.S. 252, 260–261 (1964);
Burlington Northern R Co. v. Brotherhood of Maintenance of Way
Employees, 481 U.S. 429 (1987).
MILUM TEXTILE SERVICES CO. 2071
Party’s argument subverts the burden of proof. The General
Counsel must show the lawsuit had no reasonable basis in fact
or law; it is not the Respondent’s burden to show the contrary.
While relevant, the voluntary dismissal of the remaining allega-
tions of the lawsuit does not establish that the Respondent sub-
jectively believed its lawsuit had no merit when it was filed and
prosecuted or that it acted in bad faith in doing so. According-
ly, I find the Respondent did not violate Section 8(a)(1) of the
Act by continuing to prosecute the undismissed allegations of
its lawsuit.
3. The union button prohibition
The complaint alleges that on June 27 and again on July 4
the Respondent promulgated and thereafter maintained an over-
ly broad and discriminatory rule prohibiting employees from
distributing and wearing union buttons at work. In his
posthearing brief, counsel for the General Counsel does not
argue that Milum’s June 27 button discussion with Ruiz, in
which he asked her if she were handing out union buttons dur-
ing work hours, constituted an unlawful prohibition of button
distribution, and there is no evidence that the Respondent oth-
erwise curtailed or interfered with button distribution. Accord-
ingly, I will dismiss the complaint allegations relating to unlaw-
ful prohibition of union button distribution.
The General Counsel contends the Respondent’s prohibition
against wearing union buttons—announced to Ruiz on June 27
and to Guzman on July 4—violated Section 8(a)(1) of the Act.
Employees have a right under Section 7 of the Act to wear and
display union insignia while at work. Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 801–803 (1945). Absent “special cir-
cumstances,” the promulgation or enforcement of a rule prohib-
iting the wearing of such insignia violates Section 8(a)(1) of the
Act. The General Counsel need not show that Respondent’s
insignia prohibition was unlawfully motivated; “rather, the test
is whether an employer’s conduct reasonably tends to interfere
with the free exercise of employee rights under the Act.” St.
Luke’s Hospital, 314 NLRB 434 fn. 4 (1994). The burden of
establishing the existence of special circumstances rests with
the employer. Pathmark Stores, 342 NLRB 378 (2004). The
special circumstances exception is narrow and “a rule that cur-
tails an employee’s right to wear union insignia at work is pre-
sumptively invalid.” E & L Transport Co., 331 NLRB 640 fn. 3
(2000). However, “‘[t]he Board has found special circum-
stances justifying proscription of union insignia and apparel
when their display may jeopardize employee safety [or] dam-
age machinery or products. . . .’ Nordstrom, Inc., 264 NLRB
698, 700 (1982).” Smithfield Packing Co., 344 NLRB 1, 5 fn.
20 (2004); Bell-Atlantic-Pennsylvania, Inc., 339 NLRB 1084,
1086 (2003).
The Respondent defends its prohibition of union buttons on
safety grounds, asserting that the union button attachment de-
vice created a danger to workers and machinery alike. Howev-
er, the evidence is clear that the nametags distributed by the
Respondent were no less hazardous to employees and equip-
ment than the union buttons, and the employees did not need
the expert testimony of Dr. Bakken to tell them so. Employees
could see for themselves that some nametags fell off as they
worked, and they must have been able to see the Respondent’s
inconsistency in banning union buttons while permitting the
wearing of nametags and jewelry. The Respondent’s prohibi-
tion may not have been unlawfully motivated. Indeed, since
the Respondent permitted the employees to wear prounion
stickers and to decorate the lunchroom with prounion parapher-
nalia, evidence suggests it was not. However, motivation is not
the test; the test is whether the Respondent’s conduct reasona-
bly tended to interfere with its employees’ free exercise of their
guaranteed rights. By prohibiting the wearing of prounion
paraphernalia without apparent justification, the Respondent
interfered with its employees’ Section 7 right to wear and dis-
play union insignia while at work and violated Section 8(a)(1)
of the Act.
4. Soliciting third parties to contact law enforcement agencies
and attempting to instigate the arrest of union handbillers
The General Counsel alleges that Milum unlawfully “con-
trived a plan to have union handbillers arrested and charged
with trespassing when they were engaged in union activities at
his customers’ businesses” with the object of interfering with
the Union’s lawful activities. In furtherance of the plan, Milum
obtained information from the Phoenix police department and
emailed to affected customers instructions for obtaining tres-
passing arrests, urging customers to contact the police when
handbilling occurred and to request the police to warn the
handbillers of potential arrest. One of Respondent’s customers
reported to the Respondent that the police had caused union
handbillers to leave its private property on one occasion. In the
General Counsel’s view, Milum’s machinations interfered with
employees’ Section 7 rights.
