ARC Bridges, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 30, 2009

13-CA-045065 (N.L.R.B. Sep. 30, 2009)

JD–47–09
Newark, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ARC BRIDGES, INC.
and Cases 13–CA–45065
13–CA–45066
AMERICAN FEDERATION
OF PROFESSIONALS
J. Edward Castillo, Esq. for the General Counsel.
Raymond C. Haley III, Esq. (Woodward Hobson & Fulton),
of Louisville, Kentucky, for the Respondent.
Jennie Moreland (American Federation of Professionals),
of Naperville, Illinois, for the Charging Party.
DECISION
Statement of the Case
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Chicago, Illinois,
on June 8–9, 2009. The American Federation of Professionals (the Union)1 filed the charges in
Cases 13–CA–45065 and 13–CA–45066 on December 19, 2008,2 and the consolidated
complaint issued March 5, 2009. The complaint alleges that ARC Bridges, Inc. (the Company)
discharged Carmelita Evans and disciplined Florence Basemore on or about June 27 and July
3, respectively, because they engaged in concerted activities and to discourage membership in
a labor organization in violation of Section 8(a)(3) and (1) of the National Labor Relations Act
(the Act). The Company denies the material allegations of the consolidated complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following
Findings of Fact
I. Jurisdiction
The Company, an Indiana corporation, provides services to people with developmental
disabilities at its facilities in Lake and Porter Counties in Indiana, where it annually derives gross
revenues in excess of $250,000, and annually purchases and receives at its Indiana facilities
goods, products and materials valued in excess of $50,000 directly from points outside the State
of Indiana. It is admitted and I find that the Company is engaged in commerce within the

1 By Order, dated March 10, 2009, Region 13’s Regional Director amended the consolidated
complaint by removing the United Electrical, Radio and Machine Workers of America Local
1123 as a charging party and leaving the American Federation of Professionals as the sole
charging party in the above-captioned cases.
2 All dates are in 2008, unless otherwise indicated.
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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 Practices
A. The Company’s Operations
The Company, a corporation exempt from taxation under Section 501(c)(3) of the
Internal Revenue Code, provides services to people with developmental disabilities in a variety
of programs based upon the acuity of the disabilities of the people it serves, referred to as
“clients” or “consumers.” Reimbursement for services is primarily from the State of Indiana
through its allocation of Medicaid and other government funds. The Company employs
approximately 381 persons, of which 281 are represented by the Union in two bargaining units.
These two bargaining units were certified following representative elections conducted in
November 2006 for employees in the Day Services Division, and in February 2007 for
employees in the Residential and Supportive Living Divisions.
The Company owns, operates and staffs 29 group homes located at various locations in
Lake and Porter Counties in Indiana. Each group home serves as the residence of between four
to six clients, who may or may not be recipients of services offered by the Day Services
Division. There are approximately 106 Day Services Division employees represented by the
Union. Day Services employees are principally engaged in delivering services to clients at each
of four Day Service Centers located in Gary, Hobart, Crown Point and Highland, Indiana. These
centers are referred to as the North, East, South and West Centers, respectively. The
Company’s management/administrative office, referred to as the Main Center, is located on the
North Center campus in Gary.
Services to clients at each Center are delivered in one of several different programs.
These programs are referred to by various acronyms. Each program is designed to address the
needs of its assigned clients based upon the degree of impairment experienced by each client.
Each of the four Day Services Centers also contain sheltered workshops providing work
opportunities for clients. Another component of Day Services is Placement and Support
Services, which is concerned with locating and developing community-based work opportunities
for clients, and providing the appropriate training and coaching support.
The Supported Living Division is principally engaged in the delivery of services to clients
who, despite their developmental disabilities, are capable of enhanced independent living skills.
In this Division, support services are specific to each client, based upon his or her needs, in
contrast to Residential Services, where program services are limited to what is offered by the
program, in keeping with state and federal regulations. Employees assigned to Supported
Living, including the alleged discriminatees, Florence Basemore and Carmelita Evans, provide
services to clients in their homes. These services are scheduled and performed on the basis of
an Individual Support Plan (ISP) established by the client’s team and generally include support
in daily living skills and, in some cases, transportation services.
B. The Company’s Policies, Rules and Regulations
This case involves the application of the Company’s policies, rules and regulations to
Evans and Basemore. Those policies include a personnel manual, memoranda issued by Terri
Phillips, the Company’s Director of Supported Living, to staff in 2002 and 2003, and a job
description for supported living instructors.
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Prior to the commencement of employment, every employee must sign a “personnel
policies receipt” acknowledging that they received and read the Company’s “personnel policies
which outlines my benefits and obligations as an employee.” The acknowledgement further
states: “I have read and familiarized myself and will comply with the policies and procedures
contained in this manual and other policies which may be established by the Board of Directors
and/or management.”3 Basemore acknowledged receipt of these policies on October 12, 2005;
Evans acknowledged receipt on May 19, 2006.4
The personnel manual, effective August 17, 2005,5 includes four standards of
employment6 at Article V:
(1) cooperate with [the Company] in carrying out its mission and goals in serving [its]
clients; (2) be present at work as required by the core hours assigned and job
description; (3) perform job duties as per the standards required by your job description;
and (4) comply with all company policies and procedures.
Article V also sets forth a Company disciplinary policy. Rather than set forth criteria for
mandatory or progressive discipline, however, the Company appears to have left itself with
broad discretion to deal with inappropriate employee conduct:
When standards of conduct are violated, corrective action will be administered in
accordance with the nature and severity of the offense at the sole discretion of [the
Company]. All corrective actions will be documented in the employee’s personnel file.
Corrective action addresses policy/rule violations and continuous or repeated, avoidable
accidents or incidents. Steps may include: counseling; written warning; probation, work
improvement plan; suspension without pay; dismissal.7
Dismissal/corrective action may begin at any step in accordance with the nature and
severity of the offense. Supervisors may take corrective action with the approval from
the service area Manager/Director. If termination is being considered, the employee’s
Director, the Human Resource Director and the Executive Director must be consulted.
The Human Resources Director shall participate in all termination meetings. The
Executive Director or designee must approve all suspensions, work improvement plans
and terminations from employment.
The provision also lists 14 offenses that will result in corrective action. The pertinent
listed offenses include: (1) failure to comply with the Company’s policies and procedures; (4)
neglect of clients; (10) failing to meet job responsibilities as outlined in the employee job
description; and (14) any other action or behavior as deemed inappropriate by the Company.
The Company has had a longstanding general policy against employees engaging in
personal business while caring for their clients. As far back as August 6, 2002, Phillips issued a

3 The personnel policies receipt and personnel manual were received in evidence together
as R. Exh. 5.
