EF International Language Schools, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 15, 2014

20-CA-120999 (N.L.R.B. Sep. 15, 2014)

JD(SF)–42–14
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
EF INTERNATIONAL LANGUAGE
SCHOOLS, INC.
and Case 20-CA-120999
ANDREA JESSE, an Individual
Jason P. Wong, Esq., for the General Counsel.
James W. Bucking, Esq., and Lyndsey M. Kruzer, Esq.,
for the Respondent.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. The amended complaint1 alleges
that Charging Party Andrea Jesse (Jesse), after being threatened with unspecified reprisals for
helping co-workers and sending group emails addressing employees’ terms and conditions of
employment, was discharged by her employer EF International Language Schools, Inc.
(Respondent) because she engaged in protected, concerted activity. I find the violations as
alleged.
On the entire record, and after considering the briefs filed by counsel for the General
Counsel and by counsel for the Respondent, I make the following
FINDING OF FACTS
JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a privately held global company which provides language instruction as
well as travel and cultural exchange program assistance. Respondent admits that it satisfies the
Board’s jurisdictional standard for private schools and that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act
(the Act).2 Thus this dispute affects interstate commerce and the Board has jurisdiction of this
case pursuant to Section 10(a) of the Act.3

1 The charge was filed on January 21, 2014. The amended complaint issued on May 16, 2014. The
hearing was held on June 10 and 11, 2014, in San Francisco, California.
2 29 U.S.C. §152(2),(6), and (7).
3 29. U.S.C. §160(a).
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CREDIBILITY AND VIDEO TESTIMONY
Specific credibility resolutions have been made based upon a review of the entire record
and all exhibits in this proceeding. Witness demeanor and inherent probability of the testimony
have been utilized to assess credibility. Testimony contrary to my findings has been discredited
on some occasions because it was in conflict with credited testimony or documents or because it
was inherently incredible and unworthy of belief.
At the time of the hearing, former teacher Galin Franklin (Franklin) was employed in
Madrid, Spain. The legality of Franklin’s departure from Respondent’s employment was not at
issue in the unfair labor practice proceeding. In a pre-hearing motion, the General Counsel
sought permission to take Franklin’s testimony by videoconference from Madrid, where Franklin
resided at the time of the hearing, further averring that Franklin had no plans to return to the
United States at the time of hearing. Respondent opposed the request asserting that video
testimony would not allow adequate opportunity for assessment of credibility and might not be
trustworthy, therefore constituting a denial of due process. Respondent’s argument was based on
the NLRB’s stated preference for live testimony as set forth in Westside Painting, 328 NLRB
796 (1999). Respondent further noted a fundamentally different trial dynamic in federal court in
that pretrial discovery, including depositions, reveals a witness’ testimony in advance. Thus there
is no element of surprise involved in federal court while in NLRB proceedings there is no
discovery so the testimony of each opposition witness has not been heard before. Due to this
different dynamic, Respondent argues for precluding application of Federal Rule of Civil
Procedure 43(a) in NLRB proceedings. Finally, Respondent set forth numerous safeguards which
should be in place citing the NLRB Division of Judges Bench Book, §11-620.
After carefully considering all of these arguments, by unpublished order dated May 23,
2014, Associate Chief Administrative Law Judge Gerald Etchingham granted the motion to take
Franklin’s testimony by videoconference over the objection of Respondent on due process
grounds. The order required a number of safeguards, which were utilized at the hearing. These
included:
 A representative for Respondent was present at the remote location at the U.S. Embassy
in Madrid, Spain, and observed all proceedings.
 The reporter was present in San Francisco and was able to transcribe the testimony.
 The reporter and all participants were able to hear all speakers without regard to where
they were located.
 Cameras were adjustable at both the San Francisco and Madrid locations in order to
provide not only a close-up view of counsel and the witness but also a panoramic view of
the entire room.
 All exhibits were exchanged in advance of the video session.
 Both in San Francisco and Madrid video technicians were present throughout Franklin’s
testimony to attend immediately to any technical difficulties, should they have arisen.
I find that Respondent was not denied due process by utilization of videoconferencing
technology for Franklin’s testimony. Rule 102.30 of the Board’s Rules and Regulations provides,
inter alia, that “Witnesses shall be examined orally under oath, except that for good cause shown
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after the issuance of a complaint, testimony may be taken by deposition.” In Westside Painting,
supra, 328 NLRB at 796-797, the Board reversed the administrative law judge and held that
telephonic testimony did not comply with Board Rule 102.30 which “expresses a preference for
oral testimony” and requires “the physical presence in the hearing room of the witness being
examined.” The Board further noted that the sole exception to the preference for oral testimony
was deposition testimony when the witness was unavailable for the hearing. Id. Finally, the
Board noted that the Federal Rules of Civil Procedure are not controlling in Board proceedings.
Id., 328 NLRB at 797 fn. 7.
However, Westside Painting dealt with telephonic testimony only and is therefore
distinguishable from the instant videoconferencing situation. Indeed, the NLRB subsequently
instituted a pilot project in 2008 for use of video testimony in representation cases when
warranted.4 Although the Board has not ruled on the use of video testimony in unfair labor
practice cases, the Board’s pilot project in 2008 indicates that it did not feel bound by Westside
Painting regarding video testimony, at least in the representation context. Thus, it is reasonable
to find that Westside Painting is not directly dispositive of the issue of video testimony.
Further, although not controlling, the Board has often referred to the Federal Rules of
Civil Procedure for useful guidance.5 FRCP 43(a) provides that “for good cause in compelling
circumstances and with appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.” FRCP 43(a).
The 1996 Advisory Committee Notes to FRCP 43(a) stress that,
The very ceremony of trial and the presence of the factfinder may exert a
powerful force for truthtelling. The opportunity to judge the demeanor of a
witness face-to-face is accorded great value in our tradition. Transmission cannot
be justified merely by showing that it is inconvenient for the witness to attend the
trial.
See also, In re Vioxx Products Liability Litigation, 439 F.Supp.2d 640, 644 (E.D. La.
2006)(stressing importance of live testimony particularly in making credibility resolutions).
However, in F.T.C. v. Swedish Match North America, Inc., 197 F.R.D. 1 (D. D.C. 2000),
the district court stated that courts are generally more receptive to use of videoconference
testimony than the Advisory Committee and opined that videoconference testimony is equivalent
to live testimony. Moreover, federal courts have permitted videoconference testimony for
witnesses particularly in cases involving international travel which is lengthy, expensive, and
subject to bureaucratic restrictions such as visa requirements. See, e.g., Virtual Architecture, Ltd.
v. Rick, 2012 WL 388507 (S.D.N.Y. 2012 at *2 (collecting cases); cf. SEC v. Yang, 2014 WL

4 See OM 08-20, January 2008, Associate General Counsel Richard Siegel.
5 Brink’s Inc., 281 NLRB 468 (1986). See also, e.g., Flaum Appetizing Corp., 357 NLRB No. 162,
slip op. at 7-8 (2011); San Luis Trucking, 352 NLRB 211, 212 (2008), reaff’d, 356 NLRB No. 36 (2010),
enfd. mem. 479 Fed.Appx. 743 (9th Cir. 2012); Central Telephone Company of Texas, 343 NLRB 987,
988 (2004); Kaiser Aluminum, 339 NLRB 829 (2003); and Clinton Food 4 Less, 288 NLRB 597 fn. 2,
618-619 (1988).
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1303457 at *5-6 (N.D. Ill. 2014)(denying motion to permit testimony by videoconference where
witness residing in China did not show insurmountable obstacles to obtaining a visa to enter the
United States stating the party seeking to present the testimony should have taken the witness’
deposition during the discovery period).
In its posthearing brief, the Respondent does not specifically reassert its objection to
Franklin’s video testimony or contend that the safeguards were inadequate. However,
Respondent argues repeatedly that Franklin’s testimony should be discredited. In any event, I
find that the safeguards utilized at hearing amply ensured that due process was not denied to
Respondent.6 During the video transmission, which had been tested prior to the hearing, the
audio and video quality was flawless, the witness’ demeanor, i.e., his appearance, attitude and
manner, was easily observable. Certainly, any hesitation, discomfort, arrogance, or defiance
would have been easily discerned. The entire proceeding was as spontaneous as live testimony.
There was little or no audio delay between the questions and answers. Thus, Franklin’s testimony
by video may be evaluated on an equal footing with the testimony of witnesses appearing in
person at the hearing. See, e.g., F.T.C. v. Swedish Match North America, Inc., supra.

