RIVER FALLS HEALTHCARE, LLC d/b/a KINNIC HEALTH AND REHAB

National Labor Relations Board - Administrative Judge Opinions

Jul 7, 2014

18-CA-106165 (N.L.R.B. Jul. 7, 2014)

JD–40–14
River Falls, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
RIVER FALLS HEALTHCARE, LLC
d/b/a KINNIC HEALTH AND REHAB
and 18–CA–106165
18–CA–110713
UNITED FOOD AND COMMERCIAL WORKERS,
LOCAL 1189
Tyler J. Wiese, Esq. and
Nichole L. Burgess-Peel, Esq.,
for the General Counsel.
John C. Hauge, Esq.,
for the Respondent.
Curtis Neff,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This case was tried in Minneapolis,
Minnesota, on January 8–10, 2014. The United Food and Commercial Workers, Local 1189 (the
Union) filed the charges in Case No. 18–CA–106165 on May 30 (and amended charges on June
14 and August 7, 2013) and in Case No. 18–CA–110713 on August 7, 2013, and the General
Counsel issued the order consolidating cases, consolidated complaint and notice of hearing on
September 30, 2013.1
The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act as
reflected in paragraph 6 by: (a) harassing employee Cathi Curry and thereafter discharging

1 All dates are in 2013 unless otherwise indicated.
JD–40–14
2
and/or caused her discharge;2 (b) removing employee Lee Ann Ager from the schedule and
informing her she was under investigation; (c) suspending Ager and subsequently reducing that
suspension to a written discipline; (d) banning Ager from Respondent’s premises; (e) refusing to
change Ager’s weekend shift schedule; (f) issuing a written verbal warning to employee Ruth
Curry; and (g) refusing to grant Ager a holiday shift on the Fourth of July. 5
In addition, complaint paragraph 5 alleges that the Respondent violated Section 8(a)(1) of
the Act by the following: (a) Director of Nursing Kristina Ijomah threatening that Respondent
did not want an employee to be a member of the labor-management committee; (b)
Administrator Derrick Maidl prohibiting employees from discussing employment matters; (c) 10
Director of Environmental Services Randall Koller, threatening that Respondent wanted to get
rid of the Union; (d) Ijomah threatening that Respondent was trying to get rid of the Union; (e)
Maidl, Ijomah, and Human Resource Director/Accounts Payable Judith Hammer, interrogating
an employee about what was heard on the floor regarding Respondent’s plan for getting rid of
union supporters, threatening an employee for spreading rumors, and asking for names of 15
employees who were spreading rumors; (f) Maidl and Ijomah, creating the impression that
employees’ union and/or protected concerted activities were under surveillance; (g) Maidl and
Ijomah, threatening that Respondent would file harassment charges against an employee for
engaging in union and/or protected concerted activities; (h) Maidl, threatening that an employee
did not need union representation; (i) Maidl and Ijomah, threatening an employee that 20
Respondent would continue to investigate the employee’s union and/or protected concerted
activities; (j) Maidl and Ijomah, threatening an employee not to talk to other employees on the
floor about terms and conditions of employment; (k) Maidl and Ijomah, threatening an employee
by falsely stating the employee had been given a verbal warning because of the employee’s
union and/or concerted protected activities; (l) by Maidl and Ijomah, threatening an employee 25
with insubordination because the employee attempted to call a union representative; (m) Maidl
and Ijomah, threatening an employee that Respondent was going to call the police if the
employee did not leave Respondent’s premises and did so in response to the employee’s union
and/or other concerted protected activities; (n) Maidl and Koller, threatening an employee for
discussing terms and conditions of employment with other employees; (o) Maidl, threatening an 30
employee by stating that the employee did not need union representation; (p) Maidl, threatening
an employee with termination for refusing to sign a disciplinary form and/or if the employee was
found to have discussed terms and conditions of work with other employees.3

2 Complaint allegation 6(a) was amended at the hearing. However, in its brief, the General Counsel
states that he wishes to withdraw the allegation of constructive discharge which he moved to add by
amendment at the hearing. The General Counsel, however, failed to file a motion to withdraw this
allegation and thereby provide the Respondent an opportunity to respond to it. Despite the fact that the
General Counsel wishes to abandon this theory, it was litigated and I find it appropriate to consider it in
this decision.
3 At the hearing, counsel for the General Counsel moved to amend the complaint to include subpar.
5(q) alleging that, on or about December 19, 2013, Respondent, by Maidl, interrogated employee Ager
regarding her union activity and testimony before the NLRB, but counsel later withdrew that motion to
amend the complaint, and said withdrawal was granted.
JD–40–14
3
On the entire record, including my observation of the demeanor of the witnesses,4 and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
5
FINDINGS OF FACT
I. JURISDICTION
The Respondent, with an office and place of business in River Falls, Wisconsin, has been 10
engaged in the operation of a skilled nursing care facility. During the calendar year ending
December 31, 2013, Respondent derived gross revenues in excess of $250,000, and has
purchased and received goods valued in excess of $50,000 from entities located within the State
of Wisconsin, which in turn, purchased and received goods directly from suppliers located
outside the State of Wisconsin. The Respondent admits, and I find, that it is an employer 15
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES20
A. The Events Preceding the Alleged Unfair Labor Practices
1. Background
25
The Respondent is a subsidiary of Grace Healthcare, based in Chattanooga, Tennessee,
which operates nursing home facilities throughout the country. The Respondent purchased the
Kinnic nursing home facility in April 2011, from predecessor Heyde Companies. The skilled
nursing care facility houses approximately 50 residents. The Respondent’s directors consist of:
Randy Koller, the director of environmental services; Kristina (Kris) Ijomah, the director of 30
nursing; Judith (Judy) Hammer, the human resources director; Patty Miller, the social services
director; Amanda Mason, the activities director; Larissa Fayweather and Erin McLagan, the
clinical managers; Rasalie Maas, the dietary director; and Beth Palo, the business office
manager. Administrator Derrick Maidl was hired by the Respondent in September 2011 to run
the facility and oversee the directors and their respective departments.35
The Respondent employs approximately 80 to 90 employees who are represented by two
unions. The registered nurses (RN) and licensed practical nurses (LPN) are represented by the
Minnesota Nurses Association (MNA). The certified nursing assistants (CNA), housekeepers,
laundry aides, activity assistants, cooks, and dietary aides are represented by the UFCW (the 40

4 In making my findings regarding the credibility of witnesses, I considered their demeanor, the
content of the testimony, and the inherent probabilities based on the record as a whole. In certain
instances, I credited some but not all, of what the witness said. I note, in this regard, that “nothing is more
common in all kinds of judicial decisions than to believe some and not all” of the testimony of a witness.
Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC,
349 NLRB 939, 939–940 (2007).
JD–40–14
4
Union). There are approximately 40 employees in the UFCW bargaining unit, and the Union has
represented those employees for approximately 20 years. The parties’ relationship has been
embodied in successive collective-bargaining agreements, the most recent of which was effective
during the time period in this case from August 1, 2011, to July 31, 2013.5
5
2. The Respondent’s purchase of the Kinnic facility and the changes in Respondent’s
management and the Union’s representatives at the facility
The record reveals that shortly after purchasing the facility in April 2011, the Respondent
underwent a transition in management. Derrick Maidl replaced the previous administrator and 10
subsequently took over operation of the facility in September 2011. The Respondent also hired a
new director of nursing, Kris Ijomah, in November 2011.
After the Respondent’s purchase of the facility, the Union likewise experienced changes
in its representatives. Union Steward Charity Hill was replaced by Laundry Aide Cathi Curry, 15
who served as union steward from 2011 until her termination on April 4, 2013. Certified Nurse
Assistant Lee Ann Ager subsequently replaced Cathi Curry as union steward. In addition, the
union representative servicing the unit changed in the Fall of 2012, when Curtis Neff replaced
long-time Union Representative Mike Dryer.
20
It is undisputed that after the Respondent’s purchase of the facility the transition was
smooth and the parties enjoyed a good relationship. This cooperative relationship was reflected
in the fact that when the Respondent took over the facility, it assumed the existing collective-
bargaining agreement between the Union and Respondent’s predecessor. Thereafter, in the
summer of 2011, the Respondent quickly reached an agreement on a successor collective-25
bargaining agreement. The successor agreement contained a wage reopener pursuant to which
the parties reopened in 2012, and negotiated an increase in wages for union members. The
parties also maintained and utilized a labor—management committee that included employee
members and which successfully dealt with resolving various workplace issues.
30
3. Labor—Management issues arise between the parties in the Fall of 2012
The industrial peace at the Respondent’s facility, however, would not last long. The
record reveals that in the Fall of 2012, around the time that Neff replaced Dryer as the union
representative for the unit employees, problems arose between the parties. At that time, one of 35
the Respondent’s laundry machines malfunctioned, which resulted in an increase in the workload
for the laundry department employees, and subsequently, a perceived decline by Respondent in
the quality of the laundry work. During this time period, it appears that Koller became frustrated
with certain aspects of his job, such as posting and maintaining schedules consistent with the
provisions of the collective-bargaining agreement. The record shows that Cathi Curry attempted 40
to help Koller fashion a schedule for the employees that was consistent with the contract.
It is undisputed that during that time period, problems arose between the parties and there
were complaints from the employees and the Union with regard to the way management, in
particular Koller, was treating the employees. The Respondent acknowledged these problems in 45

5 After that agreement expired, the parties negotiated a successor agreement.
JD–40–14
5
an email from Miller to Maidl on September 10, 2013. In that email, Miller stated that Koller
informed her he had told the laundry employees that he was going to report them every time he
saw them smoking, prompting her to acknowledge: “No wonder they have union problems.”
The issues in the laundry department resulted in a grievance being filed on September 24, 5
2012, by Neff. That grievance, described as a “class action grievance on behalf of Cathi Curry
and the laundry staff . . .” complained of rude and disrespectful treatment from Koller and the
alleged creation of a “hostile work environment” in the laundry department. (GC Exh. 5.)
Koller’s perceived mistreatment of the employees in the laundry department led to several emails
from Cathi Curry to Maidl in September 2012, concerning employees’ terms and conditions of 10
employment and terms of the contract, such as scheduling. (GC Exh. 8.) In response, Maidl
informed Curry that he was going to speak to Koller about the schedules and the “issues.” The
parties met over the grievance in October 2012, and the conditions improved in the laundry
department, which in turn led to the Union’s withdrawal of the grievance.
15
4. Issues between the parties arise again in early 2013
In early 2013, the parties enjoyed improved relations. The record shows that the parties
continued to work together to try and resolve disputes, and Neff acknowledged that Maidl
consistently tried to work with the Union to discuss issues and resolve disputes, including during 20
the Spring and Summer of 2013. Likewise, Cathi Curry testified that she felt at ease bringing
employee issues directly to Maidl or Ijomah for discussion and resolution.
However, the record also shows that during this time period, problems were arising
between the parties, and the labor-management committee stopped meeting in or around 25
February 2013. Cathi Curry testified that the issues between Koller and the laundry employees
resumed in the early months of 2013, as she fielded complaints regarding alleged harassment and
scheduling issues. She testified that when she would attempt to address scheduling issues with
Koller, he would tell her that the Union was hindering his ability to do his job.6 It is undisputed
that the relationship became so bad that Cathi Curry was visiting Maidl’s office several times per 30
week in an attempt to get better treatment for the employees by management, and she filed 5 to 6
grievances in 2013, prior to her discharge on April 4, 2013.7
In addition, during this time period, Cathi Curry complained that fellow laundry
employee Jackie Cataract was receiving special treatment from Koller. She specifically 35
complained that Cataract left her shift early on March 9 without talking to any of her coworkers
or managers, and that perceived favorable treatment led Cathi Curry to complain about those
issues to Maidl in an email dated March 9. Maidl responded to the email on March 12, stating
that the situation would be addressed, and that Cataract did talk to her supervisor before she left
work. Curry also requested that Neff file a grievance against Cataract, but he refused to file a 40

6 Koller did not contradict this assertion.
7 The record shows that problems were also developing between the CNAs and Ijomah. It is
undisputed that during this time period, in response to a flu outbreak at Respondent’s facility, Ijomah
mandated that employees either take Tamiflu, get a flu vaccine, or be removed from the schedule. Based
on employee complaints to the Union about being required to get a flu vaccine, Cathi Curry addressed the
issue with Ijomah. Curry informed Ijomah that she would take the issue to the Union, and Ijomah ceased
the mandatory program.
JD–40–14
6
grievance against another union member. These events led to a meeting in March 2013 with
Maidl to discuss the issues in the laundry department, such as the scheduling problems and
alleged preferential treatment for Cataract by Koller. Unlike the meeting in October 2012, there
was no resolution of the labor—management issues, and in subsequent discussions that Curry
had with Koller pertaining to scheduling and the collective-bargaining agreement, Koller told her 5
that “if the Union was not involved, I’d be able to do my job.”
The Respondent does not dispute that labor—management issues worsened during this
time period. In fact, the deteriorating relationship between the parties was recognized and
acknowledged by Janet Cannon, Respondent’s corporate human resources director in10
Chattanooga, Tennessee. Cannon wrote in an email dated February 8, 2013, to prior Union
Representative Dreyer, that the parties needed to speak as soon as possible regarding “. . . the
deteriorating relationship between management and union at the facility.” (GC Exh. 37). While
it appeared the Union and employees were frustrated with Respondent’s managers, the
Respondent appeared equally frustrated with the actions of Neff, whom Respondent believed 15
was bypassing the contractual dispute resolution process and instead was opting to file unfair
labor practice charges against the Respondent. Cannon followed her email pertaining to the
“deteriorating relationship” with an email to Neff’s supervisor in the Union, Jennifer
Christensen, stating that Neff’s behavior and attitude towards management was “. . .
confrontational, antagonistic, and harassing in nature.” (GC Exh. 37.) 20
5. The relevant provisions of the collective-bargaining agreement and Respondent policies
The parties collective-bargaining agreement in effect during the relevant time period in
this case was from August 1, 2011, to July 31, 2013. (GC Exh. 2.) This agreement included a 25
provision that discipline not be issued to employees absent just cause (art. 21), and a grievance
procedure that provides for mediation and, if necessary, final and binding arbitration (art. 22).
The Respondent also maintains an employee handbook that contains additional personnel
policies and rules governing employee conduct, including policies addressing pay and leave
issues. In addition, the Respondent maintains some stand-alone policies, those being of 30
relevance to the instant matter consist of a no-fault attendance policy.
B. The Alleged Unfair Labor Practices Concerning Ruth Curry and Her Subsequent
Investigation and Discipline for Spreading Rumors35
1. The April 8, 2013 statement by Koller that the Respondent wants the Union and old
people removed from the facility
Ruth Curry is the mother of Cathi Curry. She has been a laundry aide at the 40
Respondent’s facility since February 2009. She credibly testified that on or about April 8, 2013,
she was alone with Koller in his office when the subject of the Union came up. According to
Ruth Curry, she said something about the Union, and Koller told her he was not going to lose his
job, and the Union was “not going to get him out of there.” She testified that Koller then stated
that “we really want the Union out of here and the old people.” Despite the fact that Koller45
testified in the hearing, he did not specifically dispute this allegation by Ruth Curry.
JD–40–14
7
The General Counsel alleges in complaint paragraph 5(c) that Respondent violated
Section 8(a)(1) of the Act by stating that it wanted to get rid of the Union. It is undisputed that
Koller informed Ruth Curry that the Respondent wanted to get the Union and older people out of
the facility. The Board has held that the standard by which to evaluate whether alleged conduct
violates Section 8(a)(1) of the Act is not whether the respondent has acted with the intent to 5
violate the Act, but whether the alleged unlawful conduct has the tendency to interfere with,
restrain, or coerce the employees in the exercise of their Section 7 rights. Cox Fire Protection,
Inc., 308 NLRB 793 (1992). The test does not take into consideration the subjective impressions
of employees, nor the intent of the respondent. Grand Canyon Education, Inc., 359 NLRB No.
164 (2013). 10
In applying the Board’s criteria to this allegation, I find that Koller coercively informed
Ruth Curry that it wanted to remove the Union and the older employees (some of which were
likely union members) from the facility, in violation of Section 8(a)(1) of the Act. Koller’s
statement was coercive because it came from a high-ranking manager at the facility in the 15
confines of the manager’s office. The Board has held that similar statements had the tendency to
interfere with, restrain, and coerce employees in the exercise of their rights under the Act to
form, join or assist the Union. See Rosdev Hospitality, 349 NLRB 202 fn. 3 (2007) (where the
Board held that statements from supervisors telling employees that it wished to get rid of an
established union unlawfully interfered with employees’ Section 7 rights). I therefore find that 20
the Respondent coercively informed an employee that it wanted to remove or get rid of the
Union and the older employees from the facility, in violation of Section 8(a)(1) of the Act.
2. In the beginning of May 2013, Ijomah states that Respondent wants to get rid of the
Union and the older employees.25
Ruth Curry testified that in the beginning of May 2013,8 while at the facility standing
near the nursing station with coworker Nancy Stein, Ijomah walked by while speaking to another
person whom Curry did not know. When Ijomah was approximately 10 feet away from Curry,
Ijomah told the unknown individual that she (Ijomah) “wanted to get rid of the Union and get rid 30
of some of the old people.” Ruth Curry testified that she asked Stein if she heard what Ijomah
said, and Stein responded that she heard some of the statement. Ruth Curry testified that Stein, a
senior employee, then commented that she would probably be the first to go, and Ruth Curry
stated that she would probably be the next to go.
35
Ijomah denied making that statement. She testified that she was aware there was a rumor
that she had said the Respondent wanted to get rid of the Union and the older people, but that
Ruth Curry misunderstood her statement that she made regarding getting rid of “old carpeting.”
I find that Ijomah stated that she, and therefore the Respondent, wanted to get rid of the 40
Union and the older employees. In situations such as this, where Ijomah’s testimony differs
from that of Ruth Curry, I credit Ruth Curry’s testimony. In this regard, I found Ruth Curry to