4 R. Exh. 22–23.
5 The personnel manual introduced into evidence contains only 27 pages. (R. Exh. 5.)
6 This Article refers to “standards of employment” and “standards of conduct”
interchangeably.
7 Emphasis in original.
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memorandum to all supported living instructors and lead supervisors restricting staff from taking
clients to family activities. The memorandum states, in pertinent part at page 1:
Many requirements for this program are rapidly changing. The Service Coordinators and
myself have been meeting with the Case managers on a regular basis. All case
managers have made it clear that staff may not bring their children or family to a client’s
apartment or home. This has always been LCAR’s policy too. Medicaid pays us to
provide services to the client and not for staff to socialize with family or friends while on
duty. Case managers will be filing incident reports to the state should they see or hear of
this occurring. I am not aware that this is a widespread occurrence that is happening, so
this should not be a problem for us. Staff may not bring a client to their home or family
outings without the permission of the Service Coordinator. Case managers will be
reporting incidents of this occurring too. We are here and paid to provide a service to our
clients while on duty, and not to conduct personal business while providing these
services.8
Phillips issued another memorandum on the subject of personal business to all
supported living staff on or about May 30, 2003. Basemore, upon being hired in October 2003,
acknowledged receipt of the document.9 However, Evans, hired in May 2006, did not sign such
a receipt and was never provided with a copy of that document.10 The pertinent provision in the
memorandum stated, at page 1:
You are paid to be a support person for the person that you serve. You are expected by
[the Employer] and the client to do the job that you were hired for. You are not to
conduct personal business while working. This means that you may not be reading a
book, doing your homework, doing personal shopping, or talking on the phone while you
are at work.
You are paid to be the support person for the people that we serve. You should be
actively involved with activities for the person or people that you are working with. You
should be bringing them out in the community on a daily basis. Activities do not have to
cost money. You can bring people to malls, walking, free events in the community, parks
and other activities that do not incur a high cost.

8 Neither Evans nor Basemore disputed Phillips’ testimony that this document was inserted
into the manual they were given when hired. (Tr. 430-431.) Moreover, it is not disputed that
Medicaid funding restrictions required supportive living staff to provide covered services to
clients while on duty. Accordingly, I find that, while the Company does not contend that either
Evans or Basemore violated the rule against taking clients on family activities without
permission, this directive put them on notice that they were not to conduct personal business
while on duty. (R. Exh. 5C.)
9 Basemore’s acknowledgement is undated, but it was not disputed that she signed this
receipt upon being hired. (R. Exh. 26; Tr. 114.)
10 Evans denied ever seeing or being provided with such a document and the Company
failed to convince me that it apprised her of such a directive. (Tr. 60.) Although Phillips testified
that this memorandum was located around page 16 in the personnel manual in 2003, the 2005
version does not include it. While she also testified that all memoranda were included in
employees’ paychecks, that distribution would have preceded Evans’ employment in 2006. (Tr.
18, 430–431.) In any event, this memorandum further corroborates a general Company policy of
ensuring that employees did not engage in personal business while on duty.
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On the other hand, there are exceptions to the Company’s general policy against
employees engaging in personal business. To the extent not inconsistent with their job
responsibilities, the Company has permitted employees to engage in nonwork conversation
while caring for clients in their homes. Such permitted conversation has included casual
conversation about the Union.11
The job description for supported living instructors provides a general list of their duties.
As each client has an ISP, the supported living instructor is responsible to provide the services
necessary to carry out the plan. Such services include transportation, maintaining appropriate
documentation, medicating as directed in the plan, complete certifications required by
government regulations, assisting the individual to build a circle of support in the community,
and other duties as assigned. Basemore and Evans acknowledged receipt of this job description
upon commencing their employment.12
The Company further addressed the responsibilities of staff in building greater support
for clients in an undated memorandum. It states, in pertinent part:
Each person that is served in the Supported Living programs should be completing
community activities on a regular basis. Activities should be documented in the
narratives. Activities are to be client choice. As a staff person, your responsibility is to
give the person options.13
C. The Company’s Labor Relations History
After a representation election in November 2006, the Union was certified as the
exclusive labor representative of Day Services employees. That event triggered organizational
activity among Supported Living and Residential Services employees. After a February 2007
representation election, the Union was also certified as the exclusive labor representative for the
Supported Living and Residential Services employees.14
Collective bargaining between the Company and Union began in December 2006 for the
Day Services employees and February 2007 for the Residential and Supported Living
employees. Negotiations were punctuated by intermittent breakdowns and strike threats by the
Union. The Company opposed those threats by speaking directly to employees, including
employees who were on duty with clients in group homes. For example, during the summer of
2007, Phillips met with employees at one of the Company’s residential facilities and urged them
to refrain from supporting a union strike. She met with the employees for periods of time ranging
from 10 to about 45 minutes. As Phillips met with employees, their clients were otherwise

11 Phillips conceded the existence of such a policy during her tenure at the Company. (Tr.
450-451.)
12 R. Exh. 24–25.
13 This undated memorandum was included in the record following the May 30, 2003
memorandum. (R. Exh. 5C.) However, as is the case with Phillips’ May 2003 memorandum,
there is no reliable proof that it was contained in the 2005 version of the personnel manual.
Phillips testified that she did not know when it was created and included in the personnel
manual. (Tr. 433–443.) On the other hand, the substance of this memorandum corroborates
consistent testimony offered by the parties indicating that employees needed to get clients out
into the community.
14 ALJ Exh. 1.
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unattended in their apartments.15 Negotiations continued through August 25, 2008, but were
unsuccessful in producing a collective-bargaining agreement for any of the three bargaining
units. Negotiations broke down at that point after the Union rejected the Company’s “final” offer
and there have been no further proposals exchanged. Since December 2006, the Company
also exhibited other instances of antiunion animus.16
D. Earlier Concerted Activity By Evans and Basemore
Prior to the Union’s certification, Evans and Basemore were among the Union’s most
active supporters. After the Union’s certification as the employees’ labor representative in
February 2007, they joined the Union’s bargaining committee and became heavily involved
during collective bargaining. As contentious bargaining dragged out and a year passed without
a contract, Evans and Basemore became increasingly vocal in their advocacy for the Union’s
bargaining position. In addition to regularly distributing union literature to coworkers in
Supported Living and Residential Services, their names and photographs appeared in a May
12, 2008 flyer urging coworkers to remain united in forcing the Company to agree to a “fair
contract.” They also participated in union rallies held in front of the Main Center and regularly
distributed union literature to coworkers. The Company’s management staff was well aware of
this activity.17
Other incidents involving Basemore also revealed the Company’s antiunion animus. In
July 2007, the Company denied her request for union representation at a potential disciplinary
meeting and reprimanded her for disrespecting a supervisor. Although that reprimand was
subsequently rescinded,18 Basemore’s entanglement with the Company did not end there. In
May 2008, she signed a grievance on behalf of Sandra Riccio, a discharged employee, while
Evans delivered it to a supervisor, Chandra Franklin. However, the grievance was rejected by
human resources director Marie Leonhardt with a note referring them to the employee
handbook.19

15 Phillips did not deny Basemore’s credible testimony as to her actions on behalf of the
Company in 2007. (Tr. 156–160, 182.)
