Guthrie Theater

National Labor Relations Board - Administrative Judge Opinions

Jul 5, 2019

18-CA-215022 (N.L.R.B. Jul. 5, 2019)

JD–56–19
Minneapolis, MN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GUTHRIE THEATER
and Case 18–CA–215022
INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES,
LOCAL 13
Kaitlin E. Kelly, Esq.,
for the General Counsel.
Douglas R. Christensen, Esq. and
Alice D. Kirkland, Esq.,
for the Respondent.
Justin D. Cummins, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Minneapolis,
Minnesota, on November 13 and 14, 2018. The International Alliance of Theatrical Stage
Employees, Local 13 (Charging Party or Union), filed the charge on February 26, 2018, and a
first amended charge on April 20, 2018, and the General Counsel issued the complaint on June
22, 2018. The complaint alleges that Guthrie Theater (Respondent) violated Section 8(a)(3) and
(1) of the National Labor Relations Act1 (Act) by downgrading the performance evaluation of an
employee for engaging in protected, concerted activity. (GC Exh. 1(e).) The complaint further
alleges that Respondent violated Section 8(a)(1) of the Act on various occasions by threatening
employees. (Id.) Respondent timely answered the complaint, denying that it violated the Act.2
(GC Exh. 1(g).)

1 29 U.S.C. §§151–169.
2 General Counsel moved to amend some of the allegations contained in par. 7 of the complaint at
trial. (Tr. 10.) Respondent’s counsel objected to the amendments, stating that the allegations contained in
par. 7 were not mentioned in the charge or amended charge. (Tr. 10–-11.)
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2
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. On the entire record, including my own
observation of the demeanor of the witnesses, 3 and after carefully considering the briefs filed by
the parties, I make the following5
FINDINGS OF FACT
I. JURISDICTION
10
Guthrie Theater, a non-profit theater and arts organization, has been engaged developing and
staging theater productions at its facility in Minneapolis, Minnesota, where it annually derives
gross revenues in excess of $1 million, and purchases and receives goods valued in excess of
$5000 directly from points outside of the State of Minnesota. Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the 15
Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations and Management20
Artistic Director Joe Haj holds the highest position at the Guthrie Theater. (Tr. 132.) At all
relevant times, Jean Leuthner held the position of human resources director and Jennifer
Bielstein served as managing director for the Guthrie Theater. (Tr. 131, 134, 173.) Also, during
the relevant time period, David Stewart4 served as Respondent’s director of production, Josh 25
Peklo served as Respondent’s technical director, Sean Walters served as Respondent’s assistant
technical director, and Jim Gangl served as Respondent’s associate technical director. (Tr. 21,
72–73.) Respondent admits, and I find, that Haj, Leuthner, Bielstein, Stewart, Peklo, Walters,
and Gangl were supervisors of Respondent as defined in Section 2(11) of the Act. (Tr. 129.) Of
these individuals, only Leuthner and Peklo testified at the hearing. During the hearing, the 30
General Counsel moved to amend the complaint to add Sadie Ward, human resources generalist,
and Monica Servi, human resources coordinator, as alleged supervisors and/or agents of
Respondent. (Tr. 237.) No other party objected to the amendment and I allowed it. (Tr. 237–
238.) Respondent admitted, and I find, that Ward and Servi are supervisors of Respondent
within the meaning of Section 2(11) of the Act or agents of Respondent within the meaning of 35
Section 2(13) of the Act. (Tr. 238.)
After Haj became Respondent’s artistic director, he articulated four key values (or “pillars”)
for the organization. (Tr. 132.) These four key pillars were: fiscal responsibility; artistic
excellence; equity, diversity, and inclusion; and community engagement. (Tr. 132.) Haj 40
specifically published a document stating why equity, diversity, and inclusion was a core value

3 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
4 Stewart is sometimes identified in the record as “DStew.” (Tr. 94.)
JD–56–19
3
and his roadmap to work toward it. (R. Exh. 2; Tr. 133–134.) A committee for equity, diversity,
and inclusion was headed by Patricia Mitchell and Sara L’Heureux, employees of Respondent.
(Tr. 134.) Respondent has held affinity group meetings, revamped its hiring practices, and
presented several workshops in support of this core value. (Tr. 135–136.)
5
Leuthner was employed by Respondent from September 2004 until September 2018. (Tr.
131.) For most if that time, she was Respondent’s human resources director. (Tr. 131.) From
2016 to 2018, Sadie Ward, a human resources generalist, and Monica Servi, a human resources
assistant, reported to Leuthner. (Tr. 131–132.)
10
The Guthrie Theater employs about nine carpenters in its scene shop. (Tr. 21, 72.) The
carpenters in the scene shop are represented by International Alliance of Theatrical Stage
Employees Local 13 (Union). (Tr. 22, 73.) Peklo was the technical director over the scene shop
from June 2013 until May 2018. (Tr. 21, 72, 239.) Peklo had two assistants: Gangl and Walters.
(Tr. 21, 72–73.) Peklo reported to Stewart. (Tr. 21–22, 73.) Stewart reported to Haj. (Tr. 22, 15
73)
B. Employment of Molly Diers and Nathan Saul
Molly Diers worked in Respondent’s scene shop as a scenic carpenter and craftsperson from 20
2015 to 2018. (Tr. 20–21, 64–65.) Diers has served as a member-at-large on the Union’s
executive board for about 5 years. (Tr. 22–23.) Diers had concerns with what she deemed a
sexist culture in the scene shop for the length of her tenure with Respondent. (Tr. 25.) She did
not raise her concerns to Respondent until 2016. (Tr. 25.)
25
Diers frequently discussed her concerns with Kristen Larsen, the other full-time female
carpenter in the scene shop, and Rose King, a female “overhire” in the scene shop.5 (Tr. 25–26.)
She also discussed her concerns with her shop steward, Chris Sibilia, and Nathan Saul, another
carpenter in the scene shop. (Tr. 26.)
30
Diers left her employment with Respondent in January 2018. (Tr. 60.) At that time, Peklo
hired a new scene shop supervisor and his choice made Diers believe that he had no interest in
changing the shop culture. (Tr. 60.) As a result, Diers resigned. (Tr. 60.)
Nathan Saul worked as a carpenter in Respondent’s scene shop from 2002 to 2018. (Tr. 71.) 35
He was hired as a craftsperson and was promoted to lead craftsperson in 2007. (Tr. 71.) He
served as a trustee for the Union from 2010 to 2016 and was a member of its executive board
from 2013 to 2016. (Tr. 74.)
Saul initially believed that the atmosphere in the scene shop was jocular. (Tr. 74.) However, 40
after talking with others in the shop, particularly women, he became aware that what he
perceived as jocular was not perceived the same way by others. (Tr. 74.) Over time, he grew to
believe that the atmosphere in the scene shop was inappropriate, harassing, disrespectful, and
dismissive. (Tr. 74–75.) He credited Diers, Larsen, and King with directing his attention to this
problem. (Tr. 75.) 45

5 Overhires are occasional employees hired when the workload is heavy. (Tr. 21.)
JD–56–19
4
Saul resigned his employment with Respondent in 2018. (Tr. 109.) When Respondent hired
a new scene shop supervisor, Saul believed there was no chance for meaningful change in the
scene shop and felt he could no longer work there.6 (Tr. 110–111.)
5
C. Promotion of Mark Mauer to Scene Shop Supervisor
Mark Mauer was promoted to scene shop supervisor in August 2016. (Tr. 26.) Diers
described Mauer as difficult to work with, especially for women, as he was dismissive and rude.
(Id.) Saul characterized Mauer as the scene shop bully, making people uncomfortable and 10
reacting defensively and angrily to women in the shop. (Tr. 76.) Diers was upset when Mauer’s
promotion was announced and discussed her concerns with Larsen, King, and Saul. (Tr. 26–27.)
Saul discussed his concerns over Mauer’s promotion with Peklo in late August 2016. (Tr.
77.) Saul had a second conversation with Peklo about his concerns during his annual review 15
meeting. (Tr. 78.) During this conversation, Saul mentioned that women in the scene shop had
mentioned that they did not feel comfortable bringing issues to management’s attention because
they did not believe anything would be done. (Tr. 79.)
In November 2016, Saul brought his concerns to Leuthner. (Tr. 79.) Saul told Leuthner 20
about his conversations with Peklo and concerns with Mauer. (Tr. 79.) Leuthner said she
needed to investigate Saul’s concerns and that she knew people weren’t happy. (Tr. 81.) Saul
followed up this conversation with an email. (GC Exh. 11; Tr. 81.) Saul asked Leuthner to
follow up with Diers. (GC Exh. 11; Tr. 81.)
25
D. Offensive Joke and Respondent’s Response
In October 2016, during a morning meeting, Mauer told a series of “redneck” jokes. (Tr. 27,
65.) Diers described his last joke as a “rape joke.”7 (Tr. 27.) Diers and Larsen were very upset
by the joke. (Tr. 27.) Diers noticed that Gangl and Walters chuckled at the joke. (Tr. 27.) Diers 30
and Larsen left the meeting and began talking about the joke on the shop floor. (Tr. 27.)
About 30 minutes later, Diers went to talk to Gangl and Walters in their office about the joke.
(Tr. 28.) Diers told them that she was upset. (Tr. 28.) She further told Gangl and Walters that
she couldn’t believe that supervisors would chuckle at a joke like that and didn’t do anything 35
about it. (Tr. 28.) Gangl and Walters apologized and promised to talk to Mauer about the joke.
(Tr. 28.) Gangl and Walters later spoke to Mauer about the joke and Mauer apologized to Diers.
(Tr. 66, 241.) When Peklo arrived at work later that day, Gangl and Walters told him about the
joke, and that they had spoken with Mauer and Mauer had apologized to Diers. (Tr. 241.) Peklo
then contacted Leuthner to report what had happened. (Tr. 241.) 40
That evening, Diers received an email from Peklo. (GC Exh. 3; Tr. 28, 242.) Peklo asked
Diers if they needed to discuss the meeting and stated that Gangl and Walters filled him in about

