SUN CAB, INC. d/b/a NELLIS CAB COMPANY

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 185 (N.L.R.B. 2015)

362 NLRB No. 185
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Sun Cab, Inc. d/b/a Nellis Cab Company and Abiy
Amede. Case 28–CA–079813
August 27, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON,
AND MCFERRAN
On December 27, 2012, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
and the General Counsel filed exceptions, supporting
briefs, answering briefs, and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision and Or-
der, to amend his remedy,3 and to adopt his recommend-
ed Order as modified and set forth in full below.4
The principal issue in this case is whether the Re-
spondent violated Section 8(a)(1) of the Act by suspend-
ing 17 employees who engaged in a concerted work
stoppage (the “extended break”) to protest a proposed
action that would affect their pay. As discussed below,
we affirm the judge’s findings that the extended break
was protected under the Act and that the resulting sus-
pensions were unlawful. In addition, we find that the
Respondent coercively interrogated employees in viola-
tion of Section 8(a)(1) by asking them why they engaged
in the extended break, and by asking who the leader

1 The General Counsel and the Respondent have 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 reso-
lutions 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 care-
fully examined the record and find no basis for reversing the findings.
2 We have amended the judge’s Conclusion of Law 4 to reflect the
violation found, and we have included an additional conclusion of law
to reflect our finding, below, that the Respondent violated Sec. 8(a)(1)
by threatening Charging Party Abiy Amede with discharge and the loss
of a bonus.
3 As explained below, the Respondent unlawfully suspended 17 em-
ployees. The judge ordered make-whole relief for the discriminatees,
but inadvertently omitted from the remedy section of his decision the
appropriate remedial language governing calculation of backpay. We
shall amend the remedy accordingly.
4 We shall modify the judge’s recommended Order to conform to our
findings and the Board’s standard remedial language. We shall also
substitute a new notice to conform to the Order as modified and in
accordance with our recent decision in Durham School Services, 360
NLRB No. 85 (2014).
was.5 Furthermore, we find that the Respondent violated
Section 8(a)(1) by threatening employee Abiy Amede
with loss of benefits and discharge.6 Finally, we affirm
the judge’s finding that the Respondent did not violate
Section 8(a)(3) and (1) when it discharged Amede.
The Suspensions of 17 Drivers for Engaging in
the Extended Break
The Respondent is 1 of 16 certified taxicab companies
operating in the Las Vegas metropolitan area. Its owner
is Ray Chenoweth, and its director of operations is Jaime
Pino. It provides 24-hour taxicab service and employs
approximately 380 drivers, many of whom work 12-hour
shifts. The Respondent requires its drivers to take a 1-
hour lunchbreak, but drivers are free to choose when they
take this break. The Respondent also requires its drivers
to fill out and submit daily “trip sheets,” which show,
among other things, when they took the required lunch-
break. The drivers are paid on commission.
To operate in compliance with relevant State laws,
Las Vegas taxicab companies must obtain a certification
and medallions from the Nevada Taxicab Authority. A
taxicab in operation must display a medallion. The Re-
spondent owns 171 taxicabs and has 137 medallions.
In early 2012,7 the Taxicab Authority began consider-
ing whether to issue more medallions. The Respondent
favored this action, as did other taxicab companies, while
many Las Vegas taxi drivers opposed it. Drivers were

5 Member Johnson and Member McFerran agree that, based on the
totality of the circumstances, the Respondent coercively interrogated
employees in violation of Sec. 8(a)(1) by asking them why they en-
gaged in the extended break and who the leader was. The interroga-
tions were carried out by Director of Operations Jaime Pino, who was
in charge of driver discipline (and in at least one instance, in the pres-
ence of the Respondent’s owner), and were accompanied by suspen-
sions for taking part in the extended break and statements that this was
their final written warning. Members Johnson and McFerran reject
Member Miscimarra’s contention that the Respondent needed to find
out why the drivers engaged in the extended break in order to determine
whether discipline would be unlawful. The Respondent makes no such
argument; it argues only that the interrogations were lawful because, it
says, the extended break was unprotected. Moreover, Pino testified, in
effect, that he already knew what the purpose of the break was: “I knew
that it was something to do with opposing allocations.” He also testi-
fied that he had decided to discipline the drivers before speaking to
them.
In agreement with the majority, Member Miscimarra would find that
the Respondent violated Sec. 8(a)(1) by asking employees to identify
the leader of the extended break. However, as set forth in his partial
dissent, Member Miscimarra would reverse the judge’s finding that the
Respondent also violated Sec. 8(a)(1) by asking employees why they
engaged in the extended break.
6 Member Johnson and Member McFerran find that Respondent vio-
lated Sec. 8(a)(1) by threatening Abiy Amede with loss of benefits and
discharge. As set forth in his partial dissent, Member Miscimarra disa-
grees with that view.
7 All dates refer to 2012.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concerned that more medallions would mean more taxi-
cabs on the streets and, in turn, less income for them-
selves. To express their opposition, drivers from all the
Las Vegas taxicab companies organized a protest, in the
form of an extended break to be taken the evening of
Saturday, February 4, the day before the Super Bowl.8
Approximately 200 drivers took part in the extended
break, including 17 working for the Respondent that
evening. They gathered at a restaurant, and then many of
them drove their taxicabs down Las Vegas Boulevard,
honking their horns and flashing their hazard lights while
refusing to pick up passengers.
The judge found that the extended break lasted “for
approximately two to three hours.” However, the Re-
spondent acknowledges that for all but 2 of its 17 partici-
pating drivers, the extended break included their manda-
tory 1-hour lunchbreak. Subtracting the mandatory peri-
od, in most instances the extended break lasted less than
2 hours. The judge further found that the extended break
was peaceful, and the Respondent did not demand that
the drivers return their taxicabs to the Respondent’s con-
trol during the extended break.
Following the extended break, some of the 17 drivers
continued working for the remainder of their shifts. The
Respondent ordered other participating drivers to refuel
their taxicabs and return to the Respondent’s yard, and
those drivers complied. The Respondent told the 17
drivers to call in on Monday, February 6.
On or about February 6 and 7, the Respondent sum-
moned the 17 drivers into meetings with Director of Op-
erations Pino (and, in one case, Owner Chenoweth) and
suspended them for several days for participating in the
extended break. The Respondent also issued each of the
17 drivers a written warning stating that the driver had
taken more than an hour for lunch, in violation of the
Respondent’s rules. Pino told the drivers that this was
their final written warning. Some of the drivers also re-
ceived written warnings for falsifying their trip sheets.9
Pino also asked the drivers why they took the extended
break and for the name of the protest leader.10
On February 28, the Taxicab Authority held a meeting
at Cashman Field, a baseball stadium, to discuss the pro-

