David Van Os and Associates

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 804 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 79
804
David Van Os and Associates, PC and Mary Louise
Davila and Oralia Castillo and Mary Ann Yba-
rra and Kandace Kay Konrad, and Nicole Bet-
ters. Cases 28–CA–16723, 28–CA–16732–1, 28–
CA–16732–2, 28–CA–16732–3, and 28–CA–
16786
March 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LEIBMAN AND
SCHAUMBER
On May 7, 2002, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The General
Counsel and Charging Party Nicole Betters each filed
exceptions and a supporting brief, and the Respondent
filed briefs answering their exceptions. The General
Counsel also filed a brief in reply to the Respondent’s
answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
clarified below, and to adopt the recommended Order.
The Respondent is a law firm representing unions, and
is located in San Antonio, Texas. David Van Os (Van
Os) is the owner of the firm, and the chief attorney in the

1 The General Counsel moved to strike the Respondent’s brief an-
swering the General Counsel’s exceptions, arguing that the brief in-
cludes material that is neither responsive to the exceptions nor based on
any exceptions filed by the Respondent. In reaching our decision, we
did not consider any matters in the Respondent’s brief unrelated to the
General Counsel’s exceptions. Accordingly, it is unnecessary to pass
on the General Counsel’s motion. See, e.g., Grass Valley Grocery
Outlet, 332 NLRB 1449 fn. 1 (2000).
2 The General Counsel and Charging Party Betters have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
Some of the General Counsel’s exceptions imply, and Charging
Party Betters’ exceptions explicitly argue, that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that these contentions are without merit.
In addition, Charging Party Betters contends that the judge made
off-the-record remarks that demonstrated bias and prejudice. However,
the Charging Party did not object on the record at any time after the
alleged comments were made. She also did not comply with Sec.
102.37 of the Board’s Rules and Regulations by moving that the judge
disqualify himself before the filing of a decision. Instead, she raised
this matter for the first time after the judge issued a decision adverse to
her interests. Accordingly, we reject her contentions as untimely. See,
e.g., Defiance Hospital, 330 NLRB 492 (2000).
firm. In fact, for most of the relevant time in this case,
he was the firm’s only licensed attorney.
The General Counsel alleged that the Respondent
committed multiple violations of the Act in response to
its employees’ protected, concerted activities, including
activities related to their desire for union representation.
The judge dismissed the complaint in its entirety. We
adopt the judge’s decision consistent with the following
observations.
I. THE DISCRIMINATION ALLEGATIONS
The judge dismissed, among other things, eight allega-
tions of unlawful discrimination. These involved the
discharges of Mary Ann Ybarra, Lorraine Perez, Mary
Louise Davila, and Kandace Konrad; the allegedly con-
structive discharges of Oralia Castillo, Nicole Betters,
and Denise Mejia; and allegedly unlawful changes in
working conditions designed to discourage union activ-
ity. Although it was applicable to each allegation, the
judge failed to use the analytical framework set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899
(1st Cir. 1981), cert. denied 495 U.S. 989 (1982).3
We have reviewed the judge’s determinations in light
of the appropriate standard, and we conclude that, even
assuming that the General Counsel had satisfied his ini-
tial evidentiary burden in each instance, the Respondent
effectively rebutted it by establishing that its conduct
would have been the same in the absence of the employ-
ees’ protected conduct. Thus, we agree with the judge
that, as detailed in his decision, employees Ybarra, Perez,
Davila, and Konrad were lawfully discharged for poor
work performance; employees Castillo, Betters, and
Mejia left their employment voluntarily; and no signifi-
cant changes in working conditions were made. Accord-
ingly, we adopt the judge’s dismissals.
II. THE ALLEGED THREATS TO CLOSE THE LAW FIRM
The judge found that the Respondent did not unlaw-
fully threaten to close the law firm in response to an em-
ployee spokesperson’s demand for union representation
at all work-related discussions between employees and
management. The judge also found that, although the

3 As the Board stated in Donaldson Bros. Ready Mix, Inc., 341
NLRB 958, 961 (2004):
To prove a violation of Section 8(a)(3) and (1) under our decision in
Wright Line, the General Counsel must first prove, by a preponder-
ance of the evidence, that the employee’s protected conduct was a mo-
tivating factor in the employer’s adverse action. Once the General
Counsel makes a showing of discriminatory motivation by proving the
employee’s prounion activity, employer knowledge of the prounion
activity, and animus against the employee’s protected conduct, the
burden of persuasion “shift[s] to the employer to demonstrate that the
same action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra at 1089. [Footnote citations omit-
ted.]
DAVID VAN OS & ASSOCIATES, PC 805
Respondent may have made an unlawful closure threat in
response to the spokesperson’s stated intent to represent
the employees vigorously, the Respondent implicitly
disavowed the threat by offering a solution that would
keep the firm open.
We adopt the judge’s dismissal of these allegations for
the following reasons.4
A. Relevant Facts
At a meeting on May 26, 2000,5 Van Os agreed to rec-
ognize a union as the representative of his employees.
Nicole Betters, an associate at the firm, was the employ-
ees’ spokesperson at the meeting. Later that day, Van Os
met with two of his clerical employees, Mary Louise
Davila and Kandace Konrad, concerning the mis-
scheduling of an arbitration hearing with which they
were involved. The judge found that this meeting was
not part of an investigation that might lead to discipline.
That night, Betters left a voice-mail message for Van Os
regarding his meeting with Davila and Konrad. The
message stated that she had heard about his meeting with
Davila and Konrad, and that in the future he should re-
frain from meeting with employees on any work-related
matters unless a union representative was present. Bet-
ters also stated in her message that she intended to in-
struct the employees not to talk with Van Os in the ab-
sence of a union representative.
Van Os responded the same day with voice mails of
his own, angrily explaining his view of the limits of the
Weingarten doctrine,6 and rejecting Betters’ position.
Van Os elaborated on these voice-mail messages in an e-
mail the next day, May 27. In this message, which was
addressed to Betters and the other employees, Van Os
again explained his view of the Weingarten doctrine in
detail, and made it clear that any employee who refused
to discuss work matters with him in a nondisciplinary
context would be terminated for insubordination. How-
ever, he also expressed his faith in the collective-
bargaining process and an eagerness to begin negotia-
tions, and he offered to meet to negotiate on nights and
weekends. He added that the process “can turn sour if
people decide they want war instead of progress or if
they want destructivity instead of constructiveness,” and
he used Betters’ union representation requirement as an
example of a destructive approach. He further pointed
out that he was “swamped” with work, that the interests
of the firm’s clients were his first priority, and that he did

4 In light of our finding that none of Van Os’ statements were unlaw-
ful, we find it unnecessary to pass on the judge’s disavowal finding.
5 All dates hereafter are in 2000.
6 See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
not have the time to devote to an unnecessarily antago-
nistic bargaining relationship.
Betters responded the same day by e-mail, explaining
her voice mail from the night before. Van Os replied
later that day, addressing his e-mail only to Betters. He
referred again to his workload difficulties, and to the
practical problems that Betters’ union representation de-
mand would cause. He made clear that her intention to
instruct employees not to talk to him about work matters
was the critical factor in their disagreement. He said:
My elation vanished when I heard your message
last night. To me it was like a declaration of war.
You clearly told me that the union was going to has-
sle me a lot about day to day talking with the em-
ployees. Do you frigging understand how swamped
I am? If I were to have to slow down to arrange un-
ion representation just to have routine work assign-
ment and work status discussions with employees I
would be unable to operate. I just can’t put it any
clearer. But even so I feel I am understating the se-
verity of the issue. I would literally be unable to op-
erate. I would have no choice but to give this prac-
tice up, prepare a resume, put this building up for
sale, go out and market myself and apply for jobs.
At the same time, he indicated that he was happy about the
employees’ choice to unionize, and he said that he would
fully comply with all the labor laws. He ended the message
by assuring Betters that her job was safe, and that there
would be no reprisals against employees because of their
protected union activity.
In responding, Betters characterized Van Os as “hon-
orable and trustworthy.” She then referred to an earlier
dispute between Davila and another manager that she
regarded as unfair. She said, “I am willing and ready to
RISK MY JOB TO PROTECT THOSE SECRE-
TARIES.” (Emphasis in original.)
In his last e-mail of the day, Van Os responded that
Davila was being evaluated for dishonesty and poor per-
formance. He described Betters’ e-mail as belligerent,
and an expression of an intent to protect poor perform-
ance regardless of its impact on the firm’s clients. Al-
though he acknowledged Betters’ protected right to con-
duct union business aggressively, he said he would not
allow it to disrupt the business of the firm or its clients’
interests.
The next day, May 28, Van Os followed up with an-
other lengthy e-mail to Betters. He went into great detail
concerning the time constraints he was under because of
his workload and his dedication to the firm’s clients. He
explained that Betters’ approach to union representation
created a new “time management crisis” that “threatens
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD806
the survivability of this business.” The following pas-
sage is representative of the content and tone of the e-
mail message:
Nicole, this is a personal message, not a labor-
management battle message. I am telling you this
personally in the hope that I may still find some
shred of friendship in you: If I have to go through a
big series of obstructive battles just to make neces-
sary personnel changes with people who are not ca-
pable of the performance this firm is obligated to
provide to clients, I am going to have to close the
doors rather than fight out those battles, because my
time is stretched to the absolute limit right now and
finding the time to fight out such battles is not hu-
manly possible. I am not puffing or threatening, I
am telling you the simple truth of this personal cri-
sis, and I cannot put it any plainer. I am telling you
this as a man of honor whose word can be trusted. I
am not bluffing, I am telling you the absolute reality
because I respect you and want you to be clear about
the cliff we are heading toward. I am not expressing
hostility to unionization, I truly do welcome union
representation and collective bargaining as a proc-
ess. I am only telling you to be aware of what it will
do to this business-for the benefit of all the Union
members-if you decide to use the Union as a battle
weapon to protect incompetence at all costs. It is not
humanly possible for me to stretch my time any fur-
ther if I have to fight such battles.
The answer is not continued toleration of ineffec-
tive work performance by the office staff. I am
sorry, I will not do that to my clients. It would be
more honorable for me to go out of business and ad-
vise my clients to find other lawyers who will pro-
vide them better service, than to inflict poor service
on them from my office, and that is what I will do if
that is the only way out of the dilemma.
There is nothing wrong with a union working
with an employer to remove the incompetent work
performance in order to keep the incompetence from
dragging the whole business down to the detriment
of everybody. That is what every responsible union
does . . . .
As related above, Van Os was the only licensed attor-
ney at the firm for most of the relevant time in this case.
The record establishes that prior to March he was work-
ing in excess of 75 hours per week. In March, the firm
became the sole provider of legal services to District 6 of
the Communications Workers of America. District 6 had
86,000 members in its 4-State jurisdiction, and it had
over 400 grievances and arbitrations pending. It is ap-
parent that the new business doubled the firm’s work-
load. Betters and the other employees were fully aware
of the firm’s workload and Van Os’ responsibilities.
B. Discussion
It is alleged that the Respondent, through Van Os,
unlawfully threatened to close the firm in retaliation for
Betters’ demand for union representation at all work-
related discussions, and her apparent insistence on ag-
gressively fighting any attempt by the Respondent to
remove allegedly incompetent employees. We will as-
sume, arguendo, that in both instances Van Os was re-
sponding to activity by Betters that was protected by the
Act. The legal principles controlling the resolution of the
issue here are set forth in NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969):
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a “threat of reprisal or
force or promise of benefit.” He may even make a pre-
diction as to the precise effect he believes unionization
will have on his company. In such a case, however, the
prediction must be carefully phrased on the basis of ob-
jective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control
or to convey a management decision already arrived at
to close the plant in case of unionization. [Citation
omitted.] If there is any implication that an employer
may or may not take action solely on his own initiative
for reasons unrelated to economic necessities and
known only to him, the statement is no longer a reason-
able prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion,
and as such without the protection of the First Amend-
ment.
Moreover, the Board’s evaluation of an alleged threat of this
nature takes into account all of the relevant circumstances.7
Initially, we observe that the statements in question do
not arise in the more typical context for application of the
Gissel standard: a union organizing campaign that the
employer opposes. See Gissel, supra at 616. In fact,
Van Os immediately agreed to the employees’ request
for union representation, and it is undisputed that, as he
made clear in his e-mails, he sincerely welcomed the
employees’ choice. He also assured Betters that there
would be no reprisals for the employees’ exercise of their
rights. Moreover, the Respondent engaged in no other

7 See, e.g., Contempora Fabrics, Inc., 344 NLRB 851 (2005); Ald-
worth Co., 338 NLRB 137, 143 (2002), enfd. sub nom. Dunkin’ Donuts
Mid-Atlantic Distribution Center v. NLRB, 363 F.3d 437 (D.C. Cir.
2004).
DAVID VAN OS & ASSOCIATES, PC 807
unlawful conduct. Thus, there are no unfair labor prac-
tices in the background that, by their nature, would lend
Van Os’ statements a threatening quality.8
Certain themes recur in Van Os’ e-mails: his profes-
sional dedication to the firm’s clients, the severe time
constraints that his workload created, and his perception
of Betters’ approach to the collective-bargaining rela-
tionship as combative and unnecessarily adversarial. The
consistent point that Van Os communicated was that the
firm would close if he did not have the time to serve his
clients properly. In his view, this could occur if Betters
maintained the position that the employees must be rep-
resented at every routine work discussion, and if she per-
sisted in an over-zealous, confrontational approach to
ensuring the retention of incompetent employees.9 In
effect, Van Os’ position was that if his relationship with
the Union resulted in his inability to devote necessary
time to servicing the firm’s clients and providing them
with competent service he would have no choice but to
close the firm.
His position was supported by objective facts readily
apparent to the employees. During the relevant time pe-
riod Van Os was the only licensed attorney in the firm.
The law firm’s workload was enormous. Even before the
firm became the sole provider of legal services to District
6 of the Communications Workers of America, covering
its 86,000 members in a 4-State area, Van Os was work-
ing 75 hours a week. The firm was also particularly
small, consisting most of the time of Van Os, two unli-
censed attorney associates and between two and four
full-time clerical employees. Under these circumstances,
it was not unreasonable for Van Os to predict that having
to bring in a union representative whenever he discussed
any routine work matter with one of the employees and
having to retain incompetent employees, as he inter-
preted Betters’ request to require, would effectively
make continued operation of the firm untenable. Fur-
thermore, absent from these circumstances is any sense
that the closure Van Os predicted would be driven by

8 Cf. Harrison Steel Castings Co., 293 NLRB 1158, 1159 (1989),
review dismissed 923 F.2d 542 (7th Cir. 1991) (“In a case devoid of
union animus or unlawful threats, an employer might suggest as a gen-
eral economic proposition the bearing that the administrative costs of
collective bargaining has on the price of the employer’s product and, as
a consequence, the possible change in the employer’s competitive
position in the market. But having manifested overt hostility to the
union activists in its work force here . . . the Respondent could not
lawfully go on to suggest the loss of jobs as a result of loss of business
to the competition without demonstrating to employees that such a
chain of causation would be brought about through forces beyond the
Respondent’s control.”).
9 Davila, the flashpoint of the dispute over employees Van Os
deemed incompetent, was lawfully discharged for poor performance on
May 30.
retaliation against the employees for choosing, or pursu-
ing, union representation. Rather, his response to Bet-
ters’ communications was, in the words of the Gissel
Court, supra, “a reasonable prediction based on available
facts” and not “a threat of retaliation based on misrepre-
sentation and coercion.” Accordingly, we find no viola-
tion of the Act.
ORDER
The complaint is dismissed.10
Liza Johnson, Esq. and David Kelley, Esq., for the General
Counsel.
Shelton Padgett, Esq., Kris Bird, Esq., and Glen Shook, Esq.
(Akin, Gump, Strauss, Hauer & Field), of San Antonio,
Texas, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in San
Antonio, Texas, on 28 days between the dates of July 10, 2001,
and December 14, 2001. The charges in the captioned cases
were filed by the various named individuals on August 31,
2000,1 September 7, September 7, September 12, and October
3, respectively. On March 29, 2001, the Regional Director for
Region 28 of the National Labor Relations Board (the Board)
issued a consolidated complaint and notice of hearing alleging
violations by David Van Os and Associates, PC (Respondent)
of Section 8(a)(1) and (3) of the National Labor Relations Act

