Spectrum Juvenile Justice Services

National Labor Relations Board - Board Decisions

Oct 30, 2019

368 NLRB No. 102 (N.L.R.B. 2019)

368 NLRB No. 102
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Spectrum Juvenile Justice Services and Tamika Kel-
ley and Council 25, Michigan American Federa-
tion of State, County, and Municipal Employees
(AFSCME), AFL–CIO and International Union,
Security, Police and Fire Professionals of Amer-
ica (SPFPA) and Local 120, International Union,
Security, Police and Fire Professionals of Amer-
ica (SPFPA). Cases 07–CA–155494, 07–CA–
160938, 07–CA–174758, and 07–CA–175342
October 30, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On October 11, 2017, Administrative Law Judge
Thomas M. Randazzo issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) by failing to provide the Union with re-
quested relevant information.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In crediting the testimony of employees Clarence Atwater, Sherman
Cochran, and Tamika Kelley, the judge cited several cases, includ-
ing PPG Aerospace Industries, Inc., 353 NLRB 223 (2008). In affirm-
ing the judge's credibility determinations, we do not rely on his citation
to PPG Aerospace Industries, which was decided by a two-member
Board. See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
In adopting the judge's finding that the Respondent unlawfully inter-
rogated employees, Chairman Ring and Member Emanuel find it un-
necessary to rely on the judge's observation that the Respondent did not
give the employees a legitimate reason for its inquiries or assure them
that no reprisals would follow regardless of their answers. In adopting
the judge’s finding that Kelley, Cochran, and employee Delaine Single-
ton-Green engaged in protected concerted picketing activity, the
Chairman and Member Emanuel find it unnecessary to rely on Fresh &
Easy Neighborhood Market, Inc., 361 NLRB 151 (2014), cited by the
judge.
2 We find it unnecessary to pass on the judge's conclusion that the
Respondent’s unilaterally-implemented policy requiring contingent
employees to work mandated overtime shifts violated Sec. 8(a)(3) in
only to the extent consistent with this Decision and Or-
der, to amend the remedy,3 and to adopt the recommend-
ed Order as modified and set forth in full below.4
ORDER
The National Labor Relations Board orders that the
Respondent, Spectrum Juvenile Justice Services, High-
land Park, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
protected concerted activities.
(b) Placing employees under surveillance while they
engage in protected concerted activities.
(c) Creating the impression that it is engaged in sur-
veillance of its employees’ protected concerted activities.
(d) Threatening employees with discipline, including
discharge, for engaging in protected concerted activities.

addition to Sec. 8(a)(5) because the additional finding of the Sec.
8(a)(3) violation would not materially affect the remedy. See, e.g., 675
West End Owners Corp., 345 NLRB 324, 324 fn. 3 (2005), enfd. 304
Fed. Appx. 911 (2nd Cir. 2008). Given the Respondent’s limited credi-
bility-based exceptions on this point, Member McFerran would adopt
the judge’s finding that the Respondent’s unilateral implementation of
mandated overtime for contingent employees also violated Sec. 8(a)(3).
Additionally, we reverse the judge’s conclusion that the Respondent
violated Sec. 8(a)(1) by issuing a written discipline to employee Tami-
ka Kelley for failure to properly call off work. Applying Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), we agree with the judge’s determination that
the General Counsel proved Kelley’s protected concerted activity was a
motivating factor in the Respondent’s decision to issue the written
discipline. However, the record contains voluminous evidence of com-
parable disciplinary actions issued by the Respondent for failure to
properly call off work pursuant to the Respondent’s attendance policy.
Accordingly, we find that the Respondent met its defense burden under
Wright Line to establish that it would have issued employee Kelley the
written discipline even absent her protected concerted activity.
Further, we do not adopt the judge’s conclusion that the Respondent
violated Sec. 8(a)(5) and (1) by failing and refusing to recognize and
bargain with the Union as the exclusive collective-bargaining repre-
sentative of unit employees. This finding would be duplicative, as the
Board previously found that the Respondent unlawfully failed to recog-
nize and bargain with the Union during the period in question, see 364
NLRB No. 149 (2016), and the Board’s order was enforced by the
Sixth Circuit in NLRB v. Spectrum Juvenile Justice Services, Case 17-
1098/1159 (Nov. 27, 2017) (unpublished order).
3 We amend the judge’s remedy to provide that the make-whole
remedy for the suspensions of Clarence Atwater, Sherman Cochran,
and Tamika Kelley shall be computed in accordance with Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), rather than with F. W. Woolworth Co., 90 NLRB 289 (1950).
The Ogle Protection formula applies where, as here, the Board is reme-
dying “a violation of the Act which does not involve cessation of em-
ployment status or interim earnings that would in the course of time
reduce backpay.” Ogle Protection Service, supra at 683; see also Pepsi-
America, Inc., 339 NLRB 986, 986 fn. 2 (2003).
4 We shall modify the judge's recommended Order to conform to the
amended remedy and to the violations found, and we shall substitute a
new notice to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(e) Coercively interrogating employees about their un-
ion activities, sympathies or support.
(f) Coercively informing employees that breaks be-
tween scheduled and mandated overtime shifts would no
longer be allowed because they chose the Union as their
collective-bargaining representative.
(g) Discharging, suspending, or otherwise discriminat-
ing against employees because they engage in protected
concerted activities.
(h) Unilaterally changing the terms and conditions of
employment of its unit employees.
(i) Discharging any unit employee pursuant to unlaw-
ful unilateral changes.
(j) Eliminating breaks between scheduled and man-
dated overtime shifts because employees voted to select
the International Union, Security, Police and Fire Profes-
sionals of America (the Union) as their collective-
bargaining representative.
(k) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Alfred Neely and Lamont Simpson full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Alfred Neely and Lamont Simpson whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(c) Make Clarence Atwater, Sherman Cochran, and
Tamika Kelley whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(d) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full-time and part-time armed and unarmed security
officers, including direct care and youth workers per-
forming guard duties as defined in Section 9(b)(3) of
the Act, employed by the Employer at its facilities lo-
cated at 300 Glendale and 1961 Lincoln, Highland
Park, Michigan, but excluding, all office clerical em-
ployees, professional employees and supervisors as de-
fined by the Act.
(e) Rescind the changes in the terms and conditions of
employment for its unit employees that were unilaterally
implemented on or after March 2016, including the poli-
cy of requiring contingent employees to work mandated
overtime shifts and the elimination of breaks between
employees’ scheduled and mandated overtime shifts.
(f) Within 14 days from the date of this Order, offer
Quiana Jenkins and all other contingent employees who
were discharged for failing to comply with the unilateral-
ly imposed requirement that they work mandated over-
time shifts full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(g) Make whole Quiana Jenkins and all other contin-
gent employees who were discharged for failing to com-
ply with the unilaterally imposed requirement that they
work mandated overtime shifts for any losses incurred as
a result of its unilateral changes in terms and conditions
of employment, in the manner set forth in the remedy
section of the judge’s decision.
(h) Compensate the affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 7, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
(i) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and suspensions, and within 3 days thereafter, notify the
employees in writing that this has been done and that the
discharges and suspensions will not be used against them
in any way.
(j) Furnish to the Union in a timely manner the infor-
mation requested by the Union on March 29 and July 1,
2016.
(k) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(l) Within 14 days after service by the Region, post at
its Highland Park, Michigan facilities copies of the at-
SPECTRUM JUVENILE JUSTICE SERVICES 3
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 3, 2015.
(m) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
II IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. October 30, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your pro-
tected concerted activities.
WE WILL NOT place you under surveillance while you
engage in protected concerted activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your protected concerted activi-
ties.
WE WILL NOT threaten you with discipline, including
discharge, for engaging in protected concerted activities.
WE WILL NOT coercively question you about your un-
ion activities, sympathies or support.
WE WILL NOT coercively inform you that breaks be-
tween scheduled and mandated overtime shifts are no
longer allowed because you chose the Union as your
collective-bargaining representative.
WE WILL NOT discharge, suspend, or otherwise dis-
criminate against any of you for engaging in protected
concerted activities.
WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT discharge any unit employee pursuant to
our unlawful unilateral changes.
WE WILL NOT eliminate breaks between scheduled and
mandated overtime shifts because you voted to select the
Union as your collective-bargaining representative.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Alfred Neely and Lamont Simpson full rein-
statement to their former jobs or, if those jobs no longer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Alfred Neely and Lamont Simpson
whole for any loss of earnings and other benefits result-
ing from their discharge, less any net interim earnings,
plus interest, and WE WILL also make them whole for
reasonable search-for-work and interim employment
expenses, plus interest.
WE WILL make Clarence Atwater, Sherman Cochran,
and Tamika Kelley whole for any loss of earnings and
other benefits suffered as a result of their unlawful sus-
pensions, plus interest.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All full-time and part-time armed and unarmed security
officers, including direct care and youth workers per-
forming guard duties as defined in Section 9(b)(3) of
the Act, employed by the Employer at its facilities lo-
cated at 300 Glendale and 1961 Lincoln, Highland
Park, Michigan, but excluding, all office clerical em-
ployees, professional employees and supervisors as de-
fined by the Act.
WE WILL rescind the changes in the unit employees’
terms and conditions of employment that were unilateral-
ly implemented on or after March 2016, including the
policy of requiring contingent employees to work man-
dated overtime shifts and the elimination of breaks be-
tween employees’ scheduled and mandated overtime
shifts.
WE WILL, within 14 days from the date of the Board’s
Order, offer Quiana Jenkins, and all other contingent
employees who were discharged for failing to comply
with the unilaterally imposed requirement that they work
mandated overtime shifts, full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make whole Quiana Jenkins and all other
contingent employees who were discharged for failing to
comply with the unilaterally imposed requirement that
they work mandated overtime shifts for any loss of earn-
ings and other benefits resulting from their discharges,
less any net interim earnings, plus interest, and WE WILL
also make these employees whole for reasonable search-
for-work and interim employment expenses, plus inter-
est.
WE WILL compensate the affected employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 7, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and suspensions, and WE WILL , within 3
days thereafter, notify the employees in writing that this
has been done and that the discharges and suspensions
will not be used against them in any way.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on March 29 and
July 1, 2016.
SPECTRUM JUVENILE JUSTICE SERVICES
The Board’s decision can be found at
https://www.nlrb.gov/case/07-CA-155494 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Room
5011, Washington, DC 20570, or by calling (202) 273-
1940.
Donna M. Nixon, Esq. and Eric Cockrell, Esq., for the General
Counsel.
Sheryl A. Laughren, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This
case was tried in Detroit, Michigan, on March 27 - 30, 2017.
Upon charges filed by Charging Parties Tamika Kelley,1
AFSCME,2 SPFPA,3 and SPFPA Local 120,4 the General
Counsel issued an order consolidating cases, consolidated com-
plaint and notice of hearing (complaint) in this matter on Au-
gust 31, 2016.5

1 Kelley filed a charge on July 7, 2015, and amended charges on
August 28, September 29, October 30, 2015, and May 10, 2016.
2 AFSCME filed a charge on September 28, 2015, and an amended
charge on October 23, 2015.
3 SPFPA filed a charge on April 22, 2016.
4 SPFPA Local 120 filed a charge on April 29, 2016, and amended
charges on June 6, 2016, July 28, 2016, and August 30, 2016.
5 All dates are 2016, unless otherwise indicated.
SPECTRUM JUVENILE JUSTICE SERVICES 5
The complaint alleges that Spectrum Juvenile Justice Ser-
vices (the Respondent) committed violations of: Section
8(a)(5), (3), and (1) of the National Labor Relations Act (the
Act) by eliminating the breaks between scheduled and “man-
dated” shifts and by requiring contingent employees to work
additional mandated shifts; Section 8(a)(5) by, as a result of
requiring contingent employees to work mandated shifts, dis-
charging employee Quiana Jenkins and other unknown em-
ployees, and failing to provide Charging Party SPFPA infor-
mation it requested that was relevant to its duties as the collec-
tive-bargaining representative of the employees; Section 8(a)(3)
and (1) by issuing a written disciplines to Charging Party Kel-
ley; Section 8(a)(1) by suspending Kelley and employees
Sherman Cochran and Delaine Singleton-Green, and discharg-
ing employees Alfred Nealy and Lamont Simpson for their
protected concerted activities, and by unlawfully interrogating
employees, conducting surveillance of employees’ protected
activities, creating the impression of surveillance, threatening
the discharge of employees for engaging in protected activities,
and coercively informing employees they could no longer take
breaks between scheduled and mandated shifts because they
voted for the union.6 The Respondent, in its answer, denied
that it violated the Act as alleged.
On the entire record,7 including my observation of the de-
meanor of the witnesses,8 and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with facilities at 330 Glen-
dale (Calumet facility) and 1961 Lincoln (Lincoln facility) in
Highland Park, Michigan (collectively Highland Park facili-
ties), has been engaged in the operation of a maximum security
juvenile detention center. The Respondent admits by stipula-
tion of the parties, and I so find, that in conducting its business
operations described above, during the calendar year ending
December 31, 2015, it purchased and received at its Highland
Park facilities goods valued in excess of $50,000 directly from
points outside the State of Michigan. (Jt. Exh. 1)
It is also admitted, and I so find, that Respondent has been
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that Charging Party Unions AFSCME,

6 Prior to the trial the parties settled the allegations in complaint
paragraph 9, which alleged that the Respondent unlawfully maintained
certain rules or policies. (Tr. 11, Jt. Exh. 8) The General Counsel’s
motion at trial to sever and withdraw paragraph 9 from the complaint
was therefore granted.
7 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Re-
spondent’s Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the Gen-
eral Counsel’s brief; and “R. Br.” for Respondent’s brief.
8 In making my findings regarding the credible evidence, including
the credibility of the witnesses, I considered the testimonial demeanor
of such witnesses, the content of the testimony, and the inherent proba-
bilities based on the record as a whole. In addition, I have carefully
considered the testimony in contradiction to my factual findings, but I
have discredited such testimony.
SPFPA, and SPFPA Local 120, have been labor organizations
within the meaning of Section 2(5) of the Act. (Jt. Exh.1.)
II. ALLEGED UNFAIR LABORPPRACTICES
A. The Alleged Violations of Section 8(a)(1) of the Act
1. Background
The Respondent’s Calumet and Lincoln facilities located in
Highland Park, Michigan, are maximum security treatment
facilities for all-male juvenile prisoners or residents who have
been adjudicated by the courts and criminal justice system to
complete treatment programs. (Tr. 69.) The two facilities are
adjacent to each other on the Highland Park campus and ap-
proximately 50 to 80 yards apart. The facilities are operated by
executive director, Melissa Fernandez. She reports to Roger
Swaninger, the chief executive officer and president of Spec-
trum Human Services, Respondent’s parent company. Fernan-
dez has an office at the Lincoln facility, but not at the Calumet
facility, and she has mailboxes at both facilities. The Respond-
ent’s management personnel also include managers and super-
visors who operate from the respective “intake areas” where the
residents enter the facilities. (Tr. 97.)
The Respondent’s facilities operate on three shifts: a day
shift from 6 a.m. – 2 p.m.; an afternoon shift from 2 p.m. – 10
p.m.; and a night shift from 10 p.m. – 6 a.m. (Tr. 96–97) The
Respondent’s personnel at both facilities consist of youth
workers (also, known as youth specialists), security guards,
teachers, therapists, support staff, secretaries, and kitchen staff.
(Tr. 69.) There are approximately 60 youth workers at each
facility. (Tr. 585.) The youth workers engage the residents in
their treatment standards, and help them with their homework
and their daily routines which include their hygiene, school
issues, homework, and treatment. (Tr. 69.) The therapeutic
treatments administered to the residents are 12-month programs
consisting of seven stages. (Tr. 69.) The Youth Workers partic-
ipate in group activities and social living skill groups with the
residents. (Tr. 70–71.)
The youth workers are responsible for the daily supervision
and oversight of the residents who are housed in sections or
areas referred to as “pods.” The Calumet facility has 11 pods
and the Lincoln facility contains 10 pods. (Tr. 241.) The pods
contain 10 cells (resident living quarters), a control room, a
classroom, a therapist office, and a room where residents may
engage in activities such as watching television, communing
with each other, or playing video or board games. The pod
control rooms serve as offices within each pod and they contain
resident lockers, a closet where cleaning supplies are stored,
and various types of paperwork pertaining to the residents.
Some pods share the same control room, but all pods are sepa-
rated by electronic locks. (Tr. 547.) Despite the fact that some
of the residents’ items (such as clothing) are stored in the con-
trol rooms, the control rooms are off-limits to the residents. If a
youth worker is required to enter the control room to get some-
thing for a resident, the other youth worker on that shift will
watch the residents while the other retrieves the item. (Tr. 75.)
Clarence Atwater, a youth worker and current employee, testi-
fied that youth workers are not required to call a supervisor
when items need to be retrieved from the control room. (Tr.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
75.)
In order to facilitate communication among the Respondent’s
staff while working in the pods, supervisors, managers, security
officers, and youth workers are assigned radios. The youth
workers are with the residents all the time and are not provided
breaks during their shifts. However, they can call on their radi-
os to request relief if it is required, and if they have to use the
restroom, they can use the radio to get coverage by another
youth worker. (Tr. 577–579) The ratio of youth workers to
residents is set forth in Rule 4127 of the Respondent’s Policy
and Procedure Book, part 1, page 51, which provides that the
staff-to-resident ratio is no less than 1 worker to 10 residents
during normal hours of work, and no less than 1 worker to 11
residents during sleeping hours, and violations for ratios of
workers to residents could subject the Respondent to State pen-
alties. (Tr. 639–641) The youth workers are required to keep a
“line of sight,” a process by which they keep all residents in
front of them and in sight so they know where the residents are
at all times. (Tr. 75.)
2. In June and July 2015, the employees submitted protected
concerted complaints to the Respondent concerning their terms
and conditions of employment that were not addressed or re-
solved
In June or July 2015, morale among employees was low. (Tr.
77, 114–115, 184–187, 248–249, 317.) At that time, residents
with mental health issues were being sent to the Respondent’s
facilities. Those residents were more challenging for the em-
ployees than their usual residents, and the youth workers be-
lieved they did not possess the appropriate training to deal with
such mental health issues. (Tr. 77, 249.) As a result, a youth
worker was assaulted and injured by a resident with mental
health issues and youth workers were subjected to mental abuse
by residents. (Tr. 77, 248.) In addition, at that time mandatory
overtime for youth workers (a policy referred to as “manda-
tion”) was increased by the Respondent, and such mandatory
overtime caused conflicts for employees who had to attend
other jobs or pick up their children after their regular shifts
ended. (Tr. 77–79, 153.) The employees also felt overworked
and believed they were working too much mandated overtime.
(Tr. 473–474.) These concerns over working conditions were
discussed by employees, including Atwater, Lamont Simpson,
and Raphael McQueen. (Tr. 115–116.) Employees also met
with Respondent’s management officials to explain the work-
place issues they were experiencing, but the Respondent failed
to address or resolve any of those issues. (Tr. 79, 249–250.)
3. On or about July 2, 2015, the employees submitted protected
concerted written complaints and concerns in the form of anon-
ymous “petitions” to the Respondent’s management and super-
visory officials
In or around June 2015, several employees drafted petitions
regarding their work issues and concerns that arose from their
concerted discussions, and anonymously submitted them to
management. (Tr. 79, 249–250.) Youth Worker Lamont Simp-
son, who worked at the Calumet facility, testified that in late
June or early July, 2015, he spoke to fellow youth workers
Raphael McQueen and Clarence Atwater about their shared
workplace concerns, and he drafted a petition regarding those
concerns and complaints. (Tr. 80, 105, 116–117) The “Calu-
met petition,” which did not contain any employees’ names,
stated as follows:
We, the staff here at Calumet Center, are coming together as a
collected front to inform administration that we have become
very unhappy and concerned about working here at Calumet
Center.
Our major focus and concerns are as follows: (1) Pay—We
feel we are unpaid for the duties and required tasks that we are
expected to deal with every day; (2) Client Intake—The fa-
cility is now accepting clients with documented mental chal-
lenges into the facility that already houses clients with crimi-
nal backgrounds and records; (3) Training—Currently the
staff is not trained to deal with mentally challenged clients
with the respect of handling their needs and situations that re-
quire mental health skills; (4) Staffing—The Center is already
understaffed and being mandated to work overtime hours.
Now with more clients, the need for staffing is a problem and
the need for employees to work over their scheduled shifts is
becoming a necessity; (5) Impact on Everyday Life—The
above concerns and changes are affecting the lives of the staff
and causing a great impact on family, daycare, economical
status and health; (6) Moral [sic]—There is an enormous de-
crease in employee moral [sic] due to the lack of policy, pro-
cedure and administration support. We all feel as though su-
pervision does not support us or have our back on issues that
favor the employees.
We, the staff of Calumet Center, feel though we work hard,
we do what is expected of us, keep order in our pods and
sometimes go over and beyond the call of duty. We already
on an everyday basis deal with verbal, psychological and
sometimes physical abuse from our clients. And now recent-
ly, emotional abuse from our superiors.
As a Youth Worker, are [sic] responsibilities include: Youth
Worker, Teacher and Tutor, Part-time fill-in Fathers and Big
Brothers, Part-time Therapist, Life Coach, Hygienist, and As-
sisting and Maintaining resident’s needs that result in a posi-
tive outcome for the client.
We, the staff of Calumet Center, deserve to receive compara-
ble pay for the type and amount of work required of us, to be
recognized as employees with a purpose because without the
staff, the center could not function and to feel supported by
our supervisors.
We, the staff of Calumet Center, feel that these concerns are
valid and only fair.
We, the staff of Calumet Center, deserve to receive compara-
ble pay for the type and amount of work required of us, to be
recognized as employees with a purpose because without the
staff, the center could not function and to feel support by our
supervisors. As a whole, the employees here are dedicated,
hardworking and motivated to the mission of the center. As a
SPECTRUM JUVENILE JUSTICE SERVICES 7
whole, the employees are client driven and inspired to help
the clients achieve favorable outcomes. As a whole, the em-
ployees respect the policies and procedures set forth to govern
the working environment, but would like them to be enforced
in a fair and consistent manner.
We, the staff of Calumet Center, feel that these concerns are
valid and only fair.
We, the staff of Calumet Center, would like the opportunity to
address these issues and seek a possible resolution that would
prove beneficial for all parties involved being employer, em-
ployee, and clients. (GC Exh. 2.)
On July 2, 2015, Simpson was allowed into to the Calumet
facility office by Respondent Security Supervisor Damien Dix.
Dix asked Simpson what he was doing, and Simpson responded
that he needed access to do some tax paperwork. (Tr. 117–119)
Simpson concealed the petition in the sleeve of his shirt, and
when in the mail room he covertly placed copies of the petition
in the mailboxes of a number of managers, including Executive
Director Fernandez, Facility Managers Kirpheous Stewart and
Leroy Sherrod, Calumet Shift Supervisor Steven Johnson, Cal-
umet Facility Manager Christopher Wilson, and Supervisor
Donald Farrell. (Tr. 118–119, 173–174; GC Exh. 2) Later that
day, in the Calumet facility locker room, he gave a copy of the
petition to McQueen and told him he placed it in the managers’
mailboxes. (Tr. 120.) McQueen informed him that he would
provide the Calumet petition to Charging Party Tamika Kelley,
who worked at the Lincoln facility. (Tr. 120, 251.)
Kelley testified that she received the Calumet petition and
prepared a similar petition concerning workplace concerns and
complaints which she shared with employees at the Lincoln
facility. (Tr. 252–253.) That “Lincoln petition” stated as fol-
lows:
We, the staff of Lincoln/Calumet Center are coming together
as a collected front to inform administration that we have be-
come unhappy, and concerned about working here at Lin-
coln/Calumet Center. We deserve to receive comparable pay
for the type and amount of work required of us. We are com-
ing forth with the demands of which: (1) To be treated fairly
and have equal employment: Pay, Opportunities, Respect, (2)
Being underpaid/over-worked: Youth Worker/Tutor/Mentor,
Fill-in parents/big brothers, Counsel, Therapist, Hygenist,
Maintenance/Janitor, Security, Assisting and maintaining
chronic offenders, severe mentally challenged, trauma-based,
and emotionally impaired clients; all with criminal back-
grounds/records, meeting residents needs that result in a posi-
tive outcome for the sake of the client, (3) “Personal Leave”
days back, (4) Worked time being rolled up/back, (5) Impact
on our families, daycare, economical status, health, and safe-
ty, (6) Lack of policy, procedure, and administrative support,
(7) Verbal, physical, psychological, and emotional abuse.
(GC Exh. 7.)
A number of employees reviewed and signed a page attached
to the Lincoln facility petition. (Tr. 186–188; 254; GC Exh. 7)
Kelley testified that she placed a copy of that petition (without
the page that included the employees’ signatures) in the mail-
boxes of the Lincoln managers and supervisors, which included
Fernandez, Lincoln Director Oliver Cooper, Lincoln Facility
Manager Marlon Bradford, Manager George, Lincoln Shift
Supervisor Kerwin Johnson, Lincoln Shift Supervisor Prince
Fullerton, and Lincoln shift Supervisor Michael Caston. (Tr.
253–254; GC Exh. 7) Thus, the employees also anonymously
submitted a list of workplace concerns and demands to man-
agement at the Lincoln facility.
4. On July 2, 2015, Human Resources Administrator James
Wiser sent the employees’ Calumet petition to Executive Direc-
tor Melissa Fernandez and Vice President of Human Resources
Donald Fields
Respondent Human Resources Administrator James Wiser
testified that on July 2, 2015, he emailed a copy of the Calumet
petition to Fernandez and Donald Fields, the Vice President of
Human Relations. (Tr. 595–596, 598, 660–661, 787; GC Exh.
2; Jt Exh. 1.) Fernandez acknowledged that Wiser emailed the
petition to her and to Fields. (Tr. 596.) Fernandez, despite testi-
fying at trial that she did not provide the Calumet petition to
anyone else, nevertheless admitted that she “may have” sent it
to CEO Roger Swaniger. (Tr. 597–598) Regardless of whether
she provided Swaniger with the employees’ petition, it is un-
disputed that Respondent received and was aware of the em-
ployees’ petition of workplace concerns and demands on July
2, 2015.9
Fernandez further admitted that she discussed the employ-
ees’ Calumet petition with the human resources personnel and
with her “management team,” and she discussed the fact that
the staff was unhappy. (Tr. 660–661) However, she did not
meet with the employees regarding the petition. (Tr. 661.)
There is also no evidence that Fernandez, nor another manage-
ment official under her direction, made any attempts to address
the employees concerning their workplace complaints and is-
sues.
5. The Respondent, on July 3, 2015, by Calumet Security Su-
pervisor Damon Dix, unlawfully interrogated employees re-
garding their engagement in protected concerted activities in
violation of Section 8(a)(1) of the Act
a. The facts
Alfred Neely, a Calumet youth worker, spoke to Calumet
Facility Manager Christopher Wilson and Shift Supervisor
Steven Johnson10 about the Calumet petition. (Tr. 322; GC Exh.
2) Neely testified that when he and Simpson were present with
Supervisor Johnson and Manager Wilson on or about July 4 or
5, 2015, Simpson asked Johnson and Wilson to give the peti-
tion to Calumet Director Kirpheous Stewart and they agreed to