8 The judge and the parties use various terms, including “extended
break,” “long break,” “stoppage,” “work stoppage,” “protest,” and
“strike,” to describe the drivers’ concerted, industrywide action. For
the sake of consistency, we shall use the term “extended break.”
9 The complaint does not allege that the warnings concerning the trip
sheets were unlawful. Nonetheless, the General Counsel asks us to
order the Respondent to expunge those warnings from its files. Absent
an allegation and finding that the warnings were unlawful, we decline
to do so.
10 We have found that Pino’s questioning constituted coercive inter-
rogation in violation of Sec. 8(a)(1). See supra, fn. 5.
posed issuance of additional medallions. Pino spoke in
favor of issuing more medallions. Amede, one of the
Respondent’s drivers, spoke against it.
The judge found that the extended break was a protect-
ed form of protest under the Act, and that the Respond-
ent’s suspension of the 17 drivers who participated in it
was therefore unlawful. We agree.
There is no dispute that the industrywide extended
break constituted concerted activity. Citing Eastex, Inc.
v. NLRB, 437 U.S. 556 (1978), the judge found that the
extended break fell within the “mutual aid or protection”
clause of Section 7. We agree that the extended break,
the object of which was to protest a potential increase in
the number of medallions that, if approved, would likely
decrease drivers’ pay, constituted concerted activity for
the purpose of mutual aid or protection. See Eastex, su-
pra at 565 (concerted activity that seeks to “improve
terms and conditions of employment or otherwise im-
prove [employees’] lot as employees” is for the purpose
of mutual aid or protection); see also NLRB v. Washing-
ton Aluminum Co., 370 U.S. 9, 14–17 (1962) (concerted
walkout in protest of working conditions was protected
activity).
The Respondent argues that the extended break was
not protected under Section 7 because the Respondent
did not have any control over whether the Taxicab Au-
thority issued more medallions. Expressed otherwise,
the Respondent contends that, because only the Taxicab
Authority could remedy drivers’ concerns about this mat-
ter, the extended break was nothing more than a political
protest aimed at a State agency. We recognize that the
Supreme Court in Eastex suggested, in dicta, that eco-
nomic pressure in support of a political dispute may not
be protected when it is exerted on an employer with no
control over the outcome of the dispute. 437 U.S. at 568
fn. 18.11 But that is not the case here. The extended
break was aimed at all 16 Las Vegas taxicab companies,
including the Respondent, and had as its purpose to in-
fluence them to take a position favorable to the drivers
on the issuance of more medallions. Although the final
decision was for the Taxicab Authority to make, the taxi-
cab companies obviously could be expected and did seek
to influence that decision (for example, at the Cashman
Field meeting of the Taxicab Authority, where represent-
atives of taxicab companies spoke in favor of issuing
more medallions). The drivers, in turn, sought to influ-
ence the influencers.
Next, observing that employees have a general right to
strike or engage in a work stoppage, but that such a right

11 The Court also recognized that Congress entrusted to the Board,
“in the first instance,” the task of delineating the boundaries of the
“mutual aid or protection” clause. Id. at 568.
3
NELLIS CAB CO.
is not absolute,12 the judge asked whether the drivers’ use
of the taxicabs during the protest caused the extended
break to be unprotected. To answer that question, the
judge applied the multifactor balancing test set forth in
Quietflex Mfg. Co., 344 NLRB 1055 (2005), for “deter-
mining which party’s rights should prevail in the context
of an on-site work stoppage,” id. at 1056.13 Explicitly
considering each Quietflex factor, the judge concluded
that the extended break was protected. He found that the
extended break was a “one time, short duration strike”
that “[fell] short of an unlawful . . . seizure” of the Re-
spondent’s property. He further found that the drivers
returned the taxicabs on demand shortly after the extend-
ed break ended. The judge emphasized that the Re-
spondent “did not demand, and the employees did not
refuse[,] the return of the cabs during the stoppage.”
We agree with the judge that, under Quietflex, the em-
ployees’ conduct did not lose its Section 7 protection. A
clear majority of the Quietflex factors support that find-
ing. Thus, the reason the employees engaged in the ex-
tended break was to protest the plan to increase the num-
ber of taxicab medallions, which they could reasonably
have believed would adversely affect their earnings. The
extended break had a limited duration and was peaceful.
Indeed, for most of the 17 drivers, it was shorter than the
2 to 3 hours the judge calculated. Excluding drivers’ 1-
hour lunchbreaks, during which the Respondent required
drivers to remove their taxis from service, the duration of
the work stoppage for 13 of the 17 drivers was less than
2 hours, and for 6 drivers, it was 1 hour or less.14 Cf.
City Dodge Center, 289 NLRB 194 (1988) (finding
peaceful, 2- to 3-hour work stoppage protected), enfd.
sub nom. Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355
(8th Cir. 1989). Equally important is the fact that the
Respondent never directed the drivers to return the taxi-
cabs during the extended break. In this respect, the pre-

12 See, e.g., NLRB v. Washington Aluminum Co., supra, 370 U.S. at
17.
13 The Quietflex factors are (1) the reason the employees have
stopped working; (2) whether the work stoppage was peaceful; (3)
whether the work stoppage interfered with production, or deprived the
employer access to its property; (4) whether employees had adequate
opportunity to present grievances to management; (5) whether employ-
ees were given any warning that they must leave the premises or face
[discipline]; (6) the duration of the work stoppage; (7) whether employ-
ees were represented or had an established grievance procedure; (8)
whether employees remained on the premises beyond their shift; (9)
whether the employees attempted to seize the employer’s property; and
(10) the reason for which the employees were ultimately [disciplined].
344 NLRB at 1056–1057.
14 As the Respondent concedes, it allows drivers to take two 15-
minute breaks during their shifts in addition to the 1-hour lunchbreak.
If these breaks are included in the calculation, the duration of the stop-
page obviously would be further reduced.
sent case is similar to an on-premises work stoppage
where employees were never warned they must return
possession of the premises to the employer to avoid po-
tential discipline, which, under Quietflex, would weigh in
favor of finding that the employees did not lose the Act’s
protection. Also, if the drivers had returned their taxi-
cabs, the record does not establish that substitute drivers
were available. When the Respondent did order some of
the drivers to return their taxis to the Respondent’s facili-
ty, the drivers readily complied; thus, they did not remain
in the taxis (the equivalent in this case of the Respond-
ent’s “premises”) beyond their shifts. Moreover, the
Respondent’s failure to order the drivers to return the
taxicabs during the extended break, combined with the
drivers’ ready compliance when the Respondent did fi-
nally order them to return their taxis, negates any sugges-
tion that the drivers tried to “seize” the Respondent’s
property.15 The drivers were not represented by a union,
and the Respondent had no established grievance proce-
dure. Finally, the reasons given for the suspensions in-
cluded taking more than a 1-hour lunchbreak, but did not
specifically mention interfering with the Respondent’s
use of its property.
Two of the Quietflex factors, however, weigh against
protection. First, there was some interference with the
Respondent’s property rights, in that 17 of its taxicabs
were removed from service for a period of time, despite
the fact that the extended break was relatively brief and
the drivers returned the taxis when they were instructed
to do so. Second, although there was no established
grievance procedure, the Respondent has an “open door”
policy, and its handbook encourages employees to bring
their problems and concerns to management, but the
drivers apparently did not do so. This factor also weighs
against protection, although given the nature and im-
portance of the issue here, it would have been reasonable
for the drivers to conclude that a simple appeal to the
Respondent under its “open door” policy was not likely
to be effective.

