Cerebral Palsy Association of New York State

National Labor Relations Board - Administrative Judge Opinions

Mar 15, 2007

29-CA-027584 (N.L.R.B. Mar. 15, 2007)

JD(NY)–16–07
Staten Island, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CEREBRAL PALSY ASSOCIATION OF
NEW YORK STATE
and Case No. 29-CA-27584
MARY LEAH DELLAVALLE, AN INDIVIDUAL
Tara O’Rourke, Esq., Brooklyn, New York,
for the General Counsel
Andrew P. Marks, Esq. and Gary Shapiro, Esq.,
(Littler Mendelson), New York, New York,
for the Respondent
Mary Leah Dellavalle, Staten Island, New York
DECISION
Statement of the Case
HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on
November 7 and 16, 20061 in Brooklyn, New York. A complaint and Notice of Hearing issued
on July 18, filed by an individual, Mary Leah Dellavalle, alleging that Dellavalle was discharged
by Cerebral Palsy Association of New York State, herein called Respondent, in violation of
Section 8(a)(1) and (3) of the Act. Respondent filed an Answer to the Complaint which denied
all the allegations set forth therein.
On the entire record including my observations of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following2
Findings of Fact
During the past year, which period is representative of its annual operations generally,
Respondent, in the course and conduct of its operations derived gross annual revenues valued
in excess of $250,000; and purchased and received at its New York facilities, heating oil valued
in excess of $5,000 directly from entities located within the State of New York, which entities, in
turn, received such heating oil directly from suppliers located outside the State of New York.

1 All dates are in 2006 unless otherwise indicated.
2 Counsel for the General Counsel made a Motion to Reject Respondent’s Post Hearing
Brief on December 22, 2006. Respondent filed an Opposition to General Counsel’s Motion on
December 27, 2006. General Counsel’s motion is denied.
JD(NY)–16–07
2
It is admitted, and I find that at all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
It is admitted, and I find that Deborah Wilkeyson and Stanojka Lipovac are supervisors
within the meaning of Section 2(11) of the Act.5
Dellavalle was employed by Respondent as a full-time salaried nurse case manager,
within the meaning of Section 2(3) of the Act. Dellavalle testified that her job included traveling
to different Respondent facilities. She was supervised on a day-to-day basis by Karin Liss, a
senior nurse case manager. Liss is not alleged to be a supervisor within the meaning of 10
Section 2(11) of the Act. Dellavalle was working with Liss virtually throughout the day for at
least a month. Dellavalle testified that she began work on January 30 and was terminated on
March 21. Stanojko Lipovac, Director of Professional Services, and an admitted section 2(11)
supervisor, testified that she made the decision to terminate Dellavalle on March 16.
15
Dellavalle testified that her job entailed considerable traveling to various apartments and
other facilities. As set forth above, during her first month she traveled, and had conversations
with Liss on a daily basis. During one of these early conversations Liss mentioned that medical
directors were entitled to become members of Local 1199. In response Dellavalle asked why
the nurse case managers didn’t have a union, and Liss responded that, “I can get you fired just 20
on that.” Liss denied making this statement. As set forth below, I have concluded that Dellavalle
is a credible witness. I have also concluded Liss is not a credible witness.
At another point during the first month, Dellavalle again brought up the subject of
bringing in a union for nurse case managers. Dellavalle testified that Liss stated,25
“Don’t use the word union, this is not something Cerebral Palsy wants to hear, you can get fired
for that. That’s not something they want to know about.”
On or about March 7, Dellavalle had another conversation with Liss about unions.
Dellavalle testified she told Liss: “This is why we need a union, Candy, (Liss) because the 30
nurses don’t support each other, they are constantly stabbing each other in the back. You and
Linda have both said that you are looking to retire. You are telling me that you don’t think you’re
going to make your 30 years, the nurses want a union, it would probably be appreciated if you
just stepped back if you think everything is wonderful for you.” And she Liss said, “I can get you
fired just on that.”35
Liss denied this testimony.