9 The Respondent admitted in its answer to the complaint, that it re-
ceived the employees’ petition concerning working conditions about
early July 2015. (GC Exh. 1(oo).)
10 At the trial, Steven Johnson testified that the spelling of his first
name is “Steven” and such spelling is accurately reflected by stipula-
tion of the parties. (Jt. Exh. 1.) In the record, however, Steven John-
son’s name is misspelled as “Stephen,” which appears to be an inad-
vertent error.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
give him a copy. (Tr. 322.) According to Neely, later that
evening, Wilson came back and told him that he spoke to Stew-
art, and “they’re not going to talk about shit,” and that the em-
ployees “better be at work.” (Tr. 323–324) In connection with
this testimony, Wilson was not called to testify at the trial to
contradict Neely’s assertion, and Steven Johnson was called by
Respondent to testify, but he never contradicted Neely’s testi-
mony that he (Neely) asked Johnson and Wilson to give the
petition to Stewart. (Tr. 352–379.) Likewise, Kirpheous Stew-
art testified on behalf of the Respondent, but he failed to rebut
the assertions by Neely, as conveyed by his manager and su-
pervisor, that he or the Respondent would “. . . not talk about
shit with [the employees]” and “they better be at work. . . .”
(Tr. 323–324, 768–785.)
On that same subject, Simpson testified that on July 3, 2015,
approximately 2 hours after he left the petition in the mailbox-
es, he had a conversation with Calumet Security Supervisor
Damien Dix, who entered the room in pod 3 and asked Simp-
son whether he knew anything about a “letter” that was put in
the mailboxes of the management officials. (Tr. 121, 125, 825–
826; GC Exh. 2.) While Dix testified on Respondent’s behalf,
he failed to deny that he asked Simpson whether he knew any-
thing about the letter/petition, and he failed to offer any legiti-
mate explanation for his question. (Tr. 825-837.)
Simpson testified that after he denied any knowledge of the
petition, Dix told him the managers and supervisors had a meet-
ing in which they talked about the unsigned letter. Dix then
told Simpson that Kirpheous Stewart stated: “they ain’t going
to do shit,” and that Stewart “threw [the petition] away.” (Tr.
121.) With regard to Simpson’s assertion that Dix told him that
Stewart wasn’t “going to do shit” about the employees’ con-
cerns in their petition, at trial, Stewart failed to deny that he
made that statement to Dix. However, Dix denied that he told
Simpson that Respondent “wouldn’t do shit about the employ-
ees’ concerns,” and he also went so far as to deny that he was
ever aware of the written complaints or petition submitted by
the employees. (Tr. 829–831.)
b. The credibility determinations
While many of the facts of this case are uncontroverted,
there are instances where the testimonies of the Respondent’s
witnesses differ from the testimonies of the General Counsel’s
witnesses. In such instances, as the finder of fact, I must de-
termine the credibility of the witnesses. Credibility determina-
tions may rely on a variety of factors, including the context of
the witness’ testimony, the witness’ demeanor, the weight of
the evidence, established or admitted facts, reasonable infer-
ences that may be drawn from the record as a whole, and the
inherent probabilities of the allegations. Double D Construc-
tion Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335
NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all or noth-
ing propositions. Indeed, nothing is more common than for a
judge to believe some, but not all, of the testimony of a witness.
Daikichi Sushi, 335 NLRB at 622; Jerry Ryce Builders, 352
NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera
Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds
340 U.S. 474 (1951). Accord: General Fabrications Corp.,
328 NLRB 1114 fn. 1 (1999), enfd. 222 F.3d 218 (6th Cir.
2000). See also J. Shaw Associates, LLC, 349 NLRB 939, 939–
940 (2007).
My observation during the trial was that the General Coun-
sel’s witnesses were generally very credible and that they pos-
sessed sincere and truthful demeanors. They also generally
testified in a consistent and straight forward manner that was
worthy of belief. In addition, General Counsel’s witnesses
Clarence Atwater, Sherman Cochran, and Tamika Kelley were
current employees of the Respondent, and on that basis, I pro-
vide their testimonies additional weight as they offered testi-
mony adverse to the interests of their current employer. The
Board has held that where current employees provide testimony
against the interests of their employer, and thus contrary to their
own pecuniary interests, such testimony is entitled to additional
weight when credited. Avenue Care & Rehabilitation Center,
360 NLRB No. 24, slip op. at 1, fn. 2 (2014); PPG Aerospace
Industries, 353 NLRB 223 (2008); Advocate South Suburban
Hospital, 346 NLRB 209, 209 fn. 1 (2006); Flexsteel Indus-
tries, 316 NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir.
1996). In particular, I found Simpson to be a very credible
witness, as he appeared sincere and honest, and his testimony
was convincing and consistent.
On the other hand, I find that, in general, Respondent’s wit-
nesses testified in a less convincing manner. Their testimonies
were at times guarded and appeared insincere. Their testimo-
nies were also unbelievable and implausible at times. In partic-
ular, Dix’s demeanor was guarded, defensive, and appeared less
than forthright. His testimony was also not credible because it
was, at times, implausible. Dix’s testimony that he was not
aware of the employees’ written complaints in the form of the
petitions is not believable or plausible, considering the undis-
puted fact that Fernandez was notified of the petition and pro-
vided a copy of it immediately after it was put in the managers’
mailboxes. (Tr. 596.) In fact, Dix’s testimony was contradicted
by Fernandez, who testified that she was emailed the Calumet
petition by Wiser on July 2, 2015, and he informed her it was in
her mailbox. (Tr. 595–596; GC Exh. 2.) She also testified that
she informed her management team (which presumably would
have included Dix, the Calumet security supervisor) that she
received the Calumet petition and she discussed it with them,
including the fact that the employees were “unhappy.” (Tr.
660–661.) I therefore find it implausible and unbelievable that
Dix did not have knowledge of the employees’ written com-
plaints, as he asserted. Thus, on those occasions where Dix’s
testimony differs from the testimony of the General Counsel’s
witnesses, I fully credit the General Counsel’s witnesses.
With regard to the facts of this complaint allegation, the Re-
spondent argues that the interrogation never occurred because
Dix was not even aware the petition had been given to man-
agement. Specifically, Respondent contends that the “anony-
mous letter” that was discovered by Wiser in his mailbox on
July 2, 2015 (GC Exh. 2.) “was never distributed to the facili-
ties’ supervisors nor was it discussed with them.” (R. Br. p. 39.)
This argument, however, is without merit and is clearly not
supported by the record evidence. As mentioned above, Fer-
nandez testified that she was given the petition by Wiser on
SPECTRUM JUVENILE JUSTICE SERVICES 9
July 2, 2015, and she informed her management team and su-
pervisors that the petition was received, and she discussed the
petition and the fact that the employees were “unhappy,” with
management and supervision. (Tr. 660–661.)
In addition, the Respondent contends that the questioning
never occurred because Simpson was not a credible witness and
his assertions should not be believed. (R. Br. p. 40.) Respond-
ent bases this argument on its contention that Simpson was
“clearly wrong, or lying, when he said that Dix buzzed him into
the administration area when he surreptitiously distributed [the
petition] at approximately 5:30 a.m. on July 2, 2015,” because
Dix testified that he “has never been in [that facility] at that
time of the morning.” (R. Br. p. 40.) This argument is likewise
without merit, as I have found that Dix was not a credible or
believable witness, and I do not credit his assertion that he was
never at the facility at 5:30 a.m. simply because it was before
his shift started. In fact, the record established that Dix was not
even sure which shift he was working that day, because when
he was asked at trial if he knew what shift he was working on
July 2, 2015, he answered: “I can’t recall-off hand.” (Tr. 827.)
Furthermore, even assuming Dix was not at the facility at
5:30 a.m. on July 3, 2015, I find that Simpson’s assertion
amounted to nothing more than a simple mistake as to the time
he entered the facility to put the petition in the mailboxes. The
fact that Simpson may have been mistaken or incorrect about
the time he delivered the petition, it does not mean it never
happened, and it does not require that he be found an incredible
witness. As I have found above, based on my careful examina-
tion of his demeanor, the context of his testimony at trial, and
the inherent probabilities of the allegations, I found Simpson to
be a very credible witness who appeared to provide truthful
testimony about what happened with regard to this case.
Consistent with those credibility determinations, I find that
Dix asked Simpson whether he knew anything about the peti-
tion/letter that was put in the mailboxes of management offi-
cials just several hours earlier, and that he told Simpson that
Respondent wasn’t “going to do shit” about the employees’
concerns in their petition. Finally, on this topic, I find it im-
portant to note that while Dix testified on Respondent’s behalf,
after Simpson specifically asserted that Dix questioned him
about petition, and Dix failed to rebut that assertion. (Tr. 825–
837.)
c. The positions of the parties
The General Counsel alleges that Dix’s questioning of Simp-
son about whether he knew anything about the employees’
protected concerted complaints and demands about working
conditions in the form of the petition/letter, was an unlawful
interrogation of his sympathies to, or engagement in, protected
activities under Section 7 of the Act. The Respondent, on the
other hand, asserts that no violation of the Act occurred because
even if Dix asked Simpson that question, it did not rise to the
level of an “interrogation” because it did not contain any
“threat of reprisal or force or promise of benefit.” (R. Br. p. 40–
42.)
d. Analysis
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce employ-
ees” in the exercise of their rights guaranteed in Section 7 of
the Act. Section 7, the cornerstone of the Act, provides that
“[e]mployees shall have the right to self-organization, 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. . . .” Employees thus have
a statutory right under Section 7 to act together “to improve
terms and conditions of employment or otherwise improve their
lot as employees.” Valley Hospital Medical Center, 351 NLRB
1250, 1252 (2007), enfd. 358 Fed.Appx. 783 (9th Cir. 2009).
The Supreme Court has held that “mutual aid or protection”
concerns “the goal of concerted activity; chiefly, whether the
employee or employees involved are seeking to ‘improve terms
and conditions of employment or otherwise improve their lot as
employees.’” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
The Board defined concerted activity in Meyers Industries
(Meyers I), 268 NLRB 493 (1984), remanded sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S.
948 (1985), as activity “engaged in with or on the authority of
other employees, and not solely by and on behalf of the em-
ployee himself.” The Board clarified that definition of concert-
ed activity in 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), to include cases “where individual employ-
ees seek to initiate or to induce or to prepare for group action,
as well as individual employees bringing truly group com-
plaints to the attention of management.” Id. at 887. I find that
in this case, the employees’ submission of petitions to the Re-
spondent setting forth their complaints, concerns, and demands
with regard to their terms and conditions of employment, clear-
ly constituted concerted activity protected by Section 7 of the
Act.
Despite the fact that the subject matter of the questioning
concerned protected concerted activity, the Board has held that
the interrogation of employees is not unlawful per se. Emery
Worldwide, 309 NLRB 185, 186 (1992). With issues of em-
ployer interrogation of employees concerning their rights and
activities protected by the Act, or their sympathies or support of
such protected rights and activities, the Board determines
“whether under all the circumstances the interrogation [of an
employee] reasonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act.” Scheid Electric, 355 NLRB 160
(2010); Bloomfield Health Care Center, 352 NLRB 252 (2008),
quoting Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984),
enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). In Intertape Polymer Corp., 360 NLRB 957 (2014),
the Board noted that, based upon its decisions in Phillips 66
(Sweeny Refinery), 360 NLRB 124, 128 (2014) and Rossmore
House, supra, it considers the following factors in determining
whether questioning an employee regarding their sympathies
pertaining to protected concerted activity or union activity is
unlawful: (1) whether there is a history of employer hostility to
or discrimination against protected activity; (2) the nature of the
information sought; (3) the identity of the questioner; (4) the
place and method of the interrogation; and (5) the truthfulness
of the employee’s reply.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Applying and balancing these factors, I find it inconceivable
that the questioning of Simpson could be more coercive, as all
of the factors strongly indicate a coercive interrogation. As an
indicator of coerciveness, the evidence establishes Respond-
ent’s hostility toward the protected complaints about employee
working conditions as evidenced by Dix’s statement that the
Respondent would “. . . not talk about shit with [the employ-
ees]” and “they better be at work. . . .” (Tr. 768–785.) The
questioning also occurred at a time when the employees’ pro-
tected activity was in its infancy, as they had just started acting
together to present petitions containing their concerns and de-
mands to the Respondent regarding their conditions of work.
The nature of the information sought reflects the coerciveness
of the interrogation, as it concerned whether Simpson knew
anything about the employees’ petition which attempted to
better their work environment. It is important to note that
Simpson was not yet open about his engagement in protected
activities, as he covertly placed the anonymous petition in the
managers’ mailboxes.
The identity of the questioner also reflects the coerciveness
of the questioning as it came from one of Respondent’s rela-
tively high ranking officials—the Calumet Security Supervisor.
The Board has held that such interrogations from high-ranking
employer officials weigh in favor of finding that the question-
ing was coercive. See Matros Automated Electrical Construc-
tion Corp., 353 NLRB 569, 571 (2008), enfd. 366 Fed.Appx.
184 (2d Cir. 2010). The method and place of the interrogation
is also evidence of its coerciveness, as Simpson had just 2
hours earlier covertly left the petition in the managers’ mail-
boxes, and the questioning took place in Simpson’s workstation
as Dix sought him out and entered the room in pod 3 to ask him
if he knew anything about the complaints about working condi-
tions. Adding to the coerciveness of Dix’s interrogation was
the fact that he informed Simpson that Respondent wasn’t “go-
ing to do shit” about the work concerns articulated in the peti-
tion, thus inferring that to engage in such protected concerted
activity would fall on deaf ears and be fruitless. In addition, the
fact that Simpson denied knowledge of the petition when asked
by Dix, when in fact he was the moving force behind providing
it to the Respondent, serves as further evidence that he was so
coerced and intimidated by the interrogation that he was reluc-
tant to admit his involvement. The Board has found that such
employee attempts to conceal support for protected concerted
or union activities weigh in favor of finding an interrogation
unlawful. Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1182
(2011); See, e.g., Sproule Construction Co., 350 NLRB 774,
774 fn. 2 (2007); Grass Valley Grocery Outlet, 338 NLRB 877,
877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir.
2005). Finally, while Dix testified at trial, he failed to deny that
he questioned Simpson, and he failed to offer any legitimate
explanation for the questioning. The Board has found that a
respondent’s failure to offer or articulate a legitimate explana-
tion for its questioning of employees serves as further evidence
of the coercive nature of the interrogation. Sproule Construc-
tion Co., supra at 774 fn. 2.
Under these circumstances, I find that the question Dix di-
rected to Simpson constituted an unlawful interrogation of his
protected concerted activities, sympathies, and support, in vio-
lation of Section 8(a)(1) of the Act.
6. The Respondent, on July 5, 2015, by Calumet Shift Supervi-
sor Cornelius Burton, unlawfully interrogated an employee
regarding his engagement in protected concerted activities in
violation of Section 8(a)(1) of the Act
a. The facts
Simpson testified that he and other employees, such as
McQueen, discussed the fact that Stewart “balled up” the peti-
tion and threw it away, and that they felt management was not
“taking them seriously,” so they decided to picket or rally to get
management’s attention. (Tr. 123–124, 508–510) In doing so,
many of the employees began calling-off the evening of July 5
for their shifts on July 6, stating that they were unable to work.
(Tr. 357.) Calumet Facility Manager Steven Johnson received
some of the phone calls and spoke with those employees. (Tr.
354–358) During the evening of July 5, Johnson sent emails to
“the director,” the facility managers, and supervisors who were
scheduled to work on July 6 at 6 a.m. (Tr. 358–359) The Re-
spondent’s procedure for calling off work is for the employees
to notify supervision by phone at least 3 hours before the be-
ginning of the shifts, and as long as the employees have ac-
crued leave time, no discipline is warranted. (R. Exh. 14, p. 37.)
At around 10:00 p.m. on July 5, Calumet Shift Supervisor
Cornelius Burton called Simpson at home and asked him if he
was part of the “rally” or picketing. (Tr. 124–125.) When
Simpson denied knowing anything about it, Burton said, “come
on, man, you know this is me; you don’t have to be like that
with me.” (Tr. 124–125.) Simpson testified that Burton also
told him: “It’s getting crazy around here because people keep
calling off left and right.” (Tr. 125.) Simpson then called Cal-
umet Supervisor Steven Johnson around 11 p.m. on July 5 and
told him he would not be coming to work the following day.
Burton was not called to testify at trial, and therefore Simpson’s
testimony on this matter was not disputed.
b. The positions of the parties
The General Counsel alleges that Burton’s questioning of
Simpson about whether he was going to take part in the pro-
tected concerted rally (picket), was an unlawful interrogation of
his sympathies to engage in protected activities under Section 7
of the Act. The Respondent denies that Burton’s inquiry was
unlawful.
c. Analysis
In determining whether the circumstances of the interroga-
tion in this instance reasonably tended to restrain, coerce, or
interfere with Simpson’s rights under the Act, I find that apply-
ing the Intertape Polymer Corp., supra, factors establishes that
the questioning constituted a coercive interrogation that re-
strained and interfered with his protected rights under the Act.
As mentioned above, the evidence of Respondent’s hostility
toward protected complaints from employees about their work-
ing conditions was apparent from Dix’s statement that the Re-
spondent would “. . . not talk about shit” with the employees,
and the questioning occurred when the Respondent became
aware that employees were calling-off work in order to picket
or rally to bring their workplace concerns to the Respondent’s
SPECTRUM JUVENILE JUSTICE SERVICES 11
attention. The nature of the information sought reflects the
coerciveness of the interrogation, as it concerned whether
Simpson was going to engage in protected concerted picketing
activity.
With regard to the “identity of the questioner” factor, Burton
was a shift supervisor to whom Simpson reported, and therefore
the interrogation by him would reasonably be coercive. The
method of the interrogation is also evidence of its coerciveness,
as Burton’s questioning of Simpson was clearly to solicit in-
formation from him concerning his involvement in the protect-
ed concerted activity. I note that if Burton was simply seeking
to determine whether Simpson was going to be off work the
next day, he could have just asked him that. Instead, he asked
Simpson about his involvement in the protected concerted ac-
tivity, which was clearly coercive. The Board has found such
questioning coercive when it is used to elicit whether employ-
ees supported union or protected concerted activities. See, e.g.,
Clinton Electronics Corp., 332 NLRB 479, 480 (2000). In
addition, the fact that Simpson denied that he was going to be
part of the picketing and tried to conceal his involvement, when
in fact he was one of the employees who was an organizer of
such protected activity, serves as further evidence that he was
so intimidated by the interrogation that he was afraid to admit
his involvement. See Camaco Lorain Manufacturing Plant,
supra; Sproule Construction Co., supra; Grass Valley Grocery
Outlet, supra. Finally, I note that the Respondent never offered
a legitimate explanation for the questioning, which serves as
further evidence of its coerciveness. Sproule Construction Co.,
supra at 774 fn. 2.
In asserting that Burton’s questioning did not rise to the level
of an unlawful interrogation, Respondent cites Toma Metals,
Inc., 342 NLRB 787, 788–789 (2004), in support. I find that
case, however, is distinguishable from the facts of the instant
case. In Toma Metals, the employer’s manager, Hajko, asked
employee Antal: “[W]hat’s up with the rumor of the union I’m
hearing?” The Board, contrary to the judge, found the ques-
tioning was not coercive. In that case, however, Hajko testified
that he approached Antal because Antal was his wife’s first
cousin, and they had friendly relations and engaged in daily
conversations. Id. at 789. In the instant case, there is no evi-
dence that Simpson and Burton shared such familiar or friendly
relations, or that they engaged in daily conversations. In Toma
Metals, Antal did not hesitate to answer truthfully and did most
of the talking during their conversation, whereas, in the instant
case, Simpson did not answer truthfully and was reluctant to
reveal his involvement in the protected conduct. Id. Further-
more, Hajko’s questioning was broad and general and not fo-
cused on specific employees or specific protected activity,
while in the instant case, the questioning was specifically
whether Simpson was part of the protected concerted picketing
activity, and it specifically focused on his involvement. Final-
ly, in that case the Board found the question itself told Antal
that Hajko was attempting to verify what other sources had told
him, and Hajko was not trying to ascertain Antal’s views. Id.
In the instant case, however, Burton was specifically inquiring
not only of Simpson’s view, but whether he was going to be a
part of, and participate in, the protected concerted activity,
which was coercive. Thus, I find that Toma Metals is distin-
guishable from the instant case and the Respondent’s reliance
on it is misplaced.
Accordingly, I find that Burton’s questioning of Simpson
constituted an unlawful interrogation of his sympathies for, and
support of, the protected concerted activity, in violation of Sec-
tion 8(a)(1) of the Act.
7. On July 6 and 7, 2015, the employees engaged in picketing
at the Respondent’s facility
On July 6, 2015, up to approximately 40 employees picketed
the Respondent’s facility by the parking lot area on Glendale
Street, between Hamilton and Lincoln Streets. (Tr. 80–81) The
picketing lasted from approximately 8:30 a.m. to 2 p.m. on July
6 and for only a few hours starting at 8:30 a.m. on July 7. (Tr.
80–84) Many of the employees (approximately 31) who en-
gaged in picketing on July 6, 2015, called off of work that day
within the required time before the start of their shifts. (Tr. 84.)
Simpson testified that he arrived early, around 5:15 a.m. and sat
in his car on Glendale Street until the picketing began. Initial-
ly, around 7 to 10 employees were present at the picketing, but
by around noon there were approximately 40 picketers. At
around 1:45 p.m. the number of picketers started to decrease,
and the picketing then ended around 2 p.m. (Tr. 128–129) The
record reveals that employees carried signs that were poster
size (approximately 2 x 3 feet in size) and as they walked
around, some chanting the phrases or wording found on their
signs. (Tr. 129–130, 475—479; GC Exh. 4.) Those picket signs
were made by Tamika Kelley and included, but were not lim-
ited to, phrases such as “equal opportunities, equal pay, equal
respect;” “human resources working against us and not for
employees;” “youth workers underpaid, overworked . . . save
the kids;” and “verbal, physical, psychological, emotional
abuse.” (Tr. 256–257; GC Exh. 4.)
Several employees testified that while picketing they saw
management personnel within plain view as they were coming
into the facility for work. Simpson testified that while picket-
ing he saw several management personnel as they came into
work, such as Fernandez, Cornelius Burton, Donald Farrell,
Damien Dix, Leroy Sherrod, and Childs. (Tr. 132–133) Kelley
also testified that during the picketing, she saw Childs, John-
son, Cottingham, Dix, and Farrell drive by the picketers. (Tr.
257–258.) Employee Ruth Crosby testified that she saw man-
agers drive by the picketers slowly (Tr. 479–482), and Neely
testified that during the picketing he saw Fernandez, Stewart,
Burton, Cottingham, and Dix, who were arriving at work,
“watching the picketing.” (Tr. 327–328.) In addition, Calumet
Youth Worker Raphael McQueen testified that while picketing,
Supervisor Cottingham drove past them in his car and looked
over at the picketers and smiled. (Tr. 518–519.)
On July 6, 2015, at 6 a.m., Calumet Facility Manager Chris-
topher Wilson called Executive Director Fernandez to notify
her that a large number of employees had called off from re-
porting to work that morning. (Tr. 598–599, 661–686) Fernan-
dez then called the Lincoln facility and confirmed that 31 em-
ployees had called off from work. (Tr. 599.) In response, Fer-
nandez, who lives approximately 1 hour from the Respondent’s
facilities, immediately dressed in her Spectrum polo-type shirt
that the workers usually wore (because she knew she would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
have to perform the work of the youth workers) and she drove
into work. (Tr. 599–601.) Fernandez testified that she left her
residence between 7:15 and 7:30 a.m. in order to quickly reach
the facilities so that she could immediately address what she
described as a “staffing crisis,” and which she considered to
constitute an atypical operational occurrence. (Tr. 600–607,
661, 663.) Fernandez testified that she arrived at the facility
around 8:30 a.m., entering on Glendale Street, but she did not
see any employees engaged in picketing. (Tr. 601) Fernandez
then set up a “command center” at the Calumet center in Kir-
pheous Stewart’s office, and she started to notify the govern-
mental “regulatory bodies.” (Tr. 601–602) Stewart arrived at
the facility around 9 a.m. and he called Facility Manager John-
son to the office where Johnson provided him a list of the staff
working in the building. (Tr. 605.) At that time, Johnson had
supervisors working in the pods, while Fernandez dealt with the
business of running the organization short staffed. (Tr. 607.)
Facility Manager Steven Johnson testified that he worked the
midnight shift on July 5, 2015, so he started work at 10 p.m. on
July 5. According to Johnson, there were a lot of call-offs that
night. He was successful in getting some people to come in,
but there were not enough to cover the entire shift. (Tr. 358.)
Johnson informed the morning facility managers and supervi-
sors of the situation when they came in at 6 a.m. on July 6. (Tr.
358.) He met with Calumet Facility Managers Christopher
Wilson and Leroy Sherrod and told them there were a lot of
call-offs and he was not able to fill all the shifts. (Tr. 360.)
Johnson worked on getting the building staffed, and met again
at 8 a.m. in the intake area with Manager Wilson, Manager
Sherrod, and Supervisor Carter and he told Carter who the em-
ployees were that called off. Carter said that he saw those em-
ployees’ cars outside and he was going to find out why they
called off work. (Tr. 363-364) Johnson testified that Sherrod
then stated: “it don’t matter about who called off; they’re all
going to get fired anyway.” (Tr. 364) Sherrod also stated that
he talked to Director Kirpheous Stewart and they were all going
to be fired anyway. When Johnson asked how the Respondent
was going to fire that many people because a lot of them had
called- off, Sherrod simply repeated that it did not matter and
they were going to be fired. (Tr. 365–367) Johnson testified
that he stayed and worked the day shift because they were
shortstaffed and he passed out medications and helped out. (Tr.
367.)11
Fernandez testified that she did not leave work that day until
about 10 p.m. (Tr. 601–608). Security Supervisor Hionel Black
testified that when he came in for his shift at 11 p.m. on July 6,

