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

National Labor Relations Board - Board Decisions

Jul 12, 2013

359 N.L.R.B. 1481 (N.L.R.B. 2013)

GRAND CANYON UNIVERSITY 1481

359 NLRB No. 164
Grand Canyon Education, Inc. d/b/a Grand Canyon
University and Edmond Bardwell and John
Young, III and Shelly Campbell and Gloria
Johnson. Cases 28–CA–022938, 28–CA–023035,
28–CA–023038, 28–CA–023239, and 28–CA–
023336
July 12, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On October 21, 2011, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Acting General Counsel filed exceptions and a support-
ing brief, the Respondent filed an answering brief, and
the Acting General Counsel filed a reply brief. The Re-
spondent filed cross-exceptions and a supporting brief,
the Acting General Counsel filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,
1
and conclusions
2
only to the
extent consistent with this Decision and Order. We have

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We adopt the judge’s finding that the statements by College of Busi-
ness and Liberal Arts Assistant Vice President Chanelle Ison to Charg-
ing Party Bardwell that the grad team was “opinionated” and “a hard
case” and that Bardwell’s remarks in an employee meeting were disre-
spectful did not constitute an implied threat of unspecified reprisal. In
dismissing this allegation, we find it unnecessary to rely on the judge’s
discussion about Ison’s intent or whether she bore animosity toward
grad team members based on their protected concerted activities.
2 No exceptions were filed to the judge’s dismissal of complaint al-
legations that the Respondent violated Sec. 8(a)(1) by promulgating
unlawful rules to and threatening employee John Young and by main-
taining its written Electronic Communications Policy (ECP). Nor were
exceptions filed to the judge’s findings that the Respondent violated
Sec. 8(a)(1) by Supervisor Ellen Rosa’s interrogation of employees
Johnson and Bardwell about an email critical of the Respondent, orally
promulgating to them and other grad team employees a rule prohibiting
employees from discussing their terms and conditions of employment,
and threatening them and other grad team employees with discharge; by
including an overbroad confidentiality requirement on its Employee
Counseling Statement prohibiting employees from discussing their
counseling sessions with other persons; and by Human Resources
Business Partner Rhonda Pigati’s orally promulgating an overly broad
and discriminatory rule admonishing employees not to discuss their
meetings with management with anyone else.
also modified the judge’s recommended Order and no-
tice, as set forth in full below.
3

1. We adopt the judge’s findings that the Respondent
lawfully discharged Charging Parties Shelly Campbell
and Edmond Bardwell but that its discharge of Charging
Party Gloria Johnson violated Section 8(a)(1) of the Act.
In agreeing with the judge, we note that under Wright
Line,
4
the General Counsel establishes unlawful motiva-
tion by showing that (1) the employee engaged in pro-
tected concerted activity, (2) the employer knew of the
activity, and (3) the employer had animus toward the
activity. Mesker Door, Inc., 357 NLRB 591, 592
(2011).
5
If the General Counsel satisfies this burden, the
employer may overcome it by proving that it would have
taken the action even in the absence of the employee’s
protected concerted activity. Id.
As found by the judge, the Acting General Counsel
demonstrated that Campbell, Bardwell, and Johnson ac-
tively engaged in protected concerted activity and that
the Respondent was well aware of their activity. The
three employees were employed as enrollment counse-
lors on the Respondent’s “grad team,” with responsibility
for pursuing leads on potential students in order to enroll
them in the Respondent’s graduate programs in Christian
studies or criminal justice. They frequently discussed
with their coworkers, and expressed in team meetings
with management, their shared concerns about the quali-
ty of the leads referred to them, the limited degree pro-
grams in which they were permitted to enroll students,
and the consequent difficulty of meeting established en-
rollment quotas.
Although not specifically addressed by the judge, we
further find that the Acting General Counsel satisfied his
burden of showing animus against the employees’ pro-
tected concerted activity. The Respondent committed
numerous violations of Section 8(a)(1), including, among
others: threatening employees with discharge because
they engaged in protected concerted activity; maintaining
on its Employee Counseling Statement and orally affirm-
ing to Campbell a rule prohibiting employees from

3 We modify the Order to conform to the violations found and the
Board’s standard remedial language and in accordance with our recent
decision in Latino Express, Inc., 359 NLRB 518 (2012). We have
substituted a new notice to conform to our modifications.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
5 The judge’s statement of the Wright Line test was unclear as to
whether the General Counsel must also show a nexus between the
employee’s protected concerted activity and the adverse employment
action. The Board has clarified, however, that the initial burden does
not include a “nexus” element. Mesker Door, supra at 2 fn. 5; see also
The TM Group, 357 NLRB 1186, 1186 fn. 2 (2011) (clarifying initial
burden’s elements in analysis of protected concerted activity).
1482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

communicating with others about terms and conditions
of employment, including counseling meetings;
6
dispar-
ately enforcing its Electronic Communications Policy
(ECP) against Campbell;
7
and interrogating employees
about their protected concerted activity. All of these
actions interfere with employees’ Section 7 rights and
evidence the Respondent’s hostility toward the exercise
of those rights.
Nevertheless, as the judge found, the Respondent has
shown that it would have terminated Campbell
8
and
Bardwell
9
even in the absence of their protected concert-
ed activity, but has failed to make this showing with re-
spect to Johnson.
10
Accordingly, we adopt the judge’s
dismissal of the complaint allegations concerning the
discharges of Campbell and Bardwell and his finding that
the Respondent unlawfully discharged Johnson.

6 We agree with the judge that the December 16, 2009 statements by
Senior Vice President of Operations Sarah Boeder and Enrollment
Counselor Manager Helen Schnell to Campbell that she was not to
discuss their counseling meeting with anyone violated Sec. 8(a)(1).
However, we find that the statements constituted an oral affirmation of
the Respondent’s existing written rule, which was found unlawful with
no exceptions, rather than the promulgation of a new rule. See Flamin-
go Las Vegas Operating Co., 359 NLRB 861, slip op. at 862 fn. 4
(2013); St. Mary’s Hospital of Blue Springs, 346 NLRB 776 (2006).
Because no exceptions were filed to the judge’s findings that similar
statements by Rosa and Pigati were oral promulgations of unlawful
rules, we find it unnecessary to pass on whether those statements in-
volved new rules under the above precedent.
7 The Acting General Counsel contends that the Respondent’s excep-
tions and brief fail to specify, as required by Sec. 102.46(b)(1) of the
Board’s Rules and Regulations, how the judge erred in finding that the
Respondent’s enforcement of the ECP as to Campbell violated Sec.
8(a)(1). We agree. In the absence of an argument supporting this ex-
ception, we shall disregard it. See Holsum de Puerto Rico, Inc., 344
NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
8 We have found that the Respondent’s disparate enforcement of the
ECP against Campbell was unlawful and constitutes evidence of ani-
mus. However, these findings do not conflict with the judge’s determi-
nation, which we adopt, that the Respondent satisfied its rebuttal bur-
den with respect to Campbell.
9 In adopting the judge’s finding concerning the discharge of Bard-
well, we do not rely on the judge’s adverse inference against the Acting
General Counsel for failing to call Reverend Gary Dean as a witness.
Nor do we rely on the judge’s speculation concerning Bardwell’s moti-
vation for informing Dean that a minimum of 30 students was required
for establishing a satellite campus.
10 We adopt the judge’s finding, based on Johnson’s credited testi-
mony, that Supervisor Ray Akers gave Johnson permission to complete
part of prospective student Bessie Miller’s application. We further find
that the Respondent’s failure to investigate the conflict between John-
son’s and Akers’ accounts of the incident supports the judge’s finding
that the Respondent failed to meet its Wright Line burden. See Manor-
Care Health Services–Easton, 356 NLRB 202, 204 (2010), enfd. 661
F.3d 1139 (D.C. Cir. 2011). We find it unnecessary to rely on the
judge’s statement that Akers admitted giving Johnson permission to
complete Miller’s application or on the judge’s statement that he failed
to see the seriousness of Johnson’s alleged offense.
2. The Acting General Counsel excepts to the judge’s
finding that the Respondent did not violate Section
8(a)(1) by Rhonda Pigati’s June 2010 interrogation of
employees. We find merit in the exception.
After hearing complaints from the grad team enroll-
ment counselors, Pigati held one-on-one meetings with
team members in her office.
11
Pigati did not inform the
employees of the purpose of the meeting, that their par-
ticipation was voluntary, or that there would be no re-
prisals for refusing to cooperate. She asked each em-
ployee a standard set of questions seeking an evaluation
of Supervisor Rosa and her leadership abilities, as well as
an assessment of team morale.
In her interview with Johnson, Pigati said that she
“was meeting with everyone on the team and that what-
ever we talked about in that office, to keep it confiden-
tial.” Pigati subsequently asked Johnson what she
thought about Rosa as a manager. Johnson replied that
Rosa was trying her best but had not been given “a fair
chance” to learn how to be a manager. She further vol-
unteered that some employees had complained about
Rosa’s managerial style. Pigati asked who those em-
ployees were, and Johnson named three employees. Pi-
gati typed Johnson’s answers into her computer and, as
Johnson was leaving, repeated to her, “[J]ust keep this,
you know, don’t talk to anybody else on the team.” The
judge found that Pigati’s statements to Johnson not to
discuss their conversation with other employees violated
Section 8(a)(1) as the oral promulgation of an overbroad
and discriminatory rule against employees discussing
terms and conditions of employment. As already noted
(see fn. 2, supra), no exceptions were filed to that find-
ing.
The judge also found, however, that Pigati’s question-
ing of Johnson was not an unlawful interrogation under
Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). He reasoned that, although Pigati did
not state the purpose of the interrogation, it should have
been readily obvious to Johnson that its purpose was to
find out how Rosa was doing as a supervisor, and that
Johnson voluntarily mentioned that other employees had
complained about Rosa even before Pigati asked for the
employees’ names. The judge further relied on John-
son’s testimony that she did not feel uneasy, frightened,
or apprehensive in meeting with Pigati and answering her
questions. He viewed the meeting as “routine, non-
confrontational, and with no tension or animosity.”

