Brookdale Senior Living, Inc. d/b/a Emeritus Senior Living

National Labor Relations Board - Administrative Judge Opinions

Jun 2, 2015

28-CA-134729 (N.L.R.B. Jun. 2, 2015)

JD(SF)–23–15
Phoenix, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
BROOKDALE SENIOR LIVING, INC.
D/B/A EMERITUS SENIOR LIVING,
and Case 28-CA-134729
MARISOL DOMINGUEZ,
AN INDIVIDUAL
Stefanie J. Parker, Esq., and Paul R. Irving, Esq.,
for the General Counsel.
Jeffrey E. Toppel, Esq.
(Jackson Lewis P.C.),
for Respondent.
DECISION
STATEMENT OF THE CASE
Amita Baman Tracy, Administrative Law Judge. This case was tried in Phoenix, Arizona,
on March 10, 2015. MariSol Dominguez (the Charging Party) filed the charge on August 14,
2014.1 The General Counsel issued the complaint on October 31.
The complaint alleges that Brookdale Senior Living, Inc. d/b/a Emeritus Senior Living
(Respondent)2 violated Section 8(a)(1) of the National Labor Relations Act (the Act) by: (1)
maintaining overly-broad and discriminatory rules since February 14; (2) issuing a final written
warning to the Charging Party on or about July 30; and (3) discharging the Charging Party on or
about August 13. Respondent filed a timely answer denying the alleged violations in the
complaint.

1 All dates are in 2014 unless otherwise indicated.
2 Respondent is also known as Chris Ridge Senior Living and Christown (Tr. 21, 191).
JD(SF)–23–15
2
On the entire record,3 including my observation of the demeanor of the witnesses,4 and
after considering the briefs filed by the General Counsel and Respondent,5 I make the following
FINDINGS OF FACT5
I. JURISDICTION
Respondent, a limited liability company, operates a nursing home, and provides inpatient
medical care and senior living facilities at its office and place of business in Phoenix, Arizona, 10
where it purchased and received goods valued in excess of $50,000 directly from points outside
the State of Arizona, and derived gross revenues in excess of $100,000. Respondent admits and
I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and has been a health care institution within the meaning of Section 2(14) of the
Act.15

3 The transcripts in this case are generally accurate, but I make the following corrections to
the record: Transcript (Tr.) 11, Line (L.) 4: “motive stating” should be “motivating;” Tr. 32, L. 9:
“of” should be “or;” Tr. 41, L. 17: “car” should be “CAR” which stands for “corrective action
required;” Tr. 44, L. 8, L. 11, L. 21; Tr. 172, L. 16, L. 25: “car” should be “CAR;” Tr. 44, L. 25:
“card” should be “CAR;” Tr. 127, L. 23, Tr. 140, L. 11: the speaker should be Mr. Toppel, not
Ms. Parker.
4 In making my findings regarding the credible evidence, including the credibility of
witnesses, I considered the testimonial demeanor of such witnesses, the content of the testimony
and the inherent probabilities based on the record as a whole. In certain instances, I may have
credited some but not all, of what the witnesses said. “Nothing is more common in all kinds of
judicial decisions than to believe some and not all” of the testimony of a witness. 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 (951). See also J. Shaw Associates,
LLC, 349 NLRB 939, 939–940 (2007). This is particularly the case where the credited portions
of the witness’ testimony are “consistent with the testimony of credited witnesses or with
documentary evidence,” constitute an admission against interest, or are relied upon by the party
against which a particular issue is being resolved. Upper Great Lakes Pilots, 311 NLRB 131, fn.
2 (1993). In addition, I have carefully considered the testimony in contradiction to my factual
findings, but I have discredited such testimony, either as having been in conflict with credited
documentary or testimonial evidence, or because it was in and of itself incredible and
untrustworthy.
5 Other abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s
exhibit; “R. Exh.” for Respondent’s exhibit; “GC Br.” for the General Counsel’s brief; and “R.
Br.” for the Respondent’s brief. Although I have included several citations to the record to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are
based not solely on the evidence specifically cited, but rather are based on my review and
consideration of the entire record.
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3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent operates a nursing facility in Phoenix, Arizona. The nursing facility consists 5
of independent living, assisted living, and skilled nursing (Tr. 21). Respondent admits, and I find,
that the following individual is a supervisor within the meaning of Section 2(11) of the Act and
an agent within the meaning of Section 2(13) of the Act: Wilton Syckes, Jr. (Syckes),
Respondent’s executive director (GC Exh. 1(c), 1(d)).
10
Syckes began working at Respondent in early November 2013 (Tr. 23, 141)6. As
executive director, Syckes oversees the day-to-day operations of Respondent including
disciplinary actions taken against its employees (Tr. 21, 145). Syckes testified that the
“fundamental, most important thing you do” at the Facility is maintaining census (defined by
Syckes as the number of people living in the beds in the skilled nursing care operation) (Tr. 148). 15
Syckes supervises 10 to 15 employees directly, and indirectly supervises 130 other employees
(Tr. 146). Syckes’ direct involvement in disciplinary actions varied depending on whether he
directly supervised the employees, and if there was any disagreement on the disciplinary action
issued by a supervisor (Tr. 146).

6 Overall, I do not find Syckes to be a particularly credible witness. As a result, I have
generally credited his testimony only where it constitutes an admission against interest, or is
consistent with documentary evidence or the testimony of more credible witnesses. Throughout
his testimony, he provided vague responses and could not recall many details of the facts
underlying his discipline and termination of Dominguez. A large majority of his testimony
consisted of statements such as, “I can’t recall,” and “It’s quite possible.” For example, Syckes
adamantly testified that he investigated the alleged infractions Dominguez committed before
disciplining her (Tr. 28), but also admitted that it was possible Dominguez could have been
performing her hospital visitation responsibilities and not actually tardy for work, one of the
alleged infractions she committed (Tr. 29). Later, when asked again, he testified that he
essentially did not need to investigate her infractions because she failed to timely provide him
the daily marketing reports (Tr. 65, 180). Asked a third time, Syckes stated that prior to issuing
Dominguez’s termination, he discussed his decision with other management officials via email;
however, despite the General Counsel’s subpoena request (GC Exh. 11), he failed to produce any
of these emails (Tr. 65). He also could not recall whether he discussed Dominguez’s tardiness
with her prior to giving her the tardiness counseling form (Tr. 29). As for other employee’s
bringing their children to work, Syckes initially could not recall if any other employees brought
their children to work but then recalled other employees brought their children to work because
they were approved to do so for other reasons (Tr. 29, 174–175). Syckes also did not know
which employees reported to him and the job titles of the employees at his own facility,
including the title of Janice Ellington; Syckes testified that Dominguez would know better than
he the title of Ellington, even though he fired Dominguez 7 months prior to the trial (Tr. 40).
These contradictions, as well as others detailed in this decision, lead me to the conclusion that
Syckes’ testimony was not credible.
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4
B. Respondent’s Disciplinary Policies
Respondent’s employee handbook, dated February 2009, effective through August 1,
provides employees with rules regarding unacceptable conduct including violation of the 5
confidentiality policy:
All employees must abide by certain rules of conduct based upon honesty,
teamwork, good taste, fair play and safety.
10
[…]
While it is impossible to list all types of misconduct, the following are examples
of some, but not necessarily all, types of intolerable behavior:
15
[…]
 Unprofessional, disruptive, disrespectful, abusive, rude, aggressive,
degrading, or improper behavior directed toward any residents, visitors or
co-workers.20
[…]
 Violation of Confidentiality Policy, including gossiping or exaggerating
about a resident or co-worker.25