8 While there was some confusion in the record concerning when this statement and subsequent
investigatory meeting occurred, Ruth Curry eventually clarified that both Ijomah’s statement at the
nurse’s station and the initial investigative meeting occurred at sometime in May 2013.
JD–40–14
8
be a very credible witness who testified in a straight forward and honest manner.9 Ijomah, on the
other hand, was at times unbelievable and evasive. Regarding the rumor issue, she testified that
she made a comment about getting rid of something old, but that she “was really talking about
getting rid of old carpeting.” I find that assertion is unbelievable, and I give it no weight.10
5
The General Counsel alleges in paragraph 5(d) of the complaint that the Ijomah’s
statement violated the Act. Ijomah’s statement was not directed to, but was overheard by
employees. Ijomah is a high-ranking management official of the Respondent as the director of
nursing, and her statement about wanting to get rid of the Union (and older individuals who are
most likely union members) has the tendency to coerce and restrain the employees in the 10
exercise of their right to support and assist the Union. Unbelievable Inc., 323 NLRB 815, 816
(1997). The statement was not made directly to the employees as it was intended to be heard by
the unidentified person with Ijomah. It was nevertheless overheard by the employees in the
hallway of the facility, which I find was coercive and threatening. The intent or motive of the
respondent is not relevant with regard to 8(a)(1) violations of the Act. Id. (Board finding a 15
restaurant supervisor’s coercive threat, overheard by a hidden busboy, violative of Sec. 8(a)(1)
regardless of the supervisor’s lack of knowledge of a busboy’s presence). See also Williams
Motor Transfer, 284 NLRB 1496, 1499 (1987) (finding respondent president’s threats, overheard
by a driver, unlawful regardless of president’s intent or whether he was aware of the driver’s
presence). On this basis, I find that through Ijomah’s statement that the Respondent wanted to 20
get rid of the Union and the older employees, the Respondent committed a violation of Section
8(a)(1) of the Act.
3. The May 2013 investigatory meeting with Maidl, Ijomah, and Hammer concerning Ruth
Curry spreading rumors.25
Ruth Curry credibly testified that approximately 1 week later, she was called into a
meeting with Maidl, Ijomah, and Hammer.11 She testified that in the meeting, Maidl stated that
she was spreading rumors on the floor. Ruth Curry was then directly asked if she was in fact
spreading rumors. According to Ruth Curry, she informed the management officials that she was 30

9 Ruth Curry’s credibility is bolstered by the fact that her testimony was honest, even where it could
be viewed as going against the interests of her daughter, Cathi Curry, and her discharge/constructive
discharge allegation. In this connection, Ruth Curry honestly testified that on the day her daughter
walked off the job, she told Cathi Curry not to leave her shift. Contrary to Cathi Curry’s testimony that
Koller was mean to her and treated her badly, Ruth Curry testified that Koller was actually “nice,” and
that she liked him. She also truthfully testified, contrary to Cathi Curry’s interests, that Koller had given
Cathi Curry time off of work in March 2013 for personal reasons, and when there came a time when Ruth
Curry was worried about her daughter’s health and safety outside of work, she called Koller, who came to
Cathi Curry’s apartment and summoned the proper authorities which eventually provided her daughter the
assistance she needed.
10 Ijomah’s evasive and inconsistent demeanor is also reflected by the fact that while she initially
testified that management was not attempting to get to the source of the alleged rumors, she testified that
in a meeting with Ruth Curry (discussed below), Maidl questioned Curry about who initially informed her
of the rumors. In addition, Ijomah’s evasive demeanor is reflected in the fact that she alleged in that same
meeting with Ruth Curry, that she did not “instruct” her to stop spreading rumors, but merely “clarified”
that the Respondent did not want her to spread rumors.
11 It appears from the record that this meeting occurred sometime in May 2013.
JD–40–14
9
not spreading rumors. However, Ijomah stated that she wanted to know the names of the persons
spreading the rumors, and that Ijomah stated that she was “going to throw harassment charges at
us.” Ruth Curry testified that when Ijomah made that statement, Maidl laughed and told Ijomah,
“do it.”
5
Hammer testified that the meeting concerned things that were being said throughout the
facility, and that she was aware that employees were worried about their employment as a result
of this “talk” going around. Hammer, however, testified that Maidl and Ijomah told Ruth Curry
that they did not want her spreading gossip, including the comment Ijomah made about trying to
get rid of the “old stuff,” not the “old staff.” I find Hammer’s assertion that Ijomah was talking 10
about “old stuff” is incredible and entitled to no weight, as the record reflects that Hammer
purposefully lied under oath about what Ijomah said was the subject of the rumor. Under cross-
examination and after being confronted with her affidavit, Hammer eventually admitted that
Ijomah’s statement concerned getting rid of the “old staff.”12
15
Ruth Curry testified that she asked if she was going to have a union representative at the
meeting, but Maidl told her she did not need one, and he then told her to “shut her mouth” and to
“zip it.” Maidl also told her that the corporate management personnel would be at the facility the
following week, and they would “get to the bottom of it.”
20
Neither Maidl, nor Ijomah, offered credible testimony that contradicts Ruth Curry’s
assertions regarding this May 2013 meeting. In fact, to the contrary, Ijomah acknowledged
being aware of the fact that employees were discussing her statement that she wanted to rid the
Respondent of the Union and the older people, and she understood that the employees believed
she had made those statements. Ijomah also admitted that she questioned Ruth Curry about the 25
rumor that she wanted to “get rid of the old people in the Union,” because Ruth Curry’s name
came up in connection with the rumor. She testified that she wanted to figure out who was
spreading the rumor and she wanted to “clarify it.”
The General Counsel alleges in paragraphs 5(e)-(j) that the Respondent violated the Act 30
during its conduct in this meeting with Ruth Curry. The Respondent argues in its brief that it
was confronting Ruth Curry regarding “spreading rumors about personal information about co-
workers,” and therefore it had a legitimate nondiscriminatory reason for questioning Ruth Curry.
(R. br. p. 20.)
35
I agree with the General Counsel that the Respondent committed numerous violations of
Section 8(a)(1) of the Act in this meeting. Even if some of the alleged rumors concerned
personal information about employees, it is undisputed that Ijomah’s statement about wanting to
get rid of the Union and the older employees who are likely union members, was one of those
rumors, and it is equally undisputed that such a subject concerned the terms and conditions of 40
employment for the employees. Ruth Curry’s discussion with other employees about the Union

12 Contrary to Hammer’s testimony at the hearing, Hammer’s sworn affidavit stated: “so there was a
comment made that Kris was trying to get rid of the old staff.” As discussed more fully below in the Lee
Ann Ager paycheck incident portion of this decision, where Hammer’s testimony conflicts with the
testimony of others, her testimony is given little if any weight, as I found her testimony to be incredible,
and at times, blatantly false.
JD–40–14
10
and its members being removed from the Respondent’s facility, or the Respondent’s desire to
remove them, despite being characterized by the Respondent as “rumors,” nevertheless
concerned those terms and conditions of employment, and was clearly protected under Section 7
of the Act.
5
I find that the questioning of Ruth Curry by Maidl and Ijomah as to whether she was
talking to her fellow employees about the Respondent’s desire to rid itself of the Union, or as the
Respondent characterized it, by “spreading rumors,” constituted unlawfully interrogation of her
union activities and support, in violation of Section 8(a)(1) of the Act. I also find Respondent’s
questioning of Ruth Curry as to what if any “rumors” regarding employees’ terms and conditions 10
of employment she may have heard from other employees, and asking her to identify who she
heard the “rumors” from, was coercive. Thus, I find that the Respondent coercively requested
that an employee identify employees who were engaging in union or protected activities, in
violation of Section 8(a)(1) of the Act.13
15
I further find that Respondent’s questioning of Ruth Curry in this context unlawfully
created the impression that her union and protected concerted activities were under surveillance,
in violation of Section 8(a)(1) of the Act. Upper Great Lakes Pilots, Inc., 311 NLRB 131, 134–
135 (1993) (statement by respondent manager that he knew of protected activity and some
employees who participated in activity created the unlawful impression of surveillance). 20
In addition, the record shows that Ijomah threatened to file harassment charges against
Ruth Curry for engaging in protected and union activities. See Carborundum Resistant
Materials Corp., 286 NLRB 1321 (1987) (respondent’s threat to file a lawsuit in retaliation for
protected activity found unlawful). The Respondent’s unlawful threat to file harassment charges 25
against Ruth Curry for engaging in union and protected activities violated Section 8(a)(1) of the
Act. Finally, Maidl’s statement to Ruth Curry that she should “shut her mouth” and to “zip it,”
was specifically directed to, and concerned, her discussion of employees’ terms and conditions
of employment. I find through Maidl’s statement, the Respondent coercively threatened and
directed Ruth Curry not to speak to other employees about terms and conditions of employment, 30
including the Respondent’s desire to remove the Union and older employees from the facility, in
violation of Section 8(a)(1) of the Act.14
35

13 The Board has held that requesting the identity of employees who allegedly engaged in protected
activities, violated Sec. 8(a)(1) of the Act. See Guess?, Inc., 339 NLRB 432, 434–435 (2003)
(respondent’s questioning employees about the names of employees who engaged in protected activity,
even in the context of a deposition, constituted a violation of the Act).
14 I note that complaint par. 5(a) alleges that on or about May 30, 2013, during the meeting, Maidl
and Ijomah threatened an employee that Respondent would continue to investigate the employee’s union
and protected concerted activities. However, I do not find that the record supports that allegation, and I
will therefore dismiss it.
JD–40–14
11
4. The June 5 or 6, 2013 investigatory meeting where Ruth Curry is questioned and issued
discipline for discussing terms and conditions of employment with other employees
(spreading rumors)
Ruth Curry also testified that she was called to a second meeting with Maidl and Koller, 5
in Maidl’s office, on June 5, 201
3. The record shows that this meeting occurred either on June 5 or 6, 2013.15 According to Ruth
Curry, Maidl stated in that meeting that there were more rumors “flying around” the facility.
Maidl identified one of the rumors as allegedly concerning Judy Hammer. Ruth Curry denied
knowing anything about spreading rumors. Koller subsequently stated that Ruth Curry was 10
harassing the laundry employees, and she denied any knowledge of harassing employees.
The Respondent failed to offer testimony to contradict Ruth Curry’s version of what was
said in this meeting. However, the Respondent argues that it was justified in inquiring about and
preventing rumors concerning the personal lives of the employees. As mentioned above, it is 15
undisputed that regardless of what rumors may have been out there, some involved discussions
about employee terms and conditions of employment. In fact, in regard to that meeting, Maidl
admitted management discussed the rumors that Ruth Curry was spreading at work, which
involved her discussion with coworkers about the Respondent getting rid of the Union and the
older people, and which he acknowledged involved the employees’ working conditions. Maidl 20
also acknowledged at the hearing that Ruth Curry was issued discipline in that meeting for
allegedly “spreading rumors.”16 Ijomah specifically testified that Maidl, in the June 5/6 meeting,
asked Ruth Curry whether she discussed with other employees the rumor about the Union and
the older people. Ijomah also acknowledged that she told Ruth Curry that she did not want her
spreading rumors that were untrue. With regard to this June 5/6 meeting where Ruth Curry was 25
issued a written “verbal warning,” Koller admitted that the rumors included discussions about the
Union and union activity, and that Ruth Curry was directed by management not to repeat rumors
about the Union. On cross-examination by Respondent’s counsel, Ruth Curry further testified
that in that meeting, Maidl told her to “keep [her] mouth shut and [she] wasn’t allowed to talk to
anyone.”30
At the end of the meeting, Maidl issued Ruth Curry a personnel consultation form
indicating that she was receiving a verbal warning for spreading rumors and harassing
coworkers. She testified that Maidl told her to sign it, and she did as directed. According to
Ruth Curry, Maidl told her that if she did not keep her mouth shut, it could lead to her 35
termination. Ruth Curry testified that, at this point of the meeting she was crying, and she asked
Maidl why she was receiving the discipline. In response, Maidl informed her that it was for all
the things they had spoken about in the meeting. During this meeting, Ruth Curry asked if there
was going to be a union representative present, and Koller informed her there would not be one
present. The Union filed a grievance over the discipline she received that day, but subsequently 40
settled the grievance by ceasing to process it further.

15 The record shows it was either June 5 or 6, because the personnel consultation form allegedly
issued to Ruth Curry in this meeting was dated June 6, 2013.
16 In this regard, the personnel consultation form states in part that “there have been concerns that
Ruth is spreading rumors about personal information about employees.”
JD–40–14
12
The General Counsel alleges in paragraphs 5(n)-(p) that the Respondent violated the Act
during its conduct in this meeting with Ruth Curry. As in the May meeting, the Respondent
argues that it was confronting Ruth Curry regarding “spreading rumors about personal
information about co-workers,” and therefore it had a legitimate nondiscriminatory reason for
questioning Ruth Curry.5
I find that in the June 5 or 6 meeting, similar to the May meeting, the Respondent
committed numerous violations of Section 8(a)(1) of the Act, consisting of the following: (1)
when Maidl told Ruth Curry that there were more rumors “flying around” the facility, he inferred
that she was talking to employees about terms and conditions of employment, and when (as 10
Ijomah testified) Maidl asked Ruth Curry whether she discussed the rumor about the Union with
other employees, he unlawfully interrogated her regarding her union and protected activities; (2)
when Maidl asked Ruth Curry about the rumors or discussions of terms and conditions of
employment with other employees, he unlawfully created the impression that an employee’s
union and protected activities were under surveillance; (3) when Ijomah told Ruth Curry she did 15
not want her spreading rumors, she unlawfully threatened an employee not to talk to other
employees about terms and conditions of employment; and (4) when Maidl told Ruth Curry that,
if she did not keep her mouth shut about discussing employees’ terms and conditions of
employment, it could lead to her termination, he unlawfully threatened to terminate an employee
if she continued to engage in union and protected activities.20
5. The Respondent issued discipline to Ruth Curry in the June 5 or 6 meeting for discussing
terms and conditions of employment with other employees (spreading rumors).
The record reveals that after interrogating Ruth Curry with regard to her discussions with 25
employees about terms and conditions of employment, it issued her a “personnel consultation
form” during the June 5 or 6 investigatory meeting in which it states in the “supervisor’s
description of occurrence,” section:
Staff have brought forward concerns about the way Ruth works with them and 30
acts like their supervisor. They feel that she is “bullying and intimidating”
towards them. Also there have been concerns that Ruth is spreading rumors about
personal information about employees. This is against our Code of Conduct
policies and could be considered to create a hostile work environment. (GC Exh.
20).35
With regard to the written “verbal warning,” Koller admitted that the rumors included
discussions about the Union and union activity, and that Ruth Curry was directed by
management not to repeat rumors about the Union. Even though the disciplinary document
mentions concerns about how Ruth Curry was allegedly treating other employees, the record is 40
clear, and it is undisputed, that Respondent issued Ruth Curry the written discipline in the form
of a “verbal warning,” because she was “spreading rumors” at work, which as mentioned above,
encompassed discussing employees’ terms and conditions of employment such as Ijomah’s
statement that Respondent wanted to rid itself of the Union and the older employees.17 I find that

