Livin Spoonful, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 2014

361 N.L.R.B. 595 (N.L.R.B. 2014)

LIVIN SPOONFUL, INC. 595
Livin’ Spoonful, Inc. and Portland Industrial Work-
ers of the World General Membership Branch.
Case 19–CA–084278
September 26, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On August 26, 2013, Administrative Law Judge Elea-
nor Laws issued the attached decision. Employee Adam
Kohut filed exceptions, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and brief and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3
and to adopt the recommended order.
1 In its answering brief, the Respondent urges the Board to disregard
employee Kohut’s exceptions, asserting that they fail to comply with
Sec. 102.46 of the Board’s Rules and Regulations. We decline to do
so. Although Kohut’s exceptions do not fully comply with the Board’s
Rules, they are not so deficient as to warrant striking, particularly in
light of Kohut’s pro se status. See generally A.P.S. Production/A.
Pimental Steel, 326 NLRB 1296, 1297 (1998) (“The Board typically
has shown some leniency toward a pro se litigant’s efforts to comply
with our procedural rules.”). No party has asserted that Kohut lacks
standing to file exceptions.
2 Employee Kohut has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 We agree with the judge’s conclusion that the General Counsel
failed to prove that the Respondent discharged Kohut based on animus
towards his protected activity. We further find, in agreement with the
judge, that even assuming the General Counsel met his initial burden
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), the Respondent estab-
lished that it would have terminated Kohut regardless of any protected
concerted activity.
However, in adopting the judge’s findings, we do not rely on her
suggestion that where, as here, all of the employees engaged in “the
same protected activities,” and only one suffered negative consequenc-
es, the evidence does not warrant an inference of animus. See Handi-
cabs, Inc., 318 NLRB 890, 897–898 (1995) (noting that “[a]n employ-
er’s failure to discriminate against every [employee who engaged in
protected activity] does not disprove a conclusion that it discriminated
against one of them,” and collecting relevant cases), enfd. 95 F.3d 681
(8th Cir. 1996); accord: Pacific Design Center, 339 NLRB 415, 419
(2003).
Member Miscimarra disagrees with his colleagues’ disclaimer of re-
liance on the judge’s finding that it is inappropriate to infer animus
where multiple employees engage in the same protected activity, and
only some experience negative consequences. In his view, the judge’s
analysis regarding this issue is correct. Rejecting a “disparate treat-
ment” argument, the judge observed that “[a]ll three employees [Kohut
ORDER
The complaint is dismissed.

Mara-Louise Anzalone, for the Acting General Counsel.
Kyle Abraham, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Portland, Oregon, on April 16–17, 2013. The Portland
Industrial Workers of the World, General Membership Branch
(the Charging Party, the Union, or IWW) filed the charge on
July 7, 2012,1 and the Acting General Counsel issued the com-
plaint on December 13.
The complaint alleges that Livin’ Spoonful, Inc. (the Re-
spondent or the Company), violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act) by discharging employee
Adam Kohut because he engaged in protected concerted activi-
ties.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filedby the Acting General Counsel and the Respondent, I make
the following2
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and principal
place of business in Portland, Oregon. The Respondent admits,
and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Respondent’s Operations
Livin’ Spoonful manufactures and sells raw gluten-free arti-
san crackers. Husband and wife Co-Owners James Brosseau
and Sue Nackoney started the Company in 2002. It is a small
operation which employs two to four employees at any given
and two others] engaged in the protected concerted activity at issue.”
To be probative of animus against the protected activity, evidence of
disparate treatment must show that one or more employees who en-
gaged in the activity were treated more harshly than an individual who
did not engage in the activity. See, e.g., Pollock Electric, Inc., 349
NLRB 708, 710 fn. 12 (2007) (citing Watkins Engineers & Construc-
tors, Inc., 333 NLRB 818, 819 (2001)). Here, the Respondent treated
Kohut, who engaged in protected activity, differently than other em-
ployees who engaged in the same protected activity. Member Misci-
marra agrees with the judge that such evidence does not logically sup-
port any inference of animus against Kohut based on the protected
activity. To the contrary, it tends to disprove an allegation that Kohut’s
discharge was motivated by his protected activity.
1 All dates are in 2012, unless otherwise indicated.
2 The Acting General Counsel’s unopposed motion to correct the
transcript, dated May 20, 2013, is granted and received in evidence as
GC Exh. 16.
361 NLRB No. 52