(GC Exh. 5; Tr. 115).7
The employee handbook states that violations of the above rules may lead to disciplinary
actions up to and including termination. These disciplinary actions include oral or written 30
warnings, suspension with or without pay, demotion, probation, or termination. Management
considered violations of the rules on an individual basis.
C. Dominguez’s Employment with Respondent
35
MariSol Dominguez (Dominguez) began working for Respondent in September 2011 (Tr.
73), and held the position of transitional care liaison (TCL) when she was terminated in August
2014 (Tr. 74).8 As TCL, Dominguez’ primary responsibilities included ensuring that the skilled

7 After Respondent acquired the Facility in August 2014, Respondent issued a new handbook
(Tr. 114). However, this new handbook is not relevant to these proceedings.
8 I find the testimony of Dominguez both believable and reliable. Dominguez provided
generally credible testimony where she appeared forthright, thoughtful, and steady. Dominguez’
testimony has been corroborated by other witnesses. Furthermore, Dominguez has a more
Continued
JD(SF)–23–15
5
nursing care floor census was at full capacity (Tr. 75, 151; R. Exh. 4), and visiting various
venues during her workday to foster relationships to ensure that Respondent would receive
referrals for new patients (Tr. 75). Dominguez’ reporting time to work varied, and she did not
clock in or clock out (Tr. 74–75, 176).9 She received a base salary plus bonuses. Dominguez
consistently earned bonuses throughout 2014 until her termination (Tr. 185). Dominguez often 5
worked on the skilled nursing care floor (on the second floor) at the Facility, even though her
office was on the first floor, because she needed to determine the number of available beds and
assist the nursing staff with admissions (Tr. 75–76, 144). When she worked on the weekends,
Dominguez covered the admissions office (Tr. 77).
10
Syckes directly supervised Dominguez from November 2013 until her termination (Tr.
23). As part of her TCL duties, in January, Syckes asked Dominguez to complete daily
marketing (or activity) reports (or logs) (Tr. 33, 157–158).10 These daily marketing reports
reflected who Dominguez spoke with on a daily basis in her efforts to obtain referrals to the 15
Facility (Tr. 112). Syckes did not set firm deadlines or due dates for Dominguez to provide him
with the daily marketing reports (Tr. 91). Syckes testified that he expected the completed daily
marketing reports returned to him on a weekly basis, but he also could not recall what
Dominguez and he agreed on as to when she would return these reports (Tr. 159–161, 195). On
many occasions from January to May, Dominguez did not provide Syckes with the daily 20
marketing reports as he requested (GC Exh. 2). At times, Syckes reminded Dominguez to
provide these daily marketing reports, and on April 10, he noted in an email to Dominguez that
providing these reports to him “must not get in the way of building my census” (GC Exh. 2).11
Eventually, Dominguez provided Syckes with the daily marketing reports, sometimes after the
firm deadlines he set for her.12 Syckes did not warn Dominguez that failure to submit the daily 25
marketing reports could result in discipline including termination until he disciplined her around
July 29 (Tr. 38).13 Furthermore, after May 13, Syckes did not send any more emails to
_________________________
distinct recollection of the events in 2014. Dominguez’s testimony did not waver during cross-
examination. I find it more inherently probable that her recollections are true to the facts.
Therefore I find her testimony to be a more reliable version of events.
9 Syckes confirmed that Dominguez’ schedule was “pretty much her own” (Tr. 176).
10 Dominguez admitted that she did not agree with the need to provide the reports, and in her
opinion, the reports duplicated information found in the Facility’s computer system (Tr. 106).
11 Dominguez defined census as the number of patients in the Facility (Tr. 112).
12 These daily marketing reports do indicate the locations Dominguez visited but perhaps did
not list “new” referral sources as Syckes testified he needed. Regardless, the record is vague as
to whether Dominguez actually obtained “new” referral sources.
13 Syckes testified that he informed Dominguez in writing and verbally that if she did not turn
in her reports on a “required basis,” he would have to give her some write-ups, although he could
not recall when he warned her (Tr. 164, 173). I do not credit Syckes’ testimony as I have found
his testimony not credible. Furthermore, the written evidence fails to support his testimony that
he “wrote it down somewhere” when referring to the hearing exhibits, and failure to submit
relevant documents responsive to the General Counsel’s subpoena request (Tr. 164).
JD(SF)–23–15
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Dominguez regarding the late daily marketing reports even though she had not turned in the
completed reports to Syckes.
On July 5, Dominguez and Sarah Cronk (Cronk), a medicare billing specialist, engaged in
an email conversation regarding the billing information on a new patient at Respondent. Cronk 5
asked Dominguez for insurance verification forms. Dominguez, because she was not working
that day, asked Cronk to call Janice Ellington-Shicone (Ellington), the admissions coordinator, to
get the forms. Cronk responded that she would not call that day but expressed her concerns
about obtaining proper authorization for the new patient. In response, Dominguez wrote:
10
I would love to hear how Janice throws me under the bus. She is on one along
with Bill [Syckes]. He is there today. Better yet…email her. PLEASE! Ms.
Perfect doesn’t check her email.
Cronk then confirmed that Dominguez wanted her to send an email to Ellington regarding the 15
authorization forms. Dominguez replied that she wanted Cronk to add in her email to Ellington
that she
knows Ellington is working that day, and not to copy Syckes on the email (GC Exh. 7).14
20
Dominguez explained that on July 5, although she was not working, Syckes and Ellington
emailed her and sent her text messages regarding work. Dominguez felt that the emails and text
messages were not professional and rude (Tr. 79). Aside from the July 5 email exchange
between Cronk and herself, Dominguez testified she had conversations with Cronk and Melissa
Tieman, business office director, regarding Syckes demeaning management style and feeling that 25
he “was always trying to pin something on us” (Tr. 79).
1. Respondent issues Dominguez a final warning on July 29
On July 29, Syckes met with Dominguez to issue her a July 21 dated, final warning, 30
corrective action required (CAR) (hereinafter, “final warning”), due to poor performance.15 In