11 Pigati took notes of her interviews with at least six employees.
Pigati and employees Bardwell and Johnson all testified about the
interviews, with Johnson providing a detailed description of her inter-
view.
GRAND CANYON UNIVERSITY 1483

In determining whether an interrogation is unlawful,
the Board applies a totality-of-the-circumstances test.
Rossmore House, supra; ManorCare Health Services,
supra, slip op. at 17. The Board has identified various
indicia to be considered in the analysis, although they are
not intended to be applied mechanically. Westwood
Health Care Center, 330 NLRB 935, 939 (2000);
ManorCare Health Services, supra. These factors in-
clude whether the employer has a history of hostility or
discrimination concerning employee rights; the nature of
the information sought, i.e., whether the interrogator ap-
pears to have been seeking information on which to base
action against individual employees; the identity and
organizational level of the questioner; the place and
method of the interrogation; and the truthfulness of the
reply. Westwood Health Care Center, supra at 939.
Contrary to the judge’s analysis here, the standard is an
objective one, considering whether the questioning
would reasonably tend to coerce the employee and thus
restrain the exercise of Section 7 rights. ManorCare
Health Services, supra, slip op. at 17; Multi-Ad Services,
331 NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363
(7th Cir. 2001). The determination does not turn on
whether the questioned employee felt intimidated. Id.
Applying the above standard, we find, contrary to the
judge, that Pigati’s interrogation was coercive. By the
time of this meeting, the Respondent had already demon-
strated antagonism toward its employees’ protected ac-
tivity. Notably, in late April 2010, Supervisor Rosa un-
lawfully interrogated employees on her team, including
Johnson, about their knowledge of emails that criticized
higher-ups Ison and Chris Landauer. She also forbade
them to read or forward such emails and threatened them
with discharge if they did so. Moreover, during the same
meeting at which Pigati questioned Johnson, she unlaw-
fully admonished Johnson to keep their discussion confi-
dential. She issued the same instruction to each grad
team enrollment counselor with whom she met.
With regard to the nature of the information sought,
Pigati asked Johnson what she thought about Rosa as a
manager. To be clear, we do not discourage employers
from monitoring supervisors’ performance, including by
asking employees about it, if such questioning is done in
a noncoercive manner. However, Pigati’s questions to
Johnson extended beyond Johnson’s own views to in-
clude the identity of employees who had complained
about Rosa. By this additional questioning, regardless
whether it was prompted by Johnson’s own remark, Pi-
gati sought information concerning protected activity by
other employees concerning their terms and conditions of
employment. Moreover, based on Rosa’s previous inter-
rogation and threatening of the grad team employees
about criticism of the Respondent’s managers, we find
that Pigati’s questions could reasonably have appeared to
seek information in order to take action against employ-
ees. Westwood, supra at 339. By failing to state the pur-
pose of the interrogation, Pigati did nothing to diminish
such an impression.
The identity of the questioner and the place and meth-
od of the interrogation would also have reasonably con-
tributed to a perception of coercion. Pigati, an admitted
supervisor, served as the principal human resources con-
tact for the enrollment staff. In this capacity, she partici-
pated in all areas of human resources management in-
volving the enrollment counselors, from providing bene-
fits information to advising management on and approv-
ing employee discipline and termination. She conducted
the interrogations of employees on a one-on-one basis, in
her office with the door closed. As noted above, she
unlawfully directed employees to keep the discussion
confidential, although, based on Pigati’s position, em-
ployees could reasonably anticipate that their responses
would be shared with other members of management.
Only one of the Westwood factors, Johnson’s apparent
candor, favors the judge’s determination that Pigati’s
questioning of her was not coercive, and it fails to out-
weigh the other indicia of coercion surrounding the ques-
tioning. Accordingly, based on due consideration of all
of the above factors, we conclude that the interrogation
violated Section 8(a)(1).
12

ORDER
The Respondent, Grand Canyon Education, Inc. d/b/a
Grand Canyon University, Phoenix, Arizona, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing an overly broad 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 confiden-
tial and may not be discussed with any other current or
former employees of Grand Canyon University, its
constituents, vendors, or contractors, without prior writ-
ten notice to and approval from Human Resources.

(b) Orally affirming an overly broad written rule pro-
hibiting employees from talking to each other about their

12 Because we find that Pigati’s questioning of Johnson constituted
an unlawful interrogation, we find it unnecessary to pass on her ques-
tioning of other grad team employees, as such findings would not affect
the remedy.
1484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

terms and conditions of employment, including counsel-
ing sessions.
(c) Interrogating employees about their involvement
with emails criticizing the Respondent and its policies as
they affect terms and conditions of employment.
(d) Orally promulgating, maintaining, or enforcing an
overly broad and discriminatory rule prohibiting employ-
ees from discussing their terms and conditions of em-
ployment with other persons, including fellow employ-
ees.
(e) Threatening its employees with discharge and other
unspecified reprisals because they engaged in protected
concerted activities.
(f) Disparately enforcing its Electronic Communica-
tions Policy in order to prohibit its employees’ use of
emails to engage in protected concerted activities.
(g) Discharging or otherwise discriminating against
any of its employees because they engaged in protected
concerted activities.
(h) Coercively interrogating employees regarding their
protected concerted activities or those of other employ-
ees.
(i) In any like or related manner interfering with, re-
straining, 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.
(a) Within 14 days from the date of this Order, rescind
the overly broad written rule in its Employee Counseling
Statement that requires employees to agree to the follow-
ing:

Although I understand that I may discuss this plan with
my management team, I agree that this coaching &
counseling statement is considered extremely confiden-
tial and may not be discussed with other current or
former employees of Grand Canyon University, its
constituents, vendors, or contractors, without prior writ-
ten notice to and approval from Human Resources.

(b) Within 14 days from the date of this 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.
(c) Make Gloria Johnson whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(d) Compensate Gloria Johnson for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(e) Within 14 days of this Order, remove from its files
any reference to the unlawful discharge of Gloria John-
son, and within 3 days thereafter notify her in writing
that this has been done and that her discharge will not be
used against her in any way.
(f) 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 desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(g) 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.”
13
Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 28, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent 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. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
GRAND CANYON UNIVERSITY 1485

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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain or enforce an overly broad rule
in our Employee Counseling Statement that requires you
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 confiden-
tial and may not be discussed with other current or
former employees of Grand Canyon University, its
constituents, vendors, or contractors, without prior writ-
ten notice to and approval from Human Resources.

WE WILL NOT tell you that you are prohibited from
talking to fellow employees about your terms and condi-
tions of employment, including counseling sessions.
WE WILL NOT coercively interrogate you about your
involvement with emails criticizing us and our policies as
they affect terms and conditions of employment.
WE WILL NOT orally announce, maintain, or enforce an
overly broad and discriminatory rule prohibiting you
from discussing your terms and conditions of employ-
ment with other persons, including fellow employees.
WE WILL NOT threaten you with discharge and other
unspecified reprisals if you engage in protected concerted
activities.
WE WILL NOT inconsistently enforce our Electronic
Communications Policy in order to prohibit your use of
emails to engage in protected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in protected concerted
activities.
WE WILL NOT coercively interrogate you about your
protected concerted activities or those of other employ-
ees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the overly broad written rule in our Em-
ployee Counseling Statement that requires you 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 confiden-
tial and may not be discussed with other current or
former employees of Grand Canyon University, its
constituents, vendors, or contractors, without prior writ-
ten notice to and approval from Human Resources.

WE WILL, within 14 days from the date of the Board’s
Order, offer Gloria Johnson full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Gloria Johnson whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL compensate Gloria Johnson for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Gloria Johnson, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.

GRAND CANYON EDUCATION, INC. D/B/A
GRAND CANYON UNIVERSITY

Chris J. Doyle, Esq., for the General Counsel.
Richard S. Cohen, Esq. and Jeffrey Toppel, Esq., of Phoenix,
Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant 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 indi-
1486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

vidual, 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 individu-
als will be referred to collectively as the Charging 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 Re-
spondent appeared at the 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 con-
clusions of law.2
FINDINGS OF FACT
I. JURISDICTION
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 reve-
nues, excluding contributions which, because of limitations by
the grantor, are not available for operating expenses, in excess
of $1 million; and during the same period of time, also pur-
chased and received at the Respondent’s campus goods valued
in excess of $50,000 directly from points outside the State of
Arizona.
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 PRACTICES
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) be-

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 re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 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 un-
worthy of belief.
cause 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 ac-
tivity allegedly engaged in by the Charging Parties consisted
primarily of complaining among themselves, to other enroll-
ment counselors, and to various managers and supervisors
about the poor quality of the 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 these leads, and the number of
leads they were required to enroll as students. Additionally, the
General Counsel alleges that the Respondent violated Section
8(a)(1) of the Act by promulgating, maintaining, and/or enforc-
ing overly broad and discriminatory rules of conduct concern-
ing protected activity, including the sharing of information
regarding wages, hours, and working conditions, and by inter-
rogating and threatening employees regarding their protected
concerted activity.
The Respondent denies that it discharged Bardwell, Camp-
bell, or Johnson because they engaged in protected concerted
activity or, in the case of Bardwell, because he previously filed
charges with the Board. It is the Respondent’s position that it
fired Bardwell, Campbell, and Johnson, respectively, for sepa-
rate and distinct reasons, all of which constituted good cause
for termination. The Respondent contends that it does not re-
strict, limit, or prohibit its employees from engaging in legiti-
mate protected concerted activity. Further, the Respondent
denies that its policies and work rules as written or applied
constituted a violation of the Act.
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 degree pro-
grams through its College of Business, College of Liberal Arts,
College of Education, and College of Nursing and Health Sci-
ences. Students obtain their degrees either through online edu-
cation 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 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.
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 en-
rollment 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
individuals who have expressed interest in becoming one of
Grand Canyon University’s students. The University obtains
GRAND CANYON UNIVERSITY 1487

these leads from a number of sources including from paid,
third-party vendors, and also through its own employees,
known as outside sales representatives.
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 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 employees could enroll students in online degree
programs, internet enrollment counselors were precluded from
enrolling students interested in attending traditional live clas-
ses. While this distinction no longer exists, it is unclear to the
undersigned precisely when this policy changed.
Grand Canyon University has a strict lead delegation proce-
dure that first involves categorizing the lead and then distrib-
uting that lead to the appropriate “team” of enrollment counse-
lors. With respect to the internet generated leads (which would
be handled by internet enrollment counselors), the process be-
gins when a potential student’s information is sent from the
vendor to the University’s database. From there the lead is au-
tomatically routed, with the 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.
Ison testified that enrollment counselor teams include be-
tween 10 and 15 counselors, who are supervised by an enroll-
ment 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 Colleg-
es of Business and Liberal Arts were limited to enrolling stu-
dents in either graduate or undergraduate programs, but not
both. In any event, at the time of their respective terminations,
the three Charging Parties were all employed as internet en-
rollment 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 tes-
timony that during the period in question, all enrollment coun-
selors were subject to the very same quota requirements, re-
gardless of the number of degree programs they were assigned.
For the three Charging Parties who were assigned to the gradu-
ate 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

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 inter-
changeably, there was some indication in the record that during some
period of time, these were two distinct job classifications.
Christian studies. Having only two degree 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 availa-
ble in which to enroll students.4
The quota requirements that the enrollment counselors
worked under changed 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 3-month average of 80–89
dials (calls) per day, and to average between 3 and 4-½ of stu-
dent talk time per day. (GC Exh. 4, p. 4.)
The three Charging Parties adamantly and repeatedly testi-
fied that the University’s quotas were the main source of frus-
tration 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 testimo-
ny of employee witnesses that the University was continually
increasing the quotas. Shelly Campbell testified that the quota
of 80 dials per day, in 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 Camp-
bell’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.
Both Campbell and Johnson testified that there could be ad-
verse 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 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 con-
tains 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 and 120 and we are
expected to be held accountable to that.” (GC Exh. 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
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 stu-
dents. Chanelle Ison testified regarding Grand Canyon Univer-
sity’s “Minimum Enrollment Expectations” policy as found in
the Compensation Plan. (GC Exh. 4, p. 4.) Her testimony was
somewhat confusing, but the written expectation policy seems
clear. New enrollment counselors are expected to have ensured

4 Within each degree program, there were a number of individual
degrees available.
5 This reference to 120 calls per day seems to support Johnson’s tes-
timony.
1488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

that at least three students have completed their first online
course by the end of the counselor’s 5th 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 counse-
lor’s 6th month of employment. The number of expected
course completions rises once an enrollment counselor has
become “tenured” or has worked more than 6 months.
As is obvious from the above, enrollment counselors were
expected to maintain contact with the students that they en-
rolled 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 difficul-
ties, which the new student might be having in registration,
course selection, or with online access to the course materials,
could be remedied. Thus, both the University and the enroll-
ment counselor had a vested interest in making sure that the
enrolled student was successfully managing the course enroll-
ment process. The Charging Party witnesses confirmed this
requirement. However, they contend that the enrollment expec-
tations quota continued to increase during the term of their
employment. Campbell testified that by the time that she was
terminated on February 23, 2010, her enrollment quota had
increased from 12 students every 2 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.
In any event, all three Charging Parties testified that they
vigorously and clearly expressed their frustration with the qual-
ity of the leads that they were receiving and the fluctuating and
difficult to meet quotas. They claim that these frustrations were
repeatedly discussed among the members of the graduate team
and directly with the Employer’s various supervisors and man-
agers. While the various witnesses for the Respondent and the
General Counsel each seems to recall dates and events some-
what differently, there is general agreement that starting some-
time 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 studies teams, and by limiting
the enrollment counselors in that team to enrolling only gradu-
ate students.
Two additional sources of irritation to the members of the
grad team were the Employer’s decisions during this same ap-
proximate 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 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.