ALLEGED UNFAIR LABOR PRACTICES
The San Francisco School
Respondent operates 14 schools in the United States. At its San Francisco school,
Respondent teaches English to students who come to the United States to learn English as a
foreign language. Respondent’s San Francisco teachers are not represented by a labor
organization.
The events in this case are clustered in the months of November and December 20137
which was a transitional time in the top tier of administration at the San Francisco school. School
director Robert Miller left in September. This was followed by a period of time when the school
functioned without a director. In the absence of a school director, Denver-located Meghan
Conway, director of operations for the west coast, visited the school several times during late
2013. Haviva Parnes, director of academic management for North America, officed in Boston,
also visited the San Francisco school in November.
Then on November 18, Steve Reilly took over as the school director replacing former
director Robert Miller. Erin Freeny became academic director that same date, replacing Mike
Serangeli, but spent her first week on the job in training in Boston. A subtext to the transition,
voiced by new director Reilly, was to bring the San Francisco school into nationwide
conformance with corporate policies.
Other levels of administration had been in place for some time by mid-November. Mike
Serangeli was academic director. Stephanie Eto was the academic coordinator and academic

6 Another safeguard utilized in federal courts is that if audio or video is lost three times, the video
conference will be terminated and all testimony stricken. See, e.g., Monserrate v. K.K. Machine Co., 2013
WL 1412194 (E.D.N.Y 2013) and Sawant v. Ramsey, 88 Fed.R.Evid.Serv. 429 (D. Conn. 2012).
7 All dates are in 2013 unless otherwise referenced.
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manager was Sendy Ramos. Completing the administrative ranks in San Francisco, the university
preparations program managers were Pamela Astarte and Heidi Briones.
Jesse, one of 20-30 teachers at the San Francisco school, began teaching for Respondent
at the San Francisco school in July 2011. Jesse was discharged on December 20. At the time of
her termination, Jesse was the third most senior teacher and taught about 35 hours per week. In
order to be considered full time, a teacher must, among other things, work at least 30 hours per
week.
Management personnel utilize employer email accounts. Teachers do not have employer
email accounts and thus use their personal email accounts for work-related matters.
Meeting of Friday, November 1, regarding Healthcare, Corporate Citizenship, and Student
Survey Evaluation System
At approximately 1 p.m. on Friday, November 1, a regular weekly meeting of employees,
teachers, and administrators took place on the second floor in the Dolores Park room. Fifteen or
twenty teachers attended in addition to then-academic director of the school, Mike Serangeli.
Other administrators attending included academic manager Sendy Ramos and university
preparation program manager Pamela Astarte.
Serangeli spoke about employer-provided health care coverage for teachers explaining
that in order to obtain this coverage, a teacher must work more than 30 hours a week, must
continue to do so without more than 2 consecutive weeks of vacation, must maintain a 4.0
student survey rating average or higher, and must be a good corporate citizen. Serangeli stated
that the school’s program was in line with the Affordable Care Act.
There is no dispute that prior to the fall of 2013, teachers at the San Francisco school
were not routinely apprised of their student survey evaluation ratings. The first reference to these
ratings occurred in August when Parnes named three teachers, including Jesse, as the three
highest rated teachers at the San Francisco school. At this time, teachers knew little or nothing
about how the scores were calculated and what scores were expected of them. Moreover, they
had never seen a student evaluation form.
In any event, Respondent typically distributed evaluations forms to students at the
beginning, middle, and end of each 5 or 6-week course. Completion of the survey was not
mandatory. The first survey was given during the first week of the course. The school did not use
this first survey for teacher evaluation purposes. The second survey was distributed 2-3 weeks
into the course, about halfway through the course. It was not used for teacher evaluations either
but was relevant as a benchmark. The last survey was distributed during the last week of the
course and it was the survey utilized by Respondent to rate individual teacher’s performances.
The surveys stated the teacher’s name and asked that the students rate the teacher on a
scale of one to five -- one being the lowest score and five, the highest. The students did not
always complete these surveys. If there were fewer than 17 responses, the rating was not utilized.
The average of all final survey scores was the teacher’s rating. For instance, if 20 students were
surveyed and 10 responded with a 5 while the other 10 responded with a 4, the teacher’s
evaluation would be 4.5.
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Jesse’s November 2, 4, 6, 8, and 10 Emails regarding Healthcare, a 401(k) Plan, Corporate
Citizenship, and Student Survey Evaluation System
On the following day, November 2, Jesse initiated a group email concerning healthcare –
specifically, her disagreement with Serangeli’s statement that the school’s policy for health
insurance eligibility was in line with the Affordable Care Act. She sent this email to Serangeli,
Ramos, and Astarte as well as 24 teachers. In the email, Jesse asserted that the number of hours
required to receive health insurance coverage under the federal program was based on an average
number of hours and would offer more employees coverage than Respondent’s program which
required maintaining at least 30 hours each week.8 Jesse also stated her understanding that
Respondent’s health care eligibility standards required maintaining a student survey evaluation
score of 4.0 or above. Jesse criticized this eligibility requirement as a precarious criteria based on
the subjective whims of students. Finally, she noted that the requirement of good corporate
citizenship was understandable although she observed that many of the “corporate citizenship”
virtues involved teachers expending their free, uncompensated time for school activities.
In response, Serangeli suggested that Jesse come to speak with him. Jesse declined by a
group email of November 4 noting that at least half of the teachers responded to her email and
fully supported her statements. Jesse concluded, “It’s not about me. It’s about us.” Serangeli
responded that he would address the concerns in the next meeting. On November 6, Jesse sent a
group email to administrators and teachers summarizing information about the Affordable Care
Act.
At the next meeting, November 8, Serangeli told the teachers, including Jesse, who
continued to express concerns about healthcare, to save their questions for Director of West
Coast Operations Conway, who would meet with employees on November 13. After the
November 8 meeting, Jesse sent an email to 20 or more teachers. She asserted that “sticking up
for what’s best for ALL teachers” was the best avenue for success. The email solicited questions
regarding healthcare in advance of the November 13 meeting and suggested questions as
follows:
1. What is the pathway for new teachers to acquire more classes/hours (if
wanted)?
2. Once a teacher has received full-time hours, what is the pathway to getting
health care paid by [Respondent]?
3. Are 401Ks offered by [Respondent]?
4. Soon to be former director Mike [Serangeli] told the teachers that it is
important to be a good “corporate citizen.” Can you describe what being a
“good corporate citizen” means being as specific as possible?
5. Teachers have also been told that (average) student evaluation scores are
important to their standing at [Respondent]. We are rarely shown these scores,