14 Cronk also testified regarding the events of July 5. I found her to be a credible witness
who provided straight forward, uncontradicted testimony. Cronk, who had not met Syckes at the
Facility, testified that several time Dominguez and she had discussed Syckes’ supervision of
Dominguez. Dominguez expressed to Cronk her fear that Syckes was attempting to terminate
her employment, and that Ellington tried to do things to get Dominguez fired (Tr. 120, 123).
Cronk testified that another employee, Business Manager Melissa Tiemann, also expressed
concerns about Syckes’ supervision at the Facility (Tr. 121).
15 Previously, Respondent issued Dominguez warnings on May 12, 2013, and October 24,
2013, for failing to carry out assigned responsibilities and for an inappropriate conversation (R.
Exh. 1, 2; GC Exh. 12). The October 24, 2013, final corrective action issued to Dominguez
specified her problems with her poor performance including census building, excessive tardiness,
failure to complete billing packets, taking an unauthorized 3-hour lunch, failure to develop
Continued
JD(SF)–23–15
7
this final warning, Syckes noted 4 specific issues: (1) Dominguez’s continued ignorance of his
requests and reminders to provide the weekly marketing reports on a weekly basis; (2)
Dominguez’s production of only one new referral source since November 2013 which is
insufficient to maintain continued census or meet goals; (3) Dominguez’s inappropriate email
conversation on July 5 with an employee about another employee and Syckes—“I would love to 5
hear how Janice throws me under the bus. She is on one along with Bill. He is there today.
Better yet…email her. PLEASE! Little Ms. Perfect doesn’t check her email”; and (4)
Dominguez’s tardiness to work on Saturday, June 14 when she arrived at work after 11:15 a.m.,
and brought her children to work.16 The issues in this final warning violated rules of conduct in
Respondent’s workplace including: issues (1) and (2)—insubordination or failure to carry out 10
instructions and failing to carry out assigned responsibility or performing substandard work;
issue (3)—violation of confidentiality policy, including gossiping or exaggerating about a
resident or co-worker; and issue (4)—children in the workplace where children of employees or
other visitors to our employees will not be allowed on the property when the employee is
scheduled to work (GC Exh. 3).17 To correct these issues and violations, Syckes instructed 15
Dominguez to provide these reports on a weekly basis, increase the referral base, “immediately
refrain from speaking inappropriately and gossiping about fellow,” and abide by the no children
in the workplace policy.18 Finally, the final warning noted that continued behavior in any one of
_________________________
relationships with referral sources, and engaging in an inappropriate conversation with a case
manager (R. Exh. 2). On November 6, 2013, Nina Louis, executive director, and Roger Call,
regional director of operations, reissued essentially the same October 24, 2013 corrective action
given to Dominguez because they were unable to find the final form with her signature (Tr. 108).
The November 6, 2013 lists the same performance deficiencies but notes it is a “written”
corrective action, rather than a “final” corrective action (R. Exh. 3). Dominguez provided a
response to each of the performance deficiencies listed, and added, “I feel that now that I have a
new ED [Syckes], one that is honest, professional, and takes my position seriously, these
problems will no longer be applicable.”
Also on October 25, 2013, Respondent issues Dominguez a tardiness counseling form, first
offense, for tardiness on 9 occasions (R. Exh. 2).
Because Syckes did not work at the Facility during Dominguez’ prior disciplinary actions, he
decided to start anew with Dominguez and form his own opinion (Tr. 154–156). However, he
also stated that he was at a meeting regarding Dominguez’ disciplinary action in November 2013
when he first began, but could not recall the meeting and stated that when he first met
Dominguez, she had “no issues” (Tr. 155).
16 Syckes testified that he generally did not work on Saturdays, and did not work on
Saturday, June 14 (Tr. 26); he testified vaguely that he knew Dominguez was tardy to work
because he called the nursing facility and spoke to several employees (Tr. 26).
17 Syckes testified that other than Dominguez he had not disciplined any other employees for
gossiping even though other employees have gossiped at Respondent (Tr. 71).
18 Syckes testified that Dominguez’ email concerned him primarily because Ellington
became upset by the email (Tr. 170). He further testified that he would have still issued the July
29 final warning to Dominguez even if he was unaware of her email comments regarding
Ellington and him (Tr. 171).
JD(SF)–23–15
8
the 4 items would result in progressive discipline “up to and including termination of
employment” (GC Exh. 3).
Dominguez took the final warning home, and returned it on July 30.19 In response,
Dominguez wrote that she felt Syckes was trying to set her up but that regardless of her personal 5
feelings, she would provide the reports “from here on out.” Dominguez further stated that she
felt that other reports would reflect more accurately the referrals she obtained for Respondent.20
In addition, she wrote, “I understand and take responsibility for the words I spoke in my email. I
honestly don’t feel as though they should be considered gossiping though. I do know that there
is a problem here at CRV [Respondent] with employees speaking ill of each other and I 10
personally think that it is somewhat encouraged by the ED [Executive Director Syckes]. During
our meeting [on July 29 when Syckes gave her the final warning], I did voice that everyone
should be spoken to about gossiping if he is bringing it up with me and was told it would be
handled on a case to case basis. I will submit a list of times I know certain people have
‘gossiped’ about me so that they can be dealt with as well.”21 Finally, Dominguez stated that she 15
would never have her children visit Respondent (GC Exh. 3).22
2. Respondent issues Dominguez a tardiness counseling form
Also on or about July 31, Syckes issued Dominguez a tardiness counseling form, first 20
offense, which indicated that she had been tardy on the Saturdays of June 14, July 12 and 26.23

19 Syckes testified that he “possibly” asked the business office manager if he could terminate
Dominguez for not responding to the July 21 final warning the following day (Tr. 200). Syckes’
credibility on this portion of his testimony is further diminished by his response: “Do I recall
saying that, no. If I did say that and was overheard saying that, then I would have to say I said
it” (emphasis added) (Tr. 200).
20 Dominguez testified that her referral sources had been sufficient to meet goals and
maintain census (Tr. 83).
21 Syckes stated at the July 29 meeting between Dominguez and himself that the third issue in
the final warning concerned only Dominguez and “specifically about her emails mentioning
Janice and me” (GC Exh. 3).
22 Dominguez testified that other employees including Ellington bring their children to
Respondent, and testified that she had brought her children to Respondent prior to this date and
had never been disciplined or warned (Tr. 85). David Frazier, a current employee at Respondent,
credibly testified that other employees including Ellington brought their children to work at least
on 2 occasions (Tr. 130). Syckes testified that he had given Ellington permission once to bring
her children to work, and that a former business manager also brought her children to work but
that her relative at the facility babysat the children (Tr. 174–175).
23 Syckes testified he did not work on Saturday, July 12 or 26, and could not recall how he
knew Dominguez was tardy to work on those dates, but stated he investigated the Charging
Party’s alleged tardiness because “he would not have put this on here if it was not true” (Tr. 27–
28). He later admitted that he essentially did not need to investigate Dominguez’ infractions
because she did not submit the daily marketing reports timely (Tr. 64).
JD(SF)–23–15
9
Again, Dominguez disagreed with the tardiness counseling, stating that her job duties require her
to stop at hospitals which she does on her way to work on the weekends (GC Exh. 3). Syckes
also admitted that Dominguez could have been visiting other facilities rather than actually being
tardy (Tr. 29).
5
3. Respondent terminates Dominguez’ employment on August 13
On Wednesday, August 13, Syckes terminated Dominguez’ employment. Syckes
indicated 2 issues which led to Dominguez’ termination. First, Dominguez failed to provide the
daily marketing reports by Tuesday, August 12.24 Second, Respondent scheduled Dominguez to 10
work on August 9, and although she arrived on time to work, she could not be found or was out
of the facility for several hours, and she did not answer her office or cell phone.25 Syckes stated
that Dominguez failed to carry out her assigned responsibilities or performed substandard work
(GC Exh. 4). Syckes testified that the failure to provide the daily marketing reports was the
reason for Dominguez’ termination, and to disregard the second reason listed for termination (Tr. 15
43, 180).
Dominguez testified that she told Syckes she planned to give him the marketing report
that day, and that she felt that the reports were not late since Syckes had not given her a firm
deadline (Tr. 90, 198). As for August 9, Dominguez stated that after she came into work at the 20
admissions office, she worked on the second floor of the facility and spoke to several employees
(Tr. 92).26
4. Respondent’s disciplinary actions against other employees
25
In July 2014, Respondent sought to terminate certified nursing assistant Maria Estrada
(Estrada) for poor job performance, substandard care, violation of code of conduct, and not