On March 15 Dellavalle had another conversation with Liss. Dellavalle testified at this
point in time, her relationship with Liss had gone “sour” since her previous conversations. 40
Dellavalle again brought up the subject of unions and testified:
DELLAVALE: one of the things she (Liss) said to me that the date was how
powerful her friends were in administration because they had all started working
with her, like 20-something years ago and all she had to do was tell them that I 45
was disrespecting her and they would do what needed to be done and she didn’t
have to say a word. She would come out smelling like a rose and all she had to
do was tell them about the union activity and they would say that she never said
a word and she would just -- that was a big phrase of her, Smelling like a rose.
50
Liss denied this testimony.
JD(NY)–16–07
3
On March 21 Wilkeyson, Dellavalle’s immediate supervisor, called Dellavalle and told
her to come into her office. Once in her office she handed Dellavalle an envelope and told her
that she was fired. Dellavalle asked why she was fired.
DELLAVALLE: I was shocked and I said, could you tell me why? and she said, 5
From day one we have been having complaints regarding your communication.
And I said, Why was this never said to me? and I would have been more than
happy to apologize or address the situation. I’m paraphrasing now, and that you
know, I’ve spoken to you on two occasions, in fact, just last week and you’ve
never mentioned any of this before. I – could you give me specifics? And she 10
stated to me she did not have to give me any specifics because it was during the
probationary period and during this time she could fire me for the color of my
eyes if she so decided.
GENERAL COUNSEL: Did the conversation end at that point?15
A. No, I kept pressing her for – I wanted names and specifics, what exactly had
gone on here.
Q. Okay.20
A. And she kept stumbling and saying, No. So I reached – what was between
us was a, you know, you pull out from the desk and the phone is sitting on it so I
reached over and I gave her back the envelope and I said, I want specifics, I’m
sorry, I’m not leaving until I have some kind of specific information. You know, 25
you’ve been having all this turn over, I would think that you would want to do
something to help a nurse understand what’s going on.
Q. And did she give you specifics?
30
A. She said she didn’t have to give me specifics, that wasn’t required and we sat
there in silence for I would say a good 30 seconds. I never broke contact – eye
contact with her and then I said to her, since she was clearly not going to say
anything, I said, Does this have to do with any kind of union activity? And at that
point –35
At that point, your Honor, she stated to me she was not going to
jeopardize her position nor Cerebral Palsy by directly making that statement that
it had to do with the union, but I would have been very stupid to have engaged in
union activities. That Cerebral Palsy is at –40
JUDGE EDELMAN: Is this what she said to you or –
A. The exact statement is in my affidavit.
45
JUDGE EDELMAN: I don’t want to hear what you felt or the reason –
A. No, I’m giving you the exact statement.
JUDGE EDELMAN: Oh, okay, do it again.50
A. Well, she has the exact statement, I’m paraphrasing it right now.
JD(NY)–16–07
4
JUDGE EDELMAN: Oh, okay.
A. I will not jeopardize my position or Cerebral Palsy –
JUDGE EDELMAN: This is what Wilkeyson is saying?5
A. Wilkeyson.
JUDGE EDELMAN: Okay.
10
A. -- by stating that that’s why you are being fired but you would have been
stupid to have engaged in union activity. Cerebral Palsy is an at-will employer,
that means we can hire and fire at will and you have the right to at-will work for a
union shop. Cerebral Palsy nurses have tried to bring in a union to Cerebral
Palsy in the past and we have “squelched” – she used the word “squelched” --15
“all efforts.”
But when you – you’ve got to know her, she’s very laid back as she talks.
A. But as she was talking she starting moving forward and you could see she 20
was getting angry around the edges, which I hadn’t – I’ve only met the woman
like twice in my life, maybe three times, and it was not what you would see, but
then she said, “you’re firing” – now it became personalized, “you’re – and she
used the finger, “You’re” -- this finger (indicating) – “you’re firing will serve as an
example to other nurses who want to bring in a union.”25
Now, she took the envelope, I think she thought she was handing it back
but she actually kind of flipped it and it landed in my lap and she said, “Now, get
out.”
30
Wilkeyson testified that the decision to terminate Dellavalle was made on March 16. On
March 21 Wilkeyson called Dellavalle into her office and handed her a paper notifying her of her
discharge which stated “Please be advised that you employment with Cerebral Palsy
Association of New York State, as a nurse manager in Staten Island is being terminated
effective March 22, 2006.35
Dellavalle pressed for the reasons for her discharge. Wilkeyson stated it was during her
probationary period and that her continued employment “wasn’t a good fit.”