16 The Company does not deny its contentious history with the Union. (Tr. 25–28, 118–122,
210, 242.) In addition, I received in evidence a copy of the Decision in ARC Bridges, Inc., Case
13–CA–44627 (filed December 31, 2008), but asked the parties to brief its applicability to the
issue of antiunion animus in this case. (ALJ 2; Tr. 503.) After considering the parties’ arguments
and taking administrative notice of Board records indicating that exceptions and cross-
exceptions were filed, I take administrative notice of Judge Wachnov’s findings regarding the
Company’s antiunion animus in that case. A judge may rely on factual findings made by another
judge in a prior case, not as binding authority, but rather, for reasons of judicial efficiency. See
Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 394–395 (1998), enfd mem. 215
F.3d. 1327 (6th Cir. 2000) and cases cited therein. This approach advances judicial efficiency
and avoids possibly inconsistent results where one judge makes certain findings and another
judge, hearing essentially the same evidence, makes contrary findings.
17 The Company concedes that Evans and Basemore were heavily and visibly involved in
their support for the Union. (Tr. 22–25, 28–31, 77, 116–118, 122–125, 206–207, 210–212; GC
Exh. 2.)
18 The reprimand was resolved pursuant to an informal settlement agreement. (Tr. 167-172.)
19 While not disputing the involvement by Basemore and Evans on behalf of Riccio, the
Company notes that it rejected the grievance because Evans and Basemore did not comply with
procedures in the employee handbook. In any event, this sequence of events evidenced hostility
on the part of the Company toward the protected concerted activity of Basemore and Evans.
Continued
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E. Evans and Basemore Engage in Union Solicitation at a Company Facility on June 19
On June 19, the parties participated in morning and afternoon collective-bargaining
sessions at the Days Inn in Merryville, Indiana. The afternoon session concluded at 4:40 p.m.
The sessions were attended by Lee Ellis, the Union’s president, Jennie Moreland, the Union’s
secretary/treasurer, and Basemore.20 As part of the Union’s strategy of promoting support for
the Union, after the afternoon bargaining session concluded, Basemore met Evans and they
drove to Garfield House, a Company residential facility also located in Merryville, in order to
solicit employee support for the Union. Prior to arriving at the Garfield House, Evans picked up
her client, Jerome. They arrived together at the Garfield House driveway in a “little black car”
sometime between 5 and 6 p.m. Jose Martinez, a direct support professional and lead
supervisor at the Garfield House, was preparing dinner in the kitchen. Two of his clients were in
the kitchen; a third was in his room.21
_________________________
(Tr. 31–36, 125–126, 176, 213–215; GC Exh. 3.)
20 Evans did not testify that she attended the bargaining session that day, but instead, went
home after dropping off Jerome at his regular bus stop. On that basis, I do not credit the
uncertain testimony of Ellis that she attended the morning bargaining session on June 19. (Tr.
24–25, 66, 274.)
21 There are numerous problems with the versions provided by Martinez, Evans and
Basemore. Nevertheless, I base the finding that Evans and Basemore visited the Garfield
House on June 19 on several factors. Martinez readily conceded his antiunion animus and
provided a clear and unequivocal explanation of the events that transpired that afternoon as he
prepared dinner for his clients. Neither Evans nor Basemore disputed his description of Jerome
or the “little black car,” which presumably belonged to one of them. (Tr. 323–326.). While
Martinez wrote in his report that the incident occurred at 6 p.m., he explained on cross-
examination that it could have occurred between 5 and 6 p.m. (Tr. 336.) He was also confused
as to whether he subsequently spoke with Evans on June 22 or 23, and whether he wrote the
report on June 20 or 23, but he and Evans agreed that she dropped-off literature at Garfield
House on June 22 and they argued about that the following day. (Tr. 74–75, 349–350.)
Evans denied that she visited Garfield House that day, but was less than credible regarding
the details of her trip to Wal-Mart that evening and her compilation of the required daily
narratives. (Tr. 65–70, 95, 380–382.) Notwithstanding the fact that her first Board affidavit
discussed her visit to Wal-Mart, while her second one did not, and a third one contained an
extensive version of her visit to Wal-Mart, I find that she did eventually go there with Jerome.
However, her testimony that Jerome remained with her in the McDonald’s section of Wal-Mart
while she spoke with Darius Moore, her son, was undermined by the latter’s tentative responses
and failure to recall whether Jerome remained with them the entire time. (Tr. 100–101, 105.) I
was also struck by the apparent coordination of the sworn statements provided by Evans and
Moore at the office of the General Counsel on January 7, 2009. (Tr. 107.) Those testimonial
nuances, coupled with my doubt from Evans’ conflicting testimony as to whether she wrote the
required daily narrative on June 19 (Tr. 43–48, 72–73.), convinces me that she visited Garfield
House on June 19.
With respect to Basemore’s version, I was not impressed by her overly general testimony
that she was at the Days Inn until leaving at 7 p.m. (Tr. 165–166.) The Days Inn and the
Garfield House are both located in Merrillville, Indiana. (Tr. 273, 317.) Coupled with Ellis’
testimony that the Union sought to stem flagging employee support by visiting them at their
assigned facilities (Tr. 277.), and Moreland’s testimony that the union team took about a 30-
minute break before continuing discussions among themselves, (Tr. 223–225.), I find that
Basemore had sufficient time to get picked up by Evans at the Days Inn, visit the Garfield House
Continued
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Martinez met Evans and Basemore at the side door to the kitchen. They proceeded to
speak with Martinez about signing a petition in support of the union. Martinez said he was busy
making dinner and refused to sign the petition.22 The conversation continued for about 10
minutes, as Martinez again refused Evans’ requests to sign the petition. During this time,
Jerome, within view of Martinez, paced in front of the house while talking to himself.23 The
encounter concluded with Martinez stating he would not sign anything until he obtained more
information. Evans and Basemore replied that they would provide him with the information and
call him later about signing a petition. They provided him with some basic Union information and
left with Jerome. Martinez resumed cooking in the kitchen.24
After visiting Garfield Home, Evans dropped off Basemore at the hotel and drove with
Jerome to spend time at a nearby Wal-Mart store after 6 p.m. After being dropped off by Evans,
Basemore returned to the hotel and met with Moreland and Ellis until about 7 p.m. before going
shopping at a department store across the street.25
The next day, Friday, June 20, Martinez went to the management office and informed his
area manager, Brandi Redelman,26 about the visit to Garfield House by Evans and Basemore.