596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time. The crackers are made in a 600-square-foot kitchen lo-
cated on couples’ personal property behind their residence.
Brosseau oversees the Company’s day-to-day operations and
manages the employees. Nackoney develops cracker recipes
and collaborates with Brosseau on larger picture issues, but is
not involved with the day-to-day operations.
On Mondays, Wednesdays, and Fridays, employees work a
production shift. This entails spreading the wet cracker batter,
putting it into a dehydrator, and then putting the dried crackers
into packages for shipment. On Tuesdays and Thursdays, a
prep chef makes dressing and soaks sunflower seeds for the
next day’s recipe. Brosseau soaks the seeds on Sunday for
Monday’s recipe. To soak the seeds, the prep chef spreads
them in 15-gallon containers, adds water, and then levels the
seeds to ensure no peaks rise above the water level. If the seeds
come into contact with air, they become moldy and must be
thrown out. The prep chef work requires more skill because he
or she has to follow recipes and work independently and unsu-
pervised.
Brosseau’s time in the kitchen varies depending on the time
of year and sales volume. At the time of the hearing, he esti-
mated he was in the kitchen working with the employees 30–40
percent of the day on Mondays, Wednesdays, and Fridays. On
Tuesdays and Thursdays, Brosseau performs administrative
tasks in his office, located in his residential garage about 40
feet from the kitchen. He rarely works with the prep chef in the
kitchen, but he checks in to ensure everything is running
smoothly and makes periodic trips related to administrative
matters.
B. The Employees and the Work Environment
Brosseau met Kohut’s partner at a coffee shop he frequented,
and she recommended Kohut as a potential Livin’ Spoonful
employee. Brosseau sat down and chatted with Kohut for
roughly 20 minutes, determined he would be a good fit, and
hired him.3 When Kohut started, the employees all worked
production shifts on Mondays, Wednesdays, and Fridays. Ko-
hut also worked on Thursdays as a prep chef. Renee Manly,
who started with Livin’ Spoonful in September 2010, worked
as a prep chef on Tuesdays. Generally, Kohut made two reci-
pes during his Thursday shift and Manly made one recipe dur-
ing her Tuesday shift. Stephanie Phillips began working for
Livin’ Spoonful in August 2011 on a Mon-
day/Wednesday/Friday schedule.
Brosseau bases his employees’ pay rates on a combination of
job performance, work history, and skill set. Kohut began work
on June 2, 2011. His starting pay was $10.50 per hour and he
received a raise to $11 per hour after 3 weeks. Because of his
good performance, Kohut’s pay was raised to $12 per hour on
August 17, 2011. Phillips also began at $10.50 per hour and
received a raise to $11 per hour within a week. Manly’s start-
ing pay is not in the record, but as of March 2012, she earned
$11.50 per hour and she received a raise to $12.50 in August.
At all relevant times, Kohut and Phillips have been members
of the IWW, referred to in slang as the “Wobblies,” and Kohut
has been treasurer of the Portland Branch. Kohut was also
3 There was no formal job application.
involved with the Occupy Portland movement around the time
he started working at Livin’ Spoonful.4 Brosseau knew about
this, and provided some buckets and crackers for Kohut to take
to the protestors.
The employees learn their job tasks from Brosseau and each
other. To ensure all tasks are completed, there is a closing
checklist. Employees place their initials next to a task after
they perform it. Livin’ Spoonful has no employee handbook.
The Company likewise lacks a formal discipline system. At
first, Brosseau deals with mistakes assuming they are uninten-
tional by talking to the employee or the group about how to
address the matter at hand. He sometimes counsels the em-
ployee, sometimes just lets him/her know about the mistake,
and other times lets the mistake go. If someone makes multiple
or repetitive mistakes, Brosseau begins to question whether the
employee wants to and/or can perform correctly. On August
18, in response to a mistake Kohut had made that day, Brosseau
began keeping track of both mistakes and above-the-call con-
tributions of all employees. (GC Exhs. 7–9.)5 He would some-
times make a notation if he spoke to the employee about the
error, but was not consistent about this aspect of his record-
keeping.
While working in the kitchen, employees may talk about
subjects other than work. Brosseau aims to foster a sense of
community and shared experience where employees learn from
each other. During the time period relevant to the complaint,
politics was a common topic of conversation when everyone,
including Brosseau, was working in the kitchen. The employ-
ees and Brosseau also discussed current events, news, personal
matters, and other topics.
At all relevant times, the kitchen staff listened to internet talk
radio on a computer Brosseau provided. They listened to Sci-
ence Fridays, Against the Grain, Democracy Now, and other
programs that tend toward the left politically. If the kitchen
windows were open, the radio could be heard in the backyard.
As a result, Brosseau and Nackoney have asked the employees
to turn down the volume or close a window when one of the
children was outside playing.
C. Discussions and Events During the Fall and Winter
At some point, Brosseau became aware that Kohut and Phil-
lips were members of the IWW and that all of the employees
supported labor unions. Kohut mentioned the IWW at work
and Brosseau discussed it with the employees a couple of times.
In the fall of 2011, Manly heard Brosseau, who was on the
phone, say he had a couple of Wobblies in the room with him,
or words to that effect. In October 2011, he addressed Phillips
4 Occupy Portland, inspired by the Occupy Wall Street movement,
began on October 6, 2011, as a protest against social and economic
inequality. See occupyportland.org
5 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for Acting Gen-
eral Counsel’s exhibit; “GC Br.” for the Acting General Counsel’s
brief; “R. Br. for the Respondents’ brief. Although I have included
several citations to the record to highlight particular testimony or exhib-
its, I emphasize that my findings and conclusions are based not solely
on the evidence specifically cited, but rather are based on my review
and consideration of the entire record.

LIVIN’ SPOONFUL, INC. 597
and Kohut as “Mr. and Mrs. Wobbly” while they were at the
table spreading crackers. Phillips laughed and made a joke
about the table being wobbly.6 Kohut could not remember if he
said anything, but the comment made him feel uncomfortable.
About a week later, Brosseau came into the kitchen and said
he had read the IWW constitution. He asked the meaning of
the preamble’s first line, which states, “The working class and
the employing class have nothing in common.” (GC Exh. 15.)
Phillips recalled he addressed the question to her and Kohut but
could not recall if they responded. Kohut thought the question
was directed at him. He responded, stating that the sentence is
inconsistent with the Union’s actions. Brosseau expressed his
belief that employers and employees have a lot in common,
such as the success and continuation of the business. Kohut
believed Brosseau’s question created somewhat of an awkward
situation, and he thought Brosseau seemed agitated over the
notion that the working class and employing class do not share
the same interests.
Brosseau granted Kohut a leave of absence in October and
November 2011. Kohut returned sooner than expected and
Brosseau allowed him to come back to work early.
In late 2011 or early 2012, Kohut, Manly, and Phillips were
working together in the kitchen.7 Brosseau came into the
kitchen to spread crackers. They were listening to a radio pro-
gram about different forms of business organizations and hav-
ing a discussion about how companies distribute profits. From
there, they began discussing Marx’s philosophy on exploitation.
Kohut explained that Marx was critical of capitalism because
profit is derived from the difference between what a worker
produces and what they are paid. Brosseau asked if Kohut
thought he was exploiting him. According to Brosseau, Kohut
responded, “Yes.” When he asked Kohut why he worked for
him if he thought he was exploiting him, Kohut responded that
he needed a job.8 Kohut, Manly, and Phillips recalled Kohut
explained that he did not personally think Brosseau was ex-
ploiting him, but rather it was part of Marx’s critique of capital-
ism.
Despite Kohut’s explanation, Brosseau believed Kohut
viewed him as exploitive and this shocked him. He and
Nackoney became concerned about how they could maintain a
work environment about which Kohut could feel positive. As a
response, Brosseau decided to keep conversations in the kitchen
focused on lighter topics. He noticed that his relationship with
Kohut began deteriorating. He perceived that Kohut was very
talkative with the rest of the employees, but gave him the cold
shoulder. Because the small kitchen staff works so closely
together, he believed the Company could not function without
harmony in the kitchen. This caused Brosseau concern about
doing things that would “ruffle his feathers” (Tr. 76.) As a
6 Kohut and Phillips are friends and they play in a band together
called I Wobble Wobble.
7 The exact date of this conversation cannot be determined from the
record.
8 The following day, Manly mentioned that she, Phillips, and Kohut
wanted to brew kombucha in a part of the kitchen that was not being
used. Brosseau responded, “That’s funny because they think that I’m
exploiting them.” Tr. 186–187.
result, he sometimes would not confront Kohut if he did some-
thing incorrectly. Kohut and the other employees noticed that
Brosseau’s presence in the kitchen dropped off around this
same time.
D. Letter to Brosseau Requesting Changes
In or around February 2012, Kohut, Manly, and Phillips
were surprised when the label for the crackers changed without
their knowledge.9 The new labels were harder to use and they
had a noxious smell. When this was brought to Brosseau’s
attention, he switched back to the old labels. This incident
spurred the employees to discuss their concerns about Brosseau
not consulting them before implementing major work changes.
This led to a discussion about wages, and they discovered that
Kohut earned $12 per hour. This surprised Manly because she
earned $11.50 per hour despite her longer tenure at Livin’
Spoonful. They decided to raise their concerns with Brosseau
and started collectively drafting a letter. They all discussed
what would go into the letter, and Phillips did the majority of
the writing.
On Friday March 2, Manly (using her other name, “Jot
Nirinjan”), Phillips, and Kohut gave Brosseau a letter discuss-
ing their collective view of how they would like to see Livin’
Spoonful progress as a company. Kohut handed Brosseau the
letter and, on behalf of the three employees, asked him to read
it over the weekend and get back to them. In the letter, Kohut,
Manly, and Phillips requested a progressively greater role in the
production side of the business, such as ordering supplies and
calculating work based on orders and stocking needs. They
also requested equality in pay at the rate of $12 per hour, noting
that they do the same work and each employee has individual
strengths in the kitchen. In addition, they requested a transpar-
ent and defined pay scale and an annual cost-of-living pay raise
consistent with the Federal Government’s rate. They further
asked for raises on a defined timeline, using every 6 months as
an example, according to a scale and peer reviews. (GC Exh.
4.) The following Monday Brosseau and Nackoney came into
the kitchen, thanked the staff for the letter, and said they were
time pressed at the moment but would respond as soon as they
could.
Shortly after the letter, Kohut, Manly, and Phillips were lis-
tening to a program discussing terrorism and the government’s
official explanation for the use of drones. Specifically, Kohut
described it as a policy speech by U.S. Attorney General Eric
Holder to law students justifying targeted killings.10 Brosseau
and Nackoney’s 9-year-old daughter Persephone came into the
kitchen and Brosseau turned off the radio. Kohut asked him
why he turned the radio off, noting that Holder “was literally
getting to like the good juicy part about when he was going to
explain why they thought they could kill people.” (Tr. 350–
351). Brosseau said he wasn’t going to talk about it at the mo-
ment. Phillips was surprised by Brosseau’s actions because she
9 This date is an estimate based on testimony about the time it took
the employees to draft a letter addressing the label change.
10 Kohut said he thought Holder’s address was to law students at
Georgetown University, but it appears likely he is referring to a March
5 address on this topic to law students at Northwestern University.