24 Dominguez testified that she told Syckes she planned to give him the marketing report that
day (Tr. 90). Furthermore, the termination form indicates that Dominguez received her final
warning on July 21 when she actually received the final warning on July 29.
25 Respondent submitted a note from an employee named Danielle, dated August 9, which
stated that Dominguez came to work on time, but was unavailable for several hours of the day
and did not forward her office phone to her cell phone (R. Exh. 5).
26 Frazier testified uncontroverted that Dominguez came to work that day, asking him how
many beds were available for patients, and volunteered to get lunch for the employees which was
her common practice (Tr. 132). Despite the admitted fact that Frazier also is in a relationship
with Dominguez, as a current employee, his testimony is compelling since he is testifying against
the interests of his current employer. Under Board law, current employees are likely to be
particularly reliable because these witnesses are testifying adversely to their pecuniary interests.
Advocate South Suburban Hospital, 345 NLRB 209 fn. 1 (2006), citing Flexsteel Industries, 316
NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996); see also American Wire Products,
313 NLRB 989, 993 (1994) (current employee providing testimony adverse to his employer is at
risk of reprisal and thus likely to be testifying truthfully).
JD(SF)–23–15
10
following Respondent’s family values. Prior to her termination, Respondent issued Estrada 6
corrective actions. Before Estrada’s termination was approved, Respondent’s human resources
director, Andrea McDade (McDade) asked several follow-up questions regarding the
circumstances surrounding the proposed termination. Once these questions were answered
satisfactorily, McDade approved Estrada’s termination (GC Exh. 6).5
Respondent also issued a final reminder corrective action in December 2014 to a
concierge/receptionist for divulging personal information of a deceased patient (GC Exh. 8).
Respondent’s tardiness policy indicates that an employee will receive a written 10
counseling session and warning for 3 tardies in a 90-day period. That employee will receive
another written counseling and warning for a fourth tardy in the same 90-day period. Finally,
that employee will be terminated for a fifth tardy in the same 90-day period (GC Exh. 9).
Disciplinary records show several employees tardy and unauthorized absences on multiple
occasions receiving tardiness counseling forms (GC Exh. 9). Per its tardiness policy, 15
Respondent terminated employee, Charon Johnson, in February for her third tardiness offense in
a 90-day period. However, employee David Frazier, who had been issued many tardiness
counseling forms, remains employed by Respondent (GC Exh. 10).
III. DISCUSSION AND ANALYSIS20
A. Unacceptable Conduct and the Confidentiality Policy
The complaint alleges at paragraph 4(b) that since February 14, Respondent has
maintained two overly broad and discriminatory rules which violate Section 8(a)(1) of the Act. 25
Specifically, the complaint alleges that the following rules are overly broad and discriminatory:
While it is impossible to list all types of misconduct, the following are examples
of some, but not necessarily all, types of intolerable behavior:
30
(1) Unprofessional, disruptive, disrespectful, abusive, rude, aggressive, degrading,
or improper behavior directed toward any residents, visitors or co-workers.
(2) Violation of Confidentiality Policy, including gossiping or exaggerating about
a resident or co-worker.35

(GC Exh. 5; Tr. 115). The first rule concerns “unacceptable conduct” in the workplace, and the
second rule concerns the “confidentiality policy” in the workplace.
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to 40
interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section
7 of the Act. The rights guaranteed in Section 7 include the right “to form, join or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection.”45
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11
The General Counsel has the burden to prove that a rule or policy violates the Act. In
determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999).5
If the rule explicitly restricts Section 7 rights, it is unlawful. Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). If it does not, “the violation is dependent upon a showing of
one of the following: (1) employees would reasonably construe the language to prohibit Section
7 activity; (2) the rule was promulgated in response to protected, concerted activity; or (3) the 10
rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647. A rule does not
violate the Act if a reasonable employee merely could conceivably read it as barring Section 7
activity. Rather, the inquiry is whether a reasonable employee would read the rules as
prohibiting Section 7 activity. Id. Stated another way, the relevant inquiry under Section 8(a)(1)
is an objective one which examines whether the employer’s actions would tend to coerce a 15
reasonable employee. Affiliated Foods, Inc., 328 NLRB 1107 (1999). The Board must give the
rule under consideration a reasonable reading and ambiguities are construed against its
promulgator. Lutheran Heritage Village-Livonia, supra at 647; Lafayette Park Hotel, supra at
828. Moreover, the Board must “refrain from reading particular phrases in isolation, and it must
not presume improper interference with employee rights.” Lutheran Heritage Village-Livonia, 20
supra at 646.
For the reasons that follow, I find that the “unacceptable conduct” rule violates Section
8(a)(1) of the Act but that the “confidentiality policy” rule does not violate Section 8(a)(1) of the
Act. 25
Turning first to the unacceptable conduct rule, the General Counsel argues that the
“unacceptable conduct” rule is “ambiguous” in that it fails to define and provide guidance on the
conduct that is objectionable to Respondent (GC Br. at 11). Respondent argues that the General
Counsel failed to present any evidence to satisfy its burden (R. Br at 27). 30
Respondent’s “unacceptable conduct” rule does not explicitly restrict Section 7 activity.
Moreover, there is no evidence that the rule was promulgated in response to protected, concerted
activity or was applied to restrict the exercise of Section 7 rights. Accordingly, the only question
is whether Respondent’s employees would reasonably construe the unacceptable conduct rule to 35
prohibit Section 7 activity.
Generally, Section 7 protects employees’ right to engage in workplace discussions with
their co-workers about unions, working conditions and management. This right covers
“intemperate, abusive and inaccurate statements.” Linn v. United Plant Guards, 383 U.S. 53 40
(1966). Thus, employer prohibition on “negative” or “inappropriate” discussions among its
employees without further clarification would cause a reasonable employee to read the rule as
prohibiting Section 7 activity. See Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op.
at 7 (2014); Hills & Dales General Hospital, 360 NLRB No. 70, slip op. 1 (2014).
45
JD(SF)–23–15
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Respondent’s rule prohibiting unprofessional, disruptive, disrespectful, abusive, rude,
aggressive, degrading, or improper behavior directed toward any residents, visitors or co-workers
falls within this category of an overbroad rule prohibiting protected discussions with co-workers.
In Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012),27 cited by the General Counsel, the
Board determined that employees would reasonably construe the rules’ broad prohibition against 5
“disrespectful” conduct as encompassing Section 7 activity, such as employees’ protected
statements to co-workers, supervisors, managers, or third parties. Similarly, regarding
Respondent’s “unacceptable conduct” rule, an employee would reasonably construe the
prohibition against “disrespectful,” “rude,” and “degrading” conduct toward any co-worker as
including protected discussions with co-workers. For example, employee solicitation of union 10
support from other employees is protected activity under the Act, and employees would
reasonably believe that Respondent’s prohibition against “disrespectful” conduct towards co-
workers precludes such activity. Certainly, Respondent is permitted to maintain order in its
workplace and promote harmonious relations among its employees, visitors, and residents.
However, Respondent fails to define what “unprofessional, disruptive, disrespectful, abusive, 15
rude, aggressive, degrading, or improper” means, and thus the terms are subjective.
Furthermore, Respondent fails to provide any examples or clarifications as to what these terms
mean, and provides no limiting terms. See also Community Hospitals of Central California, 335
NLRB No. 87, slip op. at 4 (2001) (rule prohibiting disrespectful conduct toward others overly
broad, in part, because it included no limiting language which removes its ambiguity and limits 20
its broad scope). Furthermore, ambiguities in a rule are construed against the promulgator of the
rule. Thus, Respondent’s “unacceptable conduct” policy is unlawful on its face, under Section
8(a)(1) of the Act.
Now turning to the “confidentiality policy,” the General Counsel argues that the rule is 25
“substantially identical” to the unlawful rule in Hills & Dales General Hospital, supra, rather
than the rule found lawful in Hyundai America Shipping Agency, 357 NLRB No. 80 (2011). (GC
Br. at 11). Respondent argues that the Board has found lawful a similar rule in Lytton Rancheria
of California, 361 NLRB No. 148 (2014).
30
Respondent’s “confidentiality policy” rule does not explicitly restrict Section 7 activity.
Moreover, there is no evidence that the rule was promulgated in response to protected, concerted
activity. Accordingly, the question remains as to whether Respondent’s employees would
reasonably construe the “confidentiality policy” rule to prohibit Section 7 activity.
35
Respondent’s rule regarding its “confidentiality policy” is akin to an employer no-gossip
policy rather than a policy specifically restricting employees’ discussions of the terms and
conditions of their employment such as wages, hours, and workplace complaints. Here,
Respondent precludes employees from gossiping or exaggerating about a co-worker or resident.