Redelman instructed Martinez to submit an incident report. Martinez did not, however, actually
submit a report to Redelman until June 23.27 Nevertheless, upon receiving Martinez’s verbal
report on June 20, Redelman immediately notified Phillips and other management staff, and
began an investigation.28
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for approximately 10 minutes and return to meet the union team at some point before leaving
the hotel at 7 p.m.
22 I credited Martinez’s testimony that, at the time, two of his clients were in the kitchen and
one of them started getting agitated. However, Martinez did not testify that Evans and
Basemore were aware of anything other than that they were delaying him from preparing dinner.
As such, Martinez’s concerns about client behavior, not expressed to Evans and Basemore at
the time, is of no consequence. (Tr. 328–331.)
23 Although Martinez’s testimony suggests that Evans inappropriately left Jerome
unattended while she spoke with Martinez, Evans was not charged with neglect for doing so.
Moreover, I find it curious that the Company seemed to highlight that issue, while not raising the
slightest concern when Evans testified later on that she frequently took Jerome to Wal-Mart and
allowed him to roam the store alone. (Tr. 326–327.)
24 Although the testimony is vague on this point, the information provided by Basemore and
Evans to Martinez at that time was different from the information dropped off at Garfield House
on June 22. (Tr. 330.) I base this finding on Evans’ conversation with Martinez on June 23.
25 As explained at fn. 21, Evans and Basemore visited Garfield House sometime between 5
and 6 p.m., spent about 10 minutes there and returned to drop off Basemore at the Days Inn at
around 6 p.m. (Tr. 161–162, 165–167, 223–229, 273–274, 277–279.)
26 The transcript incorrectly refers to Redelman as “Redelnan.” The correct spelling is
provided in the exhibits. See, for example, GC Exh. 10.
27 While Martinez was confused as to whether he submitted the report on June 20 or 23, the
credible evidence established that he verbally reported the incident to Redelman on June 20.
(Tr. 343–345.)
28 By her own account, even though Martinez had not yet submitted a written report,
Redelman immediately began an “investigation” on June 20. (Tr. 379, 403.) Her purported
investigation, however, consisted of accumulating “rumors” of Evans’ union solicitation activities
at other facilities, which later turned out to be untrue. It was not until June 25, after Phillips
Continued
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On June 22, at about 7:30 p.m., Evans went by herself to the Garfield House and left
union newsletters by the door for employees who worked there. She did not, however, speak to
any employees while dropping off these newsletters. The next day, June 23, Evans called the
Garfield House to confirm that the newsletters had been received by the employees who worked
there. Martinez answered the telephone and Evans asked him if Garfield House employees
received the newsletters that she dropped off the day before. After Evans confirmed that the
newsletters related to the Union, Martinez told her that he was not interested. Nevertheless,
Evans explained that the newsletters were left for the other workers at Garfield House. Martinez,
clearly annoyed at this point, proceeded to lecture Evans about how the Union was for
employees who were lazy and did not want to perform their duties. Evans responded that
everyone, including Martinez, would have to pay union dues if the Union succeeded in
negotiating a collective-bargaining agreement. Martinez conceding that point and concluded the
conversation. A day later, he would vent his frustration by signing a union decertification
petition.29
F. Evans is Terminated
Martinez finally submitted his report to Redelman on June 23. The report listed the
cause of the incident as “solicitation” and he described it as follows: “2 staff Florence and
Carmelita came to Garfield to ask me to sign some things for the union, Jerome . . . was also
there.”30 Under another section on the form asking for “measures” to “prevent reoccurrence of
this incident/accident,” Martinez wrote: “inform union representatives about the no solicitation on
Company property.”31 Martinez listed himself and two of the Garfield House residents as
witnesses.32 Redelman immediately informed Phillips about Martinez’ report.33
The next day, June 24, without interviewing Evans, Phillips wrote a letter terminating her.
The letter echoed Martinez’ account that Evans, while on her assigned shift with Jerome, went
_________________________
drafted a termination letter, that Redelman looked for Evans’ daily narratives at Jerome’s
apartment, interviewed Evans and spoke again with Martinez. (Tr. 381, 387, 394–397.)
29 It is undisputed that Evans and Martinez engaged in this conversation on June 23 and
that Martinez signed a decertification petition on June 24. (Tr. 58–59, 73–75, 355–358, 361.)
30 Although Martinez was not clear as to when he submitted his written report, the date on p.
2 of the report (“623”) confirms Redelman’s testimony that it was submitted on June 23. (R. Exh.
5A; Tr. 331, 343, 378–379.)
31 The Company’s brief, referring to pp. 18–19 of its personnel manual, takes issue with
Martinez’s “incorrect” description of its rules against solicitation and contends that its rules have
long prohibited the conduct of personal business by service providers. The personnel manual
does not, however, refer to the conduct of personal business by employees while working, much
less to solicitation. (R. Exh. 3.)
32 Although Martinez listed two clients as witnesses, there was no testimony that they were
interviewed by management or possessed the capacity to provide reliable testimony. (R. Exh.
5A.)
33 Redelman’s credibility in conducting a fair and impartial investigation was impeached by
her responses as to how she handled information provided by Martinez. She initially denied
knowing that Martinez harbored antiunion animus when he submitted the written report on June
23. However, when confronted with his antiunion statements regarding his conversation with
Evans on June 22, Redelman conceded that she gave no thought as to whether Martinez’s
views on the Union and his verbal altercation with Evans on June 22 might have tainted his
complaint against Evans and Basemore. (Tr. 402–403.)
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with him and an off-duty staff member to visit a supported living site on June 19 in order to
solicit for the Union. Phillips explained her rationale for termination as follows:
This was not in the program plan for the client that you were being paid to provide
services to. You were being paid to provide services as outlined in his ISP. There was
nothing in his plan about going to any site to ask staff to sign some type of union card.
This was business that was personal and not related to your job.
On November 21, 2006, you received a memo from Dorothy Shawver-Zolcak that stated
that this activity was wrong.34 You have a copy of the Supported living staff manual, and
there is one at each site. A memo in the manual dated May 30, 2003,35 states that staff
may not conduct personal business while working.
You chose to ignore these standards and conduct personal business of solicitation while
being paid to work with a consumer. You failed to perform your job responsibilities and
provide him with services.
You have a history of corrective action. Less than a year ago, on 6/28/07, you received a
three day suspension for failure to perform job responsibilities and failure to notify a
supervisor that a client was not home.