17 The record shows that Maidl was asked the following question: “And at this second meeting, you
actually issued Ruth Curry a discipline for spreading rumors, isn’t that right? Answer: “Yes.” (Tr. 114.)
JD–40–14
13
the Respondent’s issuance of this discipline to Ruth Curry constitutes discrimination against her
for her engagement in union and protected activities and is facially unlawful in violation of
Section 8(a)(3) and (1) of the Act.
Even assuming that the discipline was not facially unlawful, an analysis under Wright 5
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), demonstrates that the discipline issued to Ruth Curry was discriminatorily motivated.
In Wright Line, supra, the Board announced the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) of the Act turning on 10
employer motivation. First, the General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating factor” in the employer’s
decision. On such a showing, the burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the protected conduct. The United States
Supreme Court approved and adopted the Board’s Wright Line test in NLRB v. Transportation 15
Management Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321 NLRB 278 fn. 12
(1996), the Board restated the test as follows. The General Counsel has the burden to persuade
that antiunion sentiment was a substantial or motivating factor in the challenged employer
decision. The burden of persuasion then shifts to the employer to prove its affirmative defense
that it would have taken the same action even if the employee had not engaged in protected 20
activity.
To establish the initial burden under Wright Line, the General Counsel must establish
four elements by a preponderance of the evidence. First, the General Counsel must show activity
exists that is protected by the Act. Second, the General Counsel must prove that the respondent 25
was aware that the employee in question engaged in such protected activity. Third, the General
Counsel must show that the alleged discriminatee suffered an adverse employment action.
Fourth, the General Counsel must establish a motivational link, or nexus, between the
employee’s protected activity and the adverse employment action. American Gardens Mgmt.
Co., 338 NLRB 644, 645 (2002), citing Tracker Marine, L.L.C., 337 NLRB 664, 646 (2002). 30
I find that the evidence supports finding that the General Counsel has been made a prima
facie showing sufficient to show that Ruth Curry’s protected conduct was a “motivating factor”
in the employer’s decision to issue her discipline in the form of a written “verbal” warning.
First, it is undisputed that Ruth Curry was identified by Respondent as someone who was 35
engaged in union and protected activities by discussing terms and conditions of employment
with other employees (or “spreading rumors,” as the Respondent characterized it), such as the
fact that the Respondent wanted to rid itself of the Union and the older employees. Second, it is
also undisputed that the Respondent was aware that she was engaged in such protected activities.
Third, Ruth Curry suffered an adverse employment action when she was issued discipline. 40
Fourth, the evidence establishes a nexus between her protected activities and the discipline. In
this regard, the record reveals Respondent’s animus through its threats and other 8(a)(1)
violations committed in the investigatory meetings, and in the close timing of the discipline with
her engagement in the protected activities.
45
Thus, based on the above, the General Counsel has made a prima facie showing that Ruth
Curry was discharged for engaging in union activities. On such a showing, the burden shifts to
JD–40–14
14
the Respondent to demonstrate that the same action would have taken place even in the absence
of the protected conduct. It is apparent that the respondent does not sustain its burden by simply
showing that a legitimate reason for the action existed. As the Board stated in Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984):
5
We have held that the burden shifted to an employer under Wright Line is one of
persuasion, and affirmative defense in which the employer must demonstrate by a
preponderance of the evidence that the same action would have taken place even
in the absence of the protected conduct. If an employer fails to satisfy its burden
of persuasion, the General Counsel’s prima facie case stands unrefuted and a 10
violation of the Act may be found. See Wright Line, supra at fn. 11; Bronco Wine
Co., 265 NLRB 53 (1981); Rikal West, Inc., 266 NLRB 551 (1983); Cf.
Magnesium Casting Co., 259 NLRB 419 (1981).
Therefore, in rebutting the General Counsel’s prima facie showing that the protected 15
conduct was a “motivating factor” in the Respondent’s decision, Respondent cannot simply
present a legitimate reason for its action but must persuade, by a preponderance of the evidence,
that the same action would have taken place even in the absence of the protected conduct.
I find that the evidence supports finding that the Respondent failed to present a 20
nondiscriminatory justification for having disciplined Ruth Curry. While the Respondent argues
in its brief that “Ruth Curry bullied her coworkers and spread malicious gossip about their
personal lives,”18 there is no credible evidence of such facts in this record. Even if one were to
accept Respondent’s purported justification for the discipline was that she was being rude and
bullying her fellow coworkers or discussing rumors that were not pertaining to terms and 25
conditions of employment, those allegations are pretextual and are not supported by the record.
In this regard, even though the Respondent suspected other employees of “spreading rumors,”
Ruth Curry was the employee who heard and allegedly spread Ijomah’s statement that
Respondent wanted to rid itself of the Union and the older employees, and she was the only
employee disciplined for that alleged infraction. 30
In addition, the record does not contain credible evidence that Ruth Curry committed any
infractions of the Respondent’s rules with regard to the way she was treating other employees,
and there is no evidence that the Respondent previously warned or disciplined her for such
alleged conduct. There is also no evidence that the Respondent, if it believed she was 35
committing infractions with regard to her interactions with other employees, ever suggested or
directed her to seek counseling for such problems, or directed her to attend any employee
assistance type training with regard to those alleged infractions. Thus, I find the Respondent’s
asserted reasons are mere pretext for its unlawful motivation. Accordingly, I find that the
Respondent has failed to present any legitimate nondiscriminatory reason for disciplining Ruth 40
Curry, and that the Respondent also violated Section 8(a)(3) and (1) of the Act under the Board’s
dual motive Wright Line analysis.19

18 R. br., at p. 67.
19 The Respondent argues in its brief (pp. 44–45) that even if it violated the Act with regard to its
actions toward Ruth Curry in the May meeting, it somehow “cured” those violations by its actions in the
subsequent June 5/6 meeting. Contrary to the Respondent’s assertions, I find that the Respondent
JD–40–14
15
6. The alleged threat and Weingarten violations in the May meeting and the June 5–6
meeting
The General Counsel asserts in complaint paragraphs 5(h) and (o) that the Respondent’s 5
statements to Ruth Curry in both the May and June 5/6 meetings, that she did not need union
representation constituted threats in violation of Section 8(a)(1) of the Act. In this connection,
the record reveals that Ruth Curry asked if there would be a union representative at each of the
meetings, and Maidl informed her that she did not need one. Contrary to the General Counsel’s
assertion, I do not find this statement to be threatening or coercive. Instead, I find that Maidl’s 10
statement that she did not need a union representative was simply an expression (albeit
incorrectly) of his opinion on this matter, and it did not contain any repercussions or threats of
reprisals. Such a statement is protected by Section 8(c) of the Act, and I will dismiss this
allegation.
15
However, in a separate issue, the General Counsel asserts in its brief, without specifically
alleging in the complaint, that the Respondent allegedly committed a Weingarten violation under
Section 8(a)(1) of the Act.20 In support of this contention, the General Counsel asserts that in the
meetings, Ruth Curry “made a valid request for a Union representative in the context of the two
meetings which and did, in fact, result in discipline.” Despite this assertion, the General Counsel 20
did not move at trial to amend the complaint to include such an allegation.
In regard to this alleged Weingarten violation, the first question before me is whether the
two meetings were investigatory in nature. In both meetings, Ruth Curry was confronted with
the allegation that, contrary to the Respondent’s policies or rules, she was spreading rumors. In 25
both meetings, the Respondent’s managers proceeded to question her as to whether she had been
one of the employees responsible for spreading the rumors, whether other employees were
spreading such rumors, and she was asked/directed to identify those employees who were
spreading the rumors. These meetings were investigatory in nature and it was reasonable for
Ruth Curry to believe that discipline may result. This fact is evident by Ruth Curry’s question to 30
management as to whether a union representative was going to be present at the meetings.
Ruth Curry did not specifically demand or insist that a union representative be present at
the above-mentioned meetings, but she did ask if a union representative was going to be present.
Thus, the second issue I must address is whether Ruth Curry’s question to management is 35
sufficient to be construed as a request for union representation. I find that it is. I note that the
Board has found that in some circumstances employees have sufficiently requested that a union
representative be present without specifically “asking” the employer for such a representative. In
Southwestern Bell Telephone Co., 227 NLRB 1223 (1977), the Board held that when an
employee told his supervisor in the investigatory meeting “I would like to have someone there 40
that could explain to me what was happening,” it was sufficient to invoke the Weingarten right to

committed additional unfair labor practice violations in the June meeting, and I specifically find there is
no credible evidence to show, or even suggest, that the Respondent cured any of the unfair labor practice
violations.
20 In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court held that an employer violates
Sec.8(a)(1) of the Act when it denies an employee’s request that a union representative be present at an
interview which the employee reasonably believes may result in discipline.
JD–40–14
16
representation. In addition, in General Die Casters, Inc., 358 NLRB No. 85, slip op. at p. 1, and
7–9 (2012), the Board found that when an employee twice asked the examining manager whether
he needed “to get somebody else in here,” and the manager responded, “no,” that was sufficient
to request representation under Weingarten.
5
Based on the above, I find that Ruth Curry’s question to Respondent’s managers was
sufficient to invoke her Weingarten right to representation in the meetings, and that the
Respondent failed to provide such representation. Accordingly, I find that the Respondent
violated Section 8(a)(1) of the Act by failing to provide Ruth Curry with a union representative
pursuant to her Weingarten rights, in both the May and June 5–6 investigatory meetings.2110
C. The Alleged Unfair Labor Practices Concerning Cathi Curry and Her
Discharge/Constructive Discharge
1. In early 2013, Respondent allegedly threatened an employee by stating that Respondent 15
did not want Ager to participate in the labor-management committee.
The General Counsel alleges in complaint paragraph 5(a) that Respondent in or about
mid-February 2013, by Ijomah, threatened an employee by telling the employee that Respondent
did not want an employee to be a member of the labor-management committee. The General 20
Counsel relies on Cathi Curry’s testimony that, when she informed Ijomah that Lee Ann Ager
was going to join the labor-management committee, Ijomah stated “I hope you can keep this
between you and me, but I just don’t think Lee Ann is the ideal person for the position.”
According to Cathi Curry, Ijomah then went on to explain that she believed Ager would not be
an ideal fit because she thought Ager “. . . would not keep stuff to herself, the things that went on 25
behind closed doors.”22 There is no assertion, nor evidence, that Ijomah stated or insisted that
Ager could not join the committee. In addition, there is no evidence that Ijomah made any
threats or promises of reprisals if the Union elected to have Ager become a member of the labor-
management committee.
30
The General Counsel, citing Whitesell Corp., 357 NLRB No. 97, slip op. at 25 (2011),
argues that Ijomah’s statement constituted a threat to Ager, through Cathi Curry, that the
Respondent did not want her to become a member of the labor-management committee. The

21 I find that the record supports a Weingarten violation despite the fact that it was not alleged in the
complaint because it is sufficiently related to the complaint allegation that the Respondent violated Sec.
8(a)(1) of the Act by Maidl’s threat that Ruth Curry did not need union representation. In addition, the
circumstances surrounding the alleged denial of a union representative was litigated, and the Respondent
addressed it in its brief. See Irving Ready-Mix, Inc., 357 NLRB No. 105, slip op. at 23 fn. 13 (2011)
(where the Board found that unalleged statements by a respondent manager violated Section 8(a)(1) of the
Act where the complaint alleged similar violations). See also, Hi-Tech Cable Corp., 318 NLRB 280
(1995), enfd in part 128 F.3d 271 (5th Cir. 1997) (the Board found that unalleged statements by two
respondent managers violated Section 8(a)(1) of the Act where the complaint alleged other 8(a)(1)
violations, including an interrogation by one of the same managers in the same conversation, and the
respondent did not object to the testimony about the statements, cross-examined the witnesses and
presented its own witnesses to testify about them, and addressed their legality in post-hearing briefs).
22 Tr. p. 565.
JD–40–14
17
Respondent, on the other hand, argues that Ijomah never said that Ager could not join the
committee, and she never made any threats with regard to Ager joining the committee.
I agree with the Respondent and I find no merit to this allegation. First, I do not find that
Ijomah’s statement was threatening. It was an expression of her view or opinion that does not 5
contain a threat of reprisal or force or promise of benefit, and it is therefore protected by Section
8(c) of the Act. Second, I find that the case relied upon by the General Counsel is
distinguishable from the facts of the instant case. In this regard, Whitesell involved the
respondent’s lead negotiators attempts to force the union negotiator from the union’s lead
negotiator position by issuing purported discipline, stating that the lead negotiator was suspended 10
from the negotiations, and attempting to enforce that exclusion by pursuing a grievance against
that person. Id. at slip op. 25. In Whitesell, the Board noted that each party has the right to select
its representative for bargaining and negotiations, and attempts to prohibit the union from
selecting their bargaining representative is unlawful, unless there is persuasive evidence that the
presence of the particular individual would create ill will and make good-faith bargaining 15
impossible. The instant case is distinguishable in that the labor-management committee
consisted of members from both management and the Union who worked together to resolve
issues that arose between the parties. The labor-management committee was not chosen to
engage in bargaining or negotiate a collective-bargaining agreement. In addition, the facts of the
instant case do not involve bargaining representatives or 8(a)(5) violations. In addition, even if 20
the instant case involved a statement made in the context of collective bargaining, Ijomah did not
take steps to remove or prevent Ager from joining the labor-management committee, such as the
lead negotiator did in the Whitesell case.
Thus, I find that the Respondent did not violate the Act as alleged in complaint paragraph 25
5(a), and I will dismiss that allegation.
2. In an email dated March 12, 2013, Maidl allegedly prohibited employees from discussing
employment matters with other employees and threatened that such matters are
confidential.30
The General Counsel alleges in complaint paragraph 5(b) that on or about March 12,
2013, Maidl, in an email, prohibited employees from discussing employment matters with other
employees and threatened that such matters are confidential. In an email dated March 9, 2013,
Cathi Curry reported to Maidl that on March 8, laundry employee Jackie Cataract “just left work 35
. . . and didn’t tell anyone she left.” Cathi Curry goes on to ask Maidl, “How can she just leave
her job . . . [w]ithout notifying anyone. . . isn’t [that] job abandonment?” In an email response
dated March 12, Maidl informs Cathi Curry that:
The situation with Jackie has and will be addressed. And will not be discussed 40
with other staff. It is a confidential matter, and she did talk to her supervisor
before she left on Friday. I spoke to (co-workers) Amanda and Jenna about this
and they said they understood. (GC Exh. 6).
The General Counsel, citing Hyundai American Shipping Agency, Inc., 357 NLRB No. 80, slip 45
op. at 1, 15 (2011), argues that instructing employees not to talk about coworkers is unlawful if
not justified by legitimate employer confidentiality concerns.
JD–40–14
18
In Hyundai American Shipping Agency, supra, the Board found that a respondent violated
Section 8(a)(1) of the Act by promulgating, maintaining, or enforcing an oral rule prohibiting
employees from discussing with other persons any matters under investigation by its human
resources department. In that case, the Board adopted the administrative law judge’s finding that 5
the respondent had failed to demonstrate that a legitimate and substantial business justification
existed for a rule that adversely impacts on the employees’ Section 7 rights. Id. at slip op. 15.
In the instant case, unlike the facts in the Hyundai case, the Respondent is not
promulgating or maintaining any rules with regard to whether employees have a right to discuss 10
discipline or disciplinary investigations involving fellow employees. In addition, there is no
evidence that Jackie Cataract’s leaving work was the subject of discipline or an investigation.
Maidl’s email was simply informing Cathi Curry that Cataract had received her supervisor’s
permission to leave her laundry job for a reason that was confidential in nature, and that it was
not going to be discussed. The General Counsel failed to identify any company rule, either 15
written or oral, in which the Respondent precludes employees from discussing discipline or
disciplinary investigations, and I do not find that this email constitutes the promulgation or
maintenance of such a rule. See Caesar’s Palace, 336 NLRB 271 (2001) (the Board found that
employees have a Section 7 right to discuss discipline or disciplinary investigations involving
fellow employees). Thus, the facts of Hyundai are distinguishable, and I do not find that 20
Respondent violated the Act as alleged in complaint paragraph 5(b). Accordingly, I will dismiss
that allegation.
3. The Respondent’s discharge/constructive discharge of Cathi Curry
25
a. The relevant provisions in the collective-bargaining agreement and the Respondent’s
employee handbook and policies
The collective-bargaining agreement at article 21 states that “employees may not be
suspended or discharged except for just cause, consistent with Grace Healthcare’s policy and 30
procedures including but not limited to the attendance policy.” (GC Exh. 2, p. 16.) The
Respondent’s employee handbook contains a section entitled “Employee Rules and Standards of
Conduct.” It lists as examples, violations for standards of conduct that are grounds for
disciplinary action, up to and including discharge, such as: “leaving the premises during
working hours without permission,” “stopping work without authorization before time specified 35
of such purposes,” and “absence without notification.” (GC Exh. 3, pp. 25–26.) In addition, the
Respondent has an attendance policy which states in relevant part that “[e]mployees who fail to
call-in or report for work as scheduled (no call/no show), unless medically incapacitated, will be
considered to have voluntarily resigned.” (GC Exh. 4.)
40
b. The facts pertaining to the April 4, 2013 discharge/constructive discharge
On April 3, 2013, Cathi Curry was scheduled to work the morning shift commencing at 6
a.m. On April 2, however, she switched shifts with laundry employee Jenna Steck, resulting in a
change in her shift to 3 p.m. on April 3. The record shows that at approximately 11 a.m., on 45
April 3, Curry called Koller and told him that she would work from 3 to 7 p.m. that day, and
Steck would cover her 6 a.m. to 2:30 p.m. shift. Koller was fine with the switch and he told
JD–40–14
19
Cathi Curry he already knew about the switch because Steck was currently at the facility
working that shift.
Curry testified that just before her 3 p.m. shift was to begin, she called Koller and told
him she would not be able to come in until after 7 p.m. She testified that Koller was fine with 5
the change. However, she testified that Koller called her back around 4:30 p.m. that day, and
said he was wondering why she was not working at 3 p.m. Curry testified that she told him that
they already had that conversation that she could not come in until 7 p.m., and that he said it was
fine. She testified that Koller then told her not to bother coming in because there was no work to
do, and then he hung up. According to Curry, at around 6 p.m., Koller again called her and told 10
her not to come in to work because there was no work to do. According to Curry, she told Koller
that those were her hours and he had already approved it, and she was going to come in to work,
and he then hung up on her.23
The record shows that despite Koller’s repeated directions to Curry not to come into work 15
that evening, she nevertheless went to work around 8 p.m. and worked 2½ hours, punching out at
10:30 p.m. Curry testified there was no one else working with her at that time. According to
Curry, she went to work despite Koller’s instructions not to, because she felt he was denying her
hours.
20
When Cathi Curry began her 6:30 a.m. shift on April 4, she spoke with Koller at around 8
a.m. when he arrived at work, volunteering that she had worked the night before. According to
Curry, Koller became red in the face and yelled at her, saying that she disobeyed him when he
told her not to come in. According to Curry, she cried and said “I can’t do this,” and walked out
of the laundry room. Cathi Curry ran into Ruth Curry on her way out of the laundry room, and 25
informed her mother that Koller had yelled at her. Ruth Curry told Cathi that she should call
Maidl, and that she should not leave the facility. Cathi Curry then saw Patty Miller and told her
to tell Maidl that she wanted to talk to him.
Koller’s account of the April 4 incident was that he merely asked Curry whether she had 30
worked, without raising his voice, and that she then left work without notifying anyone and
without permission.
The record shows that Cathi Curry punched out at 8:17 a.m. and left the facility without
notifying or seeking the approval of management. She asserted that she tried to call Maidl and 35
Neff, but could not reach either one. Even though Cathi Curry testified that she never intended
to quit her job, and that she never told any management official that she had quit, she did leave a
voicemail message for Neff at 8:23 a.m., after she left the facility, in which she told him that she
had quit her employment and could not put up with Koller’s harassment anymore. Specifically,
that message stated in relevant part:40
Hi Curt this is Cathi from Grace Healthcare. I quit. I walked out. I don’t care. I
don’t care about my job anymore. I’m done with Randy treating me like shit.
Everything is just at the same thing. And I just, I’m done. I know, I know I’m
not supposed to walk out but I can’t do it anymore.45

