Parkway Florist, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 12, 2018

06-CA-209583 (N.L.R.B. Dec. 12, 2018)

JD–81–18
Pittsburgh, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PARKWAY FLORIST, INC.,
and Case 06–CA–209583
JO ANN VAUGHN, an Individual.
PARKWAY FLORIST, INC.,
and Case 06–CA–217020
PAUL CAVALERO, an Individual.
Decision and Recommended Order
DAVID I. GOLDMAN
Administrative Law Judge
Counsel:

Meghan Brooke Phillips, Esq., (on brief and at hearing)
Clifford E. Spungen, Esq., (hearing only)
Zachary A. Hebert, Esq. (hearing only)
of Pittsburgh, Pennsylvania, for the General Counsel
John Linkosky, Esq.,
of Carnegie, Pennsylvania, for the Respondent
JD–81–18
Table of Contents
Page
Decision................................................................................................................................ 1
Introduction ..................................................................................................................... 1
Statement of the case ..................................................................................................... 1
Jurisdiction...................................................................................................................... 2
Unfair Labor Practices..................................................................................................... 2
A. Background ................................................................................................... 2
The employees’ relationship with owner Cheryl Bakin ................................... 3
The October 20 incident ................................................................................ 4
B. Vaughn’s discharge ....................................................................................... 6
Analysis of the Vaughn Discharge ................................................................. 6
C. The December interrogation of Chisholm..................................................... 11
Analysis of Chisholm interrogation............................................................... 12
D. The reduction in hours and subsequent termination of Cavalero.................. 13
Analysis ....................................................................................................... 17
The 8(a)(4) allegations .......................................................................... 17
The 8(a)(1) allegations........................................................................... 27
Conclusions of Law ................................................................................................. 28
Remedy................................................................................................................... 29
Order .................................................................................................................... 29
Appendix
JD–81–18
1
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves a small owner-5
operated floral shop with a few employees—two full-time and two to four part-time employees and
some casual employees paid in cash.
After a sharp argument on a Friday afternoon in October 2017, between the owner and
two employees, prompted by the preparation of a flower order, one of the employees was fired 10
the following Monday morning. In early November 2017, she filed an unfair labor practice charge
with the Regional office of the National Labor Relations Board (Board) alleging that her discharge
violated the National Labor Relations Act (Act). In December 2017, the owner asked but failed to
learn from an employee whether employees were cooperating with the Board’s unfair labor
practice investigation. The second employee involved in the October argument had provided an15
affidavit to the Board as part of its investigation, although there is no direct evidence that the
owner knew of this. In January 2018, the owner reduced this second employee’s work hours by
one-day a week, allegedly based on slow business sales. In March 2018, he was terminated for a
combination of slow store sales and declining punctuality in his work. He filed an unfair labor
practice charge in March 2018. In April 2018, the owner again allegedly asked an employee if 20
she had heard from the Board or from either of the two discharged employees regarding the
Board.
All of this happened, but whether it offends the Act is a different question. The General
Counsel contends that the discharges, the reduction in hours, and the questioning about the 25
Board cases all violate the Act.
As discussed herein, under the circumstances, it is clear that the owner’s December 2017
questioning of an employee about whether she or others were cooperating with the Board’s
investigation violates the Act’s precedents. As further discussed herein, I do not reach the issue 30
of whether the April alleged interrogation violated the Act, as a finding on that allegation would not
materially affect the remedy in this case.
However, as also discussed herein, I recommend dismissal of the reduction-in-hours and
discharge allegations. The evidence is lacking that employee conduct protected by the Act 35
motivated the reduction in hours or the discharges. Indeed, the lack of evidence is reflected in the
labyrinthian arguments resorted to by the General Counsel. These arguments repeatedly
substitute speculation, unwarranted demands for adverse inferences, and the missteps of an
unsophisticated Respondent, for tangible evidence and reasonable inferences of employer
conduct violative of the Act. I will recommend dismissal of all but the interrogation allegation. 40
STATEMENT OF THE CASE
On November 8, 2017, Jo Ann Vaughn filed an unfair labor practice charge alleging
violations of the Act by Parkway Florist, Inc. (Parkway Florist), docketed by Region 6 of the45
National Labor Relations Board (Board) as Case 06–CA–209583. Based on an investigation into
this charge, on January 29, 2018, the Board’s General Counsel, by the Regional Director for
Region 6 of the Board, issued a complaint and notice of hearing in this case. Parkway Florist filed
an answer denying all violations on February 7, 2018. An amendment to complaint was filed June
14, 2018. An answer to the amendment to the complaint was filed June 18, 2018, and an 50
amended answer to amendment to complaint filed July 12, 2018.
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2
On March 22, 2018, Paul Cavalero filed an unfair labor practice charge alleging violations
of the Act by Parkway Florist, docketed by Region 6 of the Board as Case 06–CA–217020. A first
amended charge was filed in this case on April 16, 2018, and a second amended charge filed
May 25, 2018. Based on an investigation into this charge, on June 18, 2018, the Board’s General
Counsel, by the Regional Director for Region 6 of the Board, issued a complaint and notice of 5
hearing in this case. Parkway Florist filed an answer denying all violations on June 20, 2018, and
an amended answer on July 12, 2018.
On June 18, 2018, the Regional Director issued an order consolidating cases 06–CA–
217020 and 06–CA–209583. 10
A trial in this matter was conducted on July 30, 2018, and September 6, 2018, in
Pittsburgh, Pennsylvania. At the commencement of the hearing, counsel for the General Counsel
moved to amend the complaints to reflect the proper spelling of Vaughn’s first name, certain
jurisdictional allegations regarding the Employer, and an amendment regarding the description of 15
the employer conduct alleged as to Cavalero. The Respondent did not object to the motion, it
was granted, and the Respondent amended its answer in response.
Counsel for the General Counsel and the Respondent filed posttrial briefs in support of
their positions by October 11, 2018. 20
On the entire record, I make the following findings, conclusions of law, and
recommendations.
JURISDICTION25
At all material times, Parkway Florist has been a corporation with an office and place
of business in Pittsburgh, Pennsylvania, and has been engaged in the retail and non-retail sale of
floral arrangements and related products. In conducting these operations at its Pittsburgh facility,
Parkway Florist annually, purchased and received goods valued in excess of $50,000 directly 30
from points outside the Commonwealth of Pennsylvania. At all material times, Parkway Florist
has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
35
UNFAIR LABOR PRACTICES
A. Background
40
Parkway Florist is a floral shop in Pittsburgh, Pennsylvania, owned and operated by
Cheryl Bakin. Parkway Florist sells a variety of floral products including flowers and plants, and
provides event-planning services for weddings and other events. Parkway Florist occupies a
corner of an old warehouse building on the first and second floor. The first floor entrance opens
into a design area, cashier, restroom and kitchen. On the second floor is space for appointments 45
with clients, Bakin’s office, and a workspace for social media coordinator. A parking lot runs
parallel to the building, extending approximately 100 yards and beyond the portion of the
warehouse building occupied by Parkway Florist.
50
JD–81–18
3
Cheryl Bakin is the sole supervisor of Parkway Florist, and is engaged in all aspects of the
work performed at Parkway Florist.
Charging Party Jo Ann Vaughn began working for Bakin in January 2017, and typically
worked Mondays, Wednesdays, and Fridays, 9 AM to 3 PM, as a shop assistant. Her work 5
involved processing flowers from wholesalers, taking orders, and waiting on customers, among
other duties. Vaughn also occasionally worked additional hours for events such as weddings.
Vaughn was terminated on October 23, 2017.
Charging Party Paul Cavalero worked full-time as the floral designer for Parkway Florist 10
beginning July 6, 2016. Cavalero’s hours were reduced by one-day a week on January 5, 2018,
and he was terminated on March 9, 2018.
Generally, in addition to work performed by Bakin, at all material times Parkway Florist
employed a full-time floral designer (Cavalero), a social media and marketing coordinator (Kaydi 15
Gratzer), and a few part-time employees depending on the season, including Vaughn and
Alexandria Chisholm, a part-time employee since 2011, who worked more frequently in summers
when not in school. In addition, Parkway Florist used a delivery driver and sometimes other
employees who were “casual” employees and sometimes paid in cash.
20
The employees’ relationship with owner Cheryl Bakin
As referenced above, Charging Party Vaughn began working for Parkway Florist in
January 2017. Vaughn testified that while her and other employees’ relationship with Bakin was 25
good for many months into her employment in 2017, in late August or early September, coincident
to the start of the busy wedding season, Bakin became a more difficult boss. Vaughn described
Bakin as becoming increasingly abrupt, gruff, rude and “just difficult to deal with.” Vaughn
described Bakin as quick to correct other employees in their work, quickly growing angry when
she thought employees were not doing a task correctly and slamming items on the counter. She 30
indicated that Bakin’s ire was particularly directed at Cavalero.
Other employees endorsed Vaughn’s observations. Cavalero testified that Bakin would
get “frustrated or agitated,” and that “[s]he would talk down to you . . . . People were afraid to ask
her questions.” 35
Kaydi Gratzer, worked part-time and later full-time for Parkway Florist for nearly 5 years
before resigning without notice on March 3, 2018. Gratzer testified that Bakin would sometimes
yell at employees, particularly Cavalero, if she was displeased.1
40
Other employees testified to Bakin’s “snippiness” but were far less critical: Chisholm
testified that she and other employees occasionally talked about how “when Cheryl gets stressed,
she can get a little snippy,” which, Chisholm explained, meant “just like tense, stressed, kind of
flustered.” Chisholm testified that she told other employees that they should not take Bakin’s
actions45