10 In part II,B,5 of his decision, the judge concluded that the Re-
spondent’s April 17, 2000 memorandum was lawful in its entirety. We
agree. Our dissenting colleague has identified two components of the
memo, rules 5 and 9, as unlawful. We do not agree that the Respon-
dent’s employees, on reading either of these rules, “would reasonably
construe the language to prohibit Section 7 activity.” Lutheran Heritage
Village-Livonia, 343 NLRB 646, 647 (2004). As fully detailed by the
judge, the April 17 memo, as a whole, was narrowly framed to address
recent, specific problems of employee misconduct, and the employees
were fully aware of this context. They would reasonably interpret rules
5 and 9 mindful of these circumstances, and without reference to the
exercise of unrelated rights protected by Sec. 7.
Our dissenting colleague relies upon her dissent in Lutheran Heri-
tage. We have relied upon the majority opinion inasmuch as it repre-
sents Board law.
Consistent with the dissent in Lutheran Heritage Village, supra,
Member Liebman would find that maintenance of rules 5 and 9 in the
April 17 memo violated the Act. Rule 5’s truthfulness requirement
concerning responses to questions about “personnel issues” would
reasonably chill employees’ protected activities because they would
fear inquiries that would require them to disclose those activities with
absolute truthfulness. Similarly, rule 9’s demand for “loyalty” is am-
biguous in that it purports to protect employees’ expressions of opinion
while forbidding conduct deemed contrary to the Respondent’s em-
ployment policies. Both of these rules are overbroad; their scope ex-
ceeds the memo’s stated purpose of resolving immediate issues of
employee misconduct.
1 All dates or time periods hereinafter are within 2000, unless other-
wise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD808
(the Act). The Respondent, in its answer to the complaint, duly
filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), and counsel for the Respondent. Upon the entire
record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Texas corporation with an office and
place of business located in San Antonio, Texas, where it oper-
ates a law firm. During the 12-month period ending August 31,
the Respondent, in the course and conduct of its business opera-
tions, derived gross revenues in excess of $250,000, and pro-
vided services in the aggregate in the amount of $22,067 to
clients located outside the State of Texas. I find that the Re-
spondent is and at all material times has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent discharged and constructively discharged certain em-
ployees in violation of Section 8(a)(1) and (3) of the Act, and
whether the Respondent engaged in various additional viola-
tions of Section 8(a)(1) of the Act.
B. Facts and Analysis
1. Background
David Van Os (David) owns and operates a labor-side law
firm known as David Van Os and Associates, PC (Respondent
or law firm). The law firm was originally located in Austin,
Texas, where it operated for many years, and was then moved
to San Antonio, Texas. In San Antonio, the Respondent ini-
tially shared office space and clerical staff with another small
law firm, and then David and his wife, Rachel Van Os (Ra-
chel), jointly purchased residential property which they reno-
vated and converted into the law firm’s current two-story office
facility.
At various times material herein, the Respondent has em-
ployed from two to three or four attorneys, also referred to as
associates, several law clerks, a support staff of several indi-
viduals who performed customary law office clerical duties,
and a succession of several different office managers, also re-

2 The Respondent maintains that the Board should reassess the effi-
cacy of asserting jurisdiction over law firms in general, labor-oriented
law firms in particular, and the Respondent, specifically, for a number
of reasons. Regarding discretionary jurisdiction, it is argued that the
Respondent barely meets the Board’s jurisdictional standards estab-
lished many years ago, and, taking inflation into account, the current
impact on interstate commerce from the Respondent’s operations, hav-
ing performed only $22,067 in interstate commerce during the applica-
ble 12-month period, is simply de minimus . This is a matter that has
been preserved by the Respondent, and should be directed to the Board.
ferred to as office administrators, who were given bookkeeping
responsibilities as well as the duties customarily performed by
law office managers or administrators.
In late August or early September 1999, the Respondent con-
tracted with a consulting firm to undertake a detailed analysis
of the operations of the law firm, and to recommend improve-
ments in the manner in which all aspects of the business, in-
cluding recordkeeping, bookkeeping, delegation of duties and
other matters could be conducted to maximize the efficiency,
productivity, and income of the firm. The consultant’s investi-
gation, including interviews with the employees, was ongoing,
and from time to time the consultant would verbally share the
results with David. On November 19, 1999, the final “Practice
Analysis,” consisting of 16 pages, was submitted to David.
Under the heading of “Organization, Compensation and
Benefits:” the consultant notes:
Your practice consists of the following personnel:
Owner/Lead Attorney: (David Van Os) Duties consist of be-
ing the primary attorney on almost all of the cases that come
into the firm. Also is the only “rainmaker” in the firm. Ac-
countable for the entire business operation. Responsible for
all aspects of the practice. Currently working 75 plus hours
per week. . . .
Under the heading of “Analysis and Strategies,” the consultant
notes:
Compensation:
Staff—It appears as if the staff’s monetary compensation is
competitive within your marketplace. . . . It appears as if you
have had an extremely high turnover in staff. You do not
have any staff with any tenure. There could be several rea-
sons for this including compensation, bonus, benefits, or
work environment.
. . . .
New Associates: . . . . Therefore, the minimum number of bill-
able hours before the cut [that is, before reducing such billable
hours by 40% to account for the fact that new associates will
not be as productive per hour] that Gina [a new associate]
must produce should be somewhere between 90 and 135
hours per month.
. . . .
The need to get them [the new associates] to producing closer
to 100% actual billable hours is imperative. Once they get
closer to this then a bonus structure would be easier to imple-
ment.
. . . .
Work Plan Processes, Practice and Time Management:
Effective workflow systems and time management for your-
self and others in your practice can help tremendously with
the profitability and functioning of the firm.
Workflow systems: Now that you have hired a person to be the
office manager, bookkeeper and legal secretary, delegate
100% of the workflow processes to her and let her run the of-
DAVID VAN OS & ASSOCIATES, PC 809
fice. Make her accountable for the complete workflow and
bookkeeping functions. Even though she will be accountable
that does not mean that you are not in the loop. A weekly 30-
45 minute meeting between David and the office manager
should occur either Monday afternoon or Tuesday in the
morning. This meeting should be quick and cover a lot of
ground without a lot of discussion. [Original emphasis.]
2. The discharge of Ybarra
Mary Ann Ybarra is the individual referred to above as the
recently-hired “office manager, bookkeeper and legal secre-
tary.”3 Ybarra began working for the firm in October 1999, the
month preceding the final report of the consultant. Ybarra was
discharged or laid off on April 14. The complaint alleges that
Ybarra was discharged and that and David’s confidential secre-
tary, Oralia Castillo, who quit, was constructively discharged,
infra, for engaging in one specific act of concerted protected
activity when the two of them met with David and voiced their
displeasure with certain conduct of Rachel.
According to the testimony of Ybarra and Castillo, this meet-
ing was precipitated by a phone conversation that Castillo was
having with Cheryl Kirby, the law firm’s senior associate, when
Rachel happened to come into the office and, according to Cas-
tillo, begin “screaming that we shouldn’t be having any per-
sonal calls.” Castillo told Rachel that it wasn’t a personal call,
rather it was a call from Kirby about office matters. Rachel
paid no attention to her and just continued to insist there were
too many personal calls and that this needed to stop. Castillo
immediately went to see David about the matter, and a short
time later Ybarra, who overheard the exchange between Rachel
and Castillo, also entered David’s office. Castillo explained
what had happened. Ybarra, who had entered the room by that
time, advised David that she didn’t think there was a problem
with personal calls. David agreed with Ybarra and Castillo.
Then, during this same conversation, Ybarra told David that
Rachel had been overheard referring to the employees, includ-
ing Ybarra and Castillo, as “incompetent” and “unprofes-
sional.” Ybarra explained to David that this sort of behavior
had been going on for a long time. Castillo agreed, and added
that it was “getting very hostile for us to work there.” Appar-
ently, Ybarra and Castillo were objecting to Rachel’s presence
in the office, as Rachel had no official title, was not an em-
ployee of the law firm, had no office skills, and was an annoy-
ance to the employees. David said he would speak to Rachel,
that Rachel was his wife, that she was dependent upon the law
firm for her livelihood too, that she would continue be “in and
out of the office like normal,” but that he would try to see what
he could do regarding her disparaging comments. Ybarra and
Castillo testified that toward the end of the meeting Rachel
happened to walk in and David told her they were in a meeting
and that he would talk to her later. Rachel walked out and
slammed the door very hard.

3 I credit the testimony of David Van Os, and find that he hired
Ybarra “[t]o manage the overall work flow processes, to do the book-
keeping, to do the billing, to make sure that the clerical staff and the
work flow processes operated in an efficient and productive manner so
that the lawyers could spend their time doing billable work that made
the money and paid the bills.”
The date of the foregoing meeting is important, as it is
agreed by the parties that Ybarra’s termination letter was pre-
pared by David on or before April 7, the date that Ybarra, by
coincidence, claims she happened to find it as it fell out of an
office printer, infra; therefore, if the date of the foregoing meet-
ing was after April 7, the meeting could not have been the cata-
lyst for Ybarra’s discharge, as alleged.
Castillo testified that at one time she and Rachel had been
the best of friends and had even been “like sisters.” Castillo
babysat for the Van Oses young children, and she and Rachel
would take extended lunches together. During these lunches,
according to Castillo, Rachel would describe employees as
incompetent and unprofessional; these were Rachel’s “favorite
words.” She also would refer to employees as not being “team
players.”4 Castillo testified that her sisterly relationship with
Rachel had deteriorated well before the date of the aforemen-
tioned meeting in David’s office. It began deteriorating in about
December 1999, and became worse after February 22, when
Castillo tripped on the office stairs and sustained an on-the-job
injury to her leg or back. After that time, according to Castillo,
Rachel would make sarcastic comments as if though Castillo
was simply faking the extent of her injury. According to Casti-
llo, Rachel “started being real mean to me after my injury but
these problems were already starting since December.”5
Further, Castillo testified that this was by no means the first
time that she had complained to David about Rachel. Thus,
Castillo testified that she had voiced complaints to David be-
tween 10 and 20 times about Rachel overstepping her bounds,
as Castillo believed that, when it came to office matters, Rachel
had no authority to supervise her or tell her what to do. Castillo
testified that David never reprimanded her for coming to him
with these problems about Rachel, and would basically advise
her that he would take care of the situation and that Castillo
should just not pay attention to Rachel and simply continue to
do the work he assigned her.
David testified that Castillo and Ybarra came to his office on
April 13, and complained about a personality conflict with
Rachel, saying that they were having trouble getting along with
her. David recalled that it was a very short conversation and
was certain that it took place on April 13, because it was the
day before he laid Ybarra off.
I find that the meeting took place on Thursday, April 13, as
maintained by the Respondent, and further find that the dis-
charge of Ybarra was imminent well before April 7. Both
Ybarra and Castillo had previously testified under oath about
the aforementioned meeting during a Texas Employment
Commission hearing in July, prior to the time there was any

4 The record evidence, including documentary evidence, contains
numerous references to “teamwork” and to the expectation of the Van
Oses that all the employees, clericals and attorneys alike, be “team
players.” This, I find, is clearly a reference to co-operativeness and
willingness to assist coworkers so that the work of the firm is con-
ducted efficiently; it should not be given a negative connotation, such
as, for example, “antiunion.”
5 However, Castillo also inconsistently testified that, “. . . after [the
date of the meeting with David]. . . . Our relationship was not like a
sister-basis anymore. We were like employees. She was as the em-
ployer’s wife.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD810
issue as to the precise date of the meeting. Castillo, in that
proceeding, placed the meeting at “about the Thursday before”
she quit the Respondent’s employ. Castillo quit on Monday,
April 17, and the Thursday before would have been April 13.
Similarly, Ybarra testified before the Texas Unemployment
Commission that the meeting “was, like, I don’t exactly re-
member the day. It was, like, a Thursday before I got let go.”
Ybarra was laid off on Friday, April, 14. Again, the Thursday
before would have been April 13. It is significant that both
employees placed the date of the meeting on the same date
using different references to assist their recollections.
Further, the testimony of Lorraine Perez, who was hired on
April 17, is important. Perez testified that she and Rachel had
been very close friends, even “best friends” back in high
school, but had not communicated for many years. In late
1999, Rachel happened to phone her just to say hello, and dur-
ing subsequent conversations Rachel began to solicit Perez to
come to work for the Respondent as office manager. During
these discussions, according to Perez, Rachel told her that the
law firm had some very incompetent office employees, and that
they were “always talking bad” about her and her husband. She
said that the attorneys, who had their offices upstairs, were also
getting together and talking about the Van Oses,6 and that
David would be moving his office from downstairs to the up-
stairs conference room to watch the attorneys. Specifically,
Rachel named Ybarra and Castillo, and spoke of them in very
unflattering terms. She told Perez that Ybarra was supposed to
have been both the bookkeeper or “accountant” and the office
manager, but that after about a week as Office Manager Ybarra
told her that she just wanted to do the accounting part of the
job; this upset Rachel because Ybarra was being paid $16.50
per hour to do both jobs, not just the bookkeeping work.
In a lengthy document that Perez compiled following her
discharge, prepared on and after July 3 as a personal account of
various discussions and events surrounding her employment,
Perez recounts various preemployment conversations with Ra-
chel who told her that although “the accounting position was
not a difficult job, and was strictly a part-time position . . .
[Ybarra] was making it a 40-hour-a-week job, when in reality it

6 It turns out, in fact, that this was not simply a figment of Rachel’s
imagination. Abundant record evidence shows that all of the employ-
ees, including the office employees, the senior attorney, Kirby, and the
other associate attorneys and law clerks, would frequently gather to-
gether when Rachel was not around and have almost daily gossip ses-
sions that focused on Rachel, her idiosyncrasies, and the things she did
and said around the office that offended or amused them; they would
make jokes about Rachel’s weight and about the Van Oses having sex,
and even had a file name for Rachel, “WLA,” for “whole lot of ass.”
There is conflicting record evidence regarding whether this file was
imaginary or really existed in the Respondent’s computer system.
However, it seems that Rachel believed that the employees were using
the computer to retain such messages: thus, Perez testified that Rachel,
who was not at all computer-literate, asked her to come to the office in
the evening, prior to the time she was hired, and attempt to access em-
ployee emails that complained about Rachel and spoke disparagingly of
her and David. The employees would customarily have these gossip
sessions near one of the upstairs office windows so that when they saw
David or Rachel driving into the parking lot they could disband and go
back to work.
was only a 12-hour-a-week job. Rachel said that David was
very dissatisfied with both [Castillo] and [Ybarra] and wanted
to get rid of both of them but had to be careful because of his
reputation.” Further, this same document notes that although
Perez requested the opportunity to visit the office during office
hours before deciding whether to accept the position, she was
told by Rachel that she could only visit after hours because
David did not want the employees to suspect that he was hiring
a new employee. This is significant, because if the Respondent
intended to retain both Perez and Ybarra, there would have
been no need to keep Perez’ employment a secret.
Based on the foregoing, and the credible testimony of David
Van Os who testified that the layoff of Ybarra was for her in-
ability to fulfill the functions he expected of an office adminis-
trator, I shall dismiss this allegation of the complaint.7
3. Alleged unlawful interrogation
Ybarra was laid off on Friday, April 14, and Perez began
work the following Monday, April 17, the same day that Casti-
llo quit. The events occurring during that intervening weekend
are significant.
On Saturday, April 15, the Van Oses and part-time law clerk
Billy Beckel III (Trey) and his wife, Amie Beckel (Amie), went
out to dinner together. It was to be a casual, social engagement,
not a work-related meeting. During the course of their conver-
sation that evening, Amie, who would often talk with her hus-
band about things going on at the office,8 mentioned to Rachel
something to the effect that the employees had learned of
Ybarra’s termination letter prior to the time Ybarra had been
discharged. Then, Trey, not being able to simply deny knowl-
edge, felt compelled to elaborate, and implicated two associ-
ates, Cheryl Kirby9 and Nicole Betters,10 saying that Kirby had
told him that Betters had found the letter in the upstairs printer.
Trey testified that David was disturbed that this information
regarding the imminent layoff of an employee had been circu-
lated around the office by the professional staff prior to the
actual layoff.
During the course of the discussion, according to Trey, Ra-
chel asked whether the employees liked her. Trey, attempting
to be diplomatic but honest, told her that the employees disliked
several things, including the fact that Rachel would bring the
Van Oses’ two small children to the office, that the children

7 I further credit David’s testimony that when he laid Ybarra off he
told her that her bookkeeping skills were very good, and that she should
let him know if she was ever interested in part-time work as a book-
keeper; however, she was not interested in part-time work as she
needed a full-time position.
8 In fact, Amie had spent a good deal of time at the office and knew
the other employees well; she had had lunch with them on many occa-
sions, and had been present during the employees’ distasteful discus-
sions about Rachel, her weight, the Van Oses sex life, and other similar
personal matters.
9 Kirby had worked for David for some five years and was by far the
most senior attorney in the office. She gave directions and assignments
to the other much younger and inexperienced attorneys, and was in
charge of the office when David and Rachel went on vacation.
10 Betters had been hired in March. She was licensed to practice in
Pennsylvania, and had done so for about two years, and was preparing
to take the Texas bar exam.
DAVID VAN OS & ASSOCIATES, PC 811
would remain unsupervised and make noise and leave toys
lying around, and that the secretaries would have to pick up
after them. Trey also stated that some employees did not par-
ticularly like the way Rachel had decorated their offices with
antiques; and that some of the employees had concerns about
the fact that Rachel, a nonlawyer, seemed to be participating in
law firm matters or giving advice that required some legal
background. At the end of the evening, David said that he was
happy that Trey had informed him of these things that bothered
the employees, and that it was a situation that needed to be
addressed.
The next day, Sunday, David phoned the Beckels and left a
message for Amie to call him. Amie testified that she returned
his call, and David thanked her for letting him know about the
Ybarra layoff letter, as he had been bewildered that Ybarra had
found out about her layoff before he had told her. He told
Amie that he respected her for shedding some light on the situa-
tion. Amie had also asked Rachel, the previous evening, if she
and David could please not mention to the other employees that
the Beckels and Van Oses had had dinner together, as this
could reflect negatively on Trey’s relationship with the other
employees. Amie also indicated that there was some animosity
between Rachel and Kirby. Rachel seemed surprised at hearing
this, as she thought she and Kirby were “buddies.” Amie men-
tioned to David during their phone conversation that in fact,
Kirby was “just kind of corrupting the office, turning employ-
ees against him. . . .” According to Amie, the information she
was relating to David was entirely voluntary, as she believed
that David had a right to know about such things.
Then David talked with Trey, and told him he had spoken to
some of the employees to find out exactly what was going on
“upstairs,” a reference to the attorneys, including Kirby, who
were all officed on the second floor of the facility. During this
conversation, Trey related several additional concerns to him,
namely, that some of the employees did not think he ran the
office very well, that Kirby made highly critical remarks about
David’s ethics, and that there had been a lot of employee turn-
over. David asked what problems the employees had with Ra-
chel, and Trey replied that the employees felt that Rachel, who
had suffered an accident in 1996,11 was “faking her injury and
that employees though it was ironic that a labor law attorney
[David] would be involved in faking an injury.” Trey also
reiterated that employees did not like the way Rachel had deco-
rated the offices, and that “employees made fun of Rachel’s
weight and the fact that she brings the kids to the office as if the
office were a daycare center.” He went on to tell David that
Kirby was telling jokes about Rachel’s weight.12 According to

