Grand Canyon Education, Inc. d/b/a Grand Canyon University

National Labor Relations Board - Administrative Judge Opinions

Oct 21, 2011

28-CA-022938 (N.L.R.B. Oct. 21, 2011)

JD(SF)-42-11
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
GRAND CANYON EDUCATION, INC.
d/b/a GRAND CANYON UNIVERSITY
and Cases 28-CA-22938
28-CA-23239
EDMOND BARDWELL, an Individual
and Case 28-CA-23035
JOHN YOUNG, III, an Individual
and Case 28-CA23038
SHELLY CAMPBELL, an Individual
and Case 28-CA -23336
GLORIA JOHNSON, an Individual
TABLE OF CONTENTS
Page
DECISION……………………………………………………………………… 1
Statement of the Case………………………………………………………... 1
Findings of Fact……………………………………………………………….. 2
I. Jurisdiction…………………………………………………………………. 2
II. Alleged Unfair Labor Practices…………………………………………... 2
A. The Dispute………………………………………………………………... 2
B. Background Facts………………………………………………………… 3
1. Shelly Campbell…………………………………………………………… 8
2. Edmond Bardwell…………………………………………………………. 14
3. Gloria Johnson…………………………………………………………….. 23
4. John Young………………………………………………………………… 26
III. Legal Analysis and Conclusions…………………………………………. 27
A. Written Rules………………………………………………………………. 27
B. Oral Promulgation of Rules, Threats, and Interrogation……………… 30
C. Protected Concerted Activity……………………………………………. 38
D. The Termination of Shelly Campbell……………………………………. 39
E. The Termination of Edmond Bardwell………………………………….. 43
F. The Termination of Gloria Johnson……………………………………... 51
Conclusions of Law…………………………………………………………… 55
Remedy………………………………………………………………………… 55
Order……………………………………………………………………………. 56
Appendix
JD(SF)-42-11
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
GRAND CANYON EDUCATION, INC.
d/b/a GRAND CANYON UNIVERSITY
and Cases 28-CA-22938
28-CA-23239
EDMOND BARDWELL, an Individual
and Case 28-CA-23035
JOHN YOUNG, III, an Individual
and Case 28-CA23038
SHELLY CAMPBELL, an Individual
and Case 28-CA -23336
GLORIA JOHNSON, an Individual
Chris J. Doyle, Esq., Phoenix, AZ, for
the General Counsel.
Richard S. Cohen, Esq., and Jeffrey W.
Toppel, Esq., Phoenix, AZ, for the
Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Phoenix, Arizona, on eight dates between March 29, and June 2, 2011. This case was
tried following the issuance of an Order Further Consolidating Cases, Second Amended
Consolidated Complaint and Notice of Hearing (the complaint) by the Regional Director for
Region 28 of the National Labor Relations Board (the Board) on March 11, 2011. The complaint
was based on a number of original and amended unfair labor practice charges, as captioned
above, filed, respectively, by Edmond Bardwell (Bardwell), an individual, by John Young
(Young), an individual, by Shelly Campbell (Campbell), an individual, and by Gloria Johnson
(Johnson), an individual. The complaint alleges that Grand Canyon Education, Inc. d/b/a Grand
Canyon University (the Respondent, the Employer, the University, or Grand Canyon University)
violated Section 8(a)(1) and (4) of the National Labor Relations Act (the Act). As the complaint
alleges, among other things, that Bardwell, Campbell, and Johnson were all discharged by the
Respondent unlawfully, those three individuals will be referred to collectively as the Charging
JD(SF)-42-11
2
Parties. The Respondent filed a timely answer to the complaint denying the commission of the
alleged unfair labor practices.1
Counsel for the General Counsel and counsel for the Respondent appeared at the 5
hearing and I provided them with the full opportunity to participate, to introduce relevant
evidence, to examine and cross-examine witnesses, and to argue orally and file briefs. Based
on the record, my consideration of the briefs filed by counsel for the General Counsel and
counsel for the Respondent, and my observations of the demeanor of the witnesses, I now
make the following findings of fact and conclusions of law.2 10
Findings of Fact
I. Jurisdiction
15
The complaint alleges, the answer admits, and I find that the Respondent, a Delaware
corporation, with an office and place of business in Phoenix, Arizona, herein called the
Respondent’s campus, has been engaged in the business of operating a private online and
campus-based university. Further, I find that during the 12-month period ending March 8, 2010,
the Respondent in conducting its operations just described, derived gross revenues, excluding 20
contributions which, because of limitations by the grantor, are not available for operating
expenses, in excess of $1,000,000; and during the same period of time, also purchased and
received at the Respondent’s campus goods valued in excess of $50,000 directly from points
outside the State of Arizona.
25
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, and employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. Alleged Unfair Labor Practices30
A. The Dispute
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by
discharging its enrollment counselors Bardwell, Campbell, and Johnson (the Charging Parties) 35
because they engaged in protected concerted activities, and also discharged Bardwell in
violation of Section 8(a)(4) of the Act because he had previously filed an unfair labor practice
charge and gave testimony to the Board. The protected concerted activity allegedly engaged in
by the Charging Parties consisted primarily of complaining among themselves, to other
enrollment counselors, and to various managers and supervisors about the poor quality of the 40
potential student enrollment leads that they received, the number of telephone calls to leads that
they were required to make, the amount of telephone time they were required to spend with

1 In its answer to the complaint, the Respondent admitted the various dates on which the
enumerated charges were filed, and also admitted that said charges were served on the
Respondent in a timely manner.
2 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
JD(SF)-42-11
3
these leads, and the number of leads they were required to enroll as students. Additionally, the
General Counsel alleges that the Respondent violation Section 8(a)(1) of the Act by
promulgating, maintaining and/or enforcing overly broad and discriminatory rules of conduct
concerning protected activity, including the sharing of information regarding wages, hours, and 5
working conditions, and by interrogating and threatening employees regarding their protected
concerted activity.
The Respondent denies that it discharged Bardwell, Campbell, or Johnson because they
engaged in protected concerted activity or, in the case of Bardwell, because he previously filed 10
charges with the Board. It is the Respondent’s position that it fired Bardwell, Campbell, and
Johnson, respectively, for separate and distinct reasons, all of which constituted good cause for
termination. The Respondent contends that it does not restrict, limit, or prohibit its employees
from engaging in legitimate protected concerted activity. Further, the Respondent denies that
its policies and work rules as written or applied constituted a violation of the Act. 15
B. Background Facts
The Respondent is a for-profit, private, accredited, Christian university located in
Phoenix, Arizona. The University offers online and campus-based Bachelor’s and Master’s 20
degree programs through its College of Business, College of Liberal Arts, College of Education,
and College of Nursing and Health Sciences. Students obtain their degrees either through
online education or by attending classes at the Respondent’s main campus located in Phoenix.
Additionally, the Respondent has satellite or “cohort” campuses in Arizona, and one out of state
satellite campus located in Albuquerque, New Mexico, where students attend classes in order to 25
obtain their degrees. The University enrolls significantly more students through its online
degree program, estimated at 40,000 students, than it does with its traditional ground campus
degree program, estimated at around 10,000 students. For the most part, the Respondent’s
satellite campuses are located at hospitals or health care facilities where students enrolled in
the College of Nursing and Health Sciences can receive hands-on practical medical experience.30
In order to maintain desirable enrollment numbers for their online degree programs, the
University has developed a highly structured system of gathering and distributing “leads” to
enrollment counselors, who would then attempt to contact and enroll the leads in one of the
University’s degree programs. Leads are simply the names and contact information of those 35
individuals who have expressed interest in becoming one of Grand Canyon University’s
students. The University obtains these leads from a number of sources including from paid,
third party vendors, and also through its own employees, known as outside sales
representatives.
40
The Respondent employs approximately 700 enrollment counselors whose main
function is to contact and process these potential students with the intent of enrolling them into
one of Grand Canyon University’s degree programs. The University categorizes these
employees as either “internet enrollment counselors,” or “inside enrollment counselors” based
on the type of leads that they are given to process.3 The Assistant Vice President of the 45
College of Business and Liberal Arts, Chanelle Ison, testified that one of the distinct differences
between the internet and inside enrollment counselors was that while both categories of

3 There is some confusion in the record regarding the terms “online enrollment counselor”
and “internet enrollment counselor.” Although counsel for the General Counsel appeared to use
these terms interchangeably, there was some indication in the record that during some period of
time, these were two distinct job classifications.
JD(SF)-42-11
4
employees could enroll students in online degree programs, internet enrollment counselors
were precluded from enrolling students interested in attending traditional live classes. While this
distinction no longer exists, it is unclear to the undersigned precisely when this policy changed.
5
Grand Canyon University has a strict lead delegation procedure that first involves
categorizing the lead and then distributing that lead to the appropriate “team” of enrollment
counselors. With respect to the internet-generated leads (which would be handled by internet
enrollment counselors), the process begins when a potential student’s information is sent from
the vendor to the University’s database. From there the lead is automatically routed, with the 10
expressed degree program tagged, to an enrollment counselor that is on a team that
corresponds with the degree program of interest. Apparently such routed, categorized leads are
automatically distributed according to a set rotation that includes all of the enrollment counselors
on a specific team.
15
Ison testified that enrollment counselor teams include between 10 and 15 counselors,
who are supervised by an enrollment counselor manager. While Ison’s testimony regarding this
matter is somewhat confusing, it appears that during the period under consideration, enrollment
counselor teams in the Colleges of Business and Liberal Arts were limited to enrolling students
in either graduate or undergraduate programs, but not both. In any event, at the time of their 20
respective terminations, the three Charging Parties were all employed as internet enrollment
counselors for the graduate degree programs in the College of Liberal Arts.
All enrollment counselors employed by the University are subject to certain quota
requirements with respect to their job duties. Although not entirely clear, it appears from Ison’s 25
testimony that during the period in question, all enrollment counselors were subject to the very
same quota requirements, regardless of the number of degree programs they were assigned.
For the three Charging Parties who were assigned to the graduate degree programs team in the
College of Liberal Arts, that meant that they were limited to enrolling internet students who were
seeking graduate degrees in either criminal justice or Christian studies. Having only two degree 30
programs in which to enroll students placed this graduate degree program team at something of
a disadvantage when compared to other teams where enrollment counselors had more degree
programs available in which to enroll students.4
The quota requirements that the enrollment counselors worked under changed 35
frequently. However, Ison testified that under the University’s “Enrollment Counselor
Compensation Plan,” which became effective on May 1, 2010, all enrollment counselors were
expected to log a three-month average of 80-89 dials (calls) per day, and to average between
three and four and a half hours of student talk time per day. (G.C. Ex. 4, p. 4.)
40
The three Charging Parties adamantly and repeatedly testified that the University’s
quotas were the main source of frustration for all the enrollment counselors on the graduate
degree team. These team members were all expected to meet the same quotas as those on
the other teams. It appears from the testimony of employee witnesses that the University was
continually increasing the quotas. Shelly Campbell testified that the quota of 80 dials per day, in 45
effect when she was hired, increased incrementally to 120, then 160, and ultimately 180 dials
per day. However, I have some doubt as to the accuracy of Campbell’s figures, since Gloria
Johnson placed the quota of dials as between 80 and 120 per day. Additionally, witnesses
testified that the total “talk time” with perspective students also was increased over time.
50

4 Within each degree program, there were a number of individual degrees available.
JD(SF)-42-11
5
Both Campbell and Johnson testified that there could be adverse consequences for an
enrollment counselor who failed to meet his or her quota. According to Campbell, a counselor
failing to meet quota could “lose salary [at] review time,” and “could be terminated,” and that the
counselors “were constantly in fear of [losing] our jobs.” Similarly, Johnson testified that failing 5
to meet quotas “would affect our merit review with a combination of other things,” that a
counselor “could actually get a write-up,” and potentially be terminated. The record contains a
copy of an email from enrollment counselor manager Ellen Rosa to several team members,
including Charging Party Edmond Bardwell, dated February 19, 2010, in which she states, “You
need to get your dials up [,] even if the talk time is good remember that GCU policy is 4 hours 10
and 120 and we are expected to be held accountable to that.” (G.C. Ex. 51.) The 4 hours is an
apparent reference to the amount of time per day that counselors are expected to spend talking
with prospective students, while the reference to 120 is apparently the number of calls per day
that a counselor is expected to make.5
15
In addition to the quotas regarding minimum numbers of calls made and total “talk time,”
the University also required that enrollment counselors enroll a minimum number of students.
Chanelle Ison testified regarding Grand Canyon University’s “Minimum Enrollment
Expectations” policy as found in the Compensation Plan. (G.C. Ex. 4, p. 4.) Her testimony was
somewhat confusing, but the written expectation policy seems clear. New enrollment 20
counselors are expected to have ensured that at least three students have completed their first
online course by the end of the counselor’s fifth month of employment, and are expected to
have ensured that at least two students have completed their second online course by the end
of the counselor’s sixth month of employment. The number of expected course completions
rises once an enrollment counselor has become “tenured” or has worked more than six months. 25
As is obvious from the above, enrollment counselors were expected to maintain contact
with the students that they enrolled in the University, at least through the period that the student
was matriculating through the first several courses in which he or she was enrolled. This was to
ensure that difficulties, which the new student might be having in registration, course selection, 30
or with online access to the course materials, could be remedied. Thus, both the University and
the enrollment counselor had a vested interest in making sure that the enrolled student was
successfully managing the course enrollment process. The Charging Party witnesses
confirmed this requirement. However, they contend that the enrollment expectations quota
continued to increase during the term of their employment. Campbell testified that by the time 35
that she was terminated on February 23, 2010, her enrollment quota had increased from 12
students every two months to 12 enrollments every month. Johnson’s memory of enrollment
quotas was slightly different, as she recalled the requirement being 8 to10 students every “start
period,” which was approximately every 4 to 6 weeks.
40
In any event, all three Charging Parties testified that they vigorously and clearly
expressed their frustration with the quality of the leads that they were receiving and the
fluctuating and difficult to meet quotas. They claim that these frustrations were repeatedly
discussing among the members of the graduate team and directly with the Employer’s various
supervisors and managers. While the various witnesses for the Respondent and the General 45
Counsel each seems to recall dates and events somewhat differently, there is general
agreement that starting sometime in the latter part of 2009 or early 2010, the “grad team” was
created for the College of Liberal Arts (COLA) by merging the criminal justice and Christian
50

5 This reference to 120 calls per day seems to support Johnson’s testimony.
JD(SF)-42-11
6
studies teams, and by limiting the enrollment counselors in that team to enrolling only graduate
students.
Two additional sources of irritation to the members of the grad team were the 5
Employer’s decisions during this same approximate time period to preclude the members of the
grad team from enrolling prospective students that had attended school outside the United
States, the so called international students, and also to preclude the enrollment of students who
lived in the State of Arizona, where all three Charging Parties lived. The grad team members
were not permitted to enroll these international student’s or Arizona residents, despite the fact 10
that they were interested in a graduate degree program in Christian studies or criminal justice.
As far as the Charging Parties were concerned, this exclusion simply made the pool of
prospective students they could enroll even smaller, making it progressively more difficult to
meet the University’s quotas.
15
The grad team was supervised by a series of enrollment counselor managers, namely
Helen Schnell, Ellen Rosa, and Ray Akers, each of whom was an admitted statutory supervisor
during certain of the period of time in question. Schnell and her successors would typically hold
mandatory weekly team meetings, and frequently also hold “daily huddles,” around the
supervisor’s desk. It was during these meetings that the Charging Parties and other members 20
of the team would express their displeasure and frustration with the poor quality of the leads the
team received and with the Respondent’s quotas, which were increasingly difficult for the team
members to meet.
There really is no dispute that these subjects were repeatedly discussed among the 25
team members themselves and with the various supervisors who successively managed the
team. While the Respondent does not deny that such complaints were raised by the three
Charging Parties, counsel for the Respondent in his post-hearing brief takes the position that
the ultimate decision maker regarding the terminations of Campbell, Johnson, and Bardwell,
namely Sarah Broeder, senior vice president of operations, was personally unaware of their 30
protected concerted activities. Further, it is the Respondent’s position that while the Charging
Parties made complaints about leads and quotas, that everybody on the team made such
complaints, as acknowledged by the Charging Parties, and that there is no evidence that
Campbell, Johnson, and Bardwell were any more aggressive in presenting these complaints
than the other members of the grad team. Finally, it is the Respondent’s position that it actively 35
encouraged its enrollment counselors to raise workplace concerns, over which it would certainly
not seek to terminate them for doing so. Rhonda Pigati, a human resources manager and
admitted supervisor, testified that Rebecca Garrett, Brad Bender and Minal Padagaonkar, grad
team enrollment counselors, were all vocal in expressing concerns about leads and other
issues, and that all were still employed by the University.40
In setting forth the work related complaints that the Charging Parties and other team
members made to their supervisors, Campbell testified very specifically regarding “the fact that
the workload had basically tripled from initially when we first started,” and that “the leads that we
were getting for prospective students were terrible.” She also stated that, “the quotas that we 45
were held to were unattainable, even if you were a top performer as I was.” The entire grad
team, according to Campbell, was “always voicing that to management because we were only
able to enroll in select programs.”
Johnson and Bardwell shared the same sentiments as Campbell, and testified that they 50
and other employees on the grad team were constantly vocal amongst themselves and to their
supervisors during weekly meetings and daily huddles about work-related issues, including the
poor quality and lack of leads and the changing and difficult to meet quotas. However, Johnson
JD(SF)-42-11
7
did note that not everyone on the team would speak up about their work related frustrations.
She said that “some were afraid to speak up. But they would come to us [Johnson, Campbell,
and Bardwell] and talk to us. You only had a few that would actually speak up in the meetings,
or you may have some that said, yeah, I agree, but not really voice their opinions.” The clear 5
implication being that the Charging Parties were the most vocal employees on the team.
Besides complaints regarding the quality of the leads and the difficult quotas they had to
meet, members of the grad team also complained about the limited number of graduate degrees
offered at the College of Liberal Arts under the Christian Studies and criminal justice programs 10
(a total of seven) in which they could enroll students, and also complained about having to “give
away” prospective student referrals for international students and those students that lived in
Arizona. Other teams of online enrollment counselors had many more degrees to offer potential
students, and other teams had been established specifically to enroll international students and
Arizona residents. 15
It is undisputed that not only were the grad team supervisors very aware of the various
complaints made by team members, but that they responded to those complaints. Campbell
and Johnson both testified that grad team supervisor Helen Schnell was sympathetic to the
employees’ frustration and that she stated she would try and do what she could to get the team 20
better leads. Jonson testified that even after Campbell was terminated the team members
continued to raise the work-conditions issues with supervisor Ellen Rosa during the weekly
meetings and daily huddles. Rosa told the team that “she understood what we were talking
about, that we were the specialty team, which was the master’s in criminal justice and Christian
studies, and that those were the only programs that [we] had,” and that “she couldn’t get any 25
more programs but she would work on getting us some better leads from management.”
Bardwell testified that supervisor Akers, in response to the work-related issues that were raised
at various meetings, stated the grad team “had to work through them” and that “it probably
wouldn’t get any better.”
30
In addition to complaining to their immediate supervisors, members of the grad team,
including Johnson and Bardwell, also met twice with assistant vice-president Chanelle Ison.
These meetings were held in late April 2010 and again in July 2010. According to Johnson, the
grad team members expressed their concerns regarding poor quality leads, and the lack of
degree programs available in which to enroll students, making it difficult to meet quotas as 35
compared to other teams that had more degrees available for prospective students. Ison asked
the counselors to make and provide to management a list of poor quality leads and promised to
work on getting them better leads, but she was adamant that there would be no added degree
programs in which the grad team could enroll students, and that there would be no adjustment
in the team’s quotas.40
As the Respondent takes the position that the three Charging Parties were terminated in
part because of their inappropriate statements made to students or prospective students during
recorded telephone conversations, it is important to discuss the University’s quality assurance
program, which involves the recording and monitoring of such calls. In late 2009, Grand 45
Canyon University created a quality assurance department for the purpose of monitoring
interactions between students or prospective students and staff members. Sarah Boeder
testified that the telephone recording system, also known as “NICE,”6 records and categorizes
telephone calls made or received by the enrollment counselors on the University’s equipment
for the purpose of monitoring the content of those calls. Chanelle Ison testified that the 50

6 It is unclear what the acronym stands for.
JD(SF)-42-11
8
enrollment counselors, whose main job duties made them constantly subject to quality
assurance monitoring, were given “various ongoing trainings” on how to conduct themselves
during a telephone interaction with a student.
5
Apparently, many, but not every call is recorded. It is unclear from the record whether
the calls are recorded at random, or if they are selected for recording. It is also unclear how
quality assurance selects which recorded calls will be monitored. Ison explained that even
though quality assurance’s day to day monitoring involved screening calls based on a specific
category of call, the department also had the ability to specifically select individual calls based 10
on the date or the name of the student or enrollment counselor involved. Boeder testified that
NICE allows an interested party to query an individual counselor by name and select from a list
of all the calls they have made, inbound and outbound, that had been recorded during a specific
period. Recorded conversations are kept up to six months before they are destroyed.
15
Grand Canyon University maintains an Electronic Communications Policy, which
regulates employee usage of the Employer’s email system, among other things. This policy is
outlined in the Human Resources Policies and Procedures manual under the subsection for
compliance, which has been in effect since November 1, 2008. (G.C. Ex. 5.) The policy states
in relevant part that: “Email should be used for the purpose of University business. 20
Inappropriate use includes….Emails considered discriminatory or harassing in nature; Sending
chain letters or participating in any way in the creation or transmission of commercial email
(spam) that is unrelated to legitimate University purposes; Engaging in private or personal
business activities; and/or sending, receiving, or accessing pornographic materials.” Further,
the policy prohibits use of the University’s email system for a number of uses, including: “ 25
Employees may not use an electronic communication system for a purpose found to constitute,
in the University’s sole and absolute discretion, a commercial use not for the direct and
immediate benefit of the University and/or if the use is competitive to the interests of the
University….Employees may not send unsolicited email messages to anyone, but especially
containing statements or subject lines that are misleading or represent the University. (CAN-30
SPAM Act of 2003)….”7
However, despite its written email policy, the testimony of various witnesses established
that the Respondent freely permits its employees to send and receive emails that are non-
business related, as well as business related. This includes the sending and receiving of 35
humorous emails and those of a personal nature. Further, while the policy specifically prohibits
what is referred to as “inappropriate use” of the email system and emails considered
“discriminatory or harassing in nature,” nowhere in the policy is there any attempt to define or
explain what the Employer means by those terms.
40
1. Shelly Campbell
Shelly Campbell began her employment at Grand Canyon University on April 7, 2008,
and she remained employed there until her termination on February 23, 2010. When she