The General Counsel cites no authority for the proposition
that discussing possible police intervention with law enforce-
ment agencies and/or customers threatens, interferes with, or
coerces employees in the exercise of their protected rights. The
cases cited by the General Counsel39 relate to actual police
action or threat of such action directed toward individuals en-
gaged in protected activity. Here, there is no evidence that
protected rights were impacted by Milum’s behind-the-scenes
maneuvers.40 Inasmuch as the General Counsel has failed to
prove interference with or coercion of employees in these cir-
cumstances, I shall dismiss this allegation of the complaint.
5. Alleged uulawful surveillance/creating impression
of surveillance
The complaint alleges that the Respondent engaged in sur-
veillance of its employees union activities beginning in March
through Kayonnie and since January 2007 through use of video
surveillance cameras. The complaint further alleges that the
Respondent created an impression of surveillance since January
2007 by installing and maintaining the video surveillance cam-
eras and in January 2007 through Parra.
As to Kayonnie’s alleged surveillance of employees’ union
activity at work, I have credited her testimony that she regularly

39 Indio Grocery Outlet, 323 NLRB 1138 (1997); Bristol Farms,
Inc., 311 NLRB 437 (1993).
40 In one instance the police directedhand billers to remove from a
customer’s private property, but there is no evidence the action was
legally unjustified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2072
ate lunch while parked on a street adjacent to the facility where
she observed employees engaging in prounion activities. Mere
supervisory observation of “open, public union activity on or
near [an employer’s] property does not constitute unlawful
surveillance.” Town & Country Supermarkets, 340 NLRB
1410 (2004); Fred’k Wallace & Son, 331 NLRB 914 (2000).
Kayonnie’s observation and report of open union activity in the
course of her normal routine cannot be deemed surveillance.
Accordingly, I shall dismiss this allegation of the complaint.
The complaint alleges that by installing video surveillance
cameras at the facility in January 2007, the Respondent en-
gaged in and created an impression of surveillance of its em-
ployees protected activities. “[P]ictorial recordkeeping tends to
create fear among employees of future reprisals.” National
Steel & Shipbuilding Co., 324 NLRB 499, 499 (1997), enfd.
156 F.3d 1268 (D.C. Cir. 1998). Therefore, “although employ-
ers have the right to maintain security measures necessary to
the furtherance of their legitimate business interests during
union activity, an employer engaged in photographing and vid-
eotaping such activity has the burden to demonstrate that it had
a reasonable basis to anticipate misconduct by employees.”
Trailmobile Trailer, LLC, 343 NLRB 95 (2004). The “inquiry
is whether the photographing or videotaping has a reasonable
tendency to interfere with protected activity under the circum-
stances.” National Steel & Shipbuilding Co., supra at 499.
The following circumstances are relevant to the question of
whether the Respondent’s 2007 replacement of and addition to
its security camera system violated the Act: the replacement
security cameras were not installed for a full year after union
organizational efforts commenced; during that time, employees
openly met with union representatives outside the facility, en-
gaged in a work stoppage, presented a union authorization peti-
tion to the Respondent, wore prounion stickers, distributed
prounion literature to other workers, displayed a prounion ban-
ner and decorated a lunchroom microwave with prounion stick-
ers, all without comment or objection from the Respondent. I
find a reasonable employee would not view the replacement
and/or addition of security cameras in production, office, and
perimeter areas other than 6th Avenue as being directed at em-
ployee protected activities. The installation of the lunchroom
camera, however, merits additional scrutiny.
Prior to January 2007, no video camera existed in the Re-
spondent’s lunchroom where employee contact frequently oc-
curred. The Respondent asserts that prior vandalism of lunch-
room vending machines, employee complaints of stolen lunch-
es, and the use of the lunchroom to pass out paychecks justified
enhanced security there. As pointed out by counsel for the
General Counsel, the Respondent did not articulate its asserted-
ly legitimate reasons for placing a security camera in the lunch-
room until preparation for the hearing and never communicated
the reasons to employees. The unprecedented and unexplained
placement of a security camera in the lunchroom where em-
ployee interaction, including union activity, regularly took
place, would reasonably give rise to an assumption among em-
ployees that their nonwork activities, including protected activi-
ties, had been placed under surveillance. Although there is no
evidence that the Respondent actually surveyed the union activ-
ities of its employees, since the Respondent has failed to show
that it installed the lunchroom surveillance camera because of
legitimate security concerns, I find the Respondent thereby
violated Section 8(a)(1) of the Act by creating the impression
of surveillance. See Trailmobile Trailer, LLC, supra.