6 The other finalists for the supervisor position were Diers and Saul. (Tt. 110.)
7 Mauer’s statement was “What do you call a redneck girl who can run faster than her brothers? A
virgin.” (Tr. 68.)
JD–56–19
5
it. (GC Exh. 3.) Diers responded that Mauer had apologized for the joke and that she thought
everything was fine. (GC Exh. 3.) She reiterated her position that such jokes are not appropriate
for the workplace and that she hoped that supervisors would shut down such jokes if they heard
them in the future. (GC Exh. 3.)
5
Leuthner met with Peklo about Diers’ concerns. (R. Exh. 5; Tr. 142.) Leuthner was made
aware that Mauer had told the joke and apologized to Diers. (Tr. 143.)
In December 2016, Leuthner, Stewart, Diers, and employee Sara L’Heureux met to
brainstorm ideas about how to fix the problems in the scene shop.8 (R. Exh. 7; Tr. 150–151.) 10
The meeting took place in Stewart’s office and lasted about an hour.9 (Tr. 151.) Following the
brainstorming session, a women’s affinity group was created. (Tr. 152.) Diers led the women’s
affinity group, which was open to all female employees of Respondent. (Tr. 153.)
Diers and Larsen went to see Leuthner regarding their concerns.10 (R. Exh. 6; Tr. 32–33, 15
142.) Diers was frustrated that nothing had happened in the shop regarding the joke. (R. Exh. 6;
Tr. 33, 142, 147.) Diers also raised frustration that women in the scene shop were not heard
when problem solving. (R. Exh. 6.) Larsen was upset that Mauer had revealed personal
information to others against her wishes. (Tr. 33.) Leuthner listened and took notes. (R. Exh. 6;
Tr. 33, 142.) 20
Following this conversation, Respondent held training on respect in the workplace. (Tr. 34.)
Diers did not find this training effective.11 (Tr. 35.) Respondent also held mandatory trainings
on subtle sexism in March and April 2017. (R. Exh. 8; Tr. 34, 154.) Diers found the subtle
sexism training good, but too brief. (Tr. 35.) Diers and Saul did not notice a change in the 25
atmosphere of the scene shop following these training sessions. (Tr. 35, 86.)
On April 17, 2017, Stewart sent an email to all supervisors in Respondent’s production
department. (R. Exh. 8; Tr. 156–157.) Stewart’s email discussed Respondent’s addressing a
culture of sexism. (Tr. 156–157.) The email also announced upcoming subtle sexism training. 30
(Tr. 156–157.) All employees in the scene shop were required to attend this training. (Tr. 157.)
E. Unhappiness in the Scene Shop
In May 2017, Diers noticed that everyone in the scene shop was noticeably unhappy. (Tr. 35
35–36.) Diers approached the other employees and asked if they wanted to have a happy hour to
brainstorm ideas about the unhappiness in the shop. (Tr. 36.) Diers followed up these verbal
invitations with an email invitation. (GC Exh. 5; Tr. 86–87.)

8 R. Exh. 7 is a photo taken of a post-it note created at the brainstorming session.
9 Leuthner’s testimony about this meeting was uncontroverted and I credit it.
10 Beginning in 2016, Leuthner began using a tool called, “Validation 101” to facilitate conversations
involving conflict. (R. Exh. 3; Tr. 138.) This tool was sent by Ward to Peklo to help facilitate scene shop
meetings. (Tr. 140.) It is not clear whether the tool was sent to other employees. (Tr. 140–141.)
Respondent also issued a communication credo in 2016. (R. Exh. 4; Tr. 139.) This document was sent to
all employees around November 2017. (Tr. 141.)
11 After the first training, Saul sent an email to Leuthner, indicating that the training was a step in the
right direction, but was not helping create a better environment in the scene shop. (GC Exh. 12; Tr. 85.)
JD–56–19
6
Within a few weeks of Diers’ email, scene shop employees and a few frequent overhires had
a meeting. (Tr. 37.) Diers did not invite Mauer or Peklo. (Id.) The group discussed their
frustrations with Mauer and Peklo and possible solutions. (Tr. 37, 87.) The group did not come
up with any solid plan and no action was taken after the happy hour. (Tr. 37, 88.) However, the 5
possibility of taking their concerns to human resources was raised. (Tr. 37, 87–88.)
F. Meetings with Management
In June 2017, Diers had a meeting with Director of Production Dave Stewart. (Tr. 38.) Diers 10
was upset over an incident with Gangl. (Tr 38.) During the build of a show, Diers, Larsen, and
King told Gangl that something wouldn’t work, and he dismissed them. (Tr. 38.) Later, when
Saul told Gangl this same idea wouldn’t work, Gangl immediately agreed with him. (Tr. 38.)
During the meeting, Diers told Stewart that she felt like she was going to quit if he did not do
something about the culture in the scene shop. (Tr. 39.) Stewart said he did not want Diers to 15
quit and asked why she was frustrated. (Tr. 39.) Stewart asked if he could hold a meeting with
just the men in the scene shop.12 (Tr. 39.) After conferring with King, Diers told Stewart that a
such a meeting was warranted.13 (Tr. 40.) Diers communicated her decision about the meeting
via email. (GC Exh. 6; Tr. 40.)
20
In mid-June, Stewart held a meeting with the male employees of the scene shop. (Tr. 41, 89.)
Stewart started the meeting by discussing the treatment Diers had described, including disrespect
and dismissive treatment of the women in the scene shop. (Tr. 89.) Stewart said that the
treatment of the women in the scene shop was unacceptable. (Tr. 89.) He also said that
everyone deserved to have a respectful place to work and that they had to figure out ways to 25
improve the situation. (Tr. 90.) When asked if Respondent was willing to provide training and
resources, Stewart replied that the employees should figure out how to fix the problem. (Tr. 90.)
Diers later thanked Stewart for having the meeting. (GC Exh. 6.)
A few weeks later, Saul sent Stewart an email, stating that he felt that the meeting of the male 30
scene shop employees had been positive. (GC Exh. 13; Tr. 90.) Saul felt that things seemed
better following the meeting, with people openly discussing issues. (Tr. 91.) Saul wanted
Stewart to keep the momentum from the meeting going and asked if Stewart would be willing to
facilitate more meetings. (GC Exh. 13; Tr. 91.) Stewart responded that, as supervisor, he was
not the person to lead more meetings. (Id.) Stewart did not schedule any further meetings. (Tr. 35
92.)
Later that month, Peklo approached Diers and asked her to sit down with him because he had
heard about her meeting with Stewart. (Tr. 42.) They discussed the shop culture, why the
women were unhappy, and they brainstormed ideas on how to address the shop culture. (Tr. 42.) 40
They eventually agreed to have meetings, as a group, to work on the shop culture. (Tr. 42-43.)

12 As Stewart did not testify at the hearing, Diers testimony about the meeting stands uncontroverted.
13 Initially, Diers had told Stewart that she felt that having a meeting with only male scene shop
employees was not a good idea. (R. Exh. 9; Tr. 158.)
JD–56–19
7
On June 28, 2017, Leuthner sent an email to Diers asking to chat. (R. Exh. 11; Tr. 154–155,
162.) The two were unable to set up a meeting. (R. Exh. 11.) On July 6, Leuthner sent a follow-
up email to Diers, asking if there had been any progress in the shop culture. (R. Exh. 11.) Diers
replied that “I think [Peklo] is open to change, we talked about some ideas on how to move
forward. I’m afraid to say I don’t have a ton of hope, but I’m trying to keep an open mind.” (R. 5
Exh. 11.)
On August 1, 2017, Saul sent Stewart an email about scheduling a scene shop meeting. (GC
Exh. 14; Tr. 92–93.) Saul felt that backsliding had occurred and that people were as miserable as
ever. (GC Exh. 14; Tr. 92–93.) Saul felt it was important that Stewart take some action to 10
mitigate these circumstances. (Tr. 93.) Stewart responded that he did not have time to deal with
the problem at that time, but not to let it slip away. (Tr. 93.)
When Diers returned from a vacation in August 2017, she learned from King about some
issues that occurred in her absence that made her upset. (Tr. 43.) Diers emailed Peklo, copying 15
Leuthner and Stewart, asking him to schedule scene shop meetings. (GC Exh. 7; Tr. 43–44.)
Peklo replied that he planned to schedule a meeting that month, after employees returned from
their vacations. (GC Exh. 7.)
Prior to scheduling the scene shop meetings, Leuthner and Ward met with Diers.14 (Tr. 163, 20
271.) At that time, Diers expressed that she did not think that a human resources representative
needed to be present at the upcoming meeting. (Tr. 163, 271.)
G. Scene Shop Meetings
25
Peklo scheduled the first meeting in August 2017 for scene shop employees, supervisors, and
a few overhires.15 (Tr. 44–45, 163.) Walters volunteered to moderate the meeting. (Tr. 45.) At
the outset of the meeting, Peklo asked employees to write down things they were doing well and
things that needed improvement and to put the ideas into an envelope. (Tr. 45.) Employees
expressed frustration with the way supervisors spoke to them, a lack of respect in the shop, 30
sexism, and shop cleanup. (Tr. 45–-46.) After the comments were read, the group discussed
them. (Tr. 46.) Diers commented that Peklo did not have respect for anyone in the shop; Peklo
did not respond. (Tr. 46.) Following the first meeting, Ward sent Diers an email asking her how
the meeting went. (R. Exh. 12; Tr. 164.) Diers and Peklo felt that the meeting was a step in the
right direction.16 (R. Exhs. 12, 23; Tr. 164, 244.) 35
On August 10, 2017, Leuthner sent Saul an email asking if he would be attending an equity,
diversity, and inclusion (EDI) meeting. (GC Exh. 15.) Saul responded to Leuthner on August
29, addressing his concerns regarding scene shop morale. (GC Exh. 15.) Saul emphasized that
the problems in the scene shop were not merely a conflict between Diers and Peklo. (GC Exh. 40
15.) Instead, Saul stated that everyone in the scene shop was miserable because of the way Peklo