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 meet-
ings, and frequently also hold “daily huddles,” around the su-
pervisor’s desk. It was during these meetings that the Charging
Parties and other members 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 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
posthearing brief takes the position that the ultimate decision
maker regarding the terminations of Campbell, Johnson, and
Bardwell, namely Sarah Broeder, senior vice president of oper-
ations, was personally unaware of their 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
encouraged its enrollment counselors to raise workplace con-
cerns, 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 Bend-
er, 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.
In setting forth the work-related complaints that the Charg-
ing 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 prospec-
tive students were terrible.” She also stated 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 Camp-
bell, was “always voicing that to management because we were
only able to enroll in select programs.”
Johnson and Bardwell shared the same sentiments as Camp-
bell, and testified that they 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, John-
son 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 opin-
ions.” The clear 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
GRAND CANYON UNIVERSITY 1489

also complained about the limited number of graduate degrees
offered at the College of Liberal Arts under the Christian Stud-
ies and criminal justice programs (a total of seven) in which
they could enroll students, and also complained about having to
“give away” prospective student referrals for international stu-
dents 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 specif-
ically to enroll International students and Arizona residents.
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 bet-
ter leads. Johnson testified that even after Campbell was termi-
nated 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 stud-
ies, and that those were the only programs that [we] had,” and
that “she couldn’t get any 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.”
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 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.
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
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 enrollment counselors, whose main job duties

6 It is unclear what the acronym stands for.
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.
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 mon-
itoring involved screening calls based on a specific category of
call, the department also had the ability to specifically select
individual calls based 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 6 months before
they are destroyed.
Grand Canyon University maintains an Electronic Commu-
nications Policy, which regulates employee usage of the Em-
ployer’s email system, among other things. This policy is out-
lined in the Human Resources Policies and Procedures manual
under the subsection for compliance, which has been in effect
since November 1, 2008. (GC Exh. 5.) The policy states in
relevant part that: “Email should be used for the purpose of
University business. Inappropriate use includes. . . . Emails
considered discriminatory or harassing in nature; Sending chain
letters or participating in any way in the creation or transmis-
sion 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: “Employees may
not use an electronic communication system for a purpose
found to constitute, in the University’s sole and absolute discre-
tion, 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–SPAM Act of 2003).”7

However, despite its written email policy, the testimony of
various witnesses established that the Respondent freely per-
mits its employees to send and receive emails that are non busi-
ness related, as well as business related. This includes the
sending and receiving of humorous emails and those of a per-
sonal nature. Further, while the policy specifically prohibits
what is referred to as “inappropriate use” of the email system

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 6 months
prior to the filing of the first unfair labor practice charge, which allega-
tions are raised in the complaint before me, and might otherwise run
afoul of Sec. 10(b) of the Act. As will be discussed further below, the
General Counsel alleges in pars. 4(b) and 5 of the complaint that this
language constitutes a violation of Sec. 8(a)(1) of the Act.

1490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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.
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 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 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.
When the Respondent hired Campbell in April 2008, the Re-
spondent 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 em-
ployment, Campbell sent work-and-nonwork related emails to
her coworkers on the University’s email system. (GC Exhs.
11–12.) Campbell testified that none of her coworkers 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 Septem-
ber 11, 2008, regarding the 9/11 attacks.
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 coworkers that included a joke referenc-
ing a jellyfish sting injury to a diver’s buttocks. (GC Exh. 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 Campbell an “email warning,” which advised
her that Lair had received a complaint regarding certain “per-
sonal 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 Universi-
ty’s email system is understandable, forwarding jokes, 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 occa-
sions, then disciplinary action will be forthcoming.” (R. Exh. 1,
Bates stamp 0491, first page of Campbell’s termination re-
quest.)
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 sunbathing woman. According to
Campbell, management encouraged their enrollment counse-
lors, 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.
However, apparently this type of picture was not what man-
agement had in mind, as, almost immediately, Jacob Mayhew,
the director of enrollment, replied back to the entire team in-
structing them that “pictures need to be appropriate.” (GC Exh.
12.) Mayhew also emailed Campbell individually informing her
that the picture was not appropriate and that she should “change
[the] picture,” which she then did. (GC Exh. 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 inappro-
priate use of the University’s email system,” and offended
some of her teammates. It further referenced a July 7, 2009,
warning that she had previously received from human resources
regarding inappropriate use of the University’s email system.8
The statement further indicated that: “You are expected to con-
duct yourself in a professional manner at all times, which in-
cludes following the University’s policies regarding appropriate
communications and computer usage. As a consequence for
repeated disregard for the University’s policy in this regard,
you are prohibited from any future personal use of the Univer-
sity’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 em-
ployment.” (GC Exh. 14.)
It is important to note that the employee counseling state-
ment 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 em-
ployee of Grand Canyon University, its constituents, venders,
or contractors, without prior written notice to and approval
from Human Resources.” (GC Exh. 14.) It appears from the
Employee counseling statement that this is “boilerplate” lan-
guage, which language the University utilizes whenever the
form is used to discipline an employee.9
As part of its Quality Assurance Program, Todd Christian-
son, a member of that team, listened to a recorded telephone
call between Campbell and a prospective student made on De-
cember 2, 2009. He testified that he specifically remembers the
call because of “the egregious things that actually took place

8 I assume that the date was simply a typographical error and that ra-
ther than July 7, 2009, the reference was really to the warning Camp-
bell had received on July 2, 2009.
9 As will be discussed in detail later in this decision, the General
Counsel has alleged in pars. 4(c) and 5 of the complaint that this lan-
guage is in violation of Sec. 8(a)(1) of the Act. It is assumed by the
undersigned that the complaint only alleges the existence of this lan-
guage in the employee counseling statement since September 8, 2009,
as this date is less than 6 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 Sec. 10(b) of the Act.
GRAND CANYON UNIVERSITY 1491

during this call.” Christianson explained that this call received a
total score of 3 out of 100 based on a scoring matrix that in-
cluded various categories 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 in-
cludes direct quotes from the call. Christianson also explained
that when he gets a “failed call” that includes compliance is-
sues, he will notify his manager who would then notify the
enrollment counselor’s manager.
Sometime in early December 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 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.” Accord-
ing to Boeder, she did not instruct Quality Assurance to select
the calls of any specific employees but only to compile a sam-
ple of “good and bad calls.”
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 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.
On December 16, 2009, Boeder and Enrollment Manager
Schnell met with Campbell to discuss the various alleged in-
fractions that had occurred during the December 2 call. Initial-
ly, 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, 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 De-
cember 30, 2009 Employee Counseling Statement that Camp-
bell received. They included: “Misrepresentation of the Univer-
sity’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 re-
viewing 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 recog-
nized for online excellence; Communicating to the student that
there are no tests in the online programs; Guaranteeing em-
ployment; [and] Indicating salary amount that could be ex-
pected upon completion of the program.” (GC Exh. 6.)
Boeder testified that during the meeting Campbell became
very defensive and 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 en-
rollment 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 student was
actually correct, and that other statements that she had made
were the same type of statements other enrollment counselors
made to prospective students. She insisted that she had heard
them make such statements from their workstations, even
though she had previously testified that she wore a headset
while on the phone with students.
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 enroll-
ment counselors who 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 regarding her telephone call with the pro-
spective student on December 2, for which she was counseled
on December 16. As mentioned above, the counseling state-
ment contained those alleged infractions as bullet points. (GC
Exh. 6.) As with all such Employee Counseling.11
Sarah Boeder testified that she personally made the decision
not to terminate Campbell 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 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 Janu-
ary 20, 2010. On that date, she received an email from another
enrollment counselor, Jacob Husband, making fun of the Uni-
versity’s lead policy as it related to the referral of leads to other
teams. (GC Exh. 43.) Campbell subsequently forwarded this
email to several other enrollment counselors and a student us-
ing the University’s email system. Campbell testified that she
forwarded the email to the student inadvertently, but apparently
sent the message on to her coworkers because she found it fun-
ny. She testified that when she realized that she had mistakenly

10 It appears that these statements by Boeder and Schnell are alleged
by the General Counsel in par. 4(d) of the complaint to constitute a
violation of Sec. 8(a)(1) of the Act. Statements, above the employee’s
signatory line was a boilerplate statement regarding confidentiality.
11 As mentioned earlier, the General Counsel alleges in par. 4(c) of
the complaint that such language in employee counseling statements
constitutes a violation of Sec. 8(a)(1) of the Act.
1492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

sent the email to 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 miscon-
duct on Campbell’s part. The termination report 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.” (R. Exh. 1, Bates stamp 0493.)
On February 9, 2010, Campbell sent an email to student
Donnell Miller that gave her instructions for accessing a weekly
homework assignment. (GC Exh. 17, and R. Exh. 1, Bates
stamp 0518.) Miller had contacted Campbell because she was
unable to get logged onto her online account, which was neces-
sary to get the weekly class assignments. This was a technology
issue of some kind. Miller was apparently a student that Camp-
bell had enrolled in the University. Campbell testified that there
could have been significant repercussions for the 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 was
afraid of falling behind in her assignments. Campbell was able
to email the information to Miller because she had in her pos-
session 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 attempt-
ed to get the technical issue resolved, but was simply directed
to contact the technical support unit. She also testified that her
immediate supervisor, 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
she did not give Campbell permission to send the email in ques-
tion, 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 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. Accord-
ing to Landauer, he only became involved in the incident once
it was reported as a possible compliance violation. (R. Exh. 1,
Bates stamp 0519–0520.)
Rosa testified that the specific course that the student was
having a problem with is called “University Success.” It is de-
signed 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 access to
the assignment through a link in an email, Campbell was, ac-
cording to Rosa, giving the student academic, and not merely
technical assistance. This was prohibited under the Universi-
ty’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.”
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 possi-
ble compliance violation, and, so, she discussed the matter with
Erin Hernandez, who advised that they talk with Linda Lair,
human resources manager. Rosa also brought this matter to the
attention of Chris Landauer. After determining that a compli-
ance violation may have occurred, he sent an email to Heyward
Howell, compliance officer, on February 11 detailing the inci-
dent. Howell responded the following day and instructed Lan-
dauer to “follow up with Linda,” and that he would assist in
gathering evidence in the matter. (R. Exh. 1, Bates stamp 0519–
0520.)
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 inappro-
priate conduct, but, rather, by a pattern of misconduct. Boeder
was particularly troubled by Campbell’s “bad call” to a pro-
spective student in December 2009 as recorded by the Quality
Assurance Department, and the February 2010 incident involv-
ing improper assistance given to student Miller. The termina-
tion 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 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. Accord-
ing to Campbell, all the items on the termination request form
(GC Exh. 7) were discussed with her as reasons for her termi-
nation, with the exception of the July 2, 2009 email warning
and the August 3 incident involving the picture of the sunbath-
ing 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 Following her termination
interview, Campbell was escorted out of the building.
From his posthearing brief, it is clear that counsel for the
General Counsel takes the position that Campbell was fired
principally because on January 20, 2010, she forwarded an
email to fellow enrollment counselors and a student that