598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
felt that they had been encouraged to listen to NPR, the news,
Science Fridays, and other similar programs.
The three employees talked to Brosseau, who said he did not
want Persephone listening to political content because he and
Nackoney do not expose her to the news or other media. He
told the employees they could not listen to talk radio programs
anymore. The following week, Phillips asked Brosseau if they
could listen to talk radio when Persephone was in school.
Brosseau granted this request.
E. Brosseau’s Response and Employees’ Reaction
Two weeks after the March 2 letter, Manly checked in with
Brosseau regarding a response. Brosseau prepared a written
response on March 23, which he and Nackoney both signed.
Prior to drafting the letter, he consulted with Nackoney and
then separately with Marilyn Scott, a retired human resources
executive.11 Brosseau expressed gratitude about their willing-
ness to take on more responsibility running the production
kitchen. He could not pinpoint any help he currently needed in
this regard, but said that if sales continued to grow as hoped, he
would evaluate which tasks he wanted to delegate. Brosseau
also stated that, in response to some of their concerns, he and
Nackoney were developing an employee handbook to ensure
the Company’s policies were in accordance with labor and
employment law. He also expressed the owners’ belief that
employees who contribute to the Livin’ Spoonful’s success are
morally and ethically entitled to be rewarded, and said he and
Nackoney would continue to balance the Company’s and em-
ployees’ respective needs. To this end, he stated they would
develop a transparent and defined wage scale with a 90-day
probationary period. Management would consider staff input
but retain discretion as to whether a probationary employee was
retained.
With regard to the employees’ requests for mandatory pay
increases based on service and cost-of-living pay increases,
Brosseau noted that Livin’ Spoonful was still very small, and
not financially stable enough to guarantee either of these raises.
To recognize employees’ contributions, Brosseau implemented
semiannual performance and wage reviews with uniformly
defined criteria. The performance reviews would include con-
fidential and anonymous peer reviews, but whether to grant pay
raises would remain within management’s discretion. (GC
Exh. 5.)
Kohut, Manly, and Phillips were not happy with the Compa-
ny’s response. Phillips felt shut down because they had asked
for more cooperation and action from the workers, yet Brosseau
had made some adjustments to the workplace without including
the employees. They decided they needed to talk to Brosseau
about it, and about 2 weeks later they met with him. Phillips,
Kohut, and Manly had prepared an outline of things they want-
ed to discuss and each employee presented a topic. With regard
to pay, Brosseau made it clear he was not going to make the
employees’ pay equal and said he was not going to talk to em-
ployees about how their coworkers were paid. The employees
voiced their preference for narrative evaluations as opposed to
11 Scott informed Brosseau that the letter was concerted activity and
explained what that meant.
numerical ratings on performance reviews. They also talked
about the employees’ desire to take on more responsibility.
Manly described the meeting’s tone as neutral. Brosseau de-
scribed the meeting as both cordial and tense. According to
Brosseau, Kohut spoke with a stiff voice, almost like he was
clenching his teeth. Kohut said Brosseau’s demeanor varied,
noting that he became agitated when discussing employees
having more of a say in the business. The meeting lasted until
the end of the day, around 4:30 or 5 p.m.
The employees and Brosseau agreed they had more ground
to cover, so a second meeting occurred roughly a week later.
Brosseau declined to grant them veto power over prospective
hires. He also declined to discuss wage rates. Kohut recalled
discussing cost-of-living increases. Phillips recalled Brosseau
saying his business would never be a cooperative. Manly de-
scribed Brosseau as more combative and defensive than in the
previous meeting. When asked to explain this, she said:

I think just like stronger reactions, definitely like less—there
was less trying to find middle ground, more like this is how—
you know, this is how I feel and like heading off conversa-
tions—or no—yeah, just refusing to budge from like what he
had set out as this is how it is.