The General Counsel contends that Parra created an impres-
sion of surveillance when, in response to Guzman’s inquiry
about installation of surveillance cameras at the facility, he told
her they were being installed to keep her “in check” and would
thereafter record her appearances in black and white rather than
color. The General Counsel has the burden of establishing, by
a preponderance of the evidence, that an employer unlawfully
created an impression of surveillance. Bridgestone Firestone
South Carolina, 350 NLRB 526, 527 (2007). Whether an em-
ployer’s statement has created an unlawful impression of sur-
veillance is based on the objective test of “whether the employ-
ees would reasonably assume from the statement that their un-
ion activities had been placed under surveillance,” based on the
perspective of a reasonable employee. Flexsteel Industries, 311
NLRB 257 (1993). In response to Guzman’s inquiry, Parra
laughingly made the patently absurd rejoinder that the cameras
were being installed to keep her in check and that she alone
would be recorded in black and white. Parra said nothing about
Guzman’s union activities. Indeed, the General Counsel ad-
duced no evidence that Parra had ever said anything to Guzman
about her union activities or that he even knew she engaged in
any. The General Counsel has not shown why a reasonable
employee would assume from Parra’s jocular statements that
the Respondent intended to scrutinize her union activities. See
Sunshine Piping, Inc., 350 NLRB 1186 (2007). Accordingly, I
dismiss this allegation of the complaint.
6. The computer video presentation to employees
The complaint alleges that in the course of the Respondent’s
December computer video presentation to employees, the Re-
spondent threatened to reduce employees’ wages if they select-
ed the Union as their bargaining representative. At the time of
the presentation, the Respondent paid new employees between
$8 and $9.25 and experienced employees between $8 and $9.25
per hour. The statement the General Counsel labels a threat
followed the Respondent’s declaration that it paid its employ-
ees higher wages than its Arizona competitors, including sever-
al unionized companies, and asserted:

If the Union was representing employees and bargaining for
wages, wages would be open to serious bargaining between
the Company and the Union and the result of the bargaining
could be wages of $6.75 per hour or higher.

An employer may communicate views about unionism, “so
long as the communications do not contain a ‘threat of reprisal
or force or promise of benefit.’” Gissel Packing Co., supra at
618, citing Section 8(c) of the Act. Predictions concerning the
precise effects of unionization, however, “must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his
control.” Id. The Court cautioned that If there is any implica-
tion that an employer may or may not take action solely on his
own initiative for reasons unrelated to economic necessities and
known only to him, the statement loses protection of the First
MILUM TEXTILE SERVICES CO. 2073
Amendment. Neither the subjective reactions of employees nor
the intent of the speaker are determinative in finding 8(a)(1)
violations. President Riverboat Casinos of Missouri, 329
NLRB 77 (1999); Swift Textiles, 242 NLRB 691 fn. 2 (1979).
Rather, “the issue is whether objectively . . . remarks reasona-
bly tended to interfere with the employee’s right to engage in
[a] protected act.” Southdown Care Center, 308 NLRB 225,
227 (1992).41 Here, the Respondent discussed wage reduction
as something that “could” result from future bargaining with
the Union, and the Respondent argues that the statement is a
simple recognition of the fact that in the collective-bargaining
process, wages are negotiated. However, in the absence of any
explication by the Respondent of bargaining eventualities or
economic conditions that might lead to wage reduction, the
statement reasonably communicated to employees that selec-
tion of the Union threatened current wages. See President
Riverboat Casinos of Missouri, supra. Accordingly, I find the
statement violated Section 8(a)(1) of the Act.
7. Prehearing employee interviews
Pursuant to Board’s decision in Johnnie’s Poultry, supra, an
employer, when interviewing employees in preparation for trial,
must communicate to them the reason for the questioning, ex-
plicitly assure them that no reprisals will occur, and obtain
voluntary participation. The Board has “generally taken a
bright-line approach in enforcing the requirements established
in Johnnie’s Poultry.”42 The testimony of Zambrano, Carlos
Zambrano, Edgar Villagrande, Pat Goebel, Edel Davilla, Alva-
ro Munoz, Maria Martinez, Rosa Reyes, Maria Teresa Ve-
lasquez, and Lydia Roberts is consistent with a finding that
neither Laws, Milum, nor any other company representative
clearly communicated to any of the witnesses that the Respond-
ent’s prehearing questioning was voluntary or what the purpose
of the questioning was. Further, the evidence shows that nei-
ther Laws nor Milum gave any witness assurances that no re-
prisals would take place for refusing to answer or for the sub-
stance of any answer. As the Respondent did not follow the
requirements of Johnnie’s Poultry in its interviews of the
named employees, I find the Respondent violated Section
8(a)(1) of the Act by unlawfully interrogating them.