Arc BRIDGES has a progressive corrective action policy. Due to this current incident and
your history of a three day suspension, your employment here at Arc BRIDGES is being
terminated.36
On June 25, Evans arrived for work at Jerome’s residence at 7 a.m. and was met by Ben
Dilts, a service coordinator. Dilts told Evans that she needed to speak with Redelman. He
immediately called Redelman and put her on the telephone with Evans. Redelman informed
Evans she was “off the schedule” and would call her later that morning. A short while later,
Redelman instructed Evans to come to the Main Center for a meeting. Evans arrived at the
Main Center about an hour later and met in a conference room with Redelman and Tom
Hartzell, the business director.
After Evans was told that it was an investigative interview and declined the opportunity to
have a representative present, Redelman asked Evans for her daily narratives. Evans produced
one for June 24, but Redelman asked for the narratives missing from Jerome’s apartment for

34 The Company did not provide a copy of such a memorandum, but the General Counsel
introduced a copy of a memorandum issued to Akeisha Coleman and Gregory Ellis, “SIP Tech”
employees, dated November 22, 2006, as the only proof of such a directive. The memorandum
prohibited them from continuing to visit group homes, while off-duty, to solicit for the Union and
warned of further action if it continued. The memorandum was copied to “Personnel.” However,
the Company failed to refute the General Counsel’s contention that the November 22, 2006
memorandum was the only proof of a nonsolicitation directive, and I find, that such a
memorandum was not provided to either Evans or Basemore (GC Exh. 7; Tr. 59.) Furthermore,
even if the Company inserted such a document in its manual and made it available for
employees to review, there was no rule that employees review the manual periodically for
updates. (Tr. 431, 453.)
35 As previously explained at fn. 5, the Company produced the 27-page manual in effect in
2005. (R. Exh. 5.), and I credited Evans’ testimony that she never saw that document. (Tr. 60.)
36 GC Exh. 6.
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several other days, including June 19. Evans stated that she “could not remember what they
did” on those days, but believed that she wrote them.37 Redelman then told Evans there were
rumors” that she conducted Union business at the Garfield House and another group facility
while working and accompanied by Jerome. Evans denied such rumors and, at Redelman’s
request, wrote a statement to that effect.38 Hartzell then asked Evans if she visited the Garfield
House on June 19 accompanied by Jerome and Basemore. Evans again denied the allegations
and insisted that she went to the Garfield House and Hayes Home by herself, while off-duty on
June 22, to drop off union newsletters. Redelman and Hartzell concluded the meeting and
informed Evans that the investigation was continuing.39
Later that day, Redelman called Martinez and he confirmed that Evans may have visited
the Garfield House on June 22. She also asked Martinez about his telephone conversation with
Evans on June 23 about the literature she dropped off the day before. During that conversation,
Martinez admitted criticizing union supporters by telling Evans that the Union “was for lazy
people and for people who didn’t want to do their jobs.” Furthermore, Martinez admitted that
Evans responded by advising him that he too would have to pay union dues if the Union was
able to negotiate an initial contract.40
During the morning of June 26, Evans dropped off the missing narratives at Redelman’s
office, including one for June 19. She did not speak to Redelman at that time. The June 19
narrative, which Evans wrote after the June 25 meeting, included a statement that Evans took
Jerome to a Wal-Mart store on June 19. Redelman tried calling Evans several times that day,
but was unsuccessful and did not leave a message.41 She was, however, able to reach Evans
during the morning of June 27 and instructed to report to the Main Center. Evans arrived later
that morning and was taken to an office where she also met with Phillips and Hartzell. At that
point, Phillips read Evans the June 24 termination letter.42

37 The Company’s disciplinary action made no mention of Evans’ failure to maintain daily
narratives, which are required by the Company’s personnel manual and Indiana law.
38 Evans’ denial that she went to Garfield House with Jerome on June 19 is a strong
indication that such an activity was not included in his ISP. (GC Exh. 4.)
39 Evans and Redelman provided fairly consistent testimony as to their discussion during
this meeting. (Tr. 39–43, 380-384, 394-395.)
40 This finding is based on the consistent testimony of Redelman and Martinez that Evans
called the latter on June 23 and he conveyed strong antiunion sentiments during that
conversation. (Tr. 349–351, 396–399.)
41 Given Evans’ inconsistent testimony as to when she wrote the June 19 narrative, I do not
believe that Evans found them when she got home on June 25, but rather, that she proceeded
to write the June 19 narrative at that time. (Tr. 44–49, 95.) I base this finding on Redelman’s
more credible testimony that Evans conceded at the June 25 meeting that she had not yet
written the June 19 narrative. (Tr. 380-382; GC Exh. 5.) In any event, there is no credible
testimony or other evidence that Redelman or Phillips considered Evans’ version of events as
contained in the June 19 narrative prior to terminating her. In fact, Phillips wrote the termination
letter on June 24, even though Redelman was still looking for Evans’ narratives on that date.
(Tr. 408.)
42 It is not disputed that Evans was given the termination letter on June 27. (GC Exh. 6; Tr.
49–50.) However, as previously noted, given the date of the letter, Phillips decided to terminate
Evans on June 24. As such, Redelman’s testimony that the decision was made to terminate
Evans after she completed her investigation was not credible. (Tr. 289–290.)
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G. Basemore is Reprimanded
On June 26, one day before Evans’ termination, Redelman called Basemore while she
was off-duty and requested that she come into the office for a meeting. Over the course of the
next week, however, Redelman and Basemore argued over whether the latter would be able to
have union representative Jennie Moreland represent her. Although that issue was not resolved,
Basemore came in for the meeting on July 3 accompanied by Moreland. Redelman, however,
denied Basemore’s request and reiterated the Company’s position that only an employee could
represent Basemore. At that point, Moreland asked Redelman to sign a document stating: “That
on this date, I refused to permit Florence Basemore to have Weingarten representation of her
choosing and further refused to permit UE Local 1123/AFP representative Jennie Moreland, to
participate in Arc Bridges’ disciplinary investigation.”43 Redelman took the document into Philips
office and, a few minutes later, returned with Phillips. They refused to sign the document and
Redelman reiterated that Basemore choose an employee to represent her. Basemore refused
that request and left with Moreland.44
On July 9, Basemore was called into a meeting with Redelman and two other
supervisors. Redelman handed Basemore a written reprimand, dated July 3, and then read it to
her. The memorandum reprimanded Basemore for soliciting on behalf of the Union at Garfield
House on June 19. Redelman also explained that, even though Basemore was off-duty and not
accompanied by a client during the June 19 incident, she interviewed one of Basemore’s clients.
Redelman told Basemore that she elicited a statement from the client that he and Basemore “go
and do things for the union.” The memorandum then went through the litany of events regarding
her attempts to meet with Basemore and concluded with the rationale for reprimanding her.
You left without meeting with me. The investigation was completed without your input. It
does appear that you were conducting personal business with employees that were
working during your off time. You received a memo from Dorothy Shawver, November
2006 on this topic and chose to ignore it.