14 Diers did not testify about this meeting.
15 Saul did not attend this meeting, as he was on vacation. (Tr. 97.)
16 Peklo did not testify regarding the first scene shop meeting, so Diers’ testimony stands
uncontradicted. Peklo sent an email to scene shop employees following the first meeting attaching his
notes, but the notes were not part of the exhibit admitted at the hearing. (R. Exh. 24.)
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8
treated people. (GC Exh. 15.) Saul also stated that he had missed the first scene shop meeting,
but that nothing had changed since then. (GC Exh. 15.) Leuthner agreed that the problems in
the scene shop were not a result of conflict between Diers and Peklo. (GC Exh. 15.) She stated
that, “My understanding is that there are cultural issues around sexism in the shop, as well as
communication challenges all around.” (GC Exh. 15.) Leuthner also stated that Saul needed to 5
be patient, and that Saul and other employees needed to consider how they were “contributing to
the problem and to the solution.” (GC Exh. 15; Tr. 95.) She further asked Saul to “work on
finding constructive ways to communicate with [Peklo] while respecting the fact that he is the
supervisor.” (GC Exh. 15.) Leuthner copied Stewart on her response to Saul. (GC Exh. 15.)
10
In September 2017, a second scene shop meeting was held. (Tr. 46, 163, 246.) All full-time
scene shop employees and supervisors, as well as at least one overhire, attended this meeting.
(Tr. 46, 97.) Attendees wrote down frustrations on post-it notes and put them into categories on
a white board. (Tr. 47, 99, 246–247.) Frustrations raised included respect, communication, and
sexism. (Tr. 47.) At the end of the meeting, Diers stated, “Now what?” (Tr. 47, 99.) Diers felt 15
like she had been talking about these issues for months, but Respondent wasn’t doing anything.17
(Tr. 47.) Other employees responded to Diers’ question with ideas for future action.18 (Tr. 47,
99.)
A third scene shop meeting was held in October 2017. (Tr. 56, 99, 163.) This meeting was 20
attended by scene shop personnel, overhires, Peklo, Walters, and Gangl. (Tr. 56, 100.) At this
meeting, management wanted to establish team norms for respectful communications. (Tr. 56.)
Those present tried to use the things they had written on post-it notes at the prior meeting to
create actions for the group. (Tr. 100.) The discussion devolved into people complaining about
things they didn’t like, such as employees failing to clean up the shop. (Tr. 100.) No one from 25
Respondent’s human resources department was present, so Diers chose not to speak up at the
meeting. (Tr. 56, 101.)
Diers was upset by the lack of human resources presence at the third meeting. (Tr. 56.)
Diers spoke to King, Larsen, and Saul after the meeting. (Tr. 57, 101.) They all agreed that the 30
tone of the meeting was not constructive. (Tr. 57.) They were all surprised that no one from
human resources attended the meeting. (Tr. 57, 102.) Diers warned the others not to speak up at
the meeting because of an issue that had arisen with her recent performance evaluation.19 (Tr.
57, 102.)
35
Diers then went to speak with Gangl and Walters in their office. (Tr. 57.) Diers told them
she was frustrated with the tone of the meetings. (Tr. 58.) She told them what happened during

17 Saul believed that Diers stated, “What’s next?” or “Now what?” (Tr. 99.) Peklo testified that he
believed that the energy of the meeting was good until the end, when Diers commented that would only
be progress if, “we were actually going to do it.” (Tr. 247.) Peklo felt this was a negative punctuation to
the work at the meeting. (Tr. 247.)
18 Peklo was not asked whether Diers’ statement prompted a discussion among those present. He did
not testify about the subsequent conversation and, thus, the testimony of Diers and Saul on this point
stands unrefuted.
19 Diers received a lower rating in the area of effective communication on her August 30, 2017,
performance evaluation. (GC Exh. 8.) As an example of Diers’ negative communication style, Peklo
mentioned her, “Now what?” comment made at a previous scene shop meeting. (Tr. 50, 251.)
JD–56–19
9
her evaluation meeting with Peklo and that she did not think she could speak at the meetings any
longer. (Tr. 58.) She said she felt silenced and that the women in the scene shop needed help.
(Tr. 58.) Gangl and Walters also did not like the tone of the meeting. (Tr. 58.) Diers did not
remember if they promised to take any action. (Tr. 58.)
5
On October 11, 2017, Diers, Larsen, and King met with Bielstein about the atmosphere in the
scene shop. (R. Exh. 20; Tr. 54–55.) The group discussed sexism in the shop and the culture of
the shop. (Tr. 55.) They also raised their frustrations with Peklo; his defense of the men in the
shop, and his failure to do anything to address the culture in the shop. (Tr. 55.) Larsen raised
her fear of retaliation by Peklo. (Tr. 55.) Bielstein seemed concerned with the issues raised and 10
promised to follow up. (Tr. 55–56.) Bielstein followed up with an email, indicating that she had
met with Leuthner, Stewart, and Peklo regarding the concerns. (GC Exh. 20, 21; R. Exh. 20.)
Bielstein’s email also outlined future steps that would be taken to address the concerns, including
meetings and more training. (R. Exh. 20.)
15
On October 11, 2017, Diers sent Leuthner an email regarding the scene shop meetings and
her recent performance evaluation. (GC Exh. 18; R. Exh. 14.) In her email, Diers stated, “I
asked for HR representation at the meetings but even with that I don’t think it would be wise for
me to participate for fear of my job here at the Guthrie.” (Id.) Leuthner replied that she was not
aware of a request for a human resources representative at the scene shop meetings. (R. Exh. 20
14.) Leuthner forwarded Diers’ message to Stewart, adding that Diers remained an “unwilling
spirit.” (GC Exh. 18.) Leuthner and Stewart further discussed the meeting between Diers,
Larsen, King, and Bielstein. (Id.) Leuthner commented that it was interesting that Diers had
brought others to the meeting with Bielstein.20 (Id.)
25
On October 26, 2017, Peklo sent an email to Stewart in which he asked to meet because he
thought, “as an idea I think this ship is sinking.” (R. Exh. 25.) Stewart said they would find
time. (Id.)
On October 27, 2017, following the third scene shop meeting, Diers sent an email to 30
Leuthner (GC Exh. 10; R. Exh. 14; Tr. 58.) Diers was upset because no one from human
resources was present at the meeting even though, she believed, she had requested and Peklo had
promised this.21 (Tr. 58-59.) Diers copied Ward on her emails. (Tr. 59.) Leuthner was not
aware of any request for a human resources representative at the scene shop meetings. (GC Exh.
10.) Leuthner also asked Diers to be a “[W]illing spirit in this process.” (GC Exh. 10.) Diers 35
responded that the third scene shop meeting had been offensive to the women present and that
she did not want to attend meetings that made her uncomfortable.22 (GC Exh. 10.) Leuthner
then provided Diers with her cell phone number in order to make herself more accessible. (GC
Exh. 10.)
40

20 Bielstein is referred to as “jbiel” in GC Exh. 18.
21 Leuthner testified that she did not believe that Diers had requested a human resources
representative at the meetings at that point. (Tr. 173.) Leuthner characterized this as a misunderstanding.
(Tr. 173.)
22 Diers mistakenly denied having any contact with Leuthner or Ward since the first scene shop
meeting. (GC Exh. 10; R. Exh. 14.) This statement is contradicted by Ward’s email of August 18, 2017.
(R. Exh. 12.) I do not find that this minor misstep detracts from Diers’ overall credibility.
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10
On November 1, 2017, Leuthner sent an email to Peklo asking if Diers had asked for a
human resources representative at the scene shop meetings. (R. Exh. 13; Tr. 172.) Peklo stated
in his email, “[Diers] said she thought it would be useful if we had an outside moderator going
forward and I agreed that it was not a bad idea but did not commit to definitely do it . . . I was
hoping that since we were in the middle of a process that had been going well that we could 5
complete our norms on our own and then incorporate external help with whatever was next.” (R.
Exh. 13.)
On November 10, 2017, Saul sent an email to Leuthner requesting a meeting. (GC Exh. 16;
Tr. 103.) Saul was upset about inappropriate behavior by another employee and about the 10
environment in the scene shop. (Id.)
Saul and Leuthner met that same afternoon. (Tr. 104; 176.) During the meeting, Leuthner
asked Saul why Diers had not been communicating to the extent she had been in the past and
why she [Diers] was so upset. (Tr. 104.) Saul stated that Diers had a serious trust issue after 15
requesting human resources representation at the third scene shop meeting that was not provided.
(Tr. 104–105; 176.) Leuthner denied ever receiving an email requesting human resources
representation at the scene shop meeting. (Tr. 105.) Saul replied that maybe Diers had not sent
an email, but instead spoke to Josh [Peklo], testing him to see if he would follow through with it.
(Tr. 105.) Leuthner responded, “Yeah, she’s testing a lot of people.”23 (Tr. 105.) Saul told 20
Leuthner that he believed her comment was inappropriate. (Tr. 105.) Unsure of how else to
respond to Leuthner’s comment, Saul went on to discuss trust issues with management and
human resources. (Tr. 105.) Leuthner said that every time an issue was brought to her attention,
she acted on it. (Tr. 105.)
25
Leuthner went on to ask Saul how much of situation Diers was bringing on herself by being
so angry and negative all the time.24 (Tr. 105.) Saul became very angry and began yelling at
Leuthner. (Tr. 105–106; 176.) Saul yelled, “Was her skirt too short? Was she asking for it?
You’re blaming the victim.” (Tr. 106.) Leuthner responded that this was not her intention. (Tr.
106.) Other employees called Leuthner’s office during this meeting to make sure she was safe30
because of Saul’s yelling. (Tr. 119; 176.) The meeting continued for another hour regarding
these issues. (Tr. 106.) Leuthner spoke to Stewart and Bielstein after the meeting. (Tr. 177.)
On Monday, November 13, Saul again met with Leuthner in her office. (Tr. 106; 177.)
Leuthner advised Saul that he had yelled at her loud enough at their previous meetings loudly 35
enough to make the people in adjacent offices uncomfortable. (Tr. 106–107.) Saul stated that he
felt bad for making Leuthner and the others uncomfortable and apologized. (Tr. 107; 177.)
Leuthner emphasized that she had not received an email requesting human resources
representation at the scene shop meeting and that they should all try to be team players on this
and that Diers was not being a team player by not participating.25 (Tr. 107.) 40