1Gratzer’s resignation letter complained about the “high stress,” “[l]ack of feedback,” “unclear
expectations,” and lack of opportunity for advancement in the job. Bakin wrote a response letter
to Gratzer, which, along with Gratzer’s final pay and vacation check, included a rebuttal of
Gratzer’s complaints and some complaints of her own about Gratzer.
JD–81–18
4
personally, that it really didn’t have anything to do with them, it was just that this
business is Cheryl’s livelihood and, therefore, she takes it very seriously and wants
the best for both herself, her employees and her company and that can get
overwhelming.
5
At trial the General Counsel made a point of eliciting evidence that employees, specifically
Vaughn, Cavalero, and Gratzer, repeatedly talked among themselves in the Fall of 2017, about
Bakin’s attitude and verbal treatment of them. However, the record is also clear that they never
discussed the matter with Bakin or otherwise confronted or alerted her about it. There is also no
evidence that Bakin overheard them or was aware of their discussions about her. On one 10
occasion the employees designated Vaughn to raise the issue with Bakin, but when she found
herself alone with Bakin driving to a floral job at a wedding in mid-September, Vaughn could not
bring herself to confront Bakin and simply told Bakin that the employees
wanted her to do well because if she does well, we were all going to do well, that 15
we were here to help her and we wanted to be team players and we were there to
support her and help her.
The October 20 Incident
20
Bakin described Friday, October 20, 2017, as an extremely busy and stressful afternoon
with four weddings the next day. Gratzer had been sent downtown to pick up flowers from a
wholesaler. Chisholm was upstairs working on paperwork related to deliveries. Vaughn and
Cavalero were downstairs. Cavalero was at a work counter preparing an arrangement. Vaughn
was at another work counter preparing flowers for an upcoming wedding the next day. Bakin had 25
just returned from a work errand and was downstairs at a desk with her laptop open and eating a
sandwich she had brought back to her work bench.
While going through flowers, Vaughn noticed that the white hydrangeas that were going to
be used for the wedding were going bad. Vaughn thought they had brown spots and some were 30
going limp. Vaughn told Bakin who “snapped and said she was aware and that Kaydi [Gratzer]
was already downtown picking up other ones and that [Vaughn] should not worry about it.”
Vaughn returned to going through the flowers and about 15 minutes later began sorting
Gerber daisies for the wedding. Vaughn believed the Gerber daisies were also going bad. 35
According to Bakin, Vaughn raised concerns about the daisies and Bakin told her to cut them and
put them in water and that Bakin would check them in an hour to determine if they were useable.
Vaughn essentially corroborated this account, testifying that when she asked Bakin about the
daisies, Bakin “snapped at [her] again and said, just cut them and put them in water.”2
40
Vaughn began to do so and, as she testified, upon picking up the daisies “noted that the
stems were gelatinous and slimy.” Vaughn testified that she called Cavalero over from his work
bench and asked him whether he thought the daisies looked normal to him. He came over from

2Cavalero told a slightly different story: he said that Vaughn asked him about the daisies and
he raised the matter with Bakin. According to Cavalero, Bakin said that “I have already ordered
those twice because of color. I can’t afford to order them again. Make them work.” Cavalero
testified that he raised the issue of the daisies with Bakin, and that he told Vaughn to cut the
flowers and put them in warm water. Although the differences in the accounts are not material, I
credit Bakin and Vaughn’s more consistent account.
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5
his workbench to look at the daisies. Cavalero testified consistently with this, saying that Vaughn
told him she thought the stems were “slimy” and that he went to her workbench to look at them.
Bakin testified that:
5
I looked across the room at [Vaughn’s] bench . . . and I see that she has called
Paul [Cavalero] over and she’s got him engaged in a conversation about the
Gerbera daisies and there wasn’t any need for any conversation. She just needed
to do what I asked her to do. . . . We all had a lot of work to do that day. . . . It
made me angry. They were wasting time fooling around. . . . I instructed Jo Ann 10
[Vaughn] just to simply do what I asked her to do, which was to reprocess the
Gerberas, and yelled at Paul to get back to his workstation and the work that he
was assigned to do and he started yelling at me. I yelled back and he yelled more.
This description is essentially consistent with Vaughn and Cavalero’s accounts, although 15
Bakin’s version left out the profanity (both hers and Cavalero’s). According to Vaughn, Bakin
started screaming and yelling and told us two to shut the fuck up and just do what
we were told and there was no reason that the two of us needed to be fucking
talking.20
Cavalero testified that Bakin said, “Shut the fuck up about the Gerberas. I don’t want to
hear any more about the Gerberas,” and moved from her desk to be next to Vaughn and
Cavalero.
25
Cavalero put his hand on Bakin’s shoulder, which appeared to enrage Bakin. He
described Bakin as “screaming, top of her lungs” and yelling in his face. Cavalero began to yell at
Bakin, reproaching her for yelling, arguing that he worked hard and comes in on days off. The
two yelled back and forth for a while, with Bakin declaring that “she’ll yell if she fucking wants to.”
Cavalero testified that he said, 30
Oh, no. You’re not going to be fucking rude to me. I bust my ass for you. I give
up my days off. I work when you need me to. You’re not going to be fucking rude
to me.
35
Chisholm, who was working upstairs, heard Cavalero say something to the effect of
“Cheryl, I need a minute, you can’t treat people this way, I work my fucking ass off for you.”
At that point, Cavalero—who described himself as “a little bit out of control”—went outside
into the parking lot. Bakin returned to her work, moving flowers and slamming flower buckets40
roughly on the counters. Vaughn, who had been silent in response to Bakin yelling at her and
Cavalero, and who had remained silent during the ensuing argument between Cavalero and
Bakin, began tidying up, picking up flowers from the counter and floor. While doing this, Vaughn
testified that she told Bakin that “we ask each other questions and not her because this is the type
of responses that we get.” Chisholm, who was upstairs, did not report hearing this, but Chisholm45
overheard Bakin say: “I need you to shut up and do your work.”
Soon thereafter—but not immediately, perhaps five or ten minutes later—Bakin told
Vaughn to get her stuff and go home. According to Bakin, “I instructed her to finish processing
the Gerbera daisies and that’s all of the work that I would have for her that day.” This was at 50
about 2 PM. Normally, Vaughn worked until 3 PM. Vaughn left and exited to the parking lot,
JD–81–18
6
where she found Cavalero. They discussed what had happened. In a few minutes Gratzer
returned to the shop and the three discussed the incident in the parking lot.
B. Vaughn’s discharge
5
On the Sunday morning following the Friday argument—October 22—at approximately
9:30 AM, Bakin received a text message from Vaughn. It stated:
Good morning. . . [.] I feel that I am a good employee. Im [sic] always early &
work hard. The way I was treated Friday was completely inappropriate. It is not ok 10
w me.
Bakin responded with the following text:
I do not discuss workplace matters via text message. 15
Vaughn responded:
Well after Friday I don’t feel comfortable as being screamed at isn’t something
that’s acceptable.20
Bakin testified about the texts:
On Sunday morning at approximately 9:30 or 9:35 in the morning I received a text
message, . . . . from Jo Ann. I responded to the text message by simply saying 25
that I don't discuss personnel matters via text message. I received another text
message from her that basically said that she was—after Friday she was not
comfortable in the working environment. She did not ask for a meeting. She did
not ask if she could speak to me. That was the sum gist of the text message, and I
really wasn't sure how to take that text message.30
On Monday morning, Vaughn returned to work. When she entered Parkway Florist at
approximately 8:58 PM she went directly to the bathroom. When she exited the bathroom, Bakin
was waiting with a check for her. Bakin, who said she was “reading into [Vaughn’s] text
message,” told Vaughn, “Here is your last paycheck. There is no more work for you here.” 35
Vaughn then left. Bakin provided no discharge letter, notice of discipline, or other official notice of
termination.
Analysis of the Vaughn discharge
40
The General Counsel contends that the Respondent discharged Vaughn for engaging in
protected concerted activity, an offense that violates Section 8(a)(1) of the Act.
To begin, I have no trouble accepting the General Counsel’s view, and I find, that the
employees’ concern with and discussions among themselves during the Fall of 2017, about 45
Bakin’s temper towards them and her temperamental management of the flower shop amounted
to protected and concerted activity. At the same time, there is zero evidence that Bakin knew
anything at all about this protected and concerted activity. It was discussed only among the
JD–81–18
7
employees, they feared talking to Bakin about the subject, and the one time they set about to
informally nominate Vaughn to raise it with Bakin—it did not happen.3
Thus, as of October 20, Bakin had no knowledge of any concerted and protected activity
over her “management style.” Given this, the only issue is whether Vaughn was discharged for 5
engaging in protected and concerted activity on or after October 20.
Here, it is important to be precise: the only thing that Vaughn did between October 20 and
23, that the General Counsel contends was protected concerted activity was Vaughn’s statement
to Bakin, after the argument and after Cavalero left the building, that “we ask each other 10
questions and not [Bakin] because this is the type of response we get.” See, GC Br. at 36–37.
Thus, the General Counsel does not contend that Vaughn’s seeking of the assistance of
Cavalero to figure out what to do with the Gerber daisies was protected activity. Nor does the
General Counsel claim that Vaughn’s weekend text exchange with Bakin constituted protected 15
and concerted activity. Moreover, while the General Counsel argues (as discussed below) that
Cavalero was engaged in protected activity when he engaged in the screaming match with Bakin
on October 20, the General Counsel does not contend that Vaughn was discharged for
Cavalero’s conduct or that Vaughn was engaged in protected concerted activity generally during
this argument. I have carefully read the General Counsel’s extensively-argued brief—those 20
claims are absent. As argued by the General Counsel, the only thing that Vaughn did that brings
the events of October 20 and the following weekend into the realm of protected and concerted
activity is the one statement by Vaughn to Bakin after Cavalero left the building.4
As the General Counsel contends (GC Br. at 37–42), Vaughn’s discharge must be 25
analyzed under a Wright Line framework, the Supreme Court-approved analysis in for all cases