(Tr. 204.) Kohut thought the tone of the second meeting was
more intense. He noted Brosseau seemed uncomfortable talk-
ing about pay, and was a little more combative. Kohut did
most of the talking at the meetings, though Manly and Phillips
also spoke.
F. Pay Increase and Performance Reviews
On April 11, Brosseau notified employees he had imple-
mented a 2-percent annual cost-of-living wage increase effec-
tive the pay period ending April 8. He notified employees that,
because the Company continued to have significant debt and no
savings, he could not implement merit based increases until at
least August 1. (GC Exh. 6.) Phillips and Kohut had received
raises the prior August, but Manly was overdue for an annual
raise. Because of this timing, the employees were upset be-
cause the raise made the pay disparity greater. They also
though the 2-percent raise was low and perpetuated the wage
discrepancies. Finally, they noticed that Brosseau appeared to
round the percentage in a way that widened the disparity.
The employee reviews took place in Brosseau’s office,
which is in the garage of his residence. Phillips’ review was
first, on Monday. Manly’s was on Wednesday and she thought
her review lasted 45 minutes to an hour. Phillips recalled her
review lasting 30–45 minutes. Phillips thought Kohut was
gone for about 1 or 1-½ hours, as did Kohut. The employees
were rated on the following seven competencies:

• Demonstrates clear understanding of the desired out-
come of job task
• Is able to perform assigned tasks accurately and in an
expeditious manner
• Arrives on time for scheduled shifts
• Is receptive to receiving directions from management
and implements changes and new tasks without need-

LIVIN’ SPOONFUL, INC. 599
ing to be reminded
• s receptive to receiving constructive feedback from
peers
• Treats co-workers with respect and communicates
constructively without judgment, blame or name call-
ing
• Works well with others to coordinate completion of
daily production goals

Kohut’s written performance appraisal was dated April 18, a
Wednesday. Kohut recalled his meeting with Brosseau was on
a Friday, which would have been April 20. Brosseau recalled
the meeting was on April 18. Regardless, Kohut received the
lowest rating of the employees, with average score of 6.8 out of
10. He had high marks (7 or above) in all but two areas. He
received a score of 4 on ability to perform tasks accurately and
in an expeditious manner, with the following comments from
Brosseau:

Adam moves at an above-average pace in general, but accura-
cy and quality suffer. An example, putting trays in dehydra-
tors too quickly causing smooshed crackers, cracker batter
portions/measure cups not carefully leveled, higher than aver-
age numbers of dehydrators not flipped (or turned on), despite
Adam double checking his work.

He also received a 4 on receptiveness to directions from
management and implementing changes and new tasks without
reminders. Brosseau’s comments were:

Adam is often enthusiastic and positive about making changes
to how he is going about tasks but often needs to be reminded
more than once, i.e. putting wax-covering boxes in recycling,
not putting screen up when working with the door open, a box
full of finished crackers hanging over the edge of the table,
wiping hands and tools on his apron instead of using the pro-
vided sanitizing towel.
The final summarizing comments stated:

Adam excels in team environments and facilitates group co-
hesion and effort toward company goals. However, Adam
must show improvement on items rated less than 5 in order to
be considered for merit-based wage increases in August.

Kohut gave himself a rating of 5 for arriving on time for his
scheduled shift. For all other competencies he gave himself a
rating of 10. In the narrative section, his stated goals were to
improve the quality of his work, be more punctual in the morn-
ing, and coerce Brosseau to allow him more of a role in the
operations of the production kitchen. (R. Exh. 1.) Kohut’s
coworkers did not give him numerical scores, but provided
generally positive feedback. (R. Exhs. 2–3.)
Brosseau thought Kohut was mostly receptive to the feed-
back he gave during the review. Kohut felt generally positive
about the review and their discussion of his work. According
to Kohut, Brosseau then said the exploitation comment still
concerned him and he didn’t want people to think he and
Nackoney exploit people. Kohut became uncomfortable and,
as before, tried to explain that he liked his job, he did not view
Brosseau or Nackoney negatively, and he had been engaged in
a philosophical discussion about how profit is generated. Ko-
hut thought Brosseau responded relatively well to this explana-
tion.
Brosseau held a pre-arranged second performance review
with Kohut about 3–4 weeks later to follow up on the personal
development goals. He took notes before, during, and after the
meeting. (R. Exh. 4.) Brosseau told Kohut that he had im-
proved in some areas. Specifically, the dehydrators had been
flipped and the crackers were no longer being shoved in too
quickly. He also told him he still made recipe errors, put too
much batter on the tray, wiped his hands on his apron rather
than using sanitizing towels, and carried loads of seeds that
were too heavy. He thought Kohut needed a higher degree of
attention to detail. Kohut mentioned that he felt his workload
was too high. Brosseau noted he checked in with Kohut and
offered help, which was almost never accepted. They agreed
that Kohut would slow down his pace and not assume responsi-
bility for getting everything done before the end of the day.
Brosseau perceived Kohut’s reception to the feedback from this
meeting as mixed, in that he seemed to understand some of the
issues were bona fide, but had a “contemptuous smirk” when
discussing other issues. (Tr. 151.)
Kohut described the second review as “weird” and not very
good. (Tr. 383.) Kohut voiced his belief that he had improved
in all areas. He specifically disputed that he was still wiping
his hands on his apron, noting he had been making a conscious
effort not to do that.
G. Events in May
Manly asked Brosseau if she could have Tuesday, May 1, off
to honor workers’ rights. Kohut offered to work on Sunday to
do Manly’s Tuesday duties. Brosseau made an exception to the
schedule and permitted this request even though having the
kitchen operating on Sunday was a slight intrusion on weekend
time with his family.
Around this same time period, Kohut told Brosseau he was
expecting a baby. As the due date grew closer, Brosseau asked
him how much time off he planned to take. Kohut said just a
day because that was all he could afford. In response, Brosseau
and Nackoney decided to implement a policy providing for a
week of paid maternity/paternity leave. Kohut’s baby was born
on May 12, and he was off work until May 21.
Sometime in late May, Livin’ Spoonful changed its seed
provider. After the transition, Brosseau and the employees had
to pay close attention to the amount of water added to the seed
bins because the new seeds were soaking up more water. Man-
ly was the first person to soak the new seeds during her shift on
Tuesday, May 22. Her seeds were not uncovered, but she said
it was close and noticed she needed to add more water. On
Thursday, May 24, Kohut’s duties included filling nine bins of
seeds with water. Roughly 20 minutes to an hour after Kohut’s
shift, Brosseau discovered the bins were not sufficiently filled
with water.12 Brosseau took a photograph depicting seeds
above the water level in the corner of a bin.
The next day, Brosseau and Nackoney called Kohut into
12 At the hearing and in the notes Brosseau made for a meeting with
Kohut, he stated he saw the seeds 20 minutes after Kohut’s shift, but in
his affidavit he stated it was an hour.