23 Leuthner testified that she did not believe she made this statement. (Tr. 181, 231.) Leuthner later
testified that she couldn’t recall whether she made the statement or not. (Tr. 232.)
24 Leuthner denied making this statement. (Tr. 181.)
25 Id.
JD–56–19
11
On November 13, Peklo sent an email to the scene shop employees and supervisors. (R. Exh.
19.) Peklo indicated that momentum had been lost in creating collective norms and that in the
future human resources representatives would be included in scene shop meetings. (R. Exh. 19.)
That same day, Ward sent an email to Diers, asking her several questions about the atmosphere
in the scene shop. (R. Exh. 26.) Diers did not respond. (Tr. 278.) 5
Later, that same afternoon, Saul sent Leuthner an email. (GC Exhs. 17, 36; R. Exh. 15; Tr.
107, 178.) Saul again pointed out that Diers had asked for human resources representation at a
scene shop meeting, a request that was not acted upon by Leuthner. (GC Exh. 17, 36; Tr. 108.)
Saul noted that this same request had been made to Peklo and he had not acted upon it. (Tr. 10
108.) Saul also wanted to be clear that Leuthner’s attitude, demonstrated by rolling her eyes and
“blaming the victim,” was inappropriate.26 (Tr. 108-109.) Saul apologized to Leuthner for his
behavior during their meetings of November 10 and 13.27 (GC Exh. 17; Tr. 120.)
Leuthner forwarded Saul’s email to Ward, stating, “I no longer feel ‘safe’ without having a 15
witness to my conversations with Nate Saul.” (GC Exh. 36.) Leuthner forwarded Saul’s email a
second time to Ward, commenting, “What I really want to say is: Wow. This is such a
misrepresentation of our conversation that I no longer feel safe having any further conversations
with you without a witness.”28 (R. Exh. 16; Tr. 183.) Although Leuthner maintained that she
responded to these misrepresentations, no document containing such a response is in evidence. 20
Leuthner drafted a response to Saul but did not send it. (R. Exh. 17.) Instead, Leuthner
forwarded her draft response to Stewart. (Id.)
Diers sent an email to Leuthner, Bielstein, and Stewart on November 17, asking what
Respondent was doing to address equity, diversity, and inclusion. (R. Exh. 21.) Diers asked for 25
clarification regarding consequences for perpetrators of harassment and protection from
retaliation. (R Exh. 21.) Leuthner responded with an email of her own, copying Bielstein and
Stewart, addressing Diers’ concerns. (R. Exh. 21.) Leuthner also attached excerpt from the
company handbook and Respondent’s equity, diversity, and inclusion core value document. (R.
Exh. 21.) 30
On November 21, after meeting with Bielstein, Saul sent an email to Leuthner, again
apologizing for his behavior at their earlier meeting. (R. Exh. 18; Tr. 186–187.) Leuthner
forwarded the email to Stewart. (R. Exh. 18; Tr. 187–188.)
35
Respondent’s human resources department played a role in subsequent scene shop meetings.
(Tr. 121–122; 174.) Sadie Ward facilitated three scene shop meetings in December 2017. (Tr.
122, 273–274.) Saul praised Ward’s performance in facilitating the meetings. (R. Exh. 1; Tr.
122–123.) Ward sent out an email with attachments following the December meetings. (R.
Exhs. 27, 30.) Saul sent a reply to Ward’s first email, indicating that problems in the scene shop 40
needed to be addressed before employees could move on. (R. Exh. 28.) Ward stopped

26 Saul candidly admitted that he did not mention Leuthner’s comments that Diers was testing people,
bringing things on herself, or was not a team player in his email. (Tr. 120.)
27 Leuthner testified that the email misrepresented the conversations she had with Saul. (Tr. 180.)
28 Leuthner drafted a response to Saul, but never sent it to him. (R. Exh. 17.) Leuthner instead
forwarded the draft response to Stewart. (Id.)
JD–56–19
12
facilitating the meetings in January 2018, when Respondent hired an outside consultant to do so.
(Tr. 217, 274.)
H. Diers’ Evaluations
5
Scene shop employees receive annual performance evaluations from Peklo. (Tr. 23.) Prior
to 2017, Diers received positive evaluations. (Tr. 24.) In November 2015, Peklo stated, “It was
a busy and fractured season with lots of overlapping projects and I appreciate your hard work
and continued high level of craftsmanship.” (GC Exh. 2.) In August 2016, Diers’ performance
appraisal contained ratings of “good” or “exceptional” in all areas. (GC Exh. 4.) She received a 10
rating of “good” in communication with no comments or examples given. (Id.) Her overall
rating for 2016 was “exceptional.” (Id.)
At the time she received her 2016 evaluation, Diers raised concerns regarding Mauer with
Peklo. (Tr. 32.) Diers said that she was concerned with Mauer’s leadership and that she felt that 15
the shop was unhappy and sexist and that it was hard for women to work there. (Tr. 32.) Peklo
stated that he stood by his choice in hiring Mauer.29 (Tr. 28.)
Prior to giving Diers her 2017 performance evaluation, Peklo met with Leuthner and Stewart.
(Tr. 165, 248.) Peklo stated that he had concerns about Diers’ communication style and wanted 20
to know if it would be appropriate to include these in her performance review. (Tr. 166.)
Leuthner and Stewart believed that Peklo’s concerns were accurate. (Tr. 166; 248.) As
examples, Peklo cited comments by Diers that “things are never going to get better” and, “it’s
never going to change.”30 (Tr. 166–167.)
25
In 2017, Diers received ratings of “good” or “exceptional” in all areas, save two. (GC Exh.
8.) In the area of effective communication and ability to work flexibly, Diers received a rating of
“did not meet expectations.” (Id.) Diers also received a rating of “did not meet expectations” in
the area of shop organization, cleanliness, and efficiency.31 (Id.)
30
Diers’ overall rating in 2017 was “good/solid performance.” (Id.) In the area of effective
communication, Peklo stated
I appreciate that you are direct in communication but it is not always in the most
constructive tone. i.e. Defensive in morning meetings, not assuming best 35
intentions with engineering or design approaches presented etc.
(GC Exh. 8.) In the evaluation summary, Peklo stated, “I do have growing concerns about
communication approaches and choices that are not constructive and are tending more towards
the divisive than unifying.” (GC Exh. 8.) Peklo did not discuss any problems with Diers’ 40
communication style with her at any time prior to her receiving this rating in 2017.

29 Peklo did not testify regarding this meeting.
30 The latter comment was made during contract negotiations wherein the parties were working
toward wage parity between male and female employees. (Tr. 167.)
31 Peklo mentioned that everyone in the scene shop received a lower rating in cleanliness, as he was
upset with the shop’s disorganization. (Tr. 50–51.)
JD–56–19
13
Diers and Peklo met to discuss her August 2017 evaluation. (Tr. 48.) Peklo handed Diers
her evaluation and said that she seemed miserable. (Tr. 48.) She agreed with him and told him
that the shop culture was making her miserable. (Tr. 48.) Peklo told her that if she was fed up
with the culture that perhaps it wasn’t the place for her. (Tr. 48.) Peklo specifically stated that 5
he did not like Diers’ negativity and gave as an example her, “Now what?” comment made at a
scene shop meeting. (Tr. 50, 251.) Peklo did not cite any other examples of Diers’ negativity.32
(Tr. 50, 252.)
Diers was upset that Peklo brought up her comment made at a scene shop meeting during her 10
review. (Tr. 51.) She then asked Peklo for another meeting. (Tr. 52.)
The following week, Diers met with Peklo in his office. (Tr. 52.) She told him that the
example he used regarding her negativity was from a scene shop meeting. (Tr. 52.) Peklo
acknowledged that he made a poor choice with that example. (Tr. 52.) She stated that she did 15
not feel she could speak freely at scene shop meetings without human resources representation.
(Tr. 52.) Peklo said that he would make that happen for the next meeting.33 (Tr. 52.)
On October 11, 2017, Diers sent an email to Leuthner about her review. (GC Exh. 9; Tr. 52,
168.) Diers stated that something she said at a scene shop meeting was used against her in her 20
evaluation. (GC Exh. 9.) She felt she could not safely express her feelings at future meetings.
(GC Exh. 9.) She also stated that she had asked for human resources representation at future
meetings, but that, even with HR representation, she did not think it would be safe for her to
participate for fear of her job. (GC Exh. 9.)
25
Later, Leuthner forwarded her email exchange with Diers to Stewart. (GC Exh. 18.)
Leuthner mentioned that there are other examples of Diers’ problematic attitude and that she is
an unwilling spirit. (GC Exh. 18; Tr. 198.) Leuthner forwarded the exchange to Peklo. (GC
Exh. 19.) Leuthner characterized her exchange with Diers with one word, “Ugh.” (GC Exh. 19.)
Leuthner also forwarded her exchange with Diers regarding having a human resources presence 30
at scene shop meetings to Stewart, again characterizing the exchange with, “Ugh.” (GC Exh.
22.)
After Diers advised Leuthner that she did not feel that Leuthner’s office was a safe space to
talk, Leuthner forwarded her email exchange with Diers to Stewart with a single word describing 35
the exchange, “Awesome.” (GC Exh. 23.) Stewart opined, “She is helping absolutely nothing.”
(GC Exh. 23.) Leuthner advised Stewart that she did not feel safe from Diers.34 (GC Exh. 23.)