7 It is assumed by the undersigned that even though this policy has been in effect since
November 1, 2008, the complaint only alleges its existence since September 8, 2009, as this
date is less than six months prior to the filing of the first unfair labor practice charge, which
allegations are raised in the complaint before me, and might otherwise run afoul of Section
10(b) of the Act. As will be discussed further below, the General Counsel alleges in paragraphs
4(b) and 5 of the complaint that this language constitutes a violation of Section 8(a)(1) of the
Act.
JD(SF)-42-11
9
initially began work in early 2008, Campbell’s’ immediate supervisor was Josh Ellis, who was
succeeded as enrollment counselor manager by Helen Schnell at some point in January of
2009. Schnell was replaced by Ellen Rosa at or around the end of January 2010, and was
Campbell’s immediate supervisor at the time of her termination.5
When the Respondent hired Campbell in April 2008, the Respondent had not yet issued
its Electronic Communications Policy, and according to Campbell she was never provided with a
copy. From at least July 1, 2009, through the end of her employment, Campbell sent work and
non-work related emails to her co-workers on the University’s email system. (G.C. Ex. 11-12.) 10
Campbell testified that none of her co-workers ever informed her they found her emails
offensive or inappropriate. However, management apparently did not view her emails the same
way, as she was “talked to” by management in response to an email that she forwarded to
fellow employees on September 11, 2008, regarding the 9/11 attacks.
15
Campbell’s use of the University’s email system continued to get her into trouble. She
testified that on July 1, 2009, she forwarded an email to co-workers that included a joke
referencing a jellyfish sting injury to a diver’s buttocks. (G.C. Ex. 11.) The following day she
emailed another “joke” regarding racial issues to fellow employees using the University’s
system. That same day, Linda Lair, a human resources manager and admitted supervisor, sent 20
Campbell an “email warning,” which advised her that Lair had received a complaint regarding
certain “personal jokes and other commentary [sent] to employees via work email.” Lair further
indicated that Campbell had previously been warned by management that she was “not to use
company email for these types of communications.” The current warning cautioned that: “While
occasional personal use of the University’s email system is understandable, forwarding jokes, 25
personal commentary and potential offensive information is not. Since you have been
instructed on previous occasions regarding the risks of using the University’s email system
inappropriately, going forward, you are required to cease ALL personal use of the University’s
email system. If you continue to disregard these instructions which you’ve been given on
numerous occasions, then disciplinary action will be forthcoming.” (Res. Ex. 1, Bates stamp 30
0491, first page of Campbell’s Termination Request.)
Despite the warning that she received from Lair, Campbell’s email problems continued.
On the morning of August 3, 2009, Campbell sent out a chain email to her team members and
some of her supervisors with a recently enrolled student’s name and an attached picture of a 35
sunbathing woman. According to Campbell, management encouraged their enrollment
counselors, as a motivational tool, to send out “daily countdown” emails to team members which
contained names of recently enrolled students with an attached picture of the counselor’s
choice. This was allegedly what precipitated Campbell’s email with the name of a recently
enrolled student, accompanied by the picture of a sunbathing woman. 40
However, apparently this type of picture was not what management had in mind, as,
almost immediately, Jacob Mayhew, the director of enrollment, replied back to the entire team
instructing them that “pictures need to be appropriate.” (G.C. Ex. 12.) Mayhew also emailed
Campbell individually informing her that the picture was not appropriate and that she should 45
“change [the] picture,” which she then did. (G.C. Ex. 13.)
On August 10, 2009, Campbell was issued an “Employee Counseling Statement,” which
was signed by Linda Lair and advised Campbell that the sunbathing photo was “an
inappropriate use of the University’s email system,” and offended some of her teammates. It 50
further referenced a July 7, 2009, warning that she had previously received from Human
JD(SF)-42-11
10
Resources regarding inappropriate use of the University’s email system.8 The statement further
indicated that: “You are expected to conduct yourself in a professional manner at all times,
which includes following the University’s policies regarding appropriate communications and
computer usage. As a consequence for repeated disregard for the University’s policy in this 5
regard, you are prohibited from any future personal use of the University’s email system. Any
further incident where you fail to adhere to the University’s policies in this regard or any other
will be reviewed by management on a case-by-case basis and a determination made regarding
the continuation of your employment.” (G.C. Ex. 14.)
10
It is important to note that the employee counseling statement that Campbell received on
August 10, 2009, required her signature, and that just above the signature line appears the
following language: “Although I understand that I may discuss this plan with my management
team, I agree that this coaching & counseling statement is considered extremely confidential
and may not be discussed with any other current or former employee of Grand Canyon 15
University, its constituents, venders, or contractors, without prior written notice to and approval
from Human Resources.” (G.C. Ex. 14.) It appears from the Employee Counseling Statement
that this is “boilerplate” language, which language the University utilizes whenever the form is
used to discipline an employee.9
20
As part of its Quality Assurance Program, Todd Christianson, a member of that team,
listened to a recorded telephone call between Campbell and a prospective student made on
December 2, 2009. He testified that he specifically remembers the call because of “the
egregious things that actually took place during this call.” Christianson explained that this call
received a total score of 3 out of 100 based on a scoring matrix that included various categories 25
such as “information accuracy” and “clear communication.” This scoring matrix is documented
on a “Quality Assurance Summary” that includes the rating for each performance category and
a comments section that includes direct quotes from the call. Christianson also explained that
when he gets a “failed call” that includes compliance issues, he will notify his manager who
would then notify the enrollment counselor’s manager.30
Sometime in early December of 2009, there was a management meeting attended by
Grand Canyon University’s CEO, Brian Mueller, Sarah Boeder, senior vice-president of
operations, and various other managers. As the Quality Assurance Department had been
established and operating for approximately a month, management decided to listen to a 35
selection of calls during the meeting to, as testified by Boeder, “hear what’s going on…to hear
what our students are saying…[and] to hear what our---how our employees are talking to
students, et cetera.” According to Boeder, she did not instruct Quality Assurance to select the
calls of any specific employees but only to compile a sample of “good and bad calls.”
40
Campbell’s December 2, 2009 call was part of the sample that management listened to
during the meeting. According to Boeder, after listening to portions of the call, Mueller asked
that it be turned off and stated that: “This is exactly what we don’t want happening. This is a

8 I assume that the date was simply a typographical error and that rather than July 7, 2009,
the reference was really to the warning Campbell had received on July 2, 2009.
9 As will be discussed in detail later in this decision, the General Counsel has alleged in
paragraphs 4(c) and 5 of the complaint that this language is in violation of Section 8(a)(1) of the
Act. It is assumed by the undersigned that the complaint only alleges the existence of this
language in the Employee Counseling Statement since September 8, 2009, as this date is less
than six months prior to the filing of the first unfair labor practice charge, which allegations are
raised in the complaint before me, and might otherwise run afoul of Section 10(b) of the Act.
JD(SF)-42-11
11
perfect, perfect example of one of those things that, if a regulatory agency heard this, this would
jeopardize the university. It puts us at huge risk.” Mueller then instructed Boeder to meet with
the employee and the employee’s manager regarding this call.
5
On December 16, 2009, Boeder and enrollment manager Schnell met with Campbell to
discuss the various alleged infractions that had occurred during the December 2 call. Initially,
the supervisors played the call for Campbell and then Schnell proceeded to ask her what she
thought she did right during the call and what she may have done wrong. According to Boeder, 10
Campbell responded by stating that the tone of the call could have been better, but did not
mention anything about potential compliance violations that occurred. Boeder said that they
were more concerned about the content of the call, and she then discussed the mistakes that
Campbell that allegedly made. These mistakes were ultimately listed as bullet points in a
December 30, 2009 Employee Counseling Statement that Campbell received. They included: 15
“Misrepresentation of the University’s Academic Scholarship; Speaking to the student about Pell
[Grants] and eligible amount; Indicating that the student would incur no out-of-pocket costs;
Leading the student to believe that the program would take only 2 years to complete without
reviewing transcripts; Communicating to the student that the program is accelerated; Misquoting
the cost per credit hour; Citing the University had ‘beat Harvard and Yale’ to be recognized for 20
online excellence; Communicating to the student that there are no tests in the online programs;
Guaranteeing employment; [and] Indicating salary amount that could be expected upon
completion of the program.” (G.C. Ex. 6.)
Boeder testified that during the meeting Campbell became very defensive and 25
mentioned that she felt as if she was getting singled out for saying things on the phone call that
everyone was saying. Moreover, Campbell stated that certain infractions listed in the call were
things that she had overheard other enrollment counselors say and chose to use them in her
own calls. When cross-examined by counsel for the Respondent about the alleged infractions
in the December 2 call, Campbell claimed that some of the information that she had given the 30
student was actually correct, and that other statements that she had made were the same type
of statements other enrollment counselors made to perspective students. She insisted that she
had heard them make such statements from their work stations, even though she had
previously testified that she wore a headset while on the phone with students.
35
Campbell’s assertion that other enrollment counselors were engaging in the same
questionable practices concerned Boeder because the Quality Assurance Department had just
recently been established and management was not sure as to the extent of any potentially
serious systemic compliance violations their enrollment counselors were engaging in over the
phone. In any event, Campbell did not offer the names of any other enrollment counselors who 40
she had overheard talking with potential students. Campbell claims that at the end of the
meeting both Boeder and Schnell cautioned her not to discuss with anyone the alleged
infractions that the managers had raised with her.10
On December 30, 2009, Campbell received an Employee Counseling Statement 45
regarding her telephone call with the prospective student on December 2, for which she was
counseled on December 16. As mentioned above, the counseling statement contained those
alleged infractions as bullet points. (G.C. Ex. 6.) As with all such Employee Counseling

10 It appears that these statements by Boeder and Schnell are alleged by the General
Counsel in paragraph 4(d) of the complaint to constitute a violation of Section 8(a)(1) the Act.
JD(SF)-42-11
12
Statements, above the employee’s signatory line was a boiler plate statement regarding
confidentiality.11
Sarah Boeder testified that she personally made the decision not to terminate Campbell 5
based on the December 2 telephone call, mainly because of the concern that the regulatory
issues were more widespread. Because of this concern and Campbell’s statement that the
other enrollment counselors in her area were engaging in the same infractions, Boeder
instructed Quality Assurance to investigate other enrollment counselors’ calls in the specific
area of the building where Campbell made her daily calls. Based on that investigation, Boeder 10
testified that they did not find any calls that were “even close” to the one Campbell had made on
December 2.
Another incident involving Campbell occurred around January 20, 2010. On that date,
she received an email from another enrollment counselor, Jacob Husband, making fun of the 15
University’s lead policy as it related to the referral of leads to other teams. (G.C. Ex. 43.)
Campbell subsequently forwarded this email to several other enrollment counselors and a
student using the University’s email system. Campbell testified that she forwarded the email to
the student inadvertently, but apparently sent the message on to her co-workers because she
found it funny. She testified that when she realized that she had mistakenly sent the email to 20
the student, she called and asked her to delete the message, but not before joking with the
student about the contents of the email. While it does not appear that any specific disciplinary
action was taken against Campbell for forwarding the sarcastic email about the University’s lead
policy to other counselors and a student, it is subsequently mentioned in her final Termination
Request form as another example of misconduct on Campbell’s part. The termination report 25
references the incident and states that Campbell made “disparaging remarks to the student”
about the University’s lead policy, and that such “comments were unprofessional and did not
reflect upon GCU in a positive manner.” (Res. Ex. 1, Bates Stamp 0493.)
On February 9, 2010, Campbell sent an email to student Donnell Miller that gave her 30
instructions for accessing a weekly homework assignment. (G.C. Ex. 17, and Res. Ex. 1, Bates
Stamp 0518.) Miller had contacted Campbell because she was unable to get logged onto her
online account, which was necessary to get the weekly class assignments. This was a
technology issue of some kind. Miller was apparently a student that Campbell had enrolled in
the University. Campbell testified that there could have been significant repercussions for the 35
student if she was not able to log into the system and into her class, including potentially being
dropped from the class or receiving no credit on the assignment.
The University has a very strict policy against assisting a student academically.
However, Campbell contends that the student was very upset because, as a new student, she 40
was afraid of falling behind in her assignments. Campbell was able to email the information to
Miller because she had in her possession a copy of the class syllabus for this particular class,
UNV 101. Campbell testified that before she emailed Miller the instructions for the weekly
homework assignment, she attempted to get the technical issue resolved, but was simply
directed to contact the technical support unit. She also testified that her immediate supervisor, 45
enrollment counselor manager Ellen Rosa, did actually give her permission to email the student
with the information before she sent it, allegedly saying that, “[i]t would be fine [to send the
information] because it was our…error, but don’t make it a habit.” However, Rosa testified that

11 As mentioned earlier, the General Counsel alleges in paragraph 4(c) of the complaint that
such language in employee counseling statements constitutes a violation of Section 8(a)(1) of
the Act.
JD(SF)-42-11
13
she did not give Campbell permission to send the email in question, and was only made aware
of the email by Campbell the day after it was sent.
Similarly, Campbell claimed that she had spoken to Erin Hernandez, enrollment 5
manager, and Chris Landauer, assistant director of enrollment, about the student’s problem,
prior to sending Miller the email. However, both managers testified that they only learned about
the student after hearing that Campbell had sent her the email with the link to the information.
According to Landauer, he only became involved in the incident once it was reported as a
possible compliance violation. (Res. Ex. 1, Bates Stamp 0519-0520.) 10
Rosa testified that the specific course that the student was having a problem with is
called “University Success.” It is designed to make the online students familiar with the use of
the computer to “navigate around the classroom,” including how to access resources. Being
able to access a homework assignment was one aspect of the course, and by sending Miller 15
access to the assignment through a link in an email, Campbell was, according to Rosa, giving
the student academic, and not merely technical assistance. This was prohibited under the
University’s compliance policy. Chanelle Ison, associate vice-president, testified that any
enrollment counselor who sent a homework assignment link to a student, as Campbell had
done, would be “disciplined,” and if there were “multiple infractions…would be terminated.” 20
At some point after Campbell sent the email to Miller, Campbell and Rosa had a
discussion about the issue, during which Rosa asked to see a copy of the email. Rosa testified
that after reviewing the email, she became concerned about a possible compliance violation,
and, so, she discussed the matter with Erin Hernandez, who advised that they talk with Linda 25
Lair, human resources manager. Rosa also brought this matter to the attention of Chris
Landauer. After determining that a compliance violation may have occurred, he sent an email to
Heyward Howell, compliance officer, on February 11 detailing the incident. Howell responded
the following day and instructed Landauer to “follow up with Linda,” and that he would assist in
gathering evidence in the matter. (Re. Ex. 1, Bates Stamp 0519-0520.)30
The decision to terminate Campbell was ultimately made by Sarah Boeder, senior vice-
president of operations. She testified that this decision was not based on a single instance of
inappropriate conduct, but, rather, by a pattern of misconduct. Boeder was particularly troubled
by Campbell’s “bad call” to a prospective student in December of 2009 as recorded by the 35
Quality Assurance Department, and the February 2010 incident involving improper assistance
given to student Miller. The Termination Request for Campbell was dated February 16, 2010,
and lists in detail the various disciplinary warnings, counseling sessions, and retraining that
Campbell had received over the period of her employment. The document indicates that it has
been reviewed and approved by Ellen Rosa, Chris Landauer, Chanelle Ison, Linda Lair, Rhonda 40
Pigati, and ultimately by Sarah Boeder.
On February 23, 2010, Ellen Rosa and Linda Lair met with Campbell to inform her that
she was being terminated. According to Campbell, all the items on the Termination Request
form (G.C. Ex. 7) were discussed with her as reasons for her termination, with the exception of 45
the July 2, 2009 email warning and the August 3 incident involving the picture of the sunbathing
woman. Further, she testified that when the January 20, 2010, sarcastic email regarding the
change in the University’s policy regarding leads for international students was raised, Rosa told
her that “[counselors are] not allowed to ever send out non-business related emails.”12

12 It is apparently this alleged statement by Rosa that the General Counsel contends in
complaint paragraphs 4(k) and (5) constitutes a violation of Section 8(a)(1) of the Act. It should
Continued
JD(SF)-42-11
14
Following her termination interview, Campbell was escorted out of the building.
From his post-hearing brief, it is clear that counsel for the General Counsel takes the
position that Campbell was fired principally because on January 20, 2010, she forward an email 5
to fellow enrollment counselors and a student that “mocked Respondent’s policy change
regarding international leads.” On the other hand, counsel for the Respondent cites the
testimony of Sarah Boeder who stated that while the cumulative infractions committed by
Campbell resulted in the decision to terminate her, what really upset Boeder was the “bad call”
made in December of 2009 to a perspective student and the February 2010 incident where 10
Campbell improperly assisted student Miller. While the human resource representative who
prepared the termination packet referenced, among other infractions, a series of inappropriate
emails that Campbell had sent, Boeder testified that her decision was not based on those
emails. Therefore, counsel argues that Campbell’s termination was not based on her violations
of the Respondent’s Electronic Communications Policy. 15
2. Edmond Bardwell
Edmond Bardwell began his employment at Grand Canyon University on January 3,
2006, and was last employed there as an enrollment counselor when terminated on September 20
2, 2010. In order to place his termination in context, it is necessary to review his employment
history and in particular the number of different positions that he held at the University.
Bardwell began working at the University as an enrollment counselor for the College of
Business and Liberal Arts. After six months, he was promoted to the position of inside sales 25
representative. However, he claims to have had a “dual role” that included certain outside sales
representative duties. In that capacity, he claims to have traveled to various states outside of
Arizona on behalf of the University. After approximately eight months, he was transferred back
to the position of enrollment counselor where he continued until August 2008 when he was
promoted to outside sales representative.30
Bardwell testified that about that time he met with members of management during an
executive luncheon, at which he presented an executive of the University with a business
proposal about the Christian studies department. As a result of his proposal, he was permitted
to solicit for leads directly at churches and church conventions. Regina Madden testified that 35
during part of the time that Bardwell was soliciting at churches, she was his enrollment
manager. She confirms that as an outside sales representative his duties included establishing
partnerships with churches in order to solicit student leads. However, at some point Jacob
Mayhew, the director of enrollment, informed her that Bardwell’s position was going to be
changed since his work with the churches was not benefitting the University. He was going to 40
be transferred back to an inside enrollment counselor. Shortly thereafter at a meeting with
Bardwell, Madden, and Mayhew, Bardwell was, according to Madden, informed by Mayhew that
he had 30 days to wrap up his relationship with the churches, after which he was expected to
return to the job of an enrollment counselor.
45
Bardwell admits that he was transferred back to his old position as an enrollment
counselor. However, he claims that he still had authority to work with churches, if the
opportunity presented itself. He claims that Mayhew told Madden “to give [Bardwell] some
liberty to go to meetings outside the normal online, sitting in a cubicle.” Further, he understood
_________________________
be noted that the complaint names Lair as the supervisor who allegedly made the statement,
but Campbell testified that the remark was made by Rosa.
JD(SF)-42-11
15
that this “dual role” was open-ended with no sunset date. However, as noted, Madden
disagrees, contending that Mayhew’s instructions to Bardwell were clear, that he must relinquish
his direct church solicitation duties and return full time to the position of an enrollment
counselor. 5
As proof of Madden’s testimony, counsel for the Respondent offered into evidence a
type written document entitled “Team Madden, Internet Business Enrollment” setting forth
Bardwell’s duties and responsibilities as an enrollment counselor. Under the heading
“Additional Clarification for Ed Bardwell” it states: “As an Internet Enrollment Counselor, you 10
should have no further direct contact, on behalf of GCU, with any of the churches or church
entities that you may have already contacted or would be contacting in your previous role as a
OSR [outside sales representative].” Next to this language is written in pen the statement “5
churches for 30 days.” Also written in pen is the date “July 1.” This language would seem to
support Madden’s testimony that Bardwell was to relinquish all contacts with church 15
organizations on behalf of the University within the next 30 days, meaning June 1 to July 1. The
document has a printed date at the bottom of the first page of May 19, 2009, and has a place for
Bardwell’s signature. However, the copy in evidence is unsigned. (Res. Ex. 12.) While
Madden testified that she saw Bardwell sign the document, Bardwell testified to the contrary that
he did not recall any such document.13 20
It is further worth noting that this document, also under the heading “Additional
Clarification for Ed Bardwell,” contains certain language, which seems to suggest that the
University did not totally trust Bardwell and was determined to place him under close
supervision so far as any outside activities in which he might try and involve the University. 25
This language reads as follows: “Any future pursuit of other opportunities within GCU, whether
they be additional job responsibilities, different job duties, or a change altogether, will need to be
pursued with complete transparency, and in keeping with GCU’s standard hiring practices
which, among other things, requires approval by your manager on an Internal Application.”
(Res. Ex. 12.)30
Bardwell has filed several charges against the University with the Arizona Attorney
General’s Office, Civil Rights Division and with the U.S. Equal Employment Opportunity
Commission (G.C. Ex. 46, February 10, 2009, and G.C. Ex. 48, March 8, 2010.). These
charges allege employment discrimination on the basis of race (Bardwell is an African-35
American) and religion (Christian). While somewhat confusing, it appears that both charges are
currently still pending. (G.C. Ex. 47 & 49.)
According to enrollment counselor Gloria Johnson, at some time between the end of
March but before April15, 2010, Bardwell approached her and asked if she was interested in 40
setting up a meeting with Chanelle Ison, associate vice-president, for the purpose of discussing
the problems that the grad team was having with low quality leads, the lack of degree programs
that could be offered to prospective students, and other general issues with management.
Johnson indicated that she was interested, and such a meeting was held between Ison and the
entire grad team around April 14, 2010. There is a dispute, however, on who prompted the 45
meeting, with Johnson suggesting that Bardwell did so, soliciting support from co-workers to
have a team-wide meeting where they could discuss their discontent about their working
conditions. On the other hand, Ison testified that the meeting, which she referred to as “Start,