12 It is apparently this alleged statement by Rosa that the General
Counsel contends in complaint pars. 4(k) and (5) constitutes a violation
of Sec. 8(a)(1) of the Act. It should 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.
GRAND CANYON UNIVERSITY 1493

“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 2009 to a prospective student and the Feb-
ruary 2010 incident where Campbell improperly assisted stu-
dent Miller. While the human resource representative who pre-
pared the termination packet referenced, among other infrac-
tions, 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.
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 2,
2010. In order to place his termination in context, it is neces-
sary 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 6
months, he was promoted to the position of inside sales repre-
sentative. However, he claims to have had a “dual role” that
included certain outside sales representative duties. In that ca-
pacity, he claims to have traveled to various States outside of
Arizona on behalf of the University. After approximately 8
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.
Bardwell testified that about that time he met with members
of management during an executive luncheon, at which he pre-
sented an executive of the University with a business proposal
about the Christian studies department. As a result of his pro-
posal, he was permitted to solicit for leads directly at churches
and 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 partner-
ships with churches in order to solicit student leads. However,
at some point Jacob Mayhew, the director of enrollment, in-
formed her that Bardwell’s position was going to be changed
since his work with the churches was not benefiting the Univer-
sity. He was going to be transferred back to an inside enroll-
ment 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 rela-
tionship with the churches, after which he was expected to re-
turn to the job of an enrollment counselor.
Bardwell admits that he was transferred back to his old posi-
tion 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 that this
“dual role” was open-ended with no sunset date. However, as
noted, Madden disagrees, contending that Mayhew’s instruc-
tions to Bardwell were clear, that he must relinquish his direct
church solicitation duties and return full time to the position of
an enrollment counselor.
As proof of Madden’s testimony, counsel for the Respondent
offered into evidence a typewritten 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 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 Mad-
den’s testimony that Bardwell was to relinquish all contacts
with 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. (R. Exh. 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
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 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.” (R. Exh. 12.)
Bardwell has filed several charges against the University
with the Arizona Attorney General’s Office, Civil Rights Divi-
sion and with the U.S. Equal Employment Opportunity Com-
mission (GC Exh. 46, February 10, 2009, and GC Exh. 48,
March 8, 2010). These charges allege employment discrimina-
tion 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. (GC Exhs. 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
setting up a meeting with Chanelle Ison, associate vice presi-
dent, 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

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 Rever-
end Dean in that community.
1494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and the entire grad team around April 14, 2010. There is a
dispute, however, on who prompted the meeting, with Johnson
suggesting that Bardwell did so, soliciting support from
coworkers to have a team-wide meeting where they could dis-
cuss their discontent about their working conditions. On the
other hand, Ison testified that the meeting, which she referred to
as “Start, 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
met with the grad team for one of her periodic “Start, Stop, and
Continue” meetings on about April 14. There is no dispute that
the meeting included a teamwide 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 some-
one who could compile a list of bad leads and report back to
her. Enrollment Counselor Brad Bender volunteered. Also dur-
ing 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 re-
view. Ison was apparently appreciative of Bardwell’s efforts,
because on April 14, 2010, she sent him an email thanking him
for volunteering to “put the form together.” Further, she in-
formed him that she had “sent the request to HR,” and would
let him know of their reaction. (GC Exh. 9.)
There was a followup meeting between Ison and the grad
team in either late April or early May 2010. During the meet-
ing, 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 deci-
sion, stating that it was crucial for the grad team to have a sur-
vey because it would help improve morale. 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 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 2010, Ellen Rosa held one of her regular
weekly meetings with the grad 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 con-
tinuing to discuss the enrollment lead issues, the quota situa-
tion, and other employment-related issues with fellow team
members.

14 It is alleged in complaint par. 4(h)(1) and (2) that this statement by
Ison constituted a violation of Sec. 8(a)(1) of the Act.
Apparently in late April 2010, an employee sent an email to
coworkers over the Respondent’s email system criticizing Cha-
nelle Ison and Chris Landauer. Johnson testified that at some
point in late April, Ellen Rosa approached her privately regard-
ing 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 and relayed to the entire team that
same information about the email that she had given earlier to
Johnson.
Bardwell also recalled Rosa talking with the grad team em-
ployees about this email criticizing Ison and Landauer. He testi-
fied 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.15
During the second week of June 2010, Rhonda Pigati, a hu-
man resource manager and admitted supervisor, held a number
of private one-on-one meetings with some members of the 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 appar-
ent 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 deter-
mine the level of team morale. (GC Exhs. 32–37.)
According to Johnson, when she first sat down for the meet-
ing, she was told by Pigati that Pigati “was meeting with every-
one on the team and that whatever we talked about in that of-
fice, to keep it confidential.” Pigati proceeded to ask Johnson
what she thought about Ellen Rosa as a manager. Johnson indi-
cated that Rosa was trying her best, but had not been given “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 [Ro-
sa] 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. 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

15 The General Counsel alleges in complaint pars. 4(g)(1),(2), and
(3) that these statements by Rosa constituted a violation of Sec. 8(a)(1)
of the Act.
16
The General Counsel alleges in complaint pars. 4(i)(1) and (2) that
these statements by Pigati constituted a violation of Sec. 8(a)(1) of the
Act.
GRAND CANYON UNIVERSITY 1495

Pigati conducted a similar closed door meeting with Bard-
well. As she had with Johnson, 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 meet-
ings included an open discussion of the team’s frustration sur-
rounding quotas and the 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.
At some point in the middle of July, Chanelle Ison held an-
other 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 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 as-
signed. 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 denied this suggestion
out of hand.
Apparently the discussion became somewhat heated. Bard-
well, who had indicated, along with several other employees,
that they were unable to work the night shift, voiced his dis-
pleasure 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 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.”
According to Bardwell, later that day he spoke with Ni-
colette 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 prob-
lem.”
Bardwell then met privately with Ison and reiterated that he
did not want her “to get the 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. Howev-
er, 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.” That was the end of their conversation.

17
A few days after the team meeting, Johnson approached Ray
Akers and mentioned that 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 rejec-
tion from management. Akers replied, “That’s what manage-
ment 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.”
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 Rev-
erend Gary Dean of Texarkana, Texas. While it is unclear ex-
actly 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
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
“like to see more about your programs.” Further he says, “Pas-
tor is very interested in a school at our church and would like to
know what the requirements are?” (GC Exh. 24.)
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 entirely clear, Bardwell seems to testi-
fy 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.
Dean did subsequently enroll in a Masters’ degree program
in Christian studies, and he and Bardwell communicated fre-
quently, 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 cam-
pus.” 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 903–
319–3521 before 5:00 pm Central Time. Thank you Rev. Gary
G. Dean Sr.” (GC Exh. 25.)

17 It is alleged in complaint pars. 4(j)(1) and (2) that these statements
by Ison constituted a violation of Sec. 8(a)(1) of the Act.
1496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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
was enrolled first as a student. Further, on cross-examination,
Bardwell testified that Dean was the one who said, “[H]e want-
ed 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.”
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 “[y]ou 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 “[i]f you can
do that, I’ll feel comfortable going to the higher-ups,” but, addi-
tionally, he allegedly told Dean that if the “higher–ups” denied
the request, then there would be no satellite campus. The in-
formation 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
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, 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.” (GC Exh. 26, Bates stamp 018.) Admitted
into evidence were several pages from the “Texarkana Ga-
zette,” 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 Acade-
my II, a home school program, for grades K-12 and university
classes via satellite from Grand Canyon University, call 903–
319–3521.” (GC Exh. 27.) (Emphasis added by me)
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
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 record-
ed, apparently because the call was not made using the Univer-
sity’s phone system.
According to Bardwell, he had additional phone conversa-
tions with Dean following the August 19 email, but he is uncer-
tain how many or when they occurred. Dean is very vague re-
garding these calls. While some of these conversations were
made using the University’s 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 occa-
sionally 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 ad-
mitted 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 conversa-
tion recorded.”
Bardwell testified that on August 20, he talked with Dean on
his cell phone, and advised Dean that the requirement for estab-
lishing a satellite campus was to have at least 30 students en-
rolled. Dean indicated that he only had about 18 students will-
ing to enroll, which Bardwell told him was an inadequate num-
ber 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
students to meet the University’s requirements. This was the
last conversation between Bardwell and Dean, prior to Bard-
well’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 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, I specifical-
ly asked Bardwell 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 his cell phone allowed him to “talk to stu-
dents 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 from the
University’s phone system. Entered into evidence was the tran-
script of a phone conversation between Dean and Bardwell,
which occurred on August 20, 2010. (R. Exh. 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 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 con-
versation, Dean says, “And now I’ve got my new church up and
running. . . . And we want to be able to put 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,” sug-
gesting that Bardwell was in effect agreeing with the statements
GRAND CANYON UNIVERSITY 1497

Dean was making. Bardwell’s responses to counsel were eva-
sive 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, Bardwell does admit that
after the call on the University’s system, the one that was rec-
orded, 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.”
A call on the University’s system on August 30, 2010, be-
tween Dean and Bardwell was also recorded and admitted into
evidence. (R. Exh. 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 respond-
ed, “Well, that’s why I’m calling you, we’re trying to get the
satellite 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 infor-
mation and literature by email. However, Bardwell testified
that, once again, he followed the phone conversation on the
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.
It is Bardwell’s testimony that he never told Dean that Dean
needed to register for class before there could be any considera-
tion 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 mini-
mum of 30 students were willing to 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 au-
thority 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).
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 one
particular spot check they listened to one of Bardwell’s conver-
sations with Reverend Dean that included a discussion of po-
tentially setting up a satellite campus. Akers defined the reac-
tion 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, tes-
tified that after reviewing two calls that Bardwell had with