8 At a later meeting, Conway, Director of Operations for the West Coast explained that Respondent
would comply with the Affordable Care Act, as required, beginning in January 2015 and that
Respondent’s healthcare coverage was a separate item.
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so it’s hard to know where we stand. Can you describe how teachers can learn
these scores on a regular basis?
Jesse forwarded the email to Serangeli on Sunday, November 10, asking that he
provide email addresses for Conway and Reilly so she could forward the questions to
them in preparation for the November 13 meeting. Serangeli did not respond.
Wednesday, November 13, Meeting regarding Pay Raise, Hiring of New Teachers, a
401(k) plan, Corporate Citizenship, the Student Survey Evaluation System, and More
Computers for Teachers
Fifteen to twenty teachers attended the November 13 meeting. Conway introduced Reilly,
who would begin serving as the director of the San Francisco school on the following Monday,
November 18. In addition to Conway and Reilly, administrators Serangeli, Astarte, Ramos, and
Eto were also presented. There is little discrepancy between Jesse’s testimony and that of
Conway and Eto regarding this meeting. However, Jesse’s testimony is much more detailed and I
credit her testimony to the extent there are any discrepancies. In any event, there is no dispute
that during this meeting, Jesse advocated an increase in the administrative rate of pay for
teachers, questioned the efficacy of hiring new teachers when existing teachers wanted to teach
more classes, asked if teachers were eligible for a 401(k) plan, asked about corporate citizenship
expectations, questioned usage of the student survey evaluation system, and requested more
computers for teachers. These topics were discussed in addition to Conway’s explanation of
Respondent’s healthcare system and its interface with the Affordable Care Act, which would be
implemented by Respondent in 2015.
Pay Raise: All parties agree that Conway announced that there would be a 2 percent raise
for teachers who started before a certain date. Both Conway and Jesse agree that Jesse asked if
the raise applied to both the “teacher” pay rate and the “administrative” pay rate. Conway
clarified that the raise applied only to the “teacher” pay rate. A general discussion ensued about
the high expense of living in San Francisco and criticism of the administrative pay rate as just
barely above the San Francisco minimum wage rate. Conway addressed Jesse asking, “[W]hat do
you think [the administrative wage rate] should be, Andrea?” After further discussion, Conway
agreed to look into adjustment of the administrative pay rate. Eventually in February 2014, the
administrative rate was raised by $1 per hour.
Hiring of New Teachers: After the discussion about wages, Jesse asked why new teachers
were constantly being hired when existing teachers wanted more hours so they could qualify for
health care insurance. Conway addressed this issue telling the group that hiring new teachers was
necessary for succession planning.
401(k) plan: In response to Jesse’s question regarding eligibility for a 401(k) plan,
Conway turned to the 401(k) issue and told the group that “timesheet” employees were not
eligible for this program.9

9 An explanation for the term “timesheet” employee is not contained in the record. Sarah Cady from
corporate human resources in Boston specifically addressed employee benefits, including health care, sick
leave, and 401(k) benefits in meetings held in San Francisco in early December. Some teachers were
Continued
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Corporate Citizenship: Jesse then pointed to her badge and noted that Serangeli had told
employees that wearing a badge was a part of being a good corporate citizen. Jesse asked what
else was involved. Conway responded that corporate citizenship involved “looking sharp,
keeping your room tidy, getting to your class on time.” Conway’s testimony, in basic agreement
was that she told the employees it meant wearing your name tag, showing up on time to work,
and following the Respondent’s dress code.
Student Survey Evaluation Scores: Jesse told Conway that student survey evaluation
scores were “kind of a mystery to us.” Jesse explained that teachers did not regularly receive this
information. Other teachers asked questions about the evaluations too. Conway stated that
student survey evaluations were important and announced that with the addition of academic
director Freeny to the staff, Freeny would be able to sit down with each teacher on a quarterly
basis to review scores. Conway said the student survey evaluation system would be revamped by
spring 2014 because there were questions about it. Conway explained that these scores were
“nothing to panic about, that if they were low that they would lead to a conversation . . . to bring
them back up.” Conway recalled telling employees that in order to qualify for healthcare
coverage, teachers needed a bare minimum of 4.0 “but we look for 4.2.” Teacher Franklin
recalled that Conway said the evaluation scores would not lead to termination. I credit Franklin’s
testimony regarding evaluation scores not leading to termination and note that various
administrators, including Conway, agreed.
In the fall of 2013, in order to maintain full-time status, full-time teachers were actually
expected to maintain a 4.2 average or higher on the third student survey evaluation – not a 4.0 as
Serangeli stated in the meeting. Conway testified that in order to maintain full-time status,
teachers must have a 4.0 minimum but Respondent preferred 4.2.10 Parnes explained that the 4.2
score is an expectation – “what we’re shooting for” – but it is not a requirement either for
maintaining employment or for maintaining full-time status. Rather, Respondent works with
teachers who fall below 4.2 and, according to Respondent’s witnesses, no one has been
terminated for falling below 4.2 or 4.0.
The employee handbooks for 2012 were in effect in 2013 but do not contain a policy
concerning the relationship between evaluation scores and ability to maintain full-time status.
There is no description of the evaluation system in the handbooks. However, another of
Respondent’s publications, the Teacher Book, contains a description of the student survey
evaluation system and provides for a performance improvement plan when a teacher’s evaluation
falls below 4.0:
For those full-time teachers with a score that has fallen below 4.0; we will provide
observation, assistance and coaching. Our goal is to support the development of
our teachers. A performance improvement plan will be developed by the
Academic Director for those teachers with continued low evaluation scores and
classroom observations.
_________________________
eventually found eligible to participate in the 401(k) plan.
10 In 2011, teachers were expected to maintain a score of 3.6 to 3.8. Because higher scores were
routinely maintained, the score expectation was raised to 4.2 in the fall of 2012.
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Computers for Teachers: Finally, Jesse asked if more computers could be made available
for teachers and Conway agreed to look into this request. At a later date, another computer was
made available to teachers.
Following the meeting, several teachers thanked Jesse for advocating for them. Jesse sent
a series of three emails to about 20 teachers – those who had not been able to attend as well as
those who were in attendance. She included program manager Astarte on one of these emails.
Jesse attached her minutes and observations of the November 13 meeting to these emails.
Jesse’s Dissatisfaction with A2-1 Assignment
In the fall of 2013, with no academic director in place, visiting academic directors from
other schools rotated in and out of San Francisco on a weekly basis. None of them recommended
reduction in the number of classes even though student enrollment was falling. Because none of
the rotating academic directors had told her to do otherwise, Eto continued to schedule the same
number of classes without reduction. Finally, in mid to late November, as the school’s
enrollment continued to decrease, a visiting academic director noticed the need to reduce classes
and closed down a number of classes. Ramos and Eto worked together to reassign the remaining
classes.
An email of Saturday, November 16 from Ramos to all teachers attached new teacher
schedules. Jesse was assigned to teach two general education classes (A2-1 and B1-3) and one
elective course, an idiom class. Although Jesse had taught A2-1 in September or October, Jesse
was upset that she did not have an assignment to teach A2-2. She felt she had mastered that
course and had never received any complaints. Additionally, as she examined other teachers’
schedules, Jesse noticed that Galin Franklin and Sandy Teixeira had each lost one of their
general education courses thus reducing them from full-time status to part-time status.
About an hour and one-half after receiving the new schedule, Jesse emailed Ramos
asking that her A2-1 class be reassigned. She noted her seniority and her success with A2-2.
Jesse predicted that “whoever teaches [the A2-2 class] is likely not to have my high student
evals. Bad student evals are bad for the whole school.” Jesse further noted the presence of a
student in the assigned A2-1 class whom Jesse had attempted to hold back due to her belief that
he was cheating. She felt she should not have to teach this student. Ramos did not respond.
After waiting 30 minutes for Ramos to respond and receiving no response, Jesse
forwarded the Ramos email to Reilly asking that he step in and diplomatically resolve the issue
of her being assigned A2-1 for the next round of classes. Jesse attached her earlier email to
Ramos. In addition to her earlier reasons for seeking to be relieved of the A2-1 assignment, Jesse
also noted that many of the students in the assigned A2-1 class were resentful because the prior
teacher had failed the entire class.11