3The General Counsel appears to acknowledge this. Thus, in reference to Vaughn’s
discussion with Bakin on the way to a wedding venue in mid-September, the General Counsel
explains that
Vaughn intended to address with Bakin the atmosphere of anxiety in the shop
caused by Bakin’s harsh temperament. Ultimately, Vaughn was only able to
muster the courage to address this concern by assuring Bakin that her employees
were team players and ‘were there to help her and support her.’
(GC Br.at 30) (transcript citations omitted).
4I have credited Vaughn’s statement. But I confess I struggled with it. It makes some sense
that Vaughn would say this to Bakin. Bakin’s temper had been on Vaughn’s mind for some time.
However, Bakin did not recall hearing it. Of course, Bakin is a highly interested witness and
adverse to the General Counsel. Notably, Chisholm, one of the few in this trial who appeared to
take no side in this fight, also did not hear the alleged comment, although she heard other
comments by participants in the argument. The General Counsel bolsters the testimony with the
corroborative testimony of Cavalero and Gratzer, neither of whom heard Vaughn say this to
Bakin—they were not present—but each of whom asserted that in the parking lot after the
incident, Vaughn reported that she had said something to that effect to Bakin. Something about
their common recitation of this point by Vaughn in the parking lot left me uneasy, as did Counsel
for the General Counsel’s argument on brief (GC Br. at 31 fn. 34) that the parking lot testimony
was not hearsay, after assurances at trial—in response to specific hearsay objections—that this
testimony was not being offered for the truth of the matter asserted (Tr. 292, 293, 325).
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8
alleging violations of Section 8(a)(3) or 8(a)(1) turning on employer motivation. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). See, NLRB v. Transportation
Management Corp., 462 U.S. 393, 395 (1983) (approving Wright Line analysis); General Motors
Corp., 347 NLRB No. 67 fn. 3 (2006) (inadvertently not reported in Board volume) (“Wright Line
applies to all 8(a)(3) and 8(a)(1) allegations that turn … on employer motivation”); American Red 5
Cross Missouri-Illinois Blood Services Region, 347 NLRB 347, 349 (2006) (applying Wright Line
analysis to allegation that employer discriminated against employee based on protected activity).5
In Wright Line, the Board determined that the General Counsel carries his burden by
persuading by a preponderance of the evidence that employee protected conduct was a 10
substantial or motivating factor (in whole or in part) for the employer's adverse employment
action. Proof of such unlawful motivation can be based on direct evidence or can be inferred from
circumstantial evidence based on the record as a whole.
Under the Wright Line standards, this burden is typically met by showing the employee 15
engaged in protected activity, employer knowledge of that activity, and animus on the part of the
employer towards protected activity. Cayuga Medical Center, 366 NLRB No. 170, slip op. 1 fn. 1
& slip op. at 30 (2017); Dish Network, 363 NLRB No. 141, slip op. at 1 fn. 1 (2016). The Board
also sometimes formulates the third prong as a demonstration that the animus contributed to the
adverse employment decision. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). 20
Such showing proves a violation of the Act subject to the following affirmative defense: the
employer, even if it fails to meet or neutralize the General Counsel's showing of unlawful
motivation, can avoid the finding that it violated the Act by “demonstrat[ing] that the same action
would have taken place in the absence of the protected conduct.” Wright Line, supra at 1089.25
In this case, as referenced above, Vaughn’s October 20 declaration to Bakin that “we ask
each other questions and not [you] because this is the type of responses that we get”—
constitutes protected concerted activity. It was directed to Bakin, so clearly she knew about it.
Hence, the first two prongs of the General Counsel’s Wright Line test are easily satisfied. 30
More difficult, is the third prong. What is the evidence of hostility to protected activity on
which the General Counsel is relying? What is the evidence that hostility contributed to the
adverse action taken against Vaughn?
35
The General Counsel proposes two answers. The first is timing. The Board has long
recognized that unexplained timing of adverse action can be indicative of unlawful animus.
Electronic Data Systems, 305 NLRB 219, 220 (1991), enfd. in relevant part 985 F.2d 801 (5th Cir.
1993); North Carolina Prisoner Legal Services, 351 NLRB 464, 468 (2007), citing Davey Roofing,
Inc., 341 NLRB 222, 223 (2004).40
As the General Counsel points out, Vaughn was discharged just days—and the next
weekday—after the October 20 incident in which she voiced protected and concerted sentiments
to Bakin. However, under the circumstances this observation adds little to nothing to the General
Counsel’s case. Vaughn’s alleged protected activity on Friday October 20, was an incidental part 45

5I note that the General Counsel makes no claim that this case presents a situation where an
employer disciplined an employee for either a mistaken or accurate belief that the employee
engaged in misconduct committed during the course of protected activity. See, NLRB v. Burnup
& Sims, 379 U.S. 21, 23 (1964); Roemer Industries, Inc., 362 NLRB No. 96 (2015); Atlantic Steel,
245 NLRB 814, 816 (1979).
JD–81–18
9
of the events before the Monday October 23 discharge. The nonprotected events better explain
the timing of the discharge without providing an inference of unlawful motive. In other words, the
timing of Vaughn’s discharge is more likely explained by Bakin’s anger over Vaughn calling
Cavalero over to her workdesk (“It made me angry. They were wasting time fooling around”),
which precipitated Bakin’s angry chastising of Vaughn and Cavalero, which led to Vaughn’s text 5
exchange with Bakin over the weekend, which Bakin testified that “I really wasn’t sure how to
take.” All of these events share close timing with the discharge and together provide the
explanation for the discharge—not the one-sentence comment by Vaughn to Bakin on October
20. The General Counsel offers absolutely no evidence or argument that Vaughn’s one-sentence
comment played any role in the discharge decision. In this case, I do not accept that “timing” can 10
be relied upon to prove or support the General Counsel’s case. Lou’s Transport, Inc., 361 NLRB
1446, 1458 (2014), enfd. 644 Fed. Appx. 690 (6th Cir. 2016) (timing of employee’s discharge is
not suspicious even though it occurred on the same day as protected activity where it also
occurred on the same day that the employer discovered that the employee had responded to an
instruction to continue working by saying “f—k you”); Rockwell Mining, 367 NLRB No. 39, slip op. 15
at 10 (2018) (timing not indicium of unlawful animus where nonprotected conduct by employee
dictated timing).6
Other than this “timing” argument, the General Counsel rests this case on putative
arguments about pretext, and relies upon them to supply the otherwise missing inference of 20
discrimination. In this instance, the General Counsel fails to prove pretext, and indeed, at times
appears, wrongly, to suggest that the burden is on the Respondent to demonstrate that its
asserted reasons for its actions were not pretextual. However, pretext must be proven, and the
burden of doing so rests with the General Counsel. See, e.g., New York Telephone, 300 NLRB
894, 896 (1990), enfd. mem. 940 F.2d 648 (2d Cir. 1991).25
In the first place, the General Counsel’s pretext evidence is slight. The General Counsel
claims that Bakin’s failure to provide warnings or other progressive discipline before discharging
Vaughn is evidence of pretext because it is supposedly a “departure from past practice.” But this
alleged past practice is composed exclusively of Bakin’s careful documentation and formal30
warnings to exactly one past employee, a fulltime employee terminated for repeated and ongoing
attendance problems in 2016. There is no such thing as a past practice that happened once
before, to a full-time, not a part-time employee like Vaughn, who was terminated for chronic
attendance-related problems. There is no evidence that this prior employee provoked a
screaming match at work between Bakin and employees. Neither law nor logic permits the 35
General Counsel to base an inference of unlawful motive for Vaughn’s discharge based on this
very different comparator from a year before.7

6I reiterate that the General Counsel does not and cannot claim that this is a case where the
employee was disciplined for misconduct committed in the course of protected activity. In such
cases, “the Board does not consider such conduct as a separate and independent basis for
discipline.” Goya Foods, 356 NLRB 476, 477 (2011). Here, the protected conduct was raised—
through a one-sentence statement—during the course of an otherwise nonprotected incident.
7The General Counsel also mentions that five months later Cavalero received a termination
letter, but no notices and warnings, and cites that as evidence of a practice of providing
termination letters. The obvious inference is that Bakin was (slightly) more formal in releasing full-
time than part-time employees. There is no basis for inferring unlawful motive in Vaughn’s
discharge from the failure to receive warning, notice, and written account of the discharge. Right
or wrong, Bakin was acting out of anger when she decided to discharge Vaughn and it is not an
inference of unlawful animus that she provided no warnings, discharge letters, etc.
JD–81–18
10
The General Counsel’s remaining evidence of pretext is even more dubious. It rests on
the peculiar claim that the Respondent pled “shifting defenses within Respondent’s Answers.” By
this, the General Counsel means nothing more than that the Respondent counsel pled an
affirmative defense asserting that Vaughn was terminated for repeated insubordination, failure to 5
follow instructions, disruption in the workplace, and arguing with supervisory personnel, and pled
another affirmative defense stating that “The Respondent interpreted Vaughn’s text messages to
mean that Vaughn was quitting.”
Putting aside whether these defenses are truly inconsistent, their pleading does not10
provide evidence from which unlawful motive can be inferred. They do not prove pretext. They
do not show “shifting” defenses. The General Counsel then faults the Respondent for not proving
these defenses at trial, and demands an adverse inference on the subject (GC Br. at 42), but the
General Counsel forgets that it is the government—not the Respondent—that bears the burden of
proof of unlawful animus for the discharges, including proof of pretext. See, New York 15
Telephone, supra. The Respondent’s failure to prove one or another affirmative defense cannot
be converted into affirmative evidence that—with virtually nothing else—proves the General
Counsel’s case that Vaughn’s termination was unlawfully motivated. This case is a case-study of
an alleged violation built on inappropriately applied evidentiary doctrines.
20
That’s the sum of the General Counsel’s case as set forth in an extensive (GC Br. at 26–
43) analysis devoted to the allegation that Vaughn’s discharge violated the Act. I do not believe
that the General Counsel has met the Wright Line burden with regard to Vaughn’s discharge. The
direct evidence of animus is nonexistent.8 There is no inference of animus reasonably to be
drawn from the timing of the discharge or from evidence of pretext. 25
However, even assuming, arguendo, that the short—one sentence of—protected activity
that Vaughn engaged in when she told Bakin that this is why “we ask each other questions and
not her because this is the type of responses that we get”—has been shown to be one of the
reasons or causes of her discharge, I believe the record as a whole demonstrates that Vaughn 30
would have been discharged in the wake of the October 20–23 incident, even in the absence of
her engaging in the protected activity of making this statement. Indeed, the record is clear that
Bakin was frustrated with Vaughn’s questions, and then extraordinarily angered over Vaughn
stopping work and getting Cavalero “engaged in a conversation about the Gerbera daisies [when]
. . . there wasn’t any need for conversation.” This led to the heated argument with Bakin cursing 35
and yelling at Cavalero and Vaughn (and yelling and cursing by Cavalero of Bakin).
I also believe that Vaughn’s weekend texts further upset Bakin and contributed to her
decision to let Vaughn go. It seems that Vaughn wrote the texts expecting and looking for an
apology, or for Bakin to defer in some manner. It is clear that Bakin did not see it that way. She 40
viewed Vaughn as continuing the dispute and being unwilling to apologize or accept blame.
Always quick to anger, this angered Bakin further. Unintentionally on Vaughn’s part, her weekend
texts standing her ground were not well-received by Bakin. Although guarded and oblique in her
testimony, Bakin explained that the text messages indicated to her that,
45