11 Johnson then met with Director Stewart and Fernandez and they
talked about call-offs and who Johnson had staffed throughout the
building. (Tr. 370.) Johnson, who was wearing a red work shirt, testi-
fied that Fernandez commented to him about the “nice shirt [he] had
on.” (Tr. 370–371.) Johnson testified that from 10:20 to 10:30 a.m. on
July 6 he made more calls to get staff to come in to work. At that time,
Manager Wilson told him that “anybody that had on the red work shirts
had something to do with [the picketing],” and that many of the picket-
ers had on red shirts like he did. (Tr. 373–374.) Johnson finally fin-
ished his shift at 2:30 p.m. and left the facility. Johnson’s last day of
work was two days later, July 8, 2015, when the Respondent discharged
him. (Tr. 355)
2015, Lincoln Shift Supervisor Clifford Judkins told him the
employees were protesting and it was a “pretty hectic day.” (Tr.
433.)
8. The Respondent, on July 6, 2015, by Executive Director
Melissa Fernandez, engaged in unlawfully surveillance of em-
ployees’ protected concerted activities, and on July 9, 2015, by
Calumet Security Supervisor Damon Dix, the Respondent cre-
ated the impression that employees’ protected activities were
under surveillance and coercively informed an employee that
he could be disciplined for engaging in protected activities,
each in violation of Section 8(a)(1) of the Act
a. The facts
Respondent Security Supervisor Hionel Black, whose em-
ployment with the company ended in November 2016, testified
that he was responsible for the operation controls on the perim-
eter and interior of the facilities. (Tr. 412) He reported to Secu-
rity Manager Keith Leslie, who reported to Director of Opera-
tions Douglas Burke, who in turn reported to Executive Direc-
tor Melissa Fernandez. (Tr. 414–415.) The Operations Control
Center in the Calumet facility is where the facilities are moni-
tored. It is usually manned by two to three security officers.
One security officer is usually at the control board which con-
tains monitors with views of the building and its perimeter. (Tr.
543–547) The monitors show the views from surveillance
cameras stationed throughout the buildings and on the exterior
of the buildings. (Tr. 413–414). Those cameras are able to
scan, zoom in, and have detailed views of the inside and outside
areas of the buildings. (Tr. 414.)
Neely testified that during the picketing, Fernandez and
some of the supervisors came out of the building for about 10
minutes, approximately 40–50 feet away from him, where they
were watching the picketers. (Tr. 327–329.) He testified that
Fernandez was watching the picketers and she was writing
something on a yellow pad of paper. In response, some of the
employees tried to hide their faces. (Tr. 327–329.) After the
picketing, Neely was called and told to report to work on July
9. When Neely was at work that day, Calumet Security Super-
visor Damon Dix told him that he was with Fernandez in the
security office during the picketing, and the cameras were
“zoomed in” on them, and Fernandez was writing the names of
the people down. (Tr. 331–332.) Dix further informed him that
Fernandez had written his (Neely’s) name down and he was on
“the list.” In that regard, Dix told Neely that “you need to
watch your back, man.” (Tr. 331–332.)
Neely’s testimony on this subject was contradicted by Dix
and Fernandez. Dix specifically denied that he told Neely that
Fernandez was in the Operation Control Center room zooming
in with the cameras on the picketers, or that Fernandez had his
[Neely’s] name on a list of the employee who picketed. (Tr.
829–830.) Fernandez testified that she did not see any employ-
ees picketing, despite the fact that several employees credibly
testified that they were picketing on the street around the time
Fernandez arrived at work and they saw her, and despite the
fact that Neely saw her come out of the building and watch the
employees picketing. (Tr. 690.) She testified that even though
she had access to the Operations Control Center in the Calumet
facility, and she was aware of the capabilities of the cameras
SPECTRUM JUVENILE JUSTICE SERVICES 13
and what they could see outside the building, she was never in
the Control Center on July 6. (Tr. 683.) She also testified that
she was not even aware that employees were picketing on July
6 and had “no idea why people had called off.” (Tr. 703–704.)
In addition, Fernandez denied that she prepared, or asked any-
one else to prepare, a list of employees who participated in the
concerted picketing activity. (Tr. 608.)
b. The credibility determinations
These differences in testimony warrant a determination of
the credibility of these witnesses. My observation during the
trial was that Neely testified in a truthful and consistent man-
ner, and that he was a very credible witness. On the other hand,
as mentioned above, I found Dix’s demeanor less than forth-
right, his testimony was at times implausible, and he was not a
credible witness. In addition to the reasons discussed above in
which I found Dix was not a credible witness, I note that Dix’s
implausible testimony regarding the supervisors and managers
discussions or interest in the employees’ picketing constituted
further evidence that he was not a credible witness. When
asked on cross-examination whether the managers and supervi-
sors had any reaction to or discussion about the employee’s
picketing activity, he testified there was neither interest in, or
discussions or meetings about, such activity. (Tr. 831–833.) I
find that testimony is not believable and it strains credulity to
believe that employees picketing in front of the facility, which
Dix admitted was an “unusual occurrence,” (Tr. 832.) would
not have generated interest by the managers and supervisors,
and also discussions or meetings about such activity by the
employees. I find that would be especially true for the manag-
ers and supervisors of the Security Department, of which Dix
was an official.
I also find that where Fernandez’ testimony differed from the
testimonies of the General Counsel’s witnesses, her testimony
was not to be credited. She did not testify in a truthful manner
and her testimony at times appeared insincere and evasive. In
addition, she presented testimony that was implausible and
simply not believable. With regard to the employees’ picketing
on July 6, she acknowledged that she was facing a “staffing
crisis,” and left for work as soon as she could that morning after
being notified that many employees had called off, and she
even donned her “youth worker” gear because she knew she
would have to perform youth worker duties that day. (Tr. 598–
602.) Yet, she presented a nonchalant attitude while testifying
about the picketing, even conveying an odd air of indifference
or lack of concern when questioned about the picketing activi-
ty. I found such testimony lacking in credibility, as it is simply
implausible that the executive director of the facility would
convey such little regard or concern for so many employees
calling-off work and causing a crisis situation warranting re-
porting to the State agencies, especially when those employees
were right outside the building.
In addition, despite Fernandez’ testimony that she was facing
a “staffing crisis” which she considered an “all hands on deck”
situation, she incredibly testified that she had no knowledge of
whether supervisory personnel who were not scheduled to be
on duty that day, had come in to help out. (Tr. 663.) Further-
more, when she was asked on cross-examination whether it was
a “pretty hectic situation,” she simply asserted that it was unu-
sual, which appeared to be an understatement and further evi-
dence of her reluctance to testify truthfully.
I found equally incredible Fernandez’ testimony that she was
unaware of the picketing occurring on July 6. Even though she
admitted arriving at work during the time the employees were
engaged in picketing, she claimed to have not seen the picket-
ing because she allegedly entered the property by driving in on
an access road, and she did not drive in front of where the em-
ployees had their cars parked and were picketing. (Tr. 690.)
However, even assuming that were true, on the morning of July
6 while she was at the facility dealing with the staffing crisis,
attempting to find replacement workers, and contacting the
state authorities, many of the employees who called off work
that day had parked their cars outside the building on the street
or on the property in plain view of the Calumet facility where
Fernandez was located, and they were standing with picket
signs and chanting saying about their working conditions near
the Calumet facility. Yet, incredibly, Fernandez testified that
she had no knowledge of the employees picketing just outside
the building. (Tr. 703–704.) In fact, her testimony when ques-
tioned by counsel for the General Counsel on cross-
examination was as follows:
Q. And on July 6 you became aware of picketing that was
occurring at the facility, correct?
A. Well, I wasn’t aware that there was picketing . . . hap-
pening on July 6.
Q. On July 6 you were not aware of any picketing that was
occurring—
A. I wasn’t.
Q. —at the facility?
A. I was not aware of what was happening at that time. My
focus on the 6th was contacting licensing bodies and staffing
the building. There were a lot of call-offs, no idea why people
had called off. (Tr. 703–704.)
Evidence of Fernandez’ incredible testimony with regard to
management’s alleged lack of knowledge of the employees’
picketing activity could also be found in her testimony on the
subject of the suspensions issued to youth workers Sherman
Cochran, Tamika Kelley, and Delaine Singleton-Green, which
is discussed more fully below. Despite Fernandez’ testimony
that she did not know how those issued suspensions “came
about” (Tr. 620–621), she acknowledged that the Respondent
admitted in a Statement of Position submitted during the inves-
tigation of this case, that the three employees were suspended
because the Respondent believed they called-off sick when in
fact they were picketing. (Tr. 665–667.) Considering Fernan-
dez’ denial of knowledge, counsel for the General Counsel
asked her how then did the Respondent know those three em-
ployees were picketing? In response, Fernandez answered: “I
can’t answer that.” (Tr. 692–693.) Thus, I find Fernandez’s
testimony that she did not know the employees were picketing
on that day, when she was inside Calumet dealing with the
crisis, was not plausible or credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Thus, in instances such as these, where the testimonies of
Dix and Fernandez differ from that of the General Counsel’s
witnesses, I fully credit the testimony of the General Counsel’s
witnesses, such as Neely. In making these determinations re-
garding credibility, the Respondent argues that Neely should
not be believed because he was the only General Counsel wit-
ness to testify that he saw Fernandez outside watching the pick-
ing and appearing to write on a pad of paper. As mentioned
above, I found Neely to be a truthful and solid witness who
appeared honest and forthright. The fact that he was the only
witness to testify about Fernandez’ surveillance does not mean
he was untruthful. To the contrary, Neely’s testimony regard-
ing statements that the Respondent was conducting surveillance
of the picketing activity, was corroborated by the credible tes-
timony of Former Manager Steven Johnson, who also testified
that the employees’ picketing activity was being watched by the
Respondent. According to Johnson, Director Kirpheous Stew-
art called him to the administration office around 10 a.m. that
day, and on the way there he cut through the security office.
(Tr. 368.) While Johnson was in the security office he noticed
on one of the security monitors that the security personnel had a
camera directed on the staff employees who were picketing,
holding picket signs, and walking back and forth. (Tr. 368–
370.) Thus, I find implausible, and I specifically discredit,
Fernandez’ testimony that on July 6 she did not leave the build-
ing to watch the employees picketing, and that she was not in
the Operational Control Center watching the picketing on the
surveillance monitors to determine the identity of those em-
ployees engaged in the protected concerted activity.
I note that Former Security Supervisor Hionel Black credibly
testified that on July 6, the day of the picketing, his night shift
ended around 7:30 a.m., but shortly before that, at 7 a.m., he
saw the picketers’ cars parked on the street on the camera
monitors in the Operations Control Center. (Tr. 432.) I found
that Black appeared to be an honest witness with a calm and
convincing demeanor, and I credit most of his testimony at
trial. However, there is one portion of his testimony that I do
not credit or provide any weight. With regard to Respondent’s
surveillance of the picketing activity, Black testified that later
that day, when he was at his other job at Methodist Childrens,
he called into the Operational Control Center and spoke to Su-
pervisor Donald Farrell to see if any of his staff called off.
According to Black, Farrell told him that Fernandez was in the
control room watching the picketers with Kirpheous Stewart.
(Tr. 431.) That testimony, however, was contradicted by Re-
spondent’s security logs and pay records for that day, which do
not support that Farrell was working at the facility at that time.
(Tr. 810.) I find that specific testimony was inaccurate and not
supported by the record, and I therefore do not credit it, or rely
on it in reaching any determinations in this case.
The Respondent argues that all of Black’s testimony should
be disregarded because his assertion about Farrell was not sup-
ported by the record, he was admittedly unhappy about being
discharged by the Respondent, and the only reason he gave an
affidavit against the Respondent was because he had been dis-
charged. (R. Br. p. 37.) However, I find no merit in that argu-
ment. I examined Black’s demeanor very carefully at trial and
I was convinced that he testified in a very truthful and convinc-
ing manner. Other than the one unsupported statement about
Farrell, I found his testimony convincing and credible. Even
though he may have been unhappy about being discharged by
the Respondent, which would be understandable, I did not find
that his testimony was offered in retaliation or retribution for
his discharge. In that connection, on re-direct examination
Black testified that the reason he provided an affidavit to the
Government was actually to support of his own unfair labor
practice charge that he filed with the NLRB over his discharge.
(Tr. 452.) Despite the fact that he honestly admitted that he
was not happy about being fired, he did not testify in a vindic-
tive manner, but instead in a clear, unbiased, and straightfor-
ward manner that was worthy of belief. As mentioned above,
credibility findings do not have to be all or nothing proposi-
tions, and it is not unusual for a judge to believe some of the
testimony of a witness, but not other parts. Daikichi Sushi, su-
pra at 622; Jerry Ryce Builders, supra at 1262 fn. 2 (2008),
citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). Ac-
cord: General Fabrications Corp., 328 NLRB 1114 fn. 1
(1999), enfd. 222 F.3d 218 (6th Cir. 2000). See also J. Shaw
Associates, LLC, 349 NLRB 939, 939–940 (2007). Thus, in all
other respects, I credit Black’s testimony in this case.
c. The positions of the parties
The General Counsel alleges that Fernandez conducted sur-
veillance of the picketing activity, and Dix informed Neely that
Respondent was conducting surveillance and coercively con-
veyed or threatened that Neely could be disciplined for such
activity, in violation of Section 8(a)(1) of the Act. The Re-
spondent denies that Fernandez engaged in the surveillance of
protected activities, or that Dix made such statements about
watching the picketers and Neely watching his back, and there-
fore no violations of the Act occurred.
d. Analysis
With regard to surveillance, it is well established that man-
agement officials may observe open and public union or pro-
tected activity on or near the employer’s premises, without
violating Section 8(a)(1) of the Act, unless such officials en-
gage in behavior that is “out of the ordinary.” PartyLite World-
wide, Inc., 344 NLRB 1342 (2005); Arrow Automotive Indus-
tries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir.
1982). In this case, even though the employees picketed in the
open on the Respondent’s property and in view of the public,
Fernandez and some of the supervisors stood outside the build-
ing and watched the picketers, and Fernandez was writing on a
pad of paper while watching the picketers. While it may have
been permissible for the Respondent to watch what was going
on outside its facility to maintain the security of its property, it
was “out of the ordinary” for Fernandez to stand outside the
building and appear to write on a pad of paper while watching
the picketers. I find such conduct coercive and clearly consti-
tutes unlawful surveillance of the employees’ protected con-
certed activities in violation of Section 8(a)(1) of the Act.
I also find that Dix, through his statements to Neely, violated
Section 8(a)(1) of the Act by creating the impression that the
employees’ protected concerted picketing activities were under
SPECTRUM JUVENILE JUSTICE SERVICES 15
surveillance. In determining whether a statement or question
created an unlawful impression of surveillance, the Board con-
siders “whether, under all the relevant circumstances, reasona-
ble employees would assume from the statement in question
that their union or other protected activities had been placed
under surveillance.” Camaco Lorain Mfg. Plant, 356 NLRB
1182, 1183 (2011); Frontier Telephone of Rochester, Inc., 344
NLRB 1270, 1276 (2005), enfd. mem. 181 Fed. Appx. 85 (2d
Cir. 2006) (citing Flexsteel Industries, 311 NLRB 257 (1993)).
In this case, Dix told Neely that during the picketing Fernandez
was not only in the security office “zooming in” on and watch-
ing the picketers, she was writing down their names. Im-
portantly, Dix further informed Neely that Fernandez had writ-
ten his (Neely’s) name down and he was on “the list,” and that
Neely needed to “watch [his] back.” I find that Dix’s statement
would definitely cause reasonable employees to assume their
protected activities had been placed under surveillance. In fact,
I find that Dix’s statements would leave little, if any doubt, that
the employees’ protected activities had been placed under sur-
veillance and in violation of the Act.
Furthermore, I find that Dix’s statement to Neely that he was
on the “list,” and needed to “watch [his] back,” constituted an
unlawful threat of discipline or a coercive statement informing
him that he would be subject to discipline for engaging in pro-
tected concerted activity, in violation of Section 8(a)(1) of the
Act. As mentioned above, an employer violates Section 8(a)(1)
by statements that are coercive and which have a reasonable
tendency to interfere with employees’ rights under the Act.
Dix’s statement to Neely that he had been identified as some-
one engaging in the protected activity, and that he should
“watch [his] back,” would reasonably cause him to believe he
would then be subject to discipline, and that would certainly
tend to interfere with his free exercise of protected rights in
violation of Section 8(a)(1) of the Act.
9. The Respondent, on July 7 and 10, 2015, by Calumet Facili-
ty Manager Leroy Sherrod, unlawfully threatened employees
with discipline for engaging in protected concerted activities in
violation of Section 8(a)(1) of the Act
a. The facts
Neely also testified that on the following day, July 7, 2015,
in a conversation with Calumet Facility Manager Leroy Sher-
rod, who came into pod 6 where Neely was working, Sherrod
said, “you all was on that list,” and “you’re all hit.” (Tr. 334.)
Neely testified that being “hit” was slang for “you all [are] in
trouble.” (Tr. 334.) Similarly, Calumet youth worker Jamar
Marcus testified that he participated in the picketing and when
he returned to work, he had a conversation with Sherrod who
told him the employees “messed up,” and they were going to
get fired. (Tr. 390–391.) Sherrod also told him that “he was hit,
like we’re on the hit list.” (Tr. 391.) In addition, Sherrod said
“you all are stupid, like you all are hit, like they’re going to get
rid of you all.” (Tr. 392.) Sherrod did not testify to rebut the
testimonies of Neely and Marcus.
Facility Manager Steven Johnson also offered testimony
consistent with Neely’s and Marcus’ assertions that Respondent
indicated employees would be disciplined or discharged for
engaging in the picketing activities. As mentioned above, on
the morning of July 6, 2015, Johnson worked on getting the
building staffed, and met again at 8 a.m. in the intake area with
Manager Wilson, Manager Sherrod, and Supervisor Carter and
he told Carter who the employees were that called off. When
Carter indicated he was going to find out why they called off
work, Sherrod stated: “it don’t matter about who called off;
they’re all going to get fired anyway.” (Tr. 364) Sherrod also
reported that he spoke to Kirpheous Stewart and they were all
going to be fired anyway. (Tr. 365–367.)
Kirpheous Stewart denied that he told Johnson that anyone
who picketed would be discharged. (Tr. 775.) However, John-
son never testified that Stewart made the statement to him. He
testified that Sherrod conveyed to him that Stewart said the
picketers were all going to be fired, an assertion that was not
contradicted or disputed by Sherrod. In addition, Stewart failed
to deny making such a statement to Sherrod. However, to the
extent that Stewart denied such a statement attributed to him, I
credit Johnson’s testimony and I discredit Stewart’s, specifical-
ly determining that Stewart was not a credible witness and that
his testimony, in particular his denial in this regard, is not wor-
thy of belief.
b. The positions of the parties
The General Counsel contends Sherrod’s statements to Neely
and Marcus violated Section 8(a)(1) of the Act. The Respond-
ent denies that the statements were made, or that the statements
violated the Act.
c. Analysis
The Board has held that employers’ threats of discipline or
job loss for participation in protected concerted activities con-
stitute violations of Section 8(a)(1) of the Act. Baddour, Inc.,
303 NLRB 275 (1991). In this case, Sherrod’s statement to
Neely that he was “on that list,” and they were “all hit” (in
trouble) was a coercive statement indicating that the Respond-
ent identified him as being one of the people engaged in picket-
ing, and that his participation in that activity meant he would be
subject to discipline or discharge. Sherrod’s statement there-
fore constituted a threat of discipline or discharge for engaging
in protected, concerted activities in violation of Section 8(a)(1)
of the Act.
Similarly, Sherrod’s statement to Marcus constituted a viola-
tion of Section 8(a)(1) of the Act. After Marcus participated in
picketing and returned to work, Sherrod who told him the em-
ployees “messed up,” and they were going to get fired. Sherrod
also told him that he “was hit,” and “on the hit list,” and the
employees who picketed were “stupid,” and the Respondent
was “going to get rid of [them].” These statements were equal-
ly coercive and interfered with Marcus’ rights under the Act,
constituting a threat of discharge for engaging in protected
concerted activities in violation of Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
10. On July 9, 2015, the Respondent, by Calumet Security
Supervisor Damon Dix, coercively informed employees that
Respondent’s management was upset about the picketing and
threatened employees could be disciplined for such activity, in
violation of Section 8(a)(1) of the Act
a. The facts
Simpson testified that he was not scheduled to work on July
7 and 8, 2015, but when he returned to work on July 9, Super-
visor Dix came to pod 3 where he was working at around 8 a.m.
and informed him that “upper management” was “pissed about
the rally.” (Tr. 139.) Specifically, Dix told Simpson that Fer-
nandez was in the control room when the employees were pick-
eting and she was zooming in with the surveillance cameras on
the picketers, “taking names down,” and she was “pissed.” (Tr.
140.) According to Simpson, Dix told him that Fernandez had
a “hit list for everyone who was outside,” she had their names,
and they better “be careful because she was gunning for who-
ever was at the Rally.” (Tr. 140.)
b. The positions of the parties
The General Counsel asserts that Dix’s comments threatened
discipline or discharge to employees in violation of Section
8(a)(1) of the Act. The Respondent claims no violation of the
Act occurred.
c. Analysis
I find that Dix’s statement to Simpson that Fernandez and
upper management were upset about the employees’ engage-
ment in protected concerted picketing activity, and that Fernan-
dez recorded their names and “hit list” and was “gunning” for
them, clearly inferred that they could be disciplined or dis-
charged for engaging in those activities. Those statements had
a reasonable tendency to interfere with employees’ rights under
the Act. Accordingly, I find that Dix’s statements to Simpson
in this regard constituted threats to employees that they would
be disciplined or discharged for engaging in protected concert-
ed activities, in violation of Section 8(a)(1) of the Act.
11. On July 9, 2015, during Respondent’s management meet-
ing in which the employees’ protected concerted activities were
discussed, Fernandez directed the security officers to write
down the names of the picketers so she would know the identity
of employees who engaged in that protected activity
Security Supervisor Hionel Black testified that in Ju-
ly/August 2015, shortly after the picketing activity, the Re-
spondent’s weekly manager meetings for supervisors and man-
agers, that were held every Thursday for about an hour, began
to feature the employees’ protected, concerted activities such as
the picketing as a topic (and after that the Union as a topic).
(Tr. 417–418) Those meetings, referred to as “Supervisor
Meetings,” were attended by Director of Operations Burke,
Security Manager Leslie, all security supervisors, and on occa-
sion, Executive Director Fernandez. (Tr. 418.) The purpose of
the meetings was to provide updates on what was going on at
the facility. (Tr. 419.)
Black testified that Fernandez attended her first such meeting
on July 9, 2015, the Thursday following the picketing activity,
and some of the Respondent’s other managers, supervisors, and
directors also attended, including Lincoln Center Director Oli-
ver Cooper, Calumet Facility Manager Kirpheous Stewart,
Lincoln Facility Manager James Crawford, Calumet Facility
Manager Leroy Sherrod, Calumet Facility Manager Christopher
Wilson, Lincoln Shift Supervisor Kerwin Johnson, Manager
Childs, and Supervisor Donald Farrell. (Tr. 421–422, 424–425,
435–436.) The employees’ picketing was a “hot topic” and
there was discussion about how the call-offs were conducted
and how the facility ran during the staffing shortage. (Tr. 422.)
Black testified that the security personnel captured employees’
engagement in picketing activities on the company surveillance
cameras, and that a concern raised by Fernandez during that
meeting was that she had to get names of everyone who was
engaged in the picketing. (Tr. 423, 428, 436–437.) She wanted
to know the identity of employees who engaged in that activity,
and the security officers who were out there now had to write
the names of the picketers on a paper. (Tr. 423.) Black was
concerned because some of his security officers were out there
picketing, and he did not want to disclose their identities to
Fernandez. (Tr. 424.)
Black also testified that in a subsequent supervisor meeting
the supervisors were told they “had to be meticulous” about
time and attendance, and there was to be “no leeway,” so if
someone breaks a policy, the supervisors are to discipline them.
(Tr. 427–428.)
12. In August 2015, the employees engaged in union activities
by seeking to have the AFSCME union elected as their collec-
tive-bargaining representative
Simpson testified that after the picketing the employees con-
tacted the AFSCME Union and there was a union organizing
drive which he was involved in and where he solicited union
authorization cards. (Tr. 144–145.) Youth Worker Clarence
Atwater contacted the organizer for the AFSCME union, and
shortly after the picketing activity on July 6, 2015, he notified
the organizer of the employees’ concerns with regard to their
terms and conditions of employment. (Tr. 85.) Tamika Kelley
was also involved in the union organizing drive by talking to
employees about the union, soliciting union authorization cards,
and meeting with the union organizer to discuss organizing the
employees. (Tr. 266, 270.)
A few days after passing out ASFCME authorization cards,
Simpson noticed antiunion pamphlets and literature posted on
the bulletin board in the men’s locker room at work. (Tr. 146.)
Such material concerned articles or postings on the advantages
of being union-free, collective-bargaining risks, negotiation
facts, facts about strikes, questions to ask AFSCME, and some
things to think about regarding unionization as risky business.
(GC Exh. 3.) Kelley also noticed anti-union materials posted in
the women’s locker room, control room, and on a bulletin
board at the facility. (Tr. 266, 305–306.) Security Supervisor
Black testified that in July/August 2015, after the picketing
activity, the weekly Thursday “Supervisor Meetings” held for
supervisors and managers, began to feature the union as a topic.
(Tr. 417–418.) He stated that the purpose of those meetings
was to provide updates on what was going on at the facility,
which then included “union stuff.” (Tr. 419.)
The Respondent contracted with a company to counter the
SPECTRUM JUVENILE JUSTICE SERVICES 17
union organizing campaign. (Tr. 800-802) The vice president
of human resources, Donald Fields, testified that he would have
been involved in bringing in an anti-union campaign, and he
attended the meetings held at the Lincoln facility that con-
cerned bringing in a company for that purpose. (Tr. 812) Ac-
cording to Fields, the meeting was also attended by President
and CEO Roger Swaniger, Human Resources Administrator
James Wiser, Executive Director Fernandez, Lincoln Center
Director Oliver Cooper, and Facility Manager Kirpheous Stew-
art. Despite the fact that Fernandez attended that meeting, she
seemed unsure as to what that company was contracted to do,
or whether the Respondent even contracted with such a compa-
ny to deal with responding to the union organizing campaign.
In that regard, when Fernandez was asked at trial if the Re-
spondent conducted a union-avoidance campaign, she an-
swered: “I wouldn’t call it that.” (Tr. 693-694). In addition,
when she was asked if the Respondent even contracted with a
company to talk to employees about the union, she answered, “I
believe so.” (Tr. 694) In any event, Fernandez testified that she
had not seen any of the anti-union flyers mentioned above
which were posted at the facilities. (Tr. 694-695)
On August 7, 2015, AFSCME filed a representation petition
in Case 07–RC–157539 seeking to represent the Respondent’s
employees. (Tr. 86; GC Exh. 32.) AFSCME sought to repre-
sent a unit of “Youth Specialists, Cooking Staff, Maintenance,
Laundry, Security Transport, Custodian.” (GC Exh. 32.) Sub-
sequently, an AFSCME organizer informed Atwater that the
AFSCME union would not be able to represent Respondent’s
employees because the youth workers were considered to be
security officers. (Tr. 85.)
13. In August/September 2015, in one of Respondent’s weekly
employee meetings, Lincoln Facility Manager James Crawford
unlawfully interrogated employees regarding their protected
concerted and union activities in violation of Section 8(a)(1) of
the Act
a. The facts
The record establishes that the Respondent also held weekly
meetings with employees to address issues or concerns. Kelley
testified that in August 2015, in one of the Respondent’s week-
ly meetings, Lincoln Facility Manager James Crawford ad-
dressed the employees. (Tr. 267–268.) In speaking about issues
in the pods, Crawford brought up the Union. Kelley testified
that he asked if the employees were going to try to organize the
Union, and he asked if they were going to try to “rally.” (Tr.
269.) According to Kelley, he asked why they were going to
organize the union and he stated that it was not good for the
employees because the union takes their wages and their jobs
were not guaranteed if they joined the union. Kelley testified
that, at that time, employee Lisa Crawford (apparently no rela-
tion to James Crawford) responded that the employees were
“damned if they do and damned if they don’t,” and that the
employees exhausted their options with management so why
not try the union. (Tr. 270.) Kelley testified that in that meet-
ing, Manager Crawford also asked her if she was going to join
the union, and she told him that she “was not comfortable”
speaking with him about it because it could be held against her.
(Tr. 270, 306.)
Employee Ruth Crosby testified that on every Saturday the
Respondent’s managers and supervisors had employee meet-
ings in the multi-purpose room at the Lincoln facility. (Tr. 488.)
On the Saturday of the week of July 6, 2015, in one such meet-
ing, Manager Crawford and Lincoln Shift Supervisor Michael
Caston were present and addressed the employees. (Tr. 487–
488.) Crosby testified that, in that meeting, Crawford asked the
employees how they felt about a union coming into the facility.
(Tr. 488–489.) According to Crosby, the employees expressed
that they did not “feel comfortable” speaking to him about the
Union. (Tr. 488–489.) Crawford did not testify in this proceed-
ing to rebut the statements attributed to him.
b. The positions of the parties
The General Counsel argues that Crawford’s questioning of
employees constituted unlawful interrogation in violation of the
Act. The Respondent argues that the statements attributed to
Crawford do not rise to the level of an 8(a)(1) violation.
c. Analysis
In determining whether the circumstances of Crawford’s
questioning of employees in these meetings reasonably tended
to restrain, coerce, or interfere with employees’ rights under the
Act, I find that applying the Intertape Polymer Corp., supra,
factors establishes that the questioning constituted coercive
interrogation that restrained and interfered with their rights
under the Act. As mentioned above, there is evidence of Re-
spondent’s hostility toward protected complaints from employ-
ees about working conditions as seen from Dix’s earlier state-
ment that the Respondent would “. . . not talk about shit” with
the employees, and that management, especially Executive
Director Fernandez, were “pissed” or upset about the employ-
ees protected concerted picketing activity. The fact that the
questioning occurred when the Respondent became aware that
employees were seeking to have a union represent them, is also
evidence that the questioning was coercive. The nature of the
information sought—whether the employees supported or
planned to join the union—reflects the coerciveness of the in-
terrogation, as it concerned their core rights under the Act.
With regard to the “identity of the questioner” factor, Lincoln
Facility Manager Crawford is a high-ranking upper manage-
ment official, warranting the conclusion that the interrogation
was coercive in nature. See Matros Automated Electrical Con-
struction Corp., 353 NLRB 569, 571 (2008), enfd. 366
Fed.Appx. 184 (2d Cir. 2010) (interrogations from high-
ranking employer officials weigh in favor of finding that the
questioning was coercive).
The method of the interrogation is also evidence of its coer-
civeness, as Crawford asked the employees directly about their
interest in organizing or supporting a union. I find he had no
valid reason for asking those questions of the employees, other
than to solicit who was involved in the organizing. In addition,
it is important to note that in making those inquiries, Crawford
did not assure the employees that no reprisals would result if
they answered his questions, even though the employees ex-
pressed concerns that that is exactly what they thought would
happen. Finally, the fact that employees refused to answer the
questions because they did not feel comfortable about express-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
ing their union support or sympathies, serves as further evi-
dence that they were intimidated and feared reprisals by man-
agement. See Camaco Lorain Mfg. Plant, supra; Sproule Con-
struction Co., supra; Grass Valley Grocery Outlet, supra.
Accordingly, I find that Crawford’s questioning of the em-
ployees constituted instances of unlawful interrogation of their
union sympathies and support, in violation of Section 8(a)(1) of
the Act.
14. Once the employees found out that AFSCME could not
represent them, the SPFPA Union conducted an organizing
drive and was subsequently elected and certified as the collec-
tive-bargaining representative of the Respondent’s unit
employees
Tamika Kelley testified that after the employees were in-
formed by the AFSCME officials that their union could not
represent the employees, they were referred to the SPFPA un-
ion for representation. (Tr. 270.) Atwater testified that he con-
tacted Dwayne Phillips, an organizer for the SPFPA, and that
union conducted an organizing drive at the Respondent’s facili-
ty. (Tr. 87–88) Kelley and Atwater then became involved in
the organizing drive for the SPFPA by passing out union au-
thorization cards. (Tr. 271.)
On February 11, 2016, the SPFPA Union filed a representa-
tion petition with the National Labor Relations Board in Case
07–RC–169521, seeking to represent a unit of Respondent’s
employees consisting of all full-time and part-time armed and
unarmed security officers, including direct care and youth
workers. (Tr. 705–706; Jt. Exh. 4.) In that election, a majority
of the unit employees voted in favor of the SPFPA (the Union),
and the NLRB Regional Office for Region 7 issued a Decision
and Certification of Representative on March 24, 2016. (Jt.
Exh.4.)12
15. The Respondent, on July 7, 2015, suspended employees
Tamika Kelley, Sherman Cochran, and Delaine Singleton-
Green for engaging in protected concerted picketing activity in
violation of Section 8(a)(1) of the Act
a. The facts
Current employee Sherman Cochran is a youth worker em-
ployed at the Lincoln facility. (Tr. 184.) He testified that he
participated in the picketing on July 6 after calling-off of work.
He was scheduled to work the midnight shift, which began at
10 p.m. on July 5. He called off from work at around 4 p.m. in
order to participate in the picketing on July 6, 2015. (Tr. 189–
198.) Cochran testified that he had personal days available to
cover his absence. (Tr. 193–198.)
He arrived at 9:30 a.m. and engaged in picketing for approx-
imately 4–5 hours. (Tr. 188–189.) When he returned to work at
10 p.m. on July 7, 2015, Lincoln Shift Supervisor Clifford Jud-
kins informed him that he had been suspended and he had to
see Lincoln Center Director Oliver Cooper concerning his
“time and attendance” on July 6. He was also informed that he