15 Member Johnson views this evidence as key to his agreement that
the protesting drivers did not lose the Act’s protection. Whether or not
the Respondent had substitute drivers available, it is undisputed that
they could not have driven cabs without the medallions in the posses-
sion of the protesting drivers. In his view, a finding that those drivers
seized the Respondent’s means of production would require holding
their conduct to be unprotected, regardless of what number of other
Quietflex factors weighed in favor of protection. See, e.g., Yale Uni-
versity, 330 NLRB 246, 248 (1999) (faculty grade strike was unprotect-
ed because it involved the withholding of papers and test materials that
the school needed to attempt continued operations), and NLRB v.
Fansteel Metallurgical Corp., 306 U.S. 240, 256–257 (1939) (illegal
seizure of buildings to prevent employer’s use of them unprotected).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For all the foregoing reasons, we find that the great
majority of the Quietflex factors weigh in favor of find-
ing the extended break to be protected, and the only two
that weigh against protection do not change the bal-
ance.16 In these circumstances, we find that the intrusion
on the Respondent’s property rights was slight, and in-
sufficient to render the extended break unprotected.17
And because the extended break was protected under the
Act, the Respondent violated Section 8(a)(1) by suspend-
ing the 17 participants.18
Threats of Loss of Benefits and Discharge
During the same meeting at which Director of Opera-
tions Pino unlawfully interrogated and suspended driver
Amede and issued him a “final written warning,” Owner
Chenoweth asked Amede how long Amede had worked
for the Respondent, whether he liked working for the
Respondent, whether he had received a Christmas bonus,
and whether he liked the bonus. The complaint alleged
that by these questions, the Respondent, through Cheno-
weth, violated Section 8(a)(1) of the Act by threatening
Amede with loss of benefits, including the Christmas
bonus, and with discharge. We find these violations as
alleged.
The judge recounted the pertinent facts,19 but neglect-
ed to rule on the allegation. The General Counsel ex-

16 In so finding, however, we do not rely on the judge’s statement
that the Respondent could refuse any additional medallions.
17 The Respondent also argues that the work stoppage was unpro-
tected because it caused the Respondent to suffer significant financial
losses. We reject this claim because the statutory scheme includes the
right of employees to resort to protected economic weapons. See NLRB
v. Erie Resistor Corp., 373 U.S. 221, 233–234 (1963) (noting that ap-
proval of the use of economic weapons underlies the Act’s “repeated
solicitude for the right to strike”).
18 The Respondent excepts to the requirement that it post a notice re-
garding this violation and expunge any reference to the suspensions
from its files. It argues that these remedies are inappropriate here be-
cause employees might misinterpret them as legitimizing participation
in similar work stoppages in the future that, according to the Respond-
ent, would not be protected. To prevent any such misinterpretation, we
reiterate that we require the Respondent to cease and desist from engag-
ing in conduct that violates its employees’ right to engage in protected
concerted activities, and to remove from its files references to the un-
lawful suspensions of the 17 employees who participated in the extend-
ed break. These remedies cannot reasonably be interpreted to grant
employees carte blanche to engage in unprotected work stoppages in
the future. We emphasize that the Respondent remains free to disci-
pline or discharge employees for doing so.
19 The judge did not mention that Chenoweth, in addition to asking
Amede whether he had received a Christmas bonus, asked him whether
he liked the bonus. The record shows that Chenoweth asked both ques-
tions. Contrary to our dissenting colleague, we believe that the judge’s
factual recitation relating to these allegations and the record provide a
sufficient basis for us to rule on these allegations. We note that the
Respondent does not dispute that Chenoweth asked these questions.
Instead, its argument is limited to its assertion, which we reject, that the
questions were innocuous.
cepts to this omission, arguing that Chenoweth’s ques-
tions created the impression that Amede must cease his
protected concerted activities if he wished to remain em-
ployed by the Respondent. In opposition, the Respond-
ent argues that the alleged threats were nothing more
than “innocuous” comments that did “not rise to the level
of a threat.”20
We disagree with the Respondent’s characterization of
Chenoweth’s questions as innocuous. Chenoweth—the
owner of the company—pointedly asked Amede not only
how long he had worked for the Respondent and whether
he had received a Christmas bonus, but whether he liked
working for the Respondent and liked the bonus. In the
same meeting, Amede was suspended and told that this
was his final warning, underscoring the vulnerable status
of his employment with the Respondent. Pino’s unlaw-
ful interrogation of Amede—asking him why he partici-
pated in the extended break, and for the identity of its
leader—exacerbated the threatening atmosphere. Under
these circumstances, and viewing Chenoweth’s question-
ing from the employee’s perspective, as we must,21 we
find that Amede would reasonably understand the ques-
tions to imply threats of loss of benefits and discharge.
See, e.g., Black Angus of Lauderhill, Inc., 213 NLRB
425, 427 (1974) (finding unlawful, as an implied threat,
an employer’s questioning a union supporter about how
long he had worked for the employer and whether he
liked working for the employer).
Discharge of Amede
Following the unlawful suspensions in early February,
some of the Respondent’s drivers met with organizers
from the Industrial, Technical and Professional Employ-
ees Union, Local 4873, affiliated with Office and Profes-
sional Employees International Union, AFL–CIO (the
Union). Around February 16, the Union notified the
Respondent by letter that it was conducting an organizing
campaign. The letter listed members of the organizing
committee, including Amede. In addition to serving on
the committee, Amede signed a union authorization card
and solicited cards from employees. Around April 18,
on his day off, he went to McCarran Airport in Las Ve-
gas to pass out union information to the Respondent’s
drivers.22