8The General Counsel does not contend that the Respondent’s subsequent interrogation of
employee Chisholm about the unfair practice charge filed by Vaughn constitutes evidence of
animus that supports the conclusion that Vaughn’s discharge was unlawfully motivated.
JD–81–18
11
after Friday [Vaughn] was not comfortable in the working environment. She did not
ask for a meeting. She did not ask if she could speak to me. That was the sum gist
of the text message, and I really wasn't sure how to take that text message.
In her account of events, Bakin testified that she “was reading into [Vaughn’s] text 5
message” when she greeted Vaughn with her “last paycheck” and the admonition that “there is no
more work for you here.”9
The sum and substance is this: looking at this record as a whole I think it is more likely
than not, and I find, that even in the absence of Vaughn’s protected activity, Bakin would have still 10
terminated Vaughn Monday morning.
Does any of this reflect well on Bakin? Some would not think so. Did Vaughn’s actions
warrant termination? Maybe not in the General Counsel’s flower shop. But has it been proven
that Bakin violated the Act by discharging Vaughn for protected and concerted activity? I do not 15
think it has. And to the extent we assume that protected activity played a role in the termination,
then I believe that the record evidence makes it more likely than not that Bakin would have
discharged Vaughn even in the absence of the protected activity. I will dismiss the unlawful
termination allegation of the complaint in case 06–CA–209583.
20
C. The December interrogation of Chisholm
Vaughn filed an unfair labor practice charge over her discharge on November 8.
Part-time employee and shop assistant Alexandria Chisholm learned about Vaughn’s 25
charge sometime in November when she was contacted by Eric Kelly from Region 6 who asked
her to give an affidavit in the case. Chisholm testified that she “was confused” about whether she
was required to provide a statement and asked Cavalero about it. Cavalero told Chisholm about
the process of giving a statement. Chisholm declined to give a statement at that time. She told
the Board agent that “I’m not going to give an affidavit unless I’m legally subpoened to do so.” 30
However, Cavalero gave an affidavit to the Board on November 27, and told his coworkers that he
had done so upon his return to work the next day.
At some point during December 2017, Bakin approached Chisholm and, as Chisholm
testified, “asked me if I had been contacted at all by the NLRB and if I had known if anyone else 35
had been contacted.” Chisholm also related that Bakin asked her “if I had heard if anyone else
had been in contact with them, had involved themselves with them in any way.”
Although Chisholm had been contacted, and although she knew Cavalero had given an
affidavit to the Region, she denied to Bakin that she had any knowledge about it: “I basically just 40
said I didn’t know and I had no interest in being involved.”10

9I reiterate that the General Counsel does not contend that Vaughn’s weekend texts to Bakin
objecting to Bakin’s behavior on Friday at the store constituted protected and concerted activity.
10Bakin agreed that she and Chisholm had a conversation in mid-to-late December 2017
regarding the NLRB—Bakin testified that Chisholm “advised me that she had been contacted by
Eric Kelly from the NLRB and that she had refused to talk with him and told him that she didn't
want to participate and she had nothing to say.” Bakin testified that “I simply told her that this was
a serious matter and that she could possibly be subpoened and if she was subpoened then she
would have to appear and testify.” While I credit Bakin’s account in terms of what Chisholm told
JD–81–18
12
Analysis of the Chisholm interrogation
The complaint alleges that Bakin’s December questioning of Chisholm about her and other
employees’ cooperation with the Board’s investigation was unlawful. 5
Of course, not every interrogation is unlawful. The question to be answered is “whether,
under all the circumstances, the questioning would reasonably tend to coerce the employee at
whom it is directed.” Rossmore House, 269 NLRB 1176, 1178 (1984), enfd. 760 F.2d 1006 (9th
Cir. 1985). The Board has explained that “[i]n the final analysis, our task is to determine whether 10
under all the circumstances the questioning at issue would reasonably tend to coerce the
employee at whom it is directed so that he or she would feel restrained from exercising rights
protected by Section 7 of the Act.” Westwood Health Care Center, 330 NLRB 935, 939, supra at
940; Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). It is well settled that in evaluating the
remarks, the Board does not consider either the motivation behind the remarks or their actual 15
effect. Miller Electric Pump & Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery Technology
Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998). Rather, “the basic test for
evaluating whether there has been a violation of Section 8(a)(1) is an objective test, i.e., whether
the conduct in question would reasonably have a tendency to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights, and not a subjective test having to do with 20
whether the employee in question was actually intimidated.” Multi-Ad Services, 331 NLRB 1226,
1227–1228 (2000) (Board's emphasis), enfd. 255 F.3d 363 (7th Cir. 2001).
Under the circumstances, Bakin’s questioning of Chisholm was unlawful. There was no
lawful purpose for the questioning, which was initiated one-on-one, by the owner-operator and 25
only supervisor of the Respondent and directed to a part-time employee. The questioning was
not casual, but directed toward learning which employees were cooperating with the Board in the
investigation of Vaughn’s unfair labor practice charge. The fact that Vaughn’s charge was over
her discharge, which occurred after a heated and angry exchange between employees and Bakin,
and overheard by Chisholm, only adds to the coercive tendency of the questioning. Notably, and 30
not surprisingly, Bakin’s inquiry was met with an evasive untruthful response by Chisholm who, in
fact, did know that Cavalero had provided the Board with an affidavit. Such attempts by an
employee to conceal knowledge of protected activity weighs in favor of finding an interrogation
unlawful. Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1183 (2011); Evergreen America Corp.,
348 NLRB 178, 208 (2006), enfd. 531 F.3d 321 (2008).35
I further note that this case is very similar to Management Consulting, Inc., 349 NLRB 249,
259 (2007). There the Board, applying Rossmore House, supra, found it was a violation of
Section 8(a)(1) of the Act for an employer’s project manager to ask an employee in a telephone
call whether she had received a phone call from a Board attorney during the investigation of 40
___________________________
her about being contacted by the NLRB, and the advice she gave Chisholm, I credit Chisholm’s
testimony that she was approached by Bakin, that Bakin initiated the conversation, and that Bakin
asked her if she had been contacted by the NLRB, and whether any others had been contacted
by the NLRB. While still an employee, and originally hired because her mother works at a hotel
for which Bakin often provides flowers, I found Chisholm a credible witness, based on her
demeanor and the general tenor of her testimony. She appeared to be testifying truthfully, out of
legal obligation rather than partisanship, and did not appear to be invested in the outcome of the
hearing. I believe her testimony. In addition, her testimony is corroborated—both she and
Cavalero testified that they subsequently discussed that Bakin had asked Chisholm about the
NLRB investigation.
JD–81–18
13
charges against the employer. The project manager also asked if the Board attorney had talked
to other employees. The employee admitted that the Board attorney had called her but said she
did not know if the Board attorney had talked with other employees. The Board found a violation,
noting that the call was made for the purpose of gaining this information, and expressed no lawful
purpose. The Board pointed out that the Respondent’s contention that the project manager had a 5
“friendly working relationship with employees” was irrelevant.
I find that under all the relevant circumstances, Bakin’s questioning of Chisholm was
violative of Section 8(a)(1) of the Act.11
10
I do not reach the General Counsel’s contention (GC Br. at 45–46) that Bakin’s inquiry
about employees’ cooperation with the Board was inherently coercive and that the circumstances
need not be considered.
I also do not reach the General Counsel’s allegation that Bakin again unlawfully 15
interrogated Chisholm about the Board’s unfair labor practice investigation in April 2018. It is
unnecessary to reach the April allegation as the finding of this similar additional 8(a)(1) allegation
would not materially affect the remedy.
D. The reduction in hours and subsequent termination of Cavalero20
Cavalero worked as a floral designer at Parkway Florist from his hire in July 2016, until he
was terminated on March 9, 2018. Cavalero was the only individual employed as a floral
designer, although Bakin also performed floral design work. Cavalero was Bakin’s highest paid
employee. 25
Cavalero typically had Mondays off and therefore was not at the store on Monday,
October 23, 2017, when Bakin terminated Vaughn. Cavalero and Bakin never spoke regarding
their heated argument on October 20.
30
Payroll records substantiate Bakin’s testimony that in November 2017, overtime hours
were cut “pretty much” across the board “as much as possible” for all employees. There was still
some overtime, and more so in December, but less than in September and October. Bakin
attributed this to a decline in cash flow and sales.
35
Throughout the fall of 2017, after Vaughn’s discharge, relationships at the shop continued
as before. Bakin, in the view of Cavalero and Gratzer, remained temperamental, quick to anger,
and difficult to work with. Cavalero and Gratzer provided each other with moral support and
spoke frequently about Bakin’s tenor and actions. However, there is no evidence that Bakin was
aware of the employees’ dissatisfaction with her actions and attitude toward them.40
As referenced above, on or about November 28, 2017, Cavalero gave the Board an
affidavit as part of Vaughn’s unfair labor practice case. The next day Cavalero told other
employees that he had given the affidavit, but he did not tell Bakin that he had given an affidavit.
There is no evidence that anyone told Bakin, and Bakin denied it. As referenced above, at some45
time in or around mid-December, Bakin asked Chisholm whether anyone had been in contact with
the Board, but Chisholm denied knowing.

11The record evidence does not speak to the precise date of the interrogation. Chisholm said
it occurred “December-ish.” Bakin testified that the conversation occurred mid-to-late December.
I will use the date of December 15, 2017, as the date for the violation.
JD–81–18
14
On January 5, 2018, Bakin gave Cavalero a letter advising him that for (at least) the
following five weeks his hours would be reduced from 40 to 32 hours each week. The letter set
forth Cavalero’s hours and days off for the following six weeks, showing that on the sixth week
(the week of Valentine’s Day, which Bakin, as Bakin testified, is a very busy week for the floral 5
shop) Cavalero was “tentatively” scheduled to return to five-days a week of work. Bakin’s letter
stated:
The extremely cold weather has curtailed our business significantly. Until the
weather warms up, and we start to see an improvement to overall sales, I have no 10
choice but to reduce hours. Hours could be further curtailed if the business level
continues to fall.
Should business improve, then the hours will be restored to you.
15
At hearing, Bakin testified regarding the reduction:
I had to reduce his work hours in order to reduce payroll and to make the
payroll hours match the work that we had available. We had no weddings or
special events at all scheduled in January that were foreseeable. It was a very,20
very, cold month in January. Our normal business in January is at least a couple
of weddings, funeral work and things like that. The daily business wasn't there and
that actually started to taper off about the last week of December. We could see
the trend coming and we had to cut hours.
25
Jo Ann Vaughn was already gone. Betsy Guifre had tenured her
resignation. Our other part-time employee was Alex Chisholm. We used Alex the
first week in January to help with Christmas teardown and then she got no hours at
all forth next two or three weeks. So the only two employees that I had working
were Kaydi Gratzer and Paul Cavalero.30
I cut Paul's hours by eight hours a week and if that hadn't helped minimize
some of the pain I would have be forced to cut Kaydi's hours next.
The records submitted at trial show that total sales for January 2018, were down 22.6% 35
from the same period in 2017, and down 7.2% in February 2018, compared to 2017. Fresh flower
sales, which composed, by a factor of nearly 10, the largest component of sales, were down
21.8% in January 2018, compared to January 2017, and down 33% in January-February 2018,
compared to January-February 2017. Wedding events brought in $1350 in January 2017, but
only $25 in January 2018, a decline of over 98.2%. This continued in February 2018, when 40
wedding sales brought in an additional $155.
Records show that Cavalero worked 32 hours for the five weeks following the letter, and
46.5 hours the week of Valentine’s Day. After that, for the weeks ending 2/17/18, 2/24/18, and
3/3/18, Cavalero returned to a 32-hour-a-week schedule, although on Sunday, February 18, he 45
participated in a photo shoot at the store that brought his hours to 36.5 for the week ending
2/24/18. Chisholm also worked fewer hours in this period. After working 24 hours the week
ending 1/6/18, she worked 8 hours the following week, zero hours the week after that, 16 hours
the week after that, and zero hours the week ending 2/3/18. She then worked 7 hours the week
ending 2/24/18, and 8 hours the week ending 3/3/18. Only Gratzer, remained working a full 40 50
hours a week during this period.
JD–81–18
15
On March 9, 2018, Bakin terminated Cavalero. The brusque termination letter provided to
Cavalero stated:
Dear Paul, 5
Effective today, March 9, 2018, your position with Parkway Florist, Inc. is
terminated.
Enclosed is your paycheck for the week ended 3/10/18, your last week of work 10
here. A separate check is also enclosed for 40 hours of Vacation Pay, which you
earned in 2017 and is payable this year.
At trial, Bakin explained Cavalero’s termination as follows:
15
I had to make the very painful decision that I could no longer afford him. As I
stated earlier, we had no events in January and none in February. We had one
small event the first Friday of March and that was it. I didn't have the money to
continue to pay him. So I had to let him go.
20
In response to Cavalero’s application for State unemployment insurance, on March 20,
2018, Bakin submitted forms to the State listing the reason for Cavalero’s separation as “Lack of
Work” and “Permanent,” explaining:

