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

National Labor Relations Board - Board Decisions

Feb 2, 2015

362 NLRB No. 13 (N.L.R.B. 2015)

362 NLRB No. 13
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
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
February 2, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On July 12, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
No. 164. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the Dis-
trict of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt the judge’s
recommended Order to the extent and for the reasons
stated in the Decision and Order reported at 359 NLRB
No. 164, which is incorporated herein by reference.1 The
judge’s recommended Order, as further modified herein,
is set forth in full below.2

1 In affirming the Board’s finding in the vacated Decision and Order
that the December 16, 2009 statements by Senior Vice President of
Operations Sarah Boeder and Enrollment Counselor Manager Helen
Schnell to Charging Party Shelly Campbell constituted the oral affirma-
tion of an existing unlawful written rule, rather than the oral promulga-
tion of a new rule, we rely on Flamingo Las Vegas Operating Co., 360
NLRB No. 41 slip op. at 1–2 (2014).
2 In ordering the tax compensation and Social Security reporting reme-
dies, we rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
We agree with the analysis in the vacated Decision and
Order regarding Human Resources Business Partner
Rhonda Pigati’s questioning of employee Gloria John-
son, and we find that it violated Section 8(a)(1) of the
Act for the reasons stated therein. We further find, con-
trary to the judge, that whether Pigati had a nefarious
purpose in asking for the names of employees who had
complained about Supervisor Ellen Rosa is immaterial in
assessing the lawfulness of the inquiry. Rather, our
analysis properly focuses on whether the questioning
would reasonably tend to coerce the employee in exercis-
ing her Section 7 rights. Hanes Hosiery, Inc., 219 NLRB
338, 338 (1975). Nor does Johnson’s volunteering that
some employees had voiced similar complaints about
their supervisor privilege Pigati’s request that Johnson
identify those employees. See Belle of Sioux City, L.P.,
333 NLRB 98, 105 (2001) (questioning employee about
identities of other employees to whom she had referred
regarding protected concerted activity unlawful); see also
Liquitane Corp., 298 NLRB 292, 292–293 (1990) (ques-
tioning employee beyond the scope of her volunteered
statement about another employee’s union activities un-
lawful). What our dissenting colleague characterizes as
Pigati’s “logical” question in response to Johnson’s
statement, in actuality unlawfully sought specific infor-
mation about the protected activities of other employees
beyond what Johnson had offered. Accordingly, we find
the interrogation unlawful.
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

NLRB No. 10 (2014). We modify the judge's recommended Order to
include a remedial provision that was inadvertently omitted. We shall
also substitute a new notice in accordance with Durham School Ser-
vices, 360 NLRB No. 85 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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) Revise or rescind the rule contained in the employ-
ee counseling statement described in paragraph 1(a)
above, and furnish employees with written notice that
this rule has been rescinded or with a revised document
that does not contain this rule.
(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.”3 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.
Dated, Washington, D.C. February 2, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 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 3
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I agree with the judge’s rulings, findings,1 and conclu-
sions in this multiple-issue case. For the reasons stated
in the judge’s decision, as supplemented below, I concur
with my colleagues’ decision to uphold the judge’s deci-
sion as to most issues, and I respectfully dissent as to one
aspect of the judge’s decision that my colleagues reverse.
1. The Johnson Discharge. I agree with the judge’s
findings, pursuant to Wright Line,2 that the Respondent
violated Section 8(a)(1) by discharging employee Gloria
Johnson. I believe it is significant that (i) the Respond-
ent did not except to the judge’s findings that it commit-
ted several 8(a)(1) violations against Johnson, including
threatening her with discharge if she engaged in protect-
ed concerted activity; (ii) the Respondent discharged
Johnson just 2 weeks after she (and other employees on