You are receiving this reprimand for you conducting business with Arc BRIDGES
employees during their work time. This interferes with their ability to provide quality
services to the clients that we serve. You are also being reprimanded for your attempts
to prolong an investigation that should have been resolved in a more timely fashion.
Arc BRIDGES has a progressive corrective action policy. You may subject to additional
corrective action should this occur again.45
The Union responded to Basemore’s discipline by filing charges in Case 13–CA–44804.
In that case, the Union charged that the Company violated Basemore’s Weingarten rights by
refusing to permit her to have Moreland represent her at the investigatory meeting and then
unlawfully reprimanding her for refusing to meet with Redelman because of that denial. The
portion of the charges dealing with the alleged violation of Basemore’s Weingarten rights was

43 GC Exh. 13.
44 There is no material dispute as to what transpired between the time Redelman requested
Basemore come in for a meeting and their aborted meeting on July 3. (Tr. 128–132, 136–139,
216–219.)
45 Here, too, the Company failed to provide credible evidence that the Shawver November
2006 memorandum was distributed to employees other than Akeisha Coleman and Gregory
Ellis. (GC Exh. 8; Tr. 139–142.)
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resolved through a settlement agreement. While the specific terms of the agreement were
contained in an annexed “notice” for posting, the scope of the settlement agreement was stated
as follows:
This Agreement settles only the allegations in the above-captioned case(s) and does not
constitute a settlement of any other case(s) or matters. It does not preclude persons
from filing charges, the General Counsel from prosecuting complaints, or the Board and
the courts from finding violations with respect to matters which precede the date of the
approval of this Agreement regardless of whether such matters are known to the
General Counsel or are readily discoverable. The General Counsel reserves the right to
use the evidence obtained in the investigation and prosecution of the above captioned
case(s) for any relevant purpose in the litigation of this or any other case(s), and a judge,
the Board and the courts may make findings of fact and/or conclusions of law with
respect to said evidence.46
In a letter, dated October 9, the Regional Director dismissed the Union’s charge,
referring only generally to the alleged violations under “Section 8” of the Act:
Decision to Dismiss: Based on that investigation, I have concluded that further
proceedings are not warranted, and I am dismissing your charge for the following
reasons.
The Charged Party has signed a Settlement Agreement that remedies the allegations of
the charge that I found to have merit. In view of the undertaking contained in the
attached Settlement Agreement, it does not appear that it would effectuate the purposes
of the National Labor Relations Act to institute further proceedings at this time.47
H. Comparing the Evans and Basemore Discipline to that Issued to other Employees
During the period of 2003 to June 2008, the Company has disciplined numerous
employees for engaging in personal business or nonprogramming activity while on duty with
clients. The relevant disciplinary history during that period includes the discharge of six
employees, suspension of two employees, reprimand of five employees and counseling of five
employees.48

46 The settlement agreement is not dated, but I find that it was executed sometime between
the date that the charge was filed, September 22, and the date that the Regional Director
dismissed the charge on October 9. (R. Exh. 3; GC Exh. 9; Tr. 148–49, 297–298.)
47 The parties did not explain the circumstances of the Regional Director’s dismissal, so it is
unclear whether it was a pro forma exercise after the settlement or as the result of the Regional
Director’s further consideration of information relating to the portion of the charge not referred to
in the notice attached to, and incorporated by, the settlement agreement. (R. Exh. 3.)
48 The Company provided testimony by its human resources director, Marie Leonhardt,
regarding allegedly comparable discipline administered to coworkers. However, except with
respect to certain background or clarifying information not otherwise evident from the
disciplinary reports in evidence, I did not find her credible as to the comparability of discipline
administered to other employees. Leonhardt spent the overwhelming portion of her time on the
witness stand looking at the Company’s representative seated at counsel’s table. At certain
points, she even attempted to communicate discreetly with the Company’s representative. This
behavior was also noticed by the Union’s representative, who brought it to my attention.
However, as I did not observe similar behavior from counsel’s table, I declined to reveal my
Continued
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The activities for which employees were discharged consisted of the following
infractions: neglecting a client whose clothes were covered by feces;49 abusing and neglecting a
client by failing to change his soiled diaper and insubordination toward a supervisor;50
abandoning and neglecting a client for two hours to attend church services and then falsifying a
timesheet in order to be paid for work not performed, coupled with a prior reprimand for
improper medication administration;51 grossly neglecting a client on several occasions for long
periods of time and then falsifying her timesheet in order to be paid for work not performed;52
permitting a client to physically abuse two other clients, preceded by a prior disciplinary
history;53 and disregarding a supervisor’s direct order to eat at a certain time and, instead of
taking the clients to their jobs, driving them to a restaurant in a Company vehicle, picking up
food, eating in front of the clients and dropping off the rest of the food at home, before finally
taking them to their jobs, which infraction was preceded by an earlier reprimand.54
Employees who were suspended engaged in the following types of activity: taking two
clients on personal business to a nail salon and then breaching the confidentiality of the clients
at the salon (3-day suspension);55 and taking a client to the employee’s church for 8-1/2 hours
and failing to provide any services to her other two clients, which was preceded by several
instances of discipline, including a suspension (1-day suspension).56
Employees were reprimanded for the following types of conduct: client neglect causing
one to miss a medical appointment and another to walk to his mother’s house unsupervised;57
failing to report the nonprogramming activities of coworkers, preceded by a prior discipline for
another infraction;58 and failing to follow a Company policy, which resulted in clients’ funds
being stolen.59
Employees were counseled for the following types of infractions: for briefly leaving
clients at a community activity and going to do her banking;60 briefly leaving clients after a
community activity to go look for her driver’s license, which discipline was preceded by an
earlier counseling;61 failing to report the nonprogramming activities of coworkers;62 and using a
personal cellular telephone during work time.63
_________________________
observations to the witness at that time. Instead, I reserved my comments for this credibility
discussion.
49 R. Exh. 20.
50 R. Exh. 21.
51 R. Exh. 6.
52 R. Exh. 7.
53 R. Exh. 12.
54 R. Exh. 15.
55 R. Exh. 13.
56 R. Exh. 8.
57 R. Exh. 16, 19.
58 R. Exh. 10.
59 R. Exh. 17–18.
60 GC Exh. 17.
61 GC Exh. 18.
62 R. Exh. 9.
63 R. Exh. 11, 14.
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Legal Analysis
The complaint alleges that the Company discharged Evans and reprimanded Basemore
in violation of Section 8(a)(3) and (1) because they assisted the Union and engaged in protected
concerted activities, and to discourage employees from engaging in these activities. The
Company denies that it had discriminatory motivation in disciplining these employees and
contends that its adverse action was lawfully imposed because they violated Company policy by
soliciting an employee on behalf of the Union while he worked at one of its facilities. Moreover,
the Company contends that the case brought on behalf of Basemore is barred by the principles
of collateral estoppel and res judicata because it was previously dismissed by the Regional
Director and not appealed.