11 In 1996, Rachel had sustained a very serious on-the-job injury to
her back while working for the telephone company in Austin, Texas,
and she has continued to have persistent physical problems as a result
of that incident.
12 Trey testified that he believed that Kirby was jealous of Rachel,
that Kirby “extremely disliked” Rachel, that Kirby made jokes, in the
presence of Trey and other employees, about Rachel’s weight and
about the Van Oses having sex, and that Kirby and another employee,
Michael Roland, told him that there was a computer file named “WLA,
meaning ‘whole lot of ass,’” with comments and jokes about Rachel.
Witnesses, including Castillo, who knew the Van Oses very well, testi-
Trey, David seemed upset that the “people upstairs,” the attor-
neys, were not loyal to him or to the firm, and that he was go-
ing to find out what was really going on.
Trey then volunteered to David that Kirby was very much
involved in the dissension upstairs. He also said that Kirby,
from whom he received assignments, had asked him to copy
some files for her on floppy disks. Trey testified that prior to
this time he had been afraid to mention this to David, but de-
cided to volunteer whatever he knew about the situation as he
believed Kirby’s conduct was improper. He told David that
Kirby had talked about leaving the firm on a number of occa-
sions, and had said that she wanted to take “her information
with her”; further, she had asked Trey and another law clerk to
help her copy all the files in her computer.13 Trey testified that
Kirby specifically instructed him not to tell David that she was
doing this. Trey also testified that he may have told David at
this time that Kirby had talked about taking the law firm’s cli-
ents with her when she left, including one of the firms’ largest
clients that accounted for a significant part of the law firm’s
business.14
Certain information provided by Trey during the two conver-
sations was obviously a matter of great concern to David, as he
also phoned Betters and Mejia that Sunday to find out who was
responsible for printing out Ybarra’s termination letter and/or
sharing that information with other employees; and, in addition,
to learn what they knew about Kirby stirring up the employees
and making disparaging remarks about the Van Oses.15
While there is conflicting evidence about the events of Sun-
day, April 16, it is clear that on that evening Castillo, Perez,
and the Van Oses were at the law firm, that Perez was intro-
duced to Castillo as the new office manager, and that Castillo
spent approximately 2-1/2 hours there. The General Counsel
maintains that David called Castillo into the office that evening
purportedly to do some work but that this was merely a subter-
fuge to interrogate her as he had earlier interrogated Betters and
Mejia over the phone. David testified that he called Castillo to

fied that Rachel was very sensitive about her weight, and that they
believed David would terminate any employee who made fun of Ra-
chel’s weight.
13 Trey testified that Kirby asked him if he had any blank computer
discs at home and if his wife, Amy, could bring them to the office. He
copied “upwards of probably 50 disks” for Kirby. About halfway
through the copying process Trey began feeling uncomfortable about
this, and another law clerk, Michael Rowland, took over the copying.
14 Trey testified that Kirby and pretty much everyone else in the of-
fice started treating him differently after they learned that he had spo-
ken to David and Rachel. Kirby told him he was “on David and Ra-
chel’s side.”
15 Betters, in an e-mail to David and Rachel dated April 17, states,
inter alia, “Finally, with respect to anything that Cheryl [Kirby] may
have said to undercut David vis a vis his employees, I don’t recall any
personal insults directed towards David. I do, however, recall many
insults directed towards Rachel. I wrote these off as being jealousy,
pure and simple, and saw no reason to inform either of you as to their
existence. There was no reason to hurt Rachel’s feelings. . . . ” Betters
testified that Kirby was making fun of Rachel’s weight, personal ap-
pearance, and behavior, and that Kirby joked about an offensive car-
toon drawing of David and Rachel that someone had prepared but that
Better had never actually seen.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD812
assist that Sunday, as he had frequently done during past week-
ends, because he was busy preparing for an arbitration on Mon-
day; and that Perez was there so that Rachel could familiarize
her with the office as she would be replacing Ybarra who had
been laid off on Friday. Further, David testified that there was
no interrogation of Castillo about anything.
Castillo testified that on Sunday morning at about 11 a.m.,
she received a phone call from David who asked her to come in
that evening and do some work on subpoenas for an arbitration
the following morning Castillo arrived at 7 p.m. After she
waited for about 30 or 45 minutes, the Van Oses and Lorraine
Perez entered her office. Castillo testified that Perez, whom
she had never met, was introduced to her as the new office
manager; David told her that he had been looking for a good
administrator and he finally found one. Castillo was told that
she would be reporting to Perez.
Castillo testified that David began by first mentioning the
discussion they had had, which I have found above occurred on
April 13, when she and Ybarra had presented certain concerns
to him about Rachel. David said that he had spoken to Rachel
about the matter and that the situation had been taken care of
and that Rachel would not be interfering anymore. Then he
advised Castillo that a “faithful employee” had told him that
that Kirby was bad mouthing him. Apparently David asked her
questions about Kirby, prefacing the questions with the admo-
nition that he wanted truthful employees working for him. He
also asked her if she had known about the Ybarra discharge
letter. Castillo answered that Ybarra had found the letter and
had told her about it. He also asked, according to Castillo,
whether she knew anything about a union.
Castillo, apparently, was equivocal, as she claims she re-
plied, “I am here to work. I am not here to tell about other
employees in this office.” Then David abruptly ended the
meeting, saying, “that was fine, that he had to go, because the
phone rang at that moment. . . .”16
The meeting apparently lasted only a brief time, as Castillo
testified that after the meeting she remained for about 2-1/2
hours “sitting there talking to Rachel Van Os and Lorraine
Perez,” and did not leave until Rachel told her that they proba-
bly were not going to get around to the work she was called in
to do because it was so late. She did receive a work assignment
that evening from David, namely a memorandum that she was
to correct and hand out to every employee the next day, infra.
Perez also testified regarding this interrogation of Castillo.
However, the testimony of Perez is significantly different than
that of Castillo. Thus, Perez did not testify that David asked
Castillo anything about union activity,17 or that he mentioned
anything about resolving Castillo’s April 13 complaints about
Rachel in Castillo’s favor. Moreover, Perez testified that Casti-
llo left the premises immediately after the interrogation, while,
as noted, Castillo testified that she sat there and spoke with

16 As noted above, David testified that Castillo was called in to work
that evening because there was work to be done, and that he never had
a meeting with Castillo about the Ybarra letter or other matters.
17 I do not credit Castillo’s uncorroborated testimony that anything
was said about union activity. At this point, insofar as the record
shows, there was no union activity.
Perez and Rachel for an extended amount of time while she was
waiting for David to give her some work to do.
I do not find that the Van Oses unlawfully interrogated Trey.
Clearly that is not why the Van Oses invited Trey and his wife
to dinner. Trey’s wife, Amie, initiated the discussion of the
Ybarra discharge letter, and that prompted further conversation
implicating several of the attorneys. I do not believe that asking
an employee whether the owner’s wife is liked by other em-
ployees may be characterized as unlawfully asking whether the
employees are conspiring to engage in concerted, protected
activity. It is clear, however, that Rachel already knew or sus-
pected that employees were gossiping about her and her hus-
band behind her back, as Rachel had mentioned this to Perez
prior to her employment by the Respondent, supra. Trey testi-
fied that he volunteered all of the information to the Van Oses.
Moreover, it is clear that, as set forth infra, David was inter-
ested in just two matters, namely, who was responsible for
prematurely disclosing the Ybarra termination letter, and who
was responsible for maligning the Van Oses. Indeed, these are
the subjects that David inquired about when he spoke to Betters
and Mejia. I credit David and find that he did not interrogate
Castillo; however, even if he did so, the interrogation was not
unlawful, just as the interrogation of Betters and Mejia was not
unlawful. In no way do such subjects involve concerted, pro-
tected communications about which an employer may not in-
quire. I shall dismiss these allegations of the complaint.
4. Alleged constructive discharge of Castillo
The next day, Monday, April 17, David gave Castillo six or
eight subpoenas to prepare, advising her that there was a 10
a.m. deadline; in addition, he gave her some other legal docu-
mentation that had to be faxed to him at the hearing site as he
was apparently under time constraints for an arbitration matter
scheduled for that morning. As Castillo was doing this work,
having been given strict orders from David that the work had to
be done immediately, Rachel came in and, apparently counter-
manding David’s instructions, said she wanted to introduce the
new office manager, Perez, to the employees upstairs and
wanted Castillo to be present, and that it would just take a few
minutes. Rachel said the work could wait. Castillo told her
that she couldn’t climb the stairs because of her injury,18 and
Rachel got on the phone and called the attorneys and told them
to come downstairs “to accommodate a cripple.” According to
Castillo, on direct examination, those were the very words Ra-
chel uttered in a very harsh tone of voice, and at that point Cas-
tillo thought, “this is it. I can’t take it anymore, I’m walking
out, and I left.”
However, on cross-examination, when confronted with her
testimony at the Texas Employment Commission hearing, su-
pra, Castillo conceded that the word “cripple” was not uttered
by Rachel; rather, Rachel said to the upstairs employees either,

18 There is no clear record evidence that Castillo was incapable of
climbing stairs, that she did not do so on occasion in the regular course
of her work, or that the Respondent had ever been told that she was not
to climb stairs; rather, it appears that her doctor simply recommended
certain lifting restrictions. Castillo testified that on the particular day in
question her knee was swollen more than usual, and this apparently
made stair-climbing particularly uncomfortable.
DAVID VAN OS & ASSOCIATES, PC 813
“Come on down because we have to accommodate Oralia be-
cause she’s saying that she’s hurt,” or “Well, we’ll have to
come down because Oralia cannot go upstairs.”19
After Castillo quit, Perez pointed out to Rachel that when
Rachel was calling the employees downstairs, Castillo was
“rolling her eyes, and shaking her head, and slamming her
hands on the desk. . . .” Perez also related this to David, be-
cause at that time, according to Perez, she was on Rachel’s side
and wanted to defend Rachel, who was worried that David
would be upset because Castillo had quit.
Kandice Konrad, a secretary who was hired in April, testified
that during the week before Castillo quit, Castillo told Konrad
something to the effect that she was “not going to be around
here much longer.” Konrad understood this to mean that Casti-
llo was probably getting ready to quit. Konrad related this to
Mejia when Mejia was gathering information to contest Casti-
llo’s unemployment claim.
Castillo, who testified at length about many matters, did not
impress me as a credible witness, and seemed willing to testify
to anything that she believed would further and support not
only her constructive discharge claim, but the claims of all of
the other employees involved in this proceeding. It is difficult
to know what parts of Castillo’s testimony to credit, but assum-
ing arguendo that Castillo should be credited whatsoever, her
testimony shows the following: that she believed Rachel har-
bored and overtly exhibited animosity toward her well before
April 13; that on April 13, David told Castillo that he would try
to resolve her problem with Rachel, as he had told Castillo
some ten or twenty times in the past; that on April 16, David
told Castillo that he had resolved the problem in Castillo’s fa-
vor; and that Rachel’s allegedly harsh or sarcastic comment on
April 17, telling the upstairs employees to come down for the
meeting because of Castillo’s inability to climb the stairs was
nothing unusual, as Rachel had made such sarcastic comments
about Castillo’s injury well before the April 13 meeting.
Moreover, it is clear that Castillo was not happy about the
fact that Perez would be her new supervisor, and that her friend,
Ybarra, had been laid off the preceding Friday. Indeed, during
discussions with Ybarra over that weekend, Castillo testified
that Ybarra suggested that perhaps Castillo would not want to
remain working there either. Whatever her reason for quitting,
I find that Castillo was not constructively discharged as a result
of her April 13 complaints about Rachel or, indeed, for any
other complaints about Rachel. I shall dismiss this allegation of
the complaint.
5. The April 17 memorandum
The memorandum that Castillo handed out to employees on
Monday, April 17, is from David Van Os to all employees and,
in pertinent part, is as follows:
1. This memorandum is immediate required reading
for all employees.
2. It has recently come to my attention, thanks to the
loyalty of certain employees, that a former employee of
the firm was undermining my management of the firm for

19 At the hearing herein Castillo did not state which of these two lat-
ter versions was accurate.
several months. Employees of the firm, though uncom-
fortable with the former employee’s actions, and though
loyal themselves, did not advise me of this conduct be-
cause they were not sure if it would be proper to approach
me.
3. Although I do not question the loyalty of those em-
ployees who knew about such conduct and did not inform
me, it would have been far better if they had informed me.
I would have taken decisive action to redress the problem
for the good of everyone who works here. I could have
taken care of the problem at an earlier stage before it got
worse. As it is, this problem has been allowed to interfere
greatly with the productivity of the law firm for much too
long a time.
4. For future reference, in the future, please approach
me immediately with problems of this nature.
5. All employees are expected to be absolutely truthful
to management in response to any questions about firm
business or personnel issues.20 This is a mandatory condi-
tion of employment, for all future time.
6. As an individual no longer employed with the firm,
Cheryl Kirby is not to remove any files from the office.
Should any employee face a conflict or confrontation over
this issue, please notify the Office Manager, Lorraine
Perez, immediately. Cheryl may remove any personal be-
longings upon demonstrating that they are her personal
property.
7. . . . .
8. Cheryl Kirby may have limited, legitimate reasons
to call employees of this firm for a short future time. All
conversations between Cheryl and any employee of this
firm that take place either at this office (including on the
telephone) or on work time are to be strictly limited to the
essential legal business needs of the call. Any time an
employee of this firm has a conversation with Cheryl ei-
ther at this office (including o the telephone) or on work
time, the employee shall immediately report the conversa-
tion and describe the nature of the conversation to the [sic]
Lorraine. Any violation of this directive will result in im-
mediate termination of employment for gross insubordina-
tion.
9. Loyalty to this firm and its president are mandatory
conditions of employment. This does not mean that em-
ployees sacrifice their freedom of opinion. You man hon-
estly disagree with management policies, business deci-
sions, or casework strategy. You should and indeed are
expected to express your honest disagreements of opinion.