12 The Regional Director for Region 7 also issued an Erratum dated
August 17, 2016, which corrected the description of the appropriate
bargaining unit to reflect the Employer’s facilities located in “Highland
Park,” instead of “Highland,” Michigan. (Jt. Exh. 2.)
was being suspended for a July 4 call-off. (Tr. 192.) Cochran
testified that he spoke to Cooper the next day and was told to
report for work that night and he was subsequently paid for the
day he was suspended. (Tr. 198–199.) Cochran testified that he
was never informed by any of Respondent’s management offi-
cials that his discipline/suspension had been rescinded or re-
moved from his personnel file. (Tr. 199.)
Tamika Kelley, a current employee and youth worker at the
Lincoln facility testified that she was scheduled for work on
July 6, 2015, but she called off within the required time period.
She testified that the Respondent’s policy was to call-off at
least 3 hours before the shift, which she complied with, and she
had personal leave time available to cover the time she called
off. (Tr. 259–261.) Kelley called Lincoln Shift Supervisor
Clifford Judkins and told him she would be absent from work
because of personal reasons. (Tr. 259–260.) Judkins told her
that she was his favorite staff person and she must come to
work. (Tr. 260.) Kelley stated again that she would be absent
for personal reasons. Judkins asked her if she wanted him to
memorialize the reason for the absence and she said yes. Jud-
kins then stated that he already had several other employees
call-off that day. (Tr. 260.)
Kelley engaged in the picketing on July 6. On July 7, 2015,
when she returned to work she was informed not to clock in.
Lincoln Shift Supervisor Kerwin Johnson met with Kelley and
Delaine Singleton-Green and he issued them both suspensions
pending investigations based on their “time and attendance.”
(Tr. 262; GC Exh. 11.) Kelley notified employees who were
participating in the picketing on July 7 that Respondent issued
her a disciplinary suspension pending investigation. (Tr. 329,
691.) Kelley served her suspension on July 7, 2015. (Tr. 264–
265.)
Kelley was subsequently told by Manager George to report
for work on July 8 and she was eventually paid for the day she
was suspended. (Tr. 264–265), 306–307.) However, she testi-
fied that she was never informed by the Respondent that the
discipline she was issued had been rescinded, or that the refer-
ences to her discipline would be removed from her personnel
file. (Tr. 265, 308.)
On July 7, 2015, the picketing continued for a second day at
around 8:30 a.m. (Tr. 83, 329.) As a result of the Respondent’s
issuance of disciplinary suspensions to Kelley, Cochran, and
Singleton-Green, the employees believed they would be sus-
pended or discharged if they continued picketing, so the picket-
ing ended shortly after it began. (Tr. 329.) In that connection,
Neely testified that he and other employees went to picket on
July 7, 2015, but that it was only for a short duration because
the employees became aware that several employees had been
suspended for picketing, and “the air just went out of [them].”
(Tr. 329.) Kelley then filed her unfair labor practice charge
with the NLRB on July 7, 2015. (Tr. 329–330; GC Exh. 1(a)-
(c).)
At trial, the Respondent produced letters dated July 9, 2015,
to Cochran, Kelley, and Singleton-Green. (R. Exh. 9.) The
letters for each employee contained identical wording from
Lincoln Center Director Oliver Cooper that stated:
This letter serves to inform you that we have completed our
SPECTRUM JUVENILE JUSTICE SERVICES 19
review of your attendance. You will be allowed personal
leave for July 6, 2015. You will also be paid for July 7, 2015,
and the suspension notice will be removed from your file.
Should you have further questions regarding this letter, please
contact James Wiser in the Human Resources Department.
(R. Exh. 9.)
Kelley testified that she never received that letter, and the
address on the letter where it was allegedly sent, was not, and
had never been, her address. (Tr. 308–309.) Cochran also testi-
fied that he was never informed that his suspension was re-
scinded, and there is no evidence that Singleton-Green was
notified or received a letter informing her that her suspension
was rescinded.
In regard to these letters, Wiser, the person Oliver directed
employees to contact if they had any questions regarding their
suspensions, testified that he could not recall actually removing
the disciplinary suspensions from their employment records or
files. (Tr. 732–733.) In addition, Vice President of Human
Resources Donald Fields testified that with regard to those
letters allegedly sent to the three employees, he could not recall
if he assisted in issuing the letters, he did not know the date the
disciplines were allegedly removed from their respective em-
ployment records, and he did not know who, if anyone, alleged-
ly removed the disciplines from the records. (Tr. 797–800).
The Respondent denied the complaint allegations that it sus-
pended Cochran, Kelley, and Singleton-Green, and it further
denied that it suspended them for engaging in protected con-
certed activities such as submitting the employees’ petition to
the Respondent and engaging in picketing activity. At trial,
however, the Respondent never offered any testimony explain-
ing the reason for issuing those three employees suspensions.
In fact, Fernandez testified she had no knowledge of why the
suspensions were issued, claiming that she believed they were
suspended for “attendance,” but she did not know how that
came about. (Tr. 621–623.) Her only involvement allegedly
occurred after the suspensions were issued, when human re-
sources personnel contacted her and she then got involved by
deciding to allow those employees to take leave. Fernandez
could not state with any certainty that the suspensions were
officially retracted, only that she “understood” that they were
paid for the days they were suspended, and the notices of disci-
pline/suspension were removed from their files. (Tr. 622.)
Fernandez’ assertion that she knew nothing about why the
three employees were suspended was incredible considering the
fact that she was the executive director who oversaw not only
the operation of the facility, but all discipline issued. In addi-
tion, her claim of not knowing the reasons for the suspensions
was contradicted and belied by Respondent’s Statement of
Position dated July 20, 2015, provided to the government dur-
ing the investigation of the charge, which stated:
Initially, it was believed the Charging Party [Kelley] had
called in sick but instead was picketing at the [Respondent’s]
facility. Because of the suspected misrepresentation of need
for sick leave, the Charging Party was told that she would be
suspended for 1 day.” (Tr. 663–666.)
Thus, contrary to Fernandez’s alleged lack of knowledge as
to why the three employees were suspended, the evidence es-
tablishes that they were suspended for their picketing activity,
and the Respondent’s belief that they misrepresented or mis-
used their leave for that purpose.
While the Respondent presented evidence of letters in the
employees’ names that stated the suspensions were removed
from their files, there is no credible evidence that the Respond-
ent issued those letters to the three employees, or that they re-
ceived the letters. It is also important to note that the three
employees used accrued leave (personal days) when they called
off work that day, and they did not use “sick” leave as the Re-
spondent alleged in its Position Statement. (Tr. 663–666.)
b. The positions of the parties
The General Counsel contends that Cochran, Kelley, and
Singleton-Green were suspended for engaging in picketing
activity in violation of Section 8(a)(1) of the Act. The Re-
spondent failed to offer a legitimate reason for the suspensions,
but nevertheless denied that the suspensions violated the Act.
c. Analysis
As mentioned above, Section 8(a)(1) of the Act makes it an
unfair labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in
Section 7,” and Section 7 of the Act provides that “[e]mployees
shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection. . . .” That statutory right thus includes
the right to act together “to improve terms and conditions of
employment or otherwise improve their lot as employees.”
Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007),
end. 358 Fed.Appx. 783 (9th Cir. 2009). The Act accordingly
prohibits employers from disciplining or discharging employ-
ees for exercising their organization and collective-bargaining
rights, including their right to engage in concerted activities for
the purpose of mutual aid or protection. See MCPC Inc. v.
NLRB, 813 F.3d 475, 479 (3d Cir. 2016).
The Board has held that an employee’s conduct must be both
“concerted” and engaged in for the purpose of “mutual aid or
protection” for it to be protected under Section 7 of the Act.
Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip
op. at 3 (2014). The Supreme Court, however, has held that
Congress did not intend to limit the protection of Section 7 of
the Act to situations “in which an employee’s activity and that
of his fellow employees combine with one another in any par-
ticular way.” NLRB v. City Disposal Systems, 465 U.S. 822,
835 (1984). The Supreme Court has recognized that the con-
cept of “mutual aid or protection” concerns “. . . the goal of
concerted activity; chiefly, whether the employee or employees
involved are seeking to ‘improve terms and conditions of em-
ployment or otherwise improve their lot as employees.’” Fresh
& Easy Neighborhood Market, supra at slip op. at 3, citing
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). The “concert-
edness” and “mutual aid or protection” elements under Section
7 are analyzed under an objective standard, whereby motive for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
taking the action is not relevant to whether it was concerted,
nor is motive relevant to whether it was for “mutual aid or pro-
tection.” Fresh & Easy Neighborhood Market, supra, slip op. at
3. The analysis instead focuses on “. . . whether there is a link
between the activity and matters concerning the workplace or
employees’ interests as employees.” Id.
In this case, it is undisputed that the employees, including
Cochran, Kelley, and Singleton-Green, engaged in picketing
activity to inform the Respondent of their workplace com-
plaints and concerns, and that the picketing directly concerned
improving their terms and conditions of employment. That
activity clearly concerned matters of “mutual aid or protection”
of the Respondent’s employees. Dreis & Krump Mfg., 221
NLRB 309, 314 (1975). Their picketing therefore constituted
protected activity under the Act. Eastex, supra; Reliant Energy,
LLC, 357 NLRB 2098, 2100 fn. 19 (2011); See Yellow Cab,
Inc., 210 NLRB 568, 569 (1974).
Besides constituting protected activity, their picketing was in
concert with other employees. As mentioned above, the Board
has held that an employee’s conduct must be both “concerted”
and engaged in for the purpose of “mutual aid or protection” for
it to be protected under Section 7 of the Act. Fresh & Easy
Neighborhood Market, supra, slip op. at 3. The Board defined
concerted activity in Meyers Industries (Meyers I), 268 NLRB
493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), as activity
“engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.” The
Board clarified that definition of concerted activity in 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),
to include cases “where individual employees seek to initiate or
to induce or to prepare for group action, as well as individual
employees bringing truly group complaints to the attention of
management.” Id. at 887. In this case, Cochran’s, Kelley’s,
and Singleton-Green’s picketing activity intended “to initiate or
to induce or to prepare for group action” in support of their
concerns over working conditions, and their activity clearing
constituted protected concerted activity. The record also estab-
lishes that the Respondent suspended them for engaging in that
activity.
In analyzing this allegation, I note that where an employer
argues that it disciplined or discharged employees for reasons
unrelated to their protected activity, such as tardiness, poor
work performance, or as in this case, because they “misrepre-
sented the need for sick leave,”13 the Board and the courts rely
on the so-called “mixed motive” or “dual motive” discharge
test set forth by the Board in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 399–403 (1983); See also MCPC
Inc. v. NLRB, 813 F.3d 475, 490 (3d Cir. 2016). In Wright
Line, the Board announced the following causation test in all
cases alleging violations of Section 8(a)(3) or violations of
Section 8(a)(1) of the Act turning on employer motivation.
Under Wright Line, the General Counsel must make a prima