20 The Respondent also asserts that the statements were not unlawful
because they concerned a driver’s unprotected conduct. Because we
have found that the drivers were engaged in protected conduct, this
contention is without merit.
21 See, e.g., Atlas Logistics Group Retail Services (Phoenix), 357
NLRB No. 37, slip op. at 1 fn. 2 (2011).
22 The judge did not specifically find that the Respondent was aware
of Amede’s union activities. The judge only noted that the activities
were “open.”
5
NELLIS CAB CO.
At the beginning of 2012, the Respondent, facing high
insurance costs, had adopted a new policy of discharging
drivers involved in frequent traffic accidents. Two days
after he passed out union literature at the airport, Amede
was involved in a traffic accident. The record reflects
that this was the eighth accident that Amede was in-
volved in during the approximately 3 years that he
worked for the Respondent. Amede’s supervisor told
him to go home and call in on Monday. When Amede
called in, the Respondent told him that he was dis-
charged. The Respondent’s written reason for the dis-
charge was “too many at fault accidents.” It was subse-
quently determined that Amede had not been at fault in
this accident. Between January 1 and July 31, the Re-
spondent discharged 26 drivers for involvement in traffic
accidents.
The judge found that the Respondent did not violate
Section 8(a)(3) and (1) of the Act by discharging
Amede.23 He found that the General Counsel established
a “strong” initial case under Wright Line,24 based on
Amede’s open support of the Union, including his mem-
bership on the organizing committee and his distribution
of union information to the Respondent’s drivers at the
airport. However, he also found that the Respondent
established that it would have discharged Amede even in
the absence of his union activities because its decision to
do so was consistent with its discharge of other employ-
ees involved in accidents in 2012.
The General Counsel excepts to the judge’s finding
that the Respondent sustained its Wright Line defense
burden. He asserts that the Respondent treated Amede
more harshly, due to his union activities, than certain
other drivers who were involved in accidents. The Re-
spondent, for its part, asserts that the judge correctly
dismissed the allegation, but argues that he should have
done so on the ground that the General Counsel failed to
meet his initial burden under Wright Line.
We agree with the Respondent. As the judge found,
Amede engaged in union activity, and the Respondent
was aware of that activity, having been informed by the
Union that Amede was a member of the organizing

23 The complaint alleged that Amede was discharged because of his
union activities, not because of his role in the protected concerted ex-
tended break.
24 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). Under Wright
Line, the General Counsel must first prove, by a preponderance of the
evidence, that an employee’s union activity was a motivating factor in
the employer’s adverse action. If the General Counsel sustains that
burden, the burden of persuasion shifts to the employer to demonstrate
that it would have taken the same action even in the absence of the
employee’s union activity. Id. at 1089.
committee. However, the judge did not identify, and the
record does not contain, any evidence of antiunion ani-
mus. Indeed, the General Counsel concedes that the Re-
spondent did not say or do anything directly indicative of
such animus. He contends, however, that animus may be
inferred from the timing of Amede’s discharge and the
Respondent’s alleged disparate treatment of him. We are
unpersuaded. Although Amede was discharged soon
after distributing union leaflets at the airport, there is no
evidence that the Respondent knew that Amede had dis-
tributed the leaflets, and no other evidence linking the
discharge to his union activity rather than to the accident
2 days later.
The General Counsel’s disparate treatment argument is
likewise not supported by the record. As stated, in an
effort to avoid incurring higher insurance costs, the Re-
spondent began firing drivers who had been involved in
frequent traffic accidents. In all, it discharged 26 drivers,
including Amede, between January and July 2012. Of
those, 14, including Amede, had more than 6 accidents;
of the 46 drivers who had accidents but were not termi-
nated, none had more than 6 accidents. The General
Counsel has failed to identify any driver who had more
accidents than Amede but was not discharged. Thus, the
record supports the judge’s finding that Amede’s dis-
charge was consistent with the Respondent’s discharge
of other drivers involved in accidents.
Because the General Counsel failed to establish that
Amede’s discharge was unlawfully motivated, he did not
sustain his initial Wright Line burden. We therefore dis-
miss this allegation.25
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent unlawfully suspended 17 em-
ployees, we shall order the Respondent to rescind the
suspensions and make the unit employees whole for any
loss of earnings and other benefits attributable to its un-
lawful conduct. Backpay for the discriminatees shall be
computed as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest at the rate prescribed in New Horizons, 283

25 Accordingly, we do not reach the issue of whether the Respondent
met its defense burden under Wright Line of showing that it would have
discharged Amede even in the absence of his union activity. Member
Miscimarra joins his colleagues in finding that the General Counsel
failed to meet his initial burden under Wright Line. Member
Miscimarra would also find, however, in agreement with the judge, that
the Respondent demonstrated it would have discharged Amede even in
the absence of his union activity.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8
(2010). The Respondent shall also be required to remove
from its files any and all references to the unlawful disci-
pline imposed on these employees, and to notify them in
writing that this has been done and that the discipline
will not be used against them in any way.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 4.
“4. By coercively interrogating employees about their
own and other employees’ protected concerted activities,
the Respondent violated Section 8(a)(1) of the Act.”
2. Insert the following as Conclusion of Law 5 and re-
number the subsequent paragraphs accordingly:
“5. By threatening an employee with discharge and
the loss of a bonus, the Respondent violated Section
8(a)(1) of the Act.”
ORDER
The National Labor Relations Board orders that the
Respondent, Sun Cab, Inc. d/b/a Nellis Cab Company,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
protected concerted activities or the protected concerted
activities of other employees.
(b) Suspending employees for engaging in protected
concerted activities.
(c) Threatening employees with discharge or the loss
of a bonus if they engage in protected concerted activi-
ties.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Dawit Alemu, Abiy Amede, Tadesse A.
Asheber, Abinate Bekele, Getachew A. Beyene, Daniel
Biru, Abraham Dirar, Kifelemarko Gebreyesus,
Getachew B. Haileselassie, Akmel Hasen, Ermias
Mehanzel, Senait Terefe, Abraham H. Terffa,
Hailemariam G. Wolde, Getadegu Woldemariam, Yonas
H. Yadessa, and Leuseged W. Yezengaw whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the judge’s decision as amended
in this decision.
(b) Compensate Dawit Alemu, Abiy Amede, Tadesse
A. Asheber, Abinate Bekele, Getachew A. Beyene, Dan-
iel Biru, Abraham Dirar, Kifelemarko Gebreyesus,
Getachew B. Haileselassie, Akmel Hasen, Ermias
Mehanzel, Senait Terefe, Abraham H. Terffa,
Hailemariam G. Wolde, Getadegu Woldemariam, Yonas
H. Yadessa, and Leuseged W. Yezengaw for any adverse
income tax consequences of receiving their backpay in
one lump sum, and file a report with the Social Security
Administration allocating the backpay awards to the ap-
propriate calendar quarters for each employee.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspensions
of Dawit Alemu, Abiy Amede, Tadesse A. Asheber,
Abinate Bekele, Getachew A. Beyene, Daniel Biru,
Abraham Dirar, Kifelemarko Gebreyesus, Getachew B.
Haileselassie, Akmel Hasen, Ermias Mehanzel, Senait
Terefe, Abraham H. Terffa, Hailemariam G. Wolde,
Getadegu Woldemariam, Yonas H. Yadessa, and
Leuseged W. Yezengaw, and within 3 days thereafter
notify each of them in writing that this has been done and
that the suspensions will not be used against them in any
way.
(d) 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.
(e) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”26 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 current em-