Wilkeyson testified that she discussed the matter with Dr. Lipovac and they concluded 40
“she wasn’t a good fit.” Dellavalle tried to get the details as to why she was being terminated,
but Wilkeyson would not respond.
Wilkeyson admitted that she had very little discussion with Dellavalle, which was limited
to two short conversations. During these two conversations she admits that she did not discuss 45
any complaints or misconduct concerning Dellavalle’s employment.
Wilkeyson denied any knowledge of union activity on behalf of Dellavalle or any union
activity whatsoever.
50
For the reasons set forth below, I credit Dellavalle and do not credit Wilkeyson.
JD(NY)–16–07
5
Respondent’s defense is essentially that Dellavalle received complaints from a separate
organization, Independent Living Association, herein called I.L.A.
In early March Dellavalle testified that she received a telephone call from a woman
named Edith who represented herself as an agent of I.L.A. and requested the files and charts of 5
an incontinent woman residing at one of Respondent’s facilities for the past year. Dellavalle
testified she told Edith that “I don’t think that I have the authorization to do this. I don’t think I
should be talking to you on the phone. I’m going to have to contact administration.” A few
minutes later she was contacted by another individual from the I.L.A. who stated that she was
Edith’s supervisor. Dellavalle stated “Listen, I told your advocate (Edith) that I would have to 10
talk to administration first before I could even talk to you. I don’t think this is appropriate.” I
said, “I’m not the nurse of record.” She said, “Well, how long have you been working there?”
and I said, “Since January 30th, I’m still being mentored.” She said, “Well, you’re not the nurse
of record. Where’s the nurse of record from a year ago?” and I said, “As far as I know that was
Susan Volpe and she’s no longer here, it would be Karen Liss.” And she said, “well, I want the 15
years – I want going back to May of 2005, I want all of that information and I want if from when I
return from lunch at 1:00, you better fax it over and it better be on my desk.” I said, “You know
what, I really don’t think is appropriate that I’m talking to you, I’m not going to be faxing you
anything, I am going to call up to administration right now.”
20
GENERAL COUNSEL: Did you ever call administration about it?
A. Yes, I did.
Q. Okay. Did you speak to anybody?25
A. I spoke to Dr. Paca.3
Dellavalle testified she then met with Dr. Lipovac.
30
Q. And did you relay to Dr. Paca what happened?
A. Yes, I did.
Q. And did you receive any instructions regarding dealing with Independent 35
Living?
A. She was –
Q. Who’s “she”?40
A. Dr. (Lipovac)-- the doctor gave me the impression over the phone that she
was very angry, she said, They’re (the I.L.A.) just trying to protect themselves
and their interests and their employee, I think you were absolutely right. I hope
you hung up on them, do not take any more phone calls from them and hang up 45
on them if they call, and that was the end of that conversation with her.
Q. Do you know Dr. Paca’s title?
A. Dr. Paca. I -- think she -- you know what, if I knew it I don’t recall it anymore. 50

3 In Dellavalle’s testimony she used the name Dr. Paca, for Dr. Lipovac.
JD(NY)–16–07
6
I believe she’s the medical director.
Q. Of what?
A. Of Cerebral Palsy. I don’t know. I’m sorry.5
Q. Okay.
A. At least over these areas.
10
Q. Did you talk to any of your other supervisors or managers about receiving
calls from I. L. A.?
A. Well, yeah because there was a third phone call that came in.
15
Q. Okay. When was that phone call?
A. I believe that was the same day.
Q. Okay. Do you know who the phone call was from?20
A. No, it was again somebody from I.L.A. over the supervisor.
Q. Okay. And what happened during that conversation?
25
A. During that conversation she called up very much with an attitude right away.
She stated who she was, she stated from I.L.A., she stated she was over the
other two and “Now you will deal with me.”
Q. Um-hmm.30
A. And I said, “If you’re asking for photocopies of the chart, I have just spoken to
my administrator, I gave Dr. Paca’s name, and she (Dr. Lipovac) has said that I
am not to be making any copies and giving them anywhere. Further she has
stated that I should – that it is inappropriate, we both agreed with that, that I 35
should not be talking to any of you.” And she (I.L.A. representative) just carried
on and she said, “Well, I’m going to have you, we’re going to put in a complaint
against you, you have to give me these answers. You have to. It doesn’t matter
what you administration said.”