27 Although the decision issued in Karl Knauz Motor, Inc., has no precedential value due to
its invalidation by NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), I find that legal analysis to be
persuasive and have accordingly adopted the rationale here.
JD(SF)–23–15
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Gossip is commonly defined as chatty talk or rumors or reports of an intimate nature. Hyundai
America Shipping Agency, supra, slip op. at 3.
I disagree with the General Counsel that Respondent’s “confidentiality policy” is similar
to the unlawful rule in Hills & Dales General Hospital, and find that the “confidentiality policy” 5
is similar to the lawful rule in Hyundai America Shipping Agency and Lytton Rancheria of
California. In Hills & Dales General Hospital, the Board found unlawful a rule stating that
employees “will not engage in or listen to negativity or gossip.” Supra, slip op at 1. The Board
agreed with the administrative law judge that the prohibitions on “negativity” are unlawful. Id.
Furthermore, the General Counsel in Hills & Dales General Hospital did not allege the 10
prohibition on gossip in that rule to be unlawful, thus, the Board did not address the “gossip”
portion of the rule. Therefore, the unlawful rule in Hills & Dales General Hospital is not
analogous to Respondent’s “confidentiality policy” rule.
In contrast, Respondent’s rule is analogous to lawful rules in both Hyundai America 15
Shipping Agency and Lytton Rancheria of California. In Hyundai America Shipping Agency, the
Board found lawful a rule prohibiting harmful gossip.” 357 NLRB No. 80, slip op. at 3. As in
Respondent’s “confidentiality policy,” the “harmful gossip” rule in Hyundai America Shipping
Agency does not mention managers and merely prohibits gossip. Id. In Lytton Rancheria of
California, the Board, citing the similar lawful rule in Hyundai America Shipping Agency, found 20
lawful a rule prohibiting gossip about other team member including management. 361 NLRB
No. 148, slip op. at 2–3. Here, Respondent’s “confidentiality policy” is similar to the lawful rule
in Lytton Rancheria of California. I find that employees of Respondent would not reasonably
construe the rule against “gossiping or exaggerating about a resident or co-worker” to prohibit
Section 7 activity. Therefore, I do not find Respondent’s “confidentiality policy” rule to violate 25
Section 8(a)(1) of the Act.
B. Respondent Unlawfully Disciplines Dominguez with the Final Written Warning
The complaint alleges at paragraph 4(c) that on July 30, 2014, Respondent issued 30
Dominguez a final written warning due to her violation of the unlawful rules in paragraph 4(b) of
the complaint and her protected, concerted activity since July 2014. By this conduct, the
complaint alleges that Respondent violated section 8(a)(1) of the Act.