600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brosseau’s office. Brosseau showed him a picture of the seeds
on his computer and informed him that such oversights could
result in an entire batch of seeds being ruined. According to
Brosseau, Kohut appeared very agitated and would not accept
responsibility. Kohut said he agreed there was a problem, ex-
plained the process he had taken to soak and spread the seeds,
and wanted to find a way to resolve it. Brosseau explained this
was an ongoing series of issues with Kohut’s work perfor-
mance, which Kohut disputed. Kohut said he was not told how
to handle the new seeds differently. Brosseau also informed
him that additional oversights would result in the loss of his
Thursday prep shift and a reduction in his work schedule to 3
days per week. (GC Exh. 13.) Nackoney thought Kohut
seemed angry and tense. She was very concerned about com-
munication problems with Kohut, and the inability to discuss
performance issues with him. Immediately after, Kohut and his
coworkers discussed the meeting.
The following Monday, Kohut, Manly, and Annie Min-
ninger, a recently hired temporary production employee, were
scheduled to work. When they went to get the seeds Brosseau
had soaked on Sunday, they noticed they were not fully covered
with water. Manly went to Brosseau’s office to inform him of
the problem. When Brosseau saw the seeds, he initially tried to
explain they had been covered in water but were floating. He
ultimately said that the new seeds were soaking up more water
and instructed the employees to put 3 inches of water on top of
them rather than 2, which had been the previous guideline.13
H. June 4 Exchange and Kohut’s Termination
The employees became fearful that Kohut was being retaliat-
ed against, and they were concerned that there was a significant
change in how discipline was being administered. They decide
to prepare a letter for Brosseau. Kohut, Manly, and Phillips
drafted the letter, and Anne Minninger reviewed it. In the let-
ter, they voiced their belief that similar mistakes had been treat-
ed less harshly in the past, and criticized Brosseau’s use of
punishment and threats to decrease mistakes. The employees
also expressed concern about their perception of bias with re-
gard to critiquing Kohut. They noted Kohut’s concern, ex-
pressed in his performance review, about feeling overburdened
on Thursdays, and asked what was being done to address the
issue. They closed by expressing their confidence in Kohut,
and asked for constructive, rather than punitive, action. (GC
Exh. 14.) Manly told Brosseau they would like him to read the
letter, think about it over the weekend, and they could talk
about it.
On June 4, Manly, accompanied by Kohut, Phillips, and
Minninger, approached Brosseau and gave him their letter. She
conveyed their concerns about his treatment of Kohut. She
asked him to read the letter, think about it over the weekend,
and meet with them Monday. It was the end of the work shift
and they were all present.
Precise accounts of what happened next vary, but are gener-
13 Kohut said Brosseau never instructed them on how much water to
use. I credit Manly’s recollection based on its specificity. Her open
demeanor and the detail in her testimony on this topic convince me she
had good recollection of what Brosseau said.
ally consistent. Brosseau read the letter in the kitchen right
after he received it. The employees perceived he immediately
became angry and agitated. A discussion ensued even though
the employees were off the clock. The conversation quickly
became heated and Brosseau and Kohut began talking over
each other. At some point, either Kohut or Minninger raised
their voice and stated the employees wanted to be treated as
equals.14 Brosseau, admittedly losing his cool, responded with
a raised voice that they are not equals. He then explained that
they are equal as human beings but not in the workplace be-
cause he owns the business and has different responsibilities
and liabilities. Manly said she did not feel safe. Minninger
tried to calm things down and she and Manly suggested a later
meeting with a mediator. Kohut told Brosseau his ride was
waiting and Brosseau said he could leave. They all agreed to
set up a later meeting.
According to Brosseau, he stepped outside to regain his
composure. While outside, he determined that he needed help
with his relationship with Kohut and decided to try mediation.
He voiced this to Kohut, who stepped outside shortly thereafter,
and told him he knew someone who could help them. Brosseau
would not tell Kohut who the mediator was. Kohut expressed
concern that if he had his friend and business partner conduct
the mediation it would not be fair. He said he wanted to bring
his own mediator or find a mediator they could agree upon.
Brosseau said he would think it over.
Brosseau felt his best efforts to restore his relationship with
Kohut had not been working. After Kohut declined to mediate
on Brosseau’s terms, he and Nackoney talked at length and
decided to terminate Kohut’s employment. Brosseau explained
that in their work environment, which was also their home, he
felt the need to connect personally with his employees. He also
noted that, due to the deteriorating relationship, it was difficult
to address Kohut’s increasing performance problems. On June
6, Brosseau told Kohut things were not working out and gave
him his last paycheck during his next shift. According to
Brosseau, Kohut responded that he was going to file an unfair
labor practice charge, called Brosseau an asshole, and left.
According to Kohut, he said he wished Brosseau could have
been more adult about this and told him he would file an unfair
labor practice charge. He does not believe he called Brosseau
an asshole.
Manly, Minninger, and Phillips spoke with Brosseau and
Nackoney after they learned Kohut had been fired. Brosseau
said he was very sad about letting Kohut go, and he gave the
matter a lot of consideration. When asked why Kohut was let
go, Brosseau said it was mostly work performance. They told
Brosseau they didn’t see Kohut making an unusual amount of
mistakes, and Brosseau responded that was because the mis-
takes mostly occurred when Kohut worked alone on Thursday.
Minninger replied, “That’s convenient,” and Brosseau said he
could understand why they feel that way.
Brosseau arranged for mediation with the remaining employ-
ees. The first session was disrupted when a picket showed up
at Brosseau’s house. He scheduled a second mediation and it
14 Manly recalled it was Minninger and Brosseau recalled it was Ko-
hut.