13 As will become apparent later in this decision, this is relevant as to what authority
Bardwell may have had to establish a satellite campus in the City of Texarkana, Texas, and
what he may have promised a Reverend Dean in that community.
JD(SF)-42-11
16
Stop, and Continue,” was her idea and that she had already met with a number of other
enrollment counselor teams prior to the grad team.
In any event, regardless of who initiated the meeting, Ison meet with the grad team for 5
one of her periodic “Start, Stop, and Continue” meetings on about April 14. There is no dispute
that the meeting included a team-wide discussion of a number of sources of work-related
frustration the grad team was dealing with, including specifically the low quality leads. Ison
replied that she understood the frustration and was attempting to get the team better leads. She
asked that the team designate someone who could compile a list of bad leads and report back 10
to her. Enrollment counselor Brad Bender volunteered. Also during the meeting, Bardwell
proposed the idea for a “peer review” from the enrollment counselors for their managers. Ison
asked Bardwell to work on producing some sort of questionnaire. He subsequently prepared
such a form and gave it to Ison to review. Ison was apparently appreciative of Bardwell’s
efforts, because on April 14, 2010, she sent him an email thanking him for volunteering to “put 15
the form together.” Further, she informed him that she had “sent the request to HR,” and would
let him know of their reaction. (G.C. Ex. 9.)
There was a follow up meeting between Ison and the grad team in either late April or
early May 2010. During the meeting, they discussed Bardwell’s earlier suggestion regarding a 20
peer review process for managers. However, Ison indicated that a decision had been made not
to implement such a peer review for managers. Bardwell voiced his displeasure with the
decision, stating that it was crucial for the grad team to have a survey because it would help
improve moral. Bardwell testified that after the meeting, Ison approached him at his desk. As
the two were walking down the stairs leaving for the day, Ison said that she was concerned 25
because during the meeting he had been upset with her and had spoken to her in a
“disrespectful” way. Bardwell replied that he was not trying to be disrespectful, and thought the
meeting was “an open forum.” That was the extent of the conversation.14
In early April of 2010, Ellen Rosa held one of her regular weekly meetings with the grad 30
team. According to Johnson, during this meeting Rosa instructed the team that they “needed to
enroll 50 more students for the April start date.” When Rosa stated that “upper management
had called her and told her” that this was the new quota, Johnson replied that she “thought it
was crazy for them to ask us that because our leads were horrible as it was and right then, we
were lower than what we should’ve been anyway.” Johnson spent time over the next months 35
continuing to discuss the enrollment lead issues, the quota situation, and other employment
related issues with fellow team members.
Apparently in late April 2010, an employee sent an email to co-workers over the
Respondent’s email system criticizing Chanelle Ison and Chris Landauer. Johnson testified that 40
at some point in late April, Ellen Rosa approached her privately regarding the email mentioning
Chanelle Ison and Chris Landauer. Johnson told Rosa that she had received no such email.
Rosa replied that, “if [you] get the email, delete it and [do] not read it,” that “whoever sent the
email would be terminated,” and that “if anybody else is caught forwarding the email, they would
be terminated.” Johnson also testified that later that same day, Rosa called a team meeting and45
relayed to the entire team that same information about the email that she had given earlier to
Johnson.

14 It is alleged in complaint paragraph 4(h)(1) and (2) that this statement by Ison constituted
a violation of Section 8(a)(1) of the Act.
JD(SF)-42-11
17
Bardwell also recalled Rosa talking with the grad team employees about this email
criticizing Ison and Landauer. He testified that she told the counselors, “They’re firing
individuals for forwarding this email. If you get this email, you better delete it.” Bardwell claims
that Rosa also asked him specifically whether he had received the email, to which he responded 5
that he had not. Allegedly she told him individually that if he gets the email to delete it, or he
might get fired.15
During the second week of June 2010, Rhonda Pigati, a human resource manager and
admitted supervisor, held a number of private one-on-one meetings with some members of the 10
grad team regarding concerns raised by individuals on the team. While Pigati testified that she
did not inform the counselors specifically regarding the purpose for the meetings, it is apparent
from the employee interview notes that she took, that Pigati wanted to get the employees’
evaluation of team supervisor Ellen Rosa and of her leadership abilities, as well as to determine
the level of team moral. (G.C. Ex. 32-37.)15
According to Johnson, when she first sat down for the meeting, she was told by Pigati
that Pigati “was meeting with everyone on the team and that whatever we talked about in that
office, to keep it confidential.” Pigati proceeded to ask Johnson what she thought about Ellen
Rosa as a manager. Johnson indicated that Rosa was trying her best, but had not been given 20
“a fair chance to even learn, you know, to be a manager,” and that Johnson “thought that [Rosa]
was doing her best…with what she had.” Further, Johnson volunteered to Pigati that, “some of
the other people had come to me and complain[ed] about [Rosa] as a manager.” Pigati asked
who these people were, and Johnson mentioned “Minal and Ed Bardwell…and Becca Garrett.”
According to Johnson, Pigati took notes on her computer documenting Johnson’s answers. 25
Johnson also testified that as she was leaving the interview, Pigati reiterated that she “will be
contacting everybody else and just keep this, you know, don’t talk to anybody else on the
team.”16
Pigati conducted a similar closed-door meeting with Bardwell. As she had with Johnson, 30
Pigati asked Bardwell not to discuss the contents of their meeting with anyone else.
In July 2010, Ray Akers replaced Ellen Rosa as enrollment counselor manager for the
grad team. During July, Akers held two meetings with the members of the grad team, which
meetings included an open discussion of the team’s frustration surrounding quotas and the 35
quality and number of leads. Johnson’s testimony suggests that the team received a similar
response from Akers as they had from Rosa and Schnell, with Akers saying that he was going
to work on getting better leads and that the team should continue to work hard to meet the
quotas.
40
At some point in the middle of July, Chanelle Ison held another meeting with the grad
team, and included Nicolette Boessling, director of enrollment and an admitted supervisor.
During the meeting, Ison gave the team the bad news that the quotas could not be changed,
and that they would not be able to get additional degree programs to supplement the existing
ones they had in criminal justice and Christian studies. Also during the meeting, Ison informed 45
the team of a new scheduling policy where one or two members of the team would need to
cover late night shift hours every evening during the week. Some members of the team

15 The General Counsel alleges in complaint paragraph 4(g)(1),(2), and (3) that these
statements by Rosa constituted a violation of Section 8(a)(1) of the Act.
16 The General Counsel alleges in complaint paragraph 4(i)(1) and (2) that these statements
by Pigati constituted a violation of Section 8(a)(1) of the Act.
JD(SF)-42-11
18
indicated their opposition to working any late shifts at all, but Ison stated that if team members
did not volunteer for such shifts, then the shifts would simply be assigned. Johnson suggested
a modified night shift system, whereby the team members could split up the night shifts, so that
no team member would need to work the night shift more than 2-3 days a week. However, Ison 5
denied this suggestion out of hand.
Apparently the discussion became somewhat heated. Bardwell, who had indicated,
along with several other employees, that they were unable to work the night shift, voiced his
displeasure with Ison’s adamant refusal to allow the team from trying to split up the schedules. 10
He said, “Why can’t we do that if this is our meeting and we’re getting the shift covered. Why
can’t we do that?” According to Bardwell, “We went back and forth and everyone looked at me
and her. Me and Chanelle [Ison] went back and forth, and we just kind of diffused it a little bit.
And, she made the final decision that we could not do that.” While Bardwell testified that he was
the “most vocal” of the enrollment counselors about not being able to work a night shift, he 15
admits that others “did voice their opinions as well.” Although he testified that he could not
recall specifically which counselors were vocal at the meeting, he acknowledged that,
“Everyone, you know, started chiming in. So it was a barrage of individuals that went back and
forth.”
20
According to Bardwell, later that day he spoke with Nicolette Boessling privately. He told
her that despite being very vocal at the meeting, “My intentions were all good. They were not
anything beyond that.” Boessling said, “Okay, no problem.”
Bardwell then met privately with Ison and reiterated that he did not want her “to get the 25
wrong impression,” and that his “intentions were good.” He mentioned the suggestion that the
team members split up the night shifts, and that he felt as long as they got the shifts covered,
that should be adequate. However, Ison said that she thought he had acted “a little
disrespectful because this is the second time it’s happened.” Bardwell replied that, “I’m not
trying to be disrespectful or anything. I’m just here to let you know that I’m not trying to do 30
anything beyond being a good person and being a good employee.” According to Bardwell,
before the meeting ended, Ison mentioned that the grad team was “the most opinionated team,
kind of like a hard case or a hard chip.” That was the end of their conversation.17
A few days after the team meeting, Johnson approached Ray Akers and mentioned that 35
she felt the new night shift policy was “affecting a lot of people on the team”, and she “didn’t
think that [the University] should request us to have to work late.” Johnson told Akers about her
suggestion that the team members share the late shift during each week, and of the rejection
from management. Akers replied, “That’s what management wanted to do, and we had to just
follow policy. There wasn’t a lot he could do because we had to cover the qualifying center.” 40
It is now appropriate to discuss the facts leading up to the termination of Edwin Bardwell.
These events mainly concern the relationship and interaction between Bardwell and the
Reverend Gary Dean of Texarkana, Texas. While it is unclear exactly when the communication
between these two men began, the earliest correspondence in the record is an email from Dean 45
to Bardwell dated February 25, 2010, with Dean’s attached college transcript. Although not
expressed in the email, it is clear from its content that there were earlier communications
wherein Dean had indicated an interest in pursuing a graduate degree in Christian studies. In
the existing email, Dean makes mention of 5-6 potential students from his church that would

17 It is alleged in complaint paragraph 4(j)(1) and (2) that these statements by Ison
constituted a violation of Section 8(a)(1) of the Act.
JD(SF)-42-11
19
“like to see more about your programs.” Further he says, “Pastor is very interested in a school
at our church and would like to know what the requirements are?” (G.C. Ex. 24.)
Bardwell testified that in an earlier telephone conversation, Dean had expressed an 5
interest in attending Grand Canyon University for a Christian studies graduate degree, and had
also raised the issue of the University establishing a satellite campus at his church. While not
entirely clear, Bardwell seems to testify that his reputation as established by previously working
with various churches was what led Dean to contact him and raise the issue of a satellite
campus. 10
Dean did subsequently enroll in a masters’ degree program in Christian studies, and he
and Bardwell communicated frequently, according to Bardwell, on an almost weekly basis. In
the record is a copy of an email from Dean to Bardwell dated July 19, 2010. The subject line of
the email is, “Off site campus.” The email reads as follows: “Ed, when I started looking at GCU 15
you and I had a conversation about the above subject. You told me that the best thing to do
was to enroll me first then we would establish my satellite campus. That has not happened and
I am starting my third class. My church has voted to do this campus and to open a Christian
home schooling academy. I need to talk to you as soon as possible, Please call my cell 903-
319-3521 before 5:00 pm Central Time. Thank you Rev. Gary G. Dean Sr.” (G.C. Ex. 25.) 20
In response to counsel for the General Counsel’s questions about this specific email,
Bardwell stated that he “made no promises” to Dean regarding the establishment of a satellite
campus and that he never told Dean that he had the authority to establish one. Bardwell stated
that he never told Dean that if he wanted to get a satellite campus then it would be better if he 25
was enrolled first as a student. Further, on cross-examination, Bardwell testified that Dean was
the one who said “he wanted to take the class first himself because he wanted to take those
classes first so he could see what the program was about to enlighten the Christian experience
through his coursework before he wanted to give it approval.”
30
Bardwell does admit, however, to telling Dean that he was attempting to do some “fact
finding” to see whether it would make business sense to open a satellite campus at that
particular church. He stated that he also told Dean that, “You need at least 30, even more,
students to have a satellite campus.” He testified, “That information I [knew] because I was an
outside sales representative.” Bardwell also told Dean that, “If you can do that, I’ll feel 35
comfortable going to the higher-ups,” but, additionally, he allegedly told Dean that if the “higher-
ups” denied the request, then there would be no satellite campus. The information that Bardwell
gave to Dean was something that he acknowledged telling other pastors during the time period
that he worked as an outside sales representative. He denied that he ever told Dean that Dean
first needed to enroll in an online program himself before Bardwell would present the satellite 40
campus idea to management.
Bardwell spoke to Dean on multiple occasions between his receipt of the July 19 email
and August 18. Bardwell claimed that he asked Dean a number of times whether he had 30 or
more students to enroll, but Dean was unable to produce such a list. On August 19, 2010, 45
Bardwell and Dean had an email exchange in which Dean mentioned that there was
“newspaper coverage for Grand and [we] are receiving calls daily. I need your help please.”
(G.C. Ex. 26, Bates Stamp 018.) Admitted into evidence were several pages from the
“Texarkana Gazette,” where under the heading “Church News” appeared the following: “Main
Street Church….The pastor is the Rev. Gary G. Dean Sr. They also offer American Christian 50
Academy II, a home school program, for grades K-12 and university classes via satellite from
JD(SF)-42-11
20
Grand Canyon University, call 903-319-3521.” (G.C. Ex. 27.) (Emphasis added by the
undersigned.)
Bardwell testified that he had not been notified prior to Dean’s August 19 email that a 5
newspaper advertisement had been placed in a local Texarkana publication or that Dean was
planning on doing so. According to Bardwell, in his telephone conversation with Dean on
August 19, after receiving Dean’s email with the mention of the “newspaper coverage,” Bardwell
informed Dean that since “[Dean] didn’t have 30 students, so there’s no way I would be able to
even think about going to the higher-ups.” This conversation, if it occurred, was not recorded, 10
apparently because the call was not made using the University’s phone system.
According to Bardwell, he had additional phone conversations with Dean following the
August 19 email, but he is uncertain how many or when they occurred. Dean is very vague
regarding these calls. While some of these conversations were made using the University’s 15
phone system, it is important to note that Bardwell admitted that some of the calls were also
made using his personal cell phone. Such calls, of course, could not be recorded through the
University’s Quality Assurance System. He claimed that other enrollment counselors also
occasionally used their personal cell phones to call students, and that the reason this was done
was so that the parties felt “more freely comfortable.” When asked by the undersigned why 20
using the cell phone would make him feel more comfortable, he admitted that it was because
management could not listen to the call, but also because “some students even want you to talk
to them on the cell phone because they don’t want the conversation recorded.”
Bardwell testified that on August 20, he talked with Dean on his cell phone, and advised 25
Dean that the requirement for establishing a satellite campus was to have at least 30 students
enrolled. Dean indicated that he only had about 18 students willing to enroll, which Bardwell
told him was an inadequate number for a satellite campus. Bardwell recalled another phone
conversation with Dean on August 30, again on his cell phone. Dean indicated that he was still
interested in establishing a satellite campus at his church and was trying to attract enough 30
students to meet the University’s requirements. This was the last conversation between
Bardwell and Dean, prior to Bardwell’s termination.
On cross-examination, Bardwell was asked again about why he used his personal cell
phone in conversations with Dean, specifically in the conversation where Bardwell claimed that 35
he told Dean that Dean needed at least 30 potential students before the University would
consider establishing a satellite campus. In response, Bardwell continued to say it was so that
he could talk with Dean “a little more freely.” At that point, the undersigned specifically asked
Dean if by “a little more freely” he meant anything other than management would not be able to
record the call. His answer was not totally responsive to the question, but he did say that using 40
his cell phone allowed him to “talk to students a little bit more direct and a little bit more stern
and more, just in general of the relationship that we build.”
At some point, the University, through its Quality Assurance System, became aware of
some of these conversations between Bardwell and Dean, at least those that were recorded 45
from the University’s phone system. Entered into evidence was the transcript of a phone
conversation between Dean and Bardwell, which occurred on August 20, 2010. (Res. Ex. 10,
Transcription of Voice Mail Message-#1.) Dean made the call to Bardwell, and he tells
Bardwell, “Well when I first contacted you about the University my concern was to open a
satellite of Grand (sic) University here in Texarkana.” Bardwell responded, “Uh huh.” Dean 50
continued, “And you said that would be no problem, blah, blah, blah, blah, and, but you wanted
me to sign up for classes first.” Again Bardwell responded, “Uh huh.” Later in the conversation,
Dean says, “And now I’ve got my new church up and running….And we want to be able to put
JD(SF)-42-11
21
this satellite in and I need some help.” At that point, Bardwell tells Dean, he will call him right
back, from what apparently was his cell phone. On cross-examination, counsel for the
Respondent attempted to get Bardwell to say what he meant by the term “Uh huh,” suggesting
that Bardwell was in effect agreeing with the statements Dean was making. Bardwell’s 5
responses to counsel were evasive and frankly made no logical sense. Bardwell was, in any
event, refusing to admit that he had acquiesced to Dean’s statements. Under cross-
examination, Dean does admit that after the call on the University’s system, the one that was
recorded, that he called Dean on his personal cell phone, and while he is somewhat
contradictory, he ultimately acknowledges making the cell phone call “shortly after.” 10
A call on the University’s system on August 30, 2010, between Dean and Bardwell was
also recorded and admitted into evidence. (Res. Ex. 11,Transcription of Voice Mail Message-
#3.)18 Dean placed the call to Bardwell, during which call Bardwell asked him how his classes
were going. Dean responded, “Well, that’s why I’m calling you, we’re trying to get the satellite 15
set up, satellite campus….Right now I’ve got 18 names and I’m still working on it and I’ll have 30
by the end of the week.” Bardwell asks Dean, “All on which degree programs will the18 want to
go for? Dean responds, “I’ve got them from bachelors to masters to Ph.D.” The conversation
ends with Bardwell telling Dean that he will be sending him some information and literature by
email. However, Bardwell testified that, once again, he followed the phone conversation on the 20
University’s system with a call from his personal cell phone. According to Bardwell, he repeated
for Dean the “parameters” for establishing a satellite campus, presumably a minimum of 30
students, to which Dean replied that “he was trying to get enough students to submit.” That was
apparently the last phone conversation between the two men.
25
It is Bardwell’s testimony that he never told Dean that Dean needed to register for class
before there could be any consideration of a satellite campus on his church; that he never told
Dean that he had the authority to establish a satellite campus; and that he never promised Dean
that a satellite campus would be set up if Dean was able to produce 30 students willing to enroll.
According to Bardwell, he merely told Dean that if a minimum of 30 students were willing to 30
enroll at the University that he would be willing to take the matter of a satellite campus up with
management. Bardwell acknowledges that he had no authority to establish such a campus on
his own initiative, but continues to claim that he had the authority to talk about such matters with
churches under his continuing “dual role” as an enrollment counselor and outside sales
representative (OSR).35
Some time at the end of August or early September, Ray Akers, enrollment counselor
manager, and Nicolette Boessling, conducted a “one-on-one review” where they “would just
spot check different employees on the team.” According to Akers, they would select a 24-hour
period and randomly select three or four calls made during that period by the employee. During 40
one particular spot check they listened to one of Bardwell’s conversations with Reverend Dean
that included a discussion of potentially setting up a satellite campus. Akers defined the
reaction of both of them as being “very surprised.” Boessing told Akers that “she would take it
from here.”
45
Sarah Boeder, senior vice president of online operations, testified that after reviewing
two calls that Bardwell had with Dean on August 20 and 30, 2010, a decision was made to
terminate Bardwell. Boeder was the ultimate decision maker, and decided on termination
because: (1) Bardwell failed to follow the extensive process needed to establish a satellite

18 On the record, the parties agreed that this transcript should have been labeled as,
Transcription of Voice Mail Message-#2.
JD(SF)-42-11
22
campus, and (2) and he had made numerous misstatements to Dean, even though all
enrollment counselors, including Bardwell, had recently completed a compliance training
program. Management felt that Bardwell had represented to Dean that he had the authority to
set up a satellite campus and that doing so would be “no problem,” once Dean enrolled at the 5
University, which he did. Boeder testified that Bardwell had absolutely no authority even to
discuss the establishment of a satellite campus, let alone lead a prospective student to believe
that a campus in Texas was a realistic possibility. According to Boeder, the process to establish
a satellite campus takes months, if not years, is very complicated, and involves numerous
individuals and approvals from various internal University offices and state agencies. As of the 10
date of the hearing, the only satellite campus located outside the State of Arizona was in
Albuquerque, New Mexico. State approval is necessary before the University can begin a
satellite campus in a given state.
Near the end of the work day on September 2, 2010, Bardwell met with Rhonda Pigati 15
and Chanelle Ison. According to Bardwell, Pigati informed him that he had been terminated for
“setting up satellite campuses.” He was just “discombobulated” with the news, as he claimed he
had done no such thing. Ison stated that they had listened to several phone conversations with
Reverend Dean and determined that he had made promises that he had no authority to make.
Bardwell said that he had done nothing wrong and asked them to call Dean and talk with him 20
directly. Bardwell defended himself, saying that he was not setting up satellite campuses, but
only offering “information to see if this was something we can even consider, and that I was
going to present to the higher ups, management, and business development to see.”
Bardwell argued that he had been given “dual role authority” by Jacob Mayhew.19 He 25
testified that he told this to Pigati and Ison, but they did not care, and they refused to contact
Dean. The Involuntary Termination Request for Bardwell was approved by Boeder. It gives a
number of reasons for termination, including fraudulent activity; making misrepresentations
about the Respondent’s policies or admission requirements; lack of integrity or unethical
behavior; conflict of interest; and compliance violations. (G.C. Ex. 3.) In reviewing the 30
termination document and its attachments, it is fairly clear to the undersigned that the
Respondent’s managers believed from the two phone calls that were recorded and from the
email communication between Dean and Bardwell, that Bardwell was using Dean’s desire to
have a satellite campus at his church as a way of getting Dean, and potentially other students,
to enroll at the University. In the Respondent’s view, Bardwell was misleading Dean into 35
believing that Bardwell was likely to arrange for such a satellite campus, once enough students
who were affiliated with the church enrolled with the University. It appeared from the
correspondence that this was the reason that Dean had enrolled, and it was fairly obvious that
Dean was attempting to get others, perhaps as many as 30, to also enroll. The University
managers contend that Bardwell had absolutely no authority to establish such a satellite 40
campus, or even to raise that issue with Dean. Accordingly, that was the Respondent’s stated
reason for terminating Bardwell.
Prior to firing Bardwell, there was apparently no effort to contact Dean, as the
Respondent did not indicate having done so. The Respondent relies almost entirely on the 45
correspondence between Dean and Bardwell, along with the recorded two phone calls. Further,
counsel for the Respondent suggests strongly that the reason Bardwell used his personal cell
phone to call Dean was so that the University would not have the capacity to learn of Bardwell’s