13 See Tr. 663–666.
facie showing sufficient to support the inference that protected
conduct was a “motivating factor” in the employer’s adverse
action. On such a showing, the burden shifts to the employer to
demonstrate that the same action would have taken place even
in the absence of the protected conduct. Mesker Door, 357
NLRB 591, 592 fn. 5 (2011); Donaldson Bros. Ready Mix, Inc.,
341 NLRB 958, 961 (2004).
The General Counsel satisfies the initial burden under
Wright Line by showing (1) the employee’s protected activity;
(2) the employer’s knowledge of that activity; and (3) animus
against that activity on the part of the employer. Mesker Door,
supra at 592 fn. 5; Donaldson Bros. Ready Mix, supra at 961;
(2004); L. B. & B. Associates, Inc. d/b/a North Fork Service
Joint Ventures, 346 NLRB 1025, 1026 (2006); Willamette In-
dustries, 341 NLRB 560, 562 (2004); See also DHL Express
(USA), Inc., 360 NLRB 730 (2014). Proof of discriminatory
motivation can be based on direct evidence or can be inferred
from circumstantial evidence based on the record as a whole.
Mesker Door, supra; See Fluor Daniel, Inc., 304 NLRB 970
(1991). As support for an inference of unlawful motivation, the
Board may rely on, among other factors, disparate treatment of
the affected employee and the timing of the discipline relative
to the employee’s protected activity. Mesker Door, supra; See
Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). In
addition, the Board may infer animus against protected activi-
ties from pretextual reasons given for the adverse employment
action. DHL Express, supra, slip op. at 1 and fn. 1 (2014).
On such a showing, the burden shifts to the employer to
prove that it would have taken the adverse action even in the
absence of the employee’s protected conduct. Lucky Cab Co.,
360 NLRB 271, 276 (2014); Austal USA, LLC, 356 NLRB 363,
364 (2010). This burden may not be satisfied by an employer’s
proffered reasons that are found to be pretextual, (i.e., false
reasons or reasons not in fact relied upon for the adverse em-
ployment action). Rather, it is well established that a finding of
pretext defeats an employer’s attempt to meet its rebuttal bur-
den. Lucky Cab Co., supra, at 276; Stevens Creek Chrysler Jeep
Dodge, 357 NLRB 633, 637 (2011), enfd. sub nom. Mathew
Enterprise, Inc. v. NLRB, 498 Fed.Appx. 45 (D.C. Cir. 2012).
In addition, it is apparent that the employer does not sustain its
burden by simply showing that a legitimate reason for the ac-
tion existed. As the Board stated in Roure Bertrand Dupont,
Inc., 271 NLRB 443 (1984):
We have held that the burden shifted to an employer under
Wright Line is one of persuasion, and affirmative defense in
which the employer must demonstrate by a preponderance of
the evidence that the same action would have taken place
even in the absence of the protected conduct. If an employer
fails to satisfy its burden of persuasion, the General Counsel’s
prima facie case stands unrefuted and a violation of the Act
may be found. See Wright Line, 251 NLRB at 1088 fn. 11;
Bronco Wine Co., 256 NLRB 53 (1981); Rikal West, Inc., 266
NLRB 551 (1983). Cf. Magnesium Casting Co., 259 NLRB
419 (1981).
Therefore, in rebutting the General Counsel’s prima facie
showing that the protected conduct was a “motivating factor” in
SPECTRUM JUVENILE JUSTICE SERVICES 21
the employer’s decision, the employer cannot simply present a
legitimate reason for its action but must persuade, by a prepon-
derance of the evidence, that the same action would have taken
place even in the absence of the protected conduct.
Based on the record evidence, I find that an analysis under
Wright Line demonstrates that the suspensions of Cochran,
Kelley, and Singleton-Green were discriminatorily motivated.
(i) The General Counsel made a prima facie case of
discrimination
First, the General Counsel has made a prima facie showing
that Cochran, Kelley, and Singleton-Green’s protected conduct
was a “motivating factor” in the Respondent’s decision to sus-
pend them. In fact, the undisputed evidence establishes that
Respondent admitted that they had called off work to engage in
picketing, and it believed they misrepresented their need for
such leave. (Tr. 663–666.) There is thus no question that Re-
spondent was aware of their protected activity and it was the
reason they were suspended. There is likewise no question that
Respondent harbored animus toward the protected concerted
picketing activity as evidence by the manager’s statements that
Fernandez and management were “pissed” and upset about the
picketing, and that those employees were on hit lists and they
would be disciplined or discharged.
On such a showing, the burden shifts to the Respondent to
demonstrate that the employees would have been suspended
even in the absence of the protected conduct. As mentioned
above, the burden is not sustained by showing a legitimate rea-
son for the suspensions existed, but instead the Respondent
must demonstrate by a preponderance of the evidence that they
would have been suspended even in the absence of their pro-
tected conduct. Roure Bertrand Dupont, Inc., supra. For the
reasons set forth below, I find the record establishes that the
Respondent’s asserted reasons are pretext for its unlawful mo-
tivation, and that the Respondent has not carried that burden.
(ii.) The Respondent’s asserted reasons for Cochran, Kelley,
and Singleton-Green’s suspensions are without merit and are
pretext for its unlawful motivation.
The evidence shows that Respondent suspended the three
employees because they were picketing and they misrepresent-
ed their need for sick leave. The assertion that they used sick
leave, however, is without merit because they used personal
time or leave to take off of work, and they did not use sick
leave as Respondent alleged. The Respondent’s asserted rea-
sons for the suspensions are therefore not supported by the
record, are not credible or plausible, and are pretext for a dis-
criminatory motive—for their engagement in protected con-
certed picketing activity. An inference of animus and discrimi-
natory motive may be derived from examining all the circum-
stances of a case, including suspicious timing, a false justifica-
tion given for a discipline, and the failure to adequately investi-
gate alleged misconduct. Integrated Electrical Services, 345
NLRB 1187, 1199 (2005); Washington Nursing Home, 321
NLRB 366, 375 (1996). In addition, providing a false justifica-
tion for a discipline supports an inference that Respondent has
another motive for its actions that it wants to conceal. Pan
American Electric, 321 NLRB 473, 476 (1996); Shattuck Denn
Mining v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
Based on the above, the Respondent failed to show that it
would have taken the same action against Cochran, Kelley, and
Singleton-Green in the absence of their protected, concerted
activities. Accordingly, based on the record evidence in this
case and the well-established Board law discussed above, I find
that the Respondent unlawfully suspended Cochran, Kelley,
and Singleton-Green based on their protected concerted activi-
ties, in violation of Section 8(a)(1) of the Act.14
16. The Respondent discharged employee Alfred Neely for
engaging in protected concerted picketing activity, in violation
of Section 8(a)(1) of the Act
a. The facts
Alfred Neely was hired as a youth worker by the Respondent
in January 2011. (Tr. 311–312) While Neely worked at both
the Calumet and Lincoln facilities, he spent the majority of his
worktime at the Calumet facility. (Tr. 312.) Neely testified that
while he was picketing, he saw Fernandez come out of the
building and she was watching the picketers. The credible
record evidence further reveals that Fernandez was watching
the picketing on the monitors, identified the employees such as
Neely who were engaged in such action, and recorded their
names on “hit lists.”
On August 19, 2015, while working in a classroom in his
pod, he was participating in a board game with his residents
and a teacher named Mrs. Spratt. (Tr. 334.) One of the resi-
dents asked Neely for a sweater that was kept in the pod’s con-
trol room. Neely directed the resident to the youth worker he
was working with at the time, Jamar Marcus, who was closer to
the pod control room. (Tr. 335, 393–394.) Marcus then left the
room to get the sweater from the control room. (Tr. 335–336.)
Marcus testified that while in the control room, he made a tele-
phone call to his mother to inform her that a family member
died. (Tr. 394.) Shortly thereafter, Fernandez, accompanied by
Operations Manager Keith Leslie, entered the control room and
found Marcus on the telephone, sitting in a chair with his feet
up on the desk. (Tr. 394, 630–631, 805–806.) Marcus then got
the resident’s sweater and returned to the pod room where
Neely was with the residents. (Tr. 394.) Fernandez and Leslie
followed Marcus.
At the end of their shift (around 2 p.m.), both Neely and
Marcus were called to the office, where Sherrod informed
Neely he was being suspended pending an investigation. (Tr.
339; GC Exh. 23.) When Neely asked the reason for the sus-
pension, Sherrod told him he must write a statement explaining
why Marcus was on the telephone. (Tr. 339.) Neely stated that
Marcus told him he was going to get the resident’s sweater, and

14 I further find that Respondent did not cure the disciplinary suspen-
sions. While there is evidence that Respondent paid the employees for
the suspended day in question, there is no credible evidence that the
suspensions were rescinded, or that the employees were informed that
their suspensions were rescinded. Furthermore, the undisputed record
establishes that the second day of picketing ended just after it started
and was called off due to information that the three employees were
suspended for picketing on the first day. Thus, the Respondent’s un-
lawful and discriminatory actions against Cochran, Kelley, and Single-
ton-Green infringed on the Sec. 7 rights of other employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
that he did not know Marcus was on the phone. (Tr. 339–340.)
Neely stated that he did not understand why he was required to
write a statement and be issued discipline because of Marcus’
conduct, but both he and Marcus drafted statements as directed
by Respondent. (Tr. 340.)
On August 19, 2015, the Respondent issued discipline to
both Marcus and Neely in the form of a “Suspension Pending
Investigation” which stated they violated Respondent Rule
4137, “Staff to Resident Ratio,” and Rule 4127 “Youth Super-
vision Rule” and were suspended while the investigation was
conducted. (Tr. 397–398; GC Exh. 23, 27.) On that same day,
Neely met with Vice President of Human Resources Donald
Fields who told Neely he did not understand how Neely did
anything wrong. (Tr. 348) Fields told Neely that in the future
he should notify his supervisor and tell Marcus not to use the
phone. Fields said he would send an email to Fernandez be-
cause Neely did nothing wrong. (Tr. 348–349; GC Exh. 22.)
Fields testified in this case on the Respondent’s behalf. Ac-
cording to Fields, he received the “internal investigation” pack-
et of documents concerning Respondent’s decision to discharge
Neely from Fernandez dated August 19, 2015, and he “ap-
proved” the decision to discharge Neely. (Tr. 788–790; R. Exh.
13). Fields’ testimony inferred that since he approved Neely’s
discharge, he believed there was sufficient basis to justify it.
However, that testimony was belied by the fact that, despite
testifying, Fields neglected to rebut the allegation that he told
Neely he did nothing wrong which would warrant his dis-
charge. (Tr. 786–802)
On or about August 29, 2015, Human Resources Administra-
tor James Wiser contacted Neely by phone and told him that his
employment was being terminated. (Tr. 342.) When Neely
asked why he was terminated for conduct that Respondent at-
tributed to Marcus, Wiser stated that Fernandez, Fields, and
CEO Roger Swaninger decided to terminate him. (Tr. 342–345,
786–787.) Upon hearing that, Neely attempted to reach Fields
by telephone, but received no response. (Tr. 349.) The Re-
spondent issued Neely a letter dated August 26, 2015, stating
that he was discharged. (Tr. 349–350; GC Exh. 24.) That letter
stated that:
The internal investigation has found that you violated the
company’s policies on, Prohibited Conduct #2—Client ne-
glect, Prohibited conduct #6- creating unsafe conditions, State
licensing rule # 4137-Staff to Resident Ratio, and State
likening [sic] Rule 4127 Youth Supervision Rule. And
weight was given to your previous violation in November of
2014, when you left your Pod early at shift exchange. (GC
Exh. 24)
Thus, both Neely and Marcus were suspended and dis-
charged for letting the ratio of residents-to-staff drop below the
allowable figure.15 According to the Respondent’s policy (GC
Exh. 25), the staff ratio is one staff member to every 10 resi-
dents. In this case, there were three staff members in the class-
room: youth workers Neely and Marcus, and teacher Spratt.

15 There are no complaint allegations that Respondent violated the
Act by discharging Marcus.
During the trial, Respondent presented the theory that teachers
are not trained and not considered staff members, but evidence
was presented that teachers did receive some training in the
same manner as youth workers, and that they are considered
staff members. In analyzing this issue, however, I will provide
the Respondent with the benefit of the doubt and analyze it with
the understanding that teachers are not considered in the staff-
to-resident ratio.
b. The positions of the parties
The General Counsel contends that the Respondent dis-
charged Neely because of his protected concerted picketing
activity in violation of Section 8(a)(1) of the Act. The Re-
spondent, however, argues that it was justified in discharging
Neely because he and Marcus they let the ratio of resident-to-
staff drop below the allowable figure.
c. Analysis
Applying Wright Line, supra, the General Counsel has made
a prima facie showing that Neely’s protected conduct was a
“motivating factor” in the Respondent’s decision to discharge
him. The evidence established that Neely engaged in picketing
on July 6, 2015, and that the Respondent was aware of his pro-
tected activities. After the picketing, several employees were
warned by managers that Fernandez had a list of employees
who picketed and she intended to discharge them. Sherrod
specifically informed Neely that he was on that list. There is
also no question that Respondent harbored animus toward the
protected, concerted picketing activity as evidenced by the
manager’s statements that Fernandez was “pissed” and upset
about the picketing. In fact, there is direct evidence of animus
toward Neely in that Supervisors Dix and Sherrod told him that
his name was on the list and he better watch his back because
Fernandez was going to discharge the people involved. It is
also important to note that the timing of Neely’s discharge was
suspect, as it occurred within 2 months of Neely’s engagement
in protected picketing activity. As support for an inference of
unlawful motivation, the Board may rely on factors such as the
timing of the discipline relative to the employee’s protected
activity. Mesker Door, supra; See Embassy Vacation Resorts,
340 NLRB 846, 848 (2003).
On such a showing, the burden shifts to the Respondent to
demonstrate that Neely would have been discharged even in the
absence of his protected conduct. As mentioned above, the
burden is not sustained by showing a legitimate reason for the
discharge existed, but instead the Respondent must demonstrate
by a preponderance of the evidence that he would have been
discharged even in the absence of his protected conduct. Roure
Bertrand Dupont, Inc., supra. I find the record establishes that
the Respondent’s asserted reason for discharging Neely is pre-
text for its unlawful motivation, and that the Respondent has
not carried that burden.
Neely was discharged because of the actions of his co-
worker, Marcus, who left to retrieve a sweater for a resident
from the control room, but instead was found kicked back with
his feet on the desk talking on the phone. The record, however,
established that it was not uncommon for youth workers to
leave the residents while they were in the pod classrooms in
SPECTRUM JUVENILE JUSTICE SERVICES 23
order to retrieve items for them. It is also undisputed that
Neely, who remained in the pod classroom interacting with the
residents, continued to perform his job as he was expected to
do. The Respondent failed to present any credible evidence
that Neely could see Marcus engaging in that prohibited con-
duct, that he aided in Marcus’ conduct, or that he was even
aware of it while it was in progress. While the Respondent
correctly points out that Marcus subsequently admitted to man-
agement that he left the classroom out-of-ratio, and Neely’s
response was that he was not the one who left the pod, it argues
that Neely’s discharge was nevertheless justified because “it
does not relieve [Neely] from the obligation to make sure there
is proper ratio, to call for support from supervision, and to re-
port the violation.” (R. Br. p. 19, fn. 14.) This argument, how-
ever, is not only without merit, it is nonsensical. The record
reveals that when Marcus left the classroom, he informed Neely
that it was for an accepted and legitimate purpose, that is, to
retrieve a sweater for a resident. The record is devoid of evi-
dence showing that Neely could have, or should have, seen
what Marcus was doing in the control room, or been aware that
Marcus was not retrieving the clothing as he said he would.
Thus, Neely could not be expected to call for support from
supervision and report Marcus’ violation, when in fact he could
not have seen that Marcus was engaging in that conduct. Thus,
Neely had no way of knowing that Marcus was engaged in such
proscribed conduct.
Furthermore, and importantly, the Respondent’s assertion
that Neely’s discharge was justifiable is belied by the fact that
Vice President of Human Resources Fields informed Neely that
he did not see how he did anything wrong to justify his dis-
charge. As there is an insufficient and false justification given
by Respondent for Neely’s discharge and a failure to provide
evidence that an investigation revealed that Neely was some-
how responsible for Marcus’ actions when he was out of the
classroom and out of sight from Neely, warrants an inference
that his discharge was discriminatorily motivated. Integrated
Electrical Services, supra at 1199; Washington Nursing Home,
supra at 375. Therefore, I find that the Respondent failed to
rebut the General Counsel’s showing that Neely was discharged
for engaging in protected concerted activities.
Accordingly, I find that the Respondent discharged Neely
because of his engagement in protected concerted activities, in
violation of Section 8(a)(1) of the Act.
17. The Respondent discharged employee Lamont Simpson for
engaging in protected concerted picketing activity, in violation
of Section 8(a)(1) of the Act
a. The facts
Lamont Simpson was hired by the Respondent in June 2011.
In October 2014, he began working a second job as a part-time
employee at Motor City Casino (herein casino) in the area,
working there primarily on weekends. (Tr. 150.) In working
both jobs, Simpson worked approximately 24–32 hours a week
at the Respondent’s facility. In 2014, Respondent mandated
Simpson to work overtime and a conflict arose in his schedul-
ing because he was being mandated on the same days that he
was scheduled to work at the casino or when he had to pick up
his daughter from daycare. (Tr. 152–153, 164.) To deal with
the scheduling conflict, Simpson arranged for one of his fellow
employees to work his mandated shifts, or, in a deal worked out
with Supervisor Leroy Sherrod, if Simpson bought lunch for
him (or sometimes for Sherrod and other supervisors on duty)
he would be removed from the mandated list. (Tr. 152–155.)
In around early 2015, Sherrod told Simpson that he could no
longer accept lunches to accommodate scheduling conflicts
because the Respondent was allegedly shortstaffed. (Tr. 155–
156). Simpson testified that he doubted the validity of that
assertion because he knew of contingent employees who want-
ed to volunteer for more hours, but they were unable to secure
those hours. (Tr. 156.) In order to accommodate Respondent’s
mandated scheduling, Simpson testified that he worked man-
dated shifts on his Mondays or Tuesdays (his regularly sched-
uled days off), so that he would not be scheduled for weekends.
(Tr. 160.)
On or about the week of August 10, 2015, Simpson asked
Supervisor Emanuel Carter whether it would be possible for
him to provide his casino work schedule so that he would not
be mandated to work on those scheduled dates. (Tr. 159–160,
GC Exh. 5.) Simpson testified that Carter informed him that he
would see what he could do, and Simpson also told Manager
Childs that while he did not mind being mandated, he simply
requested that such mandated scheduling not conflict with his
casino work schedule. (Tr. 159–161.) In response, Childs re-
quested that Simpson provide the casino schedule to him via
email or text message, and he would see what he could do for
Simpson. (Tr. 160–162.) Simpson provided the schedule, but
Childs did not provide any further response to the request to be
accommodated on his work schedule. (Tr. 161.)16
On September 18, 2015, the Respondent directed Simpson to
take a break because he was required to work a mandated shift.
(Tr. 164–165.) Simpson replied that he was unable to work the
mandated shift. (Tr. 164–165.) At about 15 minutes before the
end of that shift, Calumet Shift Supervisor Bridget Richards
called him and told him he was needed to work the next shift.
Simpson told her that he could not work that shift because he
had to pick up his daughter and work his casino shift. (Tr. 163–
166.) According to Simpson, about 5 minutes later, Manager
Sherrod called him and told him he had to stay and work the
mandated shift. (Tr. 166.) Simpson told him that he could not
stay to work that shift, and that he already informed Supervisor
Richards of that fact. Approximately 5 minutes later, Supervi-
sor Donald Farrell announced over the radio that Simpson,
along with other employees, was mandated for the next shift
after taking their breaks. (Tr. 166.)
Richards then called Simpson back a second time to inform
him he had to work the mandated shift, and Simpson said he
would see if he could find someone to work his shift for him
and Richards agreed, but he was unsuccessful in finding a re-
placement and told Richards he could not stay. She said OK

16 During the trial, the Respondent stipulated that Emanuel Carter
was no longer employed by the Respondent, but that during the period
of time in question, he was a supervisor within the meaning of Sec.
2(11) of the Act. (Tr. 162.) In addition, the Respondent stipulated that
Manager Childs was, at all material times, a supervisor and agent with-
in the meanings of Sec. 2(11) and (13) of the Act, respectively.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
and Simpson punched out at the end of his scheduled shift. (Tr.
167.) Simpson picked up his daughter, dropped her off at
home, and went to work his scheduled shift at the casino which
began at 4 p.m. (Tr. 167.) Later that day at around 5:30 p.m.
while on break at the casino, Simpson retrieved a voice mes-
sage on his phone from Manager Cottingham stating that Simp-
son had been suspended pending investigation, and directing
him not to report for work for his next scheduled shift on Sep-
tember 20, 2015. (Tr. 168–169.)
On or about September 21, 2015, Human Resources Admin-
istrator James Wiser called Simpson and told him his employ-
ment had been terminated for “abandoning his post.” (Tr. 168–
169.) Simpson asked if he could grieve his discharge, and Wis-
er said no, because it was signed by Fernandez and Operations
Director Douglas Burke and he could not grieve it once they
signed it. (Tr. 168–169.)
During the week of September 11, 2015, Simpson received a
letter of termination from Respondent dated September 22,
2015, which stated he had been terminated effective September
18, 2015, his last day of work. (Tr. 169; GC Exh. 6.) That let-
ter, signed by James Wiser, informed Simpson that his dis-
charge was based on a “violation of Prohibited Conduct policy
#13- Leaving the job during working hours without permission
or abandonment of shift,” and “Specifically on September 18,
2015 you left work without receiving permission of your super-
visor.” (GC Exh. 6.) That letter went on to provide that Re-
spondent “considers this a voluntary quit, i.e., Job Abandon-
ment.” (GC Exh. 6.) Simpson then began working full-time at
the casino approximately 6 to 12 months after being discharged
by the Respondent. (Tr. 181.)
Simpson testified that there were other employees who were
unable to work their mandated shifts, but they were not dis-
charged, such as: Anthony Periano, Danielle Boatwright, Jack-
ie Chambers, and Shawn Hokes. (Tr. 170.)
b. The positions of the parties
The General Counsel contends that the Respondent dis-
charged Simpson because of his protected concerted picketing
activity in violation of Section 8(a)(1) of the Act. The Re-
spondent, however, argues that it was justified in discharging
Simpson because he abandoned his shift.
c. Analysis
Applying Wright Line, supra, the General Counsel has made
a prima facie showing that Simpson’s protected conduct was a
“motivating factor” in the Respondent’s decision to discharge
him. The evidence establishes that Simpson was one of the
lead organizers of the petitions that were submitted to manage-
ment, and that he engaged in picketing on July 6, 2015, and that
the Respondent was aware of his protected activities. While he
covertly delivered the petition to management mailboxes at the
facility, and while there is no evidence that anyone saw him
deliver the petitions, Security Supervisor Dix observed him
enter the building shortly before it was found in the mailboxes.
In fact, Dix unlawfully interrogated him regarding his involve-
ment with the petition. Simpson also hand delivered the peti-
tion to Supervisors Johnson and Wilson, who later told Simp-
son that management threw the petition in the trash. Simpson
was also engaged in the picketing, carrying various signs com-
plaining about the working conditions.17 Simpson was also
unlawfully interrogated by Supervisor Burton on July 5, 2015,
regarding whether he would be involved in the picketing on the
next day. The record establishes that after engaging in the
picketing, Dix coercively informed him that Fernandez used the
camera in the security control room to zoom in on the picketers,
that she was taking down names and had a hit list, and that he
should watch out, which constituted an unlawful threat of dis-
cipline or discharge. Thus, the record establishes that Simpson
was engaged in protected concerted activity and the Respond-
ent had knowledge of that activity.
The record further establishes that Respondent harbored an-
imus toward the protected concerted picketing activity as evi-
denced by the manager’s statements that Fernandez was
“pissed” and upset about the picketing, and that those employ-
ees were on hit lists and they would be disciplined or dis-
charged. There is also direct evidence of animus toward Simp-
son in that Dix told him that Fernandez had a hit list of employ-
ees who picketed, and he should watch out. In addition, I find
the timing of Simpson’s discharge was suspect, as it occurred
approximately 3 months after he engaged in the protected con-
certed activity. The Board may rely on the timing of the disci-
pline relative to the employee’s protected activity as support for
an inference of unlawful motivation. Mesker Door, supra; See
Embassy Vacation Resorts, 340 NLRB 846, 848 (2003).
On such a showing, the burden shifts to the Respondent to
demonstrate that Simpson would have been discharged even in
the absence of the protected conduct. As mentioned above,
showing a legitimate reason for the discharge is insufficient.
Instead, Respondent must demonstrate by a preponderance of
the evidence that Simpson would have been discharged even in
the absence of his protected conduct. Roure Bertrand Dupont,
Inc., supra.
I find the record establishes that the Respondent’s asserted
reason for discharging Simpson was pretext for its unlawful
motivation, and the Respondent failed to carry that burden.
Simpson was assertedly discharged because he failed to work a
mandated shift, which Respondent knew conflicted with his
other job as a security guard at the casino, where he had been
working since October 2014. Simpson provided his casino
schedule to supervision before his shift with Respondent, in an
effort to avoid conflicts in scheduling mandatory overtime.
Despite the fact that in early 2015, Sherrod informed Simpson
he could no longer accept lunches to accommodate him, in mid-
August 2015, when Simpson sought to ensure that Respond-
ent’s increase in mandated scheduling did not conflict with his
schedule at the casino, he had conversations with Supervisor
Carter and Manager Childs about his schedule, and they both
indicted an accommodation was possible and they would see
what they could do.
When Simpson learned he was mandated on September 18,
2015, he informed both Sherrod and Supervisor Richard that he