20 Obviously, the employees knew that this was a reference to the
fact that David Van Os was upset with the premature disclosure of
Ybarra’s discharge letter, and with the fact that the employees he ques-
tioned about the matter were not forthcoming. Indeed, according to
Perez, Rachel told the group of employees that they each needed to
initial the memorandum, and said, “that they found out that Marry
Ann’s [Ybarra] termination letter was given to Mary Ann, and they
didn’t know if it was Cheryl Kirby or Oralia [Castillo], and that her and
David would not tolerate this type of behavior, that every employee is
to remain loyal and to report any kind of bad mouthing that was made
about Rachel or David to David or me [Perez].”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD814
However, loyalty means that as long as you work for this
organization, despite any honest disagreements of opinion,
you strive your best to carry out the policies and decisions
of the organization as expressed by management. If you
disagree so strongly that you can no longer do your best to
carry out those policies and decisions, then you should
leave the organization. Under no circumstances should
you work against the policies and decisions of the organi-
zation or its president as long as you are collecting a pay-
check from the organization. This requirement of loyalty
is an essential and mandatory condition of employment.
Any violation of this requirement will result in immediate
termination of employment. [Emphasis added.]
The General Counsel contends that the foregoing memoran-
dum constitutes an “overly-broad,” and therefore unlawful rule
requiring employee loyalty in that it “. . . precludes employees
from taking any position on any personnel-related issue that
may conflict with Respondent’s position, and requires employ-
ees to report anyone who espouses such a contrary view.”
I do not agree. The thrust of this memorandum is set forth in
the second and ninth paragraphs. In paragraph 2, employee
“loyalty” is equated with the obligation of employees to let
David know immediately when other members of the firm, in
this case senior attorney Cheryl Kirby, may be undermining his
management of the firm. It seems reasonable to expect that
Kirby, because of her experience and longstanding professional
relationship with David, could have reasonably been expected
to set a favorable example for the other employees. David, I
find, was justifiably concerned upon learning that Kirby
seemed to be the catalyst for disparaging David’s ethics, mak-
ing jest of Rachel’s weight, and making crude remarks about
the Van Oses’ sex life. Clearly, it could be expected that this
type of behavior would have an adverse impact upon employee
morale, and would tend to undermine the efficient operations of
the law firm. Moreover, Kirby’s leaving the law firm and tak-
ing clients with her would certainly impact the financial opera-
tions of the law firm as well as the continued employment of
the other associates.
Paragraph 9 equates loyalty with “striv[ing] your best to
carry out the policies and decisions of the organization as ex-
pressed by management,” but makes abundantly clear that hon-
est disagreements with “management policies, business deci-
sions, or casework strategy” are not only not considered to be
acts of disloyalty, but are expected and invited. It is commonly
understood that the terms “management policies” and “business
decisions,” particularly in the context of this memorandum,
incorporate employer-employee relations, namely, employee
concerns about wages, hours, and conditions of employment.
Further, the import of the memorandum was explained by Ra-
chel to the assembled employees. Thus, Rachel told them that
“loyalty” meant that they had to be truthful when asked about
such matters as premature disclosure of sensitive and confiden-
tial information (obviously referring to the premature disclosure
of the Ybarra layoff letter), and that they should report any kind
of badmouthing of David and Rachel.
Therefore, I find, the memorandum itself, while demanding
that employees not undermine the management of the firm,
advises the employees in clear terms that their honest expres-
sions of disagreement or dissatisfaction with the employer’s
policies are not considered to be disloyal acts or acts that un-
dermine the management of the firm. There is no evidence that
the employees did not understand that this memorandum was
not intended to inhibit legitimate concerted, protected activity.
And Rachel made it clear that loyalty to the firm meant that
honesty was expected and that bad mouthing of David and
Rachel would not be tolerated. In this context, I find that the
honesty and loyalty demanded of employees by the memoran-
dum was perfectly lawful, and that the employees could readily
understand that the “bad mouthing” to which Rachel was refer-
ring did not encompass honest criticism about legitimate work-
related matters. I shall dismiss these allegations of the com-
plaint. See NLRB v. Electrical Workers Local 1229 (Jefferson
Standard Broadcasting Co.), 346 U.S. 464, 472 (1953) (“there
is no more elemental cause for discharge of an employee than
disloyalty to his employer . . .”).
6. The discharge of Perez
Also on Monday, April17, David issued the following an-
nouncement to all employees of the firm regarding “the addi-
tion of Lorraine Perez to office team as Office Manager.” He
goes on to state, inter alia:
As Office Manager, Lorraine has the authority to direct
and assign work, to evaluate performance, to adjust griev-
ances, to administer discipline, to grant time off, to grant
sick and vacation leave, to issue personnel policies, to ef-
fectively recommend hiring and firing, and to establish
systems and procedures for every aspect of office admini-
stration.
As a non-lawyer, Lorraine cannot make legal decisions
about the performance of legal work. . . . However, she
will have the authority to speak and act on my behalf in ar-
ticulating my decisions regarding assignments, deadlines
and expectations to lawyers in the firm. Moreover, law-
yers in the firm will be subject to Lorraine’s management
in matters involving personnel policies and practices, and
conditions of employment.
I have been searching for a long time for a solution to
the problem of getting lawyers out of administrative de-
tails. Accomplishing that goal will increase the firm’s
productivity for the benefit of every employee and will
make everyone’s job more pleasant. . . . I ask and expect
your fullest cooperation with her management of the of-
fice. Thank you.
Perez, the only nonlawyer of the firm who was salaried, re-
mained with the Respondent for less than a month. She was
discharged on about May 9. It is alleged that she was dis-
charged for engaging in concerted, protected activity, namely,
complaining to David Van Os about Rachel on behalf of herself
and other employees. The Respondent denies that Perez was
terminated for discriminatory reasons and, in addition, main-
tains that Perez, as a supervisor, is excluded from the Act’s
coverage. The General Counsel maintains that Perez, while
ostensibly hired to be office manager and a supervisor, was
DAVID VAN OS & ASSOCIATES, PC 815
precluded from assuming and performing such responsibilities
by Rachel Van Os, who was the de facto office manager.
The aforementioned notes that Perez prepared after her dis-
charge contain, inter alia, a lengthy, detailed, 58-line narrative
account of two particular conversations with David wherein she
voiced complaints to him. Perez complained that because of
Rachel’s interference she was unable to perform her job as
office manager. According to her notes, she initiated the dis-
cussion in David’s office, by asking, “Who is in charge, me or
Rachel?”; she then proceeded to tell David that Rachel was
interfering with “my” work, and undermining “my” authority.
David told her that Rachel was in charge until Perez received
adequate training, “but you are the office manager and every-
one has to respect you.” At this point, Rachel was called into
the office. Before she came in, however, David told Perez to
“please be sympathetic towards her because she is having trou-
ble letting go of her position here and letting you take over.”21
Rachel entered the office and began telling David that Perez
was very rude to employees and was throwing her weight
around. Perez said, “that was a lie.” Rachel said that she was
afraid Perez would fire someone just because she was the office
manager. Again, Perez replied, “that was a lie.” Perez told
Rachel that Rachel interfered with her work, and undermined
her authority, and that because of this the other employees
would not respect her. Rachel claimed that she was only trying
to help because Perez had asked for assistance. Perez replied
that “she was lying and that I didn’t need her help because she
had already had (sic) shown me all she knew, which was how
to write checks make copies and run faxes,” and that, “the
extent of my training with Rachel was over in about 15 min-
utes.”22 David, after listening to this, referred to the disagree-
ment as just a “catfight,” and stated that he would leave it up to
the two of them to work it out, and was not going to get in-
volved.
The next morning, according to Perez’ notes, David came
into Perez’ office and asked what she wanted to do. She asked
what he meant, and he said that if she wanted to leave he would
understand, but requested that she give him 2 weeks notice so
that he could find someone else. She told him that she wanted
to stay, but that Rachel needed to respect her position as the
office manager, and that employees needed to know that if they
had concerns they could come to her, as one of her goals was to
build employee morale. David asked whether the employees
were unhappy, and Perez answered, “Well I know they feel that
Rachel interferes too much and she is rude and hostile towards
them. I said, they are having the same problem with her that I
am.” David said that Rachel would be like the assistant man-
ager, and should be included in everything that goes on in the
office. Perez said that she was confused, because upon accept-
ing the position she understood that Rachel would only be there

21 During her testimony, Perez acknowledges that she understood
David to be inferring that he was going to tell Rachel to “let go and let
me be the office manager, but he was telling me to—in other words,
don’t throw it in her face. Don’t be harsh to her. Be sympathetic to-
wards her. We’ll break it to her gently. That’s the impression I got
what he meant.”
22 In another part of the memo Perez writes that “. . . Rachel didn’t
even know how to turn on a computer, much less work on one. . . .”
for as long as it took to train her, and then Perez would take
over.23 David said, “Rachel is a very important part of our
team and she will be working with you and handling all public
relation activities. That is my final decision.” Then he got up
and walked out.
David testified that he laid off Perez because he realized that
he had made “a very regrettable mistake in judgment, in think-
ing that someone who had never worked in a law office could
effectively manage a law office. She was completely ineffec-
tive.” In fact, immediately prior to complaining about Rachel,
Perez had come to David about a problem with Konrad, whom
Perez supervised. Perez accused Konrad of refusing to follow
her instructions about something, and David called Konrad into
his office and, in front of Perez, told Konrad that Perez was her
supervisor and Konrad should follow her orders and was ex-
pected to obey her. I credit the testimony of David.
Perez’ testimony regarding her meeting with David differs
from her written account. Thus, Perez did not testify that there
were two conversations with David on 2 successive days, nor
that it was only on the second occasion, after prompting by
David, that Perez mentioned that other employees were also
dissatisfied with Rachel. Rather, Perez testified to only one
conversation on 1 day, and claims that at the outset of that con-
versation she advised David that she and other employees felt
that Rachel was very rude and hostile and believed they should
be able to come to Perez with their problems but “did not see
the transition of me being in charge”; and she also claims that
during the conversation she told David, in Rachel’s presence,
that Rachel was interfering with her work and the work of the
employees. There is nothing in Perez’ notes to this effect.
Further, Perez testified that she approached David only after
having spoken with Betters and Mejia, who agreed that they too
were subjected to untoward treatment by Rachel, and who re-
luctantly gave Perez, as the office manager, their approval to
speak to David on their behalf. If this was indeed the very
reason or a principal reason for speaking with David, it is rea-
sonable to assume that she would not have neglected to men-
tion this in her very extensive notes. Again, there is nothing in
Perez’ notes to this effect.
I do not credit Perez’ testimony insofar as it differs from the
account of her two conversations with David contained in her
notes. Nor do I credit Perez’ testimony that she specifically
requested and received permission from Attorneys Betters and
Mejia before complaining to David about Rachel on their be-
half. I find that Perez had two conversations with David re-
garding Rachel. During the first conversation Perez said noth-
ing about being a spokesperson for the attorneys; rather, I find,
she was an advocate for her own position. The second conver-
sation was initiated by David, not by Perez. Except for one
very brief reference to other employees in response to a ques-
tion by David, Perez was pointedly and exclusively focused on
her own personal grievances and concerns on behalf of herself,

23 Perez testified that she said to David, “You know, you told me she
knew the operations of the office. She doesn’t. I’m not receiving any
kind of training, and I really would like to move on and learn the opera-
tions of the business. So I see no reason for her to be here. I think it’s
time for her to leave so that I can take over.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD816
and not as a spokesperson for others. Moreover, the concerns
she expressed on behalf of herself were for the purpose of so-
lidifying her position as a manager, not as an employee within
the meaning of the Act, and indeed were also designed to re-
move Rachel from the office so that there would be no doubt
that Perez was the supervisor in charge.
David testified that it became apparent he had made a mis-
take in hiring Perez as she simply did not have the qualifica-
tions and skills to be the office manager that he was looking
for; therefore he discharged her.24 The termination letter handed
to Perez, dated May 15, states that, “this office is undergoing
further reorganization, which leaves your services unneces-
sary,” and advises that she is being given a paid vacation
through June 6.
Whatever the reason for the discharge of Perez, whether be-
cause of her lack of expertise and her inability to perform the
functions of an office manager, or her inability to diffuse the
situation with Konrad, or her demonstrated lack of tact in inter-
personal relations by repeatedly referring to Rachel as a “liar”
immediately after being advised by David that she should treat
Rachel with sympathetic understanding, or her insistence that
Rachel no longer maintain a presence at the office, or simply
the inability of Perez and Rachel to get along together in an
office setting, or, perhaps, a combination of the above factors,
there is no showing in this record that, assuming arguendo
Perez was an employee and not a supervisor, her discharge was
for any reason proscribed by the Act. I find that Perez was not
discharged for speaking up on behalf of other employees, as
alleged, and I shall dismiss this allegation of the complaint.
7. Work deficiencies of Davila; purported union activity
The Respondent hired Mary Louise Davila on about May 13,
as an administrative legal secretary. David testified that during
the preemployment interview Davila had told him about her
work as a secretary for Southwestern Bell Telephone Company
in the labor law section, where she handled that employer’s
arbitration matters with the CWA, one of the unions that repre-
sented Southwestern Bell employees. David decided to give
her the title of “administrative legal secretary,” which was a
combination of a legal secretary and administrative assistant, as
there was no good candidate for the position of office manager.
There was a voluminous influx of paperwork to keep track of,
and there was an abundance of arbitration matters involving his
CWA client. The scheduling of these arbitration matters had to

24 David Van Os hired Perez in order to minimize, not compound,
his having to deal with office and administrative pressures, so that he
could concentrate on his very busy practice that became even busier
upon the abrupt departure of Kirby. He knew that Rachel and Perez
had been very close high-school friends; and, indeed, Rachel had even
recommended Perez for the office-manager position. It is likely, al-
though not supported by direct record evidence, that David hired Perez
believing that she was an individual who would be able to both serve as
an effective office manager and, at the same time, diplomatically deal
with Rachel’s presence at the office; however he came to understand
that this was simply wishful thinking after Perez, in front of both Ra-
chel and David, repeatedly referred to Rachel as a “liar.” It would have
been very difficult for Perez and Rachel to remain amicable after this
exchange, and, as David told Perez, Rachel’s continued presence at the
office was, in-effect, nonnegotiable.
be coordinated between the Respondent, various CWA repre-
sentatives, and the American Arbitration Association (Triple
A). There was also the need for a legal secretary. These are
the things he told her she would be doing when he wrote out
her job description.
Denise Mejia testified that during Davila’s first week of
work, Mejia and Nicole Betters were in the parking lot when
Rachel approached them and apologized for Davila’s perform-
ance. Mejia asked Rachel what she was talking about, and
Rachel said, “Well, something’s going to be done to get rid of
her, because we’re not going to stand for this.” Mejia asked
Rachel to explain, and Rachel simply replied that, “We’ll do
something to get rid of her.” Mejia testified that she and Bet-
ters then discussed the situation that evening and decided that
they needed to take some action to protect yet another em-
ployee that they believed Rachel was targeting for termination.
It appears, however, that no immediate action was taken,
David testified that on the morning of May 23, he dictated an
important letter regarding an imminent plant closing, walked to
Davila’s office and, placing the dictation tape in a dictation
folder, told her “this is urgent. The client wants this sent imme-
diately. Please do this as a top priority.” On the next day, May
24, he asked her why she had not yet typed the draft of the let-
ter, and Davila said something but, according to David, “it
wasn’t very responsive.” He spoke to her again about it on the
next day, May 25, after receiving a phone call from the union
client asking if the letter had been sent. David said no, that he
was sorry. He again went to Davila and, seeing that the dicta-
tion tape had not been touched, said to her in a stern tone of
voice that clearly conveyed displeasure, “Since you evidently
cannot or will not type this letter, I’m going to give it to some-
body who will.” Then he took the tape to Konrad and asked
her to type it. Konrad did type it, and it was reviewed by David
and mailed on the morning of May 26. I credit David’s testi-
mony.
Michael Murphy is a union organizer for an IBEW local, one
of the Respondent’s principal clients. Murphy testified that he
worked with Kirby on many matters, and that every time he
happened to meet with her Kirby would make remarks about
Rachel’s weight, about Rachel’s faking her disability claim,
about the WLA file, about David’s inability to take care of
clients’ business properly, and about other matters that were
detrimental to the Respondent’s relationship with the IBEW.
For example, Kirby also told him that Rachel’s “rent-a-friend,”
Kandi Konrad, a secretary, was incompetent. Murphy testified
that he believed it was very unprofessional of Kirby to be mak-
ing such disparaging remarks. Nevertheless, he questioned
whether the Union’s business was being properly taken care of
by the Respondent, and he passed the information on to the
Union’s business manager.
Then, after Kirby left the firm, Murphy developed a personal
relationship with Betters. Betters would also tell him things
that were going on in the office. And Betters also complained
to him about Konrad’s deficiencies as a secretary. On May 19,
Betters sent him an email of a pleading in a case, with a note
attached saying, “Kandy [Konrad] will get around to sending
this to you someday.”
DAVID VAN OS & ASSOCIATES, PC 817
Murphy testified that Betters phoned him on Friday, May 26,
the day prior to the 3-day Memorial Day weekend, and told him
that Davila was going to be fired. Betters asked him what
could be done to stop this from happening. Murphy suggested
that Betters could make a union recognition demand upon
David, and that this might prevent or delay the discharge as
David would understand that the recognition demand would
create the presumption that Davila’s discharge was motivated
by her union activity. Murphy suggested that Betters do this
quickly, before Davila got fired, and that this would put David
in a very difficult position.25 Pursuant to Murphy’s efforts,
Betters obtained some IBEW union authorization cards that she
transformed into OPEIU authorization cards by whiting out the
IBEW references and inserting “Local Union NO. 120 of the
OPEIU.” Murphy, and apparently Kirby, who was no longer an
employee of the firm, also helped prepare language for a de-
mand petition to give to David. After the union demand, infra,
there was a flurry of e-mails between David and Betters and the
other employees, infra, and Betters forwarded all of these
emails to Murphy at his home that weekend.
On that same Friday afternoon, May 26, Betters, Mejia,
Davila, and Konrad entered David’s office. Betters, as the
group’s spokesperson, handed him the aforementioned authori-
zation cards, together with a memorandum entitled “Unioniza-
tion of Employees.” The memorandum states as follows:
The purpose of this memorandum is to advise you that we, the
workers of your office, have collectively and unanimously
decided to pursue unionization, for our mutual aid and protec-
tion. We want protection from, among other things, unjust
firings and demotions. Additionally, we want the protection
of grievance procedures and just cause.
We are presenting you with cards that we have signed re-
questing that OPEIU represent us as our collective bargaining
agent. As you can see, all four of the full time permanent em-
ployees of this office have signed both this memorandum and
the cards. There should be no need for an election.
Unbeknownst to David, there was in fact no union as the
OPEIU cards were fabricated by Betters who had not yet spo-
ken to anyone from the OPEIU, and therefore did not know
whether the OPEIU would even be interested in representing
the employees.
David told the employees he was delighted, and, believing
that the OPEIU had become the employees’ bargaining repre-

25 Betters testified that the primary reason she phoned Murphy was
that Rachel was trying to make the employees work on Monday, Me-
morial Day. Secondary reasons included the belief that Rachel was
making other inappropriate demands of them, such as giving them
office-cleaning duties, and that all the employees were fearful of being
fired at any time due to Rachel’s unpredictable behavior. According to
Betters, she did not explain this to Murphy; rather, she simply told
Murphy the employees wanted to unionize. Betters did specifically
deny that she called Murphy because she believed Davila was about to
be fired, or that she told Murphy she was afraid that Davila was to be
fired. I credit the testimony of Murphy and specifically discredit the
testimony of Betters.
sentative, immediately recognized the Union.26 He did express
to the employees some concern that the attorneys, too, had
elected to become a part of the collective-bargaining unit, as up
to this point he had considered the attorneys, as associates, to
have administrative responsibilities and supervisory authority
over the secretaries. However, David did not object, and he told
Betters and Mejia that he was willing to honor their desire to be
included in a bargaining unit with clericals, but that they should
understand that they would be giving up their supervisory status
and would become bargaining unit employees. Later that very
afternoon he sent a document entitled “Recognition Payroll
Dues Deduction Agreement” to Tonya Cummings, the presi-
dent of OPEIU Local 120. He also phoned Cummings and left
a message regarding the matter; she never returned his call.
8. Events following the Respondent’s recognition of the Un-
ion; David’s meeting with Davila and Konrad
The complaint alleges that all four of the employees who had
presented David with union cards were discharged or construc-
tively discharged because they elected to be represented by a
union. As it turned out, infra, Davila was discharged the follow-
ing Tuesday, May 30; Betters quit the next day, Wednesday,
May 31, immediately after being advised by OPEIU Represen-
tative Cummings that the OPEIU was not interested in repre-
senting the employees, and Mejia quit the day after that, Thurs-
day, June 1; and Konrad worked for 3 more months and was
discharged on August 25.
On the afternoon of May 26, David received a phone call
from Andrew Milburn Jr., vice president of CWA District 6.
District 6 represents some 86,000 members within the geo-
graphical jurisdiction of Texas, Oklahoma, Kansas and Arkan-
sas. Milburn holds the top elected position in District 6. Since
March, upon the recommendation of Milburn who had worked
on many matters with David and knew him well, the Respon-
dent had been selected to become the sole General Counsel for
District 6; prior to that time District 6 utilized the legal services
of both the Respondent and another law firm. In March, Dis-
trict 6 had over 400 grievances and arbitrations pending. Mil-
burn testified that he knew from conversations with David that
the added business would about double the Respondent’s work-
load, that David would need to increase his legal staff and pos-
sibly his clerical staff to handle the increase, and that the acqui-
sition of this additional business presented a significant oppor-
tunity for David and the law firm.

