Kitsap Tenant Support Services, Inc.

National Labor Relations Board - Board Decisions

May 31, 2018

366 NLRB No. 98 (N.L.R.B. 2018)

366 NLRB No. 98
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.
Kitsap Tenant Support Services, Inc. and Washington
Federation of State Employees, American Fed-
eration of State, County and Municipal Employ-
ees, Council 28, AFL–CIO. Cases 19–CA–
074715, 19–CA–079006, 19–CA–082869, 19–CA–
086006, 19–CA–088935, 19–CA–088938, 19–CA–
090108, 19–CA–096118 and 19–CA–099659
May 31, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS PEARCE
AND MCFERRAN
On June 4, 2014, Administrative Law Judge Jay R.
Pollack issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief, and the
Charging Party adopted the General Counsel’s excep-
tions and supporting brief as its exceptions and brief.
The Respondent filed an answering brief, and the Gen-
eral Counsel filed a reply brief. The Respondent also
filed cross-exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to adopt the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Decision and Order.1

1 We shall modify the judge’s conclusions of law and substitute a
new remedy, order, and notice to conform to the violations found.
On April 29, 2013, the Respondent filed a motion to dismiss the sec-
ond amended complaint, asserting that former Acting General Counsel
Lafe Solomon did not properly hold the position of General Counsel on
March 27, 2013, when the second amended complaint issued. The
Respondent argued that Solomon’s appointment was invalid under the
Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. On
September 6, 2013, Judge Pollack denied that motion. Subsequently, in
NLRB v. SW General, Inc. d/b/a Southwest Ambulance, 137 S. Ct. 929
(2017), the Supreme Court held that under the FVRA, Solomon’s au-
thority to take action as Acting General Counsel ceased on January 5,
2011, when President Obama nominated him to be General Counsel.
However, we find that subsequent events have rendered moot the Re-
spondent’s argument that Solomon’s lack of authority after his nomina-
tion precludes further litigation in this matter. Specifically, on April
14, 2017, General Counsel Richard F. Griffin, Jr. issued a Notice of
Ratification in this case that states, in relevant part, as follows:
The prosecution of this case commenced under the authority of Acting
General Counsel Lafe E. Solomon during the period after his nomina-
tion on January 5, 2011, while his nomination was pending with the
Senate, and before my confirmation on November 4, 2013.
Introduction
The Respondent provides residential support services
to developmentally disabled individuals. In November
2011, the Union began an organizing campaign to repre-
sent employees who provide caregiving services to these
disabled clients at several of the Respondent’s residential
programs. On December 20, 2011, the Union filed a
representation petition seeking an election in a unit con-
sisting of those employees. On March 15, 2012, the Un-
ion won the election. On March 23, 2012, the Board
certified the Union as the representative of the Respond-
ent’s Direct Service Staff and Head of Households
(HOHs).
This case involves multiple allegations of unfair labor
practices involving the Respondent’s conduct during
collective-bargaining negotiations with the Union,
changes in the Respondent’s disciplinary practices fol-
lowing the start of the union organizing campaign and,
subsequently, the Union’s certification, and disciplinary
actions taken by the Respondent against employees who
supported the Union. The judge found merit in some of