LIVIN’ SPOONFUL, INC. 601
occurred without incident. Brosseau divulged that he and Ko-
hut had developed an antagonistic relationship and he believed
Kohut hated him and didn’t like his job.
Phillips quit in June 2012 because she got another job and
she was frustrated with Kohut’s termination. Right beforehand,
she asked Brosseau if he would give Kohut his job back. He
said he would not because their values were too different.
Manly recalled that, in a more recent conversation about the
hearing in this case, Brosseau said he would shut down compa-
ny if Kohut came back.
I. Comparative Employee Performance and Discipline
Kohut’s performance log indicates four entries in August and
September 2011, for failing to label containers, not keeping
work area clean, inconsistent dressing portioning, playing mu-
sic too loud, coming to work 40 minutes early, and leaving
cracker packaging bags on the table. Kohut’s log is empty until
late February, where it picks up and contains multiple infrac-
tions, along with some positive contributions, through to his
termination. The infractions vary from failing to perform
checklist items to wiping his hands on his apron. There are
entries for lifting too much, recipe errors, not portioning cor-
rectly, playing talk radio when Persephone was not in school,
not putting personal items in the right place, failing to turn off
the dehydrator, the sunflower seed incident, and various other
infractions.
Manly’s performance log does not start until March 21. It
contains four infractions and three positive contributions. The
infractions are for failing to turn on fan but signing off on it,
using the wrong size box for cracker storage, marking a dehy-
drator with a sign for the wrong recipe, and failing to turn up
dehydrators after flipping crackers.
Phillips’ performance log has one entry on March 28 stating,
“Noticed that a door to a refrigerator that was off was not open
and opened it.”
Manly has messed up two batches of dressing that needed to
be thrown out. Brosseau was not happy, but realized they were
honest mistakes. She has wiped her hands on her apron and has
not been told to use sanitizing towels. Manly made occasional
errors but did not make chronic mistakes. Manly had to pro-
vide more instruction to Kohut than to other workers. She in-
structed him on the proper way to rinse celery, they had some
back and forth about it, and he continued to rinse it incorrectly.
Phillips was reprimanded once for not cleaning a sink well
enough and maybe for forgetting to put the fan on a wet floor or
opening the refrigerator when it was turned off. She occasion-
ally stacked trays too high, portioned dressing inconsistently,
and failed to keep personal items in their designated places but
was not reprimanded. Employee Paul Conrad once added the
wrong ingredient to a recipe and ruined it. Brosseau told him
everyone makes mistakes and did not reprimand him.
Brosseau fired Susan Rusty Farrel in 2006 after serious per-
formance problems surfaced during her first 3 weeks. He fired
Tarra Mitchell, who had worked for Livin’ Spoonful about 5
months, for inaccuracy with recipes and falsifying a timecard.
Jack Martin, who worked for the Company less than 30 days,
was fired for being rude to a customer.
Decision and Analysis
The complaint alleges that Kohut was terminated because of
his protected concerted activities, in violation of Section 8(a)(1)
of the Act. Under Section 8(a)(1), it is an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.”
To prove an adverse action violates Section 8(a)(1), the Act-
ing General counsel must establish, by preponderant evidence,
that: (1) the employee engaged in concerted activity, (2) the
employer knew about the concerted activity, and (3) the em-
ployer had animus toward the activity. Meyers Industries, 268
NLRB 493, 497 (1984); Grand Canyon University, 360 NLRB
914 (2013). If the Acting General Counsel is able to make such
a showing, the burden of persuasion shifts to the employer “to
demonstrate that the same action would have taken place even
in the absence of the protected conduct.” Wright Line, 251
NLRB 1083, 1089 (1980). See also Signature Flight Support,
333 NLRB 1250 (2001) (applying Wright Line in context of
discharge for protected concerted activity).
The Board has held that activity is concerted if it is “engaged
in with or on the authority of other employees, and not solely
by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S.
948 (1985), on remand Meyers Industries (Meyers II), 281
NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Concerted
activity also includes “circumstances where individual employ-
ees seek to initiate or to induce or to prepare for group action”
and where an individual employee brings “truly group com-
plaints to the attention of management.” Meyers II, 281 NLRB
at 887. An individual employee’s complaint is concerted if it is
a “logical outgrowth of the concerns of the group.” Every
Woman’s Place, 282 NLRB 413 (1986); Mike Yurosek & Son,
Inc., 306 NLRB 1037, 1038 (1992), after remand 310 NLRB
831 (1993), enfd. 53 F.3d 261 (9th Cir. 1995).
It is undisputed that Kohut and his coworkers engaged in
protected concerted activity when they presented Brosseau with
the March 2 letter requesting equal pay and greater decision-
making authority. The meetings that ensued were a continua-
tion of this activity. It is also undisputed that the letter present-
ed to Brosseau on June 4 and the ensuing discussion regarding
his treatment of Kohut was protected concerted activity.
The Acting General Counsel argues that Kohut’s statement
against capitalism and his comment to Brosseau that he was
exploiting him are protected concerted activity. I disagree.
First of all, Kohut said he told Brosseau he did not feel exploit-
ed by him personally both at the time of the initial comment
and during his performance review. Moreover, taken to its
logical conclusion, any employee who opposed capitalism be-
cause it creates too much income disparity between owners and
workers and expressed this view to his employer would be
engaging in protected concerted activity.
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Acting General Counsel cites to Fun Striders, Inc., 250
NLRB 520 (1980), to argue that complaints about exploitation,
when coupled with complaints about wages, are protected by
the Act. In that case, however, there was a dispute over a new-
ly implemented wage rate and had engaged in a concerted work
stoppage. The leaflets at issue contained inflammatory rhetoric
against capitalism and also referred to: (1) the termination of
employees for rebelling against bad pay, poor treatment and
refusal to work overtime; (2) low wage rates; (3) a strike in
support of higher wage rates; (4) the formation of a union; and
(5) various topics related to pay and benefits. The administra-
tive law judge reasoned that the leaflets were protected be-
cause, though politically inflammatory, they also related to
wages, hours, and working conditions. Here, by contrast, at the
time Kohut made his comments about capitalism, the employ-
ees had not complained about pay or any working condition.
They did not even become aware of the pay disparity among
them until later. The record does not establish that other em-
ployees believed the Company was exploiting them, and Kohut
testified he himself denied to Brosseau that he felt personally
exploited.
The Acting General Counsel cites to Wynn Las Vegas, LLC,
358 NLRB 674, 683 (2012), for the proposition that a single
employee’s criticism of the employer’s financial treatment of
its workers during a meeting is protected concerted activity. In
that case, during a meeting the company president had called,
an employee complained about a new tip pooling policy, stating
that it diluted the tip pool and sent the message to staff that they
were not very important. Here, Kohut made a general state-
ment about capitalism he attributed to Marx. There was no
complaint tied to anything Brosseau had done.

The Acting General Counsel asserts that Kohut’s criticism of
Brosseau’s role as an exploitive, capitalist boss was intended to
induce group activity. The evidence fails to support this, how-
ever. The programs the employees listened to on a regular
basis were political and leftist. Politics was a regular topic of
conversation and the parties had likewise discussed the IWW at
work. Kohut’s leanings were well known to his coworkers, one
of whom was a fellow union member, and to Brosseau. In fact,
prior to the conversation at issue, Brosseau told Kohut he had
read the IWW constitution. The preamble states, in relevant
part:

There can be no peace so long as hunger and want are found
among millions of the working people and the few, who make
up the employing class, have all the good things of life. Be-
tween these two classes a struggle must go on until the work-
ers of the world organise as a class, take possession of the
means of production, abolish the wage system, and live in
harmony with the earth.
. . . .