A. The Prior Settlement Agreement
The Company invoked the defenses of collateral estoppel and res judicata as bars to the
prosecution of the case brought on behalf of Basemore. Under the doctrine of collateral
estoppel, “once an issue is actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent suits based on a different cause of
action involving a party to the prior litigation.” Big D Service Co., 293 NLRB 322, 323 (1989)
[citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 fn. 5 (1979) and Marlene Industries
Corp. v. NLRB, 712 F.2d 1011, 1015–1016 (6th Cir. 1983)]. See also Sabine Towing &
Transportation Co., 263 NLRB 114, 120 (1982) (collateral estoppel bars relitigation of issue
previously decided against the General Counsel). An issue is “necessarily determined” if its
adjudication was necessary to support the judgment entered in the prior proceeding. Marlene
Industries, 712 F.2d at 1015. The concept of res judicata, on the other hand, applies only to a
“final judgment” on the merits and bars further claims by parties based on the same cause of
action. Cromwell v. County of Sac, 94 U.S. 351, 352 (1876); Lawlor v. National Screen Service
Corp., 349 U.S. 322, 326 (1955).
The Regional Director’s dismissal of the charge in Case 13–CA–44804 can be
considered a “final judgment.” See International Union Of Electrical, Radio And Machine
Workers, Local 617, AFL–CIO, 266 NLRB 804, 809–810 (1983). In addition, the Union was the
charging party in both the dismissed case and the instant cases. Under the circumstances,
however, I am not convinced that the issues relating to Basemore’s reprimand for visiting
Garfield House were “actually litigated.” The Regional Director’s dismissal of the charge states
that it is based on an “investigation.” As such, there is no evidence that the investigation
involved litigated facts. Fayette Electrical Cooperative, Inc., 316 NLRB 1118, 1119 (1995).
While the concepts of collateral estoppel and res judicata are not applicable in this
situation, the Company’s reliance on the Settlement Agreement itself presents a different issue.
The Company essentially contends that the resolution of “only the allegations in the above-
captioned case” barred all of the allegations contained in the dismissed charge. The General
Counsel, on the other hand, essentially argues that any portion of the settled charge not
otherwise referenced in the “notice” annexed to the settlement agreement was preserved for
litigation. Both interpretations are plausible. As such, the settlement agreement, when read in
conjunction with the attached notice, is patently ambiguous. See Sanitation Salvage
Corporation, 342 NLRB 449 (2004) [citing Sun Shipbuilding & Dry Dock Co. v. United States,
393 F.2d 807, 815-816 (1968)] (contract is ambiguous if it is susceptible to two different
interpretations, each of which is found to be consistent with the contract's language).
In this instance, I could turn to extrinsic evidence in the record to clarify the ambiguity.
See Des Moines Register & Tribune Co., 339 NLRB 1035, 1037 (2003). However, there are two
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obstacles presented by such an approach. First, I examined the record and found no testimony
indicating the intentions of the parties, at the time they entered into the agreement, regarding
the continued viability of a charge pertaining to Basemore’s discipline for soliciting at Garfield
House on June 19. Secondly, even if some of the testimony could be construed as shedding
light on the parties’ intentions, the Company did not affirmatively plead that the agreement itself
constituted a bar to the Basemore-based charges. Under the circumstances, it would be
inappropriate to amend the pleadings to conform to such limited proof. Accordingly, the
Company’s defense premised on the resolution of the prior charge is rejected.
B. The Disciplinary Issues
In order to prove a Section 8(a)(3) violation under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), the General Counsel must first show, by a preponderance of
the evidence, that protected conduct was a motivating factor in the employer's adverse action. A
prima facie case requires that the General Counsel demonstrate protected activity, employer
knowledge of that activity, and animus against protected activity. If these elements are met, the
burden of persuasion shifts to the employer to show that it would have taken the same adverse
action even in the absence of the protected activity. Id. If, however, the evidence establishes
that the reasons given for the employer's action are pretextual, the employer fails by definition to
show that it would have taken the same action for those reasons, and thus there is no need to
perform the second part of the Wright Line analysis. United Rentals, 350 NLRB 951, 951–952
(2007) [citing Golden State Foods Corp., 340 NLRB 382, 385 (2003) and Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)].
It is not disputed that Evans and Basemore engaged in protected concerted activity on
behalf of the Union for approximately a year and a half before they were disciplined. After the
Union was certified as bargaining representative for the bargaining unit members, Evans and
Basemore joined the bargaining committee and confronted managerial employees Hartzell and
Leonhardt at bargaining sessions, organized employee rallies in front of the Company’s Main
Center when negotiations stalled, appeared in the union newsletter urging employees to support
the Union’s position during negotiations, and tangled with management while attempting to
submit a grievance on behalf of a discharged employee.
While the Company does not deny knowledge of such activities, it does deny that it
harbored antiunion animus during that period of time. Judge Wacknov’s findings in Case 13–
CA–44627, however, established the existence of a significant amount of antiunion animus on
the part of the Company during the period following union certification. In addition, this record
contains several incidents in which the Company exhibited antiunion animus: Phillips’ urging on-
duty employees to oppose any strike activity by the Union; the rejection of the grievance
submitted by Evans and Basemore on behalf of a discharged employee approximately 1 month
prior to their discipline; and the denial of Basemore’s request to have Moreland represent her at
the disciplinary interview on July 3.
Several factors establish that the Company had a discriminatory motivation in
disciplining Evans and Basemore. Although the credible trial testimony demonstrated that Evans
and Basemore did visit Garfield House, the pertinent issue is how the Company responded to
that event. The Company did not conduct a meaningful investigation. Rather than interview
Evans and Basemore, Redelman adopted Martinez’s verbal report on June 20 regarding the
June 19 incident as fact and reported the incident to Phillips. Without the benefit of a legitimate
investigation, including interviews of Evans or Basemore, responded to Martinez’s written report
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of June 23 by preparing Evans’ termination letter the next day. She held off issuing it to Evans,
however, until Redelman essentially staged an investigation.64 Redelman’s alleged investigation
into the accusations against Evans and Basemore consisted of Martinez’s initial report to
Redelman about the incident and conversations with clients at other group homes regarding
unsubstantiated rumors that Evans and Basemore solicited there on behalf of the Union. She
met with Evans on June 25 and the latter denied the visit to Garfield House. Although Redelman
requested copies of Evans narratives for several days, including June 19, the Company did not
charge Evans with failing to generate such documentation. Nor did it charge Evans with
neglecting or abusing her client, Jerome. Redelman then followed up on that discussion by
confirming with Martinez that Evans visited Garfield House on June 22 to drop off papers and,
during that conversation, he expressed his vehement opposition to the Union. Notwithstanding
Martinez’s antiunion sentiments, Redelman never considered that Evans might be telling the
truth in denying that she went to Garfield House on June 19. Nor did she consider or follow-up
on the narrative subsequently produced by Evans on June 26.