The United States Court of Appeals for District of Columbia Circuit
recently held that Acting General Counsel Solomon’s authority under
the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq.,
ceased on January 5, 2011, when the President nominated Mr. Solo-
mon for the position of General Counsel. SW General, Inc. v. NLRB,
796 F.3d 67, 2015 WL 4666487 (D.C. Cir. Aug. 7, 2015). The Court
found that complaints issued while Mr. Solomon’s nomination was
pending were unauthorized and that it was uncertain whether a lawful-
ly-serving General Counsel or Acting General Counsel would have
exercised discretion to prosecute the cases. Id. at *10.
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in viola-
tion of the FVRA. Id. at *9 (citing 5 U.S.C. § 3348(e)(1)).
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
In view of the independent decision of General Counsel Griffin to
continue prosecution in this matter, we reject as moot any challenge to
the actions taken by Solomon as Acting General Counsel after his nom-
ination on January 5, 2011.
In its motion to dismiss, the Respondent also challenged the authori-
ty of Regional Director Ronald K. Hooks in this case, asserting that
Regional Director Hooks was appointed on January 6, 2012. The asser-
tion is incorrect. Although Regional Director Hooks’ appointment was
announced on January 6, 2012, the Board approved his appointment on
December 22, 2011, at which time it had a quorum.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the complaint allegations, dismissed some, and failed to
rule on a number of others. As explained below, we find
that the Respondent violated the National Labor Rela-
tions Act by (1) failing to meet with the Union at reason-
able times during collective bargaining; failing to fur-
nish, or delaying in furnishing, the Union with relevant
information; and engaging in overall-bad faith bargain-
ing; (2) discharging, demoting, placing on administrative
leave, and otherwise disciplining employees because
they supported the Union; and (3) more strictly enforcing
its disciplinary rules in retaliation for employees’ union
activities and support. Finally, as explained below, we
sever and retain for further consideration complaint alle-
gations that the Respondent unlawfully maintained seven
employee handbook rules.
I. 8(A)(5) ALLEGATIONS
A. Facts
On April 23, 2012,2 the Union’s lead negotiator, Sarah
Clifthorne, sent Gary Lofland, the Respondent’s lead
negotiator, an email proposing three initial bargaining
sessions on May 30 and 31, June 5 and 6, and June 26–
28. As of May 14, Lofland had yet to respond. That
day, Clifthorne emailed Lofland, requested a response
concerning the Union’s proposed bargaining dates, and
informed Lofland that the Union could no longer meet on
May 30 and 31. By May 21, Lofland still had not re-
sponded. Clifthorne emailed Lofland again on May 21,
requested a response, and reminded Lofland that she had
also left messages with his receptionist. Lofland re-
sponded that day by email, blaming his delay on “being
out of the office.”3 Lofland proposed that the parties set
one initial meeting, on either June 5 or 6, and requested
that the Union provide a written contract proposal at this
first meeting.
On May 22, Clifthorne replied that the Union was
available to meet on June 5 and 6. Clifthorne reported
that the Union had selected five employees to participate
in contract negotiations and requested that the Respond-
ent grant the employees unpaid leave on June 4 “to pre-
pare for our negotiations.”4 On June 1, Clifthorne sent
Lofland the Union’s first information request.5

2 All subsequent dates are in 2012 unless otherwise indicated.
3 According to Clifthorne’s May 14 email, Lofland had been on va-
cation, but the vacation ended sometime before May 14.
4 During late May and early June, the parties discussed issues sur-
rounding these five employees’ participation in bargaining, which the
parties ultimately resolved.
5 Although this information request is dated May 22, the Union
submitted this request to the Respondent on June 1. In this request, the
Union requested copies of the following: (1) an organizational chart;
(2) a “current employee list with job class,” work locations, dates of
hire, and pay levels; (3) a “list of job classes”; (4) employee schedules,
“house name” [employees are assigned to work at various client resi-
That same day, Lofland notified Clifthorne that the
Respondent could no longer meet on June 5 or 6. Re-
markably, Lofland blamed the Union for its “delay in
responding to the available dates” and said those dates
were “not realistic,” claiming that the Union failed to
timely conduct training for bargaining team members,
submit an information request, and develop a written
proposal. Clifthorne and employee Gary Martell, one of
the Union’s employee bargaining representatives, testi-
fied without contradiction that the Union completed its
training session for employee bargaining representatives
on June 4, as scheduled.
On June 5, Clifthorne proposed meeting on multiple
dates in June, July, and August. In total, the Union pro-
posed 26 potential bargaining dates. On June 8, Lofland
agreed to meet on July 13 and stated that the Respondent
would only agree to additional dates after completing
that first bargaining session. Lofland asserted that the
“normal ebbs and flow of business and life preclude[d]”
him from meeting the Union’s “perceived needs and
wants” to meet at an earlier date. The Union agreed to
meet on July 13 and continued to request, without suc-
cess, that the Respondent agree to additional bargaining
dates in July and August.
On June 11, Lofland responded to the Union’s June 1
information request, producing some of the Union’s re-
quested information and stating that the “response will be
supplemented at a later time.” The Respondent does not
dispute the General Counsel’s assertion that as of June
11, the Respondent had not furnished the Union the fol-
lowing: (1) employee schedules, house name, and shift
information; (2) employee transfers, promotions, and
movement in and out of the unit since December 11,
2011; (3) job descriptions and memos about job expecta-
tions; (4) memos or written materials on policies and
procedures, rules, and guidelines for employees; (5) his-
tory of wages and raises for employees for a 5-year peri-
od; (6) training programs and requirements for staff, in-
cluding all training records since December 1, 2011; and