B. Alleged 8(a)(3) Violations
1. The discharges of Denise Knox and Soe Moe Min
The question of whether Respondent violated the Act in dis-
charging Knox and Min rests on its motivation. The Board
established an analytical framework for deciding cases turning
on employer motivation in the Wright Line case.43 To prove an
employee was discharged in violation of Section 8(a)(3), the
General Counsel must first persuade, by a preponderance of the
evidence, that an employee’s protected conduct was a motivat-

41 Consequently, the Respondent’s argument that no evidence
demonstrated that any employee perceived the statement to be a threat
is immaterial.
42 KFMB Stations, 349 NLRB 373 (2007), citing Freeman Decorat-
ing Co., 336 NLRB 1 (2001), enf. denied on other grounds sub. nom.
Stage Employees IATSE, 334 F.3d 27 (D.C. Cir. 2003).
43 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
ing factor in the employer’s decision. If the General Counsel is
able to make such a showing, the burden of persuasion shifts
“to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct.”
Wright Line, supra at 1089; United Rentals, Inc., 350 NLRB
951 (2007); Donaldson Bros. Ready Mix, Inc., 341 NLRB 958,
961 (2004).
The elements of discriminatory motivation are union activi-
ty, employer knowledge, and employer animus. Verizon & Its
Subsidiary Telesector Resources, 350 NLRB 542 (2007);
Group Farmer Bros. Co., 303 NLRB 638, 649 (1991). Here,
the elements are clearly met as to Knox, who openly champi-
oned the union cause among employees and assisted the Union
with what the Respondent terms the Union’s “corporate” or
community publicity campaign by appearing on television in
the role of vocal employee supporter. Milum knew of Knox’s
public prounion appearances and admittedly believed her to be
a strong union supporter. Moreover, Milum exhibited unques-
tionable hostility toward the Union’s publicity campaign. In
his communications to other companies, Milum urged his cus-
tomers to seek criminal sanctions against the Union for promot-
ing its organizational drive at their premises, referring to the
Union as a “monster,” its representatives as “cockroaches,” and
its organizing tactics as an “organized crime shakedown.” Ac-
cordingly, I find the General Counsel has met his initial burden
by “making a showing sufficient to support the inference” that
Knox’s protected activity was a motivating factor in the Re-
spondent’s decision to discharge her. See Wright Line, supra at
1089.
The circumstances involving Min’s discharge require a dif-
ferent though correlative analysis. As did Knox, Min openly
supported the Union, wearing union T-shirts to work almost
daily, and the Respondent must have been aware he was proun-
ion. However, Min’s union adherence was no more pro-
nounced than that of many other employees against whom the
Respondent exhibited no animosity, and there is no reason to
suppose the Respondent focused on his union activity at all.
Nevertheless, if an employer, in a retaliatory strike against one
prounion employee, entangles an unintended victim, the em-
ployer is culpable for both adverse actions. Knox and Min
engaged in identical workplace misconduct at the same time
and in the same location; if the Respondent seized upon that
misconduct in order to rid itself of Knox because of her union
activity, any collateral victim of the scheme is in the same pos-
ture as the discriminatee. I therefore focus this analysis on
Knox’s discharge; if her discharge was unlawfully motivated, it
follows that Min’s was also. Consequently, the burden shifts to
Respondent to demonstrate that it would have discharged both
Knox and Min even in the absence of Knox’s protected activi-
ties.
The Respondent argues that Milum fired Knox and Min be-
cause they dallied in the lunchroom after clocking in instead of
going directly to work. I have found that on July 8, the two
employees did, in fact, delay starting work. The question of
whether they were subsequently discharged because of that
delay or because of antiunion considerations depends on the
Respondent’s motivation. There is no overt evidence of union
animus directed specifically toward either Knox or Min, but
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2074
direct evidence of unlawful motivation is seldom available, and
unlawful motivation may be established by circumstantial evi-
dence, the inferences drawn therefrom, and the record as a
whole. Tubular Corp. of America, 337 NLRB 99 (2001); Abbey
Transportation Service, 284 NLRB 689, 701 (1987); Shattuck
Denn Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966). Indica-
tions of discriminatory motive may include expressed hostility
toward the protected activity,44 abruptness of the adverse ac-
tion,45 suspicious timing,46 disparate treatment,47 and/or depar-
ture from past practice.48
Milum bore particular animosity toward the Union’s corpo-
rate campaign, as evidenced by his rancorous descriptions of
the Union as monstrous, pestilent, and mafia-like. On Thurs-
day, July 6, Knox appeared on a Tucson television newscast as
a union supporter, a circumstance of which Milum was aware.
On Friday, July 7, Zambrano reported to Kayonnie and Chavez
that after clocking in Knox and Min remained in the lunchroom
rather than reporting to work. When Kayonnie relayed the
complaint to Milum, he acted upon it with notable promptness,
undertaking to catch the two employees in dereliction of duty
early the following morning and promptly firing them. Timing
is a significant factor in ascertaining motive. See, e.g., L.B.&B.