An employee’s discipline including discharge independently violates Section 8(a)(1) of 35
the Act when it is motivated by employee activity protected by Section 7. Lou’s Transport, 361
NLRB No. 158, slip op. at 2 (2014). Under Wright Line, to prove an adverse action violates
Section 8(a)(1), the General Counsel must establish, by preponderant evidence , that: (1) the
employee engaged in concerted activity, (2) the employer knew about the concerted activity, and
(3) the employer had animus toward the activity. Wright Line, 251 NLRB 1083 (1980), enfd. on 40
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); Meyers Industries, 268
NLRB 493, 497 (1984); Grand Canyon University, 359 NLRB No. 164 (2013). If the General
Counsel is able to make such a showing, the burden of persuasion shifts to the employer “to
demonstrate that the same action would have taken place even in the absence of the protected 45
JD(SF)–23–15
14
conduct.” Wright Line, 251 NLRB 1083, 1089 (1980). See also Signature Flight Support, 333
NLRB 1250 (2001) (applying Wright Line in context of discharge for protected, concerted
activity).
The employer cannot meet its burden by merely showing that it had a legitimate reason 5
for its action; rather, it must demonstrate that it would have taken the same action in the absence
of protected conduct. Bruce Packing Co., 357 NLRB No. 93, slip op. at 3–4 (2011); Roure
Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). If the employer’s proffered reasons are
pretextual—i.e., either false or not actually relied on—the employer fails by definition to show it
would have taken the same action for those reasons regardless of the protected conduct. 10
Metropolitan Transportation Services, 351 NLRB 657, 659 (2007); Golden State Foods Corp.,
340 NLRB 382, 385 (203); Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982). Absent a showing of antiunion, or anti-Section 7 activity, an employer
may discharge an employee for a good reason, a bad reason or no reason at all without running
afoul of the labor laws. See Clothing Workers v. NLRB (AMF, Inc.), 564 F.2d 434, 440 (D.C. 15
Cir. 1977).
Indeed, it has long been recognized that where an employer’s reasons are false, it can
be inferred “that the [real] motive is one that the employer desires to conceal—an unlawful
motive—at least where . . . the surrounding facts tend to reinforce that inference. Shattuck 20
Denn Mining Corp. v. NLRB, 362 F.2d 466, 70 (9th Cir. 1966). Furthermore, a trier of fact
may not only reject a witness’ story, but also find that the truth is the opposite of that story.
Pratt (Corrugated Logistics), LLC, 360 NLRB No. 48, slip op. 11–12 (2014).
Applying the above principles to the facts here, the evidence established that Dominguez 25
was engaged in protected, concerted activity with the meaning of Section 7 of the Act when she
emailed Cronk on July 5. Dominguez email exchange had been preceded by several
conversations with her co-workers regarding Syckes’ management style which they felt was
demeaning, and her concerns about her job security and their working conditions. Concerted
activity directed toward supervisory conduct, such as “rude, belligerent, and overbearing 30
behavior” which directly affects the employees’ work, constitutes protected activity under the
Act. Arrow Electric Co., 323 NLRB 968, 970 (1997), enfd, 155 F.3d 762 (6th Cir. 1998). The
Board has also stated that employee conversations about job security are “inherently concerted.”
Food Services of America, 360 NLRB No. 123, slip op. at 3 (2014).
35
The Board has held that activity is concerted if it is “engaged in with or on the authority
of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882
(1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 40
(1988). Concerted activity also includes “circumstances where individual employees seek to
initiate or to induce or to prepare for group action” and where an individual employee brings
“truly group complaints to management’s attention.” Meyers II, 281 NLRB at 887. An
individual employee’s complaint is concerted if it is a “logical outgrowth of the concerns of the
group.” Every Woman’s Place, 282 NLRB 413 (1986); Mike Yurosek & Son, Inc., 306 NLRB 45
JD(SF)–23–15
15
1037, 1038 (1992), after remand, 310 NLRB 831 (1993), enfd., 53 F.3d 261 (9th Cir. 1995). In
certain circumstances, the Board had found that “ostensibly individual activity may in fact be
concerted activity if it directly involves the furtherance of rights which inure to the benefits of
fellow employees.” Anco Insulations, Inc., 247 NLRB 612 (1980). Conversely, concerted
activity does not include activities of a purely personal nature that do not envision group action. 5
See United Association of Journeymen & Apprentices of the Pipefitting Industry of the United
States & Canada, Local Union 412, 328 NLRB 1079 (1999); Hospital of St. Raphael, 273 NLRB
46, 47 (1984). The question of whether an employee has engaged in concerted activity is a
factual one based on the totality of the circumstances. National Specialties Installations, 344
NLRB 191, 196 (2005). It is clear that the Act protects discussions between two or more 10
employees concerning their terms and conditions of employment.
Respondent argues that Dominguez’ email conversation does not constitute protected,
concerted activity, and that even if Dominguez’ actions were found to be protected, concerted
activity, Respondent was unaware of her actions and did not have animus towards it (R. Br. at 15
13-17). I disagree. As set forth clearly in this decision, Syckes was not a credible witness,
and I reject his testimony that Dominguez’ “gossiping” email did not ultimately factor into his
decision to discipline, and ultimately terminate her. Dominguez complained to her co-workers
about her own job security, and the credited evidence also shows that Dominguez and at least
one other employee discussed Syckes’ management style. Dominguez wanted Cronk to check 20
on a work matter she was convinced Syckes would use to threaten her employment status at
Respondent. Thus, in this case, I find that Dominguez’s actions were protected and concerted.
Furthermore, although Dominguez and her co-workers did not specifically bring their
concerns to Respondent, Syckes became aware of Dominguez’ protected, concerted activity 25
when he was informed of the email conversation.28 In fact, Syckes disciplined Dominguez for
her “gossiping” with a co-worker about another co-worker. With respect to the third prong
under Wright Line, I conclude that the evidence strongly supports an inference that
Respondent became hostile to Dominguez when she “gossiped” about Syckes. Even though
Respondent’s “confidentiality policy” rule does not mention “gossiping” about a supervisor as 30
grounds for discipline, nevertheless, Syckes disciplined Dominguez for “gossiping” about
him. This action alone demonstrate Syckes’ animus towards Dominguez for “gossiping” about
him to other employees. Syckes’ contemporaneous notes from his meeting with Dominguez
regarding the final warning belie his testimony that he actually disciplined Dominguez for
gossiping and upsetting a co-worker, and he was not concerned that he was mentioned in 35
Dominguez’ email. In addition, records produced by the General Counsel show that other
employees of Respondent were not treated so harshly for similar behavior. For example,