19 By this statement I assume that he was referring to his contention that when he returned
to the job of enrollment counselor, Jacob Mayhew had allegedly allowed him to continue his
work with churches in the capacity of an outside sales representative (OSR).
JD(SF)-42-11
23
unauthorized and fraudulent promises made to Dean. It should be noted that Dean was not
called as a witness by either party at the hearing.
3. Gloria Johnson5
Gloria Johnson began her employment at Grand Canyon University on August 31, 2009,
and remained employed there as an enrollment counselor until her termination on August 2,
2010. As noted earlier, she was a member of the grad team.
10
According to Johnson, enrollment counselors were required to send an email application
packet to a lead interested in enrolling as a student, which packet included documents that the
student would have to fill out in order to complete the application process. Once the student
filled out the enrollment application materials fully, those completed materials were returned to
the enrollment counselor who would then be able to print out the documents.15
On July 15, 2010, at 7:38 am, Johnson received a call at work from Bessie Miller, a lead
who had indicated an interest in enrolling as a student in the Christian studies master’s degree
program. Miller was calling in order to find out whether Johnson had received her completed
electronic application materials. Johnson had received the application. However, the transcript 20
request form as originally filled out by Miller had the word “Other” in the space set aside for the
applicant’s “Name of College/University.” Also, the space for the “Campus Attended” was left
blank, and Miller had listed NC as the State. Miller had listed the dates attended and the degree
earned.
25
Johnson briefly looked over the application and indicated to Miller that it looked
complete, except that “she didn’t put the school in her transcript request form.” Miller responded
that she was unable to find her former school in the “dropdown” menu on the transcript request
form webpage. Johnson then instructed Miller to check the dropdown menu again just to make
sure that she was not mistaken. After Miller was unable to find it for a second time, Johnson 30
told her, “What I can do is I’ll talk to my manager to see if it’s okay to write the school in because
[you] signed everything.” She then told Miller, “I want you to give me your permission on the
phone because they record everything we say.” Miller granted Johnson permission to write on
her application both the name of the school that she had attended and the location of the
school.35
Johnson testified that she then put Miller on hold and took the printed transcript request
form over to Jacob Husband, a team lead for the grad team. She showed him the form and
asked if it was “okay if I write the name of the school on here and the campus Bessie Miller
attended because this school is not on the dropdown.” Husband replied that he was not sure if 40
the Office of Academic Records would accept the form with the written information, and
instructed Johnson to speak to their enrollment counselor manager, Ray Akers.
It should be noted that human resource manager Rhonda Pigati testified that after
Johnson was terminated she spoke to Husband regarding this matter because his name had 45
been mentioned in Johnson’s post-termination explanation letter. Pigati stated that Husband
told her that he “didn’t remember having a conversation like that,” and if he had been asked that
question he would have told Johnson that she should “absolutely not” write over the document.
In any event, after her alleged brief conversation with Husband, Johnson testified that 50
she immediately approached Akers at his desk, showed him Miller’s transcript request form and
asked him for permission to “write the name of the school and the campus that Bessie [Miller]
attended on the transcript.” It is important to mention that according to Johnson, at the point
JD(SF)-42-11
24
that she showed Akers the transcript request, she had made no markings on the document.
She testified that Akers asked her what she was “trying to do,” and, after receiving an
explanation that she just wanted to write the name of the school, campus attended, and specific
state on the form, he told her that it “should be okay.” However, Johnson noted that as she was 5
walking away from Akers' desk he stopped her and asked her, “What is it you’re doing again?”
Johnson repeated everything that she wanted to do, and that she would not be changing
anything else on the form, nor was she signing Miller’s name. Hearing this information, Akers
again granted permission. It should be noted, however, that when Akers testified, he did not
recall having a second conversation with Johnson on this date regarding the form.10
By the time Johnson had returned to her desk, Miller had hung up. Johnson called her
back, leaving a message, which Miller returned immediately. During that conversation, which
lasted roughly five minutes, Johnson told Miller that as her supervisor had given permission, she
was going to write in Miller’s college’s name, the campus attended, and the location on the form. 15
Miller again indicated that was fine with her, and she gave Johnson the information that the
college that she had attended was North Carolina College of Theology and that the location of
the campus was Baltimore, Maryland. Johnson then apprised Miller that she would submit her
application packet, including the transcript request form.
20
Akers testified that sometime after Johnson had approached him on the morning of July
15, but before July 16, he went to discuss the Bessie Miller situation with his manager, Mike
Rasmussen. After his conversation with Rasmussen, Akers realized that neither of them had
the ability to listen to the phone conversation between Miller and Johnson, because Johnson
was not officially on Akers' team.20 Therefore, Rasmussen suggested that Akers speak with 25
Rhonda Pigati, who had the ability to listen to the recorded call.
According to Akers, as he was getting ready for work on July 16, “something stuck out to
me about the form,” and “it occurred to me that it was a different color ink, it was like a purple
color on the page.” Because he knew that faxes should not have different colors, he decided to 30
approach Johnson again in order for her to recount the situation. He went to Johnson’s desk
that morning and asked if she could repeat what she had asked him the day before. Johnson
reiterated what she had requested and Akers replied, “Okay, next time just go ahead, send it
back to the student, have the student write it in and process it.”
35
Rhonda Pigati, a human resources manager, testified that some time after July 15, 2010,
Ray Akers approached her and discussed the interaction that he and Johnson had had
regarding the Bessie Miller application. Akers told Pigati that he wanted to share with her
“something that was on his mind” from his conversation with Johnson. Akers set out the
specifics of the interaction that occurred between him and Johnson regarding Miller’s transcript 40
request. However, what is not clear to the undersigned is whether Akers told Pigati that when
he first saw the transcript form it did or did not contain the handwritten notations.
In any event, Akers testified that he and Pigati then retrived the phone calls that Johnson
had made on the morning of July 15 and listened to them. According to Pigati, Akers admitted 45
that after Johnson had shown him the transcript form and asked him if it was okay to send it on
for processing with a handwritten correction, that he had told Johnson that he “didn’t think the
handwriting would be a problem.” However, according to Pigati, Akers claimed that the next day
when he spoke to Johnson again, and realized that what she had done was to write in the

20 Apparently at the time, Akers was a temporary manager for the grad team, and not
“officially” the manager.
JD(SF)-42-11
25
information on the form herself, he had told Johnson that, “You can’t do this. You cannot
change documents that students have provided in any way, shape or form. They cannot be
altered.” Pigati testified that she told Akers that this was a very serious matter, as Johnson had
altered a student’s document, and it did not matter that Miller had given her permission for 5
Johnson to do so.
Akers’ testimony was difficult to comprehend. He appears to suggest, without
definitively saying so, that he was confused when originally approached by Johnson with Miller’s
transcript request. He seems to be suggesting that he thought that Miller had made the 10
handwritten notations on the form herself, not Johnson. He apparently thought that would not
be a problem, and only realized that it was Johnson who had made the handwritten notations
once he recalled the different color ink on the form. By the time that he testified, it was clear to
him that Johnson had made the additions to the form, and, so, he understood that this was a
violation of the University’s “zero tolerance non-compliance policy.” 15
On August 2, 2010, Johnson was asked to meet with Rhonda Pigati in her office. When
Johnson arrived in the office, both Pigati and Akers were waiting for her. Pigati asked Johnson
if she remembered the situation regarding Bessie Miller’s application materials. Johnson replied
that she did, and Pigati stated that Johnson was going to be terminated for writing on the 20
transcript request form. Johnson then pointed to Akers and stated that, “He told me I could do
it.” Akers then responded that “he didn’t understand what [Johnson was asking him.]” Johnson
testified that she was shocked and that she asked Pigati, “So you’re telling me I’m being
terminated for doing something that a manager said I could do?” According to Johnson, Pigati
responded that Akers “didn’t understand what [Johnson] said.” That essentially completed the 25
meeting.
The Involuntary Termination Request form for Johnson indicates the following: “On July
15, 2010 Gloria received an (sic) Transcript Request Form from a student in which “other” was
entered under the Name of College/University. While speaking with the student over the phone 30
on the same day, Gloria realized this area needed the name of a University so she told the
student she would add this information (North Carolina College of Theology, Baltimore MD) to
the form on the student’s behalf. Although Gloria asked the student for permission to add this
information, making any additions/changes to any student documents is a violation of GCU’s
Standards of Performance-‘Falsification of any student paperwork and/or student signatures or 35
posing as a student as part of internal or external communication.’” The final approval of the
termination was by Nikki Mancuso and Sarah Boeder. (G.C. Ex. 20.)
In his post-hearing brief, counsel for the General Counsel argues that Johnson did not
falsify any information or pose as a student as alleged in the Termination Request form. In 40
rebuttal to the allegations in the Termination Request counsel states: (1) Johnson did not write
down any information on the Transcript Request form that was false; (2) Johnson did not sign
Miller’s name on the form; (3) Johnson did not pose as a student; and (4) Respondent knew that
its supervisor had granted Johnson permission to help the student by writing on the Transcript
Request form.45
Johnson testified that later in the week that she was terminated, she “typed up this long
letter,” which she sent to “whoever [she] could find in upper management.” This letter contained
her story about the events leading to her termination, “everything …that I talked about and what
happened step-by-step.” In response she received a call from Patti Stoner, an alleged 50
supervisor, who allegedly told Johnson that the University had done an in depth investigation
and had determined that Johnson had made the changes on Bessie Miller’s Transcript Request
form before she sought permission from Akers to do so. However, Johnson strongly asserts
JD(SF)-42-11
26
that this is not accurate, and that, in fact, she only made the additions to the form after Akers
gave his permission, twice.
Obviously, the parties disagree over whether Johnson made the changes to the form 5
before getting permission to do so. Akers testified that when he saw the form, it had different
color ink on it, meaning that, if credible, the changes had already been made by Johnson. Yet,
it is undisputed that Akers still gave Johnson permission to make the changes, despite
apparently seeing that the changes were already made. Of course, Akers subsequently claimed
that he misunderstood what Johnson was asking, and offers this as an excuse for having told 10
her it was okay to make the changes. I will have more to say about this incident in the analysis
section of this decision.
4. John Young
15
As noted earlier, John Young, III, filed an unfair labor practice charge against the
Respondent, as captioned above, which has been consolidated with the other cases captioned
above into the complaint that is before the undersigned. Young did not appear to testify at the
hearing, and counsel for the General Counsel offered no explanation for Young’s absence. The
only evidence offered by the General Counsel in support of the allegations involving Young was 20
the testimony of human resource manager and admitted supervisor Linda Lair.21
Under examination from counsel for the General Counsel, Lair testified that Young was
employed by the Respondent as an outside sales representative in the military division.
Apparently around January 2010, Lair was investigating a complaint that an employee Jensen 25
had filed with the human resources department alleging an improper evaluation that Jensen had
received and that resulted in a pay reduction. John Young was believed to have been present
at a meeting between Jensen and his supervisor, during which meeting Jensen claimed to have
been promised a raise by his supervisor. Lair testified that she interviewed Young regarding
Jensen’s complaint. Counsel for the General Counsel asked Lair whether “during your 30
investigation, you had told Mr. Young not to discuss what was said between you and he,
correct?” Lair responded, “I don’t remember telling him that during our conversation, no.” After
some further dialog, counsel’s follow up question was, “So it would have been your practice to
have told Mr. Young during this meeting with him to keep what was said between you and he
confidential, correct?” Lair responded, “Correct.” 35
Lair also testified that Young was no longer employed at the University, having been
terminated. Young filed his own complaint with human resources regarding his termination.
Lair investigated that complaint and interviewed Young apparently around March of 2010.
According to Lair, her interview with Young involved whether Young had had a physically 40
altercation with, or improperly touched, another employee. Counsel for the General Counsel
asked Lair, “And, before the meeting ended, you had told Mr. Young not to talk about what was
said between you and he with anyone, correct?” Lair responded, “I don’t remember that.”
Counsel followed up with, “But this was an investigation that eventually led to Mr. Young’s
termination, correct?” Lair said, “Correct.” Counsel then asked, “And, certainly, when you’re 45
investigating an allegation that could lead to termination, you want your investigation to be
confidential, correct.” In response, Lair said, “Correct.”

21 In response to a question from the undersigned, counsel for the General Counsel
indicated that the testimony from Lair involving Young was intended to support complaint
paragraphs 4(e)(1) and (2), and (4)(f)(1) and (2).
JD(SF)-42-11
27
As I indicated above, counsel for the General Counsel offered no other evidence of any
kind, documentary or testimonial, to support these specific complaint allegations.
III. Legal Analysis and Conclusions5
A. Written Rules
In paragraph 4(b) of the complaint, the General Counsel sets out the Respondent’s
written Electronic Communications Policy, which regulates employee usage of the Employer’s 10
email system, among other things. This policy is outlined in the Human Resources Policies and
Procedures manual under the subsection for compliance, which has been in effect since
November 1, 2008. (G.C. Ex. 5.) The General Counsel alleges in paragraph 5 of the complaint
that by its conduct in maintaining the Electronic Communications Policy, the Respondent is in
violation of Section 8(a)(1) of the Act. However, neither in his post-hearing brief, nor during the 15
hearing did counsel for the General Counsel ever specify in what way the mere existence or
maintenance of the rule as written was unlawful. Counsel for the General Counsel did contend
that the application of the rule was discriminatory and, thus, unlawful, as allegedly the
Respondent applied it disparately in order to preclude protected concerted activity. However,
regarding its mere existence or maintenance, I am left to ponder this issue without a clear 20
position from the General Counsel.
Earlier in this decision I set forth in detail the language of the rule in question. In
considering that rule, which is clearly designed on its face to limit the use of the Respondent’s
electronic communications system to university business only, the following clause seems 25
questionable: “Email should be used for the purpose of University business. Inappropriate use
includes, but is not limited to the following: Emails considered discriminatory or harassing in
nature….” (G.C. Ex. 5.)
It was the testimony of numerous witnesses that the University’s email system was in 30
fact frequently and regularly used by employees for personal matters unrelated to university
business. The Respondent did not seriously challenge this testimony. In fact, there was
evidence in the record that employees who management felt had abused the privilege of using
the email system for personal use were told that because of their abuse they would no longer be
permitted to use the system for personal communication. Therefore, as the email system was in 35
fact used by employees for matters unrelated to university business, the question before me is
whether the language above is on its face unlawful.
In determining whether the existence of specific work rules violates Section 8(a)(1) of the
Act, the Board has held that, “the appropriate inquiry is whether the rules would reasonably tend 40
to chill employees in the exercise of their Section 7 rights” Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir, 1999). Further, where the rules are likely to have a
chilling effect on Section 7 rights, “the Board may conclude that their maintenance is an unfair
labor practice, even absent evidence of enforcement.” Id. See also, Blue Cross-Blue Shield of
Alabama, 225 NLRB 1217, 1220 (1976).45
The Board has further refined the above standard in Lutheran Heritage Village-Livonia,
343 NLRB 646, 646 (2004), by creating a two-step inquiry for determining whether the
maintenance of a rule violates the Act. First, if the rule expressly restricts Section 7 activity, it is
clearly unlawful. If the rule does not, it will nonetheless violate the Act upon a showing that : “(1) 50
employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id. at 647; See Northeastern Land Services, Ltd., 352 NLRB 744
JD(SF)-42-11
28
(2009) (applying the Board’s standard in Lutheran Heritage Village, supra at 647.)
Regarding the clause at issue before me, the Respondent’s rule that inappropriate use
of the University’s email system includes those emails considered “discriminatory or harassing 5
in nature” does clearly not restrict activity protected by Section 7. Moreover, there is no
evidence that that specific language in the rule was promulgated in response to protected
concerted activity, or as written was applied to restrict the exercise of Section 7 activity.
Accordingly, the only question remaining is whether the Respondent’s employees would
reasonably construe the rule to prohibit Section 7 activity. I think not.10
The terms “discriminatory” and “harassing” are not difficult to understand. Those terms
are not ambiguous or confusing. The average person should certainly understand them, and
would know that sending messages that are discriminatory or harassing should be avoided. I
see no reason why any reasonable employees would consider that concerted conduct involving 15
their terms and conditions of employment would be viewed by management to be discriminatory
or harassing. Therefore, I do not believe that any of the written language as contained in the
Respondent’s Electronic Communications Policy would chill employee Section 7 activity.
Accordingly, I find that on its face and as promulgated by the Respondent, that policy, as set
forth in paragraph 4(b) of the complaint, does not, per se, violate Section 8(a)(1) of the Act.20
However, there remains one further issue regarding the whole of the Respondent’s
Electronic Communication Policy that must be considered, that being its application, and
whether it is being discriminatorily applied. In paragraphs 4(k) and (5) of the complaint, it is
alleged that on February 23, 2010, at her termination interview, Shelly Campbell was informed 25
by human resources manager Linda Lair and enrollment counselor Rosa that counselors are not
allowed to ever send out non-business related emails.22 However, according Campbell’s
unrebutted testimony, it was enrollment counselor Rosa who made the statement and not Lair.
In any event, the issue of a January 20, 2010, email that Campbell had received from another
counselor and then forwarded to a student and fellow counselors was one of the issues raised 30
at her termination interview.23
The author of the email was ridiculing the Respondent’s recently announced policy
change regarding international leads. This policy change was a source of concern to the grad
team counselors who did not like having to surrender to other counselor teams leads involving 35
international students. Campbell had merely passed the mocking email on to fellow grad team
members, and also had inadvertently sent it on to a student. Campbell’s Termination Request
form makes mention of this incident (G.C. Ex. 7.), and as testified to by Campbell, it was
brought up during the termination interview.
40
As I have noted, numerous witnesses testified that employees with regularity used the
Respondent’s email system not only for business purposes, but also for personal reasons. I find
Campbell’s unrebutted testimony credible that Rosa said to her on February 23, 2010 that
“[counselors are] not allowed to ever send out non-business related emails,” when referencing
her January 20, 2010 forwarding of the email ridiculing the Respondent’s lead policy for 45
international students. Therefore, I must conclude that the Respondent was disparately
applying its Electronic Communications Policy to prohibit employee emails that related to the
Respondent’s policy on leads. The concerns that the grad team counselors frequently shared
with each other regarding leads in general, and in this instance specifically leads for

22 At the hearing the complaint was amended to add Rosa’s name to this paragraph.
23 The question of Campbell’s discharged will be discussed in detail later in this decision.
JD(SF)-42-11
29
international students, clearly involved wages and working conditions, and, as such, constituted
protected concerted activity.
Accordingly, I find that the Respondent’s conduct, by Rosa’s statement, on February 23, 5
2010, constituted an unlawful disparate application and enforcement of the Electronic
Communications Policy. I, therefore, conclude that it was in violation of Section 8(a)(1) of the
Act, as alleged in complaint paragraphs 4(k) and 5.
Complaint paragraph 4(c) alleges that the following language maintained in the 10
Respondent’s Employee Counseling Statement is overly-broad and discriminatory: “Although I
understand that I may discuss this plan with my management team, I agree that this coaching &
counseling statement is considered extremely confidential and may not be discussed with any
other current or former employees of Grand Canyon University, its constituents, vendors, or
contractors, without prior written notice to and approval from Human Resources.” The evidence 15
is undisputed that such language appears in the Respondent’s Employee Counseling
Statement, directly above the line on which a counseled employee signs his/her name. (G.C.
Ex. 14.)
The Board has held that “confidentially” rules, which expressly prohibit employees from 20
discussing among themselves, or sharing with others, information relating to wages, hours, or
working conditions, or other terms and conditions of employment, restrain and coerce
employees in violation of Section 8(a)(1) of the Act, regardless of whether the rule was
unlawfully motivated, or even enforced. See Lutheran Heritage Village-Livonia, supra; Double
Eagle Hotel & Casino, 341 NLRB 112, 115 (2004) (handbook provision a violation on its face 25
where confidential information is defined as “wages and working conditions such as disciplinary
information, grievance/complaint information, performance evaluations [and] salary
information”); Flamingo Hilton-Laughlin, 330 NLRB 287, 288 fn.3, 291 (1999) (handbook
provision prohibiting employees from disclosing “confidential information regarding…fellow
employees” a violation.) 30
In some circumstances, an employer may require that employees questioned during an
investigatory interview keep the matters discussed confidential, where the provision is limited in
duration to the period of the investigation and is necessary in order to maintain the integrity of
the investigation. In Desert Palace, Inc., d/b/a Caesar’s Palace, 336 NLRB 271 (2001), the 35
Board reversed an administrative law judge and found that the employer’s need to maintain the
confidentiality of an on-going drug investigation was a “substantial business justification” that
justified the intrusion on its employees’ exercise of Section 7 rights. However, the Board
reached a different conclusion in Phoenix Transit Systems, 337 NLRB 510 (2002), finding in
agreement with the administrative law judge that the employer violated the Act by maintaining a 40
confidentiality rule prohibiting employees from discussing their sexual harassment complaints
among themselves. In reading these cases and their progeny, it seems to me that the Board is
attempting to strike a balance between the employees’ Section 7 right to discuss among
themselves their terms and conditions of employment, and the right of an employer under
certain limited circumstances to demand confidentiality. The burden is clearly with an employer 45
to demonstrate that a legitimate and substantial justification exists for a rule that adversely
impacts on employee Section 7 rights. In any event, there is no credible or probative evidence
in the matter at hand that the Respondent ever limited the time period or scope of its
confidentiality rules, whether written or oral. Nor has the Respondent established a legitimate
justification for such a policy. 50
In the matter before me, the wording in the Employee Counseling Statement is clear and
unambiguous. It states that the issues raised in the counseling session are “considered
JD(SF)-42-11
30
extremely confidential,” and prohibits the counseled employee from discussing the counseling
with, among others, “current or former employees of Grand Canyon University.” As the cited
case law shows, the Board has found such confidentiality provisions to be unlawful. Employees
have the right under the Act to communicate with fellow employees, past and present, as well 5
as with other individuals concerns that they have about wages, hours, and working conditions.
Those include issues related to disciplinary actions, including the counseling of employees.
Employees engaged in such conversations are involved in the most basic form of concerted
activity, which is protected under the Act.
10
As a restriction on employees’ Section 7 activity, the Respondent’s confidentiality clause
in the Employee Counseling Statement is on its face a per se violation of the Act. Accordingly, I
find that the Respondent has violated Section 8(a)(1) of the Act, as alleged in complaint
paragraphs 4(c) and 5.
15
B. Oral Promulgation of Rules, Threats, and Interrogation
As was discussed in detail earlier in this decision, on December 16, 2009, enrollment
counselor Shelly Campbell was counseled by supervisors Boeder and Schnell. This counseling 20
session primarily dealt with a phone conversation between Campbell and a prospective student
occurring on December 2. According to Campbell’s unrebutted and credible testimony, at the
end of the counseling session both Boeder and Schnell cautioned her not to discuss with
anyone the alleged infractions of the Respondent’s policies that the mangers had raised with
her. Ultimately on December 30, 2009, Campbell was given a written Employee Counseling 25
Statement to sign that contained the exact confidentiality language, which I concluded above
constituted a per se violation of the ACT. (G.C. Ex. 6)
It is alleged in paragraphs 4(d) and 5 of the complaint that on December 30, 2009,24 the
Respondent, by Sara Boeder, orally promulgated and has since maintained an overly-broad and 30
discriminatory rule prohibiting employees from talking to each other about their terms and
conditions of employment, including counseling about quality assurance issues, in violation of
the Act. From the record evidence, it appears that this admonition to Campbell came from both
Boeder and Schnell and actually occurred at the counseling session on December 16, 2009. In
any event, as I have indicated above, such a warning or statement, whether written or oral 35
requiring employees to keep confidential and not discuss with others the substance of a
counseling sessions is an unlawful restriction on the Section 7 rights of employees to engage in
the concerted activity of having such discussions. It is axiomatic that the right of employees to
discuss their wages, hours, and working conditions, including those matters discussed at a
counseling session, is protected under the Act.40
By the actions of the Respondent through its managers’ oral statements on December
16, 2009, it was promulgating an unlawful rule prohibiting employees from talking with each
other regarding their terms and conditions of employment. I find such conduct, as alleged in
complaint paragraphs 4(d) and 5, to constitute a violation of Section 8(a)(1) of the Act. 45
The complaint alleges in paragraphs 4(e) and 4(f), and their respective subparagraphs,
that Linda Lair, on behalf of the Respondent, promulgated unlawful rules and threatened
employees with unspecified reprisals regarding their protected concerted activity. These