32 Peklo testified that he did not give other specific examples to Diers. (Tr. 252.) However, Peklo
testified that he was concerned with Diers’ communication style because it was defensive, argumentative,
and got in the way of the flow of information. (Tr. 250.)
33 Peklo did not testify regarding this meeting and Diers’ testimony stands unrebutted.
34 Despite using the word safe in quotation marks, Leuthner refused to admit that she was being
sarcastic. This is an obvious jab at Diers’ statement that Leuthner’s office was not a safe space. Leuthner
later placed the word safe in quotation marks when forwarding an email exchange with Diers to Ward.
(GC Exh. 36.) Based on this exchange and others, I found Leuthner to be a difficult witness and did not
credit her testimony except when it was uncontroverted, inherently plausible, or supported by other
reliable evidence.
JD–56–19
14
According to Leuthner, she had a conversation with Diers about her performance
evaluation.35 (Tr. 168.) Diers was upset about an example Peklo used in her performance
evaluation form a scene shop meeting because she thought the meeting had been a safe space to
speak. (Tr. 168.) Leuthner then went to Peklo and they agreed that the example from the scene 5
shop meeting had not been the best one to use. (Tr. 168.) According to Leuthner, Peklo had
“multiple other examples that he was going to use . . . but he felt like the conversation was
positive and . . . he didn’t feel the need to give multiple other examples.”36 (Tr. 168–169.)
Leuthner responded to Diers the next day. She indicated that she had spoken to Peklo and 10
that “[T]his was not the best example to use.” (GC Exh. 9; Tr. 171.) She further stated, “I would
encourage you to be open to allowing people to make mistakes, and to be a willing spirit in this
process.” (GC Exh. 9; Tr. 171.) Diers responded to Leuthner, acknowledging that people make
mistakes, but stating it was unwise to speak candidly in front of a superior. (GC Exh. 9.) Diers
reiterated that she did not see how she could participate in future meetings.37 (GC Exh. 9.)15
On January 31, 2018, Leuthner forwarded a link to an MPRN article entitled, “Guthrie Scene
Shop was Hostile Workplace Say Departed Workers” to Servi.38 (GC Exh. 24.) Servi responded
with an angry emoji. (Id.)
20
On June 13, 2018, Bielstein forwarded a copy of a Facebook post by Diers to Leuthner and
others. (GC Exh. 30.) In her post, Diers was asking people to protest Respondent’s annual gala
over its “silencing women’s voices.” (GC Exh. 30.) Leuthner forwarded the email to Akemi
Graves, an employee of Respondent, stating, “The gift that keeps on giving . . .” (GC Exh. 30.
Graves responded that Diers needed to “move on.” (GC Exh. 30.) 25
DISCUSSION AND ANALYSIS
A. Witness Credibility
30
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Corp.,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 35
(1996)), enfd 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions—indeed, nothing is more common in all kinds of judicial decisions than to believe
some, but not all, of a witness’ testimony. Daikichi Corp., 335 NLRB at 622.

35 Whether the conversation was in person, via email, or both, Diers and Leuthner (and the email)
agree that they discussed Peklo’s use of Diers’ comment at a scene shop meeting in Diers’ performance
evaluation.
36 No other such examples were ever given, save the example above taken from union contract
negotiations.
37 Leuthner admitted telling Diers she was not being a willing spirit. (Tr. 182.)
38 This article was forwarded after Diers had resigned.
JD–56–19
15
Most of my credibility findings are incorporated into the findings of fact above. Based on
my observations at trial, I found Diers to be a generally credible witness. She testified in a
forthright and candid manner. I also found Saul to be a credible witness. His testimony was
detailed and thoughtful. He also candidly admitted information that might not be favorable this
position, such as his yelling at Leuthner in their meeting and his failure to mention certain things 5
in an email to Leuthner. The testimony of Diers and Saul did not waver on cross-examination.
Both appeared resolute and comfortable while giving their testimony. Therefore, I credit the
testimony of Diers and Saul.
I did not find much of Leuthner’s testimony to be credible. Her testimony was vague and 10
appeared self-serving. She was a difficult witness. She sometimes gave confusing testimony.
For example, she engaged in the following exchange with the General Counsel:
Q. Isn’t it also true that the way that the employer filled the scene shop
supervisor position with Mr. Mauer, the teller of the rape joke, was not consistent 15
with the core value?
A. No, I don’t agree with that. We had a position that was open until filled,
and we saw a diverse and qualified slate of candidates for that position.
20
Q. Doesn’t the core value that you’re supposedly adopting here require that
the position be held open until you’ve received a sufficiently diverse pool of
candidates?
A. Yes, that is part of our core values.25
Q. And to that end, you would post the opening?
A. We would keep it open, yes.
30
Q. But that didn’t happen here, did it?
A. You’re talking about when Mark Mauer was appointed?
Q. Right.35
A. Yeah, you know, there was a restructure and an internal restructure. That
was treated differently than this last round of hiring for that position.
(Tr. 222.) Based upon Leuthner’s testimony as listed in the findings of fact and here, and her 40
demeanor, I did not credit her testimony, unless it was unrefuted or supported by other, more
credible testimony or evidence.
I found some of Peklo’s brief testimony credible. He admitted matters that might seem
damaging to Respondent’s case, such as using the example of Diers’ allegedly poor 45
communication skills from a scene shop meeting. I do not credit his self-serving testimony given
in response to a lengthy question from Respondent’s counsel, that he never discouraged Diers
JD–56–19
16
from vocalizing her concerns about perceived sexism. Furthermore, where he denied telling
Diers that the Guthrie might not be the place for her, I credit the more detailed account of Diers
over that of Peklo. Much of Peklo’s testimony was given in generalities, such as his testimony
about his meeting with Diers regarding her 2017 performance evaluation. Instead of discussing
who said what during the conversation, Peklo described the conversation as “good” and 5
“constructive.” (Tr. 251–252.) He also had difficulty directly answering questions under cross-
examination. (Tr. 258–262.)
I credit the brief testimony of Ward. The General Counsel did not cross-examine her. Her
testimony did not waver under cross-examination by the Charging Party’s counsel. However, I 10
do not find Ward’s efforts to facilitate scene shop meetings relevant here. Although Respondent
took some measures to respond to sexism in the scene shop, those efforts have no bearing on
whether Respondent committed unfair labor practices.
B. Amendment to the Complaint15
At the hearing, the General Counsel moved to amend a date in paragraph 7 of the complaint.
(Tr. 10.) Specifically, the General Counsel moved to change the date of November 10, 2017, to
November 2017. (GC Exh. 1(e); Tr. 10.) Respondent’s counsel objected to the amendment,
asserting that the allegations contained in paragraph 7 of the complaint were not contained in the 20
charge or amended charge. (GC Exh. 1(a), 1(c); Tr. 10–11.) Respondent denied the allegations
contained in paragraph 7 of the complaint in its answer. (GC Exh. 1(g).) Respondent also raised
a timeliness defense under Section 10(b) of the Act in its answer. (GC Exh. 1(g).) I allowed the
amendment at the hearing over the objection of Respondent.39 (Tr. 11.)
25
As correctly pointed out by Respondent. the allegations contained in paragraph 7 of the
complaint are not contained in the charge or amended charge. However, I find that these
allegations were properly before me. Additionally, I find that the General Counsel’s amendment
to the complaint was proper.
30
The Board requires that complaint allegations be factually related to the allegations in the
underlying charge. Nickels Bakery of Indiana, 296 NLRB 927, 928 (1989). In considering
whether a charge supports an allegation in the complaint, the Board requires that the complaint
allegation be related to and arise out of the same situation as the conduct alleged to be unlawful
in the underlying charge, although it need not be limited to the specific violations alleged in the 35
charge. 296 NLRB at 927. In NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959), the Supreme
Court held that a complaint alleging violations not specifically alleged in the charge is proper if
the matters asserted in the complaint “are related to those alleged in the charge and . . . grow out
of them while the proceeding is pending before the Board.” 296 NLRB at 927.
40
In deciding whether complaint amendments are closely related to allegations made in the
underlying charge, the Board considers the factors set forth in Redd-I, Inc., 290 NLRB 1155

39 Par. 7 of the complaint alleges that Respondent violated the Act when Human Resources Director
Jean Leuthner threatened that an employee who raised concerns about concerted complaints about the
workplace tested people and was not a team player and threatened that an employee who raised concerted
complaints about the workplace brought negative consequences on herself.
JD–56–19
17
(1988). 296 NLRB at 928. First, the Board considers whether the otherwise untimely
allegations involve the same legal theory as the allegations in the timely-filed charge. Id.
Second, the Board considers whether the otherwise untimely allegations arise from the same
factual circumstances or sequence of events as the timely-filed charge. Id. Finally, the Board
may examine whether a respondent would raise similar defenses to both allegations.40 Id. 5
In this case, the first amended charge alleges that Respondent violated the Act by a
supervisor threatening an employee. Thus, the legal theory of the complaint allegations is the
same as those in the timely-filed amended charge: a violation of Section 8(a)(1) of the Act. (GC
Exh. 1(c) and (e).) 10
In addition, the complaint allegations arise from the same factual circumstances and
sequence of events as those in the amended charge. The amended charge asserts that Respondent
violated the Act by retaliating against Diers with a negative performance evaluation and by Peklo
threatening an employee. The violations at issue allege that Respondent twice threatened an 15
employee. The allegations in the amended charge and complaint both involve threats against
employees for engaging in protected, concerted activity. All the alleged violations grow out of a
series of events that transpired after Diers, Saul, and others began complaining about sexism in
the scene shop. The alleged violations all arose during a 2-month period, from October through
November 2017. Thus, I find that complaint allegations involve the same legal theory and 20
factual circumstances as those in the amended charge.
As the allegations in the amended charge and complaint involve violations of Section 8(a)(1)
of the Act, Respondent would be expected to raise similar defenses to them. Although the
conversations involved different actors, I find that they are closely related. The allegation 25
contained in the amended charge and complaint involves a conversation between Peklo and
Diers. During that conversation, Peklo allegedly told Diers that if she was fed up with the scene
shop culture that perhaps it wasn’t the place for her. Peklo also allegedly cited Diers’ “Now
what?” comment at a scene shop meeting as the basis for downgrading her performance
evaluation in effective communication. The allegations contained in the complaint, but not the 30
charge or amended charge, involve Leuthner’s alleged statements to Saul, in two separate
conversations, that Diers was testing a lot of people and bringing things on herself and that Diers
was not being a team player. Although the allegations that were not contained in the charge or
amended charge involve separate conversations and actors, I find them closely related. See
Charter Communications, LLC, 366 NLRB No. 66, slip op. at 3 (2018) (finding timely and 35
untimely allegations closely related when they alleged that the respondent’s conduct discouraged
employees from engaging in protected activities in violation of Sec. 8(a)(1).) All of the
comments allegedly made by Respondent’s managers implicate Diers’ behavior in engaging in
protected, concerted activity. Specifically, Peklo and Leuthner both stated that Diers’ actions in
raising concerns about the workplace environment caused her to incur negative consequences. 40