1 Many of the judge’s findings were not the subject of exceptions.
Thus, there were no exceptions to the judge’s dismissal of allegations
that Respondent violated Sec. 8(a)(1) by (i) statements allegedly made
by Human Resource Manager Linda Lair to employee John Young in
January 2010 and on March 3, 2010, and (ii) maintaining its electronic
communications policy. There were also no exceptions to the judge’s
findings that Respondent violated Sec. 8(a)(1) by (i) coercively interro-
gating employees Gloria Johnson and Edmond Bardwell about an email
critical of two managers, Assistant Vice President of the College of
Business and Liberal Arts Chanelle Ison and Assistant Director of
Enrollment Chris Landauer; (ii) orally promulgating a rule to Johnson,
Bardwell, and other members of the “grad team” (enrollment counse-
lors assigned to Respondent’s graduate degree programs in Christian
studies and criminal justice) that they could not read or forward the
email critical of Ison and Landauer; (iii) threatening Johnson, Bardwell,
and other members of the grad team with discharge if they read or
forwarded the email critical of Ison and Landauer; (iv) including an
overly broad confidentiality requirement in its employee counseling
statement; and (v) admonishing Johnson, by Human Resources Busi-
ness Partner Rhonda Pigati, to keep confidential everything talked
about during the June 2010 meeting between Pigati and Johnson, which
included discussion of employees’ terms and conditions of employ-
ment.
The Respondent did except to the judge’s finding that it violated
Sec. 8(a)(1) by disparately applying its electronic communications
policy. However, it did not state, in either its exceptions or its support-
ing brief, on what grounds the assertedly erroneous finding should be
reversed. Under these circumstances, our rules provide that the Re-
spondent’s exception “may be disregarded.” Board’s Rules and Regu-
lations Sec. 102.46(b)(2); see Holsum de Puerto Rico, Inc., 344 NLRB
694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). Thus, I be-
lieve that a bare exception—one that lacks any explanation or support
either in the exception or the supporting brief—should be disregarded,
absent unusual circumstances. Here, the Respondent has not pointed to
any unusual circumstances, and my review of the record discloses none.
Accordingly, I believe it is appropriate to disregard this exception.
The Respondent also excepted to some of the judge’s credibility
findings. I find there is no basis for reversing the judge's credibility
findings under Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951).
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
the grad team) engaged in protected concerted activity
during a “heated and acrimonious” meeting with a man-
ager; and (iii) the judge found, and the record supports
the judge’s finding, that Respondent’s asserted reason for
discharging Johnson was pretextual, and accordingly, the
record is insufficient to establish Respondent’s Wright
Line burden of proving that it would have discharged
Johnson in the absence of her protected activity.
2. The Bardwell and Campbell Discharges. I agree
with the judge’s findings that Respondent did not violate
Section 8(a)(1) by discharging employees Edmond
Bardwell and Shelly Campbell. Preliminarily, I agree
with the judge’s statement of the Wright Line standard
and the elements the General Counsel must establish to
sustain his burden under Wright Line, including the re-
quirement that the General Counsel establish a link or
nexus between the employee’s protected activity and the
employer’s adverse employment action. See Libertyville
Toyota, 360 NLRB No. 141, slip op. at 9 fn. 5 (2014)
(Member Miscimarra, concurring in part and dissenting
in part). As to the merits of Campbell’s discharge, I
agree with the judge’s rationale for dismissing the unlaw-
ful discharge allegation. As to Bardwell’s, I do not reach
or rely on the judge’s finding that the General Counsel
met his burden under Wright Line. Rather, I find, for the
reasons stated by the judge, that the record establishes
that—even if the General Counsel could satisfy his initial
Wright Line burden—the Respondent met its Wright Line
burden to show it would have discharged Bardwell even
in the absence of his protected activities.3
3. The “Not to Discuss” Instruction. I agree with the
judge that Respondent violated Section 8(a)(1) when
Senior Vice President of Operations Sarah Boeder and
Enrollment Counselor Manager Helen Schnell told
Campbell that she was not to discuss her counseling
meeting with anyone. However, I also agree with my
colleagues that Boeder and Schnell did not promulgate a
new rule but, rather, Respondent orally reiterated an ex-
isting written rule–the confidentiality requirement in Re-
spondent’s employee counseling statement--which was
found unlawful by the judge with no exceptions.