Business slow-down [b]egan in Jan 2018; Slowdown Continues; Paul disregarded 25
Start times; lunch breaks; Quitting times, etc. to get fired.
Cavalero was upset by the dismissal. The temper he showed during the previous October
incident came through even more forcefully. Bakin’s unrebutted testimony is that when she
terminated Cavalero on March 9, he30
became very loud. He threatened me. . . . Verbally. Verbally threatened me.
Told me that he would own my business and own my house. He was screaming,
went outside. We have a parking lot in front of our store that is 19 about 50 to 60
feet wide. He was pacing back and forth between the store and the street 35
screaming at someone on a cell phone.
I had asked him, when I gave him the letter and his checks, to return my
key to the store. He did not do that. I went to the door and asked him to please
give me my key back and he screamed at me to not come near him. I was 40
standing about 20 plus feet away from him and he took his key—my key for my
store off his key ring and he threw it at me.
And then someone showed up a few minutes later. I had picked up the key
and gone back inside and I actually locked the door from the inside and a few 45
minutes later someone showed up and picked him up.12

12Cavalero was in the hearing room for this testimony but did not testify in rebuttal. I credit
Bakin’s account of this incident.
JD–81–18
16
Bakin testified that it was her intention, “when Paul [Cavalero] was terminated, to work
through March and probably most of April by myself with a delivery driver and possibly somebody
answering the phones.” However, Bakin testified that the week after terminating Cavalero, her
plans changed:
5
I was notified by my primary care physician about a week after Paul was
terminated that I had yet a third abnormal chest x-ray and there was a strong
possibility that I was facing a diagnosis of lung cancer. I had some very, very hard
decisions to make that had to be made quickly. I had commitments to a number of
customers and I needed to get somebody in to work with me that could do for me 10
what they needed to do while I went and had some medical tests done and they
were able to determine what was really going on.
Bakin also testified that:
15
On or about the 12th or 13th of March I was contacted by my PCP that my third
lung x-ray was equally bad and getting worse and that they needed to schedule me
for an immediate CT scan and other scans, because they suspected that I had
lung cancer in my left lung and that this could not wait because the third x-ray of
the spot that they were looking at that was supposedly cancerous was growing at 20
an alarming rate and that was not something that I could put off or wait a while to
have done. They would have preferred that I went into the hospital to have it done
like tomorrow and that couldn't happen.
Bakin indicated that these medical issues changed her plans about doing the floral work by 25
herself and waiting out the lull in business before hiring someone else:
So I have a very serious illness hanging over my head. I am already a two time
cancer survivor. So it's not a surprise to be facing cancer for a third time, but I
can't give up. I just have to keep fighting.30
Bakin explained:
At the point that I got that phone call I had a hard decision to make. Do I
immediately shut the business down right now, tomorrow shut it down or did I find 35
someone who could come in at least on a temporary basis and help me operate
the business until we figured out what I had or what I didn't have and what my
options were.
Bakin testified that when she terminated Cavalero, she anticipated hiring someone part-40
time again toward the end of April. “The diagnosis that I was faced with just advanced that whole
process.”
Given her change of plans, Bakin testified that she “would have possibly called [Cavalero]
back to work if he hadn’t been so volatile and so absolutely nasty to me that day. He has a very 45
volatile temper.” Bakin testified that “I would have considered rehiring him except for the horrible
way he behaved when he was terminated on March 9th.” Instead, Bakin hired Chris Stewart as a
floral designer, and he began work at the end of March, working full time.
50
JD–81–18
17
Analysis
The General Counsel contends that the Respondent unlawfully retaliated against Cavalero
when it reduced his hours of work in January 2018, and again when it terminated him in March
2018. The General Counsel argues that each of these adverse actions was unlawful retaliation 5
for Cavalero’s involvement in the Region’s investigation into Vaughn’s discharge—an 8(a)(4) and
8(a)(1) violation13—and, separately, retaliation for Cavalero’s alleged protected and concerted
activity—an independent 8(a)(1) violation. As discussed below, I dismiss.
The 8(a)(4) allegations10
Section 8(a)(4) of the Act provides that it is an unfair labor practice “to discharge or
otherwise discriminate against an employee because he has filed charges or given testimony
under this Act.” The proscription on discrimination under 8(a)(4) has been interpreted to include
discrimination for providing a sworn statement to a Board field examiner investigating an unfair 15
labor practice charge. NLRB v. Scrivener, 405 U.S. 117 (1972).
As referenced earlier in this decision, the Supreme Court-approved standard for cases
turning on employer motivation is found in Wright Line, 251 NLRB 1083. This holds for
motivation-based cases alleging violations of Section 8(a)(4). American Gardens Management 20
Co., 338 NLRB 644, 645 fn. 7 (2002) (endorsing application of Wright Line standard to 8(a)(4)
allegations); Verizon, 350 NLRB 542, 546–547 (2007).
Applying Wright Line, it is clear that Cavalero’s submission of an affidavit on November
28, 2017, as part of the Board’s investigation into Vaughn’s discharge, is the type of protected 25
activity that is covered by Section 8(a)(4).
More difficult, is the claim by the General Counsel that the Respondent knew that
Cavalero participated in the Board’s investigation, or that his participation contributed to the
decision to reduce his hours or to discharge him. 30
As the General Counsel argues, to satisfy the “knowledge” element of his Wright Line
burden it is enough to show that the Respondent suspected or believed that the employee
engaged in protected conduct—it is not necessary to prove that the Respondent knew of the
protected conduct. See, e.g., Kajima Engineering & Construction, 331 NLRB 1604, 1604 (2000) 35
(proof that employer suspected that employee engaged in union activity satisfies Wright Line's
knowledge requirement). Moreover, it is well established that where there is no direct evidence,
knowledge of an employee's protected activities may be proven by circumstantial evidence from
which a reasonable inference may be drawn. BMD Sportswear Corp., 283 NLRB 142 (1987),
enfd. 847 F.2d 835 (2d Cir. 1988); Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 40
97 F.3d 1448 (4th Cir. 1996).
Here, the General Counsel concedes that no direct evidence supports the claim that the
Respondent had knowledge of or suspected or believed that Cavalero had participated in the
Board investigation into Vaughn’s unfair labor practice case. Rather, the General Counsel 45
contends that the Respondent’s knowledge—or suspicion or belief in—Cavalero’s participation