It is the historic mission of the working class to do away
with capitalism. (GC Exh. 15.)
Aside from this, the attempt to tie what Kohut himself re-
peatedly referred to as a philosophical discussion to the com-
plaints about wages fails because the evidence shows the two
are attenuated, both in time and by virtue of intervening events.
Specifically, the employees’ March 2 concerted complaint
about wages followed directly from their discussions about
workplace concerns in January or February, which in turn were
directly spurred by Brosseau’s failure to consult them before
switching labels. Accordingly, I find the discussion about
Marx’s theory of exploitation, and Kohut’s comments related to
the topic, do not constitute protected concerted activity.
It is clear, however, that as of March 2, Kohut and his
coworkers engaged in protected concerted activities about
which was Brosseau aware. The Acting General Counsel must
next prove animus toward the protected activity. Under Board
precedent, improper motivation may be inferred from several
factors, including pretextual and shifting reasons given for the
employee’s discharge, the timing between an employee’s pro-
tected activities and the discharge, and the failure to adequately
investigate alleged misconduct. Temp Masters, Inc., 344
NLRB 1188, 1193 (2005); Promedica Health Systems, Inc.,
343 NLRB 1351, 1361 (2004). Discriminatory motive may also
be established by showing departure from past practice or dis-
parate treatment. See JAMCO, 294 NLRB 896, 905 (1989),
affd. mem. 927 F.2d 614 (11th Cir. 1991), cert. denied 502 U.S.
814 (1991); Naomi Knitting Plant, 328 NLRB 1279, 1283
(1999).
The Acting General Counsel points to the Respondent’s de-
lay in responding to the March 2 letter requesting expanded
responsibility for managing the business, equal pay, and cost-
of-living and merit wage increases. Brosseau and Nackoney
promptly thanked the employees for the letter and told them
they were busy but would respond. They responded in writing
on March 23. The response was longer than the employees’
request, which admittedly took the employees at least 2 weeks
to draft. To find animus because Brosseau took the time to
consult with Nackoney and the human resources executive, and
prepared a thorough letter attempting to address their com-
plaints, stretches the bounds of reasonableness.
I likewise do not find animus based on Brosseau turning off
the radio in early March. His 9-year-old daughter Persephone
came into the kitchen when the program was “getting to like the
good juicy part” about why the administration “thought they
could kill people.” To imply animus based on this action is
miles outside the bounds of reasonableness. The Acting Gen-
eral Counsel asserts that the short lived rule that the employees
could not listen to talk radio in the kitchen is suspicious be-
cause Persephone historically came into the kitchen every now
and then for short periods of time. There was no evidence,
however, that she was on the verge of hearing an explanation of
targeted killings. Moreover, any inference of animus based on
the rule is negated by Brosseau’s willingness a few days later,
at Phillips’ request, to listen to talk radio with political content
while Persephone was at school.
Brosseau’s unwillingness to meet many of the employees’
demands likewise does not show animus. Though the employ-
ees were not happy with Brosseau’s response to their letter,
there is nothing to show he was doing anything other than try-
ing to address their complaints. He was not required to agree
with them or grant their requests. On two occasions, he took
the time to meet with them to discuss their concerns. Though
Brosseau’s demeanor was perceived as more combative and
LIVIN’ SPOONFUL, INC. 603
defensive in the second meeting, this does not prove animus.
At this point in time, faced with demands from employees he
could not and/or did not want to grant, nothing about his ac-
tions in the meeting strikes me as abnormal. His subsequent
actions of granting a cost-of-living increase, implementing a
performance review system, and telling employees he would
consider merit raises the following August if economically
feasible, show that he was attempting to address at least some
of their concerns. Even though these attempts failed from the
employees’ perspective, there is nothing to show they had a
disingenuous motive.
Brosseau admittedly became agitated during the meeting af-
ter he was presented with the June 4 letter. He immediately
followed his outburst that he and the employees were not equal
by saying they were equal as people and offering to have a
mediator work with him and Kohut. Again, Kohut may not
have been willing to agree to Brosseau’s terms for the media-
tion, but there is nothing to show his offer was borne out of an
unlawful motivation.
The Acting General Counsel points to disparate treatment,
stating that other employees made mistakes similar to Kohut,
but were not disciplined. All three employees, however, en-
gaged in the protected concerted activity at issue. They all
drafted and signed the March 2 letter. Kohut spoke more dur-
ing the subsequent meetings than Manly or Phillips. However,
it was Phillips who approached Brosseau in March and request-
ed to listen to the radio while Persephone was at school. Later,
Manly told Brosseau they were concerned about his treatment
of Kohut and the purported change to how discipline was being
administered. She handed him the June 4 letter and asked him
to read it over the weekend. They engaged in the same protect-
ed activities as Kohut, with each of them leading different as-
pects of it.
Finally, many of the Respondent’s actions are inconsistent
with a finding of animus toward the protected concerted activi-
ty. For example, as detailed above, on more than one occasion
Brosseau permitted employees time off from work to attend
events supporting organized labor. In addition, Brosseau and
Nackoney decided to implement a policy providing a week of
paid paternity leave in response to Kohut’s announcement that,
for economic reasons, he only planned to take a day off after
the birth of his child. Kohut took the leave and returned to
work. After the heated discussion surrounding the employees’
June 4 letter, Brosseau immediately offered to have a mediator
work with himself and Kohut to restore a positive relationship.
At Manly’s request, he hired a mediator to work with the re-
maining employees despite their participation in protected con-
certed activities, including a protest rally at his house.15 I find
he was very tolerant of the protected activity, and honestly
worked to find solutions with the employees while retaining his
15 The Acting General Counsel asserts the mediation only occurred
because employees threatened to quit. According to Brosseau, Manly
said she did not feel safe continuing the June 4 conversation without a
mediator. Tr. 164. Phillips likewise said she did not feel safe and they
needed a mediator to allow them space to speak. They continued to
work, however. Tr. 323. I note that Phillips voluntarily after the se-
cond mediation, which was after the rally.
right to run his business as he saw fit.
Based on the foregoing, I find that the Acting General Coun-
sel has failed to meet its burden to prove that animus toward
Kohut’s protected concerted activities motivated the Respond-
ent’s decision to discharge him.
Assuming the Acting General Counsel has met its initial
burden, I find the Respondent has proven Kohut would have
been terminated even had he not engaged in protected concert-
ed activities. Brosseau stated he terminated Kohut based on a
combination of performance problems and communication
barriers stemming from the breakdown of their personal rela-
tionship.
Turning to performance, the Acting General Counsel argues
that Brosseau’s performance logs were a sham, or at the very
least inaccurate. It is clear they are not perfectly accurate. I
credit Manly’s testimony that she has messed up two batches of
dressing that needed to be thrown out, yet this is not reflected
on her performance log. I likewise credit Phillips’ testimony
that she was reprimanded for not cleaning a sink well enough,
though this is not reflected on her performance log.
Manly also stated she wiped her hands on her apron, and
Phillips said she occasionally stacked trays too high, portioned
dressing inconsistently, and failed to keep personal items in
their designated places but was not reprimanded. There is no
evidence establishing Brosseau knew about all of these infrac-
tions, however. Moreover, Kohut likewise was not contempo-
raneously reprimanded for many infractions, consistent with
Brosseau’s testimony that he did not point out each mistake
with each employee on every occasion.
The Acting General Counsel further notes that Kohut’s im-
proper arrival to work early was noted on September 14, 2011,
yet his early arrivals October 14 and November 22 were not on
the log. I note no entries were made at all in October and No-
vember. While these omissions show the log was not an accu-
rate reflection of every employee’s mistakes, the fact that in-
fractions for arriving to work early were noted before any al-
leged protected activity weighs strongly against a finding that
they were fabricated to conceal unlawful animus.
Significantly, Brosseau, acknowledged he did not always
record every infraction. There was clearly a time when he was
not recording anything, i.e., from September 22, 2011, to Feb-
ruary 27, 2012.16 If the performance log was the sole justifica-
tion for Kohut’s termination, its imperfections would be more
problematic. As discussed more fully below, however, it is not.
The Acting General counsel also asserts that the logs are
suspect because entries are phrased in the past tense. Specifi-
cally, the entry for March 5 refers listening to politically-
oriented talk radio while Persephone was in the room, which
was against policy “at that time.” Brosseau explained it would
have been clearer for him to say “at the time.” Even if the entry
was not made contemporaneously, however, this does not show
it was a fabrication. Clearly, the event occurred and it was
Kohut who confronted Brosseau about turning off the radio.
Brosseau testified that if he was near his computer he would
16 Had Brosseau gone back and fabricated the log, it would not make
sense for the log to include this glaring lapse of time without any en-
tries.