40 Although Redd-I involved a complaint amendment, the precedent relied upon in Redd-I applies a
similar closely related requirement to both initial complaints and amended complaints. See Nickels
Bakery of Indiana, 296 NLRB at 928, citing NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952),
as discussed in Redd-I, Inc. 290 NLRB at 116.
JD–56–19
18
Therefore, I find that the allegations in the complaint that were not asserted in the underlying
amended charge are closely related to the allegations made in the complaint.
C. Discussion of Concertedness and Mutual Aid or Protection
5
In order to be protected under Section 7 of the Act, employee conduct must be both
“concerted” and engaged in for the purpose of “mutual aid or protection.” Fresh & Easy
Neighborhood Market, 361 NLRB 151, 153 (2014). Although these elements are closely related,
they are analytically distinct. Id.
10
A respondent violates the Act if, having knowledge of an employee’s concerted activity, it
takes adverse employment action motivated by employee’s protected, concerted activity.41 Lou's
Transport, 361 NLRB 1446, 1447 (2014). Although Section 7 does not specifically define
concerted activity, the legislative history of Section 7 reveals that Congress considered the
concept in terms of “individuals united in terms of a common goal.” Meyers Industries, 268 15
NLRB 493 (1983) (Meyers I), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882
(1986) (Meyers II), cert. denied 487 U.S. 1205 (1988). The Board broadened the scope of the
definition of concerted activity in Meyers II to include “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 II, 281 20
NLRB at 887.
The question of whether an employee has engaged in concerted activity is a factual one based
on the totality of the circumstances. National Specialties Installations, 344 NLRB 191, 196
(2005); and see, e.g., Ewing v. NLRB, 861 F.2d 353 (2d Cir. 1988). It is clear that the Act 25
protects discussions between two or more employees concerning their terms and conditions of
employment.
The Board has long found that activity is concerted where the evidence supports a finding
that the concerns expressed by the individual employee are a logical outgrowth of concerns 30
expressed by a group. Alchris Corp., 301 NLRB 182, 182 fn. 4 (1991). In certain
circumstances, the Board has acknowledged that “ostensibly individual activity may in fact be
concerted activity if it directly involves the furtherance of rights which inure to the benefits of
fellow employees.” Anco Insulations, Inc., 247 NLRB 612 (1980). Conversely,
concerted activity does not include activities of a purely personal nature that do not envision 35
group action or seeking changes affecting the group. See United Association of Journeymen and
Apprentices of the Pipefitting Industry of the United States and Canada, Local 412, 328 NLRB
1079 (1999); Hospital of St. Raphael, 273 NLRB 46, 47 (1984).
Whether an employee’s activity is concerted depends on the manner in which the employee’s 40
actions may be linked to those of his or her coworkers. Fresh & Easy Neighborhood Market,
supra at 153. The Supreme Court has observed that there is no indication that Congress intended
to limit Section 7 protection to situations in which an employee’s activity and that of his fellow

41 It is axiomatic that not all concerted activity is protected, including that which is unlawful, violent,
or in breach of contract. NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962).
JD–56–19
19
employees combine with one another in any particular way. Id. citing NLRB v. City Disposal
Systems, 465 U.S. 822, 835 (1984).
Concertedness is analyzed under an objective standard. Fresh & Easy Neighborhood
Market, supra, at 154. An employee’s subjective motivation for taking action is not relevant to 5
whether that action was concerted. Id. Indeed, as noted by the Board, employees act in a
concerted fashion for a variety of reasons, some altruistic and some selfish. Id. citing Circle K
Corp., 305 NLRB 932, 933 (1991), enfd. mem. 989 F.2d 498 (6th Cir. 1993). Further, the
concerted nature of an employee’s complaint is not dependent on the merits of the complaint. Id.
citing Spinoza, Inc., 199 NLRB 525, 525 (1972), enfd. 478 F.2d 1401 (5th Cir. 1973). 10
Recently, the Board has held that concerted activity includes cases “‘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.”’ Quicken Loans,
Inc., 367 NLRB No. 112, slip op. at 3 (2019), citing Meyers Industries, 281 NLRB 882, 887 15
(1986) (Meyers II), affd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988). In Quicken Loans, the Board found that a profanity laced statement by a
single employee regarding a customer call routed to him and the customer wasting his time was
not protected or concerted. 367 NLRB No. 112, slip op. at 1. This conversation took place in a
public restroom in the respondent’s office, while a supervisor and another employee were 20
present. 367 NLRB No. 112, slip op. at 1. The Board found that the there was no evidence that
employees as a group had any preexisting concerns about the routing of customer calls. 367
NLRB No. 112, slip op. at 3. Moreover, the Board found, there was no evidence supporting a
finding that either employee was seeking to initiate or induce group action about this issue. 367
NLRB No. 112, slip op. at 3. 25
The concept of “mutual aid or protection” focuses on the goal of the concerted activity;
chiefly, whether the employee or employees involved are seeking to improve terms and
conditions of employment or otherwise improve their lot as employees. Id. citing Eastex, Inc. v.
NLRB, 437 U.S. 556, 565 (1978). Employee motive is not relevant to whether the activity is 30
engaged in for mutual aid or protection. Fresh & Easy Neighborhood Market, supra at 156. The
analysis focuses on whether there is a link between employee activity and matters concerning the
workplace or employees’ interests as employees. Id. Although personal vindication may be
among the soliciting employee’s goals, that does not mean that the soliciting employee failed to
embrace the larger purpose of drawing management’s attention to an issue for the benefit of all 35
of his or her fellow employees. Dignity Health, 360 NLRB 1130, 1132 (2014).
In Quicken Loans, the Board found that the bathroom conversation was not undertaken for
the purpose of mutual aid or protection, and thus was unprotected. 367 NLRB No. 112, slip op.
at 4. The Board noted that there was no evidence adduced at hearing regarding the goal of the 40
alleged discriminatee’s statement and there was no evidence that it involved a goal of improving
the working conditions shared by them or with coworkers. Id. Furthermore, there was no
evidence that the two employees or any other employee had experienced or anticipated referrals
similar to those objected to by the alleged discriminatee or that such referrals adversely affected
their terms and conditions of employment. Id. 45
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20
D. Respondent Violated the Act by Downgrading Diers’ Performance Appraisal
(Complaint Par. 5)
An employer violates Section 8(a)(1) of the Act by taking adverse action against an
employee because of his or her protected, concerted activity. The critical question in such cases 5
is whether the employer’s challenged action was motivated by the employee’s protected,
concerted activity, which the Board assesses by applying Wright Line.42 Under Wright Line, the
General Counsel bears the initial burden to show that the employee’s protected activity was a
motivating factor for the adverse action by demonstrating: (1) the employee’s protected activity;
(2) the respondent's knowledge of that activity; and (3) the respondent’s animus. See Austal 10
USA, LLC, 356 NLRB 363, 363 (2010). A discriminatory motive or animus may be established
by circumstantial evidence, inferred from several factors, including the timing between the
employees’ protected activities and the adverse employment action, pretextual and shifting
reasons given for the adverse action, statements showing the employer’s general or specific
animus, and other unfair labor practices. NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 15
1984) (timing); Temp Masters, Inc., 344 NLRB 1188, 1193 (2005) (shifting or pretextual
defenses); Affiliated Foods, Inc., 328 NLRB 1107 (1999) (statements); Lucky Cab Co., 360
NLRB 271, 274 (2014) (contemporaneous 8(a)(1) violations). The burden then shifts to the
respondent to show that it would have taken the same action, even in the absence of the
employee's protected activity. Austal USA, LLC, 356 NLRB at 363–364. Under Wright Line, an 20
employer does not satisfy its burden merely by stating a legitimate reason for the action taken,
but instead must persuade by a preponderance of the credible evidence that it would have taken
the same action in the absence of the protected conduct. T & J Trucking Co., 316 NLRB 771
(1995); Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
25
Diers’ evaluation in the area of effective communication was downgraded from “good” in
2016 to “did not meet expectations” in 2017. (GC Exhs. 4, 8.) Prior to this, Diers had always
received a rating of at least good in this area. Respondent did not discuss any problems with
Diers’ communication style with her at any time prior to her receiving this rating in 2017.
30
In Diers’ 2017 evaluation meeting, Peklo directly referenced her protected, concerted
activity. In the evaluation document, Peklo referenced Diers’ lack of “constructive tone” and her
being “defensive in morning meetings.” (GC Exh. 8.) During his meeting with Diers about the
evaluation, Peklo specifically stated that he did not like Diers’ negativity and gave as an example
her, “Now what?” comment made at a scene shop meeting. Diers was engaged in protected, 35
concerted activity when she made this comment. Other employees responded to Diers’ question
with ideas for future action. Thus, Diers asked a question at an employee meeting regarding
sexism in the scene shop which sparked a conversation among the employees present. This is
clearly protected, concerted activity.
40
Respondent asserts that this complaint allegation should be dismissed because the General
Counsel has failed to establish that the downgraded performance rating was an adverse
employment action. However, Peklo specifically enmeshed Diers’ protected, concerted activity
with the downgrading of her rating in the area of effective communication. Peklo did not
provide any other examples of Diers’ failure to meet expectations in this area. The written 45