18 On the record, the parties agreed that this transcript should have
been labeled as, Transcription of Voice Mail Message #2.
Dean on August 20 and 30, 2010, a decision was made to ter-
minate Bardwell. Boeder was the ultimate decisionmaker, and
decided on termination because: (1) Bardwell failed to follow
the extensive process needed to establish a satellite 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. Manage-
ment 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 University, which
he did. Boeder testified that Bardwell had absolutely no author-
ity 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 pro-
cess to establish a satellite campus takes months, if not years, is
very complicated, and involves numerous individuals and ap-
provals from various internal University offices and state agen-
cies. As of the 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 workday on September 2, 2010, Bard-
well met with Rhonda Pigati and Chanelle Ison. According to
Bardwell, Pigati informed him that he had been terminated for
“setting up satellite campuses.” He was just “discombobulat-
ed” 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 directly. Bardwell defend-
ed 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 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 ap-
proved 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 compli-
ance violations. (GC Exh. 3.) In reviewing the termination doc-
ument and its attachments, it is fairly clear to me that the Re-
spondent’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 believ-
ing that Bardwell was likely to arrange for such a satellite cam-
pus, once enough students who were affiliated with the church

19 By this statement I assume that he was referring to his contention
that when he returned to the job of enrollment counselor, Jacob May-
hew had allegedly allowed him to continue his work with churches in
the capacity of an outside sales representative (OSR).
1498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

enrolled with the University. It appeared from the correspond-
ence 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 campus, or even to raise that issue with Dean. Accord-
ingly, 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 correspond-
ence 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 ca-
pacity to learn of Bardwell’s 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 Johnson
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.
According to Johnson, enrollment counselors were required
to send an email application packet to a lead interested in enrol-
ling as a student, which packet included documents that the
student would have to fill out in order to complete the applica-
tion process. Once the student filled out the enrollment appli-
cation materials fully, those completed materials were returned
to the enrollment counselor who would then be able to print out
the documents.
On July 15, 2010, at 7:38 a.m., 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 de-
gree 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 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 At-
tended” was left blank, and Miller had 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 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 her application both the name of the school that she
had attended and the location of the school.
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
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 been men-
tioned in Johnson’s posttermination 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 Hus-
band, Johnson testified that 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
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
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 any-
thing 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.
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 5 minutes, Johnson told Miller that as her super-
visor had given permission, she was going to write in 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 at-
tended 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.
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 John-
son was not officially on Akers’ team.20 Therefore, Rasmussen

20 Apparently at the time, Akers was a temporary manager for the
grad team, and not “officially” the manager.
GRAND CANYON UNIVERSITY 1499

suggested that Akers speak with Rhonda Pigati, who had the
ability to listen to the recorded call.
According to Akers, as he was getting ready for work on Ju-
ly 16, “something stuck out to me about the form,” and “it oc-
curred to me that it was a different color ink, it was like a pur-
ple 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 re-
quested and Akers replied, “Okay, next time just go ahead, send
it 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 “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 me 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
that after Johnson had shown him the transcript form and asked
him if it was okay to send it on for processing with a handwrit-
ten correction, that he had told Johnson that he “didn’t think the
handwriting would be a problem.” However, according to Pi-
gati, Akers claimed that the next day when he 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 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 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 hand-
written 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 under-
stood that this was a violation of the University’s “zero toler-
ance non-compliance policy.”
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 applica-
tion materials. Johnson replied that she did, and Pigati stated
that Johnson was going to be terminated for writing on the tran-
script 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 meeting.
The involuntary termination request form for Johnson indi-
cates 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 real-
ized 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 be-
half. 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 signtures
or posing as a student as part of internal or external communi-
cation.’” The final approval of the termination was by Nikki
Mancuso and Sarah Boeder. (GC Exh. 20.)
In his posthearing brief, counsel for the General Counsel ar-
gues that Johnson did not falsify any information or pose as a
student as alleged in the termination request form. In 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 re-
quest form.
Johnson testified that later in the week that she was terminat-
ed, 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, “every-
thing . . . that I talked about and what happened step-by-step.”
In response she received a call from Patti Stoner, an alleged
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. How-
ever, Johnson strongly asserts 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 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 appar-
ently seeing that the changes were already made. Of course,
Akers subsequently claimed that he misunderstood what John-
son was asking, and offers this as an excuse for having told her
it was okay to make the changes. I will have more to say about
this incident in the analysis section of this decision.
1500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

4. John Young
As noted earlier, John Young III, filed an unfair labor prac-
tice charge against the Respondent, as captioned above, which
has been consolidated with the other cases captioned above into
the complaint that is before me. 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 the testimony of human resource manager and ad-
mitted 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. Appar-
ently around January 2010, Lair was investigating a complaint
that an employee Jensen 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 investi-
gation, you had told Mr. Young not to discuss what was said
between you and he, correct?” Lair responded, “I don’t remem-
ber telling him that during our conversation, no.” After some
further dialog, counsel’s followup 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.”
Lair also testified that Young was no longer employed at the
University, having been terminated. Young filed his own com-
plaint with human resources regarding his termination. Lair
investigated that complaint and interviewed Young apparently
around March 2010. According to Lair, her interview with
Young involved whether Young had had a physically alterca-
tion 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, cer-
tainly, when you’re investigating an allegation that could lead
to termination, you want your investigation to be confidential,
correct.” In response, Lair said, “Correct.”
As I indicated above, counsel for the General Counsel of-
fered no other evidence of any kind, documentary or testimoni-
al, to support these specific complaint allegations.
III. LEGAL ANALYSIS AND CONCLUSIONS
A. Written Rules
In paragraph 4(b) of the complaint, the General Counsel sets
out the Respondent’s written Electronic Communications Poli-
cy, which regulates employee usage of the Employer’s email

21 In response to a question from me, counsel for the General Coun-
sel indicated that the testimony from Lair involving Young was intend-
ed to support complaint pars. 4(e)(1) and (2), and (4)(f)(1) and (2).
system, among other things. This policy is outlined in the Hu-
man Resources Policies and Procedures manual under the sub-
section for compliance, which has been in effect since Novem-
ber 1, 2008. (GC Exh. 5.) The General Counsel alleges in para-
graph 5 of the complaint that by its conduct in maintaining the
Electronic Communications Policy, the Respondent is in viola-
tion of Section 8(a)(1) of the Act. However, neither in his
posthearing brief, nor during the 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 posi-
tion 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 de-
signed on its face to limit the use of the Respondent’s electronic
communications system to university business only, the follow-
ing clause seems questionable: “Email should be used for the
purpose of University business. Inappropriate use includes, but
is not limited to the following: Emails considered discriminato-
ry or harassing in nature.” (GC Exh. 5.)
It was the testimony of numerous witnesses that the Univer-
sity’s email system was in fact frequently and regularly used by
employees for personal matters unrelated to university busi-
ness. The Respondent did not seriously challenge this testimo-
ny. 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
fact used by employees for matters unrelated to university busi-
ness, 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
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 con-
clude 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).
The Board has further refined the above standard in Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004), by cre-
ating a two step inquiry for determining whether the mainte-
nance of a rule violates the Act. First, if the rule expressly re-
stricts Section 7 activity, it is clearly unlawful. If the rule does
not, it will nonetheless violate the Act upon a showing that:
“(1) 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
GRAND CANYON UNIVERSITY 1501

restrict the exercise of Section 7 rights.” Id. at 647; See North-
eastern Land Services, Ltd., 352 NLRB 744 (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
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 con-
strue the rule to prohibit Section 7 activity. I think not.
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 reasona-
ble employees would consider that concerted conduct involving
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.
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 by Hu-
man Resources Manager Linda Lair and Enrollment Counselor
Rosa that counselors are not allowed to ever send out nonbusi-
ness related emails.22 However, according Campbell’s unrebut-
ted 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 at her termination interview.

23
The author of the email was ridiculing the Respondent’s re-
cently 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 coun-
selor teams leads involving 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 (GC Exh. 7), and as testified to by Campbell, it was
brought up during the termination interview.
As I have noted, numerous witnesses testified that employees

22 At the hearing the complaint was amended to add Rosa’s name to
this paragraph.
23 The question of Campbell’s discharge will be discussed in detail
later in this decision.
with regularity used the Respondent’s email system not only for
business purposes, but also for personal reasons. I find Camp-
bell’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 Re-
spondent’s lead policy for 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 international students, clearly involved wages and
working conditions, and, as such, constituted protected concert-
ed activity.
Accordingly, I find that the Respondent’s conduct, by Rosa’s
statement, on February 23, 2010, constituted an unlawful dis-
parate application and enforcement of the Electronic Commu-
nications Policy. I, therefore, conclude that it was in violation
of Section 8(a)(1) of the Act, as alleged in complaint para-
graphs 4(k) and 5.
Complaint paragraph 4(c) alleges that the following language
maintained in the 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 is undisputed
that such language appears in the Respondent’s employee
counseling statement, directly above the line on which a coun-
seled employee signs his/her name. (GC Exh. 14.)
The Board has held that “confidentiality” rules, which ex-
pressly prohibit employees from discussing among themselves,
or sharing with others, information relating to wages, hours, or
working conditions, or other terms and conditions of employ-
ment, restrain and coerce employees in violation of Section
8(a)(1) of the Act, regardless of whether the rule was unlawful-
ly 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 where
confidential information is defined as “wages and working
conditions such as disciplinary information, griev-
ance/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.)
In some circumstances, an employer may require that em-
ployees 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 Caesar’s
Palace, 336 NLRB 271 (2001), the Board reversed an adminis-
trative law judge and found that the employer’s need to main-
tain the confidentiality of an on-going drug investigation was a
“substantial business justification” that justified the intrusion on
1502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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
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 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.
In the matter before me, the wording in the Employee Coun-
seling Statement is clear and unambiguous. It states that the
issues raised in the counseling session are “considered extreme-
ly confidential,” and prohibits the counseled employee from
discussing the counseling with, among others, “current or for-
mer employees of Grand Canyon University.” As the cited
case law shows, the Board has found such confidentiality pro-
visions to be unlawful. Employees have the right under the Act
to communicate with fellow employees, past and present, as
well 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 em-
ployees. Employees engaged in such conversations are in-
volved in the most basic form of concerted activity, which is
protected under the Act.
As a restriction on employees’ Section 7 activity, the Re-
spondent’s confidentiality clause in the employee counseling
statement is on its face a per se violation of the Act. According-
ly, I find that the Respondent has violated Section 8(a)(1) of the
Act, as alleged in complaint paragraphs 4(c) and 5.
B. Oral Promulgation of Rules, Threats, and
Interrogation
As was discussed in detail earlier in this decision, on De-
cember 16, 2009, Enrollment Counselor Shelly Campbell was
counseled by Supervisors Boeder and Schnell. This counseling
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 cau-
tioned her not to discuss with anyone the alleged infractions of
the Respondent’s policies that the managers had raised with
her. Ultimately on December 30, 2009, Campbell was given a
written employee counseling statement to sign that contained
the exact confidentiality language, which I concluded above
constituted a per se violation of the Act. (GC Exh. 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
discriminatory rule prohibiting employees from talking to each
other about their terms and conditions of employment, includ-
ing counseling about quality assurance issues, in violation of
the Act. From the record evidence, it appears that this admoni-
tion to Campbell came from both Boeder and Schnell and actu-
ally 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 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 hav-
ing such discussions. It is axiomatic that the right of employees
to discuss their wages, hours, and working conditions, includ-
ing those matters discussed at a counseling session, is protected
under the Act.
By the actions of the Respondent through its managers’ oral
statements on December 16, 2009, it was promulgating an un-
lawful 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.
The complaint alleges in paragraphs 4(e) and (f), and their
respective subparagraphs, that Linda Lair, on behalf of the Re-
spondent, promulgated unlawful rules and threatened employ-
ees with unspecified reprisals regarding their protected concert-
ed activity. These 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 explana-
tion 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 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
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 re-
sponded, “I don’t remember telling him that during our conver-
sation, no.” Subsequently, counsel asked the followup question,
“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.”
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
their terms and conditions of employment with each other.
Counsel for the General Counsel questioned Lair about an in-