26 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.”
7
NELLIS CAB CO.
ployees and former employees employed by the Re-
spondent at any time since February 6, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. August 27, 2015
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
For reasons stated in the Board’s opinion, I agree that
the Respondent’s drivers engaged in a protected work
stoppage and their suspensions violated Section 8(a)(1).
I also agree that the Respondent violated Section 8(a)(1)
by interrogating the drivers about the identity of their
leader, and that the judge properly dismissed the allega-
tion that Abiy Amede’s discharge violated Section
8(a)(3). However, I dissent in two respects.
First, I disagree with the majority’s finding that the
Respondent violated Section 8(a)(1) by asking employ-
ees why they failed to perform their work on the evening
of February 4, 2012, as scheduled. In my view, such an
inquiry is clearly permissible under the Act when em-
ployees fail to do work they have been directed to per-
form. Indeed, the analysis utilized by the majority and
the judge in this case demonstrates that the Respondent
could not even determine whether drivers engaged in a
“protected” work stoppage—which would render disci-
pline unlawful—unless the Respondent asked why the
drivers failed to perform the assigned work as scheduled.
For example, if five drivers failed to work because of
reasons unrelated to the medallion dispute (for example,
if they had personal obligations or other reasons unique
to them that prevented them from working), these partic-
ular failures to work would not be protected under the
Act, and discipline based on such failures to work would
be lawful under Section 8(a)(1). In my view, therefore,
an employer faced with a cessation of work always has
the right to ask employees why they failed to perform
scheduled or assigned work, and such an inquiry cannot
reasonably be deemed violative of the Act. Other deci-
sions of the Board and the courts establish that employ-
ees faced with such a question may have other types of
protection—for example, employees have a potential
right to request the assistance of a Weingarten repre-
sentative in a unionized work setting. See, e.g., NLRB v.
J. Weingarten, 420 U.S. 251 (1975). Employees are pro-
tected against more intrusive inquiries that constitute
coercive interrogation. Rossmore House, 269 NLRB
1176 (1984), affd. sub nom. HERE Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). Employees are also pro-
tected against subsequent adverse actions by the employ-
er based on the employee’s participation in protected
concerted activities. E.g., Eastex, Inc. v. NLRB, 437 U.S.
556 (1978). These protections reinforce the right of an
employer, in the first instance, to undertake a reasonable
investigation whenever employees fail to perform sched-
uled work in the manner directed or assigned, which nec-
essarily includes asking the question, “why?”
Second, I disagree with my colleagues that the Re-
spondent violated Section 8(a)(1) by threatening Amede
with loss of benefits and discharge. In my view, there is
an insufficient evidentiary basis for the Board to rule on
these threat allegations. The judge did not rule on them,
and he made no credibility resolutions relating to the
allegations. Additionally, the judge did not even mention
one of the questions relied upon by the majority—i.e.,
whether Amede liked his Christmas bonus—and this
question, to the extent it was asked, is central to the ma-
jority’s finding that the Respondent threatened loss of
benefits. Moreover, even assuming that Amede was
asked whether he received a Christmas bonus, whether
he liked the bonus, and whether he liked working for the
Respondent, I believe that such questions do not rise to
the level of threats that violate Section 8(a)(1) of the Act.
Dated, Washington, D.C. August 27, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this 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 coercively interrogate you about your pro-
tected concerted activities or the protected concerted activities
of other employees.
WE WILL NOT suspend you for engaging in protected
concerted activities.
WE WILL NOT threaten you with discharge or the loss
of a bonus if you engage in protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make Dawit Alemu, Abiy Amede, Tadesse
A. Asheber, Abinate Bekele, Getachew A. Beyene, Dan-
iel Biru, Abraham Dirar, Kifelemarko Gebreyesus,
Getachew B. Haileselassie, Akmel Hasen, Ermias
Mehanzel, Senait Terefe, Abraham H. Terffa,
Hailemariam G. Wolde, Getadegu Woldemariam, Yonas
H. Yadessa, and Leuseged W. Yezengaw whole for any
loss of earnings and other benefits resulting from their
suspensions, plus interest.
WE WILL compensate Dawit Alemu, Abiy Amede,
Tadesse A. Asheber, Abinate Bekele, Getachew A.
Beyene, Daniel Biru, Abraham Dirar, Kifelemarko
Gebreyesus, Getachew B. Haileselassie, Akmel Hasen,
Ermias Mehanzel, Senait Terefe, Abraham H. Terffa,
Hailemariam G. Wolde, Getadegu Woldemariam, Yonas
H. Yadessa, and Leuseged W. Yezengaw for any adverse
income tax consequences of receiving their backpay in
one lump sum, and file a report with the Social Security
Administration allocating the backpay awards to the ap-
propriate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions of Dawit Alemu, Abiy Amede, Tadesse
A. Asheber, Abinate Bekele, Getachew A. Beyene, Dan-
iel Biru, Abraham Dirar, Kifelemarko Gebreyesus,
Getachew B. Haileselassie, Akmel Hasen, Ermias
Mehanzel, Senait Terefe, Abraham H. Terffa,
Hailemariam G. Wolde, Getadegu Woldemariam, Yonas
H. Yadessa, and Leuseged W. Yezengaw, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and the suspensions will not be
used against them in any way.
SUN CAB, INC. D/B/A NELLIS CAB COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-079813 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Larry A. (Tony) Smith, Esq., for the Acting General Counsel.
James T. Winkler, Esq. (Littler Mendelson, P.C.,), of Las Ve-
gas, Nevada, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Las Vegas, Nevada, on September 25–26, 2012.
On April 27, 2012, Abiy Amede filed the charge in Case 28–
CA–079812 alleging that Sun Cab, Inc., d/b/a Nellis Cab Com-
pany (Respondent) committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act (the Act).
Amede filed the first amended charge on June 27, 2012. On
June 29, 2012, the Regional Director for Region 28 of the Na-
tional Labor Relations Board (the Board) issued a complaint
and notice of hearing against Respondent alleging that Re-
spondent violated Section 8(a)(3) and (1) of the Act. Respond-
ent filed a timely answer to the complaint denying all wrongdo-
ing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
9
NELLIS CAB CO.
observation of the demeanor of the witnesses1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Las Vegas, Nevada, has been engaged in the operation
of taxicab services in Las Vegas, Nevada. During the 12
months prior to the filing of the charge, Respondent purchased
and received goods valued in excess of $50,000 directly from
outside the State of Nevada. During the same time period,
Respondent received gross revenues in excess of $500,000.
Respondent admits and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent is engaged in the business of providing taxicab
services in the Las Vegas metropolitan area. It is 1 of 16 cab
companies certified to operate in Las Vegas by the Taxi Au-
thority. Respondent has 137 medallions which permit it to op-
erate some of the approximately 171 cabs which it owns. There
are different categories of medallions, some of which allow
unrestricted use and some which have geographic or time re-
strictions.
When a driver gets a cab, he or she receives a trip sheet from
the supervisor that has basic information about the cab and the
driver. The drivers must provide information on the trip sheet,
including the start time and stop time of their shift, the pickup
time and location for their rides, the dropoff location for their
rides, the fare for each ride, the mandatory 1-hour lunchbreak,
and miscellaneous information for total mileage, fees, and
fares. Drivers are not paid an hourly wage, and are only paid a
commission which is based on one half of their “net book.”
In early 2012, in response to the Taxi Authority considering
awarding more medallions to the Las Vegas taxi companies,
taxi drivers from across 16 different Las Vegas cab companies
organized a concerted effort to protest the additional medallions
and the resulting increase in the number of operating taxicabs.
The drivers were concerned that an increase in the number of
taxicabs would result in fewer fares and thus, less income for
the drivers. The employees decided to hold an industrywide
extended break to take place on Saturday, February 4, the day
before Super Bowl Sunday. This extended break was partici-
pated in by employees of all the Las Vegas cab companies.
Several of Respondent’s drivers started their breaks by driving
to an Ethiopian restaurant where they found drivers from all of