Associates, Inc., 346 NLRB 1025, 1026 (2005); Desert Toyota,
346 NLRB 118, 119–120 (2005); Detroit Paneling Systems,
330 NLRB 1170 (2000). Only 1 day passed between Knox’s
newscast appearance and her discharge. During that interven-
ing day, Milum learned Knox and Min were violating company
rules by failing to start work on time, and he contrived to catch
them at it and to fire them in one swift transaction. Although
Milum assertedly considered Knox and Min’s infractions to be
momentous enough for immediate discharge, he did not, appar-
ently, care that other employees might be breaking the same
work rule. Knox told Milum that early morning lunchroom
loitering was a common employee practice, but there is no evi-
dence Milum took any steps to alert supervisors to watch for
and control similar misconduct or that he conducted any post-
discharge investigation beyond an after-the-fact inquiry of
Zambrano as to how often Knox and Min remained in the
lunchroom after clocking in. Milum’s belated inquiry into
Knox and Min’s past conduct underscores the precipiteness of
the discharges, and his indifference to other possible malefac-
tors strongly suggests the alleged offense was not his primary
concern. It is reasonable to infer from these circumstances that
Knox and Min’s abrupt discharges were related to Knox’s well-
publicized support of the Union’s corporate campaign.
The most compelling evidence of the Respondent’s unlawful
motive in discharging Knox and Min rests in its deviation from
past practice and its disparity of treatment.49 Milum did confer
with any supervisor about the discharges, and he did not take
into account Knox and Min’s lack of any prior warnings. The

44 Mercedes Benz of Orland Park, 333 NLRB 1017 (2001).
45 Dynabil Industries, Inc., 330 NLRB 360 (1999).
46 McClendon Electrical Services, 340 NLRB 613 fn. 6 (2003); Beth-
lehem Temple Learning Center, 330 NLRB 1177 (2000).
47 California Gas Transport, Inc., supra; NACCO, 331 NLRB 1245
(2000).
48 Sunbelt Enterprises, 285 NLRB 1153 (1987).
49 See Tubular Corp. of America, 337 NLRB 99 (2001).
Respondent’s disciplinary notices show the Respondent fol-
lowed at least a semblance of a progressive disciplinary system.
Before Knox and Min’s discharges, no employee had been
disciplined beyond a written warning for stopping work early,
delaying work, taking extended breaks, or detouring from a
restroom trip to pause at the lunchroom. Even Milum took no
action against shirkers beyond sternly cautioning them. In the
months before the discharges, the Respondent issued written
warnings to, but did not discharge, employees for misconduct
similar to that of Knox and Min, i.e., twice leaving work for
smoking breaks and leaving the work station to visit the re-
stroom every 15 minutes.50 Finally, prior to the July 8 dis-
charges, the Respondent had rarely terminated employees and
had terminated none for conduct approximating that of Knox
and Min. The Respondent has not justified its digression from
prior practice or its disparity in the treatment accorded Knox
and Min, and it is reasonable to find, as I do, that the only ra-
tional explanation is that the Respondent was motivated by a
desire to retaliate against Knox for her unabashedly public dis-
play of union support, and that Min was an unfortunate casualty
of that unlawful motivation. In these circumstances, I find that
the Respondent violated Section 8(a)(3) and (1) of the Act on
July 8 by terminating Knox and Min.
2. Maria Minjarez
Counsel for the General Counsel argues that the Respondent
pretextually suspended and placed on 90-day probation union
supporter Minjarez. The Wright Line analysis described above
applies, and the General Counsel has the burden to persuade, by
a preponderance of the evidence, that Minjarez’ protected con-
duct was a motivating factor in disciplining her. Only if the
General Counsel makes such a showing, “will the burden of
persuasion shift to the Respondent to demonstrate it would have
taken the same action in the absence of Minjarez’ protected
conduct.” Wright Line, supra at 1089; United Rentals, Inc.,
supra; Donaldson Bros. Ready Mix, supra.
The General Counsel has met the elements of discriminatory
motivation: union activity, employer knowledge, and employer
animus. Verizon & Its Subsidiary Telesector Resources, supra;
Group Farmer Bros. Co., supra. Minjarez engaged in extensive
union activities, and Milum knew her to be a firm union sup-
porter. As detailed above, the Respondent revealed significant
animus toward the Union’s “corporate” organizational activi-
ties, and the Respondent’s supervisors described Minjarez as
“problematic” and a “troublemaker,” which suggests, in the
absence of other explanation, antipathy toward her individually
for supporting the Union. Accordingly, I find the General
Counsel has met his initial burden by “making a showing suffi-
cient to support the inference” that Minjarez’ protected activity
was a motivating factor in the Respondent’s decision to sus-
pend her and to place her on probation, and the burden of per-
suasion shifts to the Respondent “to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra at 1089. The Respondent

50 The Respondent unsuccessfully tries to distinguish Knox and
Min’s conduct by calling it time “theft.” I see no significant difference
between the work avoidance of employees who received only written
warnings and that of the two discharged employees.