11 On the following day, teacher Hesse explained to Jesse that the existing A2-1 class was not
composed of students who remained at the same level. Rather, these students, including the one Jesse had
attempted to hold back, were now in the A2-2 class that he was teaching.
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Still later on November 16, teacher Teixeira emailed Jesse stating that one of her general
education classes had been taken away. Teixeira and Jesse discussed Teixeira taking Jesse’s
idiom course but ultimately decided not to do that. Teacher Galin Franklin reviewed the new
schedule and noted that he had been reduced from 24 blocks (an hour and twenty minute period)
a week to 14 blocks per week thus converting his status from full-time to part-time status. On the
following day, Sunday, November 17, teacher Franklin called Jesse and they discussed his losing
a general education course. Franklin recalled that they also discussed Jesse’s assignment to teach
A2-1 as well as the fact that a substitute teacher who had quit some weeks before had been given
a full-time schedule as a substitute teacher.
On Sunday, November 17, Reilly, whose first day of work would be the following day,
checked with academic assistants Ramos and Eto before responding to Jesse. Reilly learned that
the previous week, 60 students had departed leading to a low volume of student enrollments.
Consequently, in formulating the new schedule, various classes were closed. Reilly responded to
Jesse stating the school would adhere to the schedule as issued.
Jesse quickly responded to Reilly stating,
It still hasn’t been explained to me why I had to switch out my A2-2 class which I
have been teaching since I started at [Respondent] 2.5 years ago. Normally
(during [Miller’s] tenure) teachers are asked what they want before scheduling
takes place and then are given what they want based on seniority. I thought
seniority had it’s [sic] privileges, but I guess that’s only true for some teachers.
Jesse also offered to give the A2-1 class to Franklin who had lost a class. In a follow-up
email, Jesse offered to give her idiom class to Teixeira. Reilly responded to the first email
recommending speaking with Eto and explaining that Jesse could lose her full-time status by
giving a class to Franklin. Responding to the second email, Reilly stated,
Thanks for the follow up. I just replied to your other email explaining that we
can’t maintain your [full-time] status without hitting the required teaching hours. I
really appreciate the teamwork, but if other teachers have concerns I do think it’s
best that they approach [Ramos or Eto] directly to work out their individual
situations.
We’re going to consider this closed for now and can certainly follow up with
affected teachers throughout the week. Enjoy the rest of your Sunday!
Jesse responded immediately asking what hours were necessary to maintain full-time
status. She also requested a link to the employee handbook and suggested piecemeal substitution
of one teacher for another for a few weeks.
Email of November 17
In a separate November 17 email, Jesse wrote to Eto, Ramos, and Astarte as well as about
20 teachers expressing her dissatisfaction with her assignment to teach A2-1. Jesse asserted that
although Ramos sent out the schedule, she could see Eto’s “handy-work” in them. Jesse accused
Eto of allowing her personal feelings to influence scheduling by giving full-time hours to a
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substitute teacher who was a friend of Eto’s. Jesse stressed her seniority and success as an A2-2
teacher, reiterated her concerns for Franklin and Teixeira, and requested a meeting with Eto on
the following day. Jesse urged solidarity among teachers on the scheduling issue and noted their
success in getting a pay raise and a new computer. Eto did not respond to this email.
Meetings of Monday, November 18
On Monday, November 18, Eto told Franklin and Jesse that she would like to talk to them
one-on-one. They stated a preference to meet with her together and she complied with their
request. Referencing a list of questions given to her by Franklin and Jesse, Eto attempted to
answer some but not all of the questions. Regarding the question, “Why did you choose to hire a
sub . . . over giving available hours to [Franklin] and [Teixeira]?” Eto explained that the
substitute teacher was given a full-time load because he was substituting for a full-time teacher
on vacation.
After further protestation from Jesse and Franklin regarding Franklin’s loss of full-time
status, Eto said, “I didn’t want to have to tell you this but it’s because of evaluation scores, poor
evaluation scores.” Eto explained that the substitute teacher had higher evaluation scores than
Jesse, Franklin, and Teixeira. Jesse and Franklin asked what the specific scores were and how
long the practice of awarding classes by evaluation scores had been in place. Eto did not recall
the specific scores but stated that evaluation scores had always been used to award class
assignments. Eto did not complete the list of questions but told Jesse and Franklin that she felt
they were bullying her and asked if they could continue the meeting in Reilly’s office.
Ashley Weitman, director of the San Diego school, was present at the San Francisco
school for Reilly’s first few days. Weitman and Reilly met with Eto, Franklin, and Jesse and the
conversation continued regarding how Eto and Ramos had assigned teachers to the reduced
number of classes. Once again, Jesse asserted that she did not want to teach the A2-1 class she
was assigned. Reilly told Jesse that the schedule would remain as issued.
Jesse took the position that it was outrageous that Franklin’s hours were reduced based on
poor evaluation scores. She stated as far as she and Franklin were concerned, “this whole
[evaluation score] policy . . . came out of nowhere.”
Franklin mentioned that an opportunity for shared sacrifice had been lost. He opined that
the reduction in schedule could have been shared equitably without anyone experiencing too
much pain. Franklin and Jesse asked further questions about the evaluation process. Reilly
responded that it was his first day on the job and he did not have the answers. Two days later,
Franklin was laid off.
Meeting of November 20 Admonishing Jesse to be Careful about Speaking on Behalf of Others
On November 20, Reilly conferenced with Conway regarding Jesse. Conway advised
Reilly to meet with Jesse about policies and procedures. At the meeting with Jesse later that day,
in Weitman’s presence, Reilly indicated, according to Jesse, that he was aware that Jesse wanted
to help Franklin “but you really need to focus on your teaching and not get involved. Reilly
testified he told Jesse that full-time teachers were expected to maintain their required hours each
week and be available to teach any class at any level. Reilly told Jesse he was concerned with the
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list of questions presented to Eto because it made Eto feel attacked. In addition, Reilly testified
that he thanked Jesse for her concern and advised her to “be careful about speaking on behalf of
others” adding that “all teachers can speak to us directly with any concerns they may have.”
Email of November 20 Cautioning Jesse regarding Speaking on Behalf of Colleagues
Reilly followed up with an email later that evening stating that he appreciated Jesse’s
openness to his feedback. Reilly noted that in planning teaching schedules, the school utilized
student volumes, student survey evaluation scores, and worked to keep full-time teachers at their
required teaching level. Reilly acknowledged that there might be changes from past
administration’s practices and asked for patience in bringing San Francisco into nationwide
conformation. Reilly concluded:
I know you have been with us for a long time, and I appreciate that you are
looking out for your colleagues. That being said, we also want to maintain a high
degree of professionalism at the school. While you should certainly feel free to
voice your concerns, how you go about this is very important. It is not appropriate
to jump to conclusions about how and why decisions are made, and certainly not
acceptable to speculate about the personal relationships of our staff. In addition, I
would caution you from speaking on behalf of colleagues and instead redirect
them to the academic team or myself. This will help us resolve situations more
quickly and efficiently with less confusion all around.
December 6 and 7 Emails Requesting additional Computers
In response to a work-related December 6 email to all teachers from Freeny, Jesse replied
to all on December 7 suggesting that additional computers and a printer be made available to
teachers. By email of December 9, Freeny thanked Jesse for the suggestion and more computers
were provided.
December 16 Email Admonishing Group Email Usage
Reilly was out of the country during the December 6 and 7 email exchange. However, on
December 16, Reilly responded to Jesse’s December 6 email stating,
As we’ve discussed before, please come and speak with one of us in person about
any questions or concerns you may have. Unfortunately, sending out a group
email like this [December 6 email] is not a professional or effective way to
resolve your concerns. Please keep this in mind for the future, and our door is
always open if you do need to chat.
Jesse replied asserting that she and other employees often sent group emails and
defending her use of group emails:
I’m sure you can appreciate that we (teachers) were without an Academic
Director for some time and have resorted to email to communicate with one
another about keeping things running smoothly without a leader. This is the most
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efficient way for us to communicate as we are not all in the teachers’ room at the
same time.
The Very Blue Book, utilized and distributed by Respondent for orientation, specifies,
“When a matter is urgent and you are unable to resolve it in person, pick up the phone. Don’t
send an email.” Jesse recalled receiving this book at a meeting in January. One of twelve tips for
success states, “Pick up the phone.” The book further provides,
Email.etiquette@ef
 Avoid sending angry emails; words [obliterated] they are written down.
 Sometimes it’s helpful to write the email but not send it. If you’re angry,
wait. Then pick up the phone or, better yet, talk to the person face-to-face.
 Avoid blaming people for not having important information by saying
“but I copied you on that email” or “it was in one of the attachments of
that email I sent you.” If it’s important, don’t cut and paste or attach. Pick
up the phone.
Despite these policies, I find that Respondent’s teachers and administrators routinely
utilized group emails in order to discuss employment-related matters. Teachers Jesse, Franklin,
and Teixeira recalled specific group emails to and from teachers and administrators regarding
attendance lists, time sheets, Miller’s departure in September, requests for substitute teachers, a
football pool, get-togethers outside of work, and locating missing books or property.
Administrators were routinely included on these emails. These three witnesses, including
Franklin via videoconferencing, were highly credible, corroborated each other, and were not
contradicted by witnesses for Respondent regarding the use of group emails for employment-
related matters. Moreover, the record contains numerous such emails.
Jesse’s December 18 Email to Freeny Opining that any Drop in her Student Survey Evaluation
System Rating was due to a “Complainy” Student Demographic, the A2-1 Assignment, and
Large Class Size
Jesse was named in August as a top performing teacher with a 4.35 student survey
evaluation. For the period July 1 to October 24, Jesse had an evaluation of 4.04. On Tuesday,
December 17, Freeny emailed all teachers announcing the four teachers who had achieved the
highest average student survey evaluation scores for the year. Jesse’s name was not on the
December 17 list.
By email of December 18, Jesse responded to Freeny only. This was not a group email.
Jesse noted that apparently her evaluation score had fallen. She asked that her current score be
sent to her and then opined that any decrease in her score could be due to three different factors:
1. I taught 2 terms of (young group) B1-3 in which the class was more than 50%
French speaking. The students complained saying their agents had promised
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them something different.12 I didn’t have a good answer for them other than it
was up to them not to speak their language in class. This demographic is very
“complainy” about a lot of things. I am sure everything about the school “took
a hit” from these guys.
2. I had mastered the art of teaching A2-2. This class was given to Logan. I was
given A2-1 instead. A2-1 is really a mixed class of A1-2, A1-3, A2-1 and
there were at least two students in there that could have been in A2-2; one
student in there was placed in B1-1 by Stephanie (unbeknownst by me).
3. Last week I was teaching three classes. One had 20 students and the other two
each had 18. Personally, I don’t mind teaching these larger classes. Often the
class with 20 (A2-1) was scheduled to be in some of the smaller classes
[classrooms] (e.g. Ghirardeli [sic] Square, Fisherman’s Wharf). The students
complained. I was puzzled considering the admin was both aware of the
student numbers and classroom size and they are the ones doing the
scheduling. A large number of students in a class means students don’t get as
much individual attention during class time. It also means the teacher has to
do more homework, test and essay correction outside of class.
Freeny responded with Jesse’s student survey evaluation information for calendar year
2013 showing that Jesse had an annual evaluation score of 4.02 with 166 students responding.
Freeny’s statistics also indicated that for weeks 41-50 of 2013, Jesse’s score was 4.0
Like all statistics, Respondent’s student survey evaluation scores are capable of various
analyses. On December 20, in responding to Jesse’s request for her evaluation score, Freeny
utilized 10-week periods to determine that Jesse’s average score for 2013 was 4.02. At hearing,
Parnes decried the use of 10-week periods as a result of Freeny’s lack of experience and testified
that the evaluations are based on class periods. Thus, Parnes and Conway agreed that Jesse’s
actual student survey evaluation for July 1 to October 24 was 4.04 and for the period October 27
to December 19 was 3.89. In any event, the evidence overwhelmingly indicates that student
evaluation scores are not utilized to discharge teachers. Respondent does not contend otherwise.
Decision to Discharge
Freeny forwarded Jesse’s December 18 email to Reilly and Reilly forwarded the email to
Conway. Freeny, Reilly, and Conway subsequently discussed their concerns that Jesse continued
to protest teaching a specific course after numerous prior conversations on the subject and that
Jesse placed responsibility for her student evaluation scores on a particular demographic which
she characterized as “complainy.” These concerns were shared by Freeny with Haviva Parnes,
director of academic management. Parnes recalled the discussion with Freeny as one of
frustration. “We couldn’t praise her and we couldn’t give her constructive feedback.” Parnes and
Conway spoke further and determined that Jesse should be terminated due to her inflexibility to
teach assigned courses. Another reason for the termination was a decline in Jesse’s ratings.