1 The credibility resolutions here have been derived from a review of
the entire testimonial record and exhibits, with due regard for the logic
of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings here, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
the Las Vegas cab companies. Over a short period of time,
approximately 200 cabs from the 16 cab companies gathered at
the restaurant. Many of the drivers drove their cabs down Las
Vegas Boulevard while refusing to pick up passengers. After
driving down the Boulevard honking their horns and flashing
their lights, the drivers returned their cabs to service. The ex-
tended break lasted for approximately 2 to 3 hours.
Some of Respondent’s drivers continued picking up custom-
ers and collecting fares for the remainder of their shifts, some
drivers were ordered to gas their cabs and return to Respond-
ent’s yard. Respondent suspended 17 drivers for participating
in the extended break. Each of the 17 suspended drivers was
given a warning which stated that they had taken more than the
1-hour lunchbreak in violation of Respondent’s rules.2 Some of
the drivers were also given warnings for falsifying their trip
sheets.
Respondent amended its employee handbook to add discipli-
nary action for “any partial strike, sit down strike or work
slowdown that is unprotected by the National Labor Relations
Act or any other federal law, is against company policy, is pro-
hibited and will subject the employee to discipline up to and
including termination” and required all the drivers to sign for
receipt of the amendment.
When the drivers were suspended for their participation in
the extended break, they were called into the office of Jaime
Pino, Respondent’s director of operations. During these meet-
ings the drivers were told that this was their final written warn-
ing. Pino asked why they took the long break and also asked
the identity of the leader.
Employee Abiy Amede spoke against the issuance of more
medallions at a taxi authority meeting attended by Jaime Pino.
When Amede was suspended, he was called into Pino’s office.
Ray Chenoweth, Respondent’s owner was present. Chenoweth
asked how long Amede had worked for Respondent and wheth-
er he liked working for Respondent. Chenoweth also asked
whether Amede had received a Christmas bonus. Following
the suspensions for the February 4 extended break, Respond-
ent’s drivers met with the Union. On or about February 16,
2012, the Union sent an organizing letter to Respondent in-
forming it that an organizing campaign was underway and spe-
cifically named committee members including Abiy Amede.
Amede signed a union authorization card and solicited cards
from other drivers. On or about April 18, Amede went to
McCarran Airport in Las Vegas to pass out union information
to Respondent’s drivers on his day off.
On April 20, Amede was involved in an automobile accident.
The damage to his cab was minor. Amede was told to go home
by his supervisor and to call in on Monday. When Amede
called in, he was told that he was terminated. The written rea-
son for Amede’s termination was “too many at fault accidents.”