24 At the hearing, counsel for the General Counsel was permitted to
amend the complaint to reflect this date.
GRAND CANYON UNIVERSITY 1503

terview 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 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 re-
sponse, Lair said, “Correct.”
In my view, counsel for the General Counsel failed to meet
his burden of proof to establish the allegations set forth in com-
plaint paragraphs 4(e)(1) and (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 was absolutely no evi-
dence 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 bur-
den of proof, I shall recommend to the Board that complaint
paragraph allegations 4(e)(1) and (f)(1) be dismissed.
In complaint paragraphs 4(e)(2) and (f)(2), the General
Counsel alleges that Lair in January 2010 and on March 3,
2010, threatened its employees with unspecified reprisals be-
cause they engaged in concerted activities. During the trial, the
undersigned asked counsel for the General Counsel to identify
the employees allegedly threatened by Lair. Counsel indicated
John Young was the employee allegedly threatened in com-
plaint paragraphs 4(e) and (f) and all their respective subpara-
graphs.
In any event, so far as I can tell, no evidence of any kind was
offered by counsel for the 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 threats. Further, in his
posthearing 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. Therefore, I recommend to the
Board that the allegations in complaint paragraphs 4(e)(2) and
(f)(2) be dismissed.
It is alleged in complaint paragraph 4(g) and its subpara-
graphs that on April 29, 2010, the Respondent, through it En-
rollment Counselor Manager and admitted Supervisor Ellen
Rosa, interrogated employees about their involvement with
emails criticizing the Respondent and its policies; orally prom-
ulgated an unlawful rule prohibiting employees from discussing
their terms and conditions of employment; and threatened its
employees with discharge and other unspecified reprisals be-
cause they engaged in concerted activities. These allegations
center around a number of individual conversations that Rosa
allegedly had with some members of the 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 em-
ployee apparently sent an email to coworkers over the Re-
spondent’s email system criticizing Supervisors Chanelle Ison
and Chris Landauer. Gloria Johnson testified that at some point
in late April, Ellen Rosa, the 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 terminat-
ed,” 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 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 this email criticizing Ison and Landauer.
He testified that she told the counselors, “They’re firing indi-
viduals for forwarding this email. If you get this email, you
better delete it.” Bardwell claims that Rosa also asked him spe-
cifically whether he had received the email, to which he re-
sponded that he had not. Allegedly she told him individually
that if he gets the email to delete it, or he might get fired.
In his posthearing brief, counsel for the Respondent argues
that there is no evidence that the email in question that criti-
cized the two supervisors even mentioned any of the terms and
conditions of employment of the enrollment counselors. How-
ever, it is axiomatic that employees who discuss among them-
selves their supervisors in a critical way, or otherwise, are en-
gaged in protected concerted activity. Clearly Rosa was upset
about this email, which had apparently been forwarded by cer-
tain 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.
The Board looks to the “totality of the circumstances” in de-
termining whether a supervisor’s questions to an employee
about suspected protected activity were coercive under the Act.
Rossmore House, 269 NLRB 1176 (1984), affd. 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 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 (2d Cir. 1964). These factors include the background of
the parties’ relationship, the nature of the information sought,
the identity of the questioner, the place and method of interro-
gation, and the truthfulness of the reply.
In my view, Supervisor Rosa unlawfully interrogated John-
son and Bardwell on April 29 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 ques-
tioned 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 exist-
ing Board law and would have reasonably chilled employees in
1504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the exercise of their Section 7 rights. Accordingly, I conclude
that the Respondent, by the statements of Ellen Rosa, interro-
gated its employees on April 30, 2010, regarding their protected
concerted activity. I find that such conduct constitutes a viola-
tion of Section 8(a)(1) of the Act, as alleged in complaint para-
graph 4(g)(1).
Further, I conclude that Rosa’s statements made to Johnson
and Bardwell individually, and to the members of the grad team
as a whole, that they could not read or forward the emails in
question constituted the oral promulgation of an overly-broad
and discriminatory rule prohibiting employees from using the
Respondent’s email system to criticize the Respondent’s super-
visors, 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 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, em-
ployees to use the Respondent’s email system for personal mat-
ters, the Respondent cannot lawfully prohibit 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 discrimina-
tory 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 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 in
protected concerted activity. She none too subtly 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.
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).
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
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 managers. Ison asked Bard-
well to work on producing some sort of questionnaire. He sub-
sequently prepared such a form and gave it to Ison to review.
There was a followup meeting between Ison and the grad
team in either late April or early May 2010. During that meet-
ing, 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 deci-
sion, stating that it was crucial for the grad team to have a sur-
vey of managers because it would help improve morale. Bard-
well 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 because during the meet-
ing he had been upset with her and had spoken to her in a “dis-
respectful” 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.
It is alleged by the General Counsel in complaint paragraphs
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 posthear-
ing brief that this allegation involves the discussion between
Ison and Bardwell when she 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 morale.
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 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. Certain-
ly no reasonable person would consider Ison’s comment threat-
ening or believe that she was considering taking some adverse
action because of employees having engaged in protected con-
certed activity.
Bardwell had suggested a peer review survey for managers.
In an email shortly thereafter, Ison had thanked Bardwell for
his efforts. (GC Exh. 9.) However, the University rejected his
idea, and he was somewhat upset with that rejection and
showed it by his reaction 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 paragraphs 4(h)(1) and (2) be dismissed.
Complaint paragraphs 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
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
GRAND CANYON UNIVERSITY 1505

private one on one meetings in her office with some members
of the grad team to discuss the concerns raised by team counse-
lors. Pigati acknowledged that prior to questioning each coun-
selor she did not inform them that their participation was volun-
tary, or that there would be no reprisals for refusing to cooper-
ate. While Pigati testified that she did not inform the counse-
lors 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 supervi-
sor Ellen Rosa and of her leadership abilities, as well as to de-
termine the level of team morale. (GC Exhs. 32–37.)
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 had not
been given “a fair chance to even learn, you know, be a manag-
er,” 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 com-
plain[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. John-
son 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 indicate that she felt
uneasy, frightened, or apprehensive in meeting with Pigati and
answering her questions.
I do not believe that Pigati’s questioning of Johnson consti-
tuted 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 meeting was apparently rather routine,
nonconfrontational, 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 trying to deter-
mine how the employees felt about Rosa as a manager.
Under these particular circumstances, I do not find that Pi-
gati’s questioning of Johnson constituted unlawful interroga-
tion. Rossmore House, supra; Westwood Health Care Center,
supra. Accordingly, I shall recommend to the Board that the
allegation in complaint paragraph 4(i)(1) be dismissed.
Regarding Pigati’s admonitions to Johnson that she not talk
with the other team members about the substance of their meet-
ing, I have already found that such requests to keep confidential
matters talked about with management, involving employees’
wages, hours, and working conditions, are unlawful, without a
legitimate business justification. In this instance, the Respond-
ent has not offered any justification supporting a requirement
that employees not discuss such matters with each other. Pi-
gati'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 concerns
over Rosa’s supervisory performance. These matters involve
employee working conditions, and the Respondent cannot law-
fully restrict such basic protected concerted activity. Lutheran
Heritage Village-Livonia, supra; Double Eagle Hotel & Casino,
supra; Flamingo Hilton Laughlin, supra; Phoenix Transit Sys-
tems, supra.
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 em-
ployment 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 paragraphs 4(j)(1)
and (2) that in July 2010, the Respondent, through Chanelle
Ison, threatened employees with unspecified reprisals and in-
formed them that they were disrespectful, all because they had
engaged in concerted activities. In his posthearing brief, coun-
sel for the General Counsel indicates that this allegation is re-
lated to a meeting that Ison had with the grad team in July and
an argument that she had with Bardwell at that meeting.
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 addition-
al degree programs to supplement the existing ones they had in
criminal justice and Christian studies. Also during the 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 night shifts, so that no team mem-
ber 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. Bard-
well, who had indicated along with several other employees
that they were unable to work the night shift, voiced his dis-
pleasure 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 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
1506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

length about the meeting, but did say that Bardwell was being
“loud and inappropriate.”
According to Bardwell, later that day he spoke with Ni-
colette 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 revealing that Bardwell felt it
necessary to explain his motives and actions to Boessling, per-
haps 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 private-
ly. He testified that he told her that he did not want her “to get
the wrong impression,” and that his “intentions were good.”
Once again, I think that it is revealing that Bardwell felt it nec-
essary, 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. Howev-
er, he claims that Ison said that she thought he had acted “a
little disrespectful because this is the second time it’s hap-
pened.” Bardwell replied that, “I’m not trying to be disrespect-
ful or anything. I’m just here to let you know that I’m not try-
ing to do anything beyond being a good person and being a
good employee.” He testified that before his meeting with Ison
ended, she mentioned that the grad team was “the most opin-
ionated team, kind of like a hard case or a hard chip.” He says
that was the end of the conversation.
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 . . . espe-
cially 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 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.”
It should be noted that when he testified, Ray Akers men-
tioned 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
implication being that this incident was the same one that both
Bardwell and Ison testified about. In any event, Akers’ inter-
vention 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 concerted activ-
ity 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
I do not believe that the statements made by Ison that Bard-
well 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 unhappi-
ness with the quality of their 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 com-
plained about such matters. Efforts were made by Ison and
several enrollment counselor mangers to address those com-
plaints and explain management’s decisions, even though the
complaints remained largely unremedied.
There was no credible evidence that Ison harbored any ani-
mosity towards the grad team because its members were vocal
and active in registering their complaints. Certainly Ison’s de-
scription 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 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 repris-
al.
Further, there is no contention that Bardwell was told that his
conduct at the meeting was disrespectful until he initiated con-
tact 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, even though there was the appear-
ance 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 im-
proper. The meeting was held in July 2010 and there was no
adverse employment action taken against Bardwell until his
termination in September 2010. I will have much more to say
regarding his termination later in this decision, but at this point
it is 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 paragraphs 4(j)(1) and
(2) be dismissed.