12 In other words, the optimal situation is that the students in each class be so mixed in languages that
the students are forced to speak English to communicate with each other. A class with 50 percent
speaking the same non-English language makes it more probable that the second common language will
be utilized rather than English, thus failing to provide the student with immersion in English.
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Further, her blaming “complainy” French-speaking students for the poor ratings was troubling.
Conway characterized this as a “slur against French people, which is not something that we
wanted of an employee in an international school.”
Conway made the decision to discharge Jesse after consulting with Parnes. The reasons
for discharging Jesse, according to Conway, were her refusal in November and December to
teach anything other than A2-2 level courses, the derogatory comment in the December 18 email
about a specific group of students based on their national origin, and a falling teacher evaluation
of 3.85 for the last term.13 Conway told Reilly to discharge Jesse because
[S]he only wanted to teach one specific class, that that was not an expectation
that we have of all the EF teachers. Again, that she was calling the French
students a very demographic complainee group of people. And, you know, that in
conjunction with at the same time her evaluation scores were dropping and
dropping and dropping, so it was sort of the combination of all of those things
together.
Termination of Jesse
On December 20, Jesse was discharged during a meeting with Reilly and Freeny.
According to Jesse, Reilly told her, “[Y]ou’re not a good fit, we didn’t like the group emails,
you’re not a corporate citizen.” Thus, according to Jesse, she was told that she was discharged, at
least in part, because of her group emails. This testimony is credited for the reasons that follow.
According to Reilly, he told Jesse he appreciated her hard work but it seemed like this
was not the right fit because we continued to discuss the same issues of being available to teach
the different levels that were assigned her. This was the totality of the conversation according to
Reilly.
Freeny recalled that Reilly did the speaking and said that Jesse was terminated and he
wished her the best of luck. Jesse asked for details and Reilly responded it was because of
“recent events that had occurred.” When asked to explain what Riley meant by “recent events,”
Freeny responded “these series of emails.” When asked for further clarification: “And just to be
clear for the record, when you say this series of emails you’re referring to the emails in [General
Counsel Exhibit16]?” Freeny responded, “Yes, 16, yes.”
General Counsel Exhibit 16 contains an initial email from Freeny to all teachers and
administrators dated December 17 announcing teachers with the top scores for the past year
pursuant to student evaluation surveys. The exhibit also contains Jesse’s reply, which was only to
Freeny, dated December 18 in which Jesse characterized French-speaking students as
“complainy,” requested her evaluation scores, and continued to assert that she should not be
assigned to teach A2-1. Jesse’s December 18 response to Freeny was not a group email string
originated by Jesse to teachers and administrators.