2 The 17 drivers were Dait Alemu, Abiy Amede, Tadesse A.
Asheber, Abinate Bekele, Getachew A. Beyene, Daniel Biru, Abraham
Dirar, Kifelemarko Gebreyesus, Getachew B. Haileselassie, Akmel
Hasen, Ermias Mehanzel, Senait Terefe, Abraham H. Terffa,
Hailemariam G. Wolde, Getadegu Woldemarian, Yonas H. Yadessa,
and Leusege W. Yezengaw.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After Amede’s termination it was determined that he was not at
fault.
Respondent presented evidence that in November 2011, it
was faced with increased auto insurance costs. Respondent
adopted an on-line driver safety course to be taken by drivers
with frequent accidents. Beginning in 2012, Respondent
adopted a new approach to the termination of drivers who had
accidents. Drivers would be terminated based on the frequency
of accidents. Between January 1 and July 31, 2012, Respond-
ent terminated 26 drivers for driving accidents. Amede had
eight accidents when he was terminated. Pino testified that at
the time Amede was terminated he had eight accidents and that
his production had fallen off dramatically for 2 months.
Amede’s production in February 2012 was 51 percent below
the average of those in his shift and was 56 percent below the
average in March.
B. Conclusions
1. The strike
The General Counsel contends that the extended break taken
by Respondent’s taxi drivers was a protected strike. Respondent
contends that the strike was an unprotected sitdown strike. Em-
ployees can engaged in a protected strike without representation
by a union. NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962). The Act protects the right of employee to engage in con-
certed activities including the right to strike without prior notice.
Bethany Medical Center, 328 NLRB 1094 (1999). However,
there is no absolute right to strike as activity is not protected
which is “unlawful, violent, in breach of contract, or otherwise
indefensible.” Bethany Medical Center, supra (citing NLRB v.
Washington Aluminum Co., 370 U.S. at 17. Such unprotected
conduct includes the unlawful seizure and retention of an em-
ployer’s property. NLRB v. Fansteel Metallurgical Corp.,306
U.S. 240, 248–257 (1939) (finding a strike was an illegal seizure
of the employer’s buildings and were acts of force and violence
to compel the employer to submit the employees refused police
orders and court injunction to leave, and resisted the sheriff
which resulted in their arrest).
Respondent argues that the strike was “an organized, calculat-
ed strike involving employees of several companies, designed to
financially harm the companies and to deprive the public of ser-
vice, in an effort not to address grievances to their employers, but
to lobby a governmental agency.” In Quietflex Mfg. Co., 344
NLRB 1055, 1056 (2005) the Board listed 10 factors “that the
Board has considered in determining which party’s rights should
prevail in the context of an onsite work stoppage.” The reason the
employees stopped working:
(1) Whether the work stoppage was peaceful;
(2) Whether the work stoppage interfered with production or
deprived the employer access to its property;
(3) Whether employees had adequate opportunity to present
grievances to management;
(4) Whether employees were given any warning that they
must leave the premises or face discharge;
(5) The duration of the work stoppage
(6) Whether employees were represented or had an estab-
lished grievance procedure
(7) Whether employees remained on the premises beyond
their shift
(8) Whether the employees attempted to seize the employ-
er’s property; and
(9) The reason for which the employees were ultimately
discharged.
First, the General Counsel admits the employees stopped
working to protest the number of taxicabs permitted by the Ne-
vada Taxicab Authority. Respondent did not have the ability to
remedy this concern. Respondent could refuse any additional
medallions. Second, Respondent admits that the work stoppage
was peaceful. Third, the work stoppage interfered with Respond-
ent’s production, i.e., its ability to serve the public. Respondent
was unable to assign the taxicabs to other drivers. Fourth, the
employees’ grievances were directed at the taxicab authority and
not really at Respondent’s management. Fifth, the employees
were not discharged but were suspended for a number of days.
Sixth, the work stoppage lasted between 2 and 3 hours. Seventh,
the employees were not represented and had no established
grievance procedure. Eighth, the employees did not remain on
the premises or in their cabs after their shift. However, the em-
ployees did occupy their cabs beyond a normal lunchbreak.
Ninth, the employees utilized Respondent’s taxicabs during the
strike, preventing Respondent from using other drivers. Tenth,
the employees were not discharged. Respondent admits they
were suspended for engaging in the strike, which it contends was
unprotected.
The General Counsel cites Eastex, Inc. v. NLRB, 437 U.S. 556,
558–566 (1978), for the proposition that the mutual aid or protec-
tion clause of Section 7 of the Act “protects employees from
retaliation by their employers when they seek to improve work-
ing conditions through resort to administrative and judicial fo-
rums and that employees’ appeals to legislators to protect their
interests are within the scope of this clause. In Eastex, the em-
ployer was found to have violated Section 8(a)(1) when it prohib-
ited its employees from distributing flyers regarding a right-to-
work statue, and a Presidential veto of an increase in the Federal
minimum wage. In Eastex the Supreme Court specifically reject-
ed the employer’s argument that the mutual aid or protection
clause of Section 7 protects only concerted activity by employees
that is directed at conditions that their employer has the authority
or power to change or control and rejected the argument that the
term employees in Section 7 refers only to employees of a partic-
ular employer, so that only activity by employees on behalf of
themselves or other employees of the same employer is protect-
ed.
The General Counsel argues that the drivers’ use of the taxi-
cabs falls far short of an unlawful trespass and seizure. Second,
the General Counsel argues that there were no drivers to drive the
cabs even if the drivers returned the cabs. Respondent disputes
this fact. Third, the drivers put the cabs back into service as soon
as they were done, as opposed to seizing the property for an ex-
tended period of time. Fourth, the drivers did not ignore any
police or court orders to return the cabs to service. Fifth, the
General Counsel argues that the drivers were not required to
insure that Respondent’s customers could find alternate service
elsewhere. Finally, the General Counsel argues that the strike
11
NELLIS CAB CO.
was analogous to a refusal to provide service in a factory arguing
that an out of service taxicab is analogous to an unused machine.
Under Eastex the protest against the Taxicab Authority was
protected. The issue is whether the utilization of the taxicabs
during the protest caused the strike to be unprotected. As noted,
the strike lasted between 2 and 3 hours. Respondent contends
that it could have called other drivers. The General Counsel
disputes that claim. I find that this one time, short duration strike,
did not lose protection of the Act by use of the taxicabs during
the protest. The strike was for a short duration. The taxicabs
were returned shortly thereafter. I agree with the General Coun-
sel that this action falls short of an unlawful trespass or seizure.
Respondent did not demand, and the employees did not refuse
the return of the cabs during the stoppage. Thus, I find the pro-
test did not lose protection of the Act.
Allegations of Interrogation
Following the February 4 strike, some of Respondent’s 17
drivers were called to the office of Jaime Pino to be disciplined.
During the meetings, Pino told the drivers that this was their final
written warning, and asked drivers why they took the long break
and also asked the identity of the leader.
The Board’s test for determining whether interrogation of
employees concerning their union activities or the union activi-
ties of other employees is set out in Rossmore House, 269
NLRB 1176, 1177 (1984):
Whether under all of the circumstances the interrogation rea-
sonably tends to restrain, coerce, or interfere with rights guar-
anteed by the Act.
The Board has said that a totality of the circumstances test must
be applied, even when the interrogation is directed to unit
members whose union sympathies are unknown to the employ-
er. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Some of
the considerations taken into account by the Board in determin-
ing whether, under the totality of the circumstances, the inter-
rogation was coercive include: Whether the employee interro-
gated was an open and active union supporter; whether there is
a history of employer hostility towards or discrimination
against union supporters; whether the questions were general
and nonthreatening; and whether the management official doing
the questioning had a casual and friendly relationship with em-
ployee being questioned. Sunnyvale Medical Clinic, supra at
1218.
I find that this interrogation of the employees, violated Sec-
tion 8(a)(1) of the Act. Here the employees had engaged in a
protected strike and the questions pertaining to the strike and its
leader tended to restrain and coerce employees in violation of
Section 8(a)(1). I find by this conduct, in the context of unlawful
suspensions, Respondent violated Section 8(a)(1) of the Act.
2. The discharge of Abiy Amede
In cases involving dual motivation, the Board employs the
test set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). Initially, the General
Counsel must establish by a preponderance of the credible evi-
dence that antiunion sentiment was a “motivating factor” for
the discipline or discharge. This means that the General Coun-
sel must prove that the employee was engaged in protected
activity, that the employer knew the employee was engaged in
protected activity, and that the protected activity was a motivat-
ing reason for the employer’s action. Wright Line, supra, 251
NLRB at 1090. Unlawful motivation may be found based upon
direct evidence of employer animus toward the protected activi-
ty. Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004).
Alternatively, proof of discriminatory motivation may be based
on circumstantial evidence, as described in Robert Orr/Sysco
Food Services, supra at 1184:
To support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other
employees with similar work records or offenses, deviations
from past practice, and proximity in time of the discipline to
the union activity. Embassy Vacation Resorts, 340 NLRB No.
94, slip op. at 3 [846, 848] (2003).
When the General Counsel has satisfied the initial burden,
the burden of persuasion shifts to Respondent to show by a
preponderance of the credible evidence that it would have taken
the same action even in the absence of the employee’s protect-
ed activity. If Respondent advances reasons which are found to
be false, an inference that the true motive is an unlawful one
may be warranted. Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966); Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). Howev-
er, Respondent’s defense does not fail simply because not all
the evidence supports its defense or because some evidence
tends to refute it. Merrilat Industries, 307 NLRB 1301, 1303
(1992). Ultimately, the General Counsel retains the burden of
proving discrimination. Wright Line, supra, 251 NLRB at 1088
fn. 11.
First, Amede was engaged in union activity and Respondent
was aware of that activity. Amede was listed as a member of the
Union’s organizing committee and his support of the Union was
open. On April 18, Amede went to McCarran Airport in Las
Vegas to pass out union information to Respondent’s drivers.
Under these circumstances, I find that the General Counsel has
established a prima facie case that Amede was discharged, be-
cause of his union activities.
Thus, the burden shifts to Respondent to establish that the
same action would have taken place in the absence of the em-
ployee’s union activities. Where, as here, the General Counsel
makes out a strong prima facie case under Wright Line, the bur-
den on Respondent is substantial to overcome a finding of dis-
crimination. Eddyleon Chocolate Co., 301 NLRB 887, 890
(1991). An employer cannot carry its Wright Line burden simply
by showing that it had a legitimate reason for the action, but must
“persuade” that the action would have taken place even absent
the protected conduct. Centre Property Management, 277 NLRB
1376 (1985); Roure Betrand Dupont, Inc., 271 NLRB 443
(1984).
As stated above, Respondent was faced with rising insurance
costs. As a result, Respondent began terminating employees for
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
frequent accidents. On April 20, Amede was involved in an
accident which was initially found to be his fault. Based on his
history of accidents, Amede was discharged. His discharge was
consistent with Respondent’s discharge of other employees in-
volved in accidents in 2012.
Thus, I find that Respondent has established that Amede
would have been discharged even in the absence of his union
activities. Accordingly, I find that Respondent did not violate
Section 8(a)(3) and (1) by discharging Amede.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By suspending 17 employees for their participation in a
lawful work stoppage, Respondent violated Section 8(a)(1) of the
Act.
4. By coercively interrogating employees about their union
activities and union sympathies, Respondent violated Section
8(a)(1) of the Act.
5. The above-unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
6. Respondent did not otherwise violate the Act as alleged in
the complaint.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily suspended the 17 em-
ployees discharged it must make them whole for any loss of
earnings Respondent must also be required to remove any and
all references to its unlawful suspensions, from its files and
notify the employees in writing that this has been done and that
the unlawful discipline will not be the basis for any adverse
action against them in the future. Sterling Sugars, Inc., 261
NLRB 472 (1982).
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended3
ORDER
Respondent, Sun Cab, Inc. d/b/a Nellis Cab Company, Las
Vegas, Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their protected
concerted activities.
(b) Suspending employees for engaging in a lawful work stop-
page.