26 The record is absolutely clear, and I find, that David was indeed
pleased that the employees had elected to become represented by the
OPEIU. Prior to moving his office to San Antonio, he was proud of the
fact that his was the only law firm in the State of Texas that had a col-
lective-bargaining relationship with a union (the OPEIU represented his
clerical employees in Austin); and credible record evidence shows that
after moving to San Antonio he had spoken with OPEIU Representative
Tonya Cummings about organizing the employees in his San Antonio
office. In addition to believing wholeheartedly in the mutual benefits
of collective bargaining, he also believed that union representation of
his employees was simply a beneficial business practice for a union-
side law firm. The record abundantly shows, and I find, that at all
times material herein David was ready and even anxious to negotiate a
collective-bargaining agreement with the employees’ collective-
bargaining representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD818
Milburn testified that the reason he phoned David on the af-
ternoon of May 26 was because of a pending arbitration matter.
Milburn was to be a principal witness on behalf of the CWA in
the scheduled arbitration. On May 25, Milburn had received a
letter from Triple A dated May 23, advising that the arbitration
had been scheduled for August 15. Milburn testified that this
was very upsetting to him, as the Respondent was supposed to
check with Milburn before scheduling arbitration dates with
Triple A. According to Milburn, August 15 was a particularly
unacceptable date because he, along with a contingent of CWA
officials, was scheduled to be involved in proceedings at the
Democratic National Convention on that very day. During the
course of the phone call, Milburn emphasized to David that he
was very unhappy about this, that it was unacceptable, that he
could not have this type of thing going on, that he could not do
business this way, and that this caused him some concern that
perhaps the Respondent was dealing in a similar fashion with
the other 15 or 20 CWA representatives in the field who
worked with the Respondent in the scheduling and handling of
arbitrations.
Milburn insisted that the arbitration be rescheduled.27 David,
according to Milburn, said that he would take care of it, that he
would look into the matter and find out how the mistake was
made, that he would fix the problem, and that it wouldn’t hap-
pen in the future. David did get back to him in a few days and
said that upon looking through his secretary’s tray he had found
the letter from Triple A that had upset Milburn. Milburn be-
lieves that David also told him he had discharged that secretary.
David’s testimony corroborates that of Milburn. According
to David, Milburn was angry because the law firm had let the
arbitration be scheduled for hearing on August 15. He told
David that he was extremely unhappy and wanted to know how
it had happened and whether the law firm was taking care of his
business properly, and advised that it had better not happen
again. David did not know what Milburn was talking about,
and during their phone conversation Milburn faxed him the
letter from Triple A showing that the arbitration had been
scheduled for August 15. David testified that after receiving
this call he “worried a lot, and I became concerned that my
relationship with my biggest client was in grave jeopardy.” He
called Davila and Konrad into his office and told them about
Milburn’s phone call, reminded them that the client always had
to be contacted before a hearing was scheduled, and again
“walked them through” the procedures that had been estab-
lished regarding the scheduling of arbitrations and other com-
munications with Triple A. David testified that this was not
intended to be an investigatory or accusatory type meeting.
Konrad’s account of the meeting is as follows. David asked
Davila, “[H]ow she did things in the office, and she answered

27 Milburn also testified that sometime in April he received a phone
call from Kirby, who wanted to meet with him “in confidence.” During
their meeting Kirby said she was working with another attorney on a
contract basis, and, while attempting to solicit arbitration business from
the CWA, made some discrediting remarks about David and his firm;
she also indicated a very strong dislike for Rachel and made some very
disparaging remarks about David and Rachel’s personal relationship.
Milburn did tell David about this meeting with Kirby, but did not tell
him about the personal matters that Kirby had related.
his questions, and then he talked to me about some of the things
that I did in the office.” Konrad did not pay close attention to
the conversation between David and Davila, but does recall that
David asked Davila about arbitration cases. David seemed to
be in agreement with Davila’s responses; Konrad also testified
that David seem to be satisfied with her answers when he asked
her about specific work-related matters, and even apologized
when she explained to him why she had not been able to send
out some 50 letters that week, as David had requested. David
ended the meeting by stating that when they came back to work
the following Tuesday, “we’d start over with a clean slate.”
Davila testified that during the meeting David asked her
about office matters, and particularly about the phone call he
had received from Milburn regarding the arbitration matter.
David showed her the letter from Triple A that Milburn had
faxed to him, and Davila replied that she didn’t not know any-
thing about it, as the letter from Triple A was dated prior to her
starting date with the Respondent. David seemed to accept this
explanation and did not question her further about the matter.
Davila phoned Betters that evening, and told Betters that
David had questioned her and Konrad about office matters.
Betters said that she believed Davila was being reprimanded
and should have requested a union representative. Davila dis-
agreed, and told Betters, “I didn’t think of it that way. I
thought he was just asking me questions regarding what was
going on in that office, concerns that he had, that Rachel had
brought up to him.” However, when Davila was again asked by
the General Counsel why she felt it was necessary to phone
Betters, Davila inconsistently testified, “Well, I thought he was
trying to accuse me of something that I hadn’t done and I
thought he was trying to get me fired.”
The foregoing testimony of Konrad and Davila indicates that
both of them left the office that Friday evening with the belief
that their explanations to David about work-related matters had
been accepted by him with equanimity: according to Konrad,
he told them to have a nice weekend and that they would start
with a clean slate on the following Tuesday; and, according to
Davila, David did not seem to be reprimanding her for inatten-
tion to work, but just had concerns about work-related matters.
I do not credit Davila’s inconsistent testimony that she phoned
Betters because she believed David was seeking to falsely ac-
cuse her of things in order to find a reason to fire her. If this
had been the reason she phoned Betters, this is what she would
have told Betters, and testified to, in the first place. Further, the
record evidence appears to substantiate David’s characteriza-
tion of the meeting as noninvestigatory and nonaccusatory: He
was asking them about work-related matters in order to insure
that they performed their work promptly and efficiently, he
accepted their responses to his questions at face value, and he
gave them no reason to believe that he intended to take disci-
plinary action against them.
9. Voice-mails and e-mails
In any event, Davila’s phone call to Betters prompted her to
phone the office that evening and leave a voice mail for David.
Betters testified that she advised David, “that I knew that there
had been a meeting and that I thought we wanted union repre-
sentatives to be present at these kind of meetings and I wasn’t
DAVID VAN OS & ASSOCIATES, PC 819
sure about this . . . I think I said that I was going to advise [the
employees] not to talk about this kind of stuff until I could talk
to a union representative.”
In fact, Betters’ message, which she left at 10:25 p.m. that
evening, states,28 inter alia, that although the matter was not a
emergency, Betters had heard about David’s meeting with
Davila and Konrad, and that:
You know, this union stuff is a little bit new to us, but
my understanding was that, you know, you’ve been ad-
vised that we’re unionizing. So, I was—I’m going to let
them know that they need to tell you, until we get our col-
lective bargaining agreement, at least, that we’re not going
to talk to you privately, unless a union rep is present, for
obvious reasons. The same goes for Rachel. May I sug-
gest that you let Rachel know, so that she’s not asking
questions of the employees in the office, so that, you
know, we make this as comfortable as possible for every-
one.
I’m not sure if the employees actually have to state
that to you directly or if my telling you is good enough, so
I’m going to instruct them to tell you that directly, at least
until we get some idea of the structure of the office.
. . . .
You know, like I said, I’m new to this. I don’t know
anything about it. And we’re going to have to talk to our
union reps about it. So, if I’m off base, I apologize, but
that’s my understanding, that they don’t have to talk to
you if they don’t want to. And I’m sure that they didn’t
today. So, like I said, I’m going to instruct them to tell
you to talk to the union rep there with them the next time
you want to have a meeting with them.
I was going to say, if you have any questions, call me,
but I don’t have any answers for you, because I just don’t
know enough. So, I will see you Tuesday. Bye, bye.
It is clear that David understood from this voice message that
Betters, as the representative of the employees, was telling
David not to speak with the employees, including Betters, about
work-related matters, in the absence of a union representative;
and further, that Betters intended to so instruct the employees
that they need not speak to David about work-related matters
unless a union representative was present.
When the Van Oses arrived home that evening David
checked his office voice mail and heard Betters’ message.
Because he believed that this was indeed an emergency situa-
tion as it effected the operations of his office, and because he
wanted to contact Betters before she contacted the other em-
ployees and instructed them not to talk with him about work-
related matters, he phoned Betters that night three times within
5 minutes. It is clear from David’s response and tone of voice 29
that he was livid. Betters was home, but did not answer her
phone, and David left three short messages. The first message
was at 1:39 a.m. David said:

28 David had kept the recording of this message, and it was received
in evidence.
29 Betters had kept the recording of the messages, and it was re-
ceived in evidence.
Ah, Nicole, this is David. You are right, you don’t know very
much. Ah, the meeting this afternoon with my employees
was not a disciplinary meeting. It did not involve potential
discipline. It was a meeting about work duties. I will discuss
with my [sic] employees any time I feel like it, and if you in-
struct my employees not to discuss work issues with me, you
will be infringing upon my rights as we will have trouble and
I will not put up with it. That is my answer to you, do you
understand? If you have any questions about it, you call me.
. . . Thank you.
The second message advised Betters that
If you interfere with my ability to manage my office by in-
structing my employees not to discuss work issues with me,
and therefore prevent me from being . . . able to get my work
done, you will be looking for a new job, very, very, quickly.
Let me be clear about that . . . I will discuss work issues and
work duties with my employees whenever I feel like it. If you
interfere, you will be terminated immediately. Do you under-
stand?
In this message he also advised Betters that he was fully aware
that if the employees reasonably believed that discipline could
result from any interrogation about work, they had a right to
union representation upon their request.
During the third message David advised Betters that
If any of my employees refuse to talk to me . . . about work is-
sues, they will be terminated immediately and for your infor-
mation, all of my employees, ah let’s see that is Kandy [Kon-
rad], Nicole [Betters], Denise [Mejia] and Mary Louise
[Davila] are probationary by explicit agreement with me at
the times of hiring of less that 90 days ago30 . . . Any em-
ployee who refuses to talk to me about work issues will be
terminated immediately. You can tell them that, and if you
instruct them not to talk to me and therefore get them fired, I
guess you can deal with them, alright? If you have any ques-
tions please feel free to call me.
The complaint alleges that by these three “hostile” and “early
morning” phone calls, the Respondent harassed and threatened
employees “with immediate discharge” and “with interroga-
tion,” and informed them that they were being placed on proba-
tionary status, all because of their concerted activity.
David’s late night/early morning phone calls not did not oc-
cur in a vacuum. Betters’ voice mail message, I find, was in-
deed shocking to David, as he reasonably understood that Bet-
ters, as union representative and spokesperson on behalf of all
the employee, was instructing him not to talk to his employees
about work-related matters, that Betters intended to “instruct”
the employees that they need not talk to David about work-
related matters unless a union representative was present, and
that this would be the modus operandi of the office, established
by Betters, until a union contract had been negotiated. Obvi-
ously, neither a law firm nor any other business can function

30 I credit David’s testimony that in fact upon hiring each of these
employees he advised them that they were probationary or “provi-
sional” employees. I do not credit the employees’ testimony to the
contrary.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD820
under such restrictions. I find that, under the circumstances,
David’s immediate response that he would terminate Betters for
so instructing the employees, and that he would terminate the
employees for following Betters’ instructions, was entirely
within David’s prerogative as an employer. Further it is clear
that David assured Betters that he would respect the employees’
Weingarten31 rights to have a union representative present un-
der certain circumstances. It is also clear, as found above, that
Betters understood David was not antiunion; to the contrary,
Betters testified she had anticipated that David would be fa-
vorably receptive to his employees’ request for union recogni-
tion, and indeed this was the case. I shall dismiss these allega-
tions of the complaint.
It is unclear from the complaint whether it is the content of
the foregoing messages, or the manner in which David trans-
mitted these messages, or the two combined, that comprise the
complaint allegations. Clearly, if Betters believed that her mes-
sage was not important, she could have simply spoken to David
about the matter the next business day, Tuesday, May 30.
Rather, she deemed the matter important enough to warrant a
call at 10:25 p.m. on Friday night.32 To David, Betters’ mes-
sage was of critical importance as it directly effected the very
operation of his business, and warranted an immediate response
regardless of the hour. He was angry, his reaction was sponta-
neous, he phoned soon after he returned home that evening and
received Betters’ message, he placed the three calls within a 5-
minute time span, and each of the calls conveyed a different,
concise, responsive thought. Under the circumstances, I find
that the timing of David’s response coupled with his incensed
tone of voice did not independently constitute harassment, and
did not make his otherwise lawful remarks unlawful.
Betters did not respond to David’s phone calls.
This was only the beginning of that weekend’s exchange of
messages. On Saturday, May 27, at 3 p.m., David sent a
lengthy, wordy, repetitious, three-page e-mail to the office
email addresses of each of the employees, and also to Betters’
personal e-mail33 in response to Betters’ voice mail message the
night before. David pointed out the reasons for his discussion
with Davila and Konrad on Friday, and he advised the employ-
ees that Betters’ understanding of labor law was not correct,
and that he may not be precluded from having discussions with
his staff. He again stated that anyone who refused to discuss
legitimate work issues with him would be terminated, that any-
one who instructed other to refuse to discuss legitimate work
issues with him would be terminated, and that anyone who lies
about work issues would be terminated. He further states that,
“Under the Weingarten rule, if I conduct an investigatory inter-
view with an employee which could possibly lead to discipline,