13Because any conduct found to be a violation of Sec 8(a)(4) of the Act would also discourage
employees' Sec. 7 rights, it is also a derivative violation of Sec. 8(a)(1) of the Act. Chinese Daily
News, 346 NLRB 906, 933 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
JD–81–18
18
can be inferred indirectly. See, GC Br. at 53–56, 68. However, in my view, the alleged indirect
indicia provide an unconvincing basis on which to infer knowledge or suspicion of, or belief in,
protected activity.
First, the General Counsel relies upon the fact that in December 2017, Bakin unlawfully 5
interrogated Chisholm, seeking to know whether she or other employees were assisting in the
Board’s investigation into the Vaughn discharge.
I do agree that Bakin’s demonstrated interest in the question increases the possibility—at
least a little bit—that she guessed of Cavalero’s involvement. There are not many employees at 10
this store, and Cavalero was present and a major participant in the October 20 argument.
Perhaps Bakin believed Chisholm’s (false) claim that she was not involved with the Board
investigation and then guessed that Cavalero was. Perhaps. But I would not draw an inference
of knowledge based on Bakin’s interest in the subject—that would entail assuming precisely what
the General Counsel needs to prove—and precisely what she was not told by Chisholm in the 15
interrogation. In other words, it remains entirely speculative whether Bakin, having talked to
Chisholm, and learned nothing, then guessed that Cavalero was involved with the Board’s
investigation into Vaughn’s claim. Indeed, Bakin might or might not have guessed this without
talking to Chisholm. Thus, the General Counsel relies on the interrogation to prove precisely a
fact that it did not reveal. There is nothing added by the interrogation from which knowledge of 20
Cavalero’s participation in the investigation should be inferred.
Second, in still another version of the preceding argument, the General Counsel contends
(GC Br at 53) that the Respondent’s knowledge of Cavalero’s cooperation with the Board can be
inferred from the Respondent’s June 20, 2018 answer to the complaint (GC Exh. 1(t) at ¶9). In 25
the answer, filed by the Respondent’s counsel, it was stated:
Respondent had no idea that Paul Cavalero had given testimony to the Board in
the form of an Affidavit, or otherwise. Cavalero never advised the Respondent that
he had participated, in any way, in Case No. 06-CV-209583 and, despite inquiry by 30
Respondent's counsel as to the identity of witnesses whom had been interviewed,
the NLRB investigation and NLRB counsel refused to provide such information.
Because Respondent was never aware that Cavalero had given testimony to the
Board, it could not have engaged in any conduct towards him for that reason.
[Emphasis added.]35
The General Counsel contends that by admitting that the Respondent’s counsel asked the
NLRB counsel who had been interviewed, it should be inferred that the Respondent knew that it
was Cavalero.
40
I give this version of “they asked so they must know” even less weight. As with Bakin’s
interrogation, counsel’s interest in the Board’s investigation, expressed to an unnamed
government agent, was apparently rebuffed, and is not evidence of the opposite: that he
otherwise learned of or suspected of Cavalero’s involvement. Moreover, there is no evidence as
to when counsel’s inquiry was made. If it was not made prior to January 5, 2018, then it could not 45
support a finding of the Respondent’s knowledge of Cavalero’s participation in the investigation at
50
JD–81–18
19
the time his hours were reduced. Counsel for the General Counsel did not seek to adduce any
testimony to clarify this issue.14
Third, the General Counsel contends that the timing of the reduction in hours—a few 5
weeks after the interrogation—supports a finding that the Respondent knew that Cavalero had
provided testimony to the Board. However, this is not compelling either, given that Bakin provides
other reasonable explanations for the timing of the reduction in hours, and given, again, that the
evidence is that Bakin did not learn of Cavalero’s involvement with the Board through the
interrogation. 10
And as to the March 9 discharge, neither the fact nor the timing of the Chisholm
interrogation in December supports a finding that the Respondent knew of Cavalero’s
participation in the Board investigation, much less that this knowledge contributed to the decision
to discharge Cavalero in March. It is highly attenuated.15
Fourth, in a related timing argument, and still another one based on the Region’s contacts
with the Respondent’s counsel, the General Counsel contends that an inference of knowledge of
Cavalero’s participation in the Vaughn investigation should be drawn based on the fact that the
Region sent two emails to the Respondent’s counsel, one on January 4 and one on January 5—20
the latter date being the same day that Cavalero was informed of the cut in his hours.
This is not probative evidence. Correspondence between a respondent’s counsel and the
investigating region is not unusual; one would expect that these two emails are a small sample of
the email traffic between the Region and the Respondent’s counsel during this case (and the 25
representations of counsel suggest this is so, see Tr. 225). That the General Counsel selected
and introduced into evidence the two emails that it sent in the Vaughn case at the same time of
Cavalero’s reduction in hours is unimpressive, even as a coincidence. Were these the only two
emails the Region had ever sent to the Respondent’s counsel, perhaps the coincidence would be
more impressive. But no one claims that. Moreover, the content of these two emails does not 30
advance the General Counsel’s claims. The January 4 email is a one-sentence email from
Region 6 Field Examiner Eric Kelly, asking for the locations in the Respondent’s store where
notices are normally posted, sought by Kelly “[f]or purposes of drafting a Settlement Agreement.”
The January 5 email, sent by Kelly to the Respondent’s counsel at 2:40 PM that day is more
substantive—it announces that the Director has determined that the charge has merit and states 35
that a complaint will issue absent settlement, a matter that the email refers to as something “we
discussed.”
The General Counsel’s suggestion is that these emails may have provided Bakin with
suspicion of Cavalero’s cooperation with the Board and led to the reduction in hours. Of course, 40
the General Counsel elicited no evidence of the substance of the discussions between Counsel
and the Board agent referenced in the email. The General Counsel elicited no evidence about
when on January 5 (or before) Bakin made the decision to reduce Cavalero’s hours. The General
Counsel elicited no evidence from Bakin as to when Bakin learned that the Region had
determined to issue a complaint in the Vaughn case. Without such evidence, it is sheer 45
speculation that on January 5, when Bakin informed Cavalero that his hours were going to be
reduced, that she already knew, or even that the Respondent’s counsel knew, that the Region

14I further note that the General Counsel does not contend that the Respondent’s counsel’s
inquiry was a violation of the Act.
JD–81–18
20
was going to be issuing a complaint in the Vaughn case. It is further sheer speculation built on
top of speculation that Bakin’s knowledge led to the reduction in hours and even more speculation
that the Region’s decision to issue the complaint somehow provides evidence that Bakin knew of
Cavalero’s participation in the investigation.15
5
Finally, the General Counsel also contends that “[p]erhap most importantly,” evidence of
the Respondent’s knowledge of Cavalero’s “Board-related activities” (GC Br. at 53) may be
inferred from the Respondent’s response to Counsel for the General Counsel’s subpoena duces
tecum trial subpoena. That the General Counsel believes this may be his most important
evidence speaks volumes as to the gossamer-like quality of his case. 10
This supposed indicium of knowledge is difficult even to explain. Counsel for the General
Counsel served a subpoena duces tecum in conjunction with both case 6-CA-209583 (Charging
Party Vaughn) and case 6–CA–217020 (Charging Party Cavalero) on the Respondent on July 6,
2018 (GC Exh. 3). In response, Bakin prepared and provided to the General Counsel a15
document, not anticipated by Board rules, entitled “Answers to the Subpoena of 7-16-18” (GC
Exh. 4). In this document, Bakin sets forth interrogatory-like answers to the 15-paragraphs of
requested documents set forth in the subpoena duces tecum (GC Exh. 3).
Paragraphs 8 and 9 of the General Counsel’s subpoena duces tecum sought the 20
following:
8. For the period covered by this subpoena, documents that pertain to
Respondent’s reduction in the regular and overtime working hours of its
employees, including, but not limited to, correspondence with any 25
employees or employees, text messages, internal notes, written
memorializations of conversations, and documents reflecting the reasons of
the subject reductions in working hours.
9. To the extent not covered by the request in paragraph 8, for the period 30
covered by this subpoena, documents that in any manner pertain to
Respondent’s decision to reduce the working hours of its employee Paul
Cavalero, including, but not limited to correspondence, text messages,
internal notes, written memorializations of conversations, documents upon
which Respondent relied in reaching its decision to reduce Paul Cavalero’s 35
working hours.
40

15The General Counsel tries to avoid the evidentiary problems posed by the lack of record
evidence by claiming (GC Br. at 55–56 & ft. 49) that it was the Respondent’s burden to establish
these facts and that an adverse inference should be taken against the Respondent for failing to
elicit them. This ignores—or more accurately, reverses—the precept that it is the General
Counsel’s burden to establish Bakin’s knowledge of Cavalero’s protected activity. The General
Counsel cannot win this case by demanding adverse inferences to cover gaps in the evidence.
JD–81–18
21
In response to these subpoena requests, Bakin’s self-styled “Answers to Subpoena” listed,
stated:
8. Copies of hours summaries are attached again.
A sample Time sheet is attached.5
A Copy of the timesheet from the week ended 10/21/17 is attached.
9. Text messages from Joann Vaughn, as well as her Facebook videos and
Facebook postings are entered into evidence here today.
10
The General Counsel argues that these answers by Bakin in this odd document, not
provided for by the Board’s rules, and not responsive to the subpoena request, constitute an
admission, as it was authored by Bakin and submitted to the Region. But an admission of what?
It is unclear to what text messages or Facebook videos/postings Bakin’s “Answer to 15
Subpoena” refers. Although Counsel for the General Counsel went to some lengths to call Bakin
as an adverse witness and establish the authenticity and Bakin’s authorship of the “Answer to
Subpoena,” no questions were asked that would shed any light on the meaning of this answer.
The only Facebook video that was discussed at trial was one that post-dated Cavalero’s reduction
in hours and the General Counsel successfully objected to its introduction into evidence. The 20
Respondent placed two Facebook postings from Vaughn into evidence (R Exh. 2(a) & (b)), but
these also postdated Cavalero’s reduction in hours. The only text messages in evidence are the
ones from Vaughn to Bakin on October 22, 2018. The General Counsel does not contend that
they are protected by the Act.
25
The General Counsel’s position is that Bakin’s “Answer to Subpoena” “constitutes an
admission that it [the Respondent] knew of Cavalero’s Board activities or statements.” It does no
such thing. I am not entirely clear what Bakin meant by this answer. Perhaps it was a mistake.
Perhaps there was probative testimony to be gleaned from it. But no questions were asked of
Bakin about this document when the General Counsel called her to testify, other than 30
authenticating it and establishing Bakin’s authorship. If this is the General Counsel’s “most
important” evidence, the problems with the case are manifest.
This is all the General Counsel argues in terms of the Respondent’s knowledge of
Cavalero’s cooperation with the Board in the Vaughn case. I find that the General Counsel has 35
failed to show that the Respondent had knowledge of Cavalero’s participation in the Board’s
investigation into the Vaughn case, and therefore the General Counsel has failed to meet his
Wright Line burden. I dismiss the 8(a)(4) allegations on this basis.16
Moreover, even if one assumes, arguendo, that the General Counsel has made out a 40
prima facie case of an 8(a)(4) violation, I would find that the Respondent has met its burden of
establishing by a preponderance of evidence that it would have reduced Cavalero’s hours and
later terminated him, even in the absence of Cavalero’s cooperation with the Board investigation.
45

16I note that in support of the 8(a)(4) allegation, the General Counsel does not claim that the
Respondent’s knowledge of Cavalero’s participation in the Board investigation can be inferred
based on the “small plant” doctrine.”
JD–81–18
22
First, I reject the General Counsel’s suggestion that that the government’s prima facie
case is unusually strong, and, therefore, that the Respondent bears an unusually substantial
rebuttal burden. To the contrary, I believe that, even granting, arguendo, the assumption that a
prima facie case has been made, the General Counsel’s prima facie case is unusually weak. “Of
course, ‘[t]he weaker a prima facie case against an employer under Wright Line, the easier for an 5
employer to meet his burden . . . of proving [the employer's action] would have occurred
regardless of protected activity.”17 In this case, Respondent has met that burden.
Here, the Respondent’s undisputed explanation (Tr. 364–368) for the reduction in hours is
that business was off in early 2018 as compared to the same period in 2017, and down compared 10
to December 2017. The sales figures provide evidence of that. See, supra. Moreover, as Bakin
pointed out, Cavalero was her highest paid employee, and one of only two full-time employees.
These facts support Bakin’s credible testimony that her business judgment prompted her to
reduce Cavalero by one-day-a-week to meet the needs of the business.
15
In response, the General Counsel relies on a dizzying counternarrative (GC Br. at 64–68)
that, in essence is no more than sniping at the Respondent’s business judgment. The General
Counsel’s contentions—that the Respondent did not establish that it needed to further reduce its
payroll after another employee’s resignation, that Cavalero was a more valued employee than
Gratzer, that flowers sometimes go bad before they can be sold to customers and thus profit 20
depends on which floral products are sold, that labor expenses factor into the overall cost of
goods, that the Respondent failed to prove that it had no other economic choice but to terminate
Cavalero—all of this amounts to an unconvincing questioning of the Respondent’s business
decisions, a matter, of course, to which the General Counsel brings no experience or standing.
None of the General Counsel’s arguments about the flower business provides reason to doubt the25
Respondent’s plausible explanation for its actions.
The General Counsel also claims that the Respondent’s explanation for reducing
Cavalero’s hours are a pretext, but I do not accept this claim. Noting that in a May 22, 2018
document that was (apparently inadvertently) provided to the Region (Tr. 251–252), Bakin stated 30
that Cavalero’s hours were reduced due a business slow-down and a “cash shortfall,” the General
Counsel claims that the Respondent failed to provide related subpoened documents. However,
the General Counsel failed to prove that any documents related to “cash shortfall” owing under
the subpoena were withheld or even what such documents would look like. In a closely related
argument, the General Counsel contends that the Respondent failed to provide subpoened 35
documents relating to “cash flow.” However, the General Counsel failed to prove that any
documents of any significance to “cash flow” had been withheld and, additionally, flatly failed to
prove subpoena noncompliance. Tr. 354-362.18