23 Koller did not refute Cathi Curry’s testimony in this regard.
JD–40–14
20
Cathi Curry went on to state in that message that she would be filing EEOC charges
against the Respondent.24 The record shows that when Neff listened to Curry’s voicemail, he
called Curry and informed her that he was going to the facility to speak to Maidl, and he directed
Curry to return to work and contact Maidl. However, Curry testified that she did not want to 5
return to work, and instead she drove home.
The record reveals that when Maidl arrived at the facility that morning after Curry left,
Judy Hammer, the human resource director, informed him that Cathi Curry left the facility.
When Maidl asked Koller what happened, Koller told him that he asked Cathi Curry why she 10
worked the previous day, and then Curry walked off the job. Even though Cathi Curry testified
that Koller became upset and yelled at her about the fact that she disobeyed his order not to come
in and work, Koller denied raising his voice or confronting Curry in any other way. With regard
to the conflict in testimony here, I do not credit Koller’s denial that he raised his voice with Cathi
Curry. I found Koller to be, in general, an unconvincing witness, who was frequently unsure and 15
hesitant in his testimony. On this particular issue, his assertion that he did not raise his voice at
Cathi Curry is simply implausible, as it is reasonable to expect that he would be upset after he
told her several times not to come into work, and she blatantly disobeyed him. Thus, I find that
he raised his voice and yelled at Cathi Curry when stating that she disobeyed him when he told
her not to come in. 20
Curry testified that once she arrived home, she attempted to call Maidl but was unable to
get in touch with him. Neff then called and spoke to Curry, informing her that he had spoken to
Maidl, and that Maidl told him that Curry had abandoned her job and was being terminated.
Cathi Curry contends that she sent two emails to Maidl that morning. It is undisputed that she 25
sent an email to Maidl at 10:55 a.m., stating: “Yes I did walk out today but only because Randy
was yelling at me.” Maidl responded to Cathi Curry with an email at 11:46 a.m. that day, where
he told her that he wanted to schedule a time for her and Neff to come in and talk to him.
Cathi Curry also testified that she sent Maidl an email before she sent the email at 10:55 30
a.m., in which she told Maidl that she did not quit or leave her job. This alleged email is
disputed however, as it was never produced at trial by the General Counsel, the Union, or the
Respondent. Cathi Curry testified that she sent the email but she could not produce it because
her former boyfriend allegedly out of spite, deleted the email from her personal email account.
35
I do not credit Cathi Curry’s assertion that she sent an earlier email to Maidl stating that
she did not quit or leave her job, because I find it strains credulity to believe that her ex-
boyfriend selectively chose to delete that email from among all her emails in that email chain. In
addition, there is no evidence that the alleged email was ever received by Maidl.25 Most

24 This is apparently in reference to Cathy Curry’s allegation that Koller would sometimes refer to
her as “the Curry girl,” and she believed that was discriminatory.
25 The Respondent argues in its brief that there is no evidence that it ever received this disputed email
because it was never sent by Cathi Curry. The General Counsel argues that the Respondent refused to
produce the email pursuant to the subpoenaed documents. However, the General Counsel never made
that assertion or argument at trial, and it never requested that the hearing be postponed in order for it to
seek enforcement of that item of the subpoena in the Federal District Court. I find there is no evidence
that the Respondent purposefully withheld this contested email, and, in agreement with the Respondent, I
JD–40–14
21
importantly, however, I do not credit her assertion that she sent the email because it is
unsupported by the record, it contradicts the evidence of her statements and actions at that
particular time, and it is simply implausible. In this connection, the evidence undisputedly
shows that regardless of the words used to characterize her actions (i.e. “quit,” “walked off the
job,” “abandoned her job,” or “voluntarily resigned her job”) she did in fact leave her job that 5
morning without providing notice to or seeking the approval of management. Regardless of how
it is characterized, she left her job even after others in the facility, such as her mother, told her
not to leave, and even after Neff told her to return to her job. Such undisputed action is
inconsistent with her assertion that she sent the disputed email to Maidl stating that she did not
quit or leave her job. It is also inconsistent with her 10:55 a.m. email to Maidl, where she stated: 10
“Yes I did walk out today.” Furthermore, the alleged disputed email is belied by the fact that
shortly after she walked off the job, she left a voicemail message for Neff in which she told him
that she had quit her employment.
Thus, the credible evidence shows that Koller yelled at Cathi Curry when he told her not 15
to come into work and she disobeyed him, and she then walked off the job and quit because she
allegedly could not tolerate the harassment. Even though she may have subsequently changed
her mind about quitting, that does not change the undisputed facts above which establish that she
did in fact quit and leave her job.
20
Koller called Cathi Curry the following day and informed her that she had been taken off
the schedule until the meeting scheduled for April 9, 2013. A grievance was filed alleging that
Cathi Curry’s termination was a violation of the contract, and the parties met on April 9, 2013, at
the Respondent’s facility to discuss her grievance. Cathi Curry testified that she and Neff
attended the meeting on behalf of the Union, and Maidl was present for the Respondent.26 The 25
reason given for Curry’s termination was her voluntary resignation. Curry testified that Maidl
wanted her to meet with Koller and discuss what happened, but Curry refused, and the meeting
ended.
A mediation of the grievance was scheduled for May 1, 2013. Sometime between the 30
April 9 meeting and the May 1 mediation, Cathi Curry applied for unemployment benefits,
which were opposed by the Respondent. On April 25, 2013, Maidl informed Respondent’s
contractor handling Curry’s unemployment, that Curry was terminated for walking off the job
and had voluntarily resigned under Respondent’s policies. In a later email that day, Maidl
responded further that Curry left the facility and did not contact anyone from the company to 35
explain why she walked off. Curry’s unemployment compensation was subsequently denied.
At the mediation for the grievance on May 1, 2013, Cathi Curry resigned her employment
in exchange for the Respondent’s agreement not to contest her unemployment.
40

further find that Respondent did not produce the alleged email because it did not exist.
26 Cathi Curry testified that Judith Hammer was also present at this meeting on the Respondent’s
behalf, but Neff testified that only Maidl was present at the meeting for the Respondent. Hammer
testified twice at the hearing and did not offer any testimony with regard to the April 9, 2013 meeting
concerning Cathi Curry’s discharge.
JD–40–14
22
c. The contentions of the parties
The General Counsel amended complaint paragraph 6(a) at the hearing to allege that
Respondent “harassed employee Cathi Curry and thereafter discharged and/or caused her
discharge on April 4, 2013,” in violation of Section 8(a)(3) and (1) of the Act. Thus, the General 5
Counsel amended the complaint to allege that Cathi Curry was either discharged or
constructively discharged for unlawful reasons.27 The Respondent alleges that Cathi Curry
“quit” and abandoned her job, and therefore was properly discharged under the Respondent’s
rules and regulations. As mentioned above, I find that she quit and left her job, and made
statements to the effect that she had quit. Based on these facts, I will first analyze this allegation 10
as a constructive discharge.
d. The constructive discharge analysis
The Board has found that a traditional constructive discharge occurs when an employee 15
quits because the employer has deliberately made the working conditions unbearable and it is
proven that: (1) the burden imposed upon the employee must cause, and be intended to cause, a
change in the employee’s working conditions so difficult or unpleasant that the employee is
forced to resign, and (2) the burden was imposed because of the employee’s union activities.
Grocers Supply Co., 294 NLRB 438, 439 (1989); and Crystal Princeton Refining Co., 222 20
NLRB 1068, 1069 (1976); see also KRI Constructors, 290 NLRB 802, 813–814 (1988).
In the instant case, I find that the evidence is insufficient to satisfy both elements of this
two part test. In regard to the first element, I find that Koller’s yelling at Cathi Curry on April 4
was insufficient to constitute conduct that caused, and was intended to cause, a change in her 25
working conditions that was so difficult or unpleasant as to force her to resign. The evidence
supports finding that he yelled at her because she came into work when he earlier instructed her
twice not to come into work. The evidence does not show that his raised voice was accompanied
by any threats or acts of violence toward Cathi Curry.
30
In addition, the record does not support the complaint allegation that from August 2012
through April 4, 2013, Koller “harassed” Cathi Curry. Even though there may have been other
occasions when he raised his voice, the undisputed record shows that for the most part, Cathi
Curry worked closely with Koller and actually assisted him in scheduling the laundry
employees’ work. The record also shows that for most of the time period alleged, Koller left 35
Cathi and Ruth Curry alone to run the laundry department. In addition, based on Ruth Curry’s
credible testimony, Koller was a nice person and actually came to Cathi Curry’s aid during the
alleged period of “harassment,” when Ruth Curry believed her daughter was in some form of
danger, and Koller drove to her apartment to assist her. Furthermore, contrary to the alleged
period of harassment, the record shows that as a union steward, Cathi Curry had a working 40
relationship with Koller whereby she brought concerns and complaints to him to be addressed.
The record shows that in an email to Maidl dated February 27, 2013, Cathi Curry informed

27 As mentioned above, in its brief the General Counsel abandoned the constructive discharge theory
and argues only that Cathi Curry was discharged. I nevertheless find the constructive discharge analysis
is appropriate for this case considering that I have found that Cathi Curry left the job and quit her
employment.
JD–40–14
23
Maidl: “I love my job. . .,” which would be inconsistent with her assertion that she was harassed
by Koller at work. Thus, I find that the alleged harassment is not supported by the record, and
that Koller’s yelling at Cathi Curry was insufficient to force her to resign.