13 The 3.85 score differs from the 4.02 annual score sent to Jesse by Freeny. According to Parnes,
Freeny utilized a 10-week average when she sent the score to Jesse. Parnes explained that Respondent
does not utilize a 10-week basis for averaging evaluations.
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None of the versions of the discharge conversation mirror the corporate reasons for
discharge enunciated at the hearing. Further, there is little agreement between the three witnesses
at the discharge conversation regarding what was said. On the whole I find Jesse’s testimony to
be more complete and more inherently believable. Reilly’s testimony lacked detail and appeared
abbreviated rather than drawn from his recollection. Freeny was a hesitant witness whose
demeanor exemplified an unwilling witness carefully trying not to say the “wrong” thing.
Strangely, though, Jesse’s rendition is supported in part by Reilly and in part by Freeny.
Thus, Reilly and Jesse agreed that Jesse was told that she was terminated because she was
not a good fit or not the right fit. Freeny’s testimony indicates that Jesse was told she was
discharged due to “these recent events,” by which Freeny testified Reilly meant emails. Freeny’s
conjecture is, of course, notable only because Freeny appears to recall that emails were a stated
basis for the discharge. I find Freeny’s reference to emails includes all emails including those
which Respondent had counseled Jesse about – the group emails of November 17 and December
7. Due to the leading nature of the questions, I discredit the attempt to limit Freeny’s testimony
that she thought “these series of emails” was solely limited to Jesse’s December 18 email to
Freeny. Freeny was led to respond with this limitation and I discredit it. Thus, I credit Jesse’s
testimony that she was told she was discharged because she was not a good fit, Respondent did
not like her group emails, and she was not a good corporate citizen.
ANALYSIS
Alleged Threats
The amended complaint alleges that on November 20, Reilly threatened employees with
unspecified reprisals by telling employees to focus on teaching and not get involved in helping
co-workers. Reilly’s testimony is that on the advice of Conway, he met with Jesse on November
20 to clear up policies and procedures. He advised Jesse “to be careful about speaking on behalf
of others” and his follow-up email of the same date provides, “I would caution you from
speaking on behalf of colleagues. . . .”
The amended complaint further alleges that on December 16 Reilly threatened employees
with unspecified reprisals by stating that employees should not send out group emails discussing
employees’ terms and conditions of employment. Reilly’s December 16 email responded to a
group email sent by Jesse requesting more computers. In his response, Reilly stated:
As we’ve discussed before, please come and speak with one of us in person about
any questions or concerns you may have. Unfortunately, sending out a group
email like this is not a professional or effective way to resolve your concerns.
Please keep this in mind for the future, and our door is always open if you do need
to chat.
Section 8(a)(1) of the Act14 provides that it is an unfair labor practice “to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the Act].

14 29 U.S.C. §158(a)(1).
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Section 7 protects the right of employees to engage in “concerted activity” for, inter alia, their
“mutual aid or protection.” The Board assesses the objective tendency of statements to coerce
employees rather than utilizing employees’ actual subjective reactions. Miller Electric Pump,
334 NLRB 824, 825 (2001). Under this objective standard, the Board determines whether a
statement would reasonably tend to interfere with the free exercise of employee rights. See,
Miller Electric Pump, supra, 334 NLRB at 825 (rejecting judge’s finding based on employee’s
reaction to statement and finding statement, when considered objectively, tended to interfere
with protected right to discuss union on non-working time). Similarly, the Board does not
consider the motivation behind the remark. Joy Recovery Technology Corp., 320 NLRB 356, 365
(1995), enfd. 134 F.3d 1307 (7th Cir. 1998) (“The test of interference, restraint, and coercion
does not turn on the employer’s motive or on whether the coercion succeeded or failed . . . [t]he
test is whether the employer engaged in conduct, which it may reasonably be said, tends to
interfere with the free exercise of employee rights under the Act.’’) Thus, it is irrelevant that
Reilly’s motivation in telling Jesse to be careful about speaking on behalf of others was that Eto
told him that Teixeira did not want to be involved with Jesse and Franklin in class swapping.
Respondent’s statements to Jesse warned her under threat of unspecified reprisals that she
should not attempt to assist her coworkers and should not utilize group emails to discuss work-
related matters. A reasonable construction of Reilly’s statements is as a warning to refrain from
assisting coworkers and to refrain from group emails to coworkers about terms and conditions of
employment. By virtue of these statements to Jesse, Respondent threatened Jesse if she
continued to engage in protected, concerted activity of speaking on behalf of others and speaking
to groups of employees about their terms and conditions of employment. Thus I find the
violations as alleged.
Alleged Discharge for Protected, Concerted Activity
The amended complaint alleges that Jesse was discharged on December 20 because of
her protected, concerted activity as follows:
 Challenging Respondent’s eligibility policy for its health insurance in group emails and at
employee meetings;
 Demanding a wage increase, a 401(k) program, and opposing hiring of new teachers
when current teachers wanted more teaching hours at employee meetings;
 Challenging Respondent’s decision to reduce the hours of two teachers while
simultaneously rehiring another teacher with full-time hours in group emails and
employee meetings;
 Questioning Respondent’s policy of reducing teachers’ hours based on low evaluation
scores in group emails and employee meetings; and
 Demanding more computers for teachers in group emails and employee meetings.
An employee’s discharge independently violates Section 8(a)(1) of the Act when it is
motivated by employee activity protected by Section 7. “[A] respondent violates Section 8(a)(1)
if, having knowledge of an employee’s concerted activity, it takes adverse employment action
motivated by employee’s protected, concerted activity. CGLM, Inc., 350 NLRB 974, 979 (2007),
enfd. mem. 280 Fed.Appx. 366 (5th Cir. 2008), quoting Meyers Industries (Meyers I), 268
NLRB 493, 497 (1984) revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert denied
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474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
Jesse was engaged in protected activity. Employees who seek to improve wages, benefits,
working hours, their physical environment, dress codes, assignments, responsibilities, and other
similar employment-related items are dealing with conditions of their employment as set forth in
Section 7. New River Industries v. NLRB, 945 F.2d 1290, 1294 (4th Cir. 1991); see generally,
Eastex v. NLRB, 437 U.S. 556, 563-368 (1978); CGLM, Inc., supra, 350 NLRB at 979.15
By sending group emails to her coworkers and speaking at employer meetings about
various terms and conditions of employment such as eligibility for health insurance, a wage
increase for “administrative” pay, a 401(k) program, hiring of new teachers when existing
teachers were willing to teach additional hours, utilization of the student survey evaluation
method to award classes, and requesting additional computers for teachers, Jesse was engaged in
protected, concerted activity with 20 or more coworkers. Examples of this behavior are her group
emails of November 2, 4, 6, 8, 10, and 17; her questions and comments at the November 13
meeting; and her insistence on meeting Eto with Franklin rather than one-on-one on December
18 all with an object of inducing group action.
Although it is unnecessary to express the object of inducing group action,16 Jesse’s
statements clearly contain calls for group action. On November 4, in response to Serangeli’s
offer to talk with Jesse one-on-one about healthcare, Jesse declined by replying to all noting that
half the teachers had emailed agreement with her position and concluded, “It’s not about me. It’s
about us.” By email to 20 teachers on November 10 (later forwarded to Serangeli), Jesse urged
her coworkers that “sticking up for what’s best for ALL teachers is the best avenue for success.”
In seeking to resolve assignments so that Franklin and Teixeira could increase their hours, by
email of November 17, Jesse urged solidarity among teachers and noted their success in getting
another computer and an administrative pay raise. All of these actions were in response to
matters which arose in the workplace at staff meetings and in preparation for upcoming staff
meetings. Thus, by addressing these issues and possible action on these issues, Jesse was seeking
to initiate, induce, or prepare for group action. Her actions thus consistute protected, concerted
activity for mutual aid or protection.
If the very conduct for which an employee is discharged is the employee’s protected
activity, the employer’s motivation is not at issue. See, e.g., Phoenix Transit System, 337 NLRB
510 (2002), enfd. mem. 63 Fed.Appx. 524 (D.C. Cir. 2003). In Burnup & Sims, 379 U.S. 21, 23-
24 (1964), the Court held that Section 8(a)(1) is violated if “the discharged employee was at the
time engaged in a protected activity, that the employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the course of that activity, and that the employee