17Sasol North America Inc. v. NLRB, 275 F.3d 1106, 1113 (D.C. Cir. 2002) (court's bracketing
and ellipses, quoting Doug Hartley, Inc. v. NLRB, 669 F.2d 579, 582 (9th Cir. 1982)); Sysco Food
Services of Cleveland, 347 NLRB 1024, 1036 (2006) (“Where, as here, the General Counsel
initially makes a showing that protected conduct was a motivating factor—but not a large factor—
the Respondent's burden to show that the adverse action would have occurred in the absence of
protected activity, is lighter”).
18More fundamentally, I reject the General Counsel’s approach. Thus, the General Counsel
did not subpoena “cash flow” documents. Rather, the General Counsel served overbroad and
vague subpoenas that put the burden on the Respondent to provide “documents that in any
manner pertain to Respondent’s decision to reduce the working hours of its employee Paul
Cavalero” or “pertain to Respondent’s reduction in the regular and overtime working hours of its
JD–81–18
23
Similarly, with regard to the allegation that Cavalero’s discharge was in violation of 8(a)(4),
if we assume, arguendo, that the General Counsel met its Wright Line burden, the Respondent
has provided enough evidence to demonstrate that it would have made the same discharge
decision in the absence of Cavalero’s cooperation with the Board’s investigation into Vaughn’s
unfair labor practice case. 5
Bakin testified that she decided to terminate Cavalero because business was slow. In
addition, it is clear from Bakin’s testimony, but also from the State unemployment compensation
forms she filled out on Cavalero, that Cavalero was let go not only because of lack of work, but
also because of Bakin’s dissatisfaction with his performance, particularly after the reduction in 10
hours in January. As evidenced in the unemployment compensation papers she filed on March
20, the slowdown in business and Cavalero’s lack of punctuality were reasons he was let go.
The General Counsel’s arguments for finding pretext in the Respondent’s explanation for
terminating Cavalero are relentless but unconvincing. The General Counsel’s remarkable and 15
inexplicable zeal in prosecuting this case cannot make up for the dearth of evidence.
___________________________
employees.” When Bakin raised “cash flow” (Tr. 353) as one of the reasons for the reduction in
overtime in November 2017, the General Counsel objected and sought sanctions (Tr. 354; GC Br.
at 62-63) on grounds that not every document that could inform an owner’s view of cash flow had
been provided. However, the Respondent did provide voluminous product comparison and sales
and summary reports, which, Bakin testified, were her chief source for evaluating cash flow. The
General Counsel complains that there are other marginal documents—such as a schedule of
upcoming weddings and event orders, and a list of clients owing money—that were not provided.
Under these circumstances, this is not sanctionable subpoena noncompliance. Subpoena
requests that purport to require all documents “relating” or “pertaining” to a subject makes
particularly bad candidates for charges of subpoena noncompliance based on the failure to
provide marginal documents, where, as here, a respondent has gone to great lengths to attempt
to satisfy its subpoena obligations. See, e.g., Champion Pro Consulting Group, Inc. v. Impact
Sports Football, LLC, 2014 WL 6686727, at *4 (M.D.N.C. Nov. 26, 2014), citing James Madison
Project v. C.I.A., No. 1:08CV1323(GBL), 2009 WL 2777961, at *4 (E.D. Va. Aug. 31, 2009) (“a
request for all documents relating to a subject is usually subject to criticism as overbroad since . .
. all documents relate to others in some remote fashion. Such a request unfairly places the onus
of non-production on the recipient of the request and not where it belongs—upon the person who
drafted such a sloppy request”) (unpublished) (internal quotation marks and citation omitted); See,
e.g., Bradley v. J.E. Val-Mejias, MD, No. 00-cv-2395, 2001 WL 1249339, at *6 (D. Kan. Oct. 9,
2001) (“The use of the term ‘pertaining to’ often makes a discovery request overly broad and
unduly burdensome on its face. Such a phrase often requires the answering party to ‘engage in
mental gymnastics to determine what information may or may not be remotely responsive’”)
(citation omitted); Perez v. El Tequila LLC, 2014 WL 5341766, at *1 (N.D. Okla. Oct. 20, 2014)
(“omnibus discovery requests seeking all documents referring to, concerning, relating to are
unlikely to be enforced by this Court. They are generally too vague and overbroad on their face
and do not describe with reasonable particularity what is being sought”)(internal citations,
quotations, and ellipses omitted); Aikens v. Deluxe Financial Services, Inc., 217 F.R.D. 533, 538
(D.Kan.2003) (request or interrogatory is unduly burdensome on its face if it uses the omnibus
terms “relating to,” or “regarding” with respect to a general category of documents); Mackey v.
IBP, Inc., 167 F.R.D. 186, 197–98 (D.Kan.1996) (interrogatory seeking identity of all documents
“pertaining to” was overbroad and unduly burdensome).
JD–81–18
24
Thus, the General Counsel takes issue with Bakin’s contention at trial that part of her
reason for terminating Cavalero on March 9, was a decline in his work habits after his hours were
cut in January. Bakin complained that after the reduction in hours Cavalero would often be tardy
coming into work, take a long lunch, and begin cleaning up for the day too early. This is
consistent with what Bakin told the state unemployment commission in March 2018 (even before 5
Cavalero filed an unfair labor practice charge), and with what Bakin told her lawyer in a May 22,
2018 document that (apparently inadvertently) was provided to the Region. Tr. 251–252.
The General Counsel argues that Bakin’s testimony about Cavalero’s decline in
punctuality is false testimony—and a pretext—but I do not agree. I recognize that Cavalero10
testified that he was not regularly late to work, and that Gratzer testified that she could not recall if
Cavalero’s lunch breaks or time spent clearing up his workstation at the end of the day changed
after Vaughn was discharged in October 2017. I further recognize that Bakin never complained
directly to Cavalero, docked him, or recorded her growing dissatisfaction with Cavalero’s
performance. 15
These, however, are not compelling points undermining Bakin’s testimony. For one, I do
not judge Cavalero’s testimony as providing an accurate assessment of his work performance in
January through March 2018. His expectations for himself undoubtedly differed from those of
Bakin—indeed, Bakin’s frustration and anger with employees’ daily work performance—and 20
particularly her ire at Cavalero—run through this whole case and carry great explanatory power
for events that the General Counsel has decided to prosecute as unfair labor practices. I need
not determine whether Bakin’s assessment of Cavalero was wholly accurate or whether it was
exaggerated. I believe she believed that Cavalero was not being conscientious and was too often
late, slow to return to lunch, and too quick to stop working at the end of the day, and that this 25
contributed to her decision to let him go in March.19 Notably, Bakin had a lot of complaints about
Gratzer too, but revealed none of them until Gratzer suddenly quit and then, somewhat
gratuitously, Bakin sent Gratzer a letter outlining her frustrations with Gratzer’s performance. The
General Counsel harps on one employee—terminated at a time before any of the events in this
case—as to whom Bakin tracked her attendance problems and gave her a warning letter before 30
discharging her—as demonstrating a suspicious deviation from practice here, but that claim is
unsupportable on this messy record of a sole owner-operator.20
35
40

19McKesson Drug Co., 337 NLRB 935, 936 fn. 7 (2002 (“[i]n order to meet its burden under
Wright Line (i.e., to show that it would have discharged the employee even in the absence of
protected activity), an employer need not prove that the employee committed the alleged offense.
However, the employer must show that it had a reasonable belief that the employee committed
the offense, and that it acted on that belief when it discharged him”).
20Counsel for the General Counsel misstates (GC Br. at 75) that this employee M. Stock, was
warned and terminated in the Fall of 2017. It was the Fall of 2016, long before any of the events
relevant to this case.
JD–81–18
25
There is no pretext here. The General Counsel is missing the import of the evidence.
This is not US Steel’s personnel department at work. This is Ms. Bakin acting alone. And the
General Counsel’s wielding of rules of inference developed in the context of systematized and
coherent system of labor relations is far-fetched on this record.21
5
There is also no merit to the General Counsel’s claim (GC Br. at 83) that one can “easily
infer” that Bakin terminated Cavalero in response to a March 8 email from the Region asking
Respondent’s counsel for commerce documents. The General Counsel also contends, more
generally, that the General Counsel’s notification to the Respondent that it was proceeding to
complaint on the Vaughn discharge prompted the Cavalero discharge. Of all the General 10
Counsel’s kitchen sink of theories, I do wonder if the General Counsel’s determination to
prosecute the Vaughn case might have played any role in the Cavalero discharge. However, it is
not something I am willing to assume, and I do not believe that there is evidence on which that
inference can be based. And, of course, the fact that Vaughn made a Facebook video about her
discharge on March 7, is an odd coincidence, but I am not going to assume that Bakin saw it by 15
March 8, or reacted to it by firing Cavalero. My unwillingness to make that inference is bolstered
by the fact that the General Counsel strenuously and successfully objected at trial to the
Respondent’s effort to introduce the video, arguing, among other things that it was irrelevant.22
Finally, the General Counsel questions the Respondent’s rationale for the Cavalero 20
discharge based on how quickly Cavalero was replaced. Thus, Bakin testified that when she laid
off Cavalero, she planned to perform the dwindling floral design work that Cavalero performed,
and wait for business to increase. However, a week later, on March 15, Bakin was corresponding
with a potential replacement for Cavalero on an online job posting site, and at the end of March,
employee Chris Stewart had begun work as a floral designer at Parkway Florist. Obviously, the 25
replacement of Cavalero suggests that there was work for him to do.