With regard to the second element of the test, the evidence does not show that Koller’s 5
yelling at Cathi Curry was because of, or based upon, her union activities. As mentioned above,
he yelled at her because after being specifically directed twice not to come into work the night
before, she defied his directives and worked. There is no evidence that Koller’s yelling at her
had anything to do with her union steward position or her union activities. Therefore, I find that
the General Counsel has failed to prove that Cathi Curry was constructively discharged in 10
violation of the Act.
e. The Wright Line discharge analysis
Even assuming that Cathi Curry did not quit her employment on April 4, but was instead 15
discharged, I find that a Wright Line, analysis reveals that there is insufficient evidence to show
that Respondent discharge her in violation of the Act.
As mentioned above, the Board set forth in Wright Line its causation test in cases alleging
violations of Section 8(a)(3) of the Act turning on employer motivation. First, the General 20
Counsel must make a prima facie showing sufficient to support the inference that protected
conduct was a “motivating factor” in the employer’s decision. On such a showing, the burden
shifts to the employer to demonstrate that it would have taken the same action even if the
employee had not engaged in protected activity.
25
I find that the evidence supports a finding that the General Counsel has made a prima
facie showing sufficient to show that Cathi Curry’s protected conduct was a “motivating factor”
in the employer’s decision to discharge her. First, it is undisputed that Cathi Curry was engaged
in union activities as the union steward, and filed numerous grievances for the Union on the
behalf of the unit employees. Second, it is equally undisputed that the Respondent had 30
knowledge of Cathi Curry’s union and protected activities. Third, her discharge or constructive
discharge constitutes an adverse employment action. Fourth, the record contains ample evidence
of a causal connection between her protected activities and her discharge/construction discharge.
In that regard, Respondent’s union animus is reflected in the numerous 8(a)(1) violations, and in
particular, its statement that it wanted to rid the Respondent of the Union and the older 35
employees. In addition, even assuming the record did not contain direct evidence of
Respondent’s unlawful motivation, the timing of Curry’s discharge immediately after engaging
in union activities such as filing grievances and handling complaints from employees regarding
working conditions, is suspect.
40
Thus, based on the above, the General Counsel has made a prima facie showing that
Cathi Curry was discharged for engaging in union activities. On such a showing, the burden
shifts to the Respondent to demonstrate that the same action would have taken place even in the
absence of the protected conduct. In rebutting the General Counsel’s prima facie showing,
Respondent cannot simply present a legitimate reason for its action, but must persuade, by a 45
preponderance of the evidence, that the same action would have taken place even in the absence
of the protected conduct.
JD–40–14
24
The General Counsel submits that Respondent has failed to show, by a preponderance of
the evidence, that Cathi Curry would have been discharged in the absence of her union activities,
arguing that she never informed any managers that she had quit her employment; Respondent’s
attendance policy concerning “voluntary resignation” technically refers to those who are 5
considered “no call/no show” for their shifts, which is not applicable to Cathi Curry’s situation;
Respondent offered “shifting justifications” for its decision to terminate Cathi Curry; and that
disparate treatment is shown by the fact that numerous employees had left their shifts early
without being terminated.
10
The Respondent, on the other hand, submits that employees could be disciplined or
terminated for walking off the job without notice or approval, and that policy was understood by
the employees and Union, and that the Respondent has applied that principle or rule in a
consistent manner pursuant to which it previously discharged two employees who engaged in
similar conduct. 15
In analyzing this complaint allegation, I note that the evidence shows, and I have found,
that Cathi Curry quit her employment and walked off the job without permission. Despite the
General Counsel’s assertion that she never told any managers that she had quit, she informed
Maidl in the email sent at 10:55 a.m. that: “Yes I did walk out today . . . .” I find that is 20
sufficient to indicate that Cathi Curry notified the Respondent that she walked off the job and
quit. Thus, I find no merit to the General Counsel’s argument on this point.
With regard to the General Counsel’s argument that Respondent’s attendance policy
concerning “voluntary resignation” technically refers to those who are considered “no call/no 25
show” for their shifts, which is not applicable to Cathi Curry’s situation, I note that the
Respondent’s employee handbook, as mentioned above, lists as an example of violations of
standards of conduct that are grounds for disciplinary action, up to and including discharge, as
“leaving the premises during working hours without permission.” (GC Exh. 3, p. 25.) The
record also reveals that the Respondent, Union, and the employees appear to have all understood30
that regardless of what wordage is used to characterized walking off or leaving the job during the
shift without permission, whether it is called “voluntary resignation,” “quit,” “job abandonment,”
or “walking off the job,” it is a serious offense that is subject to discipline, including discharge.
The record shows that when employee Erin Stallons was discharged for abandoning her 35
job in October 2012, Neff and Cathi Curry discussed whether to bring a grievance on her behalf.
In an email dated October 8, 2012, Neff explained to Cathi Curry that she should “not let people
walk off the job without knowing they can be fired.” In response, Cathi Curry wrote that she did
not believe a grievance should be filed on Stallons behalf, and she noted that Ijomah was not
wrong to discharge Stallons. Cathi Curry also testified at the hearing that she received training 40
from the Union on, and was familiar with, the “work now/grieve later” doctrine, and that it
informed her opinion on the Stallons discharge. This evidence shows that the Respondent had a
policy for discharging employees for resigning, walking off the job, or job abandonment, the
employees and parties were aware that it existed, and that it was enforced by the Respondent.
Most importantly however, this evidence is significant because it shows that Cathi Curry 45
subsequently engaged in the same conduct that Stallons engaged in, and she believed that such
conduct constituted sufficient grounds for discharge.
JD–40–14
25
The General Counsel also alleges that the discharge based on the job abandonment
infraction, was applicable only to those employees like the CNAs who are involved in direct
patient care responsibilities, and not to those employees in other positions where the impact of
walking off the job would not directly impact patient care at the facility. That assertion is also 5
without merit, as the record shows that the issue came up in an incident where Cathi Curry
believed that fellow laundry employee Jackie Cataract left her shift early without approval, and
thereby walked off the job. In an email dated March 9, 2013, Cathi Curry reported to Maidl that
on March 8, laundry employee Jackie Cataract “just left work . . . and didn’t tell anyone she
left.” Cathi Curry goes on to ask Maidl, “How can she just leave her job . . . [w]ithout notifying 10
anyone. . . isn’t [that] job abandonment?” (GC Exh. 6.) Maidl responded to the email on March
12, stating that the situation would be addressed, and that she did talk to her supervisor before
she left work that day. Curry also requested that Neff file a grievance against Cataract, but Neff
refused to file a grievance against another union member.
15
I find this evidence significant in several respects. First, it is important because it shows
that leaving the job is an infraction that is applicable to all employees. I note that in Maidl’s
response, he does not say or allege that since Cataract is a laundry employee, she is immune
from the job abandonment infraction. Instead, he responded that Cataract did in fact receive
permission from her supervisor to leave the job early. Second, this evidence reveals that the 20
Union, and more importantly Cathi Curry, were aware that leaving the job constituted an
infraction of the Respondent’s rules and policies, and that it was important enough to enforce on
those employees in her own department, even to the extent that Cathi Curry wanted to file a
grievance against Cataract. Based on this undisputed evidence, I find no merit to the General
Counsel’s argument in this regard. 25
With regard to the allegation that Respondent offered “shifting justifications” for its
decision to terminate Cathi Curry, the General Counsel correctly notes that at the hearing the
Respondent contended that it was Cathi Curry’s decision to leave work on April 4 that lead to
her discharge, and nothing else. The General Counsel states that such a justification was 30
presented by Respondent to both the Union during Cathi Curry’s grievance processing, and to
the State of Wisconsin during her unemployment compensation proceeding. However, the
General Counsel points out that the asserted justification is inconsistent with that offered by
Koller at the hearing, where he testified that, when the final decision was made to terminate
Cathi Curry, the Respondent relied on other reasons besides leaving the job or voluntary 35
resignation. In this connection, the General Counsel correctly points out that Koller testified that
he relied on additional factors such as insubordination for working when he instructed her not to,
and for yelling back at him when he was yelling at her on April 4 before she left work.
Even though the General Counsel is correct that Koller offered additional reasons for 40
discharging Cathi Curry, which could be inferred as shifting reasons for the discharge, I
nevertheless provide little weight to this fact because I find that Maidl, the person who made the
decision to discharge Cathy Curry, has consistently asserted that she was discharged solely
because she left the job. As the General Counsel points out, Maidl, on behalf of the Respondent,
was consistent with that assertion in both his statements to the Union throughout the grievance 45
process and in the information he provided the State in Cathy Curry’s unemployment case.
JD–40–14
26
In addition, I note that even though Koller’s assertions are attributable to the Respondent
as one of its managers, the evidence does not reveal that he made the decision to discharge Cathi
Curry. The evidence instead shows that the Respondent’s decision to discharge Cathy Curry was
made by Maidl. The emails in the record reflect that Maidl solicited Koller’s side of the story
with regard to the April 4 incident, however, Maidl made the decision to discharge Cathi Curry, 5
and he communicated that to Respondent’s corporate human resources manager. It is a safe bet
that Koller not only agreed with the decision to discharge Cathi Curry, he most likely wanted her
discharged for also being insubordinate and yelling back at him. Furthermore, based on the
record and Koller’s demeanor at the hearing, I would put little weight in assertions of additional
reasons Cathi Curry was discharged. As I mentioned earlier, I found Koller to be, in general, an 10
unconvincing and incredible witness, who had a shaky grasp of the facts, was hesitant in his
testimony, and was frequently unsure of his answers. His testimony was at times inconsistent
and implausible, such as in his assertion that he did not raise his voice to Cathi Curry when she
blatantly disobeyed him and came into work. In that regard, I agreed with the General Counsel’s
assertion that his testimony should be given little, if any, weight. 15
Based on the above, I find that the evidence does not show that the Respondent presented
inconsistent or shifting reasons for Cathi Curry’s discharge.
Finally, the General Counsel argues that disparate treatment is shown by the fact that 20
numerous employees had left their shifts early without being terminated. On the other hand, the
Respondent argues that it has discharged two other employees who walked off their jobs without
permission, and that the examples of other employees who left their jobs without being
terminated were distinguishable from Cathi Curry’s case. For the reasons set forth below, I
agree with the Respondent and find no merit to the General Counsel’s argument on this point.25
The Respondent presented Maidl’s testimony that every employee who abandoned their
job since he has been the administrator of the facility, has been discharged. In that regard, the
evidence reveals that Erinn Stallons was discharge on October 5, 2012, for walking off the job
after being mandated to stay. (GC Exh. 35.) The Respondent also terminated employee Natasha 30
Johnson on May 1, 2012, after she walked off the job with no warning. (GC Exh. 37.)28 Thus,
the evidence shows that employees who engaged in the same conduct as Cathi Curry were also
discharged by the Respondent.29
The General Counsel, however, submitted evidence from employee personnel files 35
regarding the way Respondent responded to “no call/no show” situations. (GC Exh. 34(a)-(d).)
The General Counsel’s apparent theory is that a no call/no show is as bad as job abandonment
and that Respondent should have discharged each of those employees, when in fact it had not
done so. As discussed below, however, the record reveals that Respondent offered credible

28 The record shows discipline for Johnson prior to the Respondent’s ownership of the facility and I
have therefore given no weight to those documents as they predate the Respondent’s management at the
facility.
29 The General Counsel argues in its brief that Stallons and Johnson situations were distinguishable
because they were involved in patient care, and Cathi Curry was not. I find no merit to this argument, as
neither the Union nor Respondent made that assertion when the question of Jackie Cataract’s alleged job
abandonment was brought up and discussed, and she was a laundry employee who was also not involved
in patient care.
JD–40–14
27
testimony showing that it investigated each occurrence and chose what appeared to be a
reasonable disciplinary response consistent with its applicable policies.
Specifically, with regard to employee Mirion Mispilon’s missed shift, Maidl investigated
the circumstances and found that she tried to call Koller and was unable to get through to him.5
(GC Exh. 34(c)) The record shows that Laura Nelson (GC Exh. 34(a)) and Allicia Harr (GC
Exh. 34(d)) were both disciplined for failing to attend meetings, and Ijomah did not consider
missing the meeting to constitute job abandonment, because the employees did not walk off their
shifts. Laurie Ferguson (GC Exh. 34(b)) failed to show up for a shift, but when Ijomah
investigated that situation, she testified that she learned that there had been a miscommunication 10
about which shift that employee was supposed to work, and the employee did not realize that she
was supposed to be at work. Under those circumstances, Ijomah did not consider Furguson to
have abandoned her job. Ijomah credibly testified that she requires employees who become ill at
work to leave work and go home early, and that all employees who leave work early are required
to get approval from her or a charge nurse if Ijomah is not at the facility.30 15
With regard to the alleged disparate treatment employees set forth in GC Exh. 33(a)-(m)),
Ijomah credibly testified that in each case, with the exception of two (Ana Clement and Christina
McKune), the employees received approval before leaving their shift early, and in none of the
cases had the employees left without approval. Those employees were: Leah Bowers (GC Exh. 20
33(a)) left early ill on February 1, 2012; Leisl Broeske (GC Exh. 33(b)) left early with flu
January 13, 2012; Ashley Huppert (GC Exh. 33(c)) left early ill January 20, 2012; Michelle
Weinzirl (GC Exh. 33(d)-(e)) left early ill January 12, 2012; and Heather Helmer (GC Exh. 33(f
)) left early ill August 22, 2012). Ijomah testified that she investigated the circumstances of
Clement (GC Exh. 33(l)) and McKune (GC Exh. 33(m)).31 Those employees left work early 25
without approval, but she did not consider them to have abandoned their jobs because they were
working the overnight shift together that was scheduled to end at 7:30 a.m., and they were both
scheduled to attend a CPR class later in the morning from 9 a.m. to 1 p.m. The investigation
revealed they both left without permission at around 7 a.m. after the day shift had clocked in at 6
a.m. and after both had finished their work. They apparently thought it was permissible to leave 30
because they were finished with their work, and had to come back to the facility at 9 a.m. for the
CPR class. Both employees returned at 9 a.m. Ijomah testified that, given those circumstances,
she determined that they had not abandoned their jobs.
Based on the credible and uncontroverted evidence presented on these employees, I find 35
that their situations were distinguishable from that of the employees who left their jobs and were
terminated.32 Therefore, the record does not show evidence of disparate treatment in regard to

30 Even though I found Ijomah’s testimony incredible on other allegations discussed more fully
above, I nevertheless found that she testified in a truthful and convincing manner with regard to the
investigations and determinations Respondent made concerning the employees who were allegedly
treated disparately in this allegation of the complaint.
31 Ijomah testified that before leaving sick, an employee is required to fill out a “sick slip” and put it
under Ijomah’s door, and if that is not done, the employee will receive some form of discipline, as was the
case with Clement and McKune, who were both issued personnel consultation forms.
32 The General Counsel argues in its brief that employees who allegedly missed meetings were not
discharged and that also constitutes evidence of disparate treatment by the Respondent. I disagree and
find that such circumstances are distinguishable from those who abandoned or left their shifts without
JD–40–14
28
Cathi Curry’s discharge. Accordingly, I find that the Respondent has carried its burden of
demonstrating by a preponderance of the evidence that the Respondent would have discharged
Cathi Curry even in the absence of her protected conduct, and it therefore did not violate Section
8(a)(3) and (1) of the Act by discharging her.
5
D. The Alleged Unfair Labor Practices Concerning Lee Ann Ager, Her Removal from the
Schedule, Suspension, Subsequent Reduction of the Suspension to a Written Discipline,
and Refusal to Change Shifts and work a holiday shift
1. Lee Ann Ager replaces Cathi Curry as union steward on May 27, 2013, and participates 10
as a steward in a grievance meeting on May 29, 2013
It is undisputed that Lee Ann Ager replaced Cathi Curry as union steward on May 27,
2013, and that the Respondent was aware of her union position. The General Counsel’s
witnesses credibly testified that when Ijomah was informed that Ager was going to be a union 15
steward, she appeared to frown and be disgruntled.33 The undisputed record also shows that
Ager participated as a union steward on May 29 for a grievance meeting concerning employee
Heather Raehsler’s termination, and that Ager was very vocal and aggressive in her
representation of Raehsler.
20
2. The May 30 paycheck incident where Ager is suspended and placed under investigation,
The record reveals that on May 30, 2013, Ager was unable to work, so she called Human
Resources Director July Hammer and informed Hammer that she would be unable to work due to
an injury, and asked if she and Raehsler could pick up their checks, or would they have to be 25
delivered by mail. Hammer, the Respondent’s person responsible for payroll and related
policies, informed Ager they could pick up the paychecks when they were available. That
afternoon, Ager went to the facility with Raehsler, but Raehsler did not go into the facility
because she was recently terminated. When Ager went to Hammer’s office, no one was there.
The paychecks were in envelopes with the employees’ names on them, on top of a filing cabinet. 30
Ager took her paycheck and Raehsler’s paycheck and left the facility. Ager credibly testified
that she called Hammer 15–20 minutes later to tell her that she picked up her paycheck and
Raehsler’s paycheck, and Hammer said “Oh, OK,” and then Hammer asked about Ager’s
doctor’s appointment. Hammer did not inform Ager that her actions were in violation of
Respondent’s rules or policies, nor did she indicate that she would be disciplined or investigated. 35
40

approval from management.
33 The General Counsel’s witnesses presented differing accounts of who was present when Neff and
Ager informed Respondent that Ager was serving as the replacement steward for Cathi Curry. In this
connection, Neff claimed that both Maidl and Ijomah were present for this conversation, while Ager
contended that only Ijomah was present.
JD–40–14
29
3. The June 3 investigatory meeting and allegations that Respondent threatened Ager by
falsely stating she had previously been given a verbal warning, threatened that she was
insubordinate, threatened to call the police to remove her from the facility, and issued her
a suspension which was later reduced to a written discipline
5
a. The events of the June 3 investigatory meeting
The following day, Ager was informed by Ijomah that she was under investigation and
had to come into work the following Monday to talk about it. Later that day, Ager spoke to
Ijomah on the telephone and asked Ijomah why she was being investigated. Ijomah stated that 10
she could only speak about it in person. Ager called Ijomah again, about an hour later, and
inquired why her investigation could not be conducted over the telephone.34 According to Ager,
Ijomah responded that she was the manager, she could conduct the investigation anyway she
wanted, and that Ager had to come in to meet her in person. Ager asked again if she could be
told why she was being investigated, but Ijomah did not tell her. Despite Ager’s repeated 15
requests, Ijomah would not inform Ager of the reason she was being investigated, nor would she
provide any information about the investigation.
On Monday, June 3, Ager attended an investigatory meeting with her coworker, Charity
Hill, serving as her union steward. The meeting was scheduled to begin at 1:30 p.m., but when 20
Ager and Hill went to Ijomah’s office, Maidl answered the door and indicated that management
would be ready soon. Ager and Hill waited in the chapel at the facility until 1:55 p.m., and then
went to Maidl’s office where they saw him writing on a yellow memo pad. Maidl told Ager he
was working on something and to check with Hammer and Ijomah in Hammer’s office next
door. Ager and Hill check with Ijomah, who said they were going to have the meeting. 25
Ager and Hill were then joined by Maidl, Ijomah, and Hammer in the chapel. Maidl
apologized for having them wait, and then informed Ager they were there because Ager took
another employee’s paycheck. Ager became upset and responded that other employees have
picked up her paychecks in the past, and they had not been disciplined. Ijomah stated that 30
employees had to have written authorization in order to pick up another employee’s paycheck.
Ager told her that was not true, and that other employees had picked up her paychecks for her
without written authorization, such as Heather Raeshler and Amanda Monson. Ijomah also said
it was an issue because she picked up her own paycheck from Hammer’s office, without
Hammer being there. Ager informed Ijomah that she had picked up her paychecks in the past 35
without Hammer being present.
At that point, Maidl said that he had previously coached Ager about taking her paycheck
when she had a garnishment on her check. She denied that Maidl coached or counseled her
about that in the past. Ager testified that Maidl then produced a yellow note pad, on which the 40
top page was still attached. The document dated April 4, 2013, stated, in relevant part: “I also
explained to her that she should not have picked up her check yet, especially since she did not
talk to Judy beforehand. Thursday is not payday and checks can only be given out with
approval.” (GC Exh. 22.) Maidl stated that he had warned her previously about taking her

34 Ager testified that she was aware that the Respondent has conducted investigations of alleged
misconduct over the telephone, which the Respondent does not dispute.
JD–40–14
30
paycheck without first talking to Hammer. Ager testified that she was informed that the note on
the yellow note pad was a verbal warning and now they were going to the next step. Ager
testified that although she was unable to read what was on the yellow note pad when Maidl was
in Ijomah’s office before the meeting that day, she believed that top page was the document that
Maidl was drafting before the meeting that day. She testified that she was never warned or 5
coached previously, and that the first time she saw the note on the yellow note pad was in the
June 3 meeting. Ager testified that all verbal or written warnings at the Respondent’s facility
were on personal consultation forms, and she had never before seen a warning on a yellow note
pad. Ager testified that she became upset and Ijomah stated that Ager was being insubordinate
and unruly and she needed to leave and go home. Therefore, Ijomah ended the meeting10
After the meeting ended and the managers left the chapel, Ager credibly testified that she
was getting ready to call Neff when Ijomah came back in and was yelling at her from the chapel
door. According to Ager, Ijomah specifically stated: “You’re insubordinate, we told you to
leave, you need to leave the facility now.” (Tr. 195.) Ager responded by stating that it was a 15
public place and she did not understand how Ijomah could make her leave because she did not do
anything wrong, and she told Ijomah, “I’m just trying to get a hold of the Union.” (Tr. 195) Hill
credibly testified that Ager started to leave and was on the phone walking away as she was
talking to Ijomah.
20
Ager and Hill left the chapel and walked out into the hallway which was used by
employees, residents, and the public. As they walked, Ager was telling Ijomah she was
attempting to call her union representative on her phone, and she and Ijomah continued to speak
loudly to each other.35 Then, according to Ager, “that’s when something was mentioned about
the police.” 25
With regard to the statement about calling the police, the record shows each witness had
differing versions regarding what was said, and who said it. According to Ager, one of the
managers mentioned something about the police, and she responded “Really, you’re going to call
the police on me?” (Tr. 195) Hill testified that Ijomah told Ager she had to leave and “they 30
could call the police.” (Tr. 363) Ijomah, on the other hand, testified that it was Ager brought up
calling the police, and Maidl responded, “yes, we could.” (Tr. 293) Finally, Maidl testified that
Ager brought up the police, stating “what are you going to do, call the police and have them
escort me out or have them arrest me, one of the two?” Maidl testified that he responded, “I
can,” or “If I have to.” (Tr. 93) In sorting through these differing versions of what was said on 35
this subject, I find, based on the demeanor of the witnesses and the inherent probabilities of the
situation, that the versions offered by Ager and Hill are the most probable and reliable. In this
connection, I generally found both of their demeanors honest and reliable, and they testified in a