24 At the hearing, counsel for the General Counsel was permitted to amend the complaint to
reflect this date.
JD(SF)-42-11
31
allegations all involve Charging Party John Young, a former employee of the Respondent.
However, as I noted earlier, Young did not testify as a witness in this case, and counsel for the
General Counsel never offered an explanation as to why that was so. In fact, the only evidence
offered by the General Counsel in support of the allegations involving Young was the testimony 5
of human resource manager and admitted supervisor Lair. Earlier in the fact section of this
decision, I set forth in detail Lair’s testimony.
Regarding the allegation in complaint paragraph 4(e)(1) that in January 2010 Lair orally
promulgated an overly-broad and discriminatory rule prohibiting its employees from discussing 10
terms and conditions of employment with each other, counsel for the General Counsel
questioned Lair about an interview that she conducted with Young at around that time. Counsel
asked Lair if she had told Young during this meeting not to discuss what was said between the
two of them. However, Lair responded, “I don’t remember telling him that during our
conversation, no.” Subsequently, counsel asked the follow up question, “So it would have been 15
your practice to have told Mr. Young during this meeting with him to keep what was said
between you and he confidential, correct?” Lair responded, “Correct.”
Similarly, the complaint alleges in paragraph 4(f)(1) that on March 3, 2010, Lair orally
promulgated an overly-broad and discriminatory rule prohibiting its employees from discussing 20
their terms and conditions of employment with each other. Counsel for the General Counsel
questioned Lair about an interview that she had with Young around that date, and counsel
asked Lair, “And, before the meeting ended, you had told Mr. Young not to talk about what was
said between you and he with anyone, correct?” Lair responded, “I don’t remember that.”
Counsel followed up with, “But this was an investigation that eventually led to Mr. Young’s 25
termination, correct?” Lair said, “Correct.” Counsel then asked, “And certainly, when you’re
investigating an allegation that could lead to termination, you want your investigation to be
confidential, correct?” In response, Lair said, “Correct.”
In my view, counsel for the General Counsel failed to meet his burden of proof to 30
establish the allegations set forth in complaint paragraphs 4(e)(1) and 4(f)(1). All Lair did in
response to counsel’s questions was to acknowledge what her past practice had been. She
specifically denied having any remembrance of telling Young that he was not to discuss the
maters raised in the interviews with anyone else. Lair’s past practice is immaterial. What
matters is what she actually told Young. According to Lair she could not remember. As there 35
was absolutely no evidence to the contrary, I credit Lair’s testimony.
Accordingly, counsel for the General Counsel has offered no evidence, probative or
otherwise, to establish that Lair made the two alleged statements orally promulgating an
unlawful rule. Therefore, the General Counsel having failed to meet his burden of proof, I shall 40
recommend to the Board that complaint paragraph allegations 4(e)(1) and 4(f)(1) be dismissed.
In complaint paragraphs 4(e)(2) and 4(f)(2), the General Counsel alleges that Lair in
January 2010 and on March 3, 2010 threatened its employees with unspecified reprisals
because they engaged in concerted activities. During the trial, the undersigned asked counsel 45
for the General Counsel to identify the employees allegedly threatened by Lair. Counsel
indicated John Young was the employee allegedly threatened in complaint paragraphs 4(e) and
4(f) and all their respective subparagraphs.
In any event, so far as I can tell, no evidence of any kind was offered by counsel for the 50
General Counsel to establish that Linda Lair had threatened Young with any form of reprisals.
Young did not testify and Lair was not questioned about, and did not testify to, making any such
JD(SF)-42-11
32
threats. Further, in his post-hearing brief, counsel for the General Counsel is silent regarding
these allegations.
Accordingly, I conclude that the General Counsel has failed to meet his burden of proof. 5
Therefore, I recommend to the Board that the allegations in complaint paragraph 4(e)(2) and
4(f)(2) be dismissed.
It is alleged in complaint paragraph 4(g) and its subparagraphs that on April 29, 2010,
the Respondent, through it enrollment counselor manager and admitted supervisor Ellen Rosa, 10
interrogated employees about their involvement with emails criticizing the Respondent and its
policies; orally promulgated an unlawful rule prohibiting employees from discussing their terms
and conditions of employment; and threatened its employees with discharge and other
unspecified reprisals because they engaged in concerted activities. These allegations center
around a number of individual conversations that Rosa allegedly had with some members of the 15
grad team, as well as at a meeting with the team as a whole.
As I noted earlier in this decision, in late April 2010, an employee apparently sent an
email to co-workers over the Respondent’s email system criticizing supervisors Chanelle Ison
and Chris Landauer. Gloria Johnson testified that at some point in late April, Ellen Rosa, the 20
grad team enrollment counselor manager, approached her privately regarding the email that
criticized Ison and Landauer. Rosa allegedly asked Johnson whether she had received this
email. Johnson replied that she had received no such email. According to Johnson’s
testimony, Rosa admonished her that, “if I get the email, delete it and not read it,” and that
“whoever sent the email would be terminated,” and that “if anybody else is caught forwarding 25
the email, they would be terminated.” Johnson also testified that later that same day, Rosa
called a team meeting and relayed to the entire team that same information about the email that
she had given earlier to Johnson.
Edmond Bardwell also recalled Rosa talking with the grad team employees about this30
email criticizing Ison and Landauer. He testified that she told the counselors, “They’re firing
individuals for forwarding this email. If you get this email, you better delete it.” Bardwell claims
that Rosa also asked him specifically whether he had received the email, to which he responded
that he had not. Allegedly she told him individually that if he gets the email to delete it, or he
might get fired.35
In his post-hearing brief, counsel for the Respondent argues that there is no evidence
that the email in question that criticized the two supervisors even mentioned any of the terms
and conditions of employment of the enrollment counselors. However, it is axiomatic that
employees who discuss among themselves their supervisors in a critical way, or otherwise, are 40
engaged in protected concerted activity. Clearly Rosa was upset about this email, which had
apparently been forwarded by certain counselors. She meant to put a stop to counselors using
the University’s email system to pass the message around, and she, in no uncertain terms,
warned the counselors that they might be fired for continuing to do so.
45
The Board looks to the “totality of the circumstances” in determining whether a
supervisor’s questions to an employee about suspected protected activity were coercive under
the Act. Rossmore House, 269 NLRB 1176 (1984), aff’d. sub nom. HERE Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). In Westwood Health Care Center, 330 NLRB 935 (2000), the
Board listed a number of factors considered in determining whether alleged interrogations under 50
Rossmore House were coercive. These are referred to as “Bourne factors,” so named because
they were first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2nd Cir. 1964). These factors
include the background of the parties’ relationship, the nature of the information sought, the
JD(SF)-42-11
33
identity of the questioner, the place and method of interrogation, and the truthfulness of the
reply.
In my view, supervisor Rosa unlawfully interrogated Johnson and Bardwell on April 29 5
when she questioned them about whether they had received a copy of the email critical of Ison
and Landauer. She was their immediate supervisor, she questioned them individually, and she
threatened them with possible termination if they read the email or forwarded it on to fellow
counselors. Certainly her comments were coercive under existing Board law and would have
reasonably chilled employees in the exercise of their Section 7 rights. Accordingly, I conclude 10
that the Respondent, by the statements of Ellen Rosa, interrogated its employees on April 30,
2010, regarding their protected concerted activity. I find that such conduct constitutes a
violation of Section 8(a)(1) of the Act, as alleged in complaint paragraph 4(g)(1).
Further, I conclude that Rosa’s statements made to Johnson and Bardwell individually, 15
and to the members of the grad team as a whole, that they could not read or forward the emails
in question constituted the orally promulgation of an overly-broad and discriminatory rule
prohibiting employees from using the Respondent’s email system to criticize the Respondent’s
supervisors, a form of protected concerted activity. As I previously concluded above, the
University’s email system was generally available for employees to use for personal matters, as 20
well as for University business. This was true despite the language in the Electronic
Communication Policy limiting email “for the purpose of University business.”
Having generally allowed, through custom and practice, employees to use the
Respondent’s email system for personal matters, the Respondent cannot lawfully prohibit 25
employees from using the system to engage in protected concerted activity. This conduct by
the Respondent is an attempt to restrict the exercise of Section 7 rights. Such an application of
its rule is discriminatory and unlawful. Lutheran Heritage Village-Livonia, supra at 647;
Northeastern Land Services, Ltd., supra. Accordingly, I conclude that by the conduct of Rosa
on April 30, 2010, the Respondent has orally promulgated an unlawful rule restricting protected 30
concerted activity in violation of Section 8(a)(1) of the Act, as alleged in complaint paragraph
4(g)(2).
Additionally, I believe that Rosa’s statements to Johnson, Bardwell, and the grad team
members as a whole, constituted a threat of discharge because they engaged in or may engage 35
in protected concerted activity. She none too subtilely told them that if they received the email
and read it, or forwarded it on to another enrollment counselor that they would be terminated.
As I have determined that the enrollment counselors who read and/or passed on the email
critical of the supervisors where engaged in protected concerted activity, a threat of termination
would obviously chill their exercise of Section 7 rights. 40
Accordingly, I conclude that the Respondent, by Rosa’s statements on April 29, 2010,
unlawfully threatened employees with discharge for engaging in protected concerted activity.
Therefore, I find that the Respondent has violated Section 8(a)(1) of the Act, as alleged in
complaint paragraph 4(g)(3).45
As discussed in detail earlier in this decision, in mid-April 2010, associate vice-president
Ison had a meeting with the grad team members to discuss the recurring complaints and issues
that those enrollment counselors had with the University. When testifying, Ison referred to such
meetings as “Start, Stop, and Continue.” The principal frustration that was raised by the 50
counselors was the perennial issue of poor quality leads. Ison indicated that she understood
their complaint and was doing what she could to get the team better leads. Also during the
meeting, Bardwell proposed the idea for a “peer review” from the enrollment counselors for their
JD(SF)-42-11
34
managers. Ison asked Bardwell to work on producing some sort of questionnaire. He
subsequently prepared such a form and gave it to Ison to review.
There was a follow up meeting between Ison and the grad team in either late April or 5
early May 2010. During that meeting, they discussed Bardwell’s earlier suggestion regarding a
peer review process for managers. However, Ison indicated that a decision had been made not
to implement such a peer review for managers. Bardwell voiced his displeasure with the
decision, stating that it was crucial for the grad team to have a survey of managers because it
would help improve moral. Bardwell testified that after the meeting, Ison approached him at his 10
desk. As the two were walking down the stairs leaving for the day, Ison said that she was
concerned because during the meeting he been upset with her and had spoken to her in a
“disrespectful” way. Bardwell replied that he was not trying to be disrespectful, and thought the
meeting was “an open forum.” That was the extent of the conversation.
15
It is alleged by the General Counsel in complaint paragraph 4(h)(1) and (2) that in late
April Ison threatened employees with unspecified reprisals because they engaged in concerted
activities and also threatened employees by informing them that their concerted activities were
disrespectful to the Respondent. It is apparent from counsel for the General Counsel’s post-
hearing brief that this allegation involves the discussion between Ison and Bardwell when she 20
told him as they were leaving for the day that he had been disrespectful towards her in arguing
that the peer review survey was necessary for counselor moral. However, in my view, this
conversation certainly does not rise to the level of an unfair labor practice.
Apparently Bardwell had gotten a little loud and insistent in his reaction to the 25
University’s decision not to institute a peer review survey for managers, which survey he had
originally suggested. Subsequently, Ison merely mentioned to Bardwell that she thought his
reaction had been disrespectful towards her. There is no allegation that she said anything else.
Certainly no reasonable person would consider Ison’s comment threatening or believe that she
was considering taking some adverse action because of employees having engaged in 30
protected concerted activity.
Bardwell had suggested a peer review survey for managers. In an email shortly
thereafter, Ison had thanked Bardwell for his efforts. (G.C. Ex. 9.) However, the University
rejected his idea, and he was somewhat upset with that rejection and showed it by his reaction 35
towards Ison, who was the messenger. She subsequently told him that he had acted
disrespectfully towards her. That was the end of the matter. There is no reason to make a
“Federal case” out of this. No threats were made or implied to take any adverse action against
Bardwell. There is no unfair labor practice here. Accordingly, I recommend to the Board that
complaint paragraph 4(h)(1) and (2) be dismissed.40
Complaint paragraph 4(i)(1) and (2) alleges that in late May or early June 2010, Rhonda
Pigati interrogated employees about their concerted activities, and orally promulgated an overly-
broad and discriminatory rule prohibiting its employees from discussing their terms and
conditions of employment with each other. Pigati was a human resource manager and admitted 45
supervisor.
She testified that as part of her job duties she had listened to the complaints of a number
of counselors from the grad team, and in the second week of June 2010, she held a number of
private one-on-one meetings in her office with some members of the grad team to discuss the 50
concerns raised by team counselors. Pigati acknowledged that prior to questioning each
counselor she did not inform them that their participation was voluntary, or that there would be
no reprisals for refusing to cooperate. While Pigati testified that she did not inform the
JD(SF)-42-11
35
counselors specifically regarding the purpose for the meetings, it is apparent from the employee
interview notes that she took, that Pigati wanted to get the employees’ evaluation of team
supervisor Ellen Rosa and of her leadership abilities, as well as to determine the level of team
moral. (G.C. Ex. 32-37.) 5
According to Gloria Johnson, when she first sat down for the meeting with Pigati, she
was told by Pigati that Pigati “was meeting with everyone on the team and that whatever we
talked about in that office, to keep it confidential.” Pigati proceeded to ask Johnson what she
thought about Ellen Rosa as a manager. Johnson indicated that Rosa was trying her best, but 10
had not been given “a fair chance to even learn, you know, be a manager,” and that Johnson
“thought that [Rosa] was doing her best…with what she had.” Further, Johnson volunteered to
Pigati that “some of the other people had come to me and complain[ed] about [Rosa] as a
manager.” Pigati asked who these people were, and Johnson mentioned “Minal and Ed
Bardwell…and Becca Garrett.” According to Johnson, Pigati took notes on her computer 15
documenting Johnson’s answers. Johnson also testified that as she was leaving the interview,
Pigati reiterated that she “will be contacting everybody else and just keep this, you know, don’t
talk to anybody else on the team.” It is important to note, that Johnson did not indicated that
she felt uneasy, frightened, or apprehensive in meeting with Pigati and answering her questions.
20
I do not believe that Pagiti’s questioning of Johnson constituted unlawful interrogation.
While Pigati did not specifically tell Johnson the purpose for the meeting, it should have been
immediately obvious to her that the intent of the meeting was to let management know what
kind of a job Rosa was doing as a supervisor. While Rosa was Johnson’s immediate
supervisor, Pigati was a human resource manager, and did not directly supervise Johnson. The 25
meeting was apparently rather routine, non-confrontational, and with no tension or animosity.
Plus, Johnson had volunteered to Pigati that other counselors had come to Johnson and
complained about Rosa. It was only then that Pigati asked for the names of those counselors.
Johnson appeared to have no reluctance in giving those names to Pigati, and there was no
reason to believe that Pigati wanted the names for any nefarious purpose. Pigati was simply 30
trying to determine how the employees felt about Rosa as a manager.
Under these particular circumstances, I do not find that Pagiti’s questioning of Johnson
constituted unlawful interrogation. Rossmore House, supra; Westwood Health Care Center,
supra. Accordingly, I shall recommend to the Board that the allegation in complaint paragraph 35
4(i)(1) be dismissed.
Regarding Pagiti’s admonitions to Johnson that she not talk with the other team
members about the substance of their meeting, I have already found that such requests to keep
confidential matters talked about with management, involving employees’ wages, hours, and 40
working conditions, are unlawful, without a legitimate business justification. In this instance, the
Respondent has not offered any justification supporting a requirement that employees not
discuss such matters with each other. Pigati's oral prohibition constitutes an unlawful restraint
on the rights of employees to engage in Section 7 activity. Johnson had the right, had she
chosen to do so, to have conversations with other counselors about management’s apparent 45
concerns over Rosa’s supervisory performance. These matters involve employee working
conditions, and the Respondent cannot lawful restrict such basic protected concerted activity.
Lutheran Heritage Village-Livonia, supra; Double Eagle Hotel & Casino, supra; Flamingo Hilton
Laughlin, supra; Phoenix Transit Systems, supra.
50
Accordingly, I find that the Respondent, through Pigati’s oral statements, has unlawfully
promulgated a rule prohibiting employees from discussing their terms and conditions of
JD(SF)-42-11
36
employment in violation of Section 8(a)(1) of the Act, as alleged in paragraph 4(i)(2) of the
complaint.
The General Counsel alleges in complaint paragraph 4(j)(1) and (2) that in July 2010, 5
the Respondent, through Chanelle Ison, threatened employees with unspecified reprisals and
informed them that they were disrespectful, all because they had engaged in concerted
activities. In his post-hearing brief, counsel for the General Counsel indicates that this
allegation is related to a meeting that Ison had with the grad team in July and an argument that
she had with Bardwell at that meeting.10
As I noted earlier, Ison and Nicolette Boessling, director of enrollment, met with the grad
team in July 2010. During the meeting, Ison gave the team the bad news that the quotas could
not be changed, and that they would not be able to get additional degree programs to
supplement the existing ones they had in criminal justice and Christian studies. Also during the 15
meeting, Ison informed the team of a new scheduling policy where one or two members of the
team would need to cover late night shift hours every evening during the week. Some
members of the team indicated their opposition to working any late shifts at all, but Ison stated
that if team members did not volunteer for such shifts, then the shifts would simply be assigned.
Johnson suggested a modified night shift system, whereby the team members could split up the 20
night shifts, so that no team member would need to work the night shift more than 2-3 days a
week. However, Ison denied this suggestion out of hand.
Apparently the discussion became somewhat heated. Bardwell, who had indicated
along with several other employees that they were unable to work the night shift, voiced his 25
displeasure with Ison’s adamant refusal to allow the team from trying to split up the schedules.
He said, “Why can’t we do that if this is our meeting and we’re getting the shift covered. Why
can’t we do that?” According to Bardwell, “We went back and forth and everyone looked at me
and her. Me and Chanelle [Ison] went back and forth and we just kind of diffused it a little bit.
And, she made the final decision that we could not do that.” While Bardwell testified that he was 30
the “most vocal” of the enrollment counselors about not being able to work a night shift, he
admits that others “did voice their opinions as well.” Although he testified that he could not
recall specifically which counselors were vocal at the meeting, he acknowledged that,
“Everyone, you know, started chiming in. So it was a barrage of individuals that went back and
forth.” Ison did not testify at length about the meeting, but did say that Bardwell was being “loud 35
and inappropriate.”
According to Bardwell, later that day he spoke with Nicolette Boessling privately. He told
her that despite being very vocal at the meeting, “My intentions were all good. They were not
anything beyond that.” Boessling said, “Okay, no problem.” However, I do think that it is 40
revealing that Bardwell felt it necessary to explain his motives and actions to Boessling, perhaps
because he himself thought that he had crossed the line of proper work place decorum.
Bardwell also went to Ison’s office and met with her privately. He testified that he told
her that he did not want her “to get the wrong impression,” and that his “intentions were good.” 45
Once again, I think that it is revealing that Bardwell felt it necessary, on his own volition, to seek
out a supervisor to explain his actions and demeanor at the just concluded meeting.
According to Bardwell, he mentioned the suggestion that the team members split up the
night shifts, and that he felt as long as they got the shifts covered, that should be adequate. 50
However, he claims that Ison said that she thought he had acted “a little disrespectful because
this is the second time it’s happened.” Bardwell replied that, “I’m not trying to be disrespectful or
anything. I’m just here to let you know that I’m not trying to do anything beyond being a good
JD(SF)-42-11
37
person and being a good employee.” He testified that before his meeting with Ison ended, she
mentioned that the grad team was “the most opinionated team, kind of like a hard case or a
hard chip.” He says that was the end of the conversation.
5
Ison’s impression of the meeting was a little different. She testified that when Bardwell
came into her office, “he was still pretty upset.” He closed the door, and “he was really loud and
he was really frustrated.” She said that “this was not uncommon for Ed to be very vocal…he
has a booming voice…especially when he’s passionate about something…and it’s not an
uncommon conversation for Ed and I to have to say whoa, this is a little bit disrespectful.” Ison 10
further testified that “[Ed] would always say I have a loud voice… I don’t mean it to be
disrespectful.” She testified that she “sincerely believes that Ed did not mean to come across
that way, which is why [she has] never disciplined him for that.” In any event, according to Ison,
“The whole conversation ended up being just fine, and even ended up in Ed apologizing if he
came across as being disrespectful.” 15
It should be noted that when he testified, Ray Akers mentioned an incident, for which he
did not give a date, when Bardwell was in Ison’s office, and her administrative assistant was
concerned about the loud voices in Ison’s office and asked Akers to stand by Ison’s door. He
testified that he “stood by the door in case Chanelle [Ison] or someone needed help.” The 20
implication being that this incident was the same one that both Bardwell and Ison testified about.
In any event, Akers’ intervention was not needed.
Counsel for the General Counsel argues in his brief that the situation at hand is
analogous to those involving an employer making statements that equate union activity or 25
concerted activity with disloyalty to the employer. Some such cases have found implicit threats
of repercussions for union loyalty, as opposed to company loyalty. However, I do not believe
the matter before me is analogous to those situations and, therefore, I do not believe the cited
cases are on point.25
30
I do not believe that the statements made by Ison that Bardwell had exhibited disrespect
for her or that the grad team was opinionated were intended to be a reflection on Bardwell’s or
other team members’ protected concerted activity. There is no question that the various
members of the grad team had for an extended period of time complained amongst themselves
and to a myriad of supervisors, including Ison, about their unhappiness with the quality of their 35
leads, the quotas they needed to meet, and related matters. These were terms and conditions
of employment, and certainly the various grad team members were engaged in protected
concerted activity when they complained about such matters. Efforts were made by Ison and
several enrollment counselor mangers to address those complaints and explain management’s
decisions, even though the complaints remained largely unremedied.40
There was no credible evidence that Ison harbored any animosity towards the grad team
because its members were vocal and active in registering their complaints. Certainly Ison’s
description of the grad team as opinionated was accurate, and would have come as no surprise
to anyone who was familiar with the issue of poor quality leads and other complaints that the 45