dences, i.e., houses], and shift information; (5) employees’ paid time
off accrual rates, vacation, and personal leave; (6) overtime paid to
employees; (7) employee transfers, promotions, and movements in and
out of the unit since December 11, 2011; (8) job descriptions and mem-
os about job expectations; (9) a current employee handbook; (10)
memos or written materials on policies and procedures, rules, and
guidelines for employees; (11) current disciplinary procedures, process,
and forms; (12) job evaluations, including process and forms used; (13)
benefit plans, including health care, dental, vision, and 401(k), includ-
ing the number of employees enrolled in each program; (14) history of
health, dental, and vision insurance cost for employees/employer for a
five-year period; (15) history of wages and raises for employees for a
five-year period; (16) training programs and requirements for staff,
including all training records since December 1, 2011; and (17) all
payments received from the State.
KITSAP TENANT SUPPORT SERVICES, INC. 3
(7) all payments received from the State. Concerning the
request for payments received from the State, the Re-
spondent asserted that it had no obligation to provide that
information.
On July 13, the parties met for the first time. At this
meeting, scheduled to last the entire day,6 the Union
spent the first one and one-half hours walking through its
contract proposal, which the Union had furnished to the
Respondent a week earlier. The proposal included a
“just cause” provision for employee discipline, a union
security provision, dues checkoff, a 3-step grievance
procedure (followed by arbitration as a final option if the
grievance procedure was unsuccessful), a progressive
disciplinary policy, and a limited management-rights
clause. The Union proposed a starting wage rate for Di-
rect Service Staff of $12.09 an hour and an HOH starting
wage rate of $14.09 an hour, with gradual annual in-
creases for both. The Respondent made no proposals and
had no questions about the Union’s proposed contract.
Clifthorne testified that after a 20-minute caucus, the
Respondent announced that it “wasn’t prepared to talk
about [the Union’s proposal] further” and declared that
they “were done for the day.” Clifthorne further testified
that following another caucus, the parties reconvened at
11:35 a.m., scheduled meetings for August 6 and 15, and
ended bargaining for the day.
On July 17, the Union submitted a second information
request to the Respondent, seeking “documents and in-
formation regarding [Kitsap’s] job descriptions and re-
cruitment postings for Head of Household (HOH) posi-
tions.” The Union explained that although the Respond-
ent had indicated that the HOH job description could be
found in the employee handbook, which the Respondent
provided to the Union on June 11, the handbook did not
in fact include the HOH job description. The Union also
reported that it had “recently [been] made aware that
[Kitsap had] changed some of the language and job re-
quirements for HOH’s,” which were reflected in HOH
job postings. Accordingly, the Union requested (1)
“[t]rue and accurate copies of any and all HOH and di-
rect service staff job descriptions that [Kitsap] has creat-
ed and used within the last twelve (12) calendar months.
The job postings should indicate the position that was
open, any work locations, and the date of the job posting
announcement,” and (2) “[a]ny and all memos created by
[Kitsap] regarding HOH and direct service staff job de-
scriptions and job duties within the last twelve (12) cal-
endar months.”