15 See also, Inova Health System, 360 NLRB No. 135, slip op. at 3 (2014) (employee engaged in
protected activity when she emailed fellow employees about terms and conditions of employment); Cibao
Meat Products, 338 NLRB 934, 934-935 (2003), enfd. 84 Fed.Appx. 155 (2d Cir.), cert. denied 543 U.S.
986 (2004) (activity of one employee, who speaks in the presence of other employees, regarding a change
in employment terms affecting all employees is protected, concerted activity).
16 See, e.g., U.S. Furniture Industries, 293 NLRB 159, 161 (1989) (discussion about wage rates
constituted concerted activity even though there was no express object to induce group action).
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was not, in fact, guilty of that misconduct.” It is the Respondent’s burden to show that it had an
honest belief that the employee engaged in misconduct. Akal Security, Inc., 354 NLRB 122, 124-
125 (2009), reaffd 355 NLRB 584 (2010); Tracer Protection Service, 328 NLRB 734, fn. 2
(1999).
Here, as set forth above, the credible evidence indicates that Jesse engaged in protected,
concerted activity by speaking to management on behalf of her coworkers and that Respondent
knew she was speaking about terms and conditions of employment on behalf of her coworkers.
Indeed, Respondent specifically warned Jesse that she should be careful about speaking for her
coworkers and should refrain from sending group emails. Four days after being warned by Reilly
to refrain from sending group emails, Jesse was discharged for sending group emails and “not
fitting in.” The only misconduct cited was her protected, concerted activity. Thus, under the
Burnup & Sims analysis, Respondent violated Section 8(a)(1) of the Act in discharging Jesse.
The parties have briefed this case utilizing the analysis set forth 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 Management Corp., 462 U.S. 393, 395 (1983). This
analysis yields the same result. Wright Line applies to all Section 8(a)(1) and 8(a)(3)
allegations that turn on employer motivation. Pursuant to Wright Line, the General Counsel
must persuade by a preponderance of the evidence that the employee’s protected conduct
was a motivating factor (in whole or in part) for the adverse employment action.
The General Counsel satisfies the Wright Line standard by showing that the
employee was engaged in protected activity, the employer was aware of the activity, and
the activity was a substantial or motivating reason for the employer’s action. Donaldson
Bros. Ready Mix, 341 NLRB 958, 961 (2004). Here, the General Counsel has shown that
Jesse engaged in protected activity with the employer’s full knowledge. Respondent’s
animus toward her activities is demonstrated by its threats on November 20 cautioning her
not to speak in support of her colleagues and on December 16 not to send group emails
about terms and conditions of employment. Thus the General Counsel has shown not only
the three requirements of Wright Line as set forth in Donaldson Bros., supra, but has also
shown particularized motivating animus towards Jesse’s protected activity as a nexus
between Jesse’s protected activity and the adverse action taken against her.17
The General Counsel’s showing proves a violation of the Act subject to
Respondent’s affirmative defense of demonstrating by a preponderance of the evidence
that the same adverse employment action would have taken place even in the absence of
the protected conduct. Wright Line, supra at 1088-1089. In this regard, however, it is not
sufficient for an employer to produce a legitimate basis for the adverse employment

17 See, e.g., Nichols Aluminum, LLC, 361 NLRB No. 22, slip op. at 6-8 (2014) (concurrence of
Member Johnson stating particularized motivating animus toward employee’s own protected activity is
implicit in Wright Line).
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action18 or to show that legitimate factors for adverse action were a part of its decision-
making process.19 Rather, Wright Line requires an employer to persuade by a
preponderance of the evidence that it would have taken the same action in any event.
Respondent asserts that it would have discharged Jesse in any event because of her
disparagement of French-speaking students and her reluctance to teach an assigned course.
Although Respondent agrees that low student survey evaluation scores alone are not a ground for
discharge, Respondent notes that both of the incidents above occurred in the context of Jesse’s
falling student survey evaluation scores. I find these grounds pretextual. Further, were these
grounds not pretextual, I would find them insufficient to prove that Jesse would have been
discharged for these reasons.
Thus, I note that there was no attempt to counsel or confront Jesse about her remark
about French-speaking students. Respondent’s Teacher Handbook states that it utilizes a
progressive discipline system with at least one oral warning before a written warning is issued. If
a written warning is issued, corrective action is set forth in the warning. “Some types of
infractions [not enumerated] may result in immediate termination at this time.” The handbook
further provides that prior to termination, an employee is entitled to be informed of incorrect
behavior or substandard performance through oral and written warnings unless the infraction is
of a severe nature. Although Conway found Jesse’s remark “troubling,” she did not explain why
it constituted grounds for immediate termination without an oral or written warning. Similarly,
Jesse was told repeatedly that Respondent would not change its class assignment. She continued
to complain but was given no warning that her complaints could lead to termination. She was not
informed that she needed to correct this behavior or disciplinary action might be taken. Thus,
because these reasons for discharge were not articulated at the time of discharge and because
Respondent did not counsel or warn Jesse about these behaviors, I find that they are pretextual.
A finding of pretext necessarily means that the reasons advanced by the employer either
did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful
motive established by the General Counsel. Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982). Thus, if the evidence establishes that the reasons given for
the Respondent’s action are pretextual, the Respondent fails by definition to show that it would
have taken the same action for those reasons, absent the protected conduct, and there is no need
to perform the second part of the Wright Line analysis. Golden State Foods Corp., 340 NLRB
382, 385 (2003).
Moreover, even were these reasons not pretext, they would not satisfy
Respondent’s Wright Line burden. Substantively the three reasons now asserted are low
evaluation scores, characterization of a student demographic as “complainy,” and