604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
record a mistake but if not he would do it later.
Finally, the Acting General Counsel notes that the entry on
Kohut’s log on March 8 for assuming responsibility for plan-
ning the day’s work without consulting Brosseau reveals
Brosseau’s true concerns about Kohut. The entry further reads,
“No kitchen staff has ever been assigned to take this responsi-
bility . . . there was no precedent regarding the task other than
Jim handled it.” (GC Exh. 12.) Even if this was a concern, the
fact that Brosseau did not want Kohut assuming his own re-
sponsibilities without telling him does not point to unlawful
motivation.
The Acting General Counsel asserts that the performance re-
views are evidence of pretext. Although the first review was
generally positive, the Acting General Counsel argues Kohut
was unfairly criticized for the commonplace mistakes of wiping
his hands on his apron and leaving a box of crackers hanging
over the edge of the table. These were two of the examples
noted under the heading “is receptive to receiving directions
from management and implements changes and new tasks
without needing to be reminded.” Kohut claimed these errors
occurred before he received his raises. In any event, it is clear
Brosseau’s point was the bigger picture, not any particular error
or errors. Notably, under this same heading, Phillips wrote,
“Not always initially pleased to receive criticism, but willing to
make changes. Sometimes needing reminders.” In addition,
Manly said she had to provide more instruction to Kohut than
to other workers. Brosseau’s perceptions were not so out of
line as to create an inference that they stemmed from animus.
Turning to the second review, the Acting General Counsel
faults Brosseau for bringing up new problems while stating
Kohut has continuing ongoing performance problems. Again,
this misses the forest for the trees. The point is there were still
problems.
As a final performance issue, Kohut was faulted for not put-
ting enough water on the sunflower seeds on May 25, and was
told that further mistakes of this nature would result in the loss
of his Thursday shift. This was Kohut’s first shift after his
return from paternity leave and his first time working with the
new seeds. Manly’s first time working with the new seeds had
been the prior Tuesday. Though she did not have seeds coming
into contact with air, she said it was close and she realized she
would need to add more water. Brosseau made the same mis-
take when he soaked the seeds the following Sunday, and on
May 28 he told the employees to add more water. Kohut’s
testimony that he did not know there were new seeds is uncon-
troverted and I credit it. While Brosseau stated one of the prob-
lems was that Kohut failed to level the seeds, resulting in the
peak in the corner above the water line, he also noted that Ko-
hut failed to add enough water. (Tr. 146; GC Exh. 13.) If this
the seed incident was the sole reason for Kohut’s termination, it
would not be fair, though based on the facts before me I would
not find it was the result of unlawful animus. Kohut was not
terminated after this incident, however.
The Acting General Counsel emphasizes Kohut’s higher pay
rate to argue performance concerns are pretext. The raise that
elevated Kohut over his coworkers came in August 2011, be-
fore any of the events at issue. Brosseau’s failure to dock his
pay is not telling absent evidence that he used pay cuts as a way
of addressing declining performance.
The incidents on June 4 are another basis for the Acting
General Counsel’s pretext argument. As detailed in the state-
ment of facts, it is clear Brosseau lost his composure when
confronted with the letter regarding Kohut’s discipline. The
Acting General Counsel asserts that Brosseau’s outburst stating
it was his company and the employees were not his equals
“speaks volumes as to his true motivation in discharging the
employees’ de facto leader.” (GC Br. 37.) I do not agree. The
comment was made in the course of a heated discussion. Im-
mediately afterward, in response to Minninger, Manly, and
Phillips saying they did not feel safe, Brosseau agreed to meet
with the employees and, at his expense, hire a mediator to help
resolve things.
Brosseau also wanted a mediator to work with him and Ko-
hut on their relationship. I find this was a genuine offer, as
evidenced by the fact that Brosseau already had decided on a
mediator and he had told the employees he had planned media-
tion for just himself and Kohut.17 Moreover, his testimony
about his relationship with Kohut and his desire to help fix it
through mediation appeared genuine and credible. After Kohut
balked at mediating on Brosseau’s terms, Brosseau determined
that his efforts were over.
Kohut’s refusal to mediate on Brosseau’s terms leads into his
other stated reason for terminating Kohut, i.e., their relationship
had broken down and he felt that, despite his best efforts, he
could not establish a rapport with Kohut on his own. Brosseau
emphasized this was not only important for addressing work
performance issues, but was also important for establishing a
harmonious environment for his home based small company.
The parties agree the source of the interpersonal strain between
Kohut and Brosseau was Kohut’s comments in late 2011 or
early 2012 about Marx’s theory on exploitation and Brosseau’s
belief that Kohut thought he was exploiting him. Brosseau
offered a way to try to improve things. Kohut rejected this
offer unless it could be on his terms. For that to be Brosseau
and Nackoney’s last straw does not, in my view, indicate un-
lawful motivation. Instead, it strikes me as eminently reasona-
ble.
Based on the foregoing, I find the Acting General Counsel
failed to establish that the Respondent violated Section 8(a)(1)
of the Act as alleged.
CONCLUSION OF LAW
The Respondent’s action of terminating Adam Kohut did not
violate Section 8(a)(1) of the Act.
Accordingly, based on the foregoing findings of fact and
conclusions of law and the entire record, I issue the following
recommended
ORDER
The complaint is dismissed.
17 Though Kohut described the mediator he thought Brosseau had
chosen as a close personal friend, he based this only on knowledge that
Brosseau had been to his property and they had discussed a potential
business opportunity.