31 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
32 It appears there was a calculated motive for Betters’ Friday night
voice mail message: Thus, she could have waited to have a face-to-face
conversation with David at the beginning of the next business day, but
she wanted to preclude David from making a decision to discharge
Davila over the weekend. Indeed, the operative reason for contacting
Murphy, fabricating union cards, and requesting recognition, I find,
was to protect Davila.
33 E-mails were a customary way of communicating among David
and the staff.
the employee upon request has the right to a union representa-
tive. I am fully aware of this rule and will comply with it with
the fullest cooperation.” He states that he believed that “collec-
tive bargaining was going to be real good for the office when I
first received your petition. However, if Nicole [Betters] or
anyone else plans to prevent me from normal day-to-day man-
agement, especially now when I am so swamped and so badly
in need of teamwork, by such ideas as the ridiculous suggestion
that I cannot have meetings with employees to discuss work
strategies, I am going to have to respond with a tough business
attitude. I am so busy I don’t have time for anything else.
Weingarten rights will be respected to the maximum by me.
. . .” He tells the employees that they had better get some good
advice from OPEIU Business Representative Tonya Cum-
mings, “and get it quick, because I guarantee she knows better.”
He states:
Collective bargaining through union representation is a
GOOD system. It works. I look forward to meeting with
y’all for the excitement and challenge of negotiating a first
contract. It will be fun. It can be one of the most fun things
anybody can do. We really all need to be looking forward to
it. But the system can turn sour if people decide they want
war instead of progress or if they want destructivity instead of
constructiveness. Hey, guys, you can’t go around saying that
the owner of the business can’t talk to you about work. That
ain’t gonna work. [Original emphasis.]
He goes on to say that he is “neck-deep in trying to take care of
my client’s business, and they are my first priority next to my
children.” He states that he is prepared to begin meeting at 6
p.m. every evening, and earlier on weekends, to negotiate a
contract. He concludes the e-mail with a bit of humor, stating
that he had proposed a “union shop” in the recognition clause
he sent to OPEIU Representative Tonya Cummings, even
though this would be unlawful in Texas, a right-to-work State,
but to neutralize this he also inserted a clause stating that con-
tract provisions are unenforceable where prohibited by law. He
ends the e-mail with, “Good luck to you all and happy bargain-
ing.”
Once again, in this e-mail David is conveying the same law-
ful message to the employees that he conveyed to Betters over
the phone. I conclude that his reference to a “tough business
attitude” may be reasonably understood to mean, as he repeated
many times, that he would not tolerate the employees’ refusal
to speak to him about work-related matters. Further, the state-
ment that “anyone who lies about work issues would be termi-
nated” is a prerogative of management and seems to be a reit-
eration of certain statements in his April 17 memorandum,
supra, wherein he makes it clear that he has very little tolerance
for untruthfulness regarding matters that affect the functioning
of the firm. I shall dismiss the allegations of the complaint
regarding this e-mail.
Next, Betters responded to David’s phone and e-mail mes-
sage by a lengthy email to David and all the employees dated
Saturday, May 27, apparently intended to diffuse the situation.
First, she misrepresents what she said to David in her voicemail
by stating, “If you listen carefully to what I actually said in the
message, my message was this: I don’t know whether we have
DAVID VAN OS & ASSOCIATES, PC 821
the right to have a representative with us during meetings with
you regarding office discipline, but if we do, we want to assert
that right.” Then she says, “Instead flying off the handle and
threatening our jobs, you [could ] have simply informed me of
the law as it stands.” She relates her understanding of David’s
discussion with Davila and Konrad. She further states that she
has been trying to get in touch with Union Representative
Cummings and others but that these individuals have taken long
holiday weekends and that no actions will be taken on contract
issues “until we meet with our union”; further, she says that,
“The minute we get in touch with our union . . . leave me out of
it.” She ends the e-mail by suggesting to the employees that
they ask for a union representative if they feel that interrogation
about matters may result in discipline.
David was not pleased with this response. He replied only to
Betters. His lengthy email, dated late Saturday night, states,
inter alia:
You are correct. I was extremely offended by your voice-
mail message. I did save the message and I shall keep the re-
cording. You clearly told me that you were going to instruct
the employees not to talk to me. You know very well how I
am struggling like a dog to keep up with my workload and
keep this office going. If I cannot talk to the employees about
work issues I am dead.
. . . .
My elation [about the employees’ unionizing] vanished when
I heard your message last night. To me it was a declaration of
war. You clearly told me that the union was going to hassle
me a lot about day to day talking with the employees.
He states that he is extremely busy and would not be able to
operate if he had to slow down to arrange union representation
just to have routine work assignment and work status discus-
sions with employees; under those restrictions he would have
no choice but to give up the practice and sell the building. He
states that his discussion on Friday with Davila and Konrad was
about the “status of work projects. The work is not getting
moved out fast enough. Important letters are languishing for 2
and 3 days. The discussion was not intended to be investiga-
tory for possible discipline, it was intended to be a status and
strategy session.” He goes on to state, “I guess what I really
heard as a declaration of war was your telling me what you
were going to ‘INSTRUCT’ the employees to do and not do in
my attempts to interact with them.” He further states
If you had just called me and asked me if they had a right to
union representation or asked me about the nature of the
meeting and whether it was possible a mistake was made by
my talking to them, I would not have felt offended and would
have given you a straight answer to the best of my ability and
knowledge. But you really threw down a gauntlet when you
told me you were going to instruct the employees not to meet
with me in the office. What the hell, do I have to wait for a
union representative if I want to meet with Mary and go over
my day’s mail . . . .
He goes on to tell Betters that although she was hired on a
“provisional” basis, he wanted to assure her that he was not
having second thoughts about her, that she was doing a good
job, “and I just need you to keep it up.” He concludes as fol-
lows:
And regarding your concerted activities, if you think you are
in any danger of losing your job because of your union activi-
ties, you not only do not know me very well, you do not know
me at all. I would sooner jump off a cliff face forward than
terminate an employee for exercising rights that I believe in
with all my heart. Do you get it? What have I spent my adult
life fighting for is not something I can trample on even if logic
were to dictate that I should. I would not be capable of it. It
would put me at war with my soul . . . please take this to the
bank—you guys do not have to worry about reprisal for your
legitimate concerted and union activities over wages, hours
and conditions of employment. OK? Please. Tell everybody
paranoia about that factor is not necessary. I live and breathe
believing in those rights. When we disagree about labor-
management issues, as we are bound to, please check the
paranoia in at the gate, it is not needed. Thanks.
I shall dismiss the complaint allegations regarding this e-
mail. It is mostly a reiteration of the message contained in prior
communications which I have found to be lawful. In this e-mail
David introduces the matter of possibly having to close down
the business in the event he is unable to communicate with his
employees. This makes sense, and emphasizes the seriousness
of the matter; it is not a threat but simply an observation that
the business would not be able to survive under the ground
rules enunciated by Betters.
Importantly, the concluding paragraphs of the e-mail specifi-
cally advise in very clear terms that Betters is doing a good job
and should keep it up, that there will be no reprisals against
Betters or any other employees because of their union activi-
ties, that employees need not worry about this, and that Betters
should please relay this to the employees so that they need not
have any concerns or regrets about their decision to unionize.
Assuming arguendo that David did make any statements in the
various foregoing phone calls or emails that could be construed
as unlawful, I find that by this explicit message the Respondent
effectively and unequivocally advised the employees that they
need not fear any reprisals, and that David had not intended his
messages to dissuade employees from continuing to pursue
unionization.
Betters replied to David with a short e-mail as follows:
Yesterday, an employee was confronted regarding her lunch
hour, and why she was not a team player.34
I think you will know what I am talking about when I tell you
that it is not YOU that I am worried about. I know that you
are honorable and trust worthy. It is the other boss that I am
worried about.
I am willing and ready to RISK MY JOB TO PROTECT
THOSE SECRETARIES. [Original emphasis.]

34 This is not a reference to the meeting David had with Davila and
Konrad; it is a different matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD822
David’s reply email to Betters begins by stating that the sec-
retary whom Betters wants to protect appears to be dishonest
and appears to not be doing a good job and to be hurting his
client’s interests. He then notifies Betters that, “based on some
things I have found in the office today and some things I have
been confronted with by a client I have realized that I need to
investigate some conduct that has hurt my clients.” He then
advises Betters that he will be having investigatory meetings
with Davila and Konrad on Tuesday morning, and invites Bet-
ters to so notify them if she wants to, and to attend the meetings
as their union representative. Then he goes on to say, inter alia
Nicole, I am tired of your belligerence and your attempted
bullying and intimidation about these labor-management is-
sues. You have the right to conduct your union business that
way if you want to, so long as you do not disrupt firm busi-
ness, and as I have assured you your protected rights will be
honored. But this is not the constructive way to start a collec-
tive bargaining relationship . . . evidently you intend to protect
poor performance at all costs regardless of the detriment to the
clients. If that is your goal, we are not going to have a posi-
tive labor-management relationship. But based on your last
message that is evidently what you intend. [Emphasis added.]
Then he changes the subject and says:
By the way, you do need to make sure you keep up with your
assigned legal work. To be fair, you need to follow the same
expectation I have imposed on Denise [Mejia]. I need to see a
minimum of 6.5 billable hours per day. And you need to
leave me daily reports of your billable time before you leave
for the bar review course each day. I will show you Tuesday
the format that Denise uses.
The next paragraph continues the discussion of office busi-
ness. David states that he wants to discuss certain office matters
with Betters and Mejia on Tuesday morning following the in-
vestigatory interviews. He concludes as follows:
Nicole, we MUST compartmentalize effectively between la-
bor-management disputes and our legal work, and we MUST
NOT permit labor-management disagreements between you
as office union rep and me as manager to hurt our legal work
for the clients. As lawyers we MUST work together as a team
in our legal work for our clients regardless of the labor-
management business. And the work for the clients must be
taken care of timely and properly. I insist on this commitment
and I have a right to it. [Original emphasis.]
It is clear by this message that David, who in my opinion
seems to be overreacting to the situation as a result of the
stresses he articulates in his various emails,35 believes Betters is
willing to risk her job to protect incompetence and dishonesty,

35 In fact the record abundantly demonstrates, and I find, that these
stresses were very real, and were exacerbated by long hours of work,
days, nights, and weekends, a very heavy schedule and caseload, rela-
tively inexperienced associates, a revolving secretarial staff, the com-
plaint from Milburn, and a cash flow crisis due to the fact that the
monthly billing had not been completed in timely fashion. Clearly, the
employees were all well aware of the fact that such pressures weighed
upon David.
in detriment to the interests of the firm’s clients. He is very
unhappy about this, and chastises Betters, in her capacity as a
union representative, for what he considers to be her strong-
willed and ill-considered stance. He expresses his opinion that
a constructive, long-term union-management relationship must
insure that employees are an asset rather than a liability. Nev-
ertheless, he is willing to honor Betters’ right to conduct union
business as she pleases. He then states that he and Betters must
compartmentalize, in effect, agree to disagree, and work to-
gether for the benefit of their clients regardless of labor-
management disagreements. While David’s directness in ex-
pressing his beliefs to Betters might cause her to feel uncom-
fortable in her position as self-proclaimed protector of the sec-
retaries, this is the position that she conferred upon herself, and
there is no requirement that David be sympathetic to her di-
lemma. I shall dismiss the allegations of the complaint pertain-
ing to these portions of the email.
It is alleged that David, by this e-mail, imposes new and
more onerous working conditions on Betters because of her
union activity. Thus, David told Betters that she would be ex-
pected to have a minimum of 6.5 billable hours per day, and
would have to submit daily reports of these hours. Prior to this
time Betters had not been given any such specific requirements
to fulfill. Mejia, however, who had been employed by the Re-
spondent for a somewhat longer period of time, but, unlike
Betters was not a licensed attorney with 2 years of practice, had
been required to meet these expectations and did so. David’s
testimony indicates that he did have a conversation with Betters
about this matter after the date of the e-mail, as David testified
that Betters did not have a problem with this and told him that
she understood that this had been Mejia’s requirement. Betters,
called as a rebuttal witness regarding other matters, did not
deny that such a conversation had occurred.
The logging of sufficient billable hours had consistently been
a matter of concern. It was emphasized in the report of the con-
sultant who analyzed and made recommendations about the
firm’s practice, and this report was shared with the associates.
Billable hours was the subject of emails from Betters and Mejia
who were trying to minimize the time they spent on administra-
tive or operational matters so that they could focus on income-
producing work. For example, Betters sent an April 14 e-mail
to Rachel stating: “Thanks for keeping us in the loop as to the
changes in the office. I think that office management will help
us to increase our billables. We’re looking forward to working
with Lorraine [Perez]”; an email from Betters to David, dated
April 20, states, inter alia: Denise [Mejia] and I are brainstorm-
ing for some ideas as to how we can make our hours (and
Yours) more billable. Here are some suggestions we’ve
thought up. . . .” An e-mail from Betters to David dated Sun-
day, May 21, states, inter alia, “I appreciate your mention of
incentives. I anticipate that the hours I put in henceforth will be
more billable and less administrative as the staff situation set-
tles.” An e-mail from Mejia to David dated May 22, talks
about Mejia’s need to leave early each day in order to attend a
bar review class, and that, “I will still be turning in my billing
sheets and meeting the 6-1/2 hours we need to survive. Thanks
for your understanding and support though this bar exam.”
DAVID VAN OS & ASSOCIATES, PC 823
The record evidence record shows that 6.5 billable hours 5
days a week had been the norm for the Respondent’s practice
even in Austin, prior to the move to San Antonio. Further,
clear record evidence shows that 6.5 billable hours per day
should be readily obtainable. Betters testified that this was a
reasonable amount of hours for her to bill; indeed, there is no
record evidence that Betters, of her own accord, did not in fact
bill this number of hours prior to the time David asked her to do
so.
Regarding the requirement that Betters submit daily reports
of her billable hours, such a requirement seems to be simply an
ordinary ministerial function that is not burdensome. Thus, it
makes sense that billable hours, which must be documented,
should be documented when they occur, and to turn in a daily
log of these hours does not seem to be an added burden. In-
deed, on Tuesday, May 30, following the Memorial Day week-
end, Betters did turn in her billable hours at the end of the day,
and David e-mailed her at 5:04 p.m. as follows:
Nicole, I just want to thank you for your ready cooperation
with my request for daily timesheets. It is a good tool for
keeping up with what is going on in the firm—and one I
clearly should have been utilizing for a long time. One of
those days when we all have a few minutes to relax at a bar or
a soda shop or something I will fill everybody in on some of
the incredible attitudes former associates of mine have had
about basic time accountability—you won’t believe some of
these true stories. You finally get to a point where you just
get tired of asking people to do basic things, and it is nice to
have on board someone like you who appreciates fundamen-
tal accountability. In the very near future I am going to get us
out of the horse-and-buggy era with time reporting and set us
up with the networked version of TimeSlips that will allow
time reporting to be done through automation so that the data
will be accessible immediately. When I am trying to make fi-
nancial decisions it is impossible to forecast future incoming
cash flow without data about what kind of billing is being per-
formed. Yet mostly I don’t have the data—the daily time-
sheets will help out not only for that reason but also to help
know what people are working on for status purposes. Again,
thank you for your ready cooperation, and keep your fingers
crossed about getting the networked TimeSlips in the near fu-
ture. 36
It should be recalled that in the foregoing e-mail, immedi-
ately following the discussion of billable hours, David went on
to discuss other business matters that had nothing to do with
union activity. Unfortunately, the two subjects, union matters
and work matters, were included in the same e-mail. The record
is replete with e-mails to and from David and the associates,
night and day and weekends, about work-related matters, as this