25 Rock Valley Trucking Co., 350 NLRB No. 10 fn. 6 (2007)(“It is well settled that an
employer’s reference to an employee’s ‘attitude’ can be a disguised reference to the employee’s
protected concerted activity.”); Boddy Construction Co., 338 NLRB 1083 (2003) (“[E]mployer
complaints about ‘bad attitude’ are often euphemisms for prounion sentiments, particularly
where there is no alternative explanation for the perceived ‘attitude’ problems.”) (citing James
Julian, Inc. of Delaware, 325 NLRB 1109 (1998)).
JD(SF)-42-11
38
grad team had made. I do not think that it is a pejorative to refer to the grad team as
“opinionated” or even as a “hard case,” and I do not believe that it is a euphemism for disloyal or
that it constitutes an implied threat of some unspecified reprisal.
5
Further, there is no contention that Bardwell was told that his conduct at the meeting
was disrespectful until he initiated contact and approached Ison in her office in an obvious
attempt to apologize. When agitated or upset, which Bardwell clearly was with the prospect of
having to work a late shift, he apparently tended to get animated and loud. This had happened
before, and Ison testified that she understood that Bardwell did not intend to be disrespectful, 10
even though there was the appearance of such. Further, she credibly testified that she did not
intend to take any adverse employment action against him for this conduct, because she
understood his intent was not improper. The meeting was held in July 2010 and there was no
adverse employment action taken against Bardwell until his termination in September of 2010. I
will have much more to say regarding his termination later in this decision, but at this point it is 15
sufficient to say that I do not find that termination was based in whole or in part on Ison’s
statement that Bardwell had been disrespectful.
Accordingly, based on the above, I shall recommend to the Board that the allegations in
complaint paragraph 4(j)(1) and (2) be dismissed. 20
C. Protected Concerted Activity
Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or
assist labor organizations…and to engage in other concerted activities for the purpose of 25
collective bargaining or other mutual aid or protection….” Employees are engaged in protected
concerted activities when they act in concert with other employees to improve their working
conditions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB v. Washington Aluminum Co.,
370 U.S. 9, 14 (1962). An employer may not retaliate against an employee for exercising the
right to engage in protected concerted activity. Triangle Electric Co., 335 NLRB 1037, 1038 30
(2001); Meyers Industries, 268 NLRB 493, 479 (1984). An employer violates Section 8(a)(1) of
the Act when it discharges an employee, or takes some other adverse employment action
against him, for engaging in protected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975).
35
The Board, with court approval, has construed the term “concerted activities” to include
“those circumstances where individual employees seek to initiate or to induce or to prepare for
group action, as well as individual employees bringing truly group complaints to the attention of
management.” Meyers Industries, Inc., 281 NLRB 882 (1986), affirmed 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988); See Mushroom Transportation Co, v. NLRB, 330 40
F.2d 683, 685 (3rd Cir. 1964) (observing that “a conversation may constitute a concerted activity
although it involves only a speaker and a listener” if “it was engaged in with the object of
initiating or inducing or preparing for group action or…it had some relation to group action in the
interest of employees”) See also NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831
(1984) (affirming the Board’s power to protect certain individual activities and citing as an 45
example “the lone employee” who “intends to induce group activity”).
In the matter before me, there can be no doubt that enrollment counselors Edmond
Bardwell, Shelly Campbell, and Gloria Johnson all engaged in protected concerted activities.
As members of the grad team, they frequently discussed among themselves and with other 50
members of the team their concerns and complaints about the quality of leads they were
receiving, about the lack of sufficient degree programs in which to enroll students, about
unreasonable quotas, and other subjects. They also brought such complaints directly to the
JD(SF)-42-11
39
attention of management when they complained over the course of time to supervisors Chanelle
Ison, Ray Akers, Ellen Rosa, Helen Schnell, and others. Further, based on the evidence, it is
reasonable to conclude that management knew that all the members of the grad team shared
these concerns. However, some members of the team were certainly more vocal than others, 5
and it is now time to consider the activities and conduct of the three Charging Parties.
D. The Termination of Shelly Campbell
Shelly Campbell began her employment at Grand Canyon University on April 7, 2008, 10
and she remained employed there until her termination on February 23, 2010. She testified that
during her employment, “the workload had basically tripled from initially when we first started,”
and that “the leads that we were getting for prospective students were terrible.” She also
testified that, “The quotas that we were held to were unattainable, even if you were a top
performer as I was.” The entire grad team, according to Campbell, was “always voicing that to 15
management because we were only able to enroll in select programs.” Further, the three
Charging Parties identified each other as the most vocal members of the grad team in raising
these complaints with management. While the Respondent does not deny that Campbell,
Johnson, and Bardwell were engaged in protected concerted activity when they raised
complaints with management, it argues that such activity had nothing to do with their 20
discharges. Of course, the General Counsel contends that Campbell was not terminated for
any work related deficiencies, but, rather, because she engaged in protected concerted activity.
Accordingly, it is necessary for me to determine the Respondent’s true motivation in discharging
Campbell.
25
In Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following
causation test in all cases alleging violations of Section 8(a)(3) or violations of 8(a)(1) turning on
employer motivation. First, the General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating factor” in the employer’s 30
decision. This showing must be by a preponderance of the evidence. Then, upon such a
showing, the burden shifts to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The Board’s Wright Line test was
approved by the United States Supreme Court in NLRB v. Transportation Corp., 462 U.S. 393
(1983).35
In the matter before me, I conclude that the General Counsel has made a prima facie
showing that Campbell’s protected concerted activity was a motivating factor in the
Respondent’s decision to terminate her. In Tracker Marine, L.L.C.., 337 NLRB 644 (2002), the
Board affirmed the administrative law judge who evaluated the question of the employer’s 40
motivation under the framework established in Wright Line. Under the framework, the judge held
that the General Counsel must establish four elements by a preponderance of evidence. First
the General Counsel must show the existence of activity protected by the Act. Second, the
General Counsel must prove that the Respondent was aware that the employee had engaged in
such activity. Third, the General Counsel must show that the alleged discriminatees suffered an 45
adverse employment action. Fourth, the General Counsel must establish a link, or nexus,
between the employee’s protected activity and the adverse employment action. In effect,
proving these four elements creates a presumption that the adverse employment action violated
the Act. However, more recently the Board has stated that, “Board cases typically do not
include [the fourth element] as an independent element.” Wal-Mart Stores, Inc., 352 NLRB No. 50
103, fn.5 (2008) (citing Gelita USA, Inc., 352 NLRB 406, 407, fn.2 (2008)); SFO Good-Nite Inn,
L.L.C., 352 NLRB 268, 269 (2008); also see Praxair Distribution, inc., 357 NLRB No. 91, fn. 2
(2011). In any event, to rebut the presumption, the Respondent bears the burden of showing
JD(SF)-42-11
40
that the same action would have taken place even in the absence of the protected conduct.
See Mano Electric, Inc., 321 NLRB 278, 280, fn.12 (1996); Farmer Bros. Co., 303 NLRB 638,
659 (1991).
5
It is axiomatic that Section 7 of the Act gives employees the right to communicate with
each other regarding their wages, hours, and working conditions. Further, the Board has
consistently held that communication between employees “for nonorganizational protected
activities are entitled to the same protection and privileges as organizational activities.” Phoenix
Transit Systems, 337 NLRB 510 (2002) (citing Container Corporation of America, 244 NLRB 10
318, 322 (1979)).
As I have already found, there is no doubt that Campbell was engaged in protected
concerted activity. She had numerous discussions with fellow grad team members, including
Bardwell and Johnson, regarding their various complaints. A number of these discussions took 15
place in the presence of the grad team enrollment counselor manager. Managers were aware
of these complaints and several of them promised to try and improve the situation by furnishing
the team with better leads. However, as it turned out, none of the managers were successful in
improving the quality of the leads, lowering the enrollment quota, or adding more degree
programs to those available for the grad team counselors to enroll students.20
The many conversations that Campbell had with fellow employees and with managers
regarding working conditions, beyond question constituted protected activity. See Champion
Home Builders Co., 343 NLRB 671, 680 (2004). Further, there is no doubt that enrollment
counselor managers Helen Schnell and Ellen Rosa were aware of that activity. Additionally, I 25
do not accept the Respondent’s defense that the ultimate decision maker for the discharges of
the three Charging Parties, senior vice president of operations, Sarah Boeder, was personally
unaware of the concerted activity engaged in by Campbell, Bardwell, and Johnson. It is well
established Board law that information known to lower level managers, such as Schnell and
Rosa, is presumed also known to upper management. Schnell and Rosa were admitted 30
supervisors of the Respondent and their knowledge is considered to be imputed to and
possessed by the Respondent as an institution. In my opinion, the Respondent’s knowledge
that Campbell, as with all the grad team members, made numerous complaints regarding her
working conductions, and, thus, engaged in protected concerted activities, cannot be seriously
denied.35
Obviously, the discharge of Campbell constituted an adverse employment action. But,
was the discharge retaliation for her concerted activities? As is reflected in the fact section of
this decision, the Respondent had numerous reasons for terminating Campbell. In evidence is
the Termination Request for Campbell that lists the basis for her termination, and had been 40
approved by, among others, supervisors Ellen Rosa, Chris Landauer, Chanelle Ison, Linda Lair,
and Sarah Boeder. (G.C. Ex. 7.) According to Boeder’s testimony, the decision was not based
on a single instance of inappropriate conduct, but, rather, by a pattern of misconduct.
According to Campbell, not every item listed on her Termination Request form was 45
discussed with her at the termination interview, which she had with Ellen Rosa and Linda Lair
on February 23, 2010. However, one of the items that was discussed with her was her having
forwarded on January 20, 2010, to a fellow grad team member and to a student, an email that
she had received from a fellow employee sarcastically criticizing a change in the University’s
policy regarding leads for international students. This was a subject of concern to the grad team 50
members who objected at having to transfer to other teams those leads for international
students. The subject clearly involved the terms and conditions of employment of the grad team
JD(SF)-42-11
41
members, as the loss of leads could adversely affect the members’ ability to make their
enrollment quotas.
Earlier in this decision, I credited Campbell’s testimony that at her termination interview 5
when the matter of her forwarding this sarcastic email was discussed, Rosa told her that
“[counselors are] not allowed to ever send out non-business related emails.” I found this
statement to be untrue, as employees frequently used the University’s email system for
personal communication, of which practice the Respondent was well aware. In making the
statement attributed to her, Rosa was disparately enforcing and reaffirming the Respondent’s 10
Electronic Communications Policy, because Campbell had engaged in concerted activity, which
I found to constitute a violation of Section 8(a)(1) of the Act.26
Thus, I believe that the General Counsel has offered sufficient evidence to meet his
burden of establishing that Campbell’s discharge was in part retaliation for her protected 15
concerted activity in forwarding an email to a fellow counselor that criticized the University’s
policy on the transfer of leads for international students. I believe that this was a “motivating
factor” in the Respondent’s decision to fire her.
Having found that the General Counsel has established a prima facie case that the 20
Respondent was motivated to discharge Campbell, at least in part, because of her protected
concerted activity, the burden now shifts to the Respondent to show that it would have taken the
same action absent the protected conduct. Senior Citizen Coordinating Counsel of Riverbay
Community, 330 NLRB 1100 (2000); Regal Recycling, Inc., 329 NLRB 355 (1999). The
Respondent must persuade by a preponderance of the evidence. Peter Vitalie Company, Inc., 25
310 NLRB 865, 871, (1993). I am of the view that the Respondent has met this burden.
As noted earlier, the decision to terminate Campbell was ultimately made by Sarah
Boeder, senior vice-president of operations. She testified that this decision was not based on a
single instance of inappropriate conduct, but, rather by a pattern of misconduct. Over the 30
course of her employment, Campbell had been reprimanded, counseled, retrained, and issued a
number of disciplinary warnings as are reflected in her Termination Request form of February
16, 2010. (G.C. Ex. 7.) However, according to her testimony, Boeder was particularly troubled
by Campbell’s “bad call” to a prospective student in December of 2009 as recorded by the
Quality Assurance Department, and the February 2010 incident involving improper assistance 35
given to student Donnell Miller. Based on the nature of these two incidents, I believe that
Boeder’s testimony is credible. It is reasonable to conclude that the University considered these
matters much more serious than Campbell’s abuse of the Respondent’s email system, only one
instance of which had any connection with protected activity.
40
Boeder, along with the University’s CEO, Brain Mueller, had actually heard the recorded
call between Campbell and a prospective student as part of their review of the newly
established Quality Assurance Department in early December 2009. After listening to the call,
Mueller was very upset about some of the things that Campbell had said to the prospective
student. According to Boeder, Muller said that, “This is exactly what we don’t want happening. 45
This is a perfect, perfect example of one of those things that if a regulatory agency heard this,
this would jeopardize the University. It puts us at a huge risk.” Muller then instructed Boeder to
meet with Campbell and her manager regarding this call.
50