18 Carpenter Technology Corp., 346 NLRB 766, 773 (2006) (“The issue is, thus, not simply whether
the employer ‘could have’ disciplined the employee, but whether it ‘would have’ done so regardless of his
union activities.”)
19 Weldun International, 321 NLRB 733, 747 (1996), enfd. in relevant part 165 F.3d 28 (6th Cir.
1998) (employer cannot carry this burden merely by showing it also had a legitimate reason for the
action).
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continued resentment about a teaching assignment. These three grounds are insufficient to
show that Respondent would have discharged Jesse in any event.
Low evaluation scores are by Respondent’s admission not a ground for discharge
but rather an alert showing that performance improvement is required. The record contains
several different student survey evaluation scores. The 2013 annual score was 4.02
according to an email from Freeny. This score is confirmed by an annual score survey
prepared for hearing. A third document indicates a score of 3.89 for the period October 24
through December 19. Before that time, Jesse was a top performer with a 4.35 score. But
numbers aside, Respondent’s policy was to counsel a teacher with a low evaluation score
in order to raise the score. Respondent specifically awarded full-time status to high scoring
teachers but did not use the scores as a reason for discharge. Thus, Respondent has not
proven that it would in any event have discharged Jesse for low student survey evaluation
scores. In fact, her annual score met their criteria if not their expectation.
The second reason given by corporate personnel for Jesse’s discharge was that in
an email sent to Freeny (but not to other teachers or to students) she referred to the French-
speaking demographic of students in one of her classes as “complainy.” This
characterization was not shared with the students or teachers. As Conway stated, the
characterization was troubling and, indeed, it is possible to categorize it as an ethnic slur.20
However, absent broadcast of such a stereotypical characterization, it is difficult to find
that the single, isolated statement warranted discharge. Moreover, Respondent called no
attention to the remark at the time it was made and did not counsel or attempt remediation.
Further, Respondent does not assert Title VII concerns to maintain a workplace free of
national origin harassment as a reason for Jesse’s discharge.21 Given Respondent’s
progressive disciplinary system and Jesse’s tenure at the school, I am unconvinced that this
remark proves that Jesse would have been discharged in any event.
Finally, Respondent found fault with Jesse because she continued to complain
about assignment of an A2-1 class because she thought it would lower her evaluations and
because she believed she was much better at teaching A2-2. Jesse did indeed complain and
complain about this assignment, but in the end, she taught the class. Jesse was never
warned to cease complaining but she was told on numerous occasions that she must keep
the A2-1 class and she did. There was no failure to perform her assigned duties and this
ground put forth by Respondent does not support a finding that Jesse would have been
discharged in any event.
Thus, because the student survey evaluation scores were admittedly not grounds for

20 Wikipedia defines an ethnic slur as a term designed to insult others on the basis of race, ethnicity,
or nationality. In other words, it is an aspersion or disparaging remark about race or language.
21 Title VII requires an employer to maintain a workplace atmosphere free of national origin
harassment. The EEOC defines such harassment as ethnic slurs or other verbal and physical abuse relating
to an employee’s national origin when such conduct has the purpose or the effect of (1) creating an
intimidating, hostile, or offensive work environment, (2) unreasonably interfering with the employee’s
work performance, or (3) otherwise adversely affecting an employee’s employment opportunities. See 29
C.F.R. § 1606 8(b).
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discharge, because the “complainy” disparagement was a single, isolated occurrence, and
because Jesse taught her assigned classes, and because none of these perceived grounds for
discharge were treated under the progressive discipline system, absent a finding of pretext,
I would find that Respondent has not satisfied its burden of showing that Jesse would have
been discharged absent her protected activity by advancing these three reasons for
discharge. Based on the record as a whole, I find that Jesse was discharged because of her
protected, concerted activity in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by threatening unspecified reprisals to an
employee because she was involved in helping coworkers.
2. Respondent violated Section 8(a)(1) of the Act by threatening unspecified reprisals to an
employee because she sent group emails discussing employees’ terms and conditions of
employment.
3. Respondent violated Section 8(a)(1) of the Act by discharging Andrea Jesse because she
assisted coworkers and concertedly discussed employees’ terms and conditions of
employment in group meetings and group emails.
4. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act, it shall be ordered to cease and desist and to
take certain affirmative action designed to effectuate the policies of the Act. Specifically, having
found that the Respondent discriminatorily discharged Andrea Jesse, it must offer her
reinstatement and make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). Further, Respondent
shall compensate Jesse for any adverse tax consequences of receiving a lump-sum backpay
award and file a report with the Social Security Administration allocating the backpay award to
the appropriate calendar quarters. Tortillas Don Chavas, 361 NLRB No. 10, slip opinion at 4-5
(2014). Additionally, the customary notice shall be posted and published in the usual manner.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:22
ORDER
The Respondent, EF International Language Schools, Inc., its officers, agents, successors,

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order, as provided in Sec. 102.48 of the Rules, shall be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
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and assigns, shall cease and desist from threatening or discharging employees for their protected,
concerted activities or in any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
Respondent shall take the following affirmative action necessary to effectuate the policies
of the Act:
a) Within 14 days from the date of this Order, offer Andrea Jesse 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 rights or privileges previously enjoyed.
b) Make Andrea Jesse whole for any loss of earnings and other benefits suffered as a result
of the discrimination against her, in the manner set forth in the remedy section of this
decision.
c) Reimburse Andrea Jesse an amount, if any, equal to the difference in taxes owed upon
receipt of a lump-sum backpay payment and taxes that would have been owed had there
been no discrimination against her.
d) Submit the appropriate documentation to the Social Security Administration so that when
backpay is paid to Andrea Jesse it will be allocated to the appropriate calendar quarters.
e) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharge of Andrea Jesse and, within 3 days thereafter, notify her in writing
that this has been done and that the unlawful discrimination against her will not be used
against her in any way.
f) Preserve and, within 14 days of 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, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.
g) Within 14 days after service by the Region, post at its facility in San Francisco,
California, copies of the attached notice marked “Appendix.”23 Copies of the notice, on
forms provided by the Regional Director of Region 20, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. 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 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 employment by the Respondent at its San Francisco facility at any
time since November 20, 2013.

23 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.”
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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.
Dated, Washington, D.C. September 15, 2014
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____________________
Mary Miller Cracraft
Administrative Law Judge
–42–14
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
The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us
to post, mail, and abide by this notice.
WE WILL NOT threaten employees because they get involved in helping their coworkers or because they send out
group emails discussing employees’ terms and conditions of employment such as healthcare eligibility, wage
increases, 401(k) programs, availability of computers, or hiring and scheduling of employees.
WE WILL NOT discharge an employee for complaining at employee meetings and through group emails about
employees’ terms and conditions of employment.
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 Andrea Jesse 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 rights or privileges previously enjoyed.
WE WILL make Andrea Jesse whole for any loss of earnings and other benefits suffered as a result of her unlawful
discharge, less any net interim earnings, plus interest.
WE WILL reimburse Andrea Jesse an amount, if any, equal to the difference in taxes owed upon receipt of a lump-
sum backpay payment and taxes that would have been owed had there been no discrimination against her.
WE WILL submit the appropriate documentation to the Social Security Administration so that when backpay is paid
to Andrea Jesse, it will be allocated to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful
discharge of Andrea Jesse and WE WILL, within 3 days thereafter, notify her in writing that this has been done and
that the unlawful discrimination will not be used against her in any way.
EF INTERNATIONAL LANGUAGE
SCHOOLS, INC.
(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.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130
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, 415-356-5139.