40
JUDGE EDELMAN: This is I. L. A. you’re talking about?
DELLAVALLE: Yeah. “It doesn’t matter what you’re administration says. If
they’re so stupid that they don’t know that you’re supposed to be answering the
questions I can’t help that but you better give us the information. You don’t want 45
to fax it over, fine, bring the chart over.” And at this point I said, “I don’t think this
is a fruitful conversation, I don’t think this is appropriate, I was told not to speak to
you.” “Well, you will be speaking with me.” And I said, “I’m sorry, I don’t mean to
be rude but I am hanging up the phone now.” And I hung up the phone.
50
Q. At any point during your conversations with Dr. Paca… had you been given
the impression or told that you had done something wrong?
JD(NY)–16–07
7
A. No, Dr. Paca said she absolutely agreed with me. That she was absolutely --
no, they were -- they were very more concerned about the citations and
absolutely don’t speak with them and hang up on them and don’t take the calls.
Lipovac testified on direct examination by Respondent, that she spoke by telephone to 5
Dellavalle sometime in December 2005, as a job interview. She had already reviewed her
resume and job application. Lipovac testified that during her phone conversation she felt that
Dellavalle was interviewing her, however, she was impressed with her resume and her years of
experience in the field.
10
Lipovac also testified on direct examination that after she was hired, she had several
telephone conversations with Dellavalle which were pleasant.
Lipovac further testified that the reason that ultimately led to her decision to terminate
Dellavalle, was a complaint from an agent of I.L.A. about Dellavalle’s conduct. This agent 15
allegedly claimed that in a telephone conversation with Dellavalle, she was rude,
unprofessional, and that Dellavalle hung up on her.
Respondent Counsel asked Lipovac why she made no effort to counsel Dellavalle.
Lipovac testified that she believed that Dellavalle could not change her personality.20
Lipovac testified that he had a number of complaints about Dellavalle from an employee,
Jeanne Miller. There were no details concerning these alleged complaints. Moreover, Miller did
not testify.
25
On or about March 21, Dellavalle testified she contacted the union because some of the
nurses knew she was interested in getting a union to represent them. Dellavalle then
telephoned Thomas Spina and left a message that the nurses at Respondent’s facility were
interested in a union to represent them.
30
Credibility Resolutions
I conclude that Dellavalle is an entirely credible witness. She was totally responsive to
questions put to her on direct and cross examination. Her testimony on both direct and cross
examination was essentially consistent. Moreover her testimony on both cross and direct 35
examination was extremely detailed. I conclude that she did not have the imagination or
inventiveness to fabricate such detailed testimony, especially under the extensive cross
examination by Respondent’s attorney. Additionally, she admitted that she was rude and hung
the telephone on Irons which Respondent contends was the straw that broke the camels back.
Further, her entire testimony impressed me as if she were reliving her conversations, rather 40
than abstract testimony. In this regard she testified using the tone, inflections and gestures of
her own testimony and that of Respondent’s witnesses. For example, during her testimony
concerning her second conversation with Wilkeyson she pointed her finger, reliving the tone of
Wilkeyson’s anger and finger pointing at her.
45
Although Dellavalle repeatedly asked Lipovac and Wilkeyson as to why she was being
terminated, both Wilkeyson and Lipovac repeatedly stated that “it was not a good fit.”
Wilkeyson testified the phrase, “not a good fit” was a decision by human resources to give this
answer and not cite any other reason. I find that such a vague response to Dellavalle’s
persistent demands for specific details supporting her termination reflects adversely as to their 50
credibility. Moreover, as set forth above, I have found that Dellavalle is an entirely credible
witness. Accordingly, I find Wilkeyson and Lipovac are not credible witnesses.
JD(NY)–16–07
8
I also find that Dellavalle is more credible than Liss. Liss is a non supervisory employee
employed by Respondent for close to 30 years. She was working with Dellavalle on a daily
basis. Dellavalle testified that their relationship had gone “sour”, since her March 7
conversation during their first month. Liss also testified that on March 15, for the only time, she
told Lipovac that she “had concerns about her (Dellavalle) going behind my back to other 5
people, going behind other people, playing both ends against the middle more or less, leaving
me voice mails telling me to stay out of her apartments.” As set forth above I simply conclude
that Dellavalle is an entirely credible witness. In connection with her conversations with Liss
she was particularly detailed and emotional. As set forth above, I credit Dellavalle’s testimony.