26 See complaint paragraph 4(k)
JD(SF)-42-11
42
In the fact section of this decision, I set forth in detail the meeting with Boeder,
enrollment counselor manager Schnell, and Campbell on December 16, 2009, where the
recorded phone conversation between Campbell and the prospective student was discussed.
Serious violations of the Respondent’s policies and procedures were uncovered, which were 5
ultimately listed as bullet points in a December 30, 2009 Employee Counseling Statement that
Campbell received. They included: “Misrepresentation of the University’s Academic
Scholarship; Speaking to the student about Pell [Grants] and eligible amount; Indication that the
student would incur no out-of-pocket costs; Leading the student to believe that the program
would take only 2 years to complete without reviewing transcripts; Communicating to the 10
student that the program is accelerated; Misquoting the cost per credit hour; Citing the
University had ‘beat Harvard and Yale’ to be recognized for online excellence; Communicating
to the student that there are no tests in the online programs; Guaranteeing employment; [and]
Indicating salary amount that could be expected upon completion of the program.” (G.C. Ex. 6.)
15
While Boeder apparently considered Campbell’s misrepresentation of the University’s
policies and procedures severe enough to warrant termination, she testified that she personally
made the decision not to terminate Campbell based on the December 2 telephone call alone,
mainly because of the concern that the regulatory issues were more widespread. Because of
this concern and Campbell’s statement in defense of her conduct that the other enrollment 20
counselors in her area were engaging in the same infractions, Boeder instructed Quality
Assurance to investigate other enrollment counselors’ calls in the specific area of the building
where Campbell made her daily calls. Based on that investigation, Boeder testified that they did
not find any calls that were “even close” to the egregious call that Campbell had made on
December 2. Boeder’s testimony was unrebutted. 25
The second incident that Boeder testified led her to decided to terminate Campbell
occurred on February 9, 2010, when Campbell sent an email to student Donnell Miller that gave
her instructions for accessing a weekly homework assignment. (G.C. Ex. 17, and Res. Ex. 1,
Bates Stamp 0518.) I discussed this incident earlier in this decision. Essentially, Campbell was 30
attempting to aid a student that she had earlier enrolled who was having difficulty logging onto
her online account. The student, Miller, need to do so in order to access her weekly homework
assignment. Initially unsuccessful at getting the technical problem resolved, Campbell decided
to email the student with a link and instructions for accessing the assignment. However, the
University considers a student’s ability to access assignments and navigate the online program 35
to be a part of the student’s academic training. It has a very strict policy against assisting a
student academically.
Campbell testified that before sending Miller the email with the link and instructions, she
obtained approval to do so from her manager Ellen Rosa. However, Rosa denied doing so. 40
Rosa’s testimony is supported by Erin Hernandez, enrollment manager, and Chris Landauer,
assistant director of enrollment. Landauer considered Campbell’s action a violation of the
University’s compliance policy. He alerted the University’s compliance officer, Heyward Howell,
who then investigated the incident. (Res. Ex. 1, Bates Stamp 0519-0520.) Also, Chanelle Ison,
associate vice-president, testified that any enrollment counselor who sent a homework 45
assignment link to a student, as Campbell had done, would be “disciplined,” and if there were
“multiple infractions…would be terminated.”
Based on the weight of the evidence, I am of the view that Campbell did not seek
permission from her manager prior to assisting Miller. The evidence strongly supports the 50
Respondent’s contention that such assistance constitutes a violation of its compliance policy, in
which its managers were all well versed.
JD(SF)-42-11
43
I believe that Boeder testified credibly when she indicated that her decision to terminate
Campbell was based on Campbell’s “pattern of conduct,” of which the two most egregious
incidents were the “bad call” to the prospective student, and the improper assistance given to
student Miller in violation of the University’s compliance policy. It is significant to note that the 5
incident where Campbell had engaged in protected activity by forwarding an email critical of the
Respondent’s policy regarding leads for international students, and for which she was
reprimanded, had occurred on January 20, 2010. Yet, she was not fired for that incident. In fact,
she was not terminated until after the incident on February 9, 2020, when she improperly
assisted Miller. Apparently, this was the proverbial “straw” (event) that “broke the camel’s 10
back,” and resulted in her discharge on February 23, 2010.
Accordingly, based on the above, I conclude that the Respondent has met its burden of
proof and established by a preponderance of the evidence that Campbell was terminated for
cause. As such, the Respondent has rebutted the General Counsel’s prima facie case and 15
shown that it would have discharged Campbell even in the absence of her having engaged in
protected concerted activity. Therefore, I shall recommend to the Board that complaint
paragraph 4(l) be dismissed. Concomitantly, I conclude that the Respondent did not terminate
Campbell because she violated its Electronic Communications Policy, and, therefore, I shall
recommend to the Board that complaint paragraph 4(p) also be dismissed. 20
E. The Termination of Edmond Bardwell
Edmond Bardwell began his employment at Grand Canyon University on January 3,
2006, and continued his employment until terminated on September 2, 2010. During some of 25
that period he was employed as an enrollment counselor and at other times as an inside sales
representative. Further, he has testified that while employed in either of these two
classifications, he was during certain times allowed to function in a “dual role,” which permitted
him to also perform outside sales representative duties. He also claims that for a period of time
he actually held the classification of outside sales representative.30
As in the case of Campbell, Johnson, and other grad team enrollment counselors,
Bardwell had engaged in protected concerted activity. He registered the same complaints with
management that they all did regarding poor quality leads, quotas, inadequate degree programs
in which to enroll students, and other issues. However, it is important for the undersigned to 35
note that in reviewing the evidence in this case, I did not find that the Respondent was engaged
in any sort of an organized or coordinated campaign to “stamp out” or eliminate concerted
activity among its employees. While certain isolated actions may have been taken by individual
supervisors in retaliation for concerted activity, I find that such conduct by the Respondent was
restricted to individual employees. I conclude that any actions taken against Campbell, 40
Bardwell, and Johnson were restricted to them individually. Each of their cases must stand or
fall on its individual merit.
In addition to the concerted activity engaged in by Campbell, Johnson, and other
counselors, Bardwell had some additional activity worthy of mention. On approximately April 45
14, 2010, Chanelle Ison had a meeting with the grad team members, in part to discuss their
complaints regarding poor quality leads and other matters. It was during this meeting that
Bardwell proposed the idea for a “peer review” by the enrollment counselors for their managers.
Ison initially liked the idea and asked Bardwell to produce some sort of questionnaire. He
prepared such a form and gave it to Ison for review. However, subsequently, higher 50
management rejected the idea, and when, at another grad team meeting with Ison, she told him
so, Bardwell did not take the news well. Bardwell voiced his displeasure with the decision,
stating that if implemented it would have improved employee morale. In any event, after the
JD(SF)-42-11
44
meeting, Ison approached Bardwell and told him that he had spoken to her in a disrespectful
way. He said that he had not intended to be disrespectful, but thought that the meeting was
intended as an open forum where employees could express their feelings freely. No adverse
employment action was taken against Bardwell. While the General Counsel has alleged Ison’s 5
reference to Bardwell’s behavior and comments at the meeting as being disrespectful to
constitute an unfair labor practice, I found that not to be so. My reasons for so finding are set
forth in detail above.
A second instance of concerted activity worthy of mention occurred in mid-July of 2010, 10
when Ison held another meeting with the grad team. During the meeting, Ison informed the
team members of a new scheduling policy that required one or two enrollment counselors to
cover late night shift hours every evening during the week. The team members were not happy
with this news, or with Ison’s response to their suggestions on how the new policy might be
adjusted to limit its impact on the employees. Apparently one of the most vocal employees in 15
criticizing the policy was Bardwell, who did testify that other employees spoke as well, although
perhaps not as vociferously as he did.
Following this meeting, Bardwell went to see Nicolette Boessling, director of enrollment
and an admitted supervisor, who had also been present. He essentially apologized for his 20
behavior at the meeting, saying that, “My intentions were all good. They were not anything
beyond that.” According to Bardwell, Boessling replied, “Okay, no problem.”
Next, Bardwell went to see Ison and, again, essentially apologized for his behavior. He
told her that he did not want her “to get the wrong impression,” and that his “intentions were 25
good.” Ison said that she thought he had acted “a little disrespectful because this is the second
time it’s happened.” Bardwell replied that, “I’m not trying to be disrespectful or anything. I’m
just here to let you know that I’m not trying to do anything beyond being a good person and
being a good employee.” According to Bardwell, before the meeting ended, Ison mentioned that
the grad team was “the most opinionated team, kind of like a hard case or a hard chip.”30
Ison testified about the incident much the way that Bardwell did, except she mentioned
several times that Bardwell speaks in a loud booming voice, and that he was still rather upset
with her when he came to see her after the meeting. Bardwell acknowledged during the hearing
that when he gets excited, he does tend to be rather loud and animated. Ison testified that this 35
was just his manner, and that while it made him seem disrespectful, that she understood that he
did not intend to be so. According to Ison, Bardwell apologized before the conversation ended.
No disciplinary action of any kind was taken against Bardwell for this incident.
It should be noted that Ray Akers, enrollment manager, testified that while Bardwell was 40
in Ison’s office, her assistant asked him to stand by the door just in case he was needed, as the
voices coming from that office were rather loud. In any event, his involvement was not needed.
As discussed in detail above, the General Counsel alleges that the comments made by
Ison to Bardwell in her office constitute an unfair labor practice. However, for the reasons that I 45
stated in detail earlier, I found them not to be so.
Other examples of Bardwell’s potential concerted activity include his having filed several
charges against the University with the Arizona Attorney General’s Office, Civil Rights Division
and with the U.S. Equal Employment Opportunity Commission (G.C. Ex. 46, February 10, 2009, 50
and G.C. Ex. 48, March 8, 2010.) These charges allege employment discrimination on the
basis of race (Bardwell is an African-American) and religion (Christian). While somewhat
confusing, it appears that both charges are currently still pending. (G.C. Ex. 47 & 49.) Also, the
JD(SF)-42-11
45
General Counsel alleges in complaint paragraph 4(q) that the Respondent violated Section
8(a)(4) of the Act by discharging Bardwell because on March 8, 2010, he filed his first charge
with the Board in Case 28-CA-22938, and gave testimony to the Board in that case.
5
Before discussing Bardwell’s termination, his employment status must be considered.
He began working at the University as an enrollment counselor for the College of Business and
Liberal Arts. After six months, he was promoted to the position of inside sales representative.
However, he claims to have had a “dual role” that included certain outside sales representative
duties. In that capacity, he claims to have traveled to various states outside of Arizona on 10
behalf of the University. After approximately eight months, he was transferred back to the
position of enrollment counselor where he continued until August 2008, when he was promoted
to outside sales representative. At approximately that time, he made a business proposal to the
University regarding the Christian studies department. He testified that this proposal was acted
upon favorably, as a result of which he was permitted to solicit for leads directly at churches and 15
church conventions.
Regina Madden testified that during part of the time that Bardwell was soliciting at
churches, she was his enrollment manager. She confirms that as an outside sales
representative his duties included establishing partnerships with churches in order to solicit 20
student leads. However, at some point Jacob Mayhew, director of enrollment, informed her that
Bardwell’s position was going to be changed since his work with the churches was not
benefitting the University. He was going to be transferred back to the position of an inside
enrollment counselor. Shortly thereafter at a meeting with Bardwell, Madden, and Mayhew,
Bardwell was, according to Madden, informed by Mayhew that he had 30 days to wrap up his 25
relationship with the churches that he had been working with, after which he was expected to
return to the job of an enrollment counselor.
Bardwell admits that he was transferred back to his old position as an enrollment
counselor. However, he claims that he still had authority to work with churches, if the 30
opportunity presented itself. He claims that Mayhew told Madden “to give [Bardwell] some
liberty to go to meetings outside the normal online, sitting in a cubicle.” Further, he understood
that this “dual role” was open-ended with no sunset date. However, as noted, Madden
disagrees, contending that Mayhew’s instructions to Bardwell were clear, that he must relinquish
his direct church solicitation duties and return full time to the position of an enrollment 35
counselor.
As proof of Madden’s testimony, counsel for the Respondent offered into evidence a
type written document entitled “Team Madden, Internet Business Enrollment” setting forth
Bardwell’s duties and responsibilities as an enrollment counselor. Under the heading 40
“Additional Clarification for Ed Bardwell” it states: “As an Internet Enrollment Counselor, you
should have no further direct contact, on behalf of GCU, with any of the churches or church
entities that you may have already contacted or would be contacting in your previous role as a
OSR [outside sales representative].” Next to this language is written in pen the statement “5
churches for 30 days.” Also written in pen is the date “July 1.” This language would seem to 45
support Madden’s testimony that Bardwell was to relinquish all contacts with the church
organizations on behalf of the University within the next 30 days, meaning June 1 to July 1. The
document has a printed date at the bottom of the first page of May 19, 2009, and has a place for
Bardwell’s signature. However, the copy in evidence is unsigned. (Res. Ex. 12.) While
Madden testified that she saw Bardwell sign the document, Bardwell testified to the contrary that 50
he did not recall any such document.
JD(SF)-42-11
46
It is further worth noting that this document, also under the heading “Additional
Clarification for Ed Bardwell,” contains certain language, which seems to suggest that the
University did not totally trust Bardwell and was determined to place him under close
supervision so far as any outside activities in which he might try and involve the University. This 5
language reads as follows: “Any future pursuit of other opportunities within GCU, whether they
be additional job responsibilities, different job duties, or a change altogether, will need to be
pursued with complete transparency, and in keeping with GCU’s standard hiring practices
which, among other things, requires approval by your manager on an Internal Application.”
(Res. Ex. 12.) 10
Regarding Bardwell’s termination, I conclude that under Wright Line, supra, and its
progeny, that the General Counsel has made a prima facie showing that his protected concerted
activity was a motivating factor in the Respondent’s decision to fire him. There is no doubt that
Bardwell engaged in significant concerted activity, complaining over an extended period of time 15
to both fellow employees and to management regarding poor quality leads, too few degree
programs in which to enroll students, unrealistic quotas, and other matters of concern to the
grad team members. Further, some of Bardwell’s most vocal and heated discussions with
management over issues of concern to the grad team occurred reasonably close in time to the
date of his termination. The Board has frequently considered close proximity in time between 20
concerted activity and termination to constitute sufficient evidence of a nexus between those
events. See Davey Roofing, Inc., 341 NLRB 222, 223 (2004).
It was at a meeting with the grad team and Chanelle Ison in either late April or early May
2010, when Bardwell voiced his displeasure with management’s decision not to institute a 25
system of peer review for the enrollment counselor managers that he had previously suggested.
This was followed by another meeting in mid-July 2010 with Ison and the grad team where
Bardwell again expressed his strong displeasure, this time with management’s new policy of
requiring several members of the team to cover late night shift hours every night of the week.
As I mentioned above, both incidents resulted in Ison telling Bardwell that she felt he had 30
spoken to her in a disrespectful manner. Subsequently, Bardwell was terminated on September
2, 2010, approximately six weeks after he last vocally expressed displeasure to Ison.
Counsel for the General Counsel has established a presumption that the Respondent’s
termination of Bardwell was based, at least in part, on his protected concerted activity. See 35
Tracker Marine, supra; Wal-Mart Stores, supra; Gelita USA, supra; SFO Good-Nite Inn, supra;
also see Praxair Distribution, supra. However, in my view, the Respondent has rebutted that
presumption by showing that its termination of Bardwell would have taken place even in the
absence of his protected conduct. Mano Electric, supra; Farmer Bros., supra.
40
Bardwell was terminated as a result of the events surrounding his enrollment of
Reverend Gary Dean of Texarkana, Texas. While it is unclear exactly when the communication
between these two men began, the earliest correspondence in the record is an email from Dean
to Bardwell dated February 25, 2010, with Dean’s attached college transcript. Although not
expressed in the email, it is clear from its content that there were earlier communications 45
wherein Dean had indicated an interest in pursuing a graduate degree in Christian studies. In
this email Dean makes mention of 5-6 potential students from his church that would “like to see
more about your programs.” Further he says, “Pastor is very interested in a school at our
church and would like to know what the requirements are?” (G.C. Ex. 24.)
50
Bardwell testified that in an earlier telephone conversation, Dean had expressed an
interest in attending Grand Canyon University for a Christian studies graduate degree, and had
also raised the issue of the University establishing a satellite campus at his church. While not
JD(SF)-42-11
47
entirely clear, Bardwell seems to testify that his reputation as established by previously working
with various churches was what led Dean to contact him and raise the issue of a satellite
campus.
5
At this point it should be noted that various officials with the University testified that it is a
very difficult, laborious, time consuming process in order to establish a “satellite campus” of the
University, especially one located outside the State of Arizona. The process involves various
University boards, certifying educational institutions, and in the case of an out of state campus,
permission is required of the State where the satellite campus is to be located. In fact, the 10
process is so difficult that the Respondent has only one satellite campus located outside the
State of Arizona, and that campus is located in Albuquerque, New Mexico.27
Bardwell’s testimony that he had the authority to speak at churches and before church
groups regarding student enrollment at the University was simply not credible. He may well 15
have had such authority when he was classified as an outside sales representative. However,
any such authority ended on July 1, 2009, pursuant to the “Team Madden, Internet Business
Enrollment” document that he had signed under the “Additional Clarification for Ed Bardwell”
language. (Res. Ex. 12.) I find the testimony of enrollment counselor Regina Madden credible
that Jacob Mayhew, the director of enrollment, had made it clear to Bardwell that he was losing 20
this authority and was reverting back exclusively to the position of enrollment counselor. It is
clear from her testimony that Mayhew was concerned with Bardwell’s outside activities, which
he did not feel were beneficial to the University. So there would be no misunderstandings on
Bardwell’s part, he was orally informed of the new situation, and he was also required to sign a
document to that effect. Bardwell was simply incredible when he testified that he retained “dual 25
authority,” and had never seen nor signed the document in question. It certainly strains
credulity to believe that Madden, Mayhew, or other agents of the University manufactured the
document in question merely to use at trial. The fact that an unsigned copy of the document
was admitted into evidence, rather than a signed copy, is not dispositive and does not make me
less inclined to accept the document as genuine. 30
Although being careful to testify that he never made Dean any explicit promise about the
University’s willingness to open a satellite campus at Dean’s church in Texarkana, it is clear to
the undersigned that Bardwell intentionally gave Dean the impression that if he registered for
classes at the University, and if a significant number of other parishioners registered for classes, 35
that it was likely a campus could be established.
After Dean enrolled in a masters’ degree program in Christian studies, he and Bardwell
communicated frequently, according to Bardwell, on an almost weekly basis. In the record is a
copy of an email from Dean to Bardwell dated July 19, 2010. The subject line of the email is, 40
“Off site campus.” The email reads as follows: “Ed, when I started looking at GCU you and I
had a conversation about the above subject. You told me that the best thing to do was to enroll
me first then we would establish my satellite campus. That has not happened and I am starting
my third class. My church has voted to do this campus and to open a Christian home schooling
academy. I need to talk to you as soon as possible. Please call my cell….” Clearly Dean 45
sounds like a man who believes that he may have been deceived by Bardwell, who promised
more than he could deliver.