28 The Board has also made clear that employee discussions with co-workers are
indispensible initial steps along the way to possible group action and are protected regardless of
whether the employees have raised their concerns with management or talked about working
together to address those concerns. Hispanics United of Buffalo, 359 NLRB No. 37, slip op. at 3
(2012), citing Relco Locomotives, 358 NLRB No. 37, slip op. at 17 (2012), affd. and
incorporated by reference at 361 NLRB No. 96 (2014).
JD(SF)–23–15
16
Respondent issued many corrective actions to employees for tardiness, and only terminated
one other employee for poor performance after she had been issued 6 corrective actions and
investigated the proposed termination before finalizing it. Evidence of disparate treatment
supports a finding of animus. Camaco Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 5
(2011). Thus, the General Counsel has met its initial burden.5
Having concluded that the General Counsel satisfied her initial burden under Wright
Line, the burden shifts to Respondent to prove, as an affirmative defense, that it would have
disciplined Dominguez in the absence of her protected, concerted activity. This burden may not
be satisfied by reasons that are pretextual, i.e. false reasons or reasons not in fact relied upon for 10
the discharge. Instead, the Board has held that a finding of pretext defeats an employer’s attempt
to meet its rebuttal burden. Stevens Creek Chrysler Jeep Dodge, 357 NLRB No. 57, slip op at 7
(2011), enfd. sub nom. Matthew Enterprise v. NLRB, 498 Fed. Appx. 45 (D.C. Cir. 2012). The
Board relies on both circumstantial and direct evidence in determining whether the conduct in
question was unlawfully motivated. Fluor Daniel, Inc., 311 NLRB 498 (1993). Improper 15
motivation may be inferred from several factors, including pretextual and shifting reasons given
for an employee’s adverse action including discharge, the timing between the employee’s
protected activity and the adverse action, and the failure to adequately investigate alleged
misconduct. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005). Discriminatory motive may
also be established by showing departure from past practice or disparate treatment. See JAMCO, 20
294 NLRB 896, 905 (1989), aff’d mem., 927 F.2d 614 (11th Cir. 1991), cert. denied 502 U.S.
814 (1991); Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999).
I do not find that Respondent has carried its rebuttal burden in this case. Respondent
argues, in its defense, that it had a legitimate business reason for her discipline (R. Br. at 18–25
21). However, I have found that Respondent’s timing of the disciplinary action against
Dominguez strongly suggest that it was due to Dominguez’ “gossiping” email. I have further
found that Dominguez was treated more harshly than Respondent’s other employees.
Therefore, as discussed further, I find that Respondent’s proffered reason for discharging
Dominguez was pretextual, and that Respondent has failed to satisfy its Wright Line burden.30
I find that Dominguez’ “gossiping” about Syckes was a motivating factor in its decision
to discipline her. Respondent’s other basis for discipline are pretextual. The timing of the final
warning is most suspicious and provides clear evidence of animus towards Dominguez. Soon
after the “gossiping” email of July 5, Syckes sought to discipline Dominguez with a July 21 35
dated final warning. Thus, only after Dominguez engaged in protected, concerted activity did
Respondent decide to discipline her.
As for the first issue in the final warning, Dominguez, admittedly, had been inconsistent
in providing Syckes with the daily marketing reports. Sometimes he would remind her to turn 40
in the daily marketing reports, and other times she would remind him that she had not returned
the reports. Both Dominguez and Syckes testified that they had not established a set day of the
week in which the daily marketing reports needed to be returned. Syckes also reminded
Dominguez that making sure the Facility was at full census was her priority. Furthermore,
Syckes unbelievably claims that he had warned Dominguez that he would be forced to 45
JD(SF)–23–15
17
discipline her if she did not turn in the forms consistently. However, the evidence does not
support this testimony. Syckes did not send a single email to Dominguez after May 13
requesting her to submit the daily marketing reports. Nor did Syckes send Dominguez an email
from this time period warning her of the consequences of not turning in the daily marketing
reports. Syckes claims that when he presented Dominguez with the final warning, she stated she 5
knew she would be receiving a CAR. It is possible though that even if this statement were true,
Dominguez had suspected that Syckes was trying to “pin” something on her as she discussed
with co-workers.
As for the second issue in the final warning, Respondent claims Dominguez produced 10
only one referral source since November 2013. However, Respondent failed to produce
evidence to show that Dominguez had produced only one referral source. As for the fourth
issue, Syckes testified that Dominguez did not have a set schedule, and he was not certain
whether she was actually tardy. Although Dominguez testified that her children admittedly had
come to work that day, at least one other employee had brought her children to work without 15
being disciplined.
Respondent also failed to adequately investigate Dominguez’ alleged violations before
issuing the final warning. Syckes provided inconsistent testimony regarding his investigation.
Syckes testified he did not need to investigate the allegations but also testified that he had 20
investigated the alleged violations and consulted with other management officials before
disciplining Dominguez. Again, the evidence does not support these shifting statements.

Respondent may have had a legitimate reason for disciplining Dominguez because she
had failed to submit her daily marketing reports on a consistent basis. However, Syckes 25
tolerated these performance deficiencies for at least 6 months without once warning
Dominguez. Only after Dominguez spoke poorly about Syckes did he decide to discipline her.
Thus, under the Act, given the General Counsel’s showing of unlawful motive, Respondent’s
affirmative defenses are insufficient. See Bruce Packing Co., 357 NLRB No. 93, slip op. at 3–4
(2011). Instead, Respondent was required to show that it would have actually disciplined 30
Dominguez absent her protected, concerted activity. As Respondent has failed to do so, I find
that Dominguez’ discipline violated Section 8(a)(1) of the Act.
C. Respondent Unlawfully Discharges Dominguez
35
The complaint also alleges at paragraph 4(d) that on August 13, Respondent terminated
Dominguez due to her protected, concerted activity since July 2014 and due to her violation of
the unlawful rules in paragraph 4(b) of the complaint. By this conduct, the complaint alleges that
Respondent violated section 8(a)(1) of the Act. The same Wright Line analysis applied to the
final warning applies to these allegations.40
In this instance, I find that Dominguez’ email exchange with Cronk regarding Ellington
and Syckes was both protected and concerted. Furthermore, Syckes became aware of the email
exchange, and decided to issue Dominguez a final warning which I have found was unlawful due
to Dominguez’ protected, concerted activity. Although Dominguez’ “gossip” email was not 45
JD(SF)–23–15
18
specifically referenced in the termination, without the final warning, Dominguez’ termination
would not have occurred. Thus, Dominguez’ protected, concerted activity was a motivating
factor in the issuance of the termination notice. In addition, Dominguez’ written rebuttal to her
final warning shows that she continued voicing her disagreement with Syckes’ management style
at the Facility. Dominguez wrote, “I do know that there is a problem here at CRV [Respondent] 5
with employees speaking ill of each other and I personally think that it is somewhat encouraged
by the ED [Executive Director Syckes]. During our meeting [on July 29 when Syckes gave her
the final warning], I did voice that everyone should be spoken to about gossiping if he is bringing
it up with me and was told it would be handled on a case to case basis. I will submit a list of
times I know certain people have ‘gossiped’ about me so that they can be dealt with as well.” 10
Furthermore, only 13 days after issuing her the final warning, Respondent terminated
Dominguez under suspicious circumstances. Dominguez’ discharge indicated two bases: failure
to turn in the completed weekly report, and an absence from the workplace on August 9.