3 I also agree with the judge’s dismissal of two other allegations re-
lated to Bardwell. First, I agree that Respondent did not impliedly
threaten unspecified reprisals when Ison told Bardwell that the grad
team was “opinionated” and “a hard case” and that Bardwell had acted
disrespectfully towards Ison. Second, I agree that Bardwell’s discharge
did not violate Sec. 8(a)(4). The General Counsel cites no evidence
that Respondent harbored animus against Bardwell because he filed an
unfair labor practice charge and gave testimony in Case 28–CA–
022938. Moreover, as I have found above, the Respondent demonstrat-
ed it would have discharged Bardwell regardless of his protected activi-
ties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
4. The Alleged Unlawful Interrogation Regarding
Complaints About Supervisor Rosa. Unlike my col-
leagues, I would affirm the judge’s dismissal of the alle-
gation that the Respondent, through Human Resources
Business Partner Pigati, unlawfully interrogated Johnson.
As part of her job duties, Pigati listened to complaints
from a number of grad team counselors. In June 2010,
Pigati held one-on-one meetings with some members of
the grad team to discuss their concerns. Specifically,
Pigati wanted to hear the employees’ evaluations of
Team Supervisor Ellen Rosa, as well as to determine the
level of team morale.
One of the employees Pigati met with was Johnson.4
Pigati began the interview by stating that she “was meet-
ing with everyone on the team and that whatever we
talked about in that office, to keep it confidential.”5
Pigati then 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 even learn,
you know, [how to] be a manager,” and “that [Rosa] was
doing her best. . . with what she had.” Johnson also vol-
unteered to Pigati that “some of the other people had
come to [her] and complain[ed] about [Rosa] as a man-
ager.” Pigati asked Johnson who those people were,
Johnson named three employees, and Pigati took notes
on her computer. As Johnson was leaving the meeting,
Pigati stated that she would “be contacting everybody
else and just keep this, you know, don’t talk to anybody
else on the team.”
The judge found that Pigati did not unlawfully interro-
gate Johnson. He found that it would have been obvious
that the purpose of the meeting was to find out what kind
of a job Rosa was doing as a supervisor. The judge also
pointed out that Johnson volunteered to Pigati that others
had complained to her about Rosa, and it was only then
that Pigati asked Johnson for the names of those employ-
ees. The judge found that Johnson appeared to have no
reluctance in giving those names to Pigati, and that
“there was no reason to believe that Pigati wanted the
names for any nefarious purpose.” The judge found that
there was nothing coercive or confrontational about the
meeting, in which ”Pigati was simply trying to determine
how the employees felt about Rosa as a manager.”
I believe there is no merit in the General Counsel’s ex-
ception to the judge’s dismissal of this allegation. An
employer’s questioning of an employee violates Section
8(a)(1) only when it tends in some manner to restrain,

4 Rosa was Johnson’s immediate supervisor. Pigati did not directly
supervise Johnson.
5 Again, there are no exceptions to the judge’s finding that Respond-
ent violated Sec. 8(a)(1) when Pigati admonished Johnson to keep
everything talked about during the interview confidential.
coerce, or interfere with employee rights under the Act.6
Here, the record establishes, in my view, that Pigati’s
questions could not possibly have had such a tendency.
Most important, her questions had nothing whatsoever to
do with the protected activities of Johnson or anyone
else. Pigati asked Johnson about Rosa’s performance as
a supervisor. Johnson candidly replied, and volunteered
that some employees had complained to her about Rosa.7
Pigati logically asked who they were. Earlier, Pigati had
told Johnson that she was meeting with everyone on
Johnson’s team. When an employer conducts investiga-
tions that relate in part to the effectiveness (or lack of
effectiveness) of a particular supervisor, and when the
employer is informed that other employees complained
about the supervisor, nothing in the Act makes it unlaw-
ful to ask for the names of these other employees. It is
self-evident in these circumstances that the employer has
a legitimate business reason for seeking this information.
It is significant, in this regard, that inappropriate or inef-
fective actions by supervisors can adversely affect all
employees, including those protected by the Act, in addi-
tion to exposing the employer to liability for any actions
by supervisors that violate the Act. Here, the record es-
tablishes that Pigati wanted the names of other employ-
ees who had raised complaints about Rosa in connection
with Respondent’s inquiry into Rosa’s performance, and
there is no evidence that would support any reasonable
belief by Johnson or anyone else that Pigati threatened or
intended to take adverse action against those employees.
Therefore, I would affirm the judge’s dismissal of this
allegation. My colleagues reverse. As to this issue,
therefore, I respectfully dissent.
Dated, Washington, D.C. February 2, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

6 Rossmore House, 269 NLRB 1176, 1177 (1984) (citing Midwest
Stock Exchange v. NLRB, 635 F.2d 1255, 1267 (7th Cir. 1980)), affd.
sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985).
7 There is no allegation, and the majority points to no evidence, that
any employees who complained to Johnson about Rosa had the object,
in doing so, of initiating, inducing, or preparing for group action. Ac-
cordingly, I disagree with my colleagues’ unsupported contention that
Pigati “sought specific information about the protected activities of
other employees beyond what Johnson had offered” (emphasis added).
See Meyers Industries, 281 NLRB 882, 887 (1986), affd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988).
GRAND CANYON UNIVERSITY 5
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 vio-
lated 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 talk-
ing to fellow employees about your terms and conditions
of employment, including counseling sessions.
WE WILL NOT coercively interrogate you about your in-
volvement 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 revise or revoke the rule contained in our em-
ployee counseling statement described above; and WE
WILL furnish you with written notice that this rule has
been rescinded, or furnish you with a revised document
that does not contain this rule.
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
backpay award, and WE WILL file a report with the Social
Security 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
The Board's decision can be found at
www.nlrb.gov/case/28-CA-022938 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.