17 While Simpson was also involved in union activity by passing out
union authorization cards for AFSCME to other employees, there is no
evidence in the record to establish that the Respondent was aware of
that union activity.
SPECTRUM JUVENILE JUSTICE SERVICES 25
was unable to work that shift because he had to pick up his
daughter at daycare and he was scheduled to work at the casino,
but both told him he had to work. In addition, he requested to
find a substitute or for some other accommodation, but was
again told he had to work. He was not able to work the man-
dated shift and was discharged for abandoning his shift, and
was denied an opportunity to grieve his discharge through Re-
spondent’s internal process.
Even though Simpson had an earlier infraction where he re-
ceived a 2-day suspension for failing to work a mandated shift
on May 7, 2015, it was not considered in his discharge. The
Respondent only stated that his discharge was based on his
failure to work a mandated shift on September 18, 2015, and
made no mention that it was based on that previous infraction.
Thus, he was discharged on the basis of that one infraction for
missing the mandated shift.
Despite the fact that Simpson was discharged based on that
one mandation infraction, the General Counsel presented evi-
dence that other employees who committed one mandated in-
fraction received lesser discipline from the Respondent. In that
regard: (1) youth worker Danielle Boatwright received a writ-
ten reprimand on June 22, 2016, for abandoning her mandated
shift on May 20, 2016, rather than being discharged. (GC Exh.
57); (2) youth worker LaTonya Hewitt also was not discharged,
but instead received a written reprimand on June 25, 2016, for
walking off the job on June 24, 2016, stating that she “wasn’t
going to be able to stay for the shift.” (GC Exh. 59.); (3) youth
worker Phillip Timms was issued a written discipline on June
28, 2016, for abandoning his mandatory shift by walking off
the job on June 25, 2016. (GC Exh. 62.); (4) youth worker
Brandon Dann was issued a 2-day suspension on July 1, 2016,
for refusing to report for his mandated shift on June 26, 2016,
and he was also found to have been insubordinate and used
abusive language while exiting the building. (GC Exh. 63.); (5)
youth worker Nicole Ndjebo was issued a written discipline on
October 5, 2016, for refusing to work her mandated shift on
September 20, 2016. (GC Exh. 69.); and (6) youth worker Da-
mon Singleton was issued a written reprimand on November
15, 2016, and not discharged, for abandoning his mandated
shift on November 14, 2016. (GC Exh. 71.).
In addition, despite the fact that Simpson was discharged
based on that one mandated infraction, the General Counsel
presented evidence that other employees who missed manda-
tion on more than one occasion had not been discharged by the
Respondent. In that connection, youth worker Jason Pritchett
was disciplined by suspension on May 24, 2016, for missing a
mandated shift on May 19, 2016, and he had an earlier infrac-
tion for missing a mandated shift on May 11, 2016, but he was
not discharged. In addition, he had attendance policy infrac-
tions on May 20 and 21, 2016, and was not discharged. (Tr.
734–735; GC Exh. 49.) Likewise, Youth Worker Marshawn
Mackie was suspended on December 3, 2015, for missing a
mandated shift on December 2, 2015, and he was deemed a “no
show.” He was not discharged even though that December 3,
2015 suspension showed he had two prior offenses for missing
mandatory shifts on September 7 and 24, 2015. (Tr. 735; GC
Exh. 37.) In addition, Mackie’s suspension reflected that he
also had attendance infractions for reporting late to work on
November 22, 23, 26, 29 and 30, 2015, and December 2, 2015,
and was still not discharged. (GC Exh. 37) Furthermore, Youth
Worker Darnisha Coy received a written reprimand on June 28,
2016, for failing to work a mandated shift on June 25, 2016 (Tr.
739–741; GC Exh. 61). Coy then received a suspension on
October 21, 2016, for her second offense of missing her manda-
tory shift on October 20, 2016, and she was not discharged.
(GC Exh. 70.)
The record thus establishes that the Respondent treated
Simpson in a disparate manner so it could discharge one of the
employees who had been a leader in the protected, concerted
activities that were meant to better the employees’ working
conditions. The Board may rely on, among other factors, dis-
parate treatment of the affected employee as support for an
inference of unlawful motivation. Mesker Door, supra; See
Embassy Vacation Resorts, supra. Thus, the Respondent failed
to rebut the General Counsel’s prima facie showing that Simp-
son was discharged for his engagement in protected concerted
activities, and the Respondent discharged him in violation of
Section 8(a)(1) of the Act.
B. The Alleged Violations of Section 8(a)(3) and (1) of the Act
1. The Respondent’s issuance of written discipline to Tamika
Kelley on September 24 and October 8, 201518
a. The facts
Tamika Kelley drafted, circulated, and submitted to man-
agement the Lincoln petition by putting it in the management
mailboxes. However, she did so covertly and she was not iden-
tified on that document as the person responsible for submitting
it. There is also no evidence that the Respondent’s managers
and supervisors had any knowledge of her involvement with the
petition. As mentioned above, however, Kelley was one of the
organizers of the employees’ protected concerted picketing
activity, and as I have found above, she was unlawfully sus-
pended for that picketing activity in violation of Section 8(a)(1)
of the Act.
Kelley was also involved in the organizing for both the
AFSCME and SPFPA unions by passing out union authoriza-
tion cards and meeting with the union officials and the employ-
ees. There is, however, no evidence that the Respondent’s
management officials or supervisors were aware of her union
activities.
On September 18, 2015, Respondent Manager James Craw-
ford and Supervisor Kerwin Johnson notified Kelley that she
would be transferred from Schedule C to Schedule A, and Lin-
coln Shift Supervisor Michael Caston provided her written
notice of her transfer. (Tr. 271–272; GC Exh. 12.) In a conver-
sation with Kelly, Caston told her that her transfer would be-
come effective in 2 days. That transfer in shifts had the effect
of changing Kelley’s days off from Tuesdays and Wednesdays
to Sundays and Mondays. (Tr. 272.) Kelley told Caston that

18 The complaint alleges that Kelley was issued written discipline on
September 24 and October 10, 2015, but the evidence reflects that the
second discipline is dated October 8, 2015, instead of October 10,
2015. (GC Exh. 18.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
the notice of schedule change was too short because she already
scheduled personal leave for mandatory court appointments.
(Tr. 272.) In that connection, Kelley even provided Johnson
documentation of her scheduled court appointment, which was
for September 23, 2015, at 8:30 a.m., and a doctor’s note for
her daughter which was for September 22, 2015. (Tr. 289; GC
Exh. 20 and 21.) Kelley then requested to speak to Manager
Crawford, whom Caston reported to.
On September 19, 2015, Kelley met with Crawford, Cason,
and Supervisor Prince Fullerton, where she informed them that
the schedule change was short notice and she did not have time
to change prior scheduled court appointments. (Tr. 274.)
Fullerton told her that he heard she would not sign her schedule
change, and he told her that regardless of whether she signed it,
her schedule was being changed. (Tr. 273–274.) About 3 hours
later, Fullerton, Caston, and Crawford, along with Supervisor
Moore, gave Kelley a written performance evaluation and
asked her to review it, discuss any concerns, and sign it. (Tr.
274–275; GC Exh. 13.) Kelley reviewed the evaluation and
took issue with it as being untrue. (Tr. 276.) Kelley testified
that she asked those managers why she was still employed by
the Respondent if her performance was so poor, and Fullerton
replied that the purpose of the evaluation was to correct her
performance. (Tr. 276.) Kelley responded that the evaluation
was biased and prompted by her standing up for herself, and
she stated that she would be filing a grievance. (Tr. 276.) On
September 19, Kelley wrote a letter to Lincoln Facility Manag-
er Oliver Cooper for the purpose of grieving her performance
evaluation, and she submitted her grievance to Cooper by plac-
ing it in his mailbox at the Lincoln Facility. (Tr. 279; GC Exh.
14.) Kelley also hand-delivered a letter to Respondent’s human
resources department in order to document her concerns about
the performance evaluation. (Tr. 278–281; GC Exh. 15.)
On September 21, 2015, Kelley contacted Lincoln Facility
Manager Marlon Bradford by telephone and informed him she
would not come to work on September 22 and 23, 2015, be-
cause she had the above-mentioned prior scheduled personal
appointments. (Tr. 282.) Kelley informed Bradford that she
had already met with Crawford, Caston, and Fullerton about her
concerns, and Bradford said that Kelley should call back later
to speak to Lincoln Shift Supervisor Clifford Judkins. (Tr. 282.)
Kelley, however, said that she would not do that because she
was informing Bradford of her call-off from work, and she
subsequently did not report for work on either September 22 or
23, 2015. (Tr. 283.)
Shortly after Kelley arrived for work on September 24, 2015,
Supervisor Kerwin Johnson notified her that she was suspended
because of no-call/no-shows or her not calling-off from work
on September 22 and 23, 2015. (Tr. 284.) Kelley informed
Johnson about her earlier meetings with management, and that
she called-off and spoke with Manager Bradford. (Tr. 284)
Johnson responded that he did not “know of the situation,” and
he gave her a written disciplinary action. (Tr. 284; GC Exh.
16.) That written discipline was based on Kelley’s alleged
failure to call-off or report for work for her scheduled shifts on
September 22 and 23 as a violation of Respondent’s “time and
attendance policy.” (GC Exh. 16.) Kelley informed Johnson
that she would file a grievance over that matter. (Tr. 284.)
Later during that shift, Johnson issued Kelley a written “Cor-
rective Action Plan” stating that she called-off from work one
or more times in consecutive pay periods or being late one or
more times also in a pay period. (Tr. 184–286; GC Exh. 17.)
Shortly thereafter, Kelley was contacted by Human Re-
sources Generalist Mira Cronk who informed her that a meeting
had been scheduled for October 1, 2015. (Tr. 286.) In that
October 1st meeting, Kelley met with Human Resources Ad-
ministrator Wiser, Cronk, Crawford, Cooper, and Bradford.
Wiser invited Kelley to state her concerns, and she told them
that her schedule change conflicted with her prior scheduled
appointments, a four day vacation, and her coaching her daugh-
ter’s cheerleading team. (Tr. 287.) Wiser told her she was re-
quired to call-off for each day, and she replied that she previ-
ously met with Respondent and had called-off with Bradford on
September 21, 2015. (Tr. 287.)19 Kelley then told Cronk that
she wanted to meet with Executive Director Fernandez because
the meeting was going nowhere. (Tr. 288.) Cronk told her that
she would contact Fernandez to schedule a meeting. After the
meeting, Kelley was not returned to Schedule C, but Respond-
ent reimbursed her by submitting her personal leave for Sep-
tember 22 and 23, 2015. (Tr. 288–289.)
On October 2, 2015, after no success in scheduling a meeting
with Fernandez, Kelley hand-delivered a letter to Fernandez’
mailbox in the Lincoln Facility. (Tr. 289–291; GC Exh. 19.)
The record reflects that Kelley met with Fernandez on October
8, 2015, to discuss her issues with the schedule change and the
fact that Kelley had commitments already scheduled. (Tr. 625.)
In that meeting, Fernandez reviewed the time and attendance
policy with Kelley, and she admitted that Kelley’s schedule
change occurred quickly and she empathized with Kelley’s
position. (R. Exh. 14,. at 36–40) Fernandez then changed the
effective date for the schedule change to accommodate Kelley,
but she did not change the decision to issue Kelley a written
discipline.
The record, however, contains yet another discipline for Kel-
ley that the Respondent provided to the NLRB during its inves-
tigation of the unfair labor practice charge, which was dated
October 8, 2015. That discipline stated that Kelley was issued
a “counseling” for calling-off on September 21, 2015 for her
shifts on September 22 and 23, 2015. (GC Exh. 18.) Kelley
testified that the October 8 counseling was never given to her
by the Respondent, she had never seen it before the trial, and
that she was unaware that her suspension was reduced to a
“counseling.” (Tr. 291–293.) While the other disciplines ad-
mitted into the record in this case had been signed by manage-
ment officials or supervisors, and usually by the employee who
was the subject of the discipline, Kelley’s October 8 counsel-

19 Kelley also noted her performance evaluation, which she consid-
ered to be biased and untrue. (Tr. 287.) Cooper informed Kelley that
the reason her evaluation was low was because she interviewed for a
supervisory position, and she was unfamiliar with that material. (Tr.
287.) Wiser told her that Crawford knew the material for the position
better than she did, and Kelley responded that she was the one who
trained Crawford. (Tr. 287.) When Kelley asked Crawford if he be-
lieved her evaluation was true, he just put his head down. The General
Counsel, however, has not alleged that the issuance of the evaluation
violated the Act.
SPECTRUM JUVENILE JUSTICE SERVICES 27
ing/discipline was not signed by either management or her.
Kelley testified that with regard to these disciplinary actions,
the Respondent never informed her that they had been rescind-
ed, reduced to counseling, or removed from her personnel file.
(Tr. 289–293.)
b. The positions of the parties
The General Counsel contends that the Respondent disci-
plined Kelley on September 24 and October 10, 2015, because
of her engagement protected, concerted activity and union ac-
tivity in violation of Section 8(a)(3) and (1) of the Act. The
Respondent, however, argues that it was justified in disciplin-
ing Kelley because she failed to call-off to miss work on Sep-
tember 22 and 23, 2015. It also argues that the October 8,
2015, discipline in the record (GC Exh. 18) was drafted by the
Respondent, but never issued to Kelley and therefore she was
never issued discipline on that date.
c. Analysis
The General Counsel alleges that the Respondent violated
Section 8(a)(1) of the Act by issuing discipline to Kelley for her
engagement in protected concerted activities and Section
8(a)(3) and (1) for her engagement in union activities. Apply-
ing Wright Line, supra, the General Counsel has made a prima
facie showing that Kelley’s protected, concerted activity was a
“motivating factor” in the Respondent’s decision to discipline
her. The evidence establishes, and I have found, that Respond-
ent was aware of Kelley’s protected, concerted picketing activi-
ty, it harbored animus toward that protected activity, and it
suspended Kelley because of her involvement in the picketing
on July 6, 2015. Therefore, I find that the General Counsel
made a prima facie showing that the disciplines issued on Sep-
tember 24, 2015, in the form of a written reprimand (GC Exh.
16) and Disciplinary Action Plan (GC Exh. 17) were motivated
by her protected, concerted activity.
However, the Respondent argues that the Disciplinary Ac-
tion Plan “counseling” dated October 8, 2015 (GC Exh. 18)
should not be found to constitute unlawful discipline because it
was never issued to Kelley. (R. Br., at 32) Instead, it argues
that “someone typed up a document indicating Kelley would
get a ‘Counseling’ for her failure to call-in on September 22
and 23,” but that document “was never issued.” (R. Br. at 32.)
I find merit in that argument because that disciplinary form,
unlike the others found in the record, was not signed by the
Respondent’s management or supervisory officials, and it was
not signed by Kelley nor did it contain a notation by Kelley that
she read it but refused to sign it. In addition, Kelley testified
that she had not received that document, and she had not seen it
before the trial. Therefore, I do not find that she was issued
discipline on October 8, 2015, in the form of Disciplinary Ac-
tion Plan “counseling.” (GC Exh. 18.)
Even though I find that the General Counsel made a prima
facie showing of discrimination for Kelley’s protected concert-
ed activities, I do not find that the General Counsel made a
similar showing on the basis of her union activities under the
General Counsel’s theory that Respondent violated Section
8(a)(3) of the Act. In that connection, while the record estab-
lishes that Kelley was engaged in union activity and support for
both AFSCME and SPFPA, there is no evidence that Respond-
ent’s management or supervisory officials had any knowledge
of those activities. Therefore, I dismiss the allegation that the
Respondent violated Section 8(a)(3) of the Act by disciplining
Kelley.
On the showing of a prima facie case of discrimination for
Kelley’s protected concerted activities, the burden shifts to the
Respondent to demonstrate that Kelley would have been issued
the discipline even in the absence of the protected conduct. As
mentioned above, showing a legitimate reason for the discipline
is insufficient, and Respondent must instead demonstrate by a
preponderance of the evidence that Kelley would have been
disciplined even in the absence of her protected conduct. Roure
Bertrand Dupont, Inc., supra.
In this case, even though Kelley called-off of work on Sep-
tember 21, 2015, for her scheduled days of work on September
22 and 23, 2015, the Respondent issued her the written repri-
mand on September 24 for her failure to call-off for those
scheduled shifts. (GC Exh. 16.) That same day it also issued
her a Disciplinary Action Plan involving the same event for
“calling off 1 or more times in consecutive pay periods.” (GC
Exh. 17.) The Respondent argues that its requiring call-offs for
each day of absence was supported by the testimony of General
Counsel witness, youth worker Ruth Crosby, who testified that
Respondent’s policy did in fact establish that employees were
required to call in on every day that they were going to miss
work, and Respondent’s records showed that it disciplined em-
ployees for failing to call-off each day they were absent. (Tr.
495; R. Exh. 16.)
It is undisputed, however, that while the Respondent’s time
and attendance policy requires employees to call in on each day
of absence, that policy does not require employees to call in
each day of a multi-day absence when verification justifying
the multi-day absence is supplied to the Respondent. In that
regard, the policy specifically states:
Whenever an employee is going to be absent more than one
day, they must contact their immediate supervisor each day,
unless verification justifying the absence has been received
and approved. (R. Exh. 14, p. 36.)
Based on this evidence, I find that Respondent failed to show
that it had a legitimate basis to issue discipline to Kelley for
failing to call-off for the September 22 and 23, 2015, absences.
The evidence established that Kelley did call-off on September
21 for her absence on September 22, 2015, in accordance with
the requirement that she call-off more than 3 hours ahead of
time, and it is undisputed that she had the leave time available
for that absence. Incredibly, the Respondent failed to offer any
explanation for justifying the issuance of the written warning
for the September 22, 2015 absence, when in fact Kelley had
complied with the requirements and called-off for that day. In
addition, under the Respondent’s policy, she did not have to
call in on September 23 for that day’s absence because she
supplied the Respondent with documentation of her scheduled
court appointment on September 23, 2015, at 8:30 a.m., and a
doctor’s note for her daughter which was for September 22,
2015. (Tr. 289; GC Exh. 20 and 21.) Such documentation con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
stituted sufficient verification justifying the absences, and after
receiving that documentation, the Respondent failed to inform
her that it was in any way insufficient or that it would not be
approved. Thus, Kelley did comply with the policy and cor-
rectly called-off for those two days of work, and the Respond-
ent’s asserted justification for the discipline is false and without
merit.
The Respondent’s issuance of discipline for those days was
unlawful because providing false justification or no justification
for issuing discipline for those day’s absences supports an in-
ference that Respondent had an unlawful motive for its actions
that it wanted to conceal. Pam American Electric, 321 NLRB
473, 476 (1996); Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966). In addition, there was no credi-
ble justification for Respondent’s issuance of its corrective
action plan discipline on September 24, 2015, for the alleged
infraction of calling-off more than 1 day in a pay period. Such
discipline establishes a shifting reason for disciplining Kelley
that supports an inference that its stated reason for the disci-
pline was false. Rogers Electric, Inc., 346 NLRB 508, 518
(2006); Philo Lumber Co.., 236 NLRB 647, 650 (1978).
I therefore find that Respondent did not carry its burden of
showing that it would have issued discipline in the form of a
written reprimand and corrective action plan to Kelley for her
call-off on September 22 and 23, 2015, even in the absence of
her protected concerted activity. Accordingly, I find that Re-
spondent’s issuance of such discipline on September 24, 2015,
for her September 22 and 23, 2015 call-offs from work, violat-
ed Section 8(a)(1) of the Act.
C. The Alleged Violations of Section 8(a)(5),(3) and (1)of the
Act
1. On March 3, 2016, the SPFPA was elected, and subsequent-
ly certified, as the collective-bargaining representative of the
Respondent’s unit employees
In a representation election held in Case 07–RC–169521 on
March 3, 2016, a majority of the votes cast were for the SPFPA
(the Union). The Employer thereafter filed timely objections to
the election. In a Decision and Certification of Representative
issued by the Regional Director for Region 7 on March, 24,
2016, the objections were overruled, and the SPFPA was certi-
fied as the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and part-time armed and unarmed security offic-
ers, including direct care and youth workers performing guard
duties as defined in Section 9(b)(3) of the Act, employed by
the Employer at its facilities located at 300 Glendale and 1961
Lincoln, Highland Park, Michigan, but excluding, all office
clerical employees, professional employees and supervisors as
defined by the Act. (Jt. Exh. 4)20
The Respondent then requested review of the Regional Direc-
tor’s Decision. However, in an Order dated June 1, 2016, the
Board denied the Respondent’s request for review of the Re-

20 The Region issued an Erratum—Corrected Certification of Repre-
sentative in Case 07–RC–169521 on August 17, 2016. (Jt. Exh. 2.)
gional Director’s Decision and Certification of Representative.
(Jt. Exh. 3.)
In Spectrum Juvenile Justice Services, 364 NLRB No. 149
(November 22, 2016) (Jt. Exh. 7), the Board issued a Decision
and Order in Case 07–CA–180451. In that related case, the
Board found that on or about March 31 and July 1, 2016, the
SPFPA Union, by letters, requested that the Respondent recog-
nize and bargain collectively with it as the exclusive collective-
bargaining representative of the unit employees. Since on or
about March 31, 2016, the Respondent failed to do so, contest-
ing the Union’s certification as the bargaining representative in
the underlying representation proceeding.21 Upon a charge and
amended charges filed in that case, the General Counsel issued
an amended complaint on September 8, 2016, alleging that
Respondent violated Section 8(a)(5) and (1) of the Act by re-
fusing the Union’s request to recognize and bargain with it
following its certification. On October 4, 2016, the General
Counsel filed a Motion for Summary Judgment and the Re-
spondent admitted its refusal to bargain, but contested the va-
lidity of the certification of representative on the basis of its
objections to the election.
In Spectrum Juvenile Justice Services, supra, the Board
found that “[a]ll representation issues raised by the Respondent
were or could have been litigated in the prior representation
proceeding,” and that the Respondent failed to “adduce at a
hearing any newly discovered and previously unavailable evi-
dence, nor [did] it allege any special circumstances that would
require the Board to reexamine the decision made in the repre-
sentation proceeding.” Id. at slip op. 1. On that basis, the Board
found the Respondent had not raised any representation issue
that was properly litigable in that unfair labor practice proceed-
ing, and it accordingly granted the Motion for Summary Judg-
ment. Thus, the Board found that the Respondent failed and
refused to recognize and bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
2. In March 2016, after the SPFPA was chosen as the collec-
tive-bargaining representative of the unit employees, Respond-
ent coercively informed employees that breaks between sched-
uled and mandated shifts would no longer be allowed because
they voted for the Union, in violation of Section 8(a)(1) of the
Act, and Respondent discriminatorily and unilaterally eliminat-
ed such breaks without bargaining or providing the Union an
opportunity to bargain over that change, in violation of Section
8(a)(5), (3), and (1) of the Act
a. The facts
The record establishes that before the election in March
2016, the Respondent afforded employees breaks between their
regular shifts and their mandated overtime shifts. Even though
this practice was not in a written policy or rule, it was neverthe-
less a practice provided in the form of an unwritten policy. The
duration of such breaks ranged from 30 to 60 minutes. In that
regard, Atwater testified that the Respondent’s policy with