25 Rock Valley Trucking Co., 350 NLRB 69 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 com-
plaints about ‘bad attitude’ are often euphemisms for prounion senti-
ments, particularly where there is no alternative explanation for the
perceived ‘attitude’ problems.”) (citing James Julian Inc. of Delaware,
325 NLRB 1109 (1998)).
GRAND CANYON UNIVERSITY 1507

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 collec-
tive 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 condi-
tions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14 (1962). An employ-
er may not retaliate against an employee for exercising the right
to engage in protected concerted activity. Triangle Electric Co.,
335 NLRB 1037, 1038 (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 ad-
verse employment action against him, for engaging in protected
concerted activity. Rinke Pontiac Co., 216 NLRB 239, 241, 242
(1975).
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, 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988); See Mushroom
Transportation Co., v. NLRB, 330 F.2d 683, 685 (3rd Cir.
1964) (observing that “a conversation may constitute a concert-
ed 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 example “the lone employee” who “intends to induce
group activity”).
In the matter before me, there can be no doubt that enroll-
ment counselors Edmond Bardwell, Shelly Campbell, and Glo-
ria Johnson all engaged in protected concerted activities. As
members of the grad team, they frequently discussed among
themselves and with other 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 attention of man-
agement when they complained over the course of time to Su-
pervisors 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, and it is now
time to consider the activities and conduct of the three Charg-
ing Parties.
D. The Termination of 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. 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 unattaina-
ble, even if you were a top performer as I was.” The entire grad
team, according to Campbell, was “always voicing that to man-
agement because we were only able to enroll in select pro-
grams.” 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 discharges. Of course, the General Counsel contends
that Campbell was not terminated for any work related defi-
ciencies, but, rather, because she engaged in protected concert-
ed activity. Accordingly, it is necessary for me to determine
the Respondent’s true motivation in discharging Campbell.
In Wright Line, 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 8(a)(1) turning on employer
motivation. First, the General Counsel must make a prima facie
showing sufficient to support the inference that protected con-
duct was a “motivating factor” in the employer’s 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 Management Corp., 462 U.S. 393
(1983).
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, 337 NLRB 644
(2002), the Board affirmed the administrative law judge who
evaluated the question of the employer’s 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 Re-
spondent was aware that the employee had engaged in such
activity. Third, the General Counsel must show that the alleged
discriminatees suffered an 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 pre-
sumption 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, 352 NLRB 815 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 1048 fn. 2 (2011). In any
event, to rebut the presumption, the Respondent bears the bur-
den of showing that the same action would have taken place
1508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

even in the absence of the protected conduct. See Manno Elec-
tric, Inc., 321 NLRB 278, 280 fn. 12 (1996); Farmer Bros. Co.,
303 NLRB 638, 659 (1991).
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 consist-
ently held that communication between employees “for nonor-
ganizational protected activities are entitled to the same protec-
tion and privileges as organizational activities.” Phoenix Trans-
it Systems, 337 NLRB 510 (2002) (citing Container Corpora-
tion of America, 244 NLRB 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 Bard-
well and Johnson, regarding their various complaints. A num-
ber of these discussions took 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 im-
prove the situation by furnishing the team with better leads.
However, as it turned out, none of the managers were success-
ful in improving the quality of the leads, lowering the enroll-
ment quota, or adding more degree programs to those available
for the grad team counselors to enroll students.
The many conversations that Campbell had with fellow em-
ployees and with managers regarding working conditions, be-
yond 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 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 supervisors of the Respondent
and their knowledge is considered to be imputed to and pos-
sessed 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 work-
ing conductions, and, thus, engaged in protected concerted
activities, cannot be seriously denied.
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 approved
by, among others, Supervisors Ellen Rosa, Chris Landauer,
Chanelle Ison, Linda Lair, and Sarah Boeder. (GC Exh. 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 termina-
tion request form was 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 dis-
cussed 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 criticiz-
ing a change in the University’s policy regarding leads for in-
ternational students. This was a subject of concern to the grad
team 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 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 when the matter of her forwarding
this sarcastic email was discussed, Rosa told her that “[counse-
lors are] not allowed to ever send out non-business related
emails.” I found this statement to be untrue, as employees fre-
quently used the University’s email system for personal com-
munication, of which practice the Respondent was well aware.
In making the statement attributed to her, Rosa was disparately
enforcing and reaffirming the Respondent’s Electronic Com-
munications Policy, because Campbell had engaged in concert-
ed 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 suffi-
cient evidence to meet his burden of establishing that Camp-
bell’s discharge was in part retaliation for her protected con-
certed 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 Respondent was motivated to dis-
charge Campbell, at least in part, because of her protected con-
certed activity, the burden now shifts to the Respondent to
show that it would have taken the same action absent the pro-
tected conduct. Senior Citizen Coordinating Counsel of River-
bay Community, 330 NLRB 1100 (2000); Regal Recycling,
Inc., 329 NLRB 355 (1999). The Respondent must persuade by
a preponderance of the evidence. Peter Vitalie Co., 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 ul-
timately made by Sarah Boeder, senior vice president of opera-
tions. She testified that this decision was not based on a single
instance of inappropriate conduct, but, rather by a pattern of
misconduct. Over the course of her employment, Campbell had
been reprimanded, counseled, retrained, and issued a number of
disciplinary warnings as are reflected in her Termination Re-
quest form of February 16, 2010. (GC Exh. 7.) However, ac-
cording 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 given to
student Donnell Miller. Based on the nature of these two inci-
dents, I believe that Boeder’s testimony is credible. It is reason-
able to conclude that the University considered these matters
much more serious than Campbell’s abuse of the Respondent’s

26 See complaint par. 4(k).
GRAND CANYON UNIVERSITY 1509

email system, only one instance of which had any connection
with protected activity.
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 estab-
lished 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. 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 re-
garding this call.
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 ultimately
listed as bullet points in a December 30, 2009 employee coun-
seling statement that Campbell received. They included: “Mis-
representation 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 tran-
scripts; Communicating to the student that the program is ac-
celerated; Misquoting the cost per credit hour; Citing the Uni-
versity 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] Indi-
cating salary amount that could be expected upon completion of
the program.” (GC Exh. 6.)
While Boeder apparently considered Campbell’s misrepre-
sentation 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 De-
cember 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 con-
duct that the other enrollment counselors in her area were en-
gaging in the same infractions, Boeder instructed quality assur-
ance 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.
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. (GC
Exh. 17; R. Exh. 1, Bates Stamp 0518.) I discussed this incident
earlier in this decision. Essentially, Campbell was attempting to
aid a student that she had earlier enrolled who was having diffi-
culty 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 instruc-
tions for accessing the assignment. However, the University
considers a student’s ability to access assignments and navigate
the online program to be a part of the student’s academic train-
ing. It has a very strict policy against assisting a student aca-
demically.
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. Ro-
sa’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 Uni-
versity’s compliance policy. He alerted the University’s com-
pliance officer, Heyward Howell, who then investigated the
incident. (R. Exh. 1, Bates Stamp 0519–0520.) Also, 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.”
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 Respond-
ent’s contention that such assistance constitutes a violation of
its compliance policy, in which its managers were all well
versed.
I believe that Boeder testified credibly when she indicated
that her decision to terminate Campbell was based on Camp-
bell’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
incident where Campbell had engaged in protected activity by
forwarding an email critical of the Respondent’s policy regard-
ing leads for international students, and for which she was rep-
rimanded, 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 back,” and resulted in her discharge on Feb-
ruary 23, 2010.
Accordingly, based on the above, I conclude that the Re-
spondent has met its burden of proof and established by a pre-
ponderance of the evidence that Campbell was terminated for
cause. As such, the Respondent has rebutted the General Coun-
sel’s prima facie case and shown that it would have discharged
Campbell even in the absence of her having engaged in protect-
ed concerted activity. Therefore, I shall recommend to the
Board that complaint paragraph 4(l) be dismissed. Concomi-
tantly, I conclude that the Respondent did not terminate Camp-
bell because she violated its Electronic Communications Poli-
cy, and, therefore, I shall recommend to the Board that com-
plaint paragraph 4(p) also be dismissed.
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 that
1510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 classifica-
tions, he was during certain times allowed to function in a “dual
role,” which permitted him to also perform outside sales repre-
sentative duties. He also claims that for a period of time he
actually held the classification of outside sales representative.
As in the case of Campbell, Johnson, and other grad team en-
rollment counselors, Bardwell had engaged in protected con-
certed activity. He registered the same complaints with man-
agement 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
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, 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 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 pro-
posed 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, subse-
quently, higher 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 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 Bard-
well. While the General Counsel has alleged Ison’s 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 2010, 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
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
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 apol-
ogized for his behavior. He told her that he did not want her
“to get the wrong impression,” and that his “intentions were
good.” Ison said that she thought he had acted “a little disre-
spectful because this is the second time it’s happened.” Bard-
well replied that, “I’m not trying to be disrespectful or any-
thing. 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 em-
ployee.” 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.”
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 acknowl-
edged during the hearing that when he gets excited, he does
tend to be rather loud and animated. Ison testified that this 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, testi-
fied that while Bardwell was 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 con-
stitute an unfair labor practice. However, for the reasons that I
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 Divi-
sion and with the U.S. Equal Employment Opportunity Com-
mission. (GC Exh. 46, February 10, 2009, and GC Exh. 48,
March 8, 2010.) These charges allege employment discrimina-
tion 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. (GC Exhs. 47, 49.)
Also, the General Counsel alleges in complaint paragraph 4(q)
that the Respondent violated Section 8(a)(4) of the Act by dis-
charging Bardwell because on March 8, 2010, he filed his first
charge with the Board in Case 28–CA–022938, and gave testi-
mony to the Board in that case.
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 6 months, he was promoted to the position
of inside sales representative. However, he claims to have had a
GRAND CANYON UNIVERSITY 1511

“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 8 months, he was transferred back to the posi-
tion 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 testi-
fied that this proposal was acted upon favorably, as a result of
which he was permitted to solicit for leads directly at churches
and 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 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 counse-
lor. 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 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 posi-
tion 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 that this
“dual role” was open ended with no sunset date. However, as
noted, Madden disagrees, contending that Mayhew’s instruc-
tions to Bardwell were clear, that he must relinquish his direct
church solicitation duties and return full time to the position of
an enrollment 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 “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 support Mad-
den’s testimony that Bardwell was to relinquish all contacts
with the church organizations on behalf of the University with-
in 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. (R. Exh. 12.) While Madden
testified that she saw Bardwell sign the document, Bardwell
testified to the contrary that he did not recall any such docu-
ment.
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 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.” (R. Exh. 12.)
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
to both fellow employees and to management regarding poor
quality leads, too few degree programs in which to enroll stu-
dents, 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 con-
cern 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 concerted activity and termina-
tion 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, that Bardwell voiced his
displeasure with management’s decision not to institute a sys-
tem 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 spoken to her in a disrespectful
manner. Subsequently, Bardwell was terminated on September
2, 2010, approximately 6 weeks after he last vocally expressed
displeasure to Ison.
Counsel for the General Counsel has established a presump-
tion that the Respondent’s termination of Bardwell was based,
at least in part, on his protected concerted activity. See 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 pre-
sumption by showing that its termination of Bardwell would
have taken place even in the absence of his protected conduct.
Manno Electric, supra; Farmer Bros., supra.
Bardwell was terminated as a result of the events surround-
ing his enrollment of Reverend Gary Dean of Texarkana, Tex-
as. While it is unclear exactly when the communication be-
tween 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
1512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

were earlier communications 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?”
(GC Exh. 24.)
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 entirely clear, Bardwell seems to testi-
fy 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.
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 Ari-
zona. The process involves various University boards, certify-
ing 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 process is so difficult that
the Respondent has only one satellite campus located outside
the State of Arizona, and that campus is located in Albuquer-
que, New Mexico.27
Bardwell’s testimony that he had the authority to speak at
churches and before church groups regarding student enroll-
ment at the University was simply not credible. He may well
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. (R. Exh. 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 this authority and was re-
verting back exclusively to the position of enrollment counse-
lor. 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 misunder-
standings 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 authority,” and had never seen nor signed
the document in question. It certainly strains credulity to be-
lieve 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 genu-
ine.
Although being careful to testify that he never made Dean
any explicit promise about the University’s willingness to open