MILUM TEXTILE SERVICES CO. 2075
argues that the evidence shows no disparate treatment between
Minjarez and any other similarly situated employee and that it
would have taken the disciplinary action it did regardless of her
union activity. The evidence supports the Respondent’s posi-
tion.
When the Respondent rehired Minjarez in July, it did so on
condition she notify the company every time she had to be off,
which she had failed to do during her prior period of employ-
ment. Minjarez did not abide by her commitment, leaving
work without permission on October 16. Consequently, the
Respondent suspended her for 3 days and placed her on proba-
tion for 90 days.
Counsel for the General Counsel does not contend that leav-
ing work without permission is not a disciplinary offense, but
he asserts the discipline imposed on Minjarez was disparate to
that given other employees. While the evidence of employee
discipline shows that the Respondent’s supervisors exercised
considerable discretion in determining when and what disci-
pline should be imposed, it is clear that the Respondent has,
after one or more warnings, both suspended employees and
placed them on probation for time and attendance infractions.
Here the Respondent rehired Minjarez after her earlier volun-
tary no-show termination and required her to commit to giving
prior notification of absences. On October 16, Minjarez
breached her agreement. Minjarez’ unexcused departure from
work differed from other employees’ leave infractions as it
involved flagrant abrogation of her commitment to the Re-
spondent. In those circumstances, the Respondent’s discipline
was neither unreasonable nor demonstrably disparate. The
employer’s arguable satisfaction in disciplining Minjarez be-
cause she was a “troublemaker” is not relevant. If an employee
provides an employer with sufficient cause for discipline, the
fact the employer welcomes the opportunity does not render the
discipline unlawful. Klate Holt Co., 161 NLRB 1606, 1612
(1966). An employer can meet its Wright Line burden by
showing that it has a rule and that the rule has been applied to
employees in the past. Avondale Industries, 329 NLRB 1064,
1066 (1999). Counsel for the General Counsel argues that Min-
jarez’ personnel file showed no disciplinary notices, but his
argument overlooks the fact that Minjarez had admittedly, in
the not-too-distant past, voluntarily terminated her employment
by not showing up for work. It also overlooks Minjarez’ ad-
mission that she sometimes missed work because of her child’s
illness and sometimes clocked in late. In disciplining Minjarez
on October 19, the Respondent could reasonably take into ac-
count Minjarez’ past attendance problems and her breached
commitment not to repeat them, even though neither had been
preceded by written warnings. The Board will not “substitute
its judgment for that of the employer and decide what consti-
tutes appropriate discipline.” Detroit Paneling Systems, 330
NLRB 1170 fn. 6 (2000), and cases cited therein. Here, the
Respondent had attendance rules and enforced them with vari-
ous forms of discipline, including suspension and probation.
When Minjarez violated those rules, she became subject to
discipline that the Respondent has shown was neither unprece-
dented nor unjustified. The Respondent has successfully borne
its burden of showing that it would have disciplined Minjarez
in the circumstances regardless of her union activities. Accord-
ingly, I dismiss this allegation of the complaint.
3. Evangelina Guzman
On July 4, the Respondent unlawfully refused to permit
Guzman to work unless she removed the union button she
wore. The General Counsel alleges the refusal to permit Guz-
man to work was a suspension in violation of Section 8(a)(3).
An employer may not suspend an employee for refusing to
comply with an unlawful order prohibiting protected activity.
Kolkka Tables & Finnish-American Saunas, 335 NLRB 844,
850 (2001); Simplex Wire & Cable Co., 313 NLRB 1311, 1315
(1994). A refusal to comply with an unlawful order does not
constitute “insubordination upon which a sustainable [adverse
action can] be based.” Kolkka, supra, citing AMC Air Condi-
tioning Co., 232 NLRB 283, 284 (1977). Since, as detailed
above, I have found the Respondent unlawfully demanded that
Guzman discard her union button as a condition of working, I
find the Respondent suspended Guzman for the day she refused
to work sans button, and thereby violated Section 8(a)(3) of the
Act.
Counsel for the General Counsel argues that the Respondent
pretextually suspended Guzman on December 26 and disci-
plined her on January 23. The General Counsel has the burden
to persuade, under Wright Line, that Guzman’s protected con-
duct was a motivating factor in disciplining her. Only if the
General Counsel makes such a showing, will the burden of
persuasion shift to the Respondent to demonstrate it would have
taken the same action in the absence of Guzman’s protected
conduct.” Wright Line, supra at 1089; United Rentals, Inc.,
supra; Donaldson Bros. Ready Mix, Inc., supra.