21 I take official notice of the record in the representation proceeding
as defined in the Board’s Rules and Regulations, Secs. 102.68 and
102.69(d). Frontier Hotel, 265 NLRB 343 (1982); Spectrum Juvenile
Justice Services, 364 NLRB No. 149 (2016).
SPECTRUM JUVENILE JUSTICE SERVICES 29
respect to breaks between employees’ regular shift and mandat-
ed overtime shifts was to always allow what he estimated to be
45–60-minute breaks between those shifts. (Tr. 94–95.) On the
shift that he worked (6 a.m.—2:00 p.m.) the residents would be
locked in their cells from approximately 1:50 p.m. – 2:30 p.m.,
and the managers would announce over the radios that the
mandated employees were to take their breaks between the two
shifts. (Tr. 96.) Calumet youth worker Danielle Boatwright
testified that the policy was for 30–60-minute breaks between
scheduled shifts and mandated shifts. (Tr. 464.) She stated that
the managers would announce over the radios who would be
staying over, and that they should take their break and then
report to the pod. (Tr. 465.) In addition, Lincoln youth worker
Ruth Crosby also testified that the employees were allowed a
30-minute break between their shifts and their mandated shifts.
(Tr. 489.)
Executive Director Fernandez, however, testified that the
Respondent never had a policy that allowed for breaks, and
employees were not entitled to have breaks, even if they were
mandated to work the following shift. (Tr. 592–593.) In that
connection, she testified that Michigan State law only requires
that employees under 18 years of age must be provided breaks,
and none of the youth workers are under 18 years old. (Tr. 593–
594.) She stated, however, that employees who felt the need to
take a “break” could call their supervisor and ask for relief.
Fernandez testified that in August 2014, she reiterated to the
supervisors that employees were not allowed breaks, however,
there is no credible evidence that Fernandez or any other man-
agement official informed the employees as such.
While Fernandez’ testimony regarding employee breaks be-
tween scheduled and mandated shifts conflicts with that of
many of the employees who testified, I do not credit her asser-
tions. As mentioned above, while I found that the General
Counsel’s witnesses were credible, I conversely found that
Fernandez was not a credible witness. I found her demeanor
lacking in that she testified at times in an evasive manner and
appeared to be less than candor. I also found her testimony
implausible and unbelievable at times. Importantly, I note that
her testimony about breaks was contradicted by the credible
testimony of several of her former managers, who testified that
Respondent did have a policy, albeit unwritten, of providing
breaks for employees between their scheduled shifts and man-
dated shifts. Former Facility Manager Steven Johnson
acknowledged that Respondent’s policy and practice was to
provide breaks between scheduled and mandated shifts, and he
testified that the duration of the breaks was approximately half-
an hour. (Tr. 379.) Likewise, Security Supervisor Hionel Black
confirmed that Respondent provided breaks for employees
before working mandated shifts. (Tr. 442–443.) Thus, I do not
credit Fernandez or any other Respondent witness who testified
that employees were not provided breaks between their sched-
uled and mandated shifts of work.
While the credible record evidence establishes that the em-
ployees were provided breaks between their scheduled and
mandated overtime shifts, after the election in March 2016, that
policy or practice changed. Atwater testified that the Respond-
ent’s policy for breaks changed in or around mid-March 2016,
when managers told the mandated employees to return to the
pods where they were working, and that there would be no
more breaks. (Tr. 98–99.) Calumet Facility Manager Leroy
Sherrod was one of the managers who conveyed the change in
policy by telling employees who were usually allowed to take a
break after their shift, to return to their pods where they were
mandated. (Tr. 100.) Atwater testified that since that time, no
breaks have been allowed for employees between their regular
shifts and their mandated overtime shifts.22 (Tr. 100–101.)
Youth Worker Danielle Boatwright also testified that in March
or April 2015, both Sherrod and Manager Childs informed her
that there would be no more breaks allowed at the Calumet
facility. (Tr. 464–465.) Calumet Youth Worker Kalaundra Hall
also testified that while they were allowed 30-minute breaks
between shifts, after the union election they were no longer
allowed such breaks. (Tr. 500–502.) Likewise, Youth Worker
Ruth Crosby testified that she was informed by management
that there would no longer be breaks between shifts allowed at
the Lincoln facility. (Tr. 490.)
Quiana Jenkins also testified that prior to the NLRB repre-
sentation election on March 3, 2016, the Respondent’s policy
was to allow employees a break (approximately 30 minutes)
between their scheduled shift and mandated shift in order to get
food or run errands. (Tr. 219.) According to Jenkins, in April
2016, shortly after the election, that policy changed when Re-
spondent no longer allowed for breaks between shifts. Instead,
the employees were required to report directly to the pod for
their mandated overtime shifts. (Tr. 219–222.) While that
change in policy was not formally announced, distributed in
writing, or posted for employees by the Respondent, Jenkins
testified that Sherrod informed employees through the company
radios that staff was no longer allowed such breaks and they
had to report to their assigned pods for the overtime shifts. (Tr.
220.)
In regard to this change in policy and practice, Jenkins testi-
fied that in a discussion she and other employees had with
Sherrod, an employee asked Sherrod “what’s up with us not
being able to take a break to get food or anything else,” and
Sherrod stated that “you guys voted the Union in, so we have to
follow the rules…no one can take breaks.” (Tr. 220–221.) The
General Counsel alleges that Sherrod’s statement regarding no
breaks because the employees voted the union in violated the
Act. I find merit in that assertion. Sherrod’s statement to em-
ployees that the reason they could no longer take breaks be-
tween shifts was because they voted in the Union was coercive
and would reasonably tend to interfere with their rights under
the Act to elect a union as their collective-bargaining repre-
sentative. I therefore find that Sherrod’s statement informing
employees that breaks would no longer be allowed because
they voted for the Union was coercive and a violation of Sec-

22 The Respondent argued that since Atwater stated in his affidavit
to the Government that the change in mandation breaks occurred in
mid-February 2016, rather than mid-March as he testified to at trial, I
should discredit his testimony. As mentioned above, I found Atwater
to be a very credible witness, and I find the 1-month difference in his
assertion as to the timing of the change in policy is inconsequential and
did not detract from his very credible demeanor at trial and the fact that
he appeared honest in character and testified in a very convincing and
truthful manner.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
tion 8(a)(1) of the Act.
Furthermore, with regard to Respondent’s elimination of
breaks, SPFPA Vice President Mark Crawford testified that at
the time he became aware the Respondent eliminated the breaks
between the scheduled and mandated shifts, the Respondent
failed to provide either he or the Union notice of such a change
in working conditions, and it did not provide the Union any
opportunity to bargain over that change. (Tr. 38–39.) SPFPA
Local 120 Union President Terrance Worthen likewise testified
that when he became aware that Respondent eliminated the
breaks between scheduled and mandated shifts, the Respondent
had not provided the Union with any opportunity to bargain
over that change in working conditions. (Tr. 63–64.)
b. The positions of the parties
The General Counsel argues that Respondent’s removal of
the breaks was a unilateral change made without providing the
union an opportunity to bargain, and that it was motivated by
the Respondent’s antiunion animus, in violation of Section
8(a)(5), (3) and (1) of the Act. The Respondent argues that it
has never allowed breaks and therefore there was no change in
policy, and that even if it was a change, it had no duty to bar-
gain because the Union was not properly certified as the repre-
sentative of the employees.
c. Analysis
It is well established that unilateral changes by an employer
during the course of a collective-bargaining relationship con-
cerning matters that are mandatory subjects of bargaining are
normally regarded as per se refusals to bargain. NLRB v. Katz,
369 U.S. 736 (1962). The Board has held that a unilateral
change in a mandatory subject of bargaining is unlawful only if
it is “material, substantial, and significant.” Flambeau Airmold
Corp., 334 NLRB 165, 165 (2001), modified 337 NLRB 1025
(2002); Alamo Cement Co., 281 NLRB 737, 738 (1986). The
Respondent’s policy or practice of allowing for employee
breaks between their scheduled and mandated shifts, despite not
being provided for in writing, was nevertheless a mandatory
subject of bargaining. That policy or practice was also materi-
al, substantial, and significant as it significantly impacted em-
ployees’ conditions of work.
The credible record evidence establishes that Respondent
changed that policy or practice after the union won the election,
and it is undisputed that the Respondent failed to bargain with
the union over that change. I find that the Respondent was
obligated to provide the union an opportunity to bargain over
that change, and upon request, bargain over the removal of
those breaks. Instead, Respondent implemented the change in
policy and practice, announcing it verbally and directly to the
employees as a fait accompli, even going so far as to blame the
Union for the loss of that term and condition of employment.
The Board has found that notifying employees directly of a
unilateral change and demonstrating a fixed position to imple-
ment the changes as announced are indicative of a fait accom-
pli, and thus evidence of an unlawful unilateral change. S & I
Transportation, Inc., 311 NLRB 1388 (1993). Respondent’s
failure to bargain over this unilateral change in this matter con-
stitutes a refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
This restriction on employers that prohibits unilateral chang-
es applies in this context where the Union won a Board con-
ducted election and the Respondent subsequently made unilat-
eral changes while the election objections were pending, and
the final determination had not been made. Mike O’Connor
Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on other
grounds 512 F.2d 684 (8th Cir. 1975); Flambeau Airmold
Corp., supra. The Respondent in this case, however, also con-
tinued to contest the Union’s status as the bargaining repre-
sentative despite the fact that the Board has found the Union is
the exclusive collective-bargaining representative of the unit
employees. Spectrum Juvenile Justice Services, 364 NLRB No.
149 (2016). Under such circumstances as this, the Respondent
“acts at its own peril in making [such] changes in terms and
conditions of employment,” and its actions constitute a viola-
tion of Section 8(a)(5) and (1) of the Act. Mike O’Connor
Chevrolet, supra; Flambeau Airmold Corp., supra.
I further find that Respondent’s timing and unilateral imple-
mentation of this change in policy and working conditions, as
shown by Sherrod’s unlawful and coercive statement to em-
ployees that the breaks were eliminated because the employees
voted for the Union, establishes that it was motivated by unlaw-
ful considerations, namely the employees’ efforts to vote the
Union in as their collective-bargaining representative. As such,
the Respondent’s unilateral elimination of such breaks also
constituted a violation of Section 8(a)(3) and (1) of the Act.
3. On April 2016, the Respondent discriminatorily and unilat-
erally required part-time contingent employees to work man-
dated overtime shifts without bargaining or providing the Un-
ion an opportunity to bargain over that change, in violation of
Section 8(a)(5), (3), and (1) of the Act
a. The facts
Atwater testified that the Respondent compiled a daily
“mandation list” with the names of employees who were re-
quired to work the next shift due to employees calling-off on
that shift. Every day a supervisor or manager would call out
the names of those mandated employees over the radios for all
agency employees. (Tr. 91–93.) Full-time employees could be
“mandated” or required to work overtime hours on the follow-
ing shift to ensure the shift was adequately staffed with youth
workers. Contingent employees are part-time employees who
could voluntarily work overtime hours if they desired, but they
could not be required or mandated to work those shifts. (Tr.
90.)
Quiana Jenkins, a contingent part-time youth worker who
started working at the Respondent’s facility on August 10,
2015, credibly testified that shortly after being hired she had
conversations with Calumet Facility Manager Leroy Sherrod
and Manager Cottingham, who informed her that contingent
workers were able to create their own schedules and choose the
days they worked. (Tr. 214–215.) She testified that mandated
overtime was when an employee was required to stay and work
an additional shift due to the fact that someone had called-off of
work. (Tr. 215.) Calumet Shift Supervisor Maurice Dillard,
Sherrod, and Cottingham had all informed her that contingent
employees could volunteer to work overtime, but they could
SPECTRUM JUVENILE JUSTICE SERVICES 31
not be required to do so. (Tr. 215.) Jenkins testified that when
she declined offers to work overtime, she was never penalized
or disciplined for doing so. (Tr. 218.)
Despite the fact that Fernandez claimed there was never a
written policy or rule stating that part-time contingent employ-
ees could not be mandated (Tr. 652), several of Respondent’s
managers and supervisors confirmed that Respondent’s policy
was that contingent employees could not be mandated for over-
time. In that connection, Facility Manager Steven Johnson
acknowledged that under Respondent’s policy, contingent em-
ployees could not be mandated. (Tr. 379.) Security Supervisor
Hionel Black also acknowledged that Respondent’s policy was
that contingent employees could be asked to work overtime, but
they could not be mandated to do so. (Tr. 445–447.)
The record establishes that after the union election in March
2016, the Respondent’s policy changed with regard to requiring
part-time contingent employees to work mandated overtime
shifts. Jenkins testified that Calumet Shift Supervisor Larry
Edwards told her in mid-April 2016, that Fernandez said all
contingent employees could now be mandated and that Sherrod
had spoken to the all the contingent employees about that
change. (Tr. 222–223) Calumet youth worker Danielle Boat-
wright also testified that the policy for contingent employee
mandation changed after the election, because in April 2016,
Sherrod told her “now contingents are getting mandated too.”
(Tr. 462–463.) Boatwright also talked to Kerphinias Stewart
the next day, who told her “everybody [is] getting mandated
now.” (Tr. 464.) She testified that Managers Childs and Cun-
ningham also said the same thing. (Tr. 464.) Consistent with
that change in policy, from April to September 2015, Boat-
wright was mandated to work overtime even though she was a
contingent employee. (Tr. 467.)
In addition, Atwater testified that after the NLRB election he
started hearing the names of contingent employees being called
by management to work mandated shifts, and some of those
employees who considered him a contact person for the Union,
asked him why they were being mandated when they had not
volunteered. (Tr. 91–93.) In response, Atwater told employees
that since the Union won the election, there should not be
changes to Respondent’s policies unless mutually agreed-upon
by the Company and the Union. (Tr. 93.) However, Atwater
testified that after the Respondent instituted the policy of man-
dating overtime for contingent employees, to his knowledge the
Respondent never informed the Union that it was going to
make that change in policy. (Tr. 94.) SPFPA Union Official
Worthen also testified that the Respondent never bargained
with the Union, nor provided it notice or an opportunity to bar-
gain over the change in requiring contingent employees to work
additional mandated shifts. (Tr. 64.)
b. The positions of the parties
The General Counsel argues that Respondent’s change in re-
quiring contingent employees to work mandated overtime shifts
was a unilateral change made without providing the union an
opportunity to bargain over it, and that it was motivated by the
Respondent’s antiunion animus. The Respondent argues that it
has never had a policy that allowed contingent employees to be
excluded from being required to work mandatory overtime
shifts, and that its records show some contingent employees
have worked overtime in the past, therefore there was no
change in policy. (R. Br. p. 24–25.) In addition, it argues that
even if it did institute that change in policy, it is not obligated
to bargain with the Union because the Union was not properly
certified as the representative.
c. Analysis
Despite the fact that Respondent does not have a written pol-
icy or rule stating that part-time contingent employees could
not be mandated, the credited testimony of the employees and
the Respondent’s former managers establishes that the Re-
spondent’s policy or practice was that contingent employees
could not be mandated to work overtime shifts. The Respond-
ent’s argument that its records show some contingent employ-
ees worked mandated overtime shifts before the election in
March 2016 constitutes evidence that such a policy did not
exist, is not entitled to any weight. I find no merit in that con-
tention because the record establishes that contingent employ-
ees have always been able to voluntarily work overtime hours
and shifts, and they have done so. However, they could not be
required to do so by the Respondent. Those records referenced
by Respondent do not establish that those contingent employees
who worked mandated overtime shifts were actually forced to
work them, and instead they could have voluntarily worked
them. In that regard, Human Resources Administrator James
Wiser acknowledged that, concerning the records in question,
the contingent employees could have volunteered to work those
mandated shifts, which was not noted on those documents. (Tr.
737–738; R. Exh. 17) Thus, I find that the Respondent main-
tained an unwritten policy or practice that part-time contingent
employees could not be required to work mandatory or mandat-
ed overtime shifts.
As mentioned above, the Board has established that unilat-
eral changes by an employer during the course of a collective-
bargaining relationship concerning matters that are mandatory
subjects of bargaining are regarded as per se refusals to bargain.
NLRB v. Katz, 369 U.S. 736 (1962). The credible record evi-
dence establishes that the Respondent maintained a policy or
practice of not requiring part-time contingent employees to
work mandatory or mandated overtime shifts, and that poli-
cy/practice was clearly a term and condition of employment
and a mandatory subject of bargaining. “Employee work rules
and particularly those that can lead to disciplinary actions con-
stitute mandatory subjects of bargaining.” Randolph Children’s
Home, 309 NLRB 341, 343 at fn. 3 (1992); Flambeau Airmold
Corp., supra 173. The record establishes that Respondent
changed that policy or practice after the union won the election,
and it is undisputed that the Respondent failed to bargain with
the union over that change. That change was certainly “materi-
al, substantial, and significant” in that it constituted a substan-
tial change in their working conditions.
I find that the Respondent had an obligation to notify the Un-
ion of its desire to make that change, to provide the union an
opportunity to bargain over that change, and upon request, bar-
gain over it. Instead, Respondent implemented the change in
policy by announcing it verbally and directly to the employees
as a fait accompli. S & I Transportation, Inc., supra. The Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
spondent’s unilateral change requiring contingent employees to
work mandated overtime, made without bargaining with the
Union and without providing the Union an opportunity to bar-
gain over that change, constituted an unlawful refusal to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
As mentioned above, the Respondent has contested the
SPFPA’s status as the exclusive collective-bargaining repre-
sentative of the unit employees, despite the fact that the Board
determined it is the exclusive collective-bargaining representa-
tive. Spectrum Juvenile Justice Services, 364 NLRB No. 149
(2016). In that regard, it has argued that since it “does not ac-
cept that the SPFPA is the collective-bargaining representative
of its [youth workers] and security workers, it would be illegal
for it to recognize the union and/or to negotiate with it as to the
terms and conditions of employment for that Unit.” (R. Br. at
26) Respondent’s failure to bargain over this unilateral change
regarding mandated overtime for contingent employees is thus
consistent with that unlawful position, and it “acts at its own
peril” by committing a violation of Section 8(a)(5) and (1) of
the Act.
In addition, I find that Respondent implemented this change
in policy because the employees selected the Union as their
collective-bargaining representative. Respondent’s timing and
unilateral implementation of this change in policy are evidence
that it was motivated by unlawful considerations, namely the
fact that the employees’ elected the Union as their collective-
bargaining representative, in violation of Section 8(a)(3) and
(1) of the Act.
4. On June 1, 2016, as a result of its unlawful unilateral change
in requiring part-time contingent employees to work mandatory
overtime shifts, the Respondent discharged employee Quiana
Jenkins in violation of Section 8(a)(5) and (1) of the Act
a. The facts
Quiana Jenkins started her employment with Respondent as
a contingent part-time youth worker on August 10, 2015. Her
immediate supervisor was Bridget Richards, Calumet’s shift
supervisor. (Tr. 212.) As mentioned above, Jenkins was in-
formed that as a part-time contingent employee, she could not
be required or mandated to work overtime shifts. However,
after the union election, the Respondent informed contingent
employees that they would be required to work mandated over-
time shifts, and in mid-April and again on April 29, 2016, Jen-
kins was mandated for overtime. When she informed Supervi-
sor Edwards that she could not work the mandated shift be-
cause she had to pick up her child, he informed her that if she
did not work her mandated overtime shift, she could be dis-
charged for abandoning her shift. (Tr. 223–224.)
Jenkins testified that she was notified on May 6, 2016, that
she was being mandated for the next shift, but she informed
management that she could not work that shift because she had
to get her child, and she left work after her scheduled shift. (Tr.
223–224.) The Respondent issued her a “Disciplinary Action
Plan” written reprimand dated May 10, 2016, which described
the “problem” as: “On the afternoon of May 2016 Youth
Worker Ms. Quiana Jenkins was informed that she would be
mandated for coverage on the afternoon shift (she refused to
accept mandating); stated that she cannot stay, due to not hav-
ing a baby sitter. This was the cause and effect, for the next
person in rotation to get mandated.” (GC Exh. 8.) The rule,
policy, or procedure which was violated was described as:
“Prohibited Conduct #8 Insubordination, which includes the
failure or refusal to obey instructions of supervisory staff; Pro-
hibited conduct #13 Leaving the job during work hours without
permission or abandonment of shift.” Finally, the disciplinary
document stated that Jenkins did not have any previous disci-
plinary or corrective actions for the same violation. (GC Exh.
8.)
On May 27, 2016, Jenkins was again called for mandated
overtime, but informed Calumet Shift Supervisor Maurice
Dillard that she could not work an overtime shift because she
had to pick up her children. Jenkins testified that Dillard told
her “OK,” and Jenkins left work after her scheduled shift. (Tr.
226–228.) However, on May 30, 2016, when Jenkins came to
work, Sherrod told her not to clock in, and to come back to
work at 10:00 to see human resources. (Tr. 229.) Jenkins re-
turned to work and went to the human resources department
where she met with Human Resources Administrator James
Wiser. (Tr. 230.) Jenkins testified that Wiser told her it was her
second instance of not staying for mandated overtime and “that
its possibly termination.” (Tr. 230.) Jenkins responded that she
had worked there for 9 months and had not been written up, and
he told her he would have to speak to Fernandez and call her
back. He further informed Jenkins that Fernandez told her
before that if she missed mandation she could be terminated,
but Jenkins told him that Fernandez never told her that. (Tr.
231.) Later that afternoon, Wiser called Jenkins and told her
that her employment was terminated. (Tr. 232.)
The Respondent issued Jenkins a discharge letter dated June
2, 2016, which informed her that she was terminated effective
May 27, 2016 (her last day worked), for violation of “Prohibit-
ed Conduct policy #13—Leaving the job during working hours
without permission or abandonment of shift. Specifically on
May 27, 2016 you left work without receiving permission from
your supervisor.” That letter, signed by Wiser, informed Jen-
kins that the Respondent considered her “a voluntary quit, i.e.
Job Abandonment.” (GC Exh. 10.)23
b. The positions of the parties
The General Counsel argues that Respondent’s discharge of
Jenkins was pursuant to and the result of its unlawful unilateral
change in requiring contingent employees to work mandated
overtime shifts in violation of Section 8(a)(5) and (1) of the
Act. The Respondent argues that it was justified in discharging
Jenkins and therefore did not violate the Act.
c. Analysis
As mentioned above, the Respondent unlawfully, discrimina-
torily, and unilaterally implemented its change in requiring