6 The parties had earlier agreed to all-day (9 a.m. to 5 p.m.) bargain-
ing sessions.
On Monday, August 6, the parties met for the second
time. They discussed the Respondent’s first proposed
contract, which the Respondent had provided to the Un-
ion the prior Friday, August 3. The proposal included a
broad management-rights clause, at-will employment, no
union security, a grievance procedure without arbitra-
tion,7 and a discretionary disciplinary procedure.8 The
Respondent announced that it intended to eliminate the
Head of Household position and replace it with the su-
pervisory position of Household Manager. The Re-
spondent proposed a Direct Service Staff starting wage
rate of $10.09 an hour and a $10.25 an hour starting
wage rate for night-shift employees. The wage proposal
also provided that the Respondent “reserves the right to
reduce the rates paid if the Department of Social &
Health Services reduces the benchmark rate, the Legisla-
ture reduces funding, or changes to health care laws and
contributions occur. The Employer shall provide at least
thirty (30) days notice to the Union of such change.”
Because the Respondent proposed eliminating the HOH
position, it proposed no wage rates for that position. The
Respondent ended the bargaining session at noon. The
parties agreed to meet on September 17. In the interim,
on August 13, citing a State audit, Lofland canceled the
parties’ previously agreed-upon August 15 meeting.
On September 17, the parties met for the third time.
Prior to that meeting, the Union provided the Respondent
with a modified proposal. The parties do not assert, nor
does the record demonstrate, that this modified proposal
contained any meaningful changes from the Union’s ear-
lier proposal. The judge found that the Respondent “re-
fused to discuss certain proposals” during the meeting.
Clifthorne testified that the Respondent refused to dis-
cuss union security, seniority, and “many” additional
issues. Discussions that day ended shortly before noon.
On October 12, in response to the Union’s June 1 and
July 17 information requests, the Respondent provided
the Union with the requested list of HOH job duties. The
Respondent did not provide the Union a job description

7 The Respondent proposed that, following exhaustion of a 3-step
review procedure before human resource officers and other managers,
the Union “may file a civil complaint in the Superior Court of Kitsap
County.”
8 The proposal regarding discipline provided that “progressive and
corrective discipline may be appropriate” and “[d]isciplinary actions or
measures may include” initial verbal reprimand, initial written repri-
mand, final written reprimand, suspension without pay, and discharge.
The proposal further provided that “[t]he step to be utilized and the
degree of discipline to be imposed is solely within the judgment and
discretion of [Kitsap].”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for Direct Service Staff employees or the requested
memos and job postings concerning the HOH position.9
On October 16, the parties met for the fourth time.10
Four days earlier, the Respondent had provided the Un-
ion with modifications to its proposed contract. The par-
ties do not assert, nor does the record demonstrate, that
these modifications contained any meaningful changes
except for two changes to the management-rights clause,
which added that the Respondent had the right to “trans-
fer bargaining unit members” and “assign bargaining unit
work to supervisors.”11 Clifthorne testified that the par-