27 The University does have a number of satellite campuses located within the State of
Arizona, mostly for its nursing programs, where students are taught at the site of various health
care facilities.
JD(SF)-42-11
48
Bardwell’s testimony that he “made no promises” to Dean regarding the establishment of
a satellite campus, and that he never told Dean that he had the authority to establish one simply
does not “ring true.” During his testimony, Bardwell places all of the blame on Dean for the
alleged misunderstanding. According to Bardwell, it was Dean who said that he “wanted to take 5
those classes first so he could see what the program was about to enlighten the Christian
experience through his coursework before he wanted to give it approval.”
However, Bardwell does admit to telling Dean that he was attempting to do some “fact
finding” to see whether it would make business sense to open a satellite campus at that 10
particular church. He stated that he also told Dean that, “You need at least 30, even more
students to have a satellite campus.” He testified, “That information I [knew] because I was an
outside sales representative.” Of course, Bardwell was no longer an outside sales
representative, having been stripped of that responsibility by Madden and Mayhew at the time
that he signed the “Team Madden, Internet Business Enrollment” form. (Res. Ex.12.) He had 15
no authority what-so-ever to perform “fact finding” regarding the establishment of a satellite
campus.
It is important to note that Dean did not testify at the hearing. Counsel for the General
Counsel never offered any explanation for failing to call him. Had Dean been in a position to 20
support Bardwell’s testimony, I would have expected counsel for the General Counsel to at least
make an effort to call him. Since this was apparently not done, I must conclude that his
testimony would not have been in support of Bardwell or helpful to the General Counsel’s case.
I will draw such an adverse inference. This constitutes further evidence that Dean felt deceived
by Bardwell.25
Bardwell spoke to Dean on multiple occasions between his receipt of the July 19 email
and August 18. Bardwell claimed that he asked Dean a number of times whether Dean had 30
or more students to enroll, a number that Bardwell testified he had mentioned to Dean as the
minimum number of enrollees necessary for Bardwell to be willing to raise the idea of a satellite 30
campus with the University’s “higher-ups.” However, Dean was never able to indicate that he
had such a number of students ready to enroll.
The record evidence indicates that the number 30 used by Bardwell had no basis in fact.
University officials offered unrebutted testimony of the extreme difficulty in opening a satellite 35
campus in another state. Further, no minimum number of students willing to enroll in a satellite
campus was ever mentioned by them as a factor to be considered in deciding the feasibility of
such a campus. It would seem that Bardwell’s use of the number 30 was either a figment of his
imagination, or his effort to give Dean a figure he assumed that Dean could never reach. If
Dean could not provide 30 students willing to register, Bardwell would not be faced with the 40
problem of having to tell Dean that he had been deceived, and that Bardwell had no authority to
discuss opening a satellite campus in Texarkana.
On August 19, 2010, Bardwell and Dean had an email exchange in which Dean
mentioned that there was “newspaper coverage for Grand and [we] are receiving calls daily. I 45
need your help please.” (G.C. Ex. 26, Bates Stamp 018.) Admitted into evidence were several
pages from the “Texarkana Gazette,” where under the heading “Church News” appeared the
following: “Main Street Church….The pastor is the Rev. Gary G. Dean Sr. They also offer
American Christian Academy II, a home school program for grades K-12 and university classes
via satellite from Grand Canyon University, call….” (G.C. Ex. 27.) (Emphasis added by the 50
undersigned.)
JD(SF)-42-11
49
Bardwell testified that he had not been notified prior to Dean’s August 19 email that a
newspaper advertisement had been placed in a local Texarkana publication or that Dean was
planning on doing so. According to Bardwell, in his telephone conversation with Dean on
August 19, after receiving Dean’s email with the mention of the “newspaper coverage,” Bardwell 5
informed Dean that since “[Dean] didn’t have 30 students, so there’s no way I would be able to
even think about going to the higher-ups.” This conversation, if it occurred, was not recorded,
apparently because the call was not made using the University’s phone system.
According to Bardwell, he had additional phone conversations with Dean following the 10
August 19 email, but he is uncertain how many or when they occurred. Dean is very vague
regarding these calls. While some of these conversations were made using the University’s
phone system, it is important to not the Bardwell admitted that some of the calls were also made
using his personal cell phone. Such calls, of course, could not be recorded through the
University’s Quality Assurance System. He claimed that other enrollment counselors also 15
occasionally used their personal cell phones to call students, and that the reason this was done
was so that the parties felt “more freely comfortable.” When asked by the undersigned why
using the cell phone would make him feel more comfortable, he admitted that it was because
management could not listen to the call, but also because “some students even want you to talk
to them on the cell phone because they don’t want the conversation recorded.”20
Bardwell appeared rather nervous and uncomfortable when testifying about his
conversations with Dean on his cell phone, and why he used his own personal phone rather
than the University’s phone system. There is no question in my mind that he did so merely
because he did not want his words recorded by the University. His reason was obvious. He did 25
not want the University to learn that he had deceived Dean into registering for classes with a
promise, which he had no authority to make, for the establishment of a satellite campus at
Dean’s church if Dean could register additional students. Bardwell’s proposal to Dean was
totally unrealistic. Not only did Bardwell lack the authority to make such proposals, but he knew
how very difficult it was to establish an out of state satellite campus. This is why he needed to 30
avoid having some of his conversations with Dean recorded, and why he used his personal cell
phone. Bardwell’s protestations to the contrary are simply not credible.
At some point, the University, through its Quality Assurance System, became aware of
some of these conversations between Bardwell and Dean, at least those that were recorded 35
from the University’s phone system. A phone conversation between Dean and Bardwell on
August 20, 2010 (Res. Ex. 10, Transcription of Voice Mail Message #1) and a conversation
between Dean and Bardwell on August 30, 2010 (Res. Ex. 11, Transcription of Voice Mail
Message #3) were recorded, transcribed, and placed into evidence. They are described in
detail in the fact section of this decision. However, suffice it to say that Dean continued to be 40
concerned that despite his taking classes at the University, there was no corresponding
movement on the establishment of a satellite campus. Bardwell continued to stress the need for
30 students to enroll with the University, and Dean indicated that while he only had about 18
names, he was continuing to work on getting 30 enrolled. Apparently, the conversation on
August 30 was the last conversation between these two men.45
Some time at the end of August or early September, Ray Akers, enrollment counselor
manager, and Nicolette Boessling, conducted a “one-on-one review” where they “would just
spot check different employees on the team.” According to Akers, they would select a 24-hour
period and randomly select three or four calls made during that period by the employee. During 50
one particular spot check, they listened to one of Bardwell’s conversations with Reverend Dean
that included a discussion of potentially setting up a satellite campus. Akers defined the
JD(SF)-42-11
50
reaction of both of them as being “very surprised.” Boessing told Akers that “she would take it
from here.”
Sarah Boeder, senior vice-president of online operations, testified that after reviewing 5
two calls that Bardwell had with Dean on August 20 and 30, a decision was made to terminate
Bardwell. Boeder was the ultimate decision maker, and decided on termination because: (1)
Bardwell failed to follow the extensive process needed to establish a satellite campus, and (2)
he had made numerous misstatements to Dean, even thought all enrollment counselors,
including Bardwell, had recently completed a compliance training program. Management felt 10
that Bardwell had represented to Dean that he had the authority to set up a satellite campus and
that doing so would be no problem, once Dean enrolled at the University, which he did. Boeder
testified that Bardwell had absolutely no authority even to discuss the establishment of a
satellite campus, let alone lead a prospective student to believe that a campus in Texas was a
realistic possibility. According to Boeder, the process of establishing a satellite campus takes 15
months, if not years, is very complicated and involves numerous individuals and approvals from
various internal University offices and state agencies.
Near the end of the work day on September 2, 2010, Bardwell met with Rhonda Pigati
and Chanelle Ison. According to Bardwell, Pigati informed him that he had been terminated for 20
“setting up satellite campuses.” He denied doing anything of the sort. Ison stated that they had
listened to several phone conversations with Reverend Dean and determined that he had made
promises that he had no authority to make. Bardwell defended himself, saying that he had
merely given Dean “information to see if this was something we can even consider, and I was
going to present to the higher ups, management, and business development to see.”25
The Involuntary Termination Request for Bardwell was approved by Boeder. It gives a
number of reasons for termination, including fraudulent activity; making misrepresentations
about the Respondent’s policies or admission requirements; lack of integrity or unethical
behavior; conflict of interest; and compliance violations. (G.C. Ex. 3.) In reviewing the 30
termination document and its attachments, it is fairly clear to the undersigned that the
Respondent’s managers believed from the two phone calls that were recorded and from the
email communication between Dean and Bardwell, that Bardwell was using Dean’s desire to
have a satellite campus at his church as a way of getting Dean, and potentially other students,
to enroll at the University. In the Respondent’s view, Bardwell was misleading Dean into 35
believing that Bardwell was likely to arrange for such a satellite campus, once enough students
who were affiliated with the church enrolled with the University. It appeared from the
correspondence that this was the reason that Dean enrolled, and it was fairly obvious that Dean
was attempting to get others, perhaps as many as 30, to also enroll.
40
The University managers contend that Bardwell had absolutely no authority to establish
such a satellite campus, or even to raise that issue with Dean. That was the Respondent’s
stated reason for terminating Bardwell. I reject Bardwell’s contention that he had “dual
authority” to investigate opportunities for the University to establish satellite campuses, that he
made no promises to Dean, and that he did not mislead him into believing that if Dean enrolled 45
in classes and got a significant number of other students to do so that a satellite campus might
be established at his church. The credible probative evidence in the form of witness testimony,
documentation, and transcriptions of phone conversations demonstrates otherwise. Bardwell’s
attempt to rationalize what occurred between him and Dean is not credible.
50
Accordingly, based on the above, I conclude that the Respondent has met its burden of
proof and established by a preponderance of the evidence that Bardwell was terminated for
cause. As such, the Respondent has rebutted the General Counsel’s prima facie case and
JD(SF)-42-11
51
shown that it would have discharged Bardwell even in the absence of his having engaged in
protected concerted activity. Therefore, I shall recommend to the Board that complaint
paragraph 4(n) be dismissed. Concomitantly, I conclude that the Respondent did not terminate
Bardwell because he filed an unfair labor practice charge and gave testimony to the Board in 5
Case 28-CA-22938, and, therefore, I shall recommend that complaint paragraph 4(q) also be
dismissed.
F. The Termination of Gloria Johnson
10
Gloria Johnson began her employment at Grand Canyon University on August 31, 2009,
and remained employed there as an enrollment counselor until her termination on August 2,
2010. As a member of the grad team, she engaged in the same sort of protected concerted
activity as the other members of the team, complaining to fellow employees and to management
about poor quality leads, unrealistic quotas, too few degree programs in which to enroll 15
students, and other concerns. While Johnson may not have been the most vocal of the
members of grad team, she credibly testified that she raised these concerns on a regular basis
with her enrollment counselor managers, and also with Chanelle Ison at the meetings that Ison
held with the grad team members in April and July 2010. In any event, the Respondent, as with
Bardwell and Campbell, does not dispute the fact that Johnson also engaged in protected 20
concerted activity.
As I indicated earlier, the meetings that Ison held with the grad team members became
rather heated. The meeting held in July became especially acrimonious with all the grad team
members upset that the University was implementing a new scheduling policy requiring some of 25
them to cover late night shifts every night of the week. Johnson expressed her unhappiness
with the new policy along with her co-workers. She also specifically proposed to Ison a modified
night shift policy, which Ison summarily rejected. Obviously, Ison was aware of the strongly held
views of the grad team members, including Johnson, as she mentioned to Bardwell after the
meeting that they were an opinionated group. 30
I conclude that under Wright Line, supra, and its progeny, that the General Counsel has
made a prima facie showing that Johnson’s protected concerted activity was a motivating factor
in the Respondent’s decision to fire her. As noted, there is no doubt that Johnson engaged in
protected concerted activity along with her fellow team members, which activity was well known 35
to the Respondent. Further, in mid-July 2010, only a mere two weeks before she was
terminated, Ison had had a very heated and acrimonious meeting with the grad team, including
Johnson. It is well established that timing may serve as evidence of a nexus where a
termination occurs in close proximity to protected concerted activity. See Davey Roofing, Inc.,
supra.40
Counsel for the General Counsel has established a presumption that the Respondent’s
termination of Johnson was based, at least in part, on her protected concerted activity. Tracker
Marine, supra; Wal-Mart Stores, supra; Gelita USA, supra; SFO Good-Nite Inn, supra; also see
Praxair Distribution, supra. To rebut such a presumption, the Respondent bears the burden of 45
showing that the same action would have taken place even in the absence of the protected
conduct. See Mano Electric, Inc., supra; Farmer Bros., supra. The Respondent must persuade
by a preponderance of the evidence. Peter Vitalie Company, Inc., 310 NLRB 865, 871 (1993).
However, I am of the view that the Respondent has failed to meet this burden. The
Respondent’s reason for terminating Johnson appears to be a pretext. 50
Johnson had been working on enrolling Bessie Miller, a lead who had indicated an
interest in the Christian studies master’s degree program. On July 15, 2010, at 7:38 am Miller
JD(SF)-42-11
52
called Johnson in order to find out whether Johnson had received her completed electronic
application materials. Johnson had received the application. However, the transcript request
form as originally filled out by Miller had “Other” in the space set aside for the applicant’s “Name
of College/University.” Also, the space for the “Campus Attended” was left blank, and Miller had 5
listed NC as the State. Miller had listed the dates attended and the degree earned.
Johnson briefly looked over the application and indicated to Miller that it looked
complete, except “that she didn’t put the school in her transcript request form.” Miller responded
that she was unable to find her former school in the “dropdown” menu on the transcript request 10
form webpage. Johnson then instructed Miller to check the dropdown menu again, just to make
sure that she was not mistaken. After Miller was unable to find it for a second time, Johnson
told her, “What I can do is I’ll talk to my manager to see if it’s okay to write the school in because
[you] signed everything.” She then told Miller, “I want you to give me your permission on the
phone because they record everything we say.” Miller granted Johnson permission to write on 15
her application both the name of the school that she had attended and its location,
Johnson testified that she then put Miller on hold and took the printed transcript request
form over to Jacob Husband, a team lead for the grad team. She showed him the form and
asked if it was “okay if I write the name of the school on here and the campus Bessie Miller 20
attended because this school is not on the dropdown.” Husband replied that he was not sure if
the Office of Academic Records would accept the form with the written information, and
instructed Johnson to speak to their enrollment counselor manager, Ray Akers.
Johnson testified that she immediately approached Akers at his desk, showed him 25
Miller’s transcript request form and asked him for permission to “write the name of the school
and the campus that Bessie [Miller] attended on the transcript.” It is important to mention that
according to Johnson, at the point that she showed Akers the transcript request form, she had
made no markings on the document. She testified that Akers asked her what she was “trying to
do,” and, after receiving an explanation that she just wanted to write the name of the school, 30
campus attended, and specific state on the form, he told her that it “should be okay.” However,
Johnson noted that as she was walking away from Akers’ desk he stopped her and asked her,
“What is it you’re doing again?” Johnson repeated everything that she wanted to do, and that
she would not be changing anything else on the form, nor was she signing Miller’s name.
Hearing this information, Akers again granted permission. It should be noted, however, that 35
when Akers testified, he did not recall having a second conversation with Johnson on this date
regarding the form.
By the time Johnson had returned to her desk, Miller had hung up. Johnson called her
back, leaving a message, which Miller returned immediately. During that conversation, which 40
lasted roughly five minutes, Johnson told Miller that as her supervisor had given permission, she
was going to write Miller’s college’s name, the campus attended, and the location on the form.
Miller again indicated that was fine with her, and she gave Johnson the information that the
college that she had attended was North Carolina College of Theology and that the location of
the campus was Baltimore, Maryland. Johnson then apprised Miller that she would submit her 45
application packet, including the transcript request form.
Akers testified that sometime after Johnson had approached him on the morning of July
15, but before July 16, he went to discuss the Bessie Miller situation with his manager, Mike
Rasmussen. After his conversation with Rasmussen, Akers realized that neither of them had 50
the ability to listen to the phone conversation between Miller and Johnson, because Johnson
was not officially on Akers’ team as at the time Akers was only the “temporary manager” of the
JD(SF)-42-11
53
grad team. Therefore, Rasmussen suggested that Akers speak with Rhonda Pigati, who had
the authority to listen to the recorded call.
According to Akers, as he was getting ready for work on July 16, “something stuck out to 5
me about the form,” and “it occurred to me that it was a different color ink, it was like a purple
color on the page.” Because he knew that faxes should not have different colors, he decided to
approach Johnson again in order for her to recount the situation. He went to Johnson’s desk
that morning and asked if she could repeat what she had asked him the day before. Johnson
reiterated what she had requested and Akers replied, “Okay, next time just go ahead, send it 10
back to the student, have the student write it in and process it.”
Rhonda Pigati, a human resources manager, testified that some time after July 15, 2010,
Ray Akers approached her and discussed the interaction that he and Johnson had had
regarding the Bessie Miller application. Akers told Pigati that he wanted to share with her 15
“something that was on his mind” from his conversation with Johnson. Akers set out the
specifics of the interaction that occurred between him and Johnson regarding Miller’s transcript
request. However, what is not clear to the undersigned is whether Akers told Pigati that when
he first saw the transcript form it did or did not contain the handwritten notations.
20
In any event, Akers testified that he and Pigati then retrived the phone calls that Johnson
had made on the morning of July 15 and listened to them. According to Pigati, Akers admitted
that after Johnson had shown him the transcript form and asked him if it was okay to send it on
for processing with a handwritten correction, that he had told Johnson that he “didn’t think the
handwriting would be a problem.” However, according to Pigati, Akers claimed that the next day 25
when her spoke to Johnson again, and realized that what she had done was to write in the
information on the form herself, he had told Johnson that, “You can’t do this. You cannot
change documents that students have provided in any way, shape, or form. They cannot be
altered.” Pigati testified that she told Akers that this was a very serious matter, as Johnson had
altered a student’s document, and it did not matter that Miller had given her permission for 30
Johnson to do so.
Akers’ testimony was difficult to comprehend. He appears to suggest, without
definitively saying so, that he was confused when originally approached by Johnson with Miller’s
transcript request. He seems to be suggesting that he thought that Miller had made the 35
handwritten notations on the form herself, not Johnson. He apparently thought that would not
be a problem, and only realized that it was Johnson who had made the handwritten notations
once he recalled the different color ink on the form. By the time that he testified, it was clear to
him that Johnson had made the additions to the form, and, so, he understood that this was a
violation of the University’s “zero tolerance non-compliance policy.” 40
I do not find Akers’ story credible, as it is very inconsistent and illogical. He admits
telling Johnson that it was okay for her to make the changes to Miller’s transcript request, not
once, but twice on July 15. Then he claims that the next day he “saw the light” and realized that
the ink on the form was a different color, so Miller must not have made the changes herself, but 45
rather Johnson had done so. Well, he apparently already knew that as of the previous day. I
am of the view that Akers is merely trying to cover for himself. I believe that he told Johnson
that she could make the changes, and then subsequently, when his superiors began to question
his conduct and displayed an interest in terminating Johnson, Akers suddenly claimed that he
was confused and really did not understand what Johnson was asking of him. Frankly, it seems 50
to me like nonsense. This is not “rocket science” and there was no reason why Akers, a
supervisor, would have been confused over this issue. I find Johnson much more credible. Her
story made sense, it was logical, and she delivered her testimony in a calm, straight forward
JD(SF)-42-11
54
manner that left me with the feeling that it was truthful. Accordingly, I accept Johnson’s version
of these events.
On August 2, 2010, Johnson was asked to meet with Rhonda Pigati in her office. When 5
Johnson arrived in the office, both Pigati and Akers were waiting for her. Pigati asked Johnson
if she remembered the situation regarding Bessie Miller’s application materials. Johnson replied
that she did, and Pigati stated that Johnson was going to be terminated for writing on the
transcript request form. Johnson then pointed to Akers and stated that, “He told me I could do
it.” Akers then responded that he “didn’t understand what [Johnson was asking him].” Johnson 10
testified that she was shocked and that she asked Pigati, “So you’re telling me I’m being
terminated for doing something that a manager said I could do?” According to Johnson, Pigati
responded that Akers “didn’t understand what [Johnson] had said.” That essentially completed
the meeting.
15
The Involuntary Termination Request form for Johnson indicates the following: “On July
15, 2010 Gloria received an (sic) Transcript Request Form from a student in which, ‘other’ was
entered under the Name of College/University. While speaking with the student over the phone
on the same day, Gloria realized this area needed the name of a University so she told the
student she would add this information (North Carolina College of Theology, Baltimore MD) to 20
the form on the student’s behalf. Although Gloria asked the student for permission to add this
information, making any additions/changes to any student documents is a violation of GCU’s
Standards of Performance-‘Falsification of any student paperwork and/or student signatures or
posing as a student as part of internal or external communication.’” The final approval of the
termination was by Nikki Mancuso and Sarah Boeder. Of course, it does not mention that Akers 25
had given Johnson permission to make the changes on behalf of the student.
As counsel for the General Counsel points out in his brief, Johnson did not write down
on Miller’s form any information that was false; did not sign Miller’s name to the form; and made
the changes only after getting permission from Miller to do so; and after being told by her 30
supervisor, Akers, that her changes to the form were acceptable. Of course, Akers claims he
misunderstood what Johnson was asking, and that, in any event, the changes had already been
made on the form when Johnson approached him. However, I have credited Johnson, and
concluded that the changes were made only after Akers gave his permission. I believe that
Akers has testified untruthfully in an effort to disguise his “mistake,” and to support his superiors 35
in their desire to terminate Johnson.
While the Respondent claims that it has a zero tolerance policy concerning non-
compliance issues, in this case changes made by Johnson to the student’s transcript request
form, I fail to see the seriousness of the alleged offense. The information that Johnson placed 40
on the form was correct and was only done with Miller’s permission. The information itself was
simply rudimentary, the name of her University and the campus location, hardly anything
sensitive, confidential, or private. In any event, Akers had given her his permission to make the
changes.
45
In my view, the Respondent has manufacturing “something out of virtually nothing” in an
effort to terminate Johnson. The Respondent’s defense is a pretext, and it is, therefore,
appropriate to infer that the Respondent’s true motive was unlawful. Williams Contracting, Inc.,
309 NLRB 433 fn.2 (1992); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.,705 F.2d 799
(6th Cir. 1982); and Shattuck Deann Mining Corp., v. NLRB 326 F.2d 466, 470 (9th Cir. 1966). I 50
believe that the real motive behind the Respondent’s conduct in terminating Johnson was in
retaliation for her protected concerted activity. Approximately two weeks earlier she had been
involved in a rather acrimonious meeting between the members of the grad team and Chanelle
JD(SF)-42-11
55
Ison. It was as a direct result of her participation in registering complaints with management at
that meeting that she was terminated.
Accordingly, I find that the Respondent has violated Section 8(a)(1) of the Act by 5
discharging Gloria Johnson on August 2, 2010, as alleged in complaint paragraphs 4(m) and
(5).
Conclusions of Law
1. The Respondent, Grand Canyon Education, Inc., d/b/a Grand Canyon University, is 10
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
15
(a) Maintaining an overly-broad and discriminatory written rule in its Employee
Counseling Statement that requires employees to agree to the following: “Although I
understand that I may discuss this plan with my management team, I agree that this coaching &
counseling statement is considered extremely confidential and may not be discussed with any
other current or former employees of Grand Canyon University, it constituents, vendors, or 20
contractors, without prior written notice to and approval from Human Resources;”
(b) Orally promulgating and maintaining an overly-broad and discriminatory rule
prohibiting employees from talking to each other about their terms and conditions of
employment, including counseling sessions; 25
(c) Interrogating employees about their involvement with emails criticizing the
Respondent and its policies as they affect their terms and conditions of employment;
(d) Orally promulgating an overly-broad and discriminatory rule prohibiting employees 30
from discussing their terms and conditions of employment with other persons, including fellow
employees;
(e) Threatening employees with discharge and other unspecified reprisals because they
engaged in protected concerted activities;35
(f) Orally referencing a written rule in its Electronic Communications Policy that the
Respondent is disparately enforcing in order to prohibit its employees’ use of emails to engage
in protected concerted activities; and
40
(g) Discharging its employee Gloria Johnson because she engaged in protected
concerted activity.
3. The above unfair labor practices affect commerce with the meaning of Section 2(6)
and (7) of the Act.45
4. The Respondent has not violated the Act except as set forth above.
Remedy
50
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
JD(SF)-42-11
56
The evidence having established that the Respondent discriminatorily discharged its
employee Gloria Johnson, my recommended order requires the Respondent to offer her
immediate reinstatement to her former position, displacing if necessary any replacements, or if 5
her position no longer exists, to a substantially equivalent position, without loss of seniority and
other privileges previously enjoyed. My recommended order further requires that the
Respondent make Johnson whole for any loss of earnings, commissions, bonuses, and other
benefits suffered as a result of the discrimination against her. Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New 10
Horizons for the Retarded, 283 NLRB 1173 (1987), plus daily compound interest as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
The recommended order further requires the Respondent to expunge from its records
any reference to the discharge of Johnson, and to provide her with written notice of such 15
expunction, and to inform her that the unlawful conduct will not be used as a basis for further
personnel actions against her. Sterling Sugars, Inc., 261 NLRB 472 (1982). Further, the
Respondent must not make reference to the expunged material in response to any inquiry from
any employer, employment agency, unemployment insurance office, or reference seeker, or use
the expunged material against Johnson in any other way.20
Also, having found that a provision in the Respondent’s Employee Counseling
Statement, as referenced above, is overly-broad and discriminatory, the recommended order
requires that the Respondent revise or rescind the unlawful language, and advise its employees
in writing that said provision has been so revised or rescinded.25
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees 30
by such means. J. Picini Flooring, 356 NLRB No. 8 (Oct. 22, 2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended28
35
ORDER
The Respondent, Grand Canyon Education, Inc., d/b/a Grand Canyon University, its
officers, agents, successors, and assigns, shall
40
1. Cease and desist from:
(a) Maintaining or enforcing an overly-broad and discriminatory written rule in its
Employee Counseling Statement that requires employees to agree to the following: “Although I
understand that I may discuss this plan with my management team, I agree that this coaching & 45
counseling statement is considered extremely confidential and may not be discussed with any

28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)-42-11
57
other current or former employees of Grand Canyon University, its constituents, venders, or
contractors, without prior written notice to and approval from Human Resources;”
(b) Orally promulgating, maintaining, or enforcing an overly-broad and discriminatory rule 5
prohibiting employees from talking to each other about their terms and conditions of
employment, including counseling sessions;
(c) Interrogating employees about their involvement with emails criticizing the
Respondent and its policies as they affect their terms and conditions of employment;10
(d) Orally promulgating, maintaining, or enforcing an overly-broad and discriminatory rule
prohibiting employees from discussing their terms and conditions of employment with other
persons, including fellow employees;
15
(e) Threatening its employees with discharge and other unspecified reprisals because
they engaged in protected concerted activities;
(f) Orally referencing a written rule in its Electronic Communications Policy that the
Respondent is disparately enforcing in order to prohibit its employees’ use of emails to engage 20
in protected concerted activities;
(g) Discharging or otherwise discriminating against any of its employees because they
engaged in protected concerted activities; and
25
(h) In any like or related manner, interfering with, restraining or coercing its employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
30
(a) Within 14 days of the Board’s Order, revise or rescind the written rule in its Employee
Counseling Statement that requires employees to agree “that this coaching & counseling
statement is considered extremely confidential and [other than with management] may not be
discussed with other current or former employees of Grand Canyon University, its constituents,
vendors, or contractors, without prior written notice to and approval from Human Resources;”35
(b) Within 14 days of the Board’s Order, offer Gloria Johnson full reinstatement to her
former job, or if that job no longer exists, to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previously enjoyed;
40
(c) Make Gloria Johnson whole for any loss of earnings, commissions, bonuses, and
other benefits suffered as a result of the discrimination against her, in the manner set forth in the
remedy section of this decision;
(d) Within 14 days of the Board’s Order, remove from its files any reference to the 45
unlawful discharge of Gloria Johnson, and inform her in writing that this has been done, and that
her discharge will not be used against her as the basis of any future personnel actions, or
referred to in response to any inquiry from any employer, employment agency, unemployment
insurance office, or reference seeker, or otherwise used against her;
50
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
JD(SF)-42-11
58
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order;
5
(f) Within 14 days after service by the Region, post at its campus in Phoenix, Arizona,
and its other locations, copies of the attached notice marked “Appendix.”29 Copies of the notice,
on forms provided by the Regional Director for Region 28 after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are 10
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 15
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 8, 2009; and
20
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges 25
violations of the Act not specifically found.
Dated at Washington, D.C. October 21, 2011
30
_______________________
Gregory Z. Meyerson
Administrative Law Judge
35

29 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
You have the right to join with your fellow employees in protected concerted activities.
These activities include discussing working conditions among yourselves, forming a
union, and making common complaints about your wages, hours, and other terms and
conditions of employment, including complaints regarding the quality of leads given to
enrollment counselors, quotas enrollment counselors must meet, and degree programs
available in which to enroll students.
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT maintain the following rule in our Employee Counseling Statement, or any other
rule that prohibits you from talking to each other or other persons about your wages, hours, and
other terms and conditions of employment, including counseling and disciplinary matters:
Although I understand that I may discuss this plan with my management team, I agree
that this coaching & counseling statement is considered extremely confidential and
may not be discussed with any other current or former employees of Grand Canyon
University, its constituents, vendors, or contractors, without prior written notice to and
approval from Human Resources.
WE WILL NOT tell you that you cannot talk to fellow employees about your terms and
conditions of employment, including counseling or discipline that we issue to you or other
employees.
WE WILL NOT threaten you with discharge and other unspecified reprisals if you engage in
protected concerted activities, including discussing your wages, hours, and other terms and
conditions of employment, by email or other means.
WE WILL NOT tell you that you cannot communicate with other persons, including fellow
employees, about your terms and conditions of employment.
WE WILL NOT interrogate you about your communications with fellow employees, by email or
other means, regarding your wages, hours, and working conditions, including discussions which
are critical of our policies.
WE WILL NOT discharge you because you engaged in protected concerted activities, including
by communicating with employees and others concerning wages, hours, and terms and
conditions of employment by email, other means, or in meetings with managers or supervisors.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
WE WILL revise or revoke the rules contained in our Employee Counseling Statement
described above; and WE WILL furnish you with written notice that these rules have been
rescinded, or furnish you with a revised document that does not contain these rules.
WE WILL within 14 days of the Board’s Order, offer Gloria Johnson full reinstatement to her
former position or, if that position no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Gloria Johnson whole for any loss of earnings, wages, commissions, bonuses,
and other benefits suffered as a result of the discrimination against her, less any net interim
earnings, plus interest, compounded on a daily basis.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any and all
records of the discrimination against Gloria Johnson, and WE WILL within 3 days thereafter,
notify Gloria Johnson in writing that we have taken this action, and that the material removed
will not be used as a basis for any future personnel action against her or referred to in response
to any inquiry from any employer, employment agency, unemployment insurance office, or
reference seeker, or otherwise used against her.
GRAND CANYON EDUCATION, INC. d/b/a GRAND
CANYON UNIVERSITY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.