35 I find that the record supports that both Ager and Ijomah were speaking loudly to each other in the
hallway. In this regard, I find that both Ager and Hill were credible witnesses and testified in a truthful
and convincing manner. Hammer testified that she was not present after the meeting ended. Ijomah and
Maidl denied that that Ijomah raised her voice in the hallway. Where there is a conflict in testimony, I
credit Ager and Hill over Maidl and Ijomah as I found the demeanor of Respondent’s witnesses less
impressive. Maidl and Ijomah were inconsistent in their testimony at times. In addition, as mentioned
above, I found Ijomah less convincing, and she presented testimony on several occasions that differed
from her sworn affidavit. (Tr. 297–300.)
JD–40–14
31
convincing and believable manner. On the other hand, I found Maidl’s and Ijomah’s testimony
generally less reliable and convincing.
In regard to this disputed exchange in the hallway of the facility, I find, as Ager alleges,
that something was said about the police, and that, as Hill credibly asserted, it was Ijomah who 5
said they “could call the police.” I find that it is plausible that Ijomah said that because the
record shows she already believed Ager was insubordinate and had not left when she was told to
leave. I further find that Ager responded with the question, “Really, you’re going to call the
police on me?” and that Maidl responded something to the effect that they could do so. Ager
then left the facility and there is no evidence that the police were ever called by the Respondent. 10
Ager was not placed on the work schedule and the Union filed a grievance that day
concerning her suspension. The record shows that Neff sent an email that afternoon asking how
long the investigation and suspension would take, and reminding the Respondent that the
investigation of someone who is a union steward should be the same as someone who is not a 15
steward.
The grievance over Ager’s suspension was eventually settled in a meeting on June 12, by
the Respondent subsequently reduced the suspension to a written discipline and Ager was paid
for the days she was suspended. The record thus reveals that Ager was suspended, and not 20
reinstated to the work schedule until the June 12 meeting, because of her alleged infractions with
the paychecks on May 30, and her alleged misconduct at the meeting on June 3. On that basis,
the record shows that Ijomah stated in her affidavit in referring to the June 3 meeting, “So if she
had behaved herself and the meeting could have been completed, she could have potentially been
back on the schedule the next day.” (Tr. 297) At the hearing, Ijomah initially denied that the 25
focus of the June 12 meeting (when Respondent changed the suspension to a written discipline)
was on Ager’s perceived insubordination. (Tr. 298) However, she changed her testimony when
confronted with her affidavit, which read: “At that point, when the (June 3) meeting started, the
bigger issue to us became Lee Ann’s insubordination.” (Tr. 298) Based on this evidence, the
record reveals that her suspension was extended and her subsequent discipline issued based on 30
her alleged paycheck infraction and her conduct during the meeting on June 3. The record does
not show that such actions were based in any way on Ager’s conduct after she left the chapel
where she raised her voice with Ijomah in the hallway in the proximity of staff and residents.
In an email to Neff dated June 5, Maidl informed Neff that Ager’s suspension ended on 35
June 3 when “she came in to an agreed upon meeting.” Maidl continued that “unfortunately due
to her behavior the meeting ended prematurely, at which time we requested Leeann to call us
when she could conclude the meeting in a professional manner.” Despite Maidl’s assertion that
Ager’s suspension ended, the Respondent did not place her back on the schedule. Instead, Maidl
stated in another email later that day, that Respondent would meet the next week to discuss the 40
suspension, and that until that time, Ager “should not come to the facility.”
b. Contentions of the Parties
The General Counsel asserts that Respondent violated Section 8(a)(1) of the Act by the 45
conduct in the following complaint paragraphs: 5(k) that Respondent threatened Ager by falsely
stating she had been given a verbal warning because of her union and protected activities; 5(l)
JD–40–14
32
that Respondent threatened Ager was insubordinate because she attempted to call her Union
representative; and 5(m) that Respondent threatened Ager by telling her it would call the police
if she did not leave the facility. The Respondent alleges that its actions in the meeting did not
violate the Act.
5
In addition, the General Counsel contends Respondent violated Section 8(a)(3) and (1) of
the Act by the conduct in the following complaint paragraphs: 6(b) removed Ager from the
schedule and informed her she was under investigation; 6(c) suspended Ager, and subsequently
reduced the suspension to a written discipline; and 6(d) banned Ager from the Respondent’s
premises.10
The Respondent asserts that it was justified in its actions set forth above because Ager
violated the Respondent’s policies and procedures regarding taking paychecks, and that her
conduct in the June 3 meeting was so outrageous that it removed any protections she had under
the Act. 15
c. Analysis of the alleged violations involving Ager’s suspension, written discipline, and
prohibition from entering the property for violation of the paycheck policy
The record shows that Ager was alleged to have violated Respondent’s paycheck policy 20
when she picked up another employees’ paycheck and she picked up her own paycheck when
Hammer was not there and failed to sign that she picked it up. The Respondent’s alleged policy
was not produced at trial and there is no evidence that it was provided to employees prior to
Ager’s discipline. The record reveals that this policy was never enforced and no employees were
disciplined for infractions prior to Ager’s discipline.25
With regard to Ager’s suspension and subsequent issuance of written discipline for that
alleged infraction, it is appropriate under Wright Line to first determine if the General Counsel
has presented a prima facie case of discrimination against Ager. In this regard, first, the
undisputed evidence shows that Ager was engaged in Union activities through her newly 30
appointed position of union steward, and in her aggressive representation of Raehsler in her
grievance meeting. Second, it is undisputed that the Respondent was aware of her protected
activities as a union steward. Third, the removal from the schedule, suspension, subsequent
written discipline, and banishment from the facility, constitute adverse employment actions.
Fourth, the record contains evidence of a nexus between her protected activities and her35
suspension and discipline, which is reflected in the fact that Ijomah appeared unhappy with the
appointment of Ager as union steward. In addition, animus can be found in the numerous 8(a)(1)
violations found in this case and, in particular, the coercive statement that the Respondent
wanted to rid itself of the Union.
40
The record also shows that Ager’s suspension and subsequent discipline occurred only
several days after her engagement in union and protected activities. The undisputed record
reveals that the Respondent had never previously issued warnings or discipline to employees for
alleged paycheck infractions or violations. The record further shows that even though
Respondent maintained a paycheck policy, it did not provide paycheck policy training for 45
employees until June 20, 2013, well after Ager was disciplined for the alleged infractions. I find
that the timing of her suspension in relation to her protected activity, particularly in light of the
JD–40–14
33
unprecedented nature of her suspension for such an alleged offense, provides strong support for
finding unlawful and discriminatory motivation. Masland Industries, Inc., 311 NLRB 184, 197
(1993), and cases cited therein. On that basis, I find that the General Counsel has made a prima
facie showing that Ager was suspended and disciplined for engaging in union and protected
activities.5
In rebutting the General Counsel’s prima facie showing that the protected conduct was a
“motivating factor” in the Respondent’s decision, the Respondent cannot simply present a
legitimate reason for its action, but must persuade, by a preponderance of the evidence, that the
same action would have taken place even in the absence of the protected conduct. Roure 10
Bertrand Dupont, Inc., supra. Thus, the burden now shifts to the Respondent under Wright Line
to establish that it would have suspended/disciplined Ager and prohibited her from entering the
facility, even in the absence of her union and protected activities.
The Respondent asserts that it was justified in disciplining Ager because she violated the 15
policy when she picked up her paycheck early (before the Friday payday), she picked up her
paycheck without signing out from Respondent’s sign out book, she picked up another
employees paycheck without providing written permission from that employee, and she picked
up the paycheck without Hammer being present in her office. The credible evidence, however,
shows that these asserted reasons for Ager’s suspension, discipline, and banishment from the 20
facility are merely pretext for Respondent’s unlawful motivation.
The evidence shows that some employees were not aware of the Respondent’s alleged
paycheck policy, and the evidence does not reflect that employees were provided that policy
prior to Ager’s May 30 incident. In fact, Ager credibly testified that she was not aware of 25
Respondent’s paycheck policy before the incident.36 The record also shows that it was not until
two weeks after Ager’s suspension ended (on June 20) that the Respondent held a meeting for
the employees to discuss the paycheck policy with employees. Basing discipline on a policy that
was previously unknown to some, if not most of the employees, and which was never previously
enforced, supports finding that the Respondent’s justification is mere pretext for its unlawful 30
motivation.
The General Counsel also presented credible evidence of disparate treatment in the fact
that other employees have picked up paychecks on Thursdays, picked them up without signing
them out, picked up other employees’ paychecks for them, and have picked up paychecks when 35
Hammer was not present. Ager also testified that she had picked up other employees’ paychecks
in the past without Hammer being present and without signing them out, and she was never
disciplined or informed that such action constituted an infraction. Employee Charity Hill also
credibly testified that on occasions she had taken checks out of Hammer’s office when Hammer
was not present, that she sometimes failed to sign the checks out and had not been disciplined. 40
In addition, Hill testified that she was aware that other employees have taken their checks
without Hammer being present and without signing them out, and had not been disciplined. She
stated that the checks were left on Hammer’s desk or on the top of the refrigerator in Hammer’s

36 I do not credit Maidl’s assertion that he previously issued Ager a warning with regard to a previous
paycheck violation, and I credit Ager’s assertion that she was never warned about such infraction, as she
appeared honest and she testified in a very convincing manner.
JD–40–14
34
office. She also credibly testified that employees were allowed to pick up other employees’
paychecks.
On this subject, Hammer testified that she had no knowledge of employees picking up
paychecks from her office without her being present. I find that assertion is incredible and 5
unbelievable. Several employees credibly testified that such a practice was common at the
Respondent’s facility, and the paychecks were left on her desk or on the refrigerator, in the open,
for employees to pick up. Hammer is the human resource director and accounts payable
manager, who is the person responsible for ensuring that Respondent’s payroll operated properly.
One of her primary job functions was to handle the payroll and distribute paychecks to 10
employees. I find it difficult to believe that she was not aware that employees were picking up
their paychecks when she was not there. With regard to Hammer’s testimony as to what she was
aware of on this issue, she admitted that even though employees are required to sign out when
they pickup up their checks, they did not always do that, and no one was disciplined for it. She
also admitted that she was aware that employees sometimes picked up other employees’ 15
paychecks and were not disciplined for it, until Ager was disciplined.
This evidence also shows that the alleged paycheck policy was never enforced prior to
Ager’s suspension and discipline. The Board has found that such a lack of enforcement
undercuts a respondent’s asserted justification for disciplining employees. SCA Tissue North 20
America, LCC, 338 NLRB 1130, 1130 fn. 2 (2003), enfd. 371 F.3d 983 (7th Cir. 2004).
Further evidence of Respondent’s pretext is found in Hammer’s response to Ager when
Ager notified her that she had picked up her paycheck when Hammer was not there. In this
connection, when Ager called Hammer and told her that she picked up her paycheck and 25
Raehsler’s paycheck when Hammer was not there, and Hammer said “Oh, OK,” and then asked
about Ager’s doctor’s appointment. Hammer did not inform Ager that her actions were in
violation of Respondent’s policies, nor did she indicate that Ager did anything improper, or that
she would be investigated or disciplined. As the person in charge of Respondent’s payroll and
the distribution of checks, Hammer was obviously aware of the paycheck policy, yet she never 30
informed or reminded Ager of what the paycheck policies where, she never told Ager that she
committed an infraction of that policy, she never told her that she should not have picked up the
paycheck when she was not present, and she never told her that she should not have picked up
Raehsler’s paycheck. In addition, if Ager was previously issued a warning regarding a paycheck
policy infraction, it is reasonable to believe that Hammer, as the person in charge of payroll, 35
would have been aware of the previous warning. Yet, when Ager picked up her paycheck and
Raehsler’s paycheck on May 30, Hammer never said anything about the fact that Ager was
allegedly warned previously about such infractions, or that she committed the same policy
infraction again. These facts cast a serious doubt upon Respondent’s alleged justification for
Ager’s suspension, discipline, and banishment.40
Furthermore, is it highly suspicious that when Respondent decided that Ager committed
an infraction, removed her from the schedule, and commenced its investigation, Respondent’s
managers refused to inform her why she was being suspended and investigated until they could
meet in person. In fact, Ager credibly testified that when she was informed that she was 45
removed from the schedule and was being investigated, Ager spoke with Ijomah twice that day
on the telephone. Despite Ager’s requests during both calls, Ijomah would not inform Ager of
JD–40–14
35
the reason she was being investigated, nor would she provide any information about the
investigation. It strains credulity to believe that there is any sufficient nondiscriminatory reason
why the Respondent could not have informed Ager of the reason for her suspension and pending
investigation.
5
In addition, the fact that Ager’s suspension lasted 2 weeks without pay casts further doubt
over Respondent’s alleged justification of a nondiscriminatory reason for its actions. Even
though there may have been some legitimate nondiscriminatory reason for Ager’s investigation
to have lasted approximately 2 weeks, which the record reveals is much longer than the
Respondent’s normal investigations of infractions, no credible evidence was presented by the 10
Respondent to establish that justification.37 This is especially true when one considers that the
facts of the alleged violation of policy was straightforward and simple, in that Ager did not
dispute that she came in and took her check, and Raeshler’s check, when Hammer was not there.
In fact, Ager was the one who called in and reported those facts to Hammer, and there is no
evidence that she denied those facts in her meeting on June 3. 15
Thus, based on the above, I find that the evidence shows that the Respondent has failed to
prove by a preponderance of the evidence, that it would have suspended and disciplined Ager,
and prohibited her from entering the facility, in the absence of her union and protected activities.
Therefore, I find that the Respondent violated 8(a)(3) and (1) of the Act by removing her from 20
the schedule and suspending her, reducing her suspension to a written discipline, and preventing
or banning her from entering the Respondent’s facility.
d. Analysis of the alleged violations involving Ager’s June 3 meeting
25
i. The allegations of 8(a)(1) violations occurring in the June 3, 2013 disciplinary
meeting
According to Ager’s credible testimony, Maidl said that he had previously coached Ager
about taking her paycheck before when she had a garnishment on her check. Ager testified that 30
Maidl then produced a yellow note pad which stated, in part, that he had warned her previously
about taking her paycheck without first talking to Hammer. Ager testified that she was informed
in the meeting that the note on the yellow note pad was a verbal warning and now they were
going to the next step. The evidence reveals that the Respondent did not previously issue a
warning or counseling to Ager for such an alleged offense, and the Respondent was unable to 35
produce any consultation forms for Ager to that effect.
The General Counsel asserts in complaint paragraph 5(k) that Respondent violated
Section 8(a)(1) of the Act by threatening Ager by falsely stating she had been given a verbal
warning because of her union and protected activities. I find, based on the credible evidence, 40
that the Respondent, through Maidl, coercively informed Ager that he had previously warned her