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.
a satellite campus at Dean’s church in Texarkana, it is clear to
the undersigned that Bardwell intentionally gave Dean the im-
pression that if he registered for classes at the University, and if
a significant number of other parishioners registered for classes,
that it was likely a campus could be established.
After Dean enrolled in a masters’ degree program in Chris-
tian studies, he and Bardwell communicated frequently, accord-
ing 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 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 estab-
lish my satellite campus. That has not happened and I am start-
ing 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
sounds like a man who believes that he may have been de-
ceived by Bardwell, who promised more than he could deliver.
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 simp-
ly 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 those classes first so he could see what the program was
about to enlighten the Christian experience through his course-
work 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 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 rep-
resentative.” 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. (R. Exh.12.) He
had no authority whatsoever to perform “fact finding” regard-
ing 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 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 testimo-
ny 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.
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 neces-
sary for Bardwell to be willing to raise the idea of a satellite
GRAND CANYON UNIVERSITY 1513

campus with the University’s “higher-ups.” However, Dean
was never able to indicate that he had such a number of stu-
dents ready to enroll.
The record evidence indicates that the number 30 used by
Bardwell had no basis in fact. University officials offered unre-
butted testimony of the extreme difficulty in opening a satellite
campus in another state. Further, no minimum number of stu-
dents 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, Bard-
well would not be faced with the problem of having to tell
Dean that he had been deceived, and that Bardwell had no au-
thority to discuss opening a satellite campus in Texarkana.
On August 19, 2010, Bardwell and Dean had an email ex-
change in which Dean mentioned that there was “newspaper
coverage for Grand and [we] are receiving calls daily. I need
your help please.” (GC Exh. 26, Bates Stamp 018.) Admitted
into evidence were several pages from the “Texarkana Ga-
zette,” 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 clas-
ses via satellite from Grand Canyon University, call.” (GC Exh.
27.) (Emphasis added by me.)
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
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 record-
ed, apparently because the call was not made using the Univer-
sity’s phone system.
According to Bardwell, he had additional phone conversa-
tions with Dean following the August 19 email, but he is uncer-
tain how many or when they occurred. Bardwell is very vague
regarding these calls. While some of these conversations were
made using the University’s 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 occa-
sionally 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 ad-
mitted 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 conversa-
tion recorded.”
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 Uni-
versity’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 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 diffi-
cult it was to establish an out-of-state satellite campus. This is
why he needed to 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 from the
University’s phone system. A phone conversation between
Dean and Bardwell on August 20, 2010 (R. Exh. 10, Transcrip-
tion of Voice Mail Message #1), and a conversation between
Dean and Bardwell on August 30, 2010 (R. Exh. 11, Transcrip-
tion 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 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.
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 one
particular spot check, they listened to one of Bardwell’s con-
versations 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.” Boessling
told Akers that “she would take it from here.”
Sarah Boeder, senior vice president of online operations, tes-
tified that after reviewing 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 exten-
sive process needed to establish a satellite campus, and (2) he
had made numerous misstatements to Dean, even though all
enrollment counselors, including Bardwell, had recently com-
pleted 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 prob-
lem, 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 estab-
1514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

lishing 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.
Near the end of the workday on September 2, 2010, Bard-
well met with Rhonda Pigati and Chanelle Ison. According to
Bardwell, Pigati informed him that he had been terminated for
“setting up satellite campuses.” He denied doing anything of
the sort. Ison stated that they had listened to several phone con-
versations with Reverend Dean and determined that he had
made promises that he had no authority to make. Bardwell de-
fended himself, saying that he had merely given Dean “infor-
mation to see if this was something we can even consider, and I
was going to present to the higher ups, management, and busi-
ness development to see.”
The involuntary termination request for Bardwell was ap-
proved 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 compli-
ance violations. (GC Exh. 3.) In reviewing the termination doc-
ument 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 get-
ting Dean, and potentially other students, to enroll at the Uni-
versity. In the Respondent’s view, Bardwell was misleading
Dean into believing that Bardwell was likely to arrange for
such a satellite campus, once enough students who were affili-
ated 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.
The University managers contend that Bardwell had abso-
lutely 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 believ-
ing that if Dean enrolled in classes and got a significant number
of other students to do so that a satellite campus might be estab-
lished at his church. The credible probative evidence in the
form of witness testimony, documentation, and transcriptions of
phone conversations demonstrates otherwise. Bardwell’s at-
tempt to rationalize what occurred between him and Dean is not
credible.
Accordingly, based on the above, I conclude that the Re-
spondent has met its burden of proof and established by a pre-
ponderance of the evidence that Bardwell was terminated for
cause. As such, the Respondent has rebutted the General Coun-
sel’s prima facie case and shown that it would have discharged
Bardwell even in the absence of his having engaged in protect-
ed concerted activity. Therefore, I shall recommend to the
Board that complaint paragraph 4(n) be dismissed. Concomi-
tantly, I conclude that the Respondent did not terminate Bard-
well because he filed an unfair labor practice charge and gave
testimony to the Board in Case 28–CA–022938, and, therefore,
I shall recommend that complaint paragraph 4(q) also be dis-
missed.
F. The Termination of Gloria Johnson
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 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 concerted activi-
ty.
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 them to cover late night
shifts every night of the week. Johnson expressed her unhappi-
ness with the new policy along with her coworkers. 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.
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 to the Respondent. Further, in mid-July 2010, only a
mere 2 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 evi-
dence of a nexus where a termination occurs in close proximity
to protected concerted activity. See Davey Roofing, Inc., supra.
Counsel for the General Counsel has established a presump-
tion that the Respondent’s termination of Johnson was based, at
least in part, on her protected concerted activity. Tracker Ma-
rine, 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
showing that the same action would have taken place even in
the absence of the protected conduct. See Manno Electric, Inc.,
supra; Farmer Bros., supra. The Respondent must persuade by
a preponderance of the evidence. Peter Vitalie Co., 310 NLRB
865, 871 (1993). However, I am of the view that the Respond-
ent has failed to meet this burden. The Respondent’s reason for
terminating Johnson appears to be a pretext.
GRAND CANYON UNIVERSITY 1515

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 a.m. Miller called
Johnson in order to find out whether Johnson had received her
completed electronic application materials. Johnson had re-
ceived 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 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 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 permis-
sion to write on 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 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 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, 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 Mil-
ler’s name. Hearing this information, Akers again granted per-
mission. It should be noted, however, that when Akers testi-
fied, he did not recall having a second conversation with John-
son 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
lasted roughly 5 minutes, Johnson told Miller that as her super-
visor 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 at-
tended 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.
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 John-
son was not officially on Akers’ team as at the time Akers was
only the “temporary manager” of the 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 Ju-
ly 16, “something stuck out to me about the form,” and “it oc-
curred to me that it was a different color ink, it was like a pur-
ple 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 re-
quested and Akers replied, “Okay, next time just go ahead, send
it 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 “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.
In any event, Akers testified that he and Pigati then retrieved
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 handwrit-
ten correction, that he had told Johnson that he “didn’t think the
handwriting would be a problem.” However, according to Pi-
gati, Akers claimed that the next day when he 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 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
1516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

request. He seems to be suggesting that he thought that Miller
had made the 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 hand-
written 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 under-
stood that this was a violation of the University’s “zero toler-
ance non-compliance policy.”
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 col-
or, so Miller must not have made the changes herself, but 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 try-
ing to cover for himself. I believe that he told Johnson that she
could make the changes, and then subsequently, when his supe-
riors began to question his conduct and displayed an interest in
terminating Johnson, Akers suddenly claimed that he was con-
fused and really did not understand what Johnson was asking of
him. Frankly, it seems 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 manner that
left me with the feeling that it was truthful. Accordingly, I ac-
cept Johnson’s version of these events.
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 applica-
tion materials. Johnson replied that she did, and Pigati stated
that Johnson was going to be terminated for writing on the tran-
script 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] had
said.” That essentially completed the meeting.
The involuntary termination request form for Johnson indi-
cates 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 real-
ized 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 be-
half. 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 signa-
tures or posing as a student as part of internal or external com-
munication.’” The final approval of the termination was by
Nikki Mancuso and Sarah Boeder. Of course, it does not men-
tion that Akers 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 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 untruth-
fully in an effort to disguise his “mistake,” and to support his
superiors in their desire to terminate Johnson.
While the Respondent claims that it has a zero tolerance pol-
icy concerning noncompliance 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 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 loca-
tion, hardly anything sensitive, confidential, or private. In any
event, Akers had given her his permission to make the changes.
In my view, the Respondent was manufacturing “something
out of virtually nothing” in an effort to terminate Johnson. The
Respondent’s defense is a pretext, and it is, therefore, appropri-
ate to infer that the Respondent’s true motive was unlawful.
Williams Contracting, Inc., 309 NLRB 433 fn. 2 (1992); Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982); and Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966). I believe that the real motive
behind the Respondent’s conduct in terminating Johnson was in
retaliation for her protected concerted activity. Approximately
2 weeks earlier she had been involved in a rather acrimonious
meeting between the members of the grad team and Chanelle
Ison. It was as a direct result of her participation in registering
complaints with management at that meeting that she was ter-
minated.
Accordingly, I find that the Respondent has violated Section
8(a)(1) of the Act by 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 an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By the following acts and conduct the Respondent has vio-
lated Section 8(a)(1) of the Act.
(a) Maintaining an overly-broad and discriminatory written
rule in its employee counseling statement that requires employ-
ees 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 con-
fidential and may not be discussed with any other current or
former employees of Grand Canyon University, it constituents,
vendors, or contractors, without prior written notice to and
GRAND CANYON UNIVERSITY 1517

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.
(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 from discussing their terms and
conditions of employment with other persons, including fellow
employees.
(e) Threatening employees with discharge and other unspeci-
fied reprisals because they engaged in protected concerted ac-
tivities.
(f) Orally referencing a written rule in its Electronic Com-
munications Policy that the Respondent is disparately enforcing
in order to prohibit its employees’ use of emails to engage in
protected concerted activities.
(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.
4. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The evidence having established that the Respondent dis-
criminatorily discharged its employee Gloria Johnson, my rec-
ommended order requires the Respondent to offer her immedi-
ate reinstatement to her former position, displacing if necessary
any replacements, or if her position no longer exists, to a sub-
stantially 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 Horizons
for the Retarded, 283 NLRB 1173 (1987), plus daily compound
interest as prescribed in Kentucky River Medical Center, 356
NLRB 6 (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 expunc-
tion, and to inform her that the unlawful conduct will not be
used as a basis for further personnel actions against her. Ster-
ling Sugars, Inc., 261 NLRB 472 (1982). Further, the Respond-
ent must not make reference to the expunged material in re-
sponse 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.
Also, having found that a provision in the Respondent’s em-
ployee 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.
The Respondent shall be required to post a notice that as-
sures 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 by
such means. J. Picini Flooring, 356 NLRB 11 (2010).
[Recommended Order omitted from publication.]