23 Jenkins testified that with the discharge letter she received another
letter from Fernandez dated May 31, 2016, regarding “meetings on
grievance follow-up,” which pertained to Jenkins’ grievances she sub-
mitted to Respondent regarding grievances submitted April 7 and April
29, 2016, addressing interactions between Jenkins and Facility Manager
Sherrod and in response to a written discipline for walking off a manda-
tory overtime shift on May 10. 2016. (GC Exh. 9.)
SPECTRUM JUVENILE JUSTICE SERVICES 33
contingent employees to work mandatory overtime in violation
of Section 8(a)(5), (3), and (1) of the Act. While previously the
Respondent’s contingent employees were not required to work
mandated overtime, and they would not be disciplined if they
were unable to work overtime, the Respondent changed that
policy and discharged Jenkins for that infraction. On May 27,
2016, she left work after her completing her scheduled shift
because she could not work the mandated overtime shift that
Respondent now required, and she was discharged for an at-
tendance violation for “leaving the job during working hours
without permission or abandonment of shift” as a result of that
unlawful unilateral change. (GC Exh. 10.)
The Board has held that employees disciplined or terminated
as a result of an employer’s unlawful unilateral change consti-
tute violations of Section 8(a)(5) of the Act. Flambeau Airmold
Corp., 334 NLRB 165, 166 (2001), modified 337 NLRB 1025
(2002); Consec Security, 328 NLRB 1201 (1999); Great West-
ern Produce, Inc., 299 NLRB 1004 (1990); See, e.g., Wind-
stream Corp., 352 NLRB 44, 44 (2008) (held any employees
terminated as a result of employer’s unlawful unilateral change
violated Sec. 8(a)(5) of the Act). In Great Western Produce,
supra, the Board held that certain discharges were violative of
Section 8(a)(5) because they resulted from the unilateral prom-
ulgation of a rule. In that case, the Board stated:
The Wright Line analysis is applied to alleged violations of
Section 8(a)(3). The focus of such an analysis, i.e., whether
the employer would have discharged the employee even ab-
sent the employee’s protected concerted activity, is on the
employer’s interference with the employee’s Section 7 rights.
In contrast, the focus of the analysis of a discharge alleged to
constitute a refusal to bargain in violation of Section 8(a)(5)
must be on the injury to the union’s status as bargaining rep-
resentative. An employer that refuses to bargain by unilateral-
ly changing its employees’ terms and conditions of employ-
ment damages the union’s status as the bargaining representa-
tive of the unit employees. That status is further damaged
with each application of the unlawfully changed term or con-
dition of employment. No otherwise valid reason asserted to
justify discharging the employee can repair the damage suf-
fered by the bargaining representative as a result of the appli-
cation of the changed term or condition.
We shall continue to apply the following test for analyzing
discharges and other discipline alleged to violate Section
8(a)(5): If the Respondent’s unlawfully imposed rules or pol-
icies were a factor in the discipline or discharge, then the dis-
cipline or discharge violates Section 8(a)(5). Great Western,
299 NLRB at 1005.
Since the Respondent discharged Jenkins pursuant to the un-
lawfully implemented change in policy requiring contingent
employees to work mandated overtime, when in fact she noti-
fied her supervisor that she was unable to work that overtime
shift, Respondent unlawfully discharged her in violation of
Section 8(a)(5) and (1) of the Act. Consec Security, supra at
1203-1204; Randolph Children’s Home, 309 NLRB 341
(1992).
5. On March 29 and July 1, 2016, the Respondent failed and
refused to provide information requested by the Union that was
necessary and relevant to its duties as collective-bargaining
representative of the unit employees, in violation of Section
8(a)(5) and (1) of the Act
a. The facts
As the Board referenced in its decision in Spectrum Juvenile
Justice Services, 364 NLRB No. 149 (2016), the SPFPA Union
made written requests that the Respondent recognize and bar-
gain with it as the exclusive collective-bargaining representa-
tive of the unit employees. Id. slip op. at 1–2. The undisputed
evidence in the instant case establishes that the Union’s re-
quests to bargain were by letters dated March 29 and July 1,
2016. (Jt. Exhs. 5 and 6) International SPFPA Union President
David Hickey attached identical requests for information to
those requests for bargaining, which stated as follows:
On behalf of the International Union, Security, Police & Fire
Professionals of America (SPFPA), I take this opportunity to
initiate [a] cooperative labor/management relationship with
your company.
In an effort to expedite the negotiations process, we request
the following information of the security workforce, which
we have been certified to represent.
For all Employees at the above mentioned worksite: names,
seniority, rank, hourly wages, mailing address, and phone.
Contact Information if applicable: GSA or Delegated Solici-
tation Number, anniversary date, copy of wage determination.
General Information on Company: organization chart, em-
ployee’s handbook, worksite operating procedures including
description of posts and hours of operation.
Benefit Package, summary plan description (H & W/ 401(k)),
summary of benefits and coverage (SBC) for each plan of-
fered.
Please forward the requested information to our Region 1
Vice President, Mark Crawford at 25510 Kelly Road, Rose-
ville, MI 48066 or email; mcrawford@spfpa.org.
According to Mark Crawford, the SPFPA’s vice president of
Region 1, the SPFPA Local 120 is part of Region 1 of the
SPFPA International Union, and he is responsible for organiz-
ing, negotiating collective-bargaining agreements, and handling
grievances. He testified that the March 29 and July 1 letters
were the standard letters the SPFPA sends out to begin bargain-
ing after being certified as the representative, and that the in-
formation requested was relevant to the Union’s desire to
commence bargaining. (Tr. 26–31.) The March 29 letter and
information request was sent certified mail to the Respondent,
and the United States Postal Service delivered the letter/request
for information to Fernandez on March 31, 2016. (Tr. 28; Jt.
Exh. 5.) Crawford testified that after sending the March 29
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
letter/request, the Union did not receive a response, a request to
clarify the information sought, or a request to narrow the re-
quest for information from the Respondent. (Tr. 31–32.) Craw-
ford testified that around mid-April 2016, within 2 weeks of
sending Respondent the March 29 letter/request, he called Fer-
nandez and left a message asking her to return his call. How-
ever, she never did so, and the Respondent failed to provide the
Union with any possible dates to commence the negotiations.
(Tr. 35–37.)
Crawford then sent the same demand for bargaining and re-
quest for information to the Respondent on July 1, 2016, be-
cause the Union did not receive a response to the March 29
letter. (Tr. 32–33.) Crawford testified that he likewise did not
receive a response to the July 1 letter requesting bargaining and
information, and approximately one week after sending that
letter (on or about July 7), he called Fernandez and left another
message for her to contact him, but she never returned that call
either. (Tr. 36–37.)
SPFPA Local 120 President Terrance Worthen testified that
after receiving the Board’s Order denying Respondent’s request
for review of the Regional Director’s Decision and Certifica-
tion of Representative dated June 1, 2016 (Jt. Exh. 3.), he called
Fernandez on July 11, 2016, to schedule times for contract
negotiations, but she was not there and he did not leave a mes-
sage. (Tr. 51–54.) Worthen then called Fernandez again on
July 13 and 19, 2016, and left messages for her requesting that
she contact him for bargaining, but she never responded. (Tr.
55–56.) Later in the afternoon of July 19, 2016, he called Re-
spondent’s counsel and representative, Sheryl Laughren, and
left a message. She called him back on July 21 or 22, 2016,
and he told her that he was trying to reach Fernandez to begin
contract negotiations, and he requested Laughren’s assistance
in reaching Fernandez. (Tr. 57–58.) He testified that Laughren
informed him that she would check with the Respondent and
get back to him, but she never did, and Fernandez never con-
tacted him. (Tr. 59.)
b. The positions of the parties
The General Counsel alleges that the Respondent violated
the Act by failing to provide the Union with the information it
requested. The Respondent admitted in its answer to the com-
plaint that it received the SPFPA’s written information requests
of March 29 and June 1, 2016, and that it failed to provide the
information requested. (Tr. 44–45; Jt Exh. 5, GC Exh. 1(oo).)
Although the Respondent denied that the information the Union
requested was necessary and relevant to the Union’s perfor-
mance of its duties as the representative of the employees, it
offered no evidence or argument to support its assertion that the
information was not necessary or relevant. The Respondent
provided no defense to this allegation other than its determina-
tion that the election was not properly conducted and the Union
was therefore not properly certified as the employees’ collec-
tive-bargaining representative. (R. Br. at48–49)
c. Analysis
It is well settled that an employer’s duty to bargain collec-
tively under Section 8(a)(5) of the Act includes the duty to
supply requested information to a union that is the collective-
bargaining representative of the employer’s employees if the
requested information is relevant and reasonably necessary to
the union’s performance of its responsibilities. NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956); Detroit Edison Co. v. NLRB,
440 U.S. 301 (1979); see also Central Soya Co., 288 NLRB
1402 (1988). This duty applies to contract negotiations and
extends to requests made during the term of the contract for
information relevant to and necessary for contract administra-
tion and grievance processing. Beth Abraham Health Services,
332 NLRB 1234 (2000). The standard for determining the
relevancy of requested information is a liberal one and it is
necessary only to establish “the probability that the desired
information is relevant, and that it would be of use to the union
in carrying out its statutory duties and responsibilities.” Id. at
437.
Where the union’s request is for information pertaining to
employees in the bargaining unit, that information is presump-
tively relevant and the Respondent must provide the infor-
mation. In this case, the information the Union requested, such
as names, hourly wages, addresses, organizational charts, em-
ployee handbooks, benefit packages, and worksite operating
procedures, is presumptively relevant and it is necessary for the
Union to negotiate an initial collective-bargaining agreement
with the Respondent. Bryant & Stratton Business Institute, 321
NLRB 1007 (1996). The Board has held that when information
“has been demonstrated to be relevant, the burden shifts to the
respondent to establish that the information is not relevant, does
not exist, or for some other valid and acceptable reason cannot
be furnished to the requesting party.” House of Good Samaritan
Medical Facility, 319 NLRB 392, 397 (1995), citing Somerville
Mills, 308 NLRB 425 (1992). The Respondent has made no
such showing in this case.
Instead, as mentioned above, the Respondent provided no
defense to this allegation other than its assertion that it could
not bargain with the Union or provide the information request-
ed because the election was not properly conducted and the
Union was not properly certified as the bargaining representa-
tive. (R. Br. at 48–49.) That argument, however, is without
merit, as the Board has already decided that issue. As men-
tioned above, the Board held in Spectrum Juvenile Justice Ser-
vices, 364 NLRB No. 149 (2016), that all representation issues
raised by the Respondent were or could have been litigated, and
it failed and refused to recognize and bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.
Based on the above, I find that the Respondent’s actions con-
stitute a failure and refusal to bargain and to provide the Union
with the requested information, which was relevant and neces-
sary for its duties as the exclusive collective-bargaining repre-
sentative of the unit employees, in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Spectrum Juvenile Justice Services is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the AFSCME, SPFPA, and
SPFPA Local 120 have been labor organizations within the
meaning of Section 2(5) of the Act.
SPECTRUM JUVENILE JUSTICE SERVICES 35
2. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by: unlawfully interro-
gating employees regarding their engagement in, sympathy for,
and support of protected, concerted activities; engaging in sur-
veillance of employees’ protected concerted activities; threaten-
ing employees with discipline for engaging in protected, con-
certed activities; creating the impression that employees’ pro-
tected concerted activities are under surveillance; threatening
employees with discipline for engaging in protected, concerted
activities; threatening employees with discipline for engaging
in protected concerted activities; unlawfully interrogating em-
ployees regarding their union and protected activities; and co-
ercively informing employees that breaks would no long be
allowed because they chose the Union as their collective-
bargaining representative.
3. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by: suspending Sherman
Cochran, Tamika Kelley, and Delaine Singleton-Green; dis-
charging Alfred Neely; and discharging Lamont Simpson.
4. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by disciplining Tamika
Kelley with a written reprimand on September 24, 2015, for her
failure to call-off for her scheduled shifts on September 22 and
23, 2015.
5. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5), (3), and (1) of the Act by: unilat-
erally eliminating breaks between scheduled and mandated
shifts of work and requiring part-time contingent employees to
work mandated overtime shifts, without bargaining with the
Union or providing the Union an opportunity to bargain over
those changes in employees’ terms and condition of employ-
ment.
6.The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act by, as a result of
its unlawful unilateral change requiring part-time contingent
employees to work mandated overtime shifts, discharging Qui-
ana Jenkins.
7. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act by on or about
March 29 and July 1, 2016, refusing to recognize and bargain
with the Union and by failing and refusing to provide the Union
with information it requested that was relevant to, and neces-
sary for, its duties as the collective-bargaining representative of
the Respondent’s bargaining unit employees.
8. The above unfair labor practices affect commerce with
the meaning of Section 2(2), (6), and (7) of the Act.
9. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, by unlawfully disciplining Tamika Kelley
on September 24, 2015, shall be ordered to rescind that disci-
pline in the form of a written reprimand for her failure to call-
off for her scheduled shifts on September 22 and 23, 2015, and
to provide Kelley with written notice that said discipline has
been rescinded and removed from her personnel files. The
make whole remedy shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971).
The Respondent, by unlawfully suspending Sherman
Cochran, Tamika Kelley, and Delaine Singleton-Green for their
engagement in protected, concerted activities, shall be ordered
to make them whole, if that has not already been done, for any
loss of earnings and other benefits he may have suffered as a
result of the discrimination against them. The Respondent, by
unlawfully discharging Alfred Neely, Lamont Simpson, and
Quiana Jenkins, shall be ordered to offer them reinstatement to
their former positions, or if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed, and to
make them whole for any loss of earnings and other benefits
they may have suffered as a result of the discrimination against
them.
As the violations for Sherman Cochran, Tamika Kelley, De-
laine Singleton-Green, Alfred Neely, Lamont Simpson, and
Quiana Jenkins involve cessations of employment, the make
whole remedy shall be computed on a quarterly basis, less any
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
In accordance with Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB No. 10 (2014), the Respondent shall compen-
sate Cochran, Kelley, Singleton-Green, Neely, Simpson, and
Jenkins for the adverse tax consequences, if any, of receiving a
lump-sum backpay awards. In addition, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the
Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, submit
and file with the Regional Director for Region 7 a report allo-
cating the backpay awards to the appropriate calendar years for
said employees. The Regional Director will then assume re-
sponsibility for transmission of the reports to the Social Securi-
ty Administration at the appropriate time and in the appropriate
manner.
In accordance with King Soopers, Inc., 364 NLRB No. 93
(2016), the Respondent shall also compensate Cochran, Kelley,
Singleton-Green, Neely, Simpson, and Jenkins for search-for-
work and interim employment expenses regardless of whether
those expenses exceed their interim earnings. Search-for-work
and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra. The Respondent shall also
be ordered to expunge from its files any and all references to
the unlawful suspensions of Cochran, Kelley, and Singleton-
Green, and unlawful discharges of Neely, Simpson, and Jen-
kins, and notify them in writing that this has been done and that
evidence of the discriminatory and unlawful actions will not be
used against them in any way.
The Respondent shall ordered to make unit employees whole
for losses they may have sustained as a result of Respondent’s
unilateral changes to its policies and practices, such as requir-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
ing part-time contingent employees to work mandated overtime
shifts, including losses sustained by unit employees who may
have been discharged, suspended, or otherwise disciplined un-
der these unlawful unilateral changes in policies or practices.
See Salem Hospital Corp., 360 NLRB 768, 768 fn. 1 (2014);
Crittenton Hospital, 342 NLRB 686, 697 (2004); Laurel Baye
Healthcare, 352 NLRB 179 (2008), vacated and remanded 564
F.3d 469 (D.C. Cir. 2009), cert. denied 130 S.Ct. 3498 (2010),
affd. 355 NLRB 599 (2010). For unit employees who may
have been separated from employment under the unilateral
changes in policy and practice, backpay shall be computed in
accordance with F. W. Woolworth Co., supra. For unit employ-
ees who may have otherwise been disciplined as a result of the
unlawful unilateral changes in policy and practice, the make
whole remedy shall be computed in accordance with Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971). For both groups of unit employees, the remedy
shall include interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). Addi-
tionally, the Respondent shall be ordered to compensate affect-
ed employees for the adverse tax consequences, if any of re-
ceiving a lump-sum backpay awards. In addition, in accord-
ance with AdvoServ of New Jersey, Inc., supra, the Respondent
shall, within 21 days of the date the amount of backpay is fixed
either by agreement or Board order, submit and file with the
Regional Director for Region 7 a report allocating the backpay
awards to the appropriate calendar years for said employees.
The Regional Director will then assume responsibility for
transmission of the reports to the Social Security Administra-
tion at the appropriate time and in the appropriate manner. In
addition, in accordance with King Soopers, Inc., supra, Re-
spondent shall also compensate those affected employees for
search-for-work and interim employment expenses regardless
of whether those expenses exceed their interim earnings.
Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra. The
Respondent shall also be ordered to expunge from its files any
and all references to the unlawful disciplines, suspensions, or
discharges of such affected employees, and notify them in writ-
ing that this has been done and that evidence of the discrimina-
tory and unlawful actions will not be used against them in any
way.
With regard to employees affected by the Respondent’s un-
lawful unilateral changes in policies and practices, I note that
the Board has broad discretion to fashion an appropriate reme-
dy, and it is within its discretion to order reinstatement and
make-whole remedies even where there have been no employ-
ees identified as having been disciplined, suspended, or dis-
charged as a result of the Respondent’s unlawful unilateral
changes. Salem Hospital Corp., 360 NLRB 768, 768 fn. 1
(2014); See, e.g., Windstream Corp., 352 NLRB 44, 44 (2008)
(ordering reinstatement and make-whole remedy in the event
that any unit employee had been terminated as a result of the
employer’s unlawful unilateral change), reaffirmed and incor-
porated by reference 355 NLRB 406, 406 (2010); Uniserv, 351
NLRB 1361, 1362 (2007) (ordering reinstatement and make-
whole relief for unnamed unit employees who had been dis-
charged and/or suffered loss of earnings and other benefits as
the result of respondent’s unlawful unilateral changes).
The General Counsel further requests that I order that em-
ployees be reimbursed for “consequential economic harm”
incurred by them as a result of Respondent’s unlawful conduct.
(GC Br. 66-72) However, the Board does not traditionally
provide remedies for consequential economic harm in its make-
whole orders. See, e.g., Operating Engineers Local 513 (Long
Const. Co.), 145 NLRB 554 (1963). While the General Coun-
sel acknowledges that the Board typically does not include such
a remedy, he nevertheless urges that if said employees are una-
ble to pay their mortgage or car payments as a result of the
unlawful discrimination against them, they should be compen-
sated for the “economic consequences that flow from the inabil-
ity to make payment[s],” such as late fees, foreclosure expens-
es, repossession costs, moving costs, legal fees, and any costs
associated with obtaining a new house or car. (GC Br. 69.) I
am, of course, obligated to follow existing Board precedent in
resolving the issues present in this case. Pathmark Stores, Inc.,
342 NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746,
749 fn. 14 (1984). Accordingly, I deny the General Counsel’s
request for these additional remedies.
Finally, the Respondent shall be ordered to recognize and
bargain with the Union, and provide the Union with the infor-
mation it requested on March 29 and July 1, 2016. As part of
the remedy, the Respondent shall be ordered to recognize and
bargain with the Union for the period of time required by Mar-
Jac Poultry, 136 NLRB 785 (1962), as the exclusive collective-
bargaining representative of the appropriate bargaining unit.
The Board has long held that an employer’s refusal to bargain
with a newly certified union during part or all of the year im-
mediately following certification deprives the union of its op-
portunity to bargain during the time of the union’s greatest
strength. Santa Barbara News-press, 358 NLRB 1415, 1417
(2012); Northwest Graphics, Inc., 342 NLRB 1288, 1289
(2004); Van DornPlastic Machinery Co., 300 NLRB 278
(1990), enfd. 939 F.2d 402 (6th Cir. 1991). In these circum-
stances, the Board extends the certification year in order to
ensure at least one year of good-faith bargaining. Santa Barba-
ra News-press, supra. In this case, the Respondent’s unfair
labor practices have intervened and prevented the employees’
certified bargaining representative from enjoying a free period
of a year after certification to establish a bargaining relation-
ship, and it is entitled to resume its free period after the termi-
nation of the litigation involving the employer’s unfair labor
practices. The Respondent has also refused to recognize and
bargain with the Union even after the Board’s Order approxi-
mately 1 year ago requiring it to recognize and bargain with the
Union.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended:24

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
SPECTRUM JUVENILE JUSTICE SERVICES 37
ORDER
The Respondent, Spectrum Juvenile Justice Services, High-
land Park, Michigan, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Engaging in the following conduct: (1) unlawfully inter-
rogating employees regarding their engagement in, sympathy
for, or support of protected concerted activities; (2) engaging
in surveillance of employees’ protected concerted activities; (3)
unlawfully interrogating employees about their union sympa-
thies, membership, or support; (4) threatening employees with
discipline, including discharge, for engaging in protected con-
certed activities; (5) creating the impression that employees’
protected concerted activities are under surveillance; and (6)
coercively informing employees that breaks would no long be
allowed because they chose or voted for the Union as their
collective-bargaining representative.
(b) Suspending, discharging, disciplining or otherwise dis-
criminating against employees because they engage in protect-
ed concerted activities, such as bringing complaints or concerns
about their working conditions to the Respondent on behalf of
themselves and other employees.
(c) Discriminatorily and/or unilaterally eliminating breaks
and requiring part-time contingent employees to work mandat-
ed overtime shifts, without bargaining with the Union or
providing the Union an opportunity to bargain over such
changes in employees’ terms and conditions of employment.
(d) Discharging employees as a result of their inability to
comply with unlawful unilateral changes requiring part-time
contingent employees to work mandated overtime shifts, or any
other unilateral changes to employees’ terms and conditions of
employment.
(e) Failing and refusing, upon request, to recognize and bar-
gain collectively with the International Union, Security, Police
and Fire Professionals of America (SPFPA Union), the certified
collective-bargaining representative of the employees in the
following bargaining unit, and by failing and refusing to furnish
it with requested information in a timely manner that is relevant
and necessary to the Union’s performance of its duties as the
exclusive collective-bargaining representative of the unit:
All full-time and part-time armed and unarmed security offic-
ers, including direct care and youth workers performing guard
duties as defined in Section 9(b)(3) of the Act, employed by
the Employer at its facilities located at 300 Glendale and 1961
Lincoln, Highland Park, Michigan, but excluding, all office
clerical employees, professional employees and supervisors as
defined by the Act.
(f) In any like or related manner, restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act
(a) Within 14 days of this Order, rescind the policy/practice

ed by the Board and all objections to them shall be deemed waived for
all purposes.
of requiring part-time contingent employees to work mandated
overtime shifts, and reinstate the policy/practice of providing
breaks between employees’ scheduled and mandated overtime
shifts.
(b) Upon request, recognize and bargain in good faith with
the SPFPA Union for a period of time required by Mar-Jac
Poultry, 136 NLRB 785 (1962), and furnish the Union, in a
timely manner, with the information it requested on March 29
and July 1, 2016, that is relevant to, and necessary for, its duties
as the collective-bargaining representative of the bargaining
unit employees.
(c) Within 14 days from the date of the Board’s Order, offer
Alfred Neely and Lamont Simpson full reinstatement to their
former jobs, or if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(d) Within 14 days from the date of the Board’s Order, offer
Quiana Jenkins, and all other contingent employees who were
discharged, suspended, or disciplined for failing to comply with
the unlawful and unilaterally imposed requirement that they
work mandated overtime shifts, full reinstatement to their for-
mer jobs, or if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(e) Make whole Sherman Cochran, Tamika Kelley, Delaine
Singleton-Green, Alfred Neely, Lamont Simpson, Quiana Jen-
kins, and all other contingent employees who were suspended
or discharged for failing to comply with the unlawful and uni-
laterally imposed requirement that they work mandated over-
time shifts, for any loss of earnings and other benefits suffered
as a result of their unlawful disciplines, suspensions, or dis-
charges, less any net interim earnings, plus interest, including
any search-for-work and interim employment expenses they
incurred, in the manner set forth in the remedy section of this
decision.
(f) Compensate Sherman Cochran, Tamika Kelley, Delaine
Singleton-Green, Alfred Neely, Lamont Simpson, Quiana Jen-
kins, and all other contingent employees who were suspended
or discharged for failing to comply with the unlawful and uni-
laterally imposed requirement that they work mandated over-
time shifts, for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and file with the Regional Di-
rector for Region 7, within 21 days of the date the amounts of
backpay are fixed, either by agreement or Board order, reports
allocating the backpay awards to the appropriate calendar years
for those employees.
(g) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspensions of Sherman
Cochran, Tamika Kelley, and Delaine Singleton-Green; the
unlawful discharges of Alfred Neely and Lamont Simpson; the
unlawful discipline in the form of a written reprimand issued to
Tamika Kelley on September 24, 2015, for her failure to call-
off for her scheduled shifts on September 22 and 23, 2015; and
the unlawful discharge of Quiana Jenkins, and all other contin-
gent employees who were disciplined, suspended or discharged
for failing to comply with the unlawful and unilaterally im-
posed requirement that they work mandated overtime shifts,
and within 3 days thereafter, notify said employees in writing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
that this has been done and that the suspensions, discharges,
and discipline will not be used against them in any way.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including electronic copies of such records if stored in
electronic form, necessary to analyze the amounts of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its fa-
cility in Highland Park, Michigan, copies of the attached notice
marked “Appendix.”25 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since July 3, 2015.
(j) Within 21 days after service by the Region, file with the
Regional Director for Region 7 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. October 11, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unlawfully interrogate you about your en-
gagement in, sympathy for, or support of union or protected,
concerted union activities, including bring complaints or con-
cerns about your working conditions to us on behalf of your-
selves or other employees.
WE WILL NOT engage in surveillance of your protected, con-
certed activities.
WE WILL NOT unlawfully interrogate you about your union
sympathies, membership, or support.
WE WILL NOT threaten you with discipline, including dis-
charge, for engaging in protected, concerted activities.
WE WILL NOT create the impression that your engagement in
protected, concerted activities are under surveillance.
WE WILL NOT coercively inform you that you will no longer
be allowed breaks because you chose or voted for the Union as
your collective-bargaining representative.
WE WILL NOT suspend, discharge, discipline, or otherwise
discriminate against you for engaging in protected concerted
activities, such as bringing complaints or concerns about your
working conditions to us on behalf of yourselves and other
employees.
WE WILL NOT discriminatorily and/or unilaterally eliminate
breaks or require part-time contingent employees to work man-
dated overtime shifts, without bargaining with the Union or
providing the Union an opportunity to bargain over those
changes in your terms and conditions of employment.
WE WILL NOT, as a result of our unlawful unilateral change
requiring part-time contingent employees to work mandated
overtime shifts, suspend or discharge you because you were
unable to work those mandated shifts as directed.
WE WILL NOT, upon request, refuse to recognize and bargain
in good faith with the SPFPA Union or fail and refuse to pro-
vide the Union with information it requested that is relevant to,
and necessary for, its duties as the collective-bargaining repre-
sentative of our bargaining unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act, which are listed above.
WE WILL, within 14 days from the date of the Board’s Order,
rescind the policy/practice of requiring part-time contingent
employees to work mandated overtime shifts, and WE WILL
reinstate the policy/practice of providing breaks between em-
ployees’ scheduled and mandated overtime shifts.
WE WILL, upon request, recognize and bargain in good faith
with the SPFPA Union for a period of time required by Mar-
Jac Poultry, 136 NLRB 785 (1962), and WE WILL furnish the
SPFPA Union, in a timely manner, with the information it re-
quested on March 29 and July 1, 2016, that is relevant to, and
necessary for, its duties as the collective-bargaining representa-
tive of the bargaining unit employees.
WE WILL, within 14 days from the date of the Board’s Order,
offer Alfred Neely and Lamont Simpson full reinstatement to
their former jobs, or if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their seniority r
any other rights or privileges previously enjoyed.
SPECTRUM JUVENILE JUSTICE SERVICES 39
WE WILL, within 14 days from the date of the Board’s Order,
offer Quiana Jenkins and all other part-time contingent em-
ployees who we discharged for failing to comply with our un-
lawful and unilaterally imposed requirement that they work
mandated overtime shifts, full reinstatement to their former
jobs, or if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Sherman Cochran, Tamika Kelley, Delaine
Singleton-Green, Alfred Neely, Lamont Simpson, Quiana Jen-
kins, and all other contingent employees who we suspended or
discharged for failing to comply with our unlawful and unilat-
erally imposed requirement that they work mandated overtime
shifts, whole for any loss of earnings and other benefits result-
ing from their unlawful suspensions or discharges, less any net
interim earnings, plus interest, including any search-for-work
and interim employment expenses they incurred as a result of
the unlawful suspensions or discharges.
WE WILL compensate Sherman Cochran, Tamika Kelley, De-
laine Singleton-Green, Alfred Neely, Lamont Simpson, Quiana
Jenkins, and all other contingent employees who we suspended
or discharged for failing to comply with our unlawful and uni-
laterally imposed requirement that they work mandated over-
time shifts, for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and WE WILL file with the Re-
gional Director for Region 7, within 21 days of the dates the
amounts of backpay are fixed, either by agreement or Board
order, reports allocating the backpay awards to the appropriate
calendar years for those employees.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any references to the unlawful suspen-
sions of Sherman Cochran, Tamika Kelley, Delaine Singleton-
Green; the unlawful discipline in the form of a written repri-
mand issued to Tamika Kelley on September 24, 2015, for her
failure to call-off for her scheduled shifts on September 22 and
23, 2015; and the unlawful discharges of Alfred Neely, Lamont
Simpson, Quiana Jenkins, and all other contingent employees
who we disciplined, suspended, or discharged for failing to
comply with our unlawful and unilaterally imposed requirement
that they work mandated overtime shifts, and WE WILL, within 3
days thereafter, notify said employees in writing that this has
been done and that the suspensions, discharges, and discipline
will not be used against them in any way.
SPECTRUM JUVENILE JUSTICE SERVICES
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-155494 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.