10
Analysis and Conclusions
When an employer is alleged to have violated Section 8(a)(3) by discharging an
employee, the General Counsel has the burden of proving by a preponderance of the evidence
that union animus was a motivating factor in the discharge. Wright Line, 251 NLRB 1083, enfd.15
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 (1983). To meet this burden, the General
Counsel must establish four elements. First, the existence of activity protected by the Act.
Second, that the Respondent was aware of such activity. Third, that the alleged discriminatee
suffered an adverse employment action. Fourth, a motivational link, or nexus, between the 20
employee’s protected activity and the adverse employment action. American Gardens
Management Co., 338 NLRB 644 (2002).
If the General Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate that the same 25
action would have taken place even in the absence of the protected conduct. In meeting this
burden, the employer cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity. T & J Trucking Co., 316 NLRB 771 (1995).
30
As set forth above, Dellavalle was a probationary employee. However, the Board has
held that probationary employees are employees within the meaning of Section 2(3) of the Act,
and within the meaning of Section 8(a)(1) and (3). See Palms Hotel and Casino, 344 No. 159
p. 1 and 3.
35
Union activity is established by Dellavalle’s attempt to encourage Liss to join a union.
“It is well established that the ‘knowledge’ of union activity need not be established by
direct evidence, but ‘may rest on circumstantial evidence from which a reasonable inference of
knowledge may be drawn.’” Regional Home Care, Inc., 329 NLRB 85 (1999) citing Montgomery 40
Ward & Co., 316 NLRB 1248, 1253 (1995), enforced by Montgomery Ward & Co., Inc. v. NLRB,
97 F.3d 1448 (4th Cir. 1996). Similarly, where the employer argued that there was no direct
evidence that the employer had knowledge of the employees’ union activity, the Board stated
that “it has long been held that such knowledge may be inferred from the record as a whole.”
Petroleum Electronics, Inc., 250 NLRB 265, 269, (1980) citing Wiese Plow Welding Co., Inc.,45
123 NLRB 616, 618 (1959). The Board went on to list factors in Regional Home Care, Inc.,
supra from which knowledge may be inferred from circumstantial evidence. Those factors
included “the timing of the alleged discriminatory actions; the Respondent’s general knowledge
of its employees’ union activities; the Respondent’s animus against the Union; and the
pretextual reasons given for the adverse personnel actions.” Regional Home Care, Inc., supra50
citing Montgomery Ward & Co., supra; and BMD Sportswear Corp., 283 NLRB 142, 143 (1987),
enforced by NLRB v. BMD Sportswear, 847 F.2d 835 (2nd Cir. 1988). Also, the Board has held
JD(NY)–16–07
9
that “where the reason given for the discipline is so baseless, unreasonable, or contrived as to
itself raise a presumption of wrongful motive,” knowledge has been inferred. Montgomery Ward
& Co., supra citing Whitesville Mill Service, Co., 307 NLRB 937 (1992); DeJana Industries, 305
NLRB 845, 849 (1991); Shattuck Denn Min. Corp., (Iron King Branch) v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966). Furthermore, “[e]ven where the employer’s reasons for adverse personnel 5
action can be a factor raising a suspicion of unlawful motivation.” Id. citing General Films, Inc.,
307 NLRB 465, 468 (1992).
To determine whether the knowledge element has been met in the instant case, the
factors laid out in Regional Home Care, Inc., supra must be analyzed. Initially, I find there is 10
there is direct evidence that the Respondent had general knowledge of Dellavalle’s union
activities and that the employer exhibited animus against the union. This conclusion is based
upon Dellavalle’s credible testimony set forth above.
However, there is also strong circumstantial evidence to support an inference of 15
knowledge based on the other two factors in Regional Home Care, Inc., supra. Those two
factors are the timing of the alleged discriminatory action and the pretextual reason for the
discharge as set forth below. The timing factor in the instant case is also strong because the
decision to discharge Dellavalle was made the day after the she had a conversation with a high-
level employee about potential unionization. Knowledge also is established because of the 20
pretextual reason the Respondent, by Wilkeyson and Lipovac, gave for Dellavalle’s discharge
was that she was “not a good fit.” When pressed by Dellavalle in her discharge interview, and
by the General Counsel at trial about what a “good fit” was, neither Wilkeyson nor Lipovac was
able to elaborate. 4
25
Combining the animus, the timing of the discharge, and the pretextual reason for the
discharge, I find Responodent had circumstantial knowledge of Dellavalle’s union activity.