Again, the burden shifts to Respondent to prove, as an affirmative defense, that it would 15
have disciplined Dominguez in the absence of her protected, concerted activity. Respondent
argues that it would have terminated Dominguez based on her unprotected conduct on or about
August 13 (R. Br. at 21–25). At the hearing, however, Respondent advanced reasons for its
discharge of Dominguez which were not included in Dominguez’s discharge paperwork. Syckes
testified that he terminated her only for failing to provide the daily marketing reports, and that he 20
did not terminate her for her alleged absence on August 9 (Tr. 179). Respondent’s shifting
justification for its termination of Dominguez provides evidence of its unlawful motive. When
an employer is unable to maintain a consistent explanation for its conduct, but rather resorts to
shifting defenses, “it raises the inference that the employer is ‘grasping for reasons to justify its
unlawful conduct.” Meaden Screw Products Co., 336 NLRB 298, 302 (2001), citing Royal 25
Development Co. v. NLRB, 703 F.2d 363, 372 (9th Cir. 1983). See also Master Security Services,
270 NLRB 543, 552 (1984) (animus demonstrated where an employer used a multiplicity of
reasons to justify disciplinary action).
Respondent’s disciplinary records also show that other employees were treated more 30
favorably than Dominguez. Although no other employee had been disciplined or discharged for
failing to provide the daily marketing reports, only one other employee had been discharged for
poor performance but the employee received six warnings before she was terminated. All other
employees committed violations which resulted in warnings, but not termination. In contrast,
Dominguez was discharged less than two weeks after her first warning from Syckes. While it is 35
true that Respondent issued Dominguez disciplinary actions in the past and Dominguez did not
provide the daily marketing reports on a weekly basis at times, the record shows that Respondent
tolerated that behavior. Furthermore, Syckes testified that he did not consider her prior
discipline. I find Respondent failed to present sufficient evidence to meet its burden.
40
In contrast, the evidence shows that Respondent’s discharge of Dominguez constituted
disparate treatment and its asserted reasons for Dominguez’s discharge is a pretext. Respondent
terminated Dominguez for failing to submit the weekly marketing reports after she received her
final warning. However, the evidence shows a true question as to when the report was actually
JD(SF)–23–15
19
due to Syckes. Syckes admitted that there had been no firm deadline throughout the time he
requested Dominguez complete the reports.
Finally, Respondent failed to investigate the alleged violations committed by Dominguez.
Instead, Syckes relied upon hearsay evidence to support the allegation against Dominguez. 5
When confronted with the possibility that Dominguez was not absent on August 9, Syckes
retracted this allegation in the termination but testified that he would have still terminated
Dominguez. This inadequate investigation also shows pretext by Respondent.
Overall, Respondent failed to establish that it would have terminated Dominguez absent 10
her protected, concerted activity. For all the above reasons, I conclude Respondent’s asserted
reasons for discharging Dominguez are pretext. Thus, Dominguez’ termination violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW15
1. Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and has been a health care institution within the
meaning of Section 2(14) of the Act.
20
2. Respondent violated Section 8(a)(1) of the Act by maintaining an overly broad and
discriminatory rule that prohibits unacceptable conduct in the workplace.
3. Respondent violated Section 8(a)(1) of the Act when it issued a final warning on July
29 to Dominguez.25
4. Respondent violated Section 8(a)(1) of the Act when it terminated Dominguez on
August 13.
5. By engaging in the unlawful conduct set forth above, Respondent has engaged in 30
unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and
Section 2(2), (6) and (7) of the Act.
6. Respondent did not violate Section 8(a)(1) by maintaining its “confidentiality policy”
rule.35
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist there from and to take certain affirmative action designed to 40
effectuate the policies of the Act.
Respondent, having maintained an overly broad and discriminatory work place rule
prohibiting unacceptable conduct in the workplace, dated February 2009, effective through
August 1, Respondent shall rescind or revise this rule in the employee handbook. Respondent 45
JD(SF)–23–15
20
shall furnish, publish and/or distribute to all current and former employees who worked for
Respondent from the period of February 2009 to August 2014, the revised or rescinded rule in
the employee handbook. Respondent shall notify those employees that the unlawful rule has
been revised and/or rescinded.
5
Respondent, having discriminatorily disciplined and discharged employee MariSol
Dominguez, must offer her full reinstatement to her former position or, if her position no longer
exists, to substantially equivalent position, without prejudice to her seniority or any other right
or privileges previously enjoyed, and to make her whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her. 10
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
In addition, Respondent shall file a report with the Social Security Administration allocating 15
backpay to the appropriate calendar quarters. Respondent shall also compensate the
discriminatee for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
I also order Respondent to remove from its files the unlawful July 21 final warning 20
issued to MariSol Dominguez, as well as any reference to the unlawful July 21 final warning
of MariSol Dominguez, and to notify the employee in writing that this has been done and that
the unlawful July 21 final warning will not be used against her in any way.
The General Counsel requests a nationwide notice posting (GC Br. at 18). I do not 25
recommend such a remedy as it is too broad based on the evidence before me. The complaint
alleges that Respondent, which is identified as Brookdale Senior Living, Inc. d/b/a Emeritus
Senior Living, “has been a corporation with an office and place of business in Phoenix,
Arizona (Respondent’s facility)”and has maintained overbroad rules that violated Section
8(a)(1) (GC Ex. 1(c)). The General Counsel did not provide any evidence regarding the 30
implementation and maintenance of this same employee handbook at other locations of
Respondent other than submitting the employee handbook, which appears not to be applicable
in California (GC Ex. 5). Due to the absence of this evidence, I decline to recommend a
nationwide remedy. Boch Imports, Inc. d/b/a Boch Honda, 362 NLRB No. 83, slip op. at 3-4)
(2015), citing Jack in the Box Distribution Center Systems, 339 NLRB 40 (2003) (finding that 35
appropriate notice posting remedy is one that is “coextensive with the [r]espondent’s
application of its handbook”); Marriott Corp., 313 NLRB 896 (1994) (in the absence of
evidence that unlawful rule was maintained at respondent’s other locations, remedial order
was limited to the “location at which a violation was alleged and litigated”).
40
JD(SF)–23–15
21
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended29
ORDER
The Respondent, Brookdale Senior Living, Inc. d/b/a Emeritus Senior Living, 5
Phoenix, Arizona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a rule in the employee handbook which prohibits employees from10
engaging in unprofessional, disruptive, disrespectful, abusive, rude, aggressive,
degrading, or improper behavior directed toward any residents, visitors, or co-
workers.
(b) Disciplining and discharging or otherwise discriminating against any15
employee for engaging in protected, concerted activity and/or for violating an
unlawful rule.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the 20
Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, revise or rescind the rule 25
found to be unlawful as set forth above.
(b) Within 14 days of the date of the Board’s Order, offer MariSol Dominguez
full reinstatement to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any other 30
rights or privileges previously enjoyed.
(c) Make MariSol Dominguez whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her in the manner set
forth in the remedy section of the decision.35
(d) Compensate MariSol Dominguez for the adverse tax consequences, if
any, of receiving a lump sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to the appropriate

29 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived
for all purposes.
JD(SF)–23–15
22
calendar quarters.
(e) Within 14 days from the date of the Board’s Order, remove from its files
any references to the unlawful discipline and unlawful discharge of MariSol
Dominguez, and notify her in writing that this has been done and that the 5
discipline and discharge will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security10
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of back pay due under the terms of this
Order.
15
(g) Within 14 days after service by the Region, post at its facility in Phoenix,
Arizona, the attached notice marked “Appendix”30 on forms provided by the
Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all places where 20
notices to employees are customarily posted. In addition to physical posting
of paper notices, the 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 25
notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent 30
at any time since February 1, 2009.
(h) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has taken to comply.35

30 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(SF)–23–15
23
Dated, Washington, D.C. June 2, 2015
____________________
Amita Baman Tracy5
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discipline, discharge, or otherwise discriminate against you for engaging
in protected, concerted activities protected under Section 7 of the Act.
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 NOT maintain a rule in the employee handbook prohibiting employees from
engaging in unprofessional, disruptive, disrespectful, abusive, rude, aggressive,
degrading, or improper behavior directed toward any residents, visitors, or co-workers.
WE WILL, within 14 days from the date of this Order, offer MariSol Dominguez full
reinstatement to her former job or, if that job no longer exist, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make MariSol Dominguez whole for any loss of earnings and other benefits
resulting from her discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate MariSol Dominguez for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards.
25
WE WILL, within 14 days from the date of this Order, remove from our files any references
to the unlawful discipline and unlawful discharge of MariSol Dominguez, and notify her in
writing that this has been done and that the discipline and discharge will not be used against
her in any way.
WE WILL revise or rescind the unlawful rule in our employee handbook, and WE WILL advise in
writing our current and former employees from the period of February 2009 to August 2014 that
we have done so and that the unlawful rule will no longer be enforced.
BROOKDALE SENIOR LIVING, INC.
D/B/A EMERITUS SENIOR LIVING
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1400, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-134729 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.