The General Counsel has met the elements of discriminatory
motivation: union activity, employer knowledge, and employer
animus. Verizon & Its Subsidiary Telesector Resources, supra;
Group Farmer Bros. Co., supra. Guzman engaged in extensive
union activities, and Milum knew her to be involved in the
Union’s “corporate” organizational activities to which the Re-
spondent bore specific animosity. Accordingly, I find the Gen-
eral Counsel has met his initial burden by “making a showing
sufficient to support the inference” that Guzman’s protected
activity was a motivating factor in the Respondent’s decisions
to discipline her, and the burden of persuasion shifts to the
Respondent “to demonstrate that the same action would have
taken place even in the absence of the protected conduct.”
Wright Line, supra at 1089. The Respondent argues that the
evidence shows no disparate treatment between Guzman and
any other similarly situated employee and that it would have
taken the disciplinary action regardless of her union activity.
There is no dispute that on December 25, Guzman disobeyed
Kayonnie’s direct order to stay until the production was fin-
ished under penalty of termination. Although the Respondent
did not terminate Guzman, it did impose a 3-day suspension
and a 90-day probation. On January 20, when Guzman ignored
a denial of leave for that day and failed to report to work as
scheduled, the Respondent refused to accept her proffered ex-
cuse and issued her a written warning along with a 6-month
probation. Counsel for the General Counsel argues that the
disparity of treatment afforded other employees with similar
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2076
infraction histories demonstrates the pretextual nature of the
discipline applied to Guzman.
The Respondent’s history of discipline shows no clear cut
pattern, although, as counsel for the General Counsel points
out, a 6-month probation period is unprecedented. However,
the Respondent has meted out suspensions and probations,
either separately or combined, for time and attendance infrac-
tions, and the evidence provides no predictability as to whether
the Respondent is likely to be longsuffering or intolerant of any
particular misconduct. In these circumstances, the Respond-
ent’s disciplinary record cannot provide evidence of disparate
treatment.
It is not for the Board to decide “whether a nondiscriminato-
ry reason for discharging an employee is wise or well support-
ed,”51 and it is well established the Board “cannot substitute its
judgment for that of the employer and decide what constitutes
appropriate discipline.”52 Here, Guzman’s deliberate flouting
of her supervisor’s December 25 order and her unexcused ab-
sence of January 20 constitute legitimate bases for discipline.
See Smithfield Foods, Inc., 347 NLRB 1225 (2006). Nonethe-
less, the Board’s role is to ascertain whether an employer’s
proffered reasons for disciplinary action are the actual ones. Id.
In determining Respondent’s actual motivation for twice disci-
plining Guzman in a 1-month period, I have considered the
Respondent’s animus toward her support of the Union’s corpo-
rate campaign. However, I find that animus outweighed by the
circumstances of Guzman’s reemployment on October 10. On
September 28, some months after Guzman had engaged in pub-
lic support of the Union, she was obliged to terminate her em-
ployment with the Respondent because her work permit had
expired. When Guzman presented a renewed work permit on
October 10, the Respondent rehired her. The Respondent’s
willingness to rehire Guzman in spite of her past union activity
effectively vitiates the significance its animosity toward her
union support might otherwise have. In these circumstances, I
find the Respondent has met its burden of proof, and I shall
dismiss the allegations that the Respondent’s December 26 and
January 20, 2007 discipline of Guzman violated the Act.
C. Appropriateness of Bargaining Order
Accepting that the Union obtained bargaining authorization
from a majority of the Respondent’s employees in March and
that its majority support was dissipated, at least in part, by the
unfair labor practices found herein, it nonetheless remains to
determine whether a bargaining order under Gissel, supra, is
appropriate herein.
The question to be answered in determining the appropriate
remedy for the Respondent’s unfair labor practices is whether
the conduct so tainted the workplace atmosphere that traditional
remedies will not erase the coercive effects, rendering a fair
representational election impossible. In Gissel Packing Co.,
supra, the Supreme Court identified two categories of cases in
which a bargaining order is appropriate: category I cases are
exceptional situations involving outrageous and pervasive un-

51 West Limited Corp., 330 NLRB 527 fn. 5 (2000).
52 Detroit Paneling Systems, 330 NLRB 1170, 1171 fn. 6 (2000), and
cases cited therein.
fair labor practices that traditional remedies cannot resolve and
which make a fair election impossible. Category II cases in-
volve unfair labor practices that are less extraordinary but that
nonetheless have a tendency to undermine majority support and
impede the election process. As such unfair labor practices
render the possibility of a fair election slight, “employee senti-
ment once expressed through cards would . . . be better protect-
ed by a bargaining order.” Id. at 614–615. This case falls into
the latter category.