37 Neff testified that he has been involved in investigations of employee infractions at the
Respondent’s facility, and that Respondent’s investigations, which usually involve patient abuse, last 3
days on average. (Tr. 469) Ager testified that 1 week before she became a union steward, she was
involved in an investigation for alleged patient abuse (which appears would be more serious an incident
than allegedly picking up paychecks improperly), and that investigation was done over the telephone and
was completed in 1 day.
JD–40–14
36
for an alleged paycheck infraction when in fact that was not true, and he coercively stated
Respondent was “taking it to the next step,” inferring that Respondent could use the alleged
previous warning as a basis for further discipline.
ii. The allegations of 8(a)(3) and (1) violation occurring in the June 3, 2013 disciplinary 5
meeting
As mentioned above, I have already found that the Respondent has violated the Act in
issuing Ager a suspension, changing that suspension to a written warning, and in banning her
from entering the Respondent’s facility. However, the record reveals that the Respondent 10
extended Ager’s suspension and also based the issuance of discipline on her behavior at the June
3 investigatory meeting. The record does not show that Respondent’s managers based the
suspension and discipline in any way on Ager’s conduct after she left the chapel where she
raised her voice with Ijomah in the hallway. Thus, I do not find persuasive Respondent’s
argument in its brief, that Ager’s conduct during and “after the June 3rd meeting” warranted 15
discipline and, thus, did not violate the Act.” (R. br. p. 49.)
Ager was clearly engaged in protected activity at the investigatory meeting while
disputing her discipline. Caterpiller, Inc., 322 NLRB 674, 676677 (1996). Accordingly, I must
determine whether her conduct in that meeting removed her protection from the Act. 20
It is well established that although employees are permitted some leeway for impulsive
behavior when engaged in protected activity, this leeway is balanced against “an employer’s
right to maintain order and respect.” Piper Realty, 313 NLRB 1289, 1290 (1994). When an
employee engages in abusive or indefensible misconduct during activity that is otherwise 25
protected, the employees forfeits the Act’s protection. Daimlerchrysler Corp., 344 NLRB 1324,
1329 (2005). In Atlantic Steel Co., 245 NLRB 814 (1979), the Board set forth the test for
determining whether an employee loses the protection of the Act. Under that test, the Board
examines four factors: “the place of the discussion; the subject matter of the discussion; the
nature of the employees’ outburst; and whether the outburst was, in any way, provoked by the 30
employer’s unfair labor practices.” Id. at 816. The Board has held that the standard is high for
forfeiting the protection of the Act, stating that protected conduct must be egregious or offensive
to lose the protection it is provided. Consolidated Diesel, 332 NLRB 1019, 1020 (2000)
(citations omitted), enfd. 263 F.3d 345 (4th Cir. 2001). In this regard, the Board has determined
that “the manner in which an employee exercises a statutory right must be extreme to be beyond 35
the Act’s protection.” Id. See also Trus Joist Macmillian, 341 NRLB 369, 371 (2004).
In the instant case, an examination of the factors reveals that Ager’s conduct did not rise
to the level which would warrant losing the protection of the Act. The first factor, the place of
the discussion, weighs in favor of protection regarding Ager’s conduct. The discussion during 40
the meeting that allegedly extended Ager’s suspension occurred in the private chapel on the
Respondent’s premises while Ager was off the clock. The second factor, the subject matter of
the discussion, weighs in favor of protection, because the discussion directly involved the
legitimacy of Ager’s suspension and whether that suspension comported with Respondent’s past
practice in such instances. The third factor, the nature of the alleged “outburst,” weighs in favor 45
of protection as even though Ager raised her voice when talking to the Respondent’s managers,
she did not threaten them in any way, use profanity, impugn Respondent’s business, or resort to
JD–40–14
37
intimidating gestures. Finally, the fourth factor of provocation weighs in favor of protection.
Ager’s raised voice in the meeting was provoked by Respondent’s unfair labor practices, as the
suspension and investigation were discriminatory and based on her union and protected
activities. Thus, all the factors of place, subject matter, nature of conduct, and provocation favor
Ager’s protection under the Act. 5
I therefore find that Respondent further violated Section 8(a)(3) and (1) of the Act by
basing Ager’s suspension/and extended suspension, issuing her a written discipline, and banning
her from the premises, upon her protected actions in the June 3 investigatory meeting.
10
iii. The alleged violations of Section 8(a)(1) based on Ager’s actions after the June 3
meeting.
The record shows that Ijomah had ended the meeting because she believed that Ager was
insubordinate. After the meeting ended, Ager testified that Ijomah came back in and was yelling 15
at Ager from the chapel door. When asked about what specifically Ijomah was yelling, Ager
said Ijomah was saying, “You’re insubordinate, we told you to leave, you need to leave the
facility now.” (Tr. 195.) Ager responded by stating that it was a public place and she did not
understand how Ijomah could make her leave because she did not do anything wrong, and she
told Ijomah, “I’m just trying to get a hold of the Union.” (Tr. 195.) 20
Ager and Hill left the chapel and walked out into the hallway used by employees, patients
and the public, where she was attempted to call her union representative, and both she and
Ijomah continued to speak loudly to each other, and then, as I have found above, Ijomah said the
Respondent could call the police. 25
With regard to the General Counsel’s assertion in paragraph 5(l) that Respondent
threatened Ager that she was insubordinate because she attempted to call her union
representative, I find that allegation is not supported by the record. The record shows that
Ijomah had ended the meeting because she believed that Ager was insubordinate, before she 30
knew Ager was going to call the union representative. After the meeting ended, Ijomah came
back in and was yelling that Ager was insubordinate and she was told to leave. It was at that
point when Ager told Ijomah she was trying to call the Union. Thus, based on Ager’s credible
testimony, I find that the evidence shows that Ijomah’s statement about Ager being insubordinate
was in reference to the fact that she had previously determined Ager was insubordinate in the 35
meeting. Ager, by her own admission, did not inform Ijomah that she was trying to call the
Union until after Ijomah said she was insubordinate. Thus, there is insufficient evidence to link
Ijomah’s statement that Ager was insubordinate with her attempt to call her union representative.
In addition, I note that there were no threats or promises of reprisals that accompanied that
statement, and Ager could have contacted the union representative outside the chapel, which is, 40
in fact, what she was attempting to do as she walked out. On that basis, I do not find Ijomah’s
statement was threatening or coercive, and it did not constitute a violation of the Act.
With regard to that allegation in complaint paragraph 5(m) that Respondent threatened
Ager by telling her it would call the police if she did not leave the facility, I find that Ijomah told 45
Ager that Respondent “could” call the police in relation to her telling Ager to leave the facility,
and that the statement was coercive and threatening.
JD–40–14
38
Ager’s leaving the chapel and moving into the hallway, while she had attempted to call
her union representative, constituted a continuation of her protected activity that she had engaged
in while in the meeting. Applying the Atlantic Steel factors, I still find that Ager’s conduct after
the meeting, as she left the chapel and walked in the hallway, did not rise to the level which 5
would warrant losing the protection of the Act. The first factor, the place of the discussion,
weighs against protection of Ager’s conduct. The conduct occurred while leaving the chapel and
while in the facility hallway, where employees, residents, and the public could be found. The
second factor, the subject matter of the discussion, weighs in favor of protection, because it
concerned a continuation of Ager’s protected activities in the meeting, as while Respondent10
directed her to leave the facility, she was trying to call her union representative. The third factor,
the nature of the alleged “outburst,” weighs in favor or protection as even though Ager raised her
voice, so did Ijomah. In addition, the nature of Ager’s outburst did not involve threats, profanity,
or intimidating gestures which witnesses could have found offensive. Finally, the fourth factor
of provocation weighs in favor of protection. Ager’s raised voice in the hallway, like her 15
conduct in the meeting, was a result and continuation of the meeting, which I found was
provoked by Respondent’s unfair labor practices. Thus, only the factor of place weighs against
protection, while the factors of subject matter, nature of conduct, and provocation favor
protection. Accordingly, under Atlantic Steel, Ager’s conduct after the meeting did not rise to
the level that would cause her to lose her protection under the Act. 20
The Respondent, citing Daimlerchrysler Corp., supra, argues that Ager’s outburst in an
area where coworkers can witness it, was unprotected. In Daimlerchrysler Corp., the Board
found employee Valentin’s conduct unprotected in an outburst directed at a manager regarding a
grievance investigation meeting, in an area where employees could hear it. Id. The facts of that 25
case, however, are distinguishable from the instant case because in Daimlerchrysler, employee
Valentin approached the manager in an “intimidating” manner, and loudly said, “fuck this shit,”
and that he did not “have to put up with this bullshit.” Id. In the instant case, the encounter was
fairly brief, there is no credible evidence that Ager acted in an intimidating manner towards the
managers, and she did not use profanity. The evidence merely shows that she raised her voice, 30
as did Ijomah. Thus, Daimlerchrysler is distinguishable from the instant case and I do not find it
persuasive.
Based on the above, I find that Ijomah’s statement that she could call the police, in the
context of directing Ager to leave the facility immediately after her meeting concerning her 35
suspension and subsequent discipline, and having attempted to call her union representative, was
coercive and threatening. In this regard, the Board has held that, by responding to employees’
protected union activity at or near its facility by threatening to call the police, an employer
violates the Act. Winkle Bus Co., 347 NLRB 1203 (2006). Accordingly, I find that the
Respondent violated Section 8(a)(1) of the Act. 40
45
JD–40–14
39
4. The alleged violations by refusing to change Ager’s weekend shift schedule (delay in
granting her Heather Raehsler’s shift schedule) and refusing to grant her a holiday shift
on the Fourth of July, in violation of Section 8(a)(3) and (1) of the Act
a. The facts pertaining to the shift and schedule allegations5
After Heather Raehsler was discharged, Ager bid on and was awarded her shift. This had
the effect of changing the weekends that she would work, as under the collective-bargaining
agreement, employees were required to work every other weekend. On June 12, Neff questioned
Cannon about when Ager would be switched to Raehsler’s shift, and Cannon assured him that 10
she would be placed on Raehsler’s shift during the next schedule, which was consistent with the
provisions of the collective-bargaining agreement.
Neff exchanged emails with Cannon and Ijomah on June 26 and 27, expressing his
frustration over the fact that Ager had not yet started the new shift. The Respondent indicated 15
she would likely start in July 2013, but Respondent did not actually change her shift schedule
until September 2013, which happened to be days after Respondent received two vacation
requests from Ager that were based on her previous weekend schedule.
In addition, Ager was not scheduled to work on the July 4 shift. However, there was a 20
shortage of employees for that shift and a bid sheet was posted, but no employees signed up for
it. Shortly after the bid sheet was taken down, Ager asked for the shift. The nursing supervisor,
Larissa Fayweather, told her she could have the shift, but after checking with Ijomah,
Fayweather informed Ager that the shift was no longer available. After receiving this
information, Ager exchanged shifts with another employee, which allowed her to work the July 4 25
shift.
The record reveals that the Respondent maintains a block schedule system whereby
employees have a block schedule that repeats every 2 weeks. It is undisputed that Ijomah
determines the number of staff to be scheduled based on “census.” It is also undisputed that 30
staffing and scheduling for the Respondent, as a skilled nursing facility, is driven by resident
census, meaning that a certain number of care providers (nurses and CNAs) must be scheduled
based on the number of patients or residents for whom care is provided. (Tr. 220, 868.) Ijomah
credibly testified that she uses a grid to establish the appropriate number of nurses and CNAs to
schedule based upon the number of residents.38 The grid does not provide a specific number of 35
staff to be scheduled, but rather a number of staff hours referred to as “full-time equivalents” or
“FTE,” that must be staffed. Ijomah testified that she may need to increase or decrease the
number of staff pursuant to the contract’s procedures, depending on the census. If the census is
lower than anticipated, people are told to stay home, and if it is higher than anticipated,
employees are called in. For example, if 5 residents are admitted, she might have to add another 40
person to the schedule, and conversely, if 4 residents leave the facility, she may have to remove
some employees from the schedule.