21I am not saying that inferences do not apply in the context of a small employer, but as
always, inferences may not be mechanistically applied but must be based on the record as a
whole. In this case, on this record, variation in Bakin’s documentation practices from one
chronically absentee/tardy employee in 2016, to Cavalero in January-March 2018, simply shows
nothing of interest, notwithstanding the General Counsel’s effort to claim a deviation from practice
from which we should infer illicit motivations. In the same vein, I reject the General Counsel’s
contention that the Respondent’s answer to the Cavalero complaint, which alleges that Cavalero
was laid off for economic reasons, conflicts in a meaningful way with Bakin’s consistent testimony
and the pretrial evidence that Bakin always maintained that economic factors and dissatisfaction
with Cavalero’s conduct played a role in the termination decision. I reject the General Counsel’s
contention (GC Br. at 81–82) that this is probative evidence of shifting rationales by Respondent.
22It does not behoove the General Counsel to attempt to rely on the video as evidence of the
motive for Cavalero’s discharge when it successfully kept the evidence out of the record. Further,
the General Counsel’s effort to rely on Bakin’s nonsensical “admission” (in her July 30, 2018
response to the subpoena) that she relied upon the March 7, 2018 video to reduce Cavalero’s
hours on January 5, 2018, as evidence that Bakin relied upon the video to terminate Cavalero, is
too far afield to follow. The General Counsel made a conscious and purposeful decision to put
the bare July 30 document in evidence but not to question Bakin about it. By itself, the document
is not particularly probative.
JD–81–18
26
The problem for the General Counsel is that Bakin provided a credible and unrebutted
rationale for her change in course: her significant medical problems recurred and required her to
seek an additional floral designer—she could not do the work herself as planned. Bakin testified
that bringing back Cavalero was not an option after his explosive, angry response to his
termination. As referenced, above, Bakin’s unrebutted testimony is that when he was terminated,5
Cavalero verbally threatened her, was screaming at her, resisted returning the store’s keys, and
“[t]old me that he would own my business and own my house.”
The record provides no grounds to doubt Bakin’s explanation that she changed course
and sought to hire a replacement for Cavalero after her medical issues returned.10
The General Counsel meets the record evidence not with counterevidence, but with still
another demand for an adverse inference, this time a sweeping inference rejecting Bakin’s
unrebutted testimonial evidence that she decided to replace Cavalero after her medical issues
resurfaced. GC Br. at 70-72. However, I reject the General Counsel’s demand for such an 15
adverse inference. It is premised on an unproven claim of subpoena noncompliance of
exaggerated import. In particular, I do not agree that the record proves that Bakin affirmatively
posted a job opening on an internet site after Cavalero was fired and failed to provide such a
document to the General Counsel in violation of the subpoena.23 Nor do I agree that the
existence of one March 15 email from Bakin to Stewart asking him to call her to set up job 20
interview proves subpoena noncompliance, given the breadth and vagueness of the subpoena.
See, GC Exh. 3, item 7 of Attachment, in light of cases cited in footnote 18, supra. In any event,
neither claim provides a basis for a sweeping adverse inference effectively sanctioning the
Respondent on a key issue in the case.
25
Simply put, the General Counsel cannot win this case or paper over the weaknesses in
the case based on demands for adverse inferences. Riverdale Nursing Home, 317 NLRB 881,
882 (1995) (rejecting use of adverse inferences to fill evidentiary gaps where inferences constitute
“virtually the General Counsel’s entire case”).
30
Overall, it seems clear to me that Bakin’s anger with employees, and with Cavalero in
particular, did play a role in her decision to let him go. Bakin had a lot of anger and frustration—
that is clear from the record. Employees testified that for many months before the reduction in
hours or discharge, Cavalero particularly was a subject of Bakin’s ire. Cavalero’s discharge was
not purely a “lack of work” layoff, and Bakin was clear about that as early as March 20, when she 35
responded to State unemployment insurance inquiries. But the point is that the touchstone is
whether Bakin’s adverse actions against Cavalero were motivated by protected and concerted
activity. On that, the evidence is lacking. I find that the General Counsel has failed to meet the
initial Wright Line burden. Assuming arguendo that the initial Wright Line burden has been met,
then the Respondent has explained the discharge in a fashion that proves it would have 40
terminated Cavalero even in the absence of his cooperation with the Board’s investigation into the
Vaughn case.

23Bakin testified that she did not post a job but instead searched the website to see who was
available and contacted potential candidates including Stewart. Stewart’s testimony suggests that
he answered a posting for the position, but Stewart was also unsure whether his resume would be
available to employers searching the web site. I consider Stewart’s testimony too unsure to stand
as proof—for purposes of subpoena noncompliance—that, contrary to Bakin’s testimony, there
was an internet ad placed by Bakin.
JD–81–18
27
The 8(a)(1) allegations
As an alternative theory of violation, the General Counsel contends that Cavalero’s
January 2018 reduction in hours and March 2018 termination were motivated by his protected 5
and concerted activity. Specifically, the General Counsel contends that Cavalero’s explosive
argument with Bakin on October 20, 2018, constituted protected and concerted activity. The
General Counsel also contends that Cavalero’s discussions after October 20, 2018, with co-
employee Gratzer, about Bakin and her treatment of employees, constituted protected and
concerted activity.10
I will assume without deciding that Cavalero’s screaming match with Bakin on October 20
constituted concerted and protected activity, although that is far from obvious.24
I also agree that Cavalero’s discussions with Gratzer about Bakin constitute protected and 15
concerted activity. However, contrary to the General Counsel, I do not agree that there is any
evidence or basis for an inference that Bakin was aware of the Cavalero/Gratzer discussions.
The unambiguous testimony is that no employee discussed these matters with Bakin.
Cavalero did not, and never saw another employee doing it either. Gratzer did not. As Vaughn 20
testified, with regard to similar employee conversations before October 20, while these
conversations may have occurred while Bakin was in the store, they did not have these
discussions when she was in the room. Indeed, avoiding Bakin was one of the reasons for the
discussions. The General Counsel’s assumption that Bakin overheard the discussions about her
is at odds with the entire theory of the case. The employees avoided talking to Bakin about the 25
concerns because they feared talking to Bakin about these issues. That was the point. Nothing
in the record supports the conclusion that Bakin knew about the employees’ protected activity of
talking among themselves about their frustrations with her management style.
The General Counsel invokes (GC Br. at 92) the “small plant” doctrine as a basis for 30
concluding that Bakin had knowledge of the employees’ protected activity, but that is unavailing
on this record. While, the Board has held that knowledge of employees’ union activity can be
implied where a facility is small, open, and the employees make no great effort to conceal their
union conversations from management personnel in the vicinity, “the small plant doctrine is an
application of circumstantial evidence”:35
The mere fact that an employer's plant is of a small size does not permit a finding
that the employer had knowledge of the union activities of specific employees,
absent supporting evidence that the union activities were carried on in such a
manner, or at times that in the normal course of events, the employer must have 40
known about them.
Sacramento Recycling, 345 NLRB 564, 575 (2005).
Here, there were no papers, no union cards, no petitions, nothing but employee 45
discussions among themselves. Nothing about the conversations would have stood out. There

24The General Counsel’s position is that since Vaughn and Cavalero had previously discussed
among themselves their dislike for Bakin’s ill temper, Cavalero’s screaming at Bakin when she
expressed anger toward them for talking, instead of following her directions, constituted protected
and concerted activity on his part.
JD–81–18
28
was no “buzz” (as there might be, for example, if employees in a small shop begin a union drive).
The conversations here were informal, interspersed with and part of routine and nonprotected
discussions engaged in by employees. There is no basis for concluding that Bakin knew about
the employees’ protected activities, particularly where the substance of the protected
conversations alleged by the General Counsel were the employee discussions about the difficulty 5
of talking to her.
Thus, with regard to the ongoing employee discussions among themselves, I find that the
General Counsel has failed to establish the Respondent’s knowledge of this protected activity.
10
As to Cavalero’s argument with Bakin on October 20, 2018, assuming, arguendo, that this
was protected and concerted activity, I believe that the General Counsel has failed to establish
that it was a motivating cause for the January 5, 2018 reduction-in-hours, much less the March 9
termination. It does not make too much sense to conclude that after her angry argument with
Cavalero on October 20, 2018, Bakin waited until January 5, 2018, and reduced Cavalero’s hours 15
by one day a week in retaliation. It makes even less sense to conclude that in retaliation for the
October 20 incident Bakin terminated Cavalero on March 9.
The only animus on the record at any time before Cavalero’s termination was Bakin’s
December interrogation of Chisholm. I do not believe the record supports the conclusion that this 20
inquiry by Bakin, unlawful though it may have been, adds evidence of Bakin’s hostility to
Cavalero’s 8(a)(1) alleged protected activity of arguing with Bakin on October 20, or reasonably
leads to the conclusion that Bakin decided to reduce Cavalero’s hours, or subsequently discharge
him based on the screaming match she had with Cavalero on October 20. Further, I reject the
General Counsel’s reiteration of the same claims of pretext that advanced and rejected with 25
regard to the 8(a)(4) allegation.
However, even if I assumed, arguendo, that the unlawful interrogation established
sufficient animus to satisfy the General Counsel’s Wright Line burden in the 8(a)(1) case, I would
find, for essentially the reasons stated above with regard to the 8(a)(4), that the Respondent has 30
met its burden to prove that, as to any unlawful motive to reduce hours and/or discharge Cavalero
based on his October 20 conduct, that it would have taken the same action in the absence of that
protected activity.
35
CONCLUSIONS OF LAW
1. The Respondent Parkway Florist is an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
2. On or about December 15, 2017, the Respondent violated Section 8(a)(1) of the Act by 40
coercively interrogating an employee concerning her participation and the participation of
other employees in a Board investigation.
3. The unfair labor practices committed by the Respondent affect commerce within the meaning
of Section 2(6) and (7) of the Act.45
50
JD–81–18
29
REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
5
The Respondent shall further be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted in the Respondent’s facility wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its 10
contents. 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. 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 15
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since December 15, 2017. When the notice is issued to the
Respondent, it shall sign it or otherwise notify Region 6 of the Board what action it will take with
respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the 20
following recommended25
ORDER
25
The Respondent, Parkway Florist, Inc., Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
30
(a) Interrogating employees concerning their participation and the participation of other
employees in a Board investigation.
(b) 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.35
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(b) Within 14 days after service by the Region, post at its facility in Pittsburgh,
Pennsylvania copies of the attached notice marked “Appendix.” 26 Copies of the 40

25If 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.
26If 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–81–18
30
notice, on forms provided by the Regional Director for Region 6, 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, 5
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 10
closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since December 15,
2017.
15
(c) Within 21 days after service by the Region, file with the Regional Director for
Region 6 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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the 20
Act not specifically found.
Dated, Washington, D.C. December 12, 2018
25
David I. Goldman
U.S. Administrative Law Judge
ht,t CIL
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 interrogate you about your participation or the participation of other employees in
a Board investigation.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
PARKWAY FLORIST, INC.
(Employer)
Dated By
(Representative)
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.
William S. Moorhead Federal Building, Room 904, Pittsburgh, PA 15222-4111
(412) 395-4400, Hours: 8:30 a.m. to 5 p.m.
JD–81–18
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/06-CA-209583 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.

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, (412) 690-7117.