Union animus is established by Dellavalle’s credible testimony concerning Wilkeyson’s
statements when she met with Dellavalle on March 21 and informed her of her discharge. 30
These statements include: You were “stupid to have engaged in union activity…” and “Cerebral
Palsy nurses have tried to bring in a union to Cerebral Palsy in the past, we have squelched…
all efforts.” I find such statements establish animus. See, Best Plumbing Supply, 310 NLRB
143, 144 (1993).
35
In connection with the timing of the discharge, I have no doubt that Wilkeyson obtained
such knowledge from Liss on or about March 15. The decision to discharge Dellavalle was
made on March 16.
Therefore I find General Counsel has established knowledge, animus, and the timing of 40
the discharge. Accordingly, I find General Counsel has established its Wright Line burden.
Respondent, supervisor Lipovac and Wilkeyson, told Dellavalle she was being
terminated because she was “not a good fit”. This reason was a calculated decision by
Respondent’s human resource department, which was aware of all the facts of this case.45
In a discriminatory discharge case, the second prong of Wright Line shifts the burden to
the employer to rebut the General Counsel’s prima facie case that the employee was fired for
engaging in protected conduct. “The employer cannot carry this burden merely by showing that
it also had a legitimate reason for the action, but must ‘persuade’ that the action would have 50

4 As set forth below, I conclude Respondent’s reason is pretextual.
JD(NY)–16–07
10
taken place even absent the protected conduct ‘by a preponderance of the evidence.’” [citations
omitted]. Centre Property Management, 277 NLRB 1376 (1985). “Even where the employer’s
rationale is not patently contrived, the Board has held that the ‘weakness of an employer’s
reasons for adverse personnel action can be a factor raising a suspicion of unlawful motivation.”
Id. citing General Films, Inc., 307 NLRB 465, 468 (1992). Thus, it must be determined “whether 5
Respondent’s proffered reasons for personnel actions are the actual ones.” See Jack in the
Box Distribution Center Systems, 339 NLRB 40, 54 (2003) citing Detroit Paneling Systems, Inc.,
330 NLRB 1170, 1175 (2000).
The Board has held that “where an administrative law judge has evaluated the 10
employer’s explanation for its action and concluded that the reasons advanced by the employer
were pretextual, that determination constitutes a finding that the reasons advanced by the
employer either did not exist or were not in fact relied upon.” Limestone Apparel Corp., 255
NRLB 722 (1981). In other words, that if the administrative law judge, in determining that the
General Counsel has made out a prima facie case under the first step of Wright Line, finds that 15
the reason for the discharge was pretextual, then no “substantive objective” is served by moving
to the second step of Wright Line. Id.
The reason Respondent gave for Dellavalle’s discharge was that she was “not a good
fit.” When pressed by the General Counsel at trial about what a “good fit” was, Lipovac and 20
Wilkeyson were both evasive and unable to elaborate. Moreover, upon the discharge
interviews, Dellavalle asked why she was not a “good fit.” Both Wilkeyson and Lipovac gave no
response. To say that an employee is not a good fit is really to give no reason at all. This
interpretation was endorsed in Keller Ford, Inc., 336 NLRB 722 (2001), where an employee was
fired essentially for not being a good fit. The ALJ found that there was no credible support for 25
this reason to discharge the employee and stated that “where there is no legitimate reason, it is
reasonable to infer that the false reasons were interposed to conceal unlawful ones.” Keller
Ford, Inc., 336 NLRB 731 citing Shattuck Denn Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966)
and The Painting Company, 330 NLRB 1000, 1001 fn. 8 (2000). In Keller Ford, Inc., an eleven-
year employee was discharged for being “non-supportive of [employer] goals” which included 30
“Basic Philosophical Differences,” such as “(1) [Employee] doesn’t agree with the way we do
business; (2) At will Employment; (3) Not a good fit for the [company]; and (4) A cancerous
attitude.” Id. at 730. In finding no substantive support for these general explanations for
termination, the ALJ stated that “[f]or 11 years, [the employee] appeared to be ‘a good fit’ at
Respondent’s business,” and it was not until the employee engaged in protected and concerted 35
activity that he was discharged. Id. at 731.