42 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
JD–56–19
21
remarks that Diers was defensive, argumentative, and divisive in her appraisal further belie
Peklo’s position that Diers’ engaging in protected, concerted activity caused him to downgrade
her evaluation. Peklo coupled the downgraded performance evaluation with threats to Diers.
During the meeting concerning Diers’ appraisal, Peklo told Diers that if she was fed up with the
scene shop culture that perhaps it wasn’t the place for her. This downgraded performance 5
evaluation was clearly meant to chill Diers’ exercise of protected, concerted activity and to
discourage her from making such comments in the future.
Respondent’s reliance on Northeast Iowa Telephone Co., 346 NLRB 465, 476 (2006), is
misplaced. (R. Br. 19.) Respondent cites this case for the proposition that the General Counsel 10
must establish by a preponderance of the evidence that the individual’s prospects for
employment or continued employment have been diminished or that some legally cognizable
term or condition of employment has changed for the worse. 346 NLRB 465, 476. Although the
administrative law judge in that case used the language quoted by Respondent, no exceptions
were taken regarding this particular finding. 346 NLRB 465, 465 fn. 2. In the absence of 15
relevant exceptions, judge’s decisions have no precedential value. Colorado Symphony Assoc.,
366 NLRB No. 122, slip op. at 1 fn. 3 (2018); see also Carpenters Local 370 (Eastern
Contractors Assn.), 332 NLRB 174, 175 fn. 2 (2000) (“It is well settled that the Board’s adoption
of a portion of a judge’s decision to which no exceptions are filed is not precedent for any other
case.”) Thus, Respondent cannot rely upon the portion of the judge’s decision in Northeastern 20
Iowa Telephone Co. to which no exceptions were taken.
Respondent’s citation to Colburn Electric Co., 334 NLRB 532, 540 (2001), is similarly
misplaced. Respondent again cites to a portion of a judge’s decision in its brief. The Board
overturned the judge’s decision in that case. 334 NLRB at 533–534. Thus, the cited portion of 25
the judge’s decision in Colburn Electric is of no precedential value. The third case43 cited by
Respondent in its brief in support of the assertion that the General Counsel must prove a tangible
harm to an employee’s employment status is a judge’s decision, which, again, has no
precedential value. (R. Br. at 19.)
30
Therefore, as I have found, the evidence establishes that Diers suffered an adverse
employment action as a result of Peklo giving her a downgraded performance appraisal. The
evidence clearly establishes that Diers engaged in protected, concerted activity and that
Respondent was acutely aware of this activity. Diers participated in brainstorming sessions with
members of management and other employees. She met with other employees to discuss 35
workplace issues on multiple occasions. Both Diers and Saul brought concerns regarding sexism
in the scene shop to the attention of management on multiple occasions. Diers met with Saul and
other employees about sexism and the culture in the scene shop. Diers brought concerns of
sexism to Stewart, which prompted him to have a meeting with the male employees in the scene
shop. Diers met with Larsen, King, and Bielstein about workplace concerns. Leuthner admitted 40
that the problems in the scene shop were a result of sexism and the culture there. During scene
shop meetings, at which managers were present, Diers and others raised concerns with the scene
shop culture and sexism. At the scene shop meeting in September 2017, Diers, growing
frustrated with the process, said, “Now what?” This prompted a discussion among those present

43 Mississippi Action for Progress, Inc., 26–CA–20650, 2002 WL 31386007 (NLRB Div. of Judges
2002).
JD–56–19
22
regarding how to address the issues raised at the meetings. Thus, I find that Diers engaged in an
obvious course of protected, concerted activity and that Respondent was aware of this activity.44
I further find that the evidence establishes that Respondent bore animus toward Diers’
protected, concerted activity. First, Peklo directly linked Diers’ “Now what?” statement, made at 5
a scene shop meeting, to her downgraded performance evaluation. Second, sarcastic remarks
made by Leuthner regarding Diers (i.e., “ugh” and “awesome”) demonstrate animus. (GC Exhs.
19, 22, 23.) Leuthner’s further sarcastic statements, seemingly mocking Diers, that she did not
feel “safe” demonstrate animus.45 (GC Exh. 23.) Leuthner’s comments in the same email
exchange repeatedly mention that Leuthner did not consider Diers to be a “willing spirit.” Third, 10
Peklo’s comments in Diers’ performance evaluation that she was defensive, and that her
communications were divisive reflect animus toward her protected, concerted activity. See
Children’s Studio School Public Charter School, 343 NLRB 801, 805 (2004) (explaining that an
employer’s comments that an employee does not have the right spirit, has a bad attitude, and is
argumentative and uncooperative can be veiled references to the employee’s protected activities, 15
and thus circumstantial evidence of animus). Fourth, as discussed in more detail below, I find
that Respondent independently violated Section 8(a)(1) of the Act through statements made by
Leuthner and Peklo. Furthermore, the timing of the meeting in September and Diers’ evaluation
1 month later provides circumstantial evidence of animus. Taken together, all of these actions
and statements establish that Respondent bore animus toward Diers’ protected, concerted 20
activity. Thus, the General Counsel has met her initial burden. The burden now shifts to
Respondent to establish that it would have taken the same action in the absence of Diers’
protected, concerted activity.
Respondent has not met its burden. Although both Peklo and Leuthner stated that there were 25
other examples supporting the downgrading of Diers’ performance evaluation in the area of
effective communication, no such examples were ever provided, either to Diers or at the
hearing.46 Thus, the only reason cited by Respondent for downgrading Diers’ appraisal was her
statement made during a scene shop meeting, while she was engaged in protected, concerted
activity. 30
Respondent’s argument that Diers’ performance appraisal lists other examples of Diers’
unacceptable communication style supporting the downgrading of her evaluation is unavailing.
Diers’ performance evaluation states, “I appreciate that you are direct in communication but it is
not always in the most constructive tone. i.e. Defensive in morning meetings, not assuming best 35
intentions with engineering or design approaches presented etc.” Peklo testified that he
downgraded Diers’ evaluation because her communication style was defensive, argumentative,
and got in the way of the flow of information. Both Diers and Saul testified that women in the
scene shop were not taken seriously when making design or engineering suggestions. It stands to