The Board considers a Gissel bargaining order to be an ex-
traordinary remedy and prefers to order traditional remedies for
unfair labor practices and to hold an election, once the atmos-
phere has been cleansed by the remedies ordered. Intermet
Stevensville, 350 NLRB 1350, 1363 (2007). I examine, as the
Board directs, the “seriousness of the violations and the perva-
sive nature of the conduct, considering such factors as the num-
ber of employees directly affected by the violations, the size of
the unit, the extent of the dissemination among employees, and
the identity and position of the individuals committing the un-
fair labor practices.” Id.
I have found that the Respondent engaged in the following
unlawful conduct: granted employees the benefit of nametags,
filed a preempted lawsuit, prohibited the wearing of union but-
tons, created the impression of surveillance of union activities,
implicitly threatened decreased wages if the Union were select-
ed, engaged in Johnnies Poultry violations, and discriminated
against three prounion employees, firing two of them. Those
are serious violations, particularly the discriminations. In tem-
pering their ineradicable effect on employees, I have noted that
throughout the Union’s organization campaign, the Respondent
has not discouraged employees from openly meeting with un-
ion representatives outside the facility, wearing prounion stick-
ers, distributing prounion literature, displaying a prounion ban-
ner, and setting up in the lunchroom a union-donated micro-
wave decorated with prounion stickers. While the Respond-
ent’s partial respect for employees’ Section 7 rights in no way
excuses or remedies its unlawful conduct, it does suggest that
the coercive effects of the Respondent’s conduct can be ade-
quately remedied by the Board’s traditional remedies. The
lingering effects of the Respondent’s unlawful interference with
Section 7 rights can be addressed by detailed notice postings,
and the lingering effects of the discriminatory discharges of
Knox and Min and the discriminatory suspension of Guzman
can be remedied by reinstatement and backpay. In the circum-
stances of this case, the traditional remedies are likely to assure
employees that interference with their Section 7 rights will not
be tolerated. Abramson, LLC, 345 NLRB 171, 178–179 (2005).
See also Guard Publishing Co., 344 NLRB 1142 (2005); Hia-
leah Hospital, 343 NLRB 391 (2004); Jewish Home for the
Elderly, 343 NLRB 1069 (2004). Accordingly, I decline to
recommend a Gissel bargaining order as a remedy herein.
CONCLUSIONS OF LAW
1. The Respondent, Milum Textile Services, Co., is an em-
ployer engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Unite Here!, is a labor organization within the
meaning of Section 2(5) of the Act.
MILUM TEXTILE SERVICES CO. 2077
3. Respondent violated Section 8(a)(3) and (1) of the Act on
July 4, 2006, by suspending employee Evangelina Guzman
because she refused to take off a union button.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act on July 8, 2006, by discharging employees Denise Knox
and Soe Moe Min because of their support of and protected
activities on behalf of the Union.
5. The Respondent violated Section 8(a)(1) of the Act in
mid-March 2006 by granting the benefit of providing nametags
in order to discourage employees from engaging in union activ-
ity.
6. The Respondent violated Section 8(a)(1) of the Act on
April 26, 2006, by filing and pursuing a lawsuit against the
Union that was preempted by Federal law.
7. The Respondent violated Section 8(a)(1) of the Act on
June 27 and on July 4, 2006, by promulgating and thereafter
maintaining a rule prohibiting employees from wearing union
buttons while working.
8. The Respondent violated Section 8(a)(1) of the Act in
January 2007 by creating the impression of surveillance by
operating a security video camera in its lunchroom.
9. The Respondent violated Section 8(a)(1) of the Act in
December 2006 by impliedly threatening to reduce employees’
wages if they selected the Union as their bargaining representa-
tive.
10. In the course of preparing for hearing herein, the Re-
spondent violated Section 8(a)(1) of the Act at various time
since February 6, 2007, by interrogating employees about their
union membership, activities, and sympathies and the union
membership, activities, and sympathies of other employees.
11. The unfair labor practices set forth above affect com-
merce within the meaning of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having discriminatorily suspended employ-
ee Evangelina Guzman on July 4 and discriminatorily dis-
charged employees Denise Knox and Soe Moe Min on July 8, it
must offer them reinstatement insofar as it has not already done
so and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of suspension
or discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons,
283 NLRB 1173 (1987).
The Respondent having unlawfully instituted and pursued a
lawsuit against the Union that was preempted by Federal law
must reimburse the Union for costs associated with the law-
suit.53
[Recommended Order omitted from publication.]

53 The question of the costs associated with the institution and pur-
suit of the unlawful lawsuit is left to the compliance stage of these
proceedings.