9 The General Counsel does not contend that the Respondent’s fail-
ure to provide a job description for Direct Service Staff employees
violated the Act.
10 The judge mistakenly found that the parties’ next bargaining ses-
sion was on November 26.
11 As modified, the Respondent’s proposed management-rights
clause provided as follows:
[T]he Employer reserves and retains, solely and exclusively, all of the
inherent rights, functions, and prerogatives of management. The fol-
lowing shall be deemed representative and characteristic of the cus-
tomary and usual rights which are retained by the Employer but shall
not be deemed to exclude any and all other management rights: (1)
The right to hire employees; (2) The right to assign/reassign or sched-
ule the date, time, hours, location, and duties of work; (3) The right to
promote, demote, suspend, discipline, layoff, or discharge employees;
(4) The right to maintain order and efficiency; (5) The right to deter-
mine the number of employees assigned to any shift and to adjust
staffing plans, eliminate, or add units; (6) The right to assign the type
of equipment to be used by employees in the performance of their
work duties; (7) The right to subcontract work; (8) The right to sell all
or part of the business operations; (9) The right to grant and/or sched-
ule time off, including annual leave; (10) The right to cease all or part
of business operations; (11) The right to make such reasonable rules,
regulations, deployment plan and policy and operational manual ad-
justments as it may from time to time deem best for the purposes of
maintaining order, safety, and effective operation of its business
and/or compliance with the contractual and regulatory requirements of
its customers; (12) The right to increase compensation and/or benefits
of employees above that minimally required under the terms of this
Agreement; (13) The right to transfer bargaining unit members; (14)
The right to choose, provide, locate, and relocate employees; (15) The
right to assign bargaining unit work to supervisors; (16) The right to
enforce the Employer’s Policies and Operations Manuals; (17) The
right to develop, implement, and enforce quality assurance programs
and standards of care; (18) The right to make employee assignments
and to designate employee staffing compositions; (19) The right to de-
sign, submit, negotiate, and implement contracts; and (20) The right to
change providers and/or administrators for the benefit programs de-
scribed in this Agreement.
The management-rights clause also provided that, “[e]xcept when it can
be reasonably shown that conduct or action by the Company is in viola-
tion of a specific provision of this Agreement, the exercise by the
Company of its rights to operate and manage business and the affairs of
the Company, to select and direct the working forces and to control and
direct the use of its equipment, facilities and properties shall not be
subject to the grievance procedure or to dispute resolution procedure.”
Finally, the management-rights clause stated: “Recognizing that
[Kitsap] is subject to fluctuations in reimbursement rates which are
determined by the Washington Department of Social and Health Ser-
ties discussed a variety of topics, including management
rights, at-will employment, layoffs and recall rights, em-
ployee morale, employees’ access to their personnel files,
cell phone usage, union security, and automatic payroll
deduction of union dues. Clifthorne requested bargain-
ing dates in November. On October 25, Lofland re-
sponded: “Dealing with a torn Achilles tendon, be to
you soon.” On October 29, Clifthorne again requested
that the parties set future bargaining dates.
On October 29, the Union submitted a third infor-
mation request to the Respondent for (1) a job descrip-
tion for the Respondent’s proposed Household Manager
position, (2) total ISS dollars [i.e., payments received
from the State] paid to bargaining-unit members per
month, including overtime since March 2012,12 (3) total
reimbursement for mileage costs paid to bargaining-unit
members per month since March 2012, (4) the total
amount Kitsap paid for taxes and benefits for bargaining-
unit members per month since March 2012, and (5) the
total amount Kitsap paid for mileage reimbursement for
bargaining-unit members for client transportation per
month since March 2012.
On November 12, Lofland responded to Clifthorne’s
requests for additional bargaining dates, blaming his de-
lay on “miscommunication with my assistant” and stat-
ing that he was available on November 19, 20, or 26 and
December 17, 18, or 19. Lofland stated that the Re-
spondent could not meet on consecutive days, however,
because it would be burdensome on management.
On November 20, Lofland responded to the Union’s
October 29 information request. The Respondent pro-
vided a copy of the job description for its proposed
House Manager position and both reimbursement figures
for employee mileage costs. The Respondent refused,
however, to provide the Union with ISS dollars paid to
bargaining-unit members. Lofland asserted that the Re-
spondent was “not obligated to provide financial infor-
mation . . . because [Kitsap] does not plead inability to
pay.”13
On November 26, the parties met for the fifth time.
Contrary to the Respondent’s earlier announcement that
it intended to eliminate the HOH position, the parties