36 This email is instructive for various reasons: First, it indicates that
requiring daily time sheets was for legitimate business purposes, and
not simply to impose a burden upon Betters. Further, it demonstrates
David’s custom of expressing ideas in a rather thorough and loquacious
fashion, as he has done in various emails herein. And finally, it indi-
cates not only that David is pleased with Betters, but that he has the
capacity to “compartmentalize,” and separate her union advocacy on
behalf of the employees from her work as a productive associate.
was a customary, expedient, everyday form of communication
among the staff. I conclude from the foregoing, and the credible
testimony of David, that the billable hour and reporting re-
quirements were not imposed upon Betters in reprisal for her
union activity. Further, I conclude that Betters readily under-
stood that this was the case. I shall dismiss these allegations of
the complaint.
The next e-mail is from David to Betters, dated Sunday, May
28. The e-mail is entitled “off the record,” and is a lengthy
three-and-one-half page document, intended as “a personal
side-bar message to you to try to lay out the stresses I am facing
as candidly as I can.” David says many things, very candidly.
He talks about Rachel and her health and the nature and pur-
pose of her duties for the firm. He states that he knows the
“office staff do not like her and that some people’s interaction
with her tends to lead to conflict. I also know there are those
who find her a joy to work with.” He states that the office staff
who are “up in arms against Rachel have no loyalty or concern
for me or my law practice or the practice’s mission; that if they
did they would have more understanding and appreciation for
why she is helping at the office and would try to work with
her.” He goes on to state that “they have no qualms about de-
monizing Rachel with malicious lies in order to invoke your
protection and to construct a cover for their poor work per-
formance. I believe that they knew their work performance was
poor and that they knew I was growing increasingly dissatisfied
with it.”
He talks about the “increased stress you have been putting
me through the last two days,” and that
. . . what you are now doing absolutely threatens the surviv-
ability of this business because of the very simple reality that
my time was already stretched to the limit. Dealing with the
new situation as a very simple reality has caused a new and
unexpected time management crisis for me that is very grave
. . . for the survival of the business because it is such a distrac-
tion from the time I need to work on client business . . . the
possibility is now very real that the business could go under
simply because I cannot humanly stretch myself any thinner.
He talks about Davila, as follows:
. . . you need to understand my frustration about Mary
[Davila] in this context. I had high hopes that she would be a
help but she has turned out not to be a help in the situation be-
cause she clearly does not have the skill and experience levels
that she claimed and cannot move the work anywhere near as
fast as is needed.
He mentions his health and family life, and he goes on to
say:
Nicole, this is a personal message, not a labor-
management battle message. I am telling you this person-
ally in the hope that I may still find some shred of friend-
ship in you: If I have to go through a big series of obstruc-
tive battles just to make necessary personnel changes with
people who are not capable of the performance this firm is
obligated to provide to clients, I an going to have to close
the doors rather than fight out those battles, because my
time is stretched to the absolute limit right now and find-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD824
ing the time to fight out such battles is not humanly possi-
ble . . . I am telling you the absolute reality because I re-
spect you and want you to be clear about the cliff we are
heading toward. I am not expressing hostility to unioniza-
tion, I truly do welcome union representation and collec-
tive bargaining as a process. I am only telling you to be
aware of what it will do to this business—for the benefit of
all the Union members—if you decide to use the Union as
a battle weapon to protect incompetence at all costs. It is
not humanly possible for me to stretch my time any further
if I have to fight such battles.
The answer is not continued toleration of ineffective
work performance by the office staff. I am sorry, I will
not do that to my clients. It would be more honorable for
me to go out of business and advise my clients to find
other lawyers who will provide them better service, than to
inflict poor service on them from my office, and that is
what I will do if that is the only way out of the dilemma.
There is nothing wrong with a union working with an
employer to remove the incompetent work performance in
order to keep the incompetence from dragging the whole
business down to the detriment of everybody. That is
what every responsible union does . . . .
David ends this e-mail on a positive note:
I have not given up the search for constructive solutions. I
have decided on a new step which I hope will change the dy-
namics of the situation, enable me to take care of my critical
client work, enable me to deal appropriately with the person-
nel situation, keep stretched the rubber band of my time man-
agement crisis from snapping in two, and keep the firm in
business. I believe this new step offers the chance to resolve
these crises constructively. I am going to tell you about the
new step in an “on the record” e-mail that will follow this one.
I beg you to recognize the attempt I am making with the new
step I am about to announce to you, to be able to keep my
time crisis within the limit of toleration and keep the business
afloat.
This message was a personal plea as honest as I could get. . . .
I believe it is not unlawful for the owner of a business to
bluntly advise a union representative, in a candid off-the-record
communication, what he really thinks about particular indi-
viduals in his employ, regardless of whether his observations
are correct or incorrect. Here, in a message which was not to
be shared with the employees, David tells Betters, as union
representative, that he believes Davila and Konrad are insensi-
tive toward Rachel and have “demoniz[ed] Rachel with mali-
cious lies,” that they have no regard for the good of the firm,
and that they have been dishonest in enlisting the assistance of
Betters and the Union as advocates for their incompetence. But
he does not say or imply that he intends to take any action
against them for their union or protected concerted activity;
rather he consistently refers to their work-related deficiencies
as the basis for any disciplinary action he may decide to take. I
shall dismiss these allegations of the complaint.
Clearly, by this e-mail, David expresses that he may have to
shut down the business in the event the Union, by its vigorous
support of unqualified employees, engages him in “big obstruc-
tive battles” that preclude him from properly attending to the
needs of his clients. Were it not for the fact that David, at the
end of the foregoing e-mail, and in the ensuing “on the record”
email, infra, offers a constructive solution to the problem, I
would find such a statement to be unlawful. However, in the
foregoing e-mail he states that he has found a way to resolve
these time-management crises and “keep the business afloat.”
And in the following e-mail he announces a specific solution to
the dilemma he envisions, namely the appointment of a super-
visory attorney who will handle labor-relations matters and
relieve David of the burden of personnel matters and union-
management relations. I believe these two e-mails, together,
constitute a disavowal of any intent to close the business, and
constitute sufficient, detailed, written assurance to the employ-
ees that they need not fear that vigorous efforts on their behalf
by the Union may result in closure of the Respondent’s busi-
ness. I shall dismiss these allegations of the complaint.
The next, and final e-mail, sent on Sunday afternoon, is the
follow-up “on-the-record” e-mail referred to by David. It was
sent to Betters and is entitled “Announcement to employees c/o
Nicole Betters, union representative.” In this e-mail David
announces the appointment of Tim Mahoney as supervisory
attorney to be responsible for direct supervision of the bargain-
ing unit, both nonprofessional and professional.37 In addition,
David states that Mahoney “will be responsible for all direct
labor relations dealing with the OPEIU, subject to my ratifica-
tion of any agreements or settlements.” And he goes on to state
I believe this is a constructive step for all of us in response to
the current situation, because I need to remove myself one
degree from the situation in order to get personalities out of
the way and in order to be able to spend my time on critical
client work. With respect to all bargaining unit employees,
Tim will have all indicia of supervisory authority listed in
Section 2 of the NLRA, provided that in hiring and firing his
authority is to effectively recommend subject to my approval.
Further, David states that Mahoney will be conducting the in-
vestigatory meetings with Davila and Konrad on Tuesday
morning, although David will probably attend.
David also states the following regarding Rachel:
I have asked Rachel to remove herself from any interaction
with the office staff in work assignment, work management,
or personnel issues. She understands that there is friction be-
tween her and certain office staff. She is hurt, but she under-
stands. This is to formally state that Rachel will no longer be
involved in personnel or work assignment matters . . . Tim
Mahoney as Supervisory Attorney will have the responsibility
to resolve any issues that may arise regarding the interface be-
tween Rachel and the bargaining unit . . . in . . . non-
personnel areas.
He concludes as follows:

37 Mahoney was an experienced attorney and acquaintance of
David. He began working for the firm a week or so prior to May 26.
His office was upstairs with the offices of Betters and Mejia.
DAVID VAN OS & ASSOCIATES, PC 825
I am excited that Tim has accepted this offer. I believe you
and the Union will find this to be a positive step. I will be
able to concentrate better on client work and business devel-
opment for the good of the whole organization . . . .
. . . .
I would appreciate your dealing with Tim rather than me, ef-
fective immediately, as your first line of contact on labor-
management or OPEIU-related matters . . . .
10. The discharge of Davila; David Van Os’ credibility
On Tuesday morning, May 30, the Respondent discharged
Davila. David testified that over the weekend he had been
conferring with a consultant, Ruben Armendarez, about the
weekend’s developments. Armendarez had recently retired
from the Board and, it appears, was a prospect for employment
by the Respondent. Armendarez, according to David, had sug-
gested the appointment of Mahoney as supervisory attorney, a
recommendation that David immediately adopted. Further,
David had asked Armendarez to participate in the investigatory
interviews with Davila and Konrad scheduled for Tuesday
morning. Upon being advised of the situation regarding
Davila’s work performance, Armendarez suggested to David
that in fact there seemed to be no need for an investigatory
interview as the discharge of Davila was clearly warranted.
David also accepted this suggestion.
To recapitulate what had happened on the previous Friday,
May 26: The Respondent recognized the Union. David re-
ceived a very troubling phone call from the firm’s largest client.
As a result of this call he held a meeting with Davila and Kon-
rad about office procedure. This is what precipitated the phone
call from Betters Friday night, and all the ensuing e-mails.
Davila began working for the Respondent on Saturday, May
13, and performed work on that Saturday and Sunday, May 14.
David testified that either on Monday, May 15, or Tuesday,
May 16, he sat down with Davila in the upstairs conference
room and had a several hour training session with her in which
he utilized the arbitration training folder for CWA cases, and
reviewed with her, in detail, the procedure she was to follow in
the handling of arbitrations with Triple A involving CWA
grievances. He very carefully explained to her, reminding her
several times, that it was necessary for her to clear all arbitra-
tion dates with the CWA representative handling the matter
prior to sending Triple A the arbitration-date acceptance notifi-
cation, and that when she received the CWA acceptance dates
she should send them to Triple A immediately so that the dates
would not be lost to some other Triple A matter. Davila said
that she understood this, as she had utilized the same process in
scheduling arbitrations from the management side while work-
ing in the legal department for Southwestern Bell.
David testified that he began having doubts about Davila
from the beginning of her employment. Thus, during one of
her first days on the job he had asked for some particular
documents and knew that Rachel had given them to Davila
because he had overheard Rachel doing so; yet when he asked
Davila for the documents she said she didn’t have them, and
moreover did not offer to search for them. While this caused
David to question her honesty, David did not want to make an
issue of this as Davila was new on the job and he decided he
would give her the benefit of the doubt. Then David had the
problem, discussed above, with Davila not typing the dictation
he had given her which, after repeated requests that she do so,
finally had to be given to Konrad to complete on May 26. Fur-
ther, according to David, when told to do things, Davila seemed
to be passive or nonresponsive to his instructions. Finally,
David testified that on Saturday, May 27, he discovered various
documents on Davila’s desk regarding three CWA arbitration
matters, infra, including the one that CWA District 6 Vice-
President Milburn had confronted him about on May 26, that
provided clear evidence of Davila’s inattention to highly im-
portant matters. As a result of these various considerations,
David became convinced that Davila could not be trusted to
perform the scheduling of arbitrations, which was one of the
primary reasons he had hired her in the first place, or to per-
form other assigned work in a timely and accurate fashion.
Thus, David was faced with somewhat of a dilemma. He
understood that in terms of timing it would look “terrible” to
discharge Davila on the first business day after she and the
other employees had requested union recognition. On the other
hand, she simply could not be trusted to handle the very essen-
tial scheduling of arbitration matters, and Milburn, on behalf of
CWA District 6, his largest client, had insisted that there be no
more similar scheduling errors; further, Milburn would proba-
bly be monitoring the situation. David then decided that he
simply could not trust Davila to do the work, and made the
decision to discharge her.
David Van Os impressed me very favorably as a highly
credible witness. He was subjected to extensive cross-
examination regarding myriad and detailed matters; his re-
sponses and demeanor, in my opinion, underscored his credibil-
ity. He was responsive to the questions, his answers were direct
and nonevasive, and he consistently made sense. He had an
excellent recollection for detail and the ability to describe the
nuances of situations in a manner that, in my opinion, demon-
strated a conscious desire for accuracy. I credit his testimony.
Davila testified that during her preemployment interview,
David seemed very impressed with her resume, and in particu-
lar focused on her experience with arbitration matters. He
asked her questions about this, and she “told him the proce-
dures that Southwestern Bell had regarding the documents, the
hearings, setting of the hearings, dealing with the clients.”
David told her that he believed she understood the arbitration
process. He offered her the position.
Up to this point, the testimony of Davila and David is consis-
tent. However, Davila went on to testify that in fact after she
began working for the firm she received no specific instruction
from David about CWA arbitration matters, that there was no
training session with David during which he reviewed CWA
arbitration scheduling with her, and that although she already
knew that the scheduling of arbitrations, and particularly the
date-selection process, was an immediate priority, she learned
the CWA process by asking questions of Konrad or others.
Further, the only thing that David told her about the entire
process was “that he had arbitrations.” That was it; according
to Davila, David never even mentioned the importance of ex-
pediting the arbitration process. However, as noted below,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD826
during subsequent testimony, Davila acknowledged that in fact
David had emphasized such matters to her, infra.
It would have made no sense for David to give Davila the re-
sponsibility for this essential work without specifically instruct-
ing her how to do it. The fact that she had had such prior ex-
perience with a single entity, Southwestern Bell, does not make
her proficient with the more complicated system of coordinat-
ing the scheduling of CWA arbitrations between some 15 or 20
CWA union business agents and the Respondent, as legal rep-
resentative. Further, after Davila was discharged, the firm’s
arbitration matters were split between Konrad and Joel Cantu,
who was hired as David’s executive secretary. Regarding this,
Konrad testified that she and Cantu were give extensive train-
ing by David regarding the handling of arbitration matters: The
training session lasted about three hours, during which David,
according to Konrad, “went into extensive diagrams, and
showed us books, and showed us forms, and told us exactly
how the arbitration cases were to be handled”; David showed
them binders containing “addresses of the reps., different things
like that, documents that went to them and everything like
that.” It seems reasonable to conclude that David would not
simply have expected Davila to pick up on such important mat-
ters through a process of osmosis or trial and error.
As noted above, Davila did testify that she was very cogni-
zant of the importance of time constraints upon the arbitration
scheduling process. She testified that “calendar picks” were a
high priority that had to be taken care of immediately, and, in
addition, that David had told her that calendar picks had to be
sent out as soon as they were received. Clearly, she knew that
time was of the essence. Davila testified, however, that none of
the documents relating to the three CWA arbitration matters in
question were on her desk when she left work on that Friday
and that, in essence, David’s testimony regarding this matter
was a fabrication.
Davila’s testimony is inconsistent and implausible. On di-
rect examination, she testified that she did not know anything
whatsoever about the three arbitration matters, as all the mail,
including mail regarding calendar picks, is received by Rachel
and is given directly to David. Later, after David testified that
the calendar picks on two cases had come in by fax, not mail,
on Thursday, May 25, as evidenced by the dates appearing on
the faxes, Davila then testified that not only did she know abut
the faxes, but also that she did remind David on Friday morning
that it was important to return the faxes to Triple A that day,
and that David said he would give them to her later but did not
do so; therefore, she left work without faxing the documents to
Triple A. While at first testifying that she made no notes about
the faxes at the time they were received, she was then asked
why, if she had not yet been given the documents that were to
be faxed, she had prepared a fax cover sheet to Triple A, in her
handwriting, dated Friday, May 26, containing the case num-
bers of the two cases. She then testified when the faxes first
came in she noted the case numbers on a blank undated fax
cover sheet so that she could fax the documents to Triple A as
soon as David returned them to her, and she later completed the
cover sheet, with the date of May 26 and fax number of Triple
A,38 in anticipation of David returning the documents to her
sometime that day.
I find that David’s version of the matter is the more likely.
First, as noted, I have found David to be a highly credible wit-
ness. Secondly, Davila’s testimony was inconsistent. Thirdly,
it seems unlikely that, absent an established pattern to the con-
trary, a fax cover sheet would be completed prior to the time
the documents to be faxed were ready for faxing. I find that in
fact, as David testified, Davila should have sent the documents
to Triple A on Thursday, the day they were received, but did
not do so; and that she prepared the fax cover sheet to Triple A
after she had the documents on her desk, but simply neglected
to fax them by Friday evening. I further find that under the
circumstances, David had a legitimate right to be very con-
cerned about Davila’s continued employment, as this and the
other deficiencies exhibited by Davila directly impacted upon
the firm’s business relationship with all of its clients in general
and its largest client in particular. I find that Davila was dis-
charged for the reasons stated by David in the discharge letter.
I shall dismiss this allegation of the complaint.
11. Appointment of Mahoney as supervisory attorney; alleged
unlawful work requirements
On Tuesday morning, May 30, David assembled the three
full-time employees, Betters, Mejia and Konrad (Davila had
been discharged earlier that morning), and said that he was
turning the meeting over to Mahoney, their new supervisory
attorney.39 David then left. Betters testified that Mahoney
talked about his background, and said that the employees would
have to fill out employment applications and I-9 forms and that
clericals would have to take typing tests. He said the purpose
of this was to “re-evaluate our employment positions there.”40
He said that Davila had been let go. He then told Betters that
David wanted her to fly to Dallas to interview a witness on a
case, and that Betters should phone the witness and set up a
time for the interview. He also gave her a list of out of town
arbitration cases, and told her that she now had enough free
time on her hands to do this work.41 Betters explained that she
had an agreement with David that she would not need to travel
out of town while she was studying for the Texas bar exam, and
that she had to attend a bar review class most evenings; Betters

38 It should be noted, also, that the fax number she wrote out for Tri-
ple A was incorrect; in fact, it was Triple A’s phone number, not fax
number.
39 There is no complaint allegation that the appointment of Mahoney
as supervisory attorney is violative of the Act.
40 There is no evidence that employees were required to fill out new
employment applications or I-9 forms, or take typing tests, or that their
employment was re-evaluated; Konrad, who was then the only secre-
tary, testified that she was not asked to do so, and neither Betters nor
Mejia testified that they were asked to do so.
41 Record evidence indicates that Betters and Mejia had been consid-
ered by David to be supervisors of the clericals, and that they per-
formed certain administrative functions that were not income-
producing; it is reasonable to assume, as the Respondent suggests, that
Mahoney was probably indicating that since he was now supervising
attorney, and could handle administrative matters, the associates could
be relieved of such matters and could be more productive in terms of
handling larger caseloads.
DAVID VAN OS & ASSOCIATES, PC 827
did not state whether Mahoney replied to this remark.42 Ma-
honey, according to Betters, also told her that he wanted to
review her cases with her; apparently this did not present a
problem for Betters.
According to Mejia, David stated that Davila was no longer
employed as she had been terminated that morning, and that
Mahoney had been promoted to supervisory attorney and would
be David’s representative for union matters. Then David, stat-
ing Mahoney would take charge and conduct the rest of the
meeting, left the room. Mejia does not recall what Mahoney
said, as she was not listening because she was very upset about
Davila’s discharge. Later that day, she had several work-
related discussions with Mahoney. He told her that he wanted
to meet with her, and apparently with Betters, at 6 p.m. each
day to discuss the day’s events. Mejia said this would conflict
with her agreement with David to leave at 5:30 p.m. in order to
attend the bar review course. He said that she should take her
directions from him and not from David, but Mejia continued to
tell him that this created a conflict and that he should speak to
David about the matter. She doesn’t recall whether Mahoney
replied. Mejia simply disregarded his instructions and never
met with Mahoney at 6 p.m. According to Mejia, he yelled at
her the next day, Wednesday, May 31, for not meeting with
him, but she does not recall what he said. Further, although
Mahoney never retracted the 6 p.m. meeting requirement, Mejia
met with him earlier than that, and there is no showing of any
interference with her bar review schedule.
Neither Betters nor Mejia ever spoke to David about the 6
p.m. meeting requirement although they had an opportunity to
do so.
Mahoney started with the firm on May 18. He acted as su-
pervisory attorney for only about a month, and voluntarily left
the Respondent’s employ in about August. I credit David’s
testimony that upon introducing Mahoney as supervisor, he told
the employees that he was very glad they had chosen to organ-
ize and that he looked forward to the negotiation of their first
contract. I credit his further testimony that he did not authorize
or instruct Mahoney to impose any rules upon the employees
that would interfere with their ability to attend the bar review
course. The record is abundantly clear that David had always
been very supportive of Betters and Mejia in this regard, that he
had consistently attempted to balance their concerns about the
bar reviews course with his business concerns, and that their