38 Even though I have not credited parts of Ijomah’s testimony as discussed above, I nevertheless
found that she testified in a truthful and convincing manner with regard to the Respondent’s scheduling
and shifts, and her decisions made pertaining to the schedules and shifts.
JD–40–14
40
In explaining the delay in placing Ager in the shift she bid into, Ijomah testified that in
June 2013, the Respondent’s census ranged from 43 to 46, and July 2013, from 44 to 48. (R.
Exh. 34.) She testified that she cross referenced the daily census with the census grid to
determine the appropriate number of staff to schedule. As an example, with a census of 44
residents, the grid would provide that the FTE for nurses should be 5.28 and the FTE for CHAs 5
should be 12.1. Based on the numbers, Ijomah would schedule 5 nurses and 12 CNAs over a 24
hour period. In practice, she would schedule 5 CNAs for the day, 5 for the evening, and 2
overnight.
Pursuant to the block schedule, CNAs are placed in two groups for scheduling weekends 10
and holiday shifts. (R. Exh. 2.) There are 2 weekends on each schedule, an “outside” weekend
(the first Sunday of the schedule period and last Saturday of the period), and an “inside”
weekend (the full weekend in the middle). The weekends are designated “A” and “B,” and the
employees of each group are scheduled for their respective weekends. On that basis, the “A”
group works the same weekends. 15
Ijomah testified that Ager bid into Raehsler’s shift, but she (Ijomah) came to understand
that Ager really wanted to move to the group “B” or the outside weekend schedule. Raehsler
was in the “B” group and Ager in the “A” group. Ijomah testified that the “B” group had a
sufficient number of staff, but included two new employees. She did not believe she could move 20
Ager, an experienced CNA in the “A” group, to the outside weekend because she felt she did not
have enough experienced and properly trained employees to work the “A” group weekend with
Ager gone. Ijomah testified that a review of the schedule showed that by moving Ager to the
“B” weekend, it would have overstaffed that group with 6 CNAs and the “A” weekend would
have been under staffed with 4 CNAs. 25
With regard to the Union’s request for an explanation as to why Ager had not yet been
allowed to change shifts, the record shows that Ijomah explained this information to Ager and
Neff, and Neff acknowledged to Cannon that he understood and was satisfied with Ijomah’s
explanation. (GC Exh. 19.) Ijomah testified that when she, as the scheduler, was satisfied that 30
the newer CNAs gained experience, she offered Ager the “B” group weekend schedule, which
was in September 2013.
Since Ager was in group “A,” she was not scheduled to work July 4. An open shift was
posted for July 4, and Ager was aware of that fact, but she did not bid on it, and the posting was 35
taken down. Ager asked the supervising nurse, Fayweather, if she could work that shift, and the
supervisor said she could. However, the supervisor subsequently told Ager that Ijomah
determined that she did not need an additional CNA for that shift. Ijomah testified that there
were enough staff scheduled to cover the July 4 weekend based on the census, and there was not
an available slot for Ager. However, Ager ended up working the July 4 weekend anyway, as Hill 40
traded shifts and then Ager got the shift via a trade. Ijomah testified that she did not care if Ager
worked on the July 4 weekend, and she made no attempt to stop Ager from working that shift.
b. The contentions of the Parties
45
The General Counsel alleges that the Respondent’s delay in switching Ager’s schedule
and refusing to grant Ager a holiday shift for the Fourth of July, was due to her union and
JD–40–14
41
protected activities and in violation of the Act. Specifically, the General Counsel argues in
complaint paragraph 6(e) that since on or about June 3, 2013, Respondent refused to change
Ager’s weekend shift schedule, and in paragraph 6(g) that since on or about June 6, 2013,
Respondent refused to grant Ager a holiday shift on the Fourth of July, in violation of Section
8(a)(3) and (1) of the Act. 5
The Respondent, on the other hand, argues that these allegations are not adverse
employment actions and therefore cannot be violations of Section 8(a)(3), and that even if they
are adverse employment actions, it has shown its actions with regard to Ager’s schedule were
based on legitimate nondiscriminatory reasons.10
c. Analysis
With regard to the question whether the Respondent’s actions constituted discrimination
under the Act, an analysis under Wright Line is appropriate. I find that the evidence supports 15
finding that the General Counsel has been made a prima facie showing sufficient to show that
Ager’s protected conduct was a “motivating factor” in the employer’s decision to discharge her.
First, it is undisputed that Ager was engaged in union activities where she was the union steward
and was aggressive in her defense of employees in grievance meetings. Second, it is equally
undisputed that the Respondent had knowledge of Ager’s union and protected activities as the 20
managers were aware of her position with the Union and they were in the grievance meetings
with her. Third, the Respondent’s alleged failure to timely change her weekend shift schedule
and grant her a holiday shift for the Fourth of July, constituted adverse employment actions.
With regard to this third element, the Respondent contends in its brief that its actions with regard
to Ager’s scheduling requests, are not “adverse actions” because Ager did not lose any hours, 25
and therefore, no 8(a)(3) violation can be found. I disagree. The complaint allegations with
regard to Ager’s shifts and schedules are potentially adverse employment actions as the refusal to
grant a shift schedule or a shift change, or to delay such actions, could adversely affect
employees’ terms and conditions of employment, such as the employees’ wages, hours, and
conditions of employment. Thus, I find no merit to this argument. Fourth, the record contains 30
ample evidence of a causal connection between her protected activities and the alleged unlawful
employment actions, as reflected in Respondent’s union animus through the above mentioned
8(a)(1) violations, and in its statement that it wanted get rid of the Union. In addition, the record
shows that the timing of the actions against Ager and her schedule/shifts occurred immediately
after engaging in union activities, which is suspect. 35
Thus, based on the above, I find that the General Counsel has made a prima facie
showing that Ager was discriminated against on the basis of her union and protected activities.
On such a showing, the burden shifts to the Respondent to demonstrate that the same action
would have taken place even in the absence of the protected conduct. I find, for the reasons 40
stated below, that the Respondent presented legitimate nondiscriminatory reasons for its actions,
proving that, by a preponderance of the evidence, that the same actions would have taken place
even in the absence of Ager’s protected conduct.
The General Counsel is correct in asserting that the Respondent’s failure to place Ager on 45
Raehsler’s schedule until over 3 months later in September is suspicious. However, as discussed
above, Ijomah credibly testified at length during the Respondent’s case, about how the staffing is
JD–40–14
42
census driven, and she thoroughly and convincingly explained the reason for the delay in
implementing the change to Raehsler’s weekend shift.
The record also shows that Respondent’s reasons for this delay were explained to Neff
upon his expressions of concern for the delay, and neither Neff nor any other union official 5
disputed the Respondent’s explanation that was given. The General Counsel’s assertion that the
change in shift was finally granted suspiciously at the time the change in weekends rendered her
previous requests for long weekends useless, and as such left little doubt that the delay was
discriminatorily motivated, is based solely upon suspicion and conjecture, and not credible facts.
As mentioned above, Ijomah’s explanations with regard to the change in shifts for Ager were not 10
refuted.
With regard to the Respondent’s failure to grant Ager work on the Fourth of July shift,
Ijomah credibly stated that Ager was not in the group (group A) that was scheduled to work July
4. After Fayweather informed Ager she could work that weekend, Ijomah testified that Ager was 15
not needed. Ijomah said there were enough staff scheduled to cover the July 4 weekend based on
the census, and there was not an available slot for Ager.
The General Counsel argues that the Respondent’s denial of the Fourth of July shift to
Ager was based on discriminatory motive because it was “suspicious,” and the timing was 20
suspect. However, the evidence fails to show that the Respondent’s decision was motivated by
unlawful reasons. First, the evidence shows that Ager could have been assigned to that shift
when it was posted for an opening, but she did not bid on it. In this connection, Ager testified
that she knew the shift was posted, but did not apply for it. However, once the posting was taken
down, she decided she wanted to work it. Second, the evidence shows that when she informed 25
the Respondent that she wanted to work it, the Respondent gave it to her. However, Ijomah
testified that after she evaluated it, and determined another employee was not needed, the
Respondent informed Ager that she was not needed to work it. It seems implausible that, if the
Respondent intended to discriminate against Ager with regard to her schedule or shifts, it would
have initially granted her request for it. In addition, if Ijomah intended to discriminate against 30
Ager regarding her shifts, it seems she would have instructed Fayweather to initially deny any
requests Ager made to change or work additional shifts or schedules, which the Respondent’s
managers did not do. Third, and finally, Ijomah testified that she determined she had enough
staff to cover the July 4 holiday based upon the census, to which she testified at length discussed
above. However, the General Counsel failed to produce any credible evidence to rebut the 35
legitimacy of Ijomah’s articulated reasons for making the decision.
The General Counsel also argues that the asserted justification for denying Ager’s
holiday work request (that Respondent no longer needed a full complement of CNAs to work
that day), “falls flat” because Ager eventually was able to work the Fourth of July shift. I do not 40
find this argument persuasive, as the record reflects that Ager eventually worked the July 4
weekend shift because, as Ijomah explained, Hill traded off that holiday shift and Sylvia
Frederick traded onto it; and then Frederick traded off the shift and Ager traded onto it. (Tr.
895.) Ijomah testified that she did not care if Ager worked on the July 4 weekend, and the record
does not show she made any attempts to intervene or prevent Ager from trading onto that Fourth 45
of July shift.
JD–40–14
43
On the basis of the above, I do not find that the Respondent violated Section 8(a)(3) and
(1) of the Act by refusing to change Ager’s weekend shift schedule, or by refusing to grant her a
holiday shift on the Fourth of July, and I will dismiss those complaint allegations.
5
E. The Deferral Issue
The Respondent argues that with regard to complaint paragraphs 5(k)-(p) and 6(a)-(f), I
should defer to the contractual grievance process. It argues that applying the principles of Alpha
Beta Co., 273 NLRB 1546, 1547 (1985), the circumstances mandate deferral by the Board to the 10
settlements negotiated by Respondent and the Union with respect to the grievances filed by Cathi
Curry, Lee Ann Ager, and Ruth Curry. Since I have not found that the discharge allegation with
regard to Cathi Curry has merit, I find that deferral to her grievance settlement is not at issue.
The General Counsel strongly opposes deferral to the grievance settlements, stating that the
private settlements do not effectuate the purposes of the Act, nor do they adequately protect 15
employees from retaliation by the Respondent for engaging in union and protected activities
under the Act.
The Respondent asserts that Ruth Curry’s grievance concerning her written discipline for
spreading rumors and discussing terms and conditions of employment with employees 20
(complaint paragraph 6(f)), was resolved by the parties at Step 1 on June 12, 2013. However, the
record reflects that the settlement consisted of the Union agreeing to drop, and no longer process,
the grievance.
The record shows that Ager’s grievance concerning her alleged misconduct (complaint 25
paragraph 6(b)-(d)) was settled by the Parties as well, and memorialized in a settlement
agreement executed on June 12. Under the terms of the settlement, Ager was returned to work
and put back on the schedule, paid for the days she was off work, and was issued a written
discipline.
30
In Alpha Beta, 273 NLRB 1546 (1985), review denied 808 F.2d 1342, 1345-1346 (9th
Cir. 1987), the Board held that in deciding whether to defer to a settlement agreement reached
between an employer and union pursuant to their contractual grievance/arbitration machinery, it
applies the principles of Spielberg Mfg. Co., 112 NRLB 1080, 1082 (1995), and Olin Corp., 268
NLRB 573, 573–575 (1984). In Alpha Beta, the Board examined whether the settlement 35
proceedings were fair and regular; whether all parties agreed to be bound by the settlement;
whether the parties considered the facts underlying the unfair labor practices; and whether the
award was repugnant to the Act.
In considering the first Alpha Beta factor, whether the settlement proceedings were fair 40
and regular, the settlement in Ruth Curry grievance consisted of dropping the grievance and not
processing it further, which can hardly be described as fair. The settlement in Ager’s grievance
was entered into when she was suspended for 2 weeks, over the fact that she committed an
alleged violation of a paycheck policy. It is reasonable to believe that under such circumstances,
one might feel some coercion or duress and feel pressured into an agreement so she could return 45
to work after such a long and unreasonable delay. Thus, I find the settlement proceeding were
neither fair, nor regular.
JD–40–14
44
In considering the second Alpha Beta factor, whether all parties agreed to be bound by
the settlement, the record shows that the Parties had agreed to be bound, and this factor weighs
towards deferring to the settlements.
5
In considering the third Alpha Beta factor, whether the parties considered the facts
underlying the unfair labor practices, the evidence shows that the parties did not consider them.
None of the unfair labor practices Respondent committed with Ruth Curry would be remedied
and many of the violations committed with Ager would be left unremedied. I find this factor
does not weigh in favor or deferral. 10
In considering the fourth and final Alpha Beta factor, whether the award was repugnant to
the Act, the record reveals, and I find, that the results of deferring to the settlements for Ruth
Curry and Ager, would be repugnant to the Act. Ruth Curry’s grievance settlement provides no
remedy for the unfair labor practices. I also note that Ager’s settlement does not provide a 15
remedy for the written verbal warning/discipline she was issued on the unlawful basis of her
union and protected activities. In addition, Ruth Curry’s discipline and Ager’s written verbal
warning would not be removed from their personnel files, and they could still be used against
them as the basis for further disciplinary actions. In addition, there would be no Notice posting,
notifying employees of their rights under the Act and reflecting that the Respondent will cease 20
and desist from committing unfair labor practice, and affirmatively remedy the unfair labor
practices it has been found to have committed. Thus, this final factor does not weigh in favor of
deferral.
In evaluating the Alpha Beta factors, I find that three factors weigh against deferral, while 25
only one factor weighs in favor of deferral. Thus, under an Alpha Beta analysis, deferral is not
appropriate. In addition, I find that the settlements for Ruth Curry and Ager in this case are
clearly repugnant to the Act, and palpably wrong. Accordingly, I will not defer to the private
settlements as such agreements are not appropriate as substitutes for the Board’s well-established
remedial processes.30
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. 35
2. United Food and Commercial Workers Local 1189 is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of 40
the Act by:
(a) Threatening or coercively informing an employee on or about April 8, 2013, that it
wanted to remove or get rid of the Union and the older employees from the facility;
45
(b) Threatening or coercively informing an employee in the beginning of May 2013, that
it wanted to get rid of the Union and the older employees.
JD–40–14
45
(c) Unlawfully interrogating an employee in or around May 2013, regarding the
employee’s union and/or protected concerted activities, including discussions with
other employees about terms and conditions of employment, even if they can be
described as rumors;5
(d) Coercively requesting or demanding in or around May 2013, that an employee
identify other employees who have engaged in discussions regarding terms and
conditions of employment, even if those discussions can be described as rumors;
10
(e) Unlawfully creating the impression in or around May 2013, that employees’ union
and/or protected concerted activities, such as discussing terms and conditions of
employment with employees, are under surveillance;
(f) Threatening to file harassment charges in or around May 2013, against an employee 15
for engaging in union and protected concerted activities, such as discussing terms and
conditions of employment with other employees, even if they are in the form of
rumors;
(g) Threatening or coercively directing an employee in or around May 2013, not to speak 20
to other employees about employees’ terms and conditions of employment, or other
union and/or protected concerted activities;
(h) Unlawfully interrogating an employee on or about June 5, 2013, regarding the
employee’s union and/or protected concerted activities, including discussions with 25
other employees about terms and conditions of employment, even if they can be
described as rumors;
(i) Unlawfully creating the impression about June 5, 2013, that employees’ union and/or
protected concerted activities, such as discussing terms and conditions of employment 30
with employees, are under surveillance;
(j) Threatening or coercively directing an employee on or about June 5, 2013, not to
speak to other employees about employees’ terms and conditions of employment, or
other union and/or protected concerted activities;35
(k) Threatening to terminate an employee on or about June 5, 2013, for discussing terms
and conditions of employment with other employees, or for engaging in union and/or
protected concerted activities;
40
(l) Unlawfully denying the request of an employee in or around May and on or about
June 5, 2013, for union representation during the course of an interview conducted by
it, under circumstances in which, at the time of the request, the employee had
reasonable grounds for fearing that the interview might result in discipline;
45
(m)Coercively informing an employee that it could call the police because she engaged in
union and/or protected concerted activities.
JD–40–14
46
(n) Coercively and falsely informing an employee, on or about June 3, 2013, that it had
issued that employee a verbal warning based on the employee’s union and/or
protected concerted activities.
5
4. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act by:
(a) Issuing employee Ruth Curry a written “verbal” warning on or about June 6, 2013, in
retaliation for discussing terms and conditions of employment, such as what she heard 10
at the facility, or for her union and/or protected concerted activities;
(b) Investigating, suspending, and extending the suspension for employee Lee Ann Ager
on or about May 31, 2013, in retaliation for her union and/or protected concerted
activities;15
(c) Banning Lee Ann Ager from its facility on or about June 3, 2013, and continuing
days thereafter, in retaliation for her union and/or protected concerted activities;
(d) Issuing Lee Ann Ager a written discipline on or about June 12, 2013, in retaliation for 20
her union and/or protected concerted activities;
5. The above unfair labor practices affect commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
25
6. The Respondent has not otherwise violated the Act.
REMEDY
30
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. In particular, I recommend that the Respondent make Lee Ann Ager
whole for any losses in earnings and other benefits suffered as a result of the unlawful
suspension and discipline imposed on her.39 Backpay shall be computed in accordance with F.W. 35
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010).
Respondent shall file a report with the Social Security Administration allocating backpay, 40
if any, to the appropriate calendar quarters. Respondent shall also compensate the discriminate

39 The record reveals that Ager was alleged to have been made whole for the days she was unlawfully
suspended, pursuant to the settlement of her grievance. The Respondent is required to provide
compensation only to the extent, if any, that Ager’s losses based on the unlawful discipline exceed those
for which she has already been compensated.
JD–40–14
47
for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering the periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended405
ORDER
The Respondent, River Falls Healthcare, LLC, d/b/a Kinnic Health and Rehab, River 10
Falls, Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening or coercively informing employees that it wants to remove or get rid of 15
the Union and the older employees at its facility.
(b) Unlawfully interrogating employees regarding their union and/or protected concerted
activities, including their discussions with other employees about terms and
conditions of employment, even if they can be described as rumors.20
(c) Coercively requesting or demanding that employees identify other employees who
have engaged in discussions regarding terms and conditions of employment, even
those discussion can be described as rumors.
25
(d) Unlawfully creating the impression that employees’ union and/or protected concerted
activities, such as discussing terms and conditions of employment with employees,
are under surveillance.
(e) Threatening to file harassment charges against employees for engaging in union 30
and/or protected concerted activities, such as discussing terms and conditions of
employment with other employees, even if they are in the form of rumors.
(f) Threatening or coercively directing employees not to speak to other employees about
employees’ terms and conditions of employment, or other union and/or protected 35
concerted activities.
(g) Threatening to terminate employees for discussing terms and conditions of
employment with other employees, or for engaging in union and/or protected
concerted activities.40
(h) Unlawfully denying the requests of employees for union representation during the
course of interviews conducted by it, under circumstances in which, at the time of the

40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–40–14
48
request, the employees have reasonable grounds for fearing that the interview might
result in discipline.
(i) Coercively informing employees that it could call the police because they have
engaged in union and/or protected concerted activities.5
(j) Coercively and falsely informing employees that it had issued verbal warnings based
on the employees’ union and/or protected concerted activities.
(k) Issuing employees written “verbal” warnings for discussing terms and conditions of 10
employment, such as what they have heard at the facility, or for engaging in other
union and/or protected concerted activities.
(l) Investigating, suspending, extending the suspensions, issuing written discipline, or
banning employees from its facility, in retaliation for engaging in union and/or 15
protected concerted activities.
(m)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.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Lee Ann Ager whole for any loss of earnings, if any, and other benefits
suffered as a result of the discrimination against her in the manner set forth in the
remedy section of the decision.25
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discipline in the form of a written “verbal” warning issued
to Ruth Curry, and the unlawful suspension and written discipline issued to Lee Ann
Ager, and within 3 days thereafter notify those employees in writing that this has 30
been done, and that the disciplines will not be used against them in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, 35
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in River Falls, 40
Wisconsin, copies of the attached notice marked “Appendix.”41 Copies of the notice,
on forms provided by the Regional Director for Region 18, after being signed by the

41 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–40–14
49
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, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent 5
customarily communicates with its employees by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a 10
copy of the notice to all current employees and former employees employed by the
Respondent at any time since April 8, 2013.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the 15
steps that the Respondent has taken to comply.
(f) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
20
Dated, Washington, D.C. July 7, 2014
25
_______________________
Thomas M. Randazzo
Administrative Law Judge
30
APPENDIX A
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 a representative 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 threaten or coercively inform you that we want to remove or get rid of the Union
and the older employees at our facility.
WE WILL NOT unlawfully interrogate you about your union and/or protected concerted activities,
including interrogating you about your discussions with employees about terms and conditions of
employment, even if they are rumors.
WE WILL NOT coercively request or demand that you identify or provide the names of employees
who have engaged in discussions with you or other employees regarding terms and conditions of
employment, even if they are rumors.
WE WILL NOT create the impression that your union and/or protected concerted activities, such as
discussing terms and conditions of employment with employees, are under surveillance.
WE WILL NOT threaten to file harassment charges against you for engaging in union and/or
protected concerted activities, such as discussing terms and conditions of employment with
employees, even if they are in the form of rumors.
WE WILL NOT direct or tell you not to speak to other employees about your terms and conditions
of employment, or other union and/or protected concerted activity.
WE WILL NOT threaten to terminate or discharge you for discussing terms and conditions of
employment with other employees, or for engaging in any union and/or protected concerted
activities.
WE WILL NOT deny your requests for union representation during the course of interviews we
conduct, when at that time, you have reasonable grounds for fearing that the interview might
result in discipline.
WE WILL NOT coercively inform you that we could call the police because you engage in union
and/or protected concerted activities.
WE WILL NOT falsely inform you that you have been issued verbal warnings based upon your
union and/or protected concerted activities.
WE WILL NOT issue you written “verbal” warnings for discussing terms and conditions of
employment, such as what you heard at our facility, or for engaging in other union and/or
protected concerted activities.
WE WILL NOT investigate you, suspend you, extend your suspension, issue you written discipline,
or ban you from our facility, in retaliation for engaging in union and/or protected concerted
activities.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL remove from our files all reference to the May 31, 2013 suspension of Lee Ann Ager
and the subsequent written discipline, and WE WILL notify her in writing within 5 days that this
has been done and that the suspension and discipline will not be used against her in any way.
WE WILL, to the extent we have not already done so, make whole Lee Ann Ager for the wages
and other benefits she lost due to her suspension and discipline.
WE WILL remove from our files all reference to the June 6, 2013 written “verbal” discipline
issued to Ruth Curry, and WE WILL notify her in writing within five days that this has been done
and that the discipline will not be used against her in any way
RIVER FALLS HEALTHCARE, LLC d/b/a
KINNIC HEALTH AND REHAB
(Employer)
Dated: ____________ By:______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-106165 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.