Assuming however, that the employer produced evidence that an employee not being a
good fit had been advanced as a reason for discharge in prior circumstances, then the employer
may be able to rebut the General Counsel under Wright Line. Thus, the discharge would have 40
to be in accordance with a consistently applied company policy. If the employer cannot
“demonstrate that it discharged [the employee] pursuant to a consistent, uniformly applied
policy” then it is more likely that the employer “invented this policy as a convenient pretext after
the decision was made to discharge [the employee] because of his Union activities.” Model A
and Model T Car Reproduction Corporation, 259 NLRB 555, 557 (1981). In the instant case, 45
Respondent failed to establish any employee, other then Dellavalle who was discharged
because they were not “a good fit.” Sunland Construction Company, Inc., 307 NLRB 1036,
1043 (1992). In the instant case, no evidence has been presented that Respondent routinely
fires employees only because they were “not a good fit.”
50
Accordingly, I find Respondent’s reason for the discharge of Dellavalle was pretextual.
See La Gloria Oil and Gas Company, supra, and Respondent failed to meet its Wright Line
JD(NY)–16–07
11
burden.
Accordingly, I conclude Respondent, by discharging Dellavalle has violated Section
8(a)(1) and (3) of the Act.
5
Conclusions of Law
1. Cerebral Palsy Association of New York State, Respondent herein, is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
10
2. Respondent, by threatening its employee, Mary Leah Dellavalle with discharge,
violated Section 8(a)(1) of the Act.
3. By discharging Dellavalle, Respondent violated Section 8(a)(1) and (3) of the Act.
15
4. The foregoing violations constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
Remedy
20
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.
The Respondent having discriminatorily discharged Mary Leah Dellavalle, it must offer 25
her reinstatement and make her whole for any loss of earnings and other benefits, computed on
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
30
On these findings of fact, conclusions of law and based upon the entire record, I issue
the following recommended 5
ORDER
35
The Respondent, Cerebral Palsy Association of New York State, shall
1. Cease and desist from
(a) Threatening its employees with discharge because of their activities on behalf of 40
labor organizations.6
(b) Discharging its employees because of their union activities.
45

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 The Complaint does not allege any specific labor organization, but rather alleges labor
organizations generally.
JD(NY)–16–07
12
(c) Within 14 days of this Order, offer Mary Leah Dellavalle full reinstatement to her
former job, or if such job no longer exists, to a substantially equivalent position without prejudice
to her seniority or any rights or privileges previously enjoyed.
(d) Make Mary Leah Dellavalle whole for any loss of earnings and other benefits 5
suffered as a result of the discrimination against her, in the manner set forth in the remedy
section of this decision.
(e) Within 14 days from the date of this Order, remove from the Respondent’s files any
reference to the unlawful discharge, and within 3 days thereafter notify Dellavalle in writing that 10
this has been done and that the discharge will not be used against her in any way.
(f) 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel 15
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.
(g) Within 14 days after service by the Region, post at its facilities in New York City, 20
copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent’s authorized
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.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 25
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 current employees and former employees employed by the Respondent at any time since
January 7, 2004.30
(h) 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.
35
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., March 15, 2007.
40
____________________
Howard Edelman
Administrative Law Judge
45

7 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–16–07
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten our employees because of their activities on behalf of labor organizations.
WE WILL NOT discharge our employees because of their activities on behalf of labor organizations.
WE WILL NOT within 14 days of this ORDER make an unconditional offer of reinstatement to Mary Leah Dellavalle to
her former position of employment, or if such position no longer exists, to a substantially equivalent position of
employment without prejudice to her seniority, or other rights and privileges previously enjoyed.
WE WILL make Mary Leah Dellavalle whole for any loss of earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in the remedy section of this decision.
WE WILL within 14 days from the date of this Order, remove from the Respondent’s files any reference to the
unlawful discharge, and within 3 days thereafter notify Dellavalle in writing that this has been done and that the
discharge will not be used against her in any way.
WE WILL 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 designated by the Board or its agents, all payroll records, social
security payment records, 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.
CEREBRAL PALSY ASSOCIATION OF NEW YORK STATE
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.