42 I credit David and find that on March 20, Betters first day on the
job, David told her he would need her to handle some out of town arbi-
trations and gave her a list of them. Betters told him that she would be
willing to handle out of town cases until about June 20, because the bar
exam was on about July 20, and that after the bar exam she would
continue handling those matters. This was fine with David. Also,
according to David, Betters said that she could not afford to travel out
of town because she has a dog, and she would have to board the dog in
a kennel because she didn’t know any of her neighbors in the apartment
complex where she lived. David then offered her a $500 a month in-
crease in her salary, and asked her if this increase would satisfy her
concerns about her dog and the travel. Betters said yes. Betters simply
testified that at some point she did get an increase in salary, but denies
that there was any conversation about travel or her dog.
becoming licensed to practice law in Texas would be a signifi-
cant benefit to the Respondent for a variety of reasons.
Assuming arguendo that Betters and Mejia should be cred-
ited regarding their meeting or conversations with Mahoney, I
find that whatever new rules were announced by Mahoney
were not imposed as retaliation for their union activity, and that
the employees clearly understood this. The fact that they sim-
ply disregarded Mahoney’s instructions, and that Mejia advised
him to check with David about the matter, indicates that they
knew Mahoney was making rules that David would counter-
mand. As noted, David had always been very supportive of
their efforts to pass the Texas bar exam. And the fact that they
did not even mention this matter to David, although Mejia spent
the entire day with David during an arbitration proceeding on
June 1, during which the interaction between David and Mejia
was amicable and businesslike, indicates that they believed this
was not a matter of immediate concern; if it had been of con-
cern, there would have been no reason to fail to clarify the
situation with David. Further, I do not credit the testimony of
Betters and Mejia that the rules or requirements announced by
Mahoney contributed to their decision to quit, infra. I shall
dismiss these allegations of the complaint.
As noted above, Mahoney had given Betters an assignment
to fly to Dallas and interview a witness. Betters testified that
she asked Rachel to arrange her flight to Dallas, that Rachel
asked her for a credit card as Betters would be paying for her
travel up front and would apparently be reimbursed later, that
Betters said she didn’t have a credit card, and that Rachel re-
plied that she could not make the reservations without a credit
card from Betters.
Later that day Betters turned in her timesheets to David as
she had been instructed to do. According to Betters, she started
to leave the building and Rachel asked her how much longer it
would be going on that she would be leaving “early.” Betters
said that she would be leaving at that time until after the bar
exam. This exchange shows, I find, that Betters intended to
pay no attention to Mahoney’s request that the attorneys meet
at 6 p.m. to review the day’s work. Rachel, according to Bet-
ters, said she didn’t think they could “give her the days off for
the bar exam.” Betters testified that the trip to Dallas would not
have been a problem, and that she would have gone had it not
been for the fact that the Respondent had not purchased her
ticket up front.
When Mahoney came in to review her cases,43 Betters said
that they needed to talk about her trip to Dallas as Rachel had
said she would not make the reservations without a credit card
from Betters. Mahoney said he thought Betters’ request that
the Respondent make the reservations, rather than requiring
Betters to pay up front, was reasonable, and that he would talk
to Rachel. He never got back to Betters.
On Wednesday, May 31, Betters came in and noticed that
David’s office had been moved upstairs. Rachel, according to
Betters, asked her, “Why we did this to her, why did we union-
ize.” Betters said that they could talk about the matter after
they bargained a contract. Rachel, according to Betters, said

43 Obviously this occurred before she left work that day to attend the
bar review course.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD828
that David’s office was moved upstairs so that they could watch
what was going on up there. Betters just walked away.
12. Alleged constructive discharge of Betters
Betters testified that she phoned OPEIU Representative
Tonya Cummings and scheduled a luncheon meeting with her
that day, May 31.44 Betters testified that she, Mejia, Davila,
Perez, “probably” Kirby, and Sylvia Vagara, formerly a part-
time secretary, attended the meeting. Betters explained the
situation to Cummings, who said, according to Betters, that the
Union was not planning on doing anything for the employees.
Betters quit her employment that evening. According to
Betters, she had no intention of resigning until she learned that
the OPEIU was not interested in representing the employees;
the Union had been “her last hope.” She prepared a cordial
letter of resignation to David stating, “I have immensely en-
joyed working with you and your clients. Regretfully, I must
resign,” but offered no reason for resigning. She also states in
the letter: “There is one matter pending that you need to be
aware of. I was supposed to interview Mr. . . . in the . . . case
on Thursday. However, I received neither a plane ticket nor a
cash advance or credit card, so I so not know whether you have
put this matter on hold.” She left the letter on David’s chair in
his office at about 5:45 p.m. that evening. She did not tell Ma-
honey she was quitting. She only told her mother and Mejia;
when she told Mejia she also asked Mejia whether she, too,
wasn’t going to quit.45
When Betters was hurriedly leaving the building that eve-
ning, after placing her letter of resignation on David’s chair,
she happened to encounter Rachel. Rachel told her that she had
her ticket and travel itinerary for her Dallas trip the next morn-
ing, and attempted to give it to Betters. Betters lied and said
she would come back for it, “and then I ran out in the parking
lot, to my car, and ran home.” Betters testified that she was
fearful and didn’t care when David or the Respondent learned
that she was quitting; she just wanted to “get the hell out of
there.”
Betters was emphatic that despite all that had transpired she
did not intend to quit and would not have quit if the Union had
agreed to represent the employees. The Respondent had nothing
to do with the Union’s decision to decline to represent the em-
ployees. Moreover, it is clear that David had told Betters he
was happy with her work, that union matters would not inter-
fere with work matters, and that the employees need not fear
any retaliation for their union activity; and on May 30, the day
before, he also wrote her the folksy, positive email about being
pleased with her cooperation in turning in her billing sheets at
the end of the day. In addition, Betters, as union representative,

44 In fact, Cummings testified that Kirby, not betters, phoned her to
set up the appointment, that she had not previously spoken to Betters,
and that Kirby indeed was at the meeting. Cummings told the employ-
ees at the meeting, after learning about the situation, that she would
have to check with her International Union about representing them;
she did not categorically state that her local would not represent them. I
credit the testimony of Cummings.
45 However, she also called IBEW representative Michael Murphy
that afternoon and told him she was leaving and volunteered to con-
tinue doing some work on a particular case.
had already accomplished a great deal: Thus, David, in order to
resolve matters that he knew were troubling the employees, had
specifically advised them, in writing, that, “This is to formally
state that Rachel will no longer be involved in personnel or
work assignment matters . . . Tim Mahoney as Supervisory
Attorney will have the responsibility to resolve any issues that
may arise regarding the interface between Rachel and the bar-
gaining unit . . . in . . . non-personnel areas.” Clearly, the Re-
spondent was not attempting to cause Betters to quit. Finally,
as noted herein, I have discredited Betters regarding numerous
matters, and her testimony, I find, is simply unreliable; there-
fore it is difficult to give her assertions for quitting any validity
whatsoever. I find that Betters was not constructively dis-
charged. I shall dismiss this allegation of the complaint.
13. Alleged constructive discharge of Mejia
Mejia quit the following day, Thursday, June 1. Mejia
claims that she quit because on the preceding evening, May 31,
when David learned that Betters had quit, she heard him yelling
and screaming and repeating himself over and over, “that bitch.
She starts all this mess, and then she leaves.” He kept changing
the wording of what he was yelling, according to Mejia, but it
was the same message over and over. He said, “[T]he fucking
Union and then she leaves.” Mejia claims that she was terri-
fied. A short time later Mahoney came to her desk and yelled
at her. He said, “Do you know what happened . . . you’re not
going to do this to David. You’re not going to leave without
notice?” Mejia said no.
Although Mejia claims she had already decided to quit, she
spent the entire next day with David at a mediation matter,
from 8 a.m. to 5 p.m. Nothing was said about Betters or the
Union, and Mejia did not ask David about Mahoney’s 6 p.m.
meeting requirement. Then, that evening, Mejia phoned David
and told him that her father was sick and she needed to resign
and go back home. In fact this was a complete fabrication, but
she was afraid to tell him the truth as she feared a confrontation
and did want a good recommendation. David was very sympa-
thetic, and he commiserated with her about her father. She
went to the office the next morning and met with Mahoney to
go over some cases that she had pending.
Mejia, when asked again to list her reasons for quitting, testi-
fied that, “[t]he hugest thing in my mind at that time was pass-
ing the Bar exam. And this was going to be the third time I
take it. And I could not see working in that environment and
passing it. So that was the hugest thing on my mind.”
I credit David’s testimony and find that he did not yell the
things ascribed to him by Mejia.46 Even assuming arguendo,
however, that David did say these things, it appears that Mejia

46 I also credit David’s testimony that he was very upset about the
abrupt manner in which Betters quit: Betters had been assigned to in-
terview a client in Dallas the next business day and was given a ticket
that had been purchased for her, and that, under the circumstances, it
was “highly unethical” of her to leave a resignation letter not even
knowing if he would see it that night. Moreover, according to David,
Betters had “wiped out all of the client work product that was in the
saved Microsoft Word folders in her computer.” To this assertion,
Betters claims that she only deleted drafts of documents, and that the
hard copies of the documents were in the appropriate files.
DAVID VAN OS & ASSOCIATES, PC 829
could reasonably understand that he was upset with Betters
because she had quit without notice, and that Mejia had no
reason to fear a similar outburst from David unless she too quit
without notice. Further, Betters had been criticized in her ca-
pacity as union representative for asserting a strong position in
support of Davila; Mejia was simply a unit employee and had
received no similar criticism. In addition, it is significant that
Mejia did not assert, as a reason for quitting, the belief that she
would not be able to take the bar review course; this is because,
as I have found, she knew that David would give her permis-
sion to leave each day in time to attend the bar review course.
Mejia was not asked to explain what she meant by the state-
ment that she could no longer work in “that environment” and
pass the bar. As I have found, the Respondent had not commit-
ted any unfair labor practices, and the environment in which
Mejia would be working was not one designed by the Respon-
dent to make her job so intolerable that she would quit. The
opposite is true; clearly the Respondent did not want Mejia to
quit, and this is why Mahoney approached her to seek assur-
ance that she would not do so. Whatever Mejia’s subjective
thinking about her working environment, I find that she was not
constructively discharged. I shall dismiss this allegation of the
complaint.
14. Discharge of Konrad
Konrad was discharged on August 25. The record is replete
with documentary and testimonial evidence regarding Konrad’s
deficiencies as a secretary, over many months, from the associ-
ates as well as David; and, indeed, even Konrad testified that
she knew the associates were critical of her for not getting
things done. A lengthy email from David to Betters, dated May
21, states, inter alia:
I am concerned by what you have told me about Kandy’s fil-
ing. This reflects some dangerous lack of knowledge or ex-
perience on her part about management of legal files.
. . . .
Kandy shows a lot of loyalty and dedicated work ethic which
earns her some benefit of the doubt in response to her mis-
takes, so I want to work with her on the mistakes and counsel
her on the right way to do things and give her a chance. (If
she still can’t do it right after being told, then we will have to
consider other alternatives.)
I credit David’s testimony and find that Konrad was kept on,
despite her deficiencies, because he needed someone to do
secretarial work; that he advertised for someone to fill the posi-
tion of executive assistant; that he promoted Konrad to the
position because he had provisionally promised her the position
in the event a new applicant, Rhonda Compton, to whom he
had offered the position, would decline the offer, and, to his
dismay, this is what happened; and then he demoted Konrad
when shortly thereafter he found an acceptable applicant, Joel
Cantu. He counseled and spoke with Konrad thereafter about
her errors on many occasions; he extended her probationary
period because of her deficiencies; and finally, on August 25,
he discovered that Konrad had sent a very important letter,
dated August 16, to the regional director of Triple A, but had
misaddressed the envelope, sending it to the wrong city, and for
that reason the letter had never been received and was returned
to the office on August 25.47 This, according to David, caused
him to write the following letter to Konrad, dated August 25,
inter alia as follows:
I have thought and thought about how to handle this situation.
The reason it is such a struggle is that I genuinely like you and
do not wish to harm you. I do not want to leave you in an im-
possible lurch, but I still come to the irretrievable conclusion
that I cannot have you working here, because I have zero con-
fidence that you will be 100% accurate in the daily tasks that
require 100% accuracy. I just think that you do not have the
kind of experience needed to handle the necessary expecta-
tions of a position like the one you have attempted to occupy
in a fast-moving office like this one.
. . . .
As long as you are not seeking employment in a litigation
firm, feel free to use me as a reference, and I will easily and
happily be able to give truthful feedback that will help you
with a prospective employer. Your are a very nice person and
I wish you the best of luck . . . .
Konrad maintains that she did not misaddress the envelope;
rather, that someone else did this in an attempt to falsely con-
struct a reason to discharge her because of her union activity. I
do not credit Konrad. I shall dismiss this allegation of the
complaint.
15. Moving David’s office upstairs
The complaint alleges that David moved his office from
downstairs to upstairs in order to engage in surveillance of the
attorneys’ union activity. Abundant credible record evidence
shows that it had always been the intention to move David’s
office upstairs, as this would make it more convenient for him
to interact with the other attorneys. Further, it is clear that
David had consistently used the upstairs conference room as an
adjunct to his downstairs office; indeed, Konrad testified that
this occurred on a frequent basis, several times a week. In ad-
dition, since Supervisory Attorney Mahoney’s office was al-
ready upstairs, there would have been no reason for David to
move his office upstairs for surveillance purposes, as Ma-
honey’s presence would have been sufficient; and there was
simply no need for David or anyone else to engage in surveil-
lance, as the Respondent had readily recognized the Union and,
I have found, was anxious to bargain a contract. Finally, I
credit David and find that he moved his office upstairs for le-
gitimate business reasons. I shall dismiss this allegation of the
complaint.
16. The 8(a)(1) complaint allegations regarding
Rachel Van Os
There are various complaint allegations that Rachel made
various statements to the employees in violation of Section
8(a)(1) of the Act. Rachel, during the course of her testimony,
specifically denied making any such statements. I have previ-
ously discredited each of the employees who were discharged
or quit. I believe that portions of their testimony were either

47 The letter and returned envelope are exhibits in this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD830
intentionally false or slanted in such a way that would reflect
unfavorably up the Van Oses and would further their own indi-
vidual and collective interests not only for purposes of this
proceeding, but also because they feel they were treated un-
fairly, regardless of the merits of this instant controversy, and
simply want to even the score. Moreover, their testimony ex-
hibited such a profound, emotional disregard for Rachel, in
particular, that I am unable to discern what portions of their
testimony may be relied upon as an accurate attempt to convey
an honest, unbiased, recollection of statements they attributed
to Rachel, what parts are hyperbole, and what parts are simply
fabricated, imagined, or based upon hearsay. Since, for these
reasons, I am unable to credit their testimony over the denials
of Rachel, I shall dismiss each of these allegations of the com-
plaint.
17. Additional contentions of the parties
There are various additional issues that the parties have
raised. The Respondent, citing Kentucky River Community
Care, Inc., 538 U.S. 706 (2001), contends that Betters and
Mejia are supervisors within the meaning of the Act, as they are
professionals who responsibly direct the clericals under them.
While there is considerable record evidence regarding the at-
torney-clerical relationship, the parties were able to stipulate
this much: that the clericals or secretaries could have reasona-
bly expected that they were required to perform whatever work
was given to them by the attorneys in the office unless either of
the Van Oses told them that priority should be given to other
work, and, after the completion of such other assignments, the
clericals or secretaries could have reasonably understood that
they were to return to and complete the duties given them by
the attorneys.
The Respondent also contends that Ybarra and Perez are su-
pervisors within the meaning of the Act, and disputes the fact
that Rachel usurped their authority and therefore, as contended
by the General Counsel, was the de facto office manager.
In addition, the Respondent maintains that Kirby has orches-
trated this entire matter, first as employee, and then from the
sidelines, in an effort to disparage David and the law firm, both
publicly and privately, and take the Respondent’s business;
and, further, that the employees are accomplices or pawns in
Kirby’s efforts. And lastly, the Respondent maintains that,
assuming arguendo that any allegations regarding unlawful
discharges or constructive discharges are found to be meritori-
ous, such individuals have nevertheless forfeited reinstatement
and backpay because of their unprofessional and unethical be-
havior, including the disclosure of confidential matters to cli-
ents and outside sources, leaving client matters in disarray upon
quitting, deleting files from the computer, and other similar
misconduct.
The General Counsel maintains that at no time during their
employment were Betters and Mejia supervisors, and that
Ybarra and Perez, despite their titles and job descriptions, were
not supervisors because of the interference of Rachel who did
not permit them to perform the functions they needed to per-
form in order to fulfill their nominal supervisory responsibili-
ties. In this regard, the General Counsel maintains that Rachel,
at all times herein, was the de facto supervisor/office manager,
despite the fact that she did not receive a paycheck and was not
an employee.
The aforementioned supervisory issues and Rachel’s status
were litigated extensively. In fact, a significant percentage of
the transcript and exhibits in this proceeding are pertinent to
these issues. Also, Kirby’s involvement was explored by the
Respondent. Since I have determined that the alleged discrimi-
natees, assuming arguendo their employee status, were not
discriminated against in any fashion, it seems unnecessary to
resolve such issues.
On the basis of the foregoing, I shall dismiss the complaint
in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the
complaint.
On these findings of fact and conclusions of law, I issue the
following recommended48
ORDER
The complaint is dismissed in its entirety.

48 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.