It was not until June 26 that Redelman sought to meet with Basemore. By then, the
aforementioned staged investigation resulted in the determination that Basemore and Evans
visited Garfield House on June 19 and Evans would be disciplined. That sequence of events
provides a strong indication that, notwithstanding Redelman’s unsuccessful attempts to get
Basemore in for a formal interview, the decision had already been to discipline Basemore as
well because of the Company’s antiunion animus.
Assuming, arguendo, that the Company justifiably relied on Martinez’s report of the June
19 incident, the facts demonstrate that Evans and Basemore were subjected to disparate
discipline. The discipline administered to other employees during the preceding 5 years
indicates that, in the absence of their protected concerted activity, Evans would not have been
discharged and Basemore would not have been reprimanded. Evans’ unscheduled and
unapproved visit with Jerome to Garfield House violated Company rules prohibiting employees
from engaging in personal business while caring for their clients. Furthermore, Evans did not
dispute that the charge that she engaged in a nonprogram activity with Jerome. However, unlike
the six employees previously discharged, Evans was not charged with abusing and/or
neglecting her client, insubordination or otherwise disobeying the directive of a supervisor,
falsifying a timesheet or permitting a client to physically abuse other clients. Nor would her
conduct have amounted to a suspension, as the two alleged comparables involving
suspensions involved more significant violations of Company rules and policies. In contrast to
the approximately 10 minutes of personal business Evans spent at Garfield House, an
employee took clients to her nail salon and breached their confidentiality. In the other instance,
an employee took her client to her church for 8-1/2 hours and failed to provide services to her
other two clients during that time. Furthermore, that employee, in contrast to Evans’ prior
counseling, had several prior disciplinary infractions, including a suspension, which was
preceded by several instances of discipline, including a suspension.
A reprimand, however, would have been appropriate in Evans’ case. Although she did
not neglect or abuse her client, taking a client on a nonprogram activity is certainly as serious, if
not more serious, than the failure of an employee to report the nonprogramming activity of a
coworker. Like Evans, that employee had a prior discipline on her record.65

64 I base this conclusion on the fact that Phillips testified, but never explained why the
termination letter was written on June 24 – before Evans was interviewed and the Company’s
alleged investigation was concluded.
65 R. Exh. 10.
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In Basemore’s case, neither the reprimand issued her, nor counseling, would have been
appropriate under the circumstances. Basemore was charged with soliciting on behalf of the
Union and thereby interfering with the work of a coworker. However, the legitimacy of such a
charge relies upon a November 2006 nonsolicitation memorandum that was never distributed to
Basemore or, for that matter, Evans. While Basemore did communicate briefly with Martinez
while he was on-duty, she was off-duty and the Company did have a policy of permitting
employees to engage in casual conversation about the Union even while they were on duty. I
did not find an example comparable discipline in the record.
Moreover, in contrast to employees who were counseled, Basemore was neither working
nor accompanied by clients at the time that she accompanied Evans and Jerome to Garfield
House. As such, her conduct did not involve the neglect or abuse of a client. Nor did the
Company charge her with failing to report the nonprogramming activities of a coworker.
However, had it done so, there was no evidence that Basemore had knowledge of Jerome’s
individualized plan for program activities. Lastly, unlike Basemore, the employee counseled for
failing to make such a report also had a prior disciplinary infraction. Under the circumstances,
the Company would not have been reasonably expected to have disciplined Basemore.
Under the circumstances, the Company violated Section 8(a)(3) and (1) by: (1)
discharging, rather than reprimanding, Evans on June 27 because she took her client to another
group home in order to solicit on behalf of the Union; and (2) reprimanding Basemore for
accompanying Evans in that endeavor.
Conclusions of Law
1. The Company is an employer engaged in commerce and a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The American Federation of Professionals is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Company violated Section 8(a)(3) and (1) of the Act by terminating Carmelita
Evans, rather than reprimanding her, because she engaged in protected concerted activity on
June 19, 2008.
4. The Company violated Section 8(a)(3) and (1) of the Act by reprimanding Florence
Basemore because she engaged in protected concerted activity on June 19, 2008.
5. 7. The aforementioned practices affect commerce within the meaning of Section
8(a)(3), and (1), and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Carmelita Evans, it must offer her
reinstatement and make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
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interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended66
ORDER
The Respondent, ARC Bridges, Inc., of Gary, Indiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging, reprimanding or otherwise discriminating against any employee for
supporting the American Federation of Professionals or any other union.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Carmelita Evans full reinstatement
to her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Carmelita Evans whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharge of Carmelita Evans and, in lieu thereof, state that she was reprimanded
on July 27, 2008 for her violation of a Company policy on June 19, 2008 and within 3 days
thereafter notify her in writing that this has been done and that, to the extent modified, the prior
discipline will not be used against her in any way.
(d) Within 14 days from the date of this Order, remove from its files any reference to
the reprimand of Florence Basemore on July 3, 2008 and, and within 3 days thereafter notify her
in writing that this has been done and that the discharge will not be used against her in any way.
(e) 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, 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.

66 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.
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(f) Within 14 days after service by the Region, post at its Main Center facility in Gary,
Indiana, copies of the attached notice marked “Appendix A”67 in English. Copies of the notice,
on forms provided by the Regional Director for Region 13 after being signed by the Company’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. Reasonable steps shall be taken by the Company 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 Company has gone out of business or closed the facility
involved in these proceedings, the Company shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Company at
any time since June 27, 2008.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. September 30, 2009
_______________________________
Michael A. Rosas
Administrative Law Judge

67 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–47–09
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL not terminate, reprimand or otherwise discriminate against any of you for supporting
the American Federation of Professionals.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Carmelita Evans full reinstatement to
her former job or, if that job no longer exists, to a substantially equivalent positions, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Carmelita Evans whole for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Carmelita Evans on July 27 and, in lieu thereof, insert a statement that
she was reprimanded for her violation of a Company policy on June 19, 2008.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful reprimand of Florence Basemore on July 3, 2008.
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the aforementioned unlawful discipline, except to the extent modified as to Evans, will not
be used against them in any way.
AMERICAN FEDERATION OF PROFESSIONALS
(Employer)
Dated By
(Representative) (Title)
JD–47–09
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.
209 South La Salle Street
Suite 900
Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
312-353-7570
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, 943-645-3598