44 In its answer to the complaint, Respondent admitted the allegations contained in par. 5(a) of the
complaint that Diers raised concerns regarding workplace culture and alleged sexism and spoke with
members of management about these concerns. (GC Exh. 1(g).)
45 Even after Diers left Respondent’s employ, Leuthner and others expressed frustration with Diers’
protected, concerted activity in emails. (GC Exhs. 24, 30.)
46 Although Peklo mentioned an example of a statement by Diers at union contract negotiations as a
possible example of her negativity, this would mean that Peklo was retaliating against Diers for her union
activity. Such retaliation also runs afoul of the Act.
JD–56–19
23
reason that Diers would not assume the best intentions of others and might be defensive when
faced with sexism and dismissiveness.
Additionally, Peklo’s written references to Diers’ defensiveness, communication approaches
that were more divisive than unifying, and verbal reference to her negativity, seem to be covert 5
references to her protected, concerted activity. The Board has a long history of understandable
skepticism regarding employers' justifications of adverse employment actions based upon an
employee’s attitude. The Board has viewed an employer’s reference to an employee's attitude as
a disguised reference to the employee's protected, concerted activity. Rock Valley Trucking Co.,
350 NLRB 69 (2007); see also Children’s Studio School Public Charter School, 343 NLRB 801, 10
805 (2004) (“The Board has long considered similar comments, such as accusing an employee of
having a ‘bad attitude,’ to be a veiled reference to the employee’s protected activities.”)
Similarly, in this case, I find that Peklo’s references to Diers’ defensiveness and argumentative
style to be veiled references to her protected, concerted activity.
15
In short, I do not find that Respondent established that it would have downgraded Diers’
performance evaluation in the area of effective communication in the absence of her protected,
concerted activity. Therefore, I find that Respondent violated Section 8(a)(1) of the Act by
downgrading Diers’ performance evaluation.
20
E. Respondent Violated the Act by Peklo’s Statements to Diers (Complaint Par. 6)
While discussing her performance appraisal, Diers told Peklo that the shop culture was
making her miserable. Peklo responded that “if [she] was so fed up with the culture that perhaps
it wasn’t the place for [her].” (Tr. 48.) In this same conversation, Peklo further stated that he did25
not like Diers’ negativity and that her “Now what?” statement at a scene shop meeting was an
example of her negativity. (Tr. 50.) Peklo’s statements independently violate Section 8(a)(1) of
the Act.
The Board has found violations of Section 8(a)(1) of the Act when an employer observes to 30
an employee that he or she appears to be unhappy with their job and should seek other
employment. See Hialeah Hospital, 343 NLRB 391, 394 (2004)(finding that a supervisor
implicitly threatened employees by suggesting that if the employees were “not happy” they
should quit); Paper Mart, 319 NLRB 9 (1995)(statement that employee should seek work
elsewhere if he was not happy working for the employer, in the context of a discussion about 35
union activity, implies that employee's union activities were incompatible with continued
employment); and Jupiter Medical Center Pavilion, 346 NLRB 650, 651 (2006) (“Suggestions
that employees who are dissatisfied with working conditions should leave rather than engage in
union activity in the hope of rectifying matters coercively imply that employees who engage in
such activity risk being discharged.”) In this case, during a discussion about Diers’ performance 40
evaluation, Peklo stated that if she was miserable, perhaps the Guthrie wasn’t the place for her.
The record is replete with examples of Diers raising protected, concerted complaints regarding
the environment of the scene shop. During this same conversation, Peklo referenced an incident
of protected, concerted activity by Diers in support of his decision to downgrade her
performance evaluation. Peklo linked Diers’ complaints regarding the environment in the scene 45
shop and a statement that Diers should consider leaving. Thus, I find that Peklo’s statement to
JD–56–19
24
Diers that perhaps the Guthrie wasn’t the place for her was an implicit threat of discharge and
violated Section 8(a)(1) of the Act.
Moreover, Peklo’s statement to Diers that her “Now what?” statement at a scene shop
meeting was an example of her negativity and a reason that her performance evaluation was 5
downgraded, violated the Act. Peklo’s statement reflects that he was upset with Diers’ protected,
concerted activity. During this same conversation, Peklo specifically told Diers that her
performance evaluation was downgraded because of a statement which I have found to be
protected, concerted activity.
10
Therefore, I find that Peklo’s statements to Diers during their meeting of October 6, 2017,
violated Section 8(a)(1) of the Act.
F. Respondent Violated the Act by Leuthner’s Statements to Saul (Complaint Par. 7)
15
The Board has long held that an employer violates Section 8(a)(1) of the Act when it engages
in conduct that might reasonably tend to interfere with the free exercise of employee rights under
Section 7. Greenbrier Rail Services, 364 NLRB No. 30, slip op. at 35 (2016), citing American
Freightways Co., 124 NLRB 146 (1959). The test of interference, restraint, and coercion under
Section 8(a)(1) does not turn on the employer’s motive or on whether the coercion succeeded or 20
failed. Greenbrier Rail Services, at 35, citing American Tissue Corp., 336 NLRB 435, 441
(2001).
In a meeting with Saul on November 10, 2017, Leuthner asked why Diers had not been
communicating to the extent she had been in the past and why [Diers] was so upset. Saul and 25
Leuthner discussed whether Diers had requested the presence of a human resources
representative at the scene shop meetings. During the discussion, Leuthner stated, “Yeah, [Diers
is] testing a lot of people.” Saul immediately told Leuthner that he believed her comment was
inappropriate. Leuthner went on to ask Saul how much of situation Diers was bringing on
herself by being so angry and negative all the time. Saul became very angry and yelled at 30
Leuthner loud enough to be heard in adjacent offices.
A credibility resolution is in order regarding Leuthner’s statements to Saul on November 10,
2017. I credit the version of this meeting testified to by Saul over that provided by Leuthner.
First, I note that Leuthner did not specifically deny saying that Diers was testing people, instead 35
stating that she did not believe that she made the statement. Leuthner later testified that she
could not recall whether she made the statement or not. Leuthner’s initial direct testimony about
the meeting was brief and centered on Saul’s anger. (Tr. 176.) Saul provided a much more
detailed account of the conversation and he candidly admitted that he became loud and angry
with Leuthner. (Tr. 104–106.) 40
On November 13, 2017, Leuthner and Saul had another meeting. Saul stated that he felt bad
for making Leuthner and the others uncomfortable through his yelling at their previous meeting
and he apologized. Leuthner told Saul that, “it was important that we all try to be team players
in this, and [Diers] really wasn’t being a team player because she wasn’t participating. Leuthner 45
denied making this statement. Saul followed up the meeting with Leuthner with an email. (GC
Exh. 17.) Again, I credit the testimony of Saul over that of Leuthner regarding this conversation.
JD–56–19
25
Saul provided a detailed and candid account of this conversation. (Tr. 106–107.) Leuthner gave
a brief and nonspecific account of the meeting. (Tr. 177–178.) Furthermore, Saul’s follow-up
email mentioned Leuthner’s focus on Diers’ negativity as the problem and what he deemed
Leuthner’s victim blaming.47 (GC Exh. 17.)
5
I find that Leuthner’s references to Diers’ testing people, bringing negative consequences on
herself, and failure to be a team player violate the Act. Leuthner and Saul were discussing Diers’
protected, concerted activity when Leuthner made her comments. Accusing employees of
having a bad attitude or not having the “right spirit” provide evidence of unlawful motivation.
Children’s Studio School Public Charter School, 343 NLRB 805 (2004). Leuthner’s comments 10
could reasonably be expected to restrain or coerce employees in the exercise of their Section 7
rights. Having heard Leuthner’s opinions of Diers’ could reasonably be expected to cause Saul
to curtail his protected, concerted activity to avoid similar treatment. Therefore, I find
Leuthner’s statements to Saul in November 2017 violated Section 8(a)(1) of the Act.
15
G. Respondent’s Affirmative Defenses
In its answer to the complaint, Respondent raised 11 affirmative defenses. I have already
addressed Respondent’s timeliness defense. Respondent’s other affirmative defenses include an
alleged failure to state a valid claim under the Act, waiver and estoppel, vagueness, bad faith by 20
the Charging Party, and the lawfulness of its conduct. In its brief, Respondent did not mention
any of these affirmative defenses. The proponent of an affirmative defense has the burden of
establishing it. Babcock & Wilcox Construction Co., 361 NLRB 1127, 1140 (2014), citing
Broadway Volkswagen, 342 NLRB 1244, 1246 (2004) (finding the burden on the party raising an
untimely charge defense under Sec. 10(b) of the Act), enfd. 483 F.3d 628 (9th Cir. 2007). As 25
Respondent presented no evidence supporting its remaining affirmative defenses at the trial, and
did not discuss them in its brief, I will not address them further.
CONCLUSIONS OF LAW
30
1. Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Alliance of Theatrical Stage Employees, Local 13 (Union), has been a
labor organization within the meaning of Section 2(5) of the Act. 35
3. By downgrading the effective communications rating of Molly Diers to “did not meet
expectations” in her performance evaluation on October 6, 2017, Respondent violated
Section 8(a)(1) of the Act.
40

47 In agreement with the General Counsel, I do not find that Saul’s failure to mention Leuthner’s
specific comments that Diers was not a team player, tested people, and brought things on herself detract
from his overall credibility or from my finding that Leuthner made these statements. Saul admitted that
he did not mention these instances in his email.
JD–56–19
26
4. By threatening employees by stating that protected, concerted activity is not
consistent with continued employment, Respondent violated Section 8(a)(1) of the
Act.
5. By threatening employees by stating that performance appraisals will be negatively 5
impacted by because of employees’ protected, concerted activity, Respondent
violated Section 8(a)(1) of the Act.
6. By threatening employees by stating that an employee who raises protected,
concerted concerns about the workplace tests people, Respondent violated Section 10
8(a)(1) of the Act.
7. By threatening employees by stating that an employee who raises protected,
concerted concerns brings negative consequences on himself or herself, Respondent
violated Section 8(a)(1) of the Act.15
8. By threatening employees by stating that an employee who raises protected,
concerted concerns is not a team player, Respondent violated Section 8(a)(1) of the
Act.
20
9. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
25
Having found that the Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, I recommend Respondent be ordered to remove from its files
any reference to Diers’ downgraded performance appraisal and to notify her in writing that this
has been done and that the unlawful downgraded performance appraisal will not be used against 30
her in any way.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended48
35
ORDER
Respondent, Guthrie Theater, Minneapolis, Minnesota, its officers, agents, successors,
and assigns, shall
40
1. Cease and desist from

48 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–56–19
27
(a) Downgrading the performance evaluations of employees because they engaged in
protected, concerted activity.
(b) Threatening employees that their protected, concerted activity is not consistent with
continued employment by Respondent.5
(c) Threatening employees by stating that their performance appraisals will be negatively
impacted because they engaged in protected, concerted activity.
(d) Threatening employees by stating that employees who raise protected, concerted 10
concerns about the workplace test people.
(e) Threatening employees by stating that employees who raise protected, concerted
concerns about the workplace bring negative consequences on themselves.
15
(f) Threatening employees by stating that employees who raise protected, concerted
concerns are not team players.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
20
(a) Rescind the effective communication rating of “did not met expectations” from the
performance evaluation of Molly Diers, given on October 6, 2017.
(b) Remove from its files any reference to the unlawful downgrading of the effective
communication rating of Molly Diers in her performance appraisal given on October 6, 25
2017 and notify her in writing that this has been done and that the rating will not be used
against her in any way.
(c) Within 14 days after service by the Region, post at its facility in Minneapolis, Minnesota,
copies of the attached notice marked “Appendix.”49 Copies of the notice, on forms 30
provided by the Regional Director for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other material. In addition, the 35
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current bargaining unit employees and former bargaining unit employees employed by
the Respondent at any time since September 1, 2017. The notice shall be mailed to the
last known address of each such employee after being signed by the Respondent’s
authorized representative.40

49 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–56–19
28
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. July 5, 20195

Melissa M. Olivero10
Administrative Law Judge
AL. 64/Ja
JD–56–19
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT downgrade your performance appraisal because you engage in protected,
concerted activity.
WE WILL NOT threaten that your protected, concerted activity is not consistent with continued
employment.
WE WILL NOT threaten that your performance appraisals will be negatively impacted because
you engage in protected, concerted activity.
WE WILL NOT threaten you by stating that employees who raise protected, concerted concerns
about the workplace test people.
WE WILL NOT threaten you by stating that employees who raise protected, concerted concerns
about the workplace bring negative consequences on themselves.
WE WILL NOT threaten you by stating that employees who raise protected, concerted concerns
are not team players.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
JD–56–19
WE WILL remove from our files all references to the downgraded performance appraisal in the
area of effective communication given to Molly Diers on October 6, 2017, and WE WILL notify
her in writing that this has been done, and that the downgraded rating will not be used against her
in any way.
GUTHRIE THEATER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Federal Office Building, 212 3rd Avenue, S. Suite 200, Minneapolis, MN 55401-2221
(612) 348-1797, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-215022 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER (414) 930-7203.