3 All motions inconsistent with this recommended order are denied.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(c) In any like or related manner interfering with, restraining,
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 effectu-
ate the policies of the Act.
(a) Make whole the following 17 drivers: Dait Alemu, Abiy
Amede, Tadesse A. Asheber, Abinate Bekele, Getachew A.
Beyene, Daniel Biru, Abraham Dirar, Kifelemarko Gebreyesus,
Getachew B. Haileselassie, Akmel Hasen, Ermias Mehanzel,
Senait Terefe, Abraham H. Terffa, Hailemariam G. Wolde,
Getadegu Woldemarian, Yonas H. Yadessa and Leusege W.
Yezengaw for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the manner set
forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspensions of the 17
drivers, and within 3 days thereafter notify them in writing that
this has been done and that the discipline will not be used
against them in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 2012.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., December 27, 2012

4 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.”
13
NELLIS CAB CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate you about your protected concerted
activities or the activities of your fellow employees.
WE WILL NOT suspend employees or discipline employees for
engaging in a protected work stoppage.
WE WILL NOT In any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make whole drivers Dait Alemu, Abiy Amede,
Tadesse A. Asheber, Abinate Bekele, Getachew A. Beyene,
Daniel Biru, Abraham Dirar, Kifelemarko Gebreyesus,
Getachew B. Haileselassie, Akmel Hasen, Ermias Mehanzel,
Senait Terefe, Abraham H. Terffa, Hailemariam G. Wolde,
Getadegu Woldemarian, Yonas H. Yadessa, and Leusege W.
Yezengaw for any loss of earnings suffered as a result of the
discrimination against them, with interest.
WE WILL remove from our files any reference to the unlawful
suspensions of the 17 drivers, and WE WILL NOT make reference
to the permanently removed materials in response to any in-
quiry from any employer, employment agency, unemployment
insurance office, or reference seeker, and we will not use the
permanently removed material against these employees.
SUN CAB, INC. D/B/A NELLIS CAB COMPANY