vices based upon funding by Washington Legislature, [Kitsap] express-
ly reserves the right to change and modify compensation (wages and
benefits) resulting from or caused by Department or Legislative action
subject only to providing the Union with 30 day advance notice of the
change.”
12 As noted above, the Union first requested this state payment in-
formation on June 1.
13 The Respondent also refused to provide the information regarding
unit employee taxes and benefits paid by Kitsap. Lofland asserted that
he did not believe this information was relevant. The General Counsel
does not contend that this refusal violated the Act.
KITSAP TENANT SUPPORT SERVICES, INC. 5
signed a tentative agreement to include the HOH position
in the unit. They also agreed to next meet on December
18. On December 17, Lofland canceled that meeting
because he was “feeling ill.” Lofland said that he would
contact Clifthorne later that week to schedule a January
bargaining date. He did not do so.
On January 11, 2013, Clifthorne emailed Lofland and
reported that the Union was available to meet “every day
the last two weeks of January.” On January 25, 2013,
Lofland explained that he had been “somewhat preoccu-
pied” because two “close family members” were sched-
uled to have surgery the following week and because of
preparations for the unfair labor practice (ULP) hearing,
which was to begin on February 12, 2013. Lofland sug-
gested the parties meet on February 27 or 28, 2013, or
“in the event the ULP hearing is postponed . . . [on] an-
other date.” On February 15, 2013, the judge resched-
uled the hearing to begin in late May 2013.
On January 28, 2013, the Union accepted Lofland’s
proposed February 27 date and requested additional ear-
lier dates in February, given the hearing postponement.
The next day, Lofland stated that he was no longer avail-
able to meet in late February because he “apparently
[had] been summoned for jury duty during that period.”
On February 4, 2013, Lofland clarified that he was to
report for jury duty from February 25 through March 8.
The parties agreed to meet on February 21, March 11,
and March 12, 2013. Clifthorne later canceled the Feb-
ruary 21 meeting.
On March 11 and 12, 2013, the parties met for the
sixth and seventh times. Clifthorne testified without con-
tradiction that the parties reached tentative agreements on
hiring, seniority, layoff and recall procedures, employee
training and development, performance evaluations, ac-
cess to personnel files, employee privacy, reasonable
accommodations, tools, equipment and supplies, a union-
management committee, a drug and alcohol policy, em-
ployee cell phone use, and time clocks. The parties had
yet to reach agreement on many significant issues, in-
cluding union security, dues checkoff, hours of work,
overtime, discipline, leave, holidays, transportation, a
grievance procedure, benefits, compensation, the scope
of a management-rights clause, and whether discharge
should be for cause or at will.
The parties’ final bargaining sessions were on April 4
and 5, 2013. The record reflects no positive movement
on the outstanding bargaining issues. A week later, the
Respondent reneged on its tentative agreement to include
the HOH position in the unit. In an April 12 email,
Lofland stated that “[t]he Employer’s position is that it
will eliminate the position of HOH and create a supervi-
sory position of Household Manager. That proposal re-
mains, as it always has been, subject to negotiations and
compromise.”
The parties engaged in additional bargaining sessions
attended by a federal mediator from May through De-
cember 2013. The parties did not reach a collective-
bargaining agreement at the conclusion of those sessions.
B. Analysis
1. The Respondent’s refusal to meet and bargain at
reasonable times
The complaint alleges that the Respondent violated
Section 8(a)(5) of the Act by failing and refusing to meet
with the Union at reasonable times and systematically
delaying the bargaining process. For the following rea-
sons, we affirm the judge’s conclusion that the Respond-
ent violated the Act as alleged.
Section 8(a)(5) of the Act makes it an unfair labor
practice for an employer “to refuse to bargain collective-
ly with the representative of his employees.” In relevant
part, Section 8(d) of the Act defines the phrase “to bar-
gain collectively” as “the performance of the mutual ob-
ligation of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms
and conditions of employment . . .” (emphasis added).
Nearly 70 years ago, the Board fleshed out this statutory
mandate, explaining that
[t]he obligation to bargain collectively surely encom-
passes the affirmative duty to make expe[]ditious and
prompt arrangements, within reason, for meeting and
conferring. Agreement is stifled at its source if oppor-
tunity is not accorded for discussion or so delayed as to
invite or prolong unrest or suspicion. It is not unrea-
sonable to expect of a party to collective bargaining
that he display a degree of diligence and promptness in
arranging for collective bargaining sessions when they
are requested, and in the elimination of obstacles there-
to, comparable to that which he would display in his
other business affairs of importance.
J. H. Rutter-Rex Manufacturing Co., Inc., 86 NLRB 470,
506 (1949).
Beginning on April 23, the Union repeatedly requested
initial bargaining dates without a response from the Re-
spondent. On May 21, the Respondent finally agreed to
meet on either June 5 or 6. However, the Respondent
then rescinded its offer on June 1. Incredibly, the Re-
spondent blamed this cancelation on the Union, falsely
citing the Union’s “delay in responding to available
dates.” It was the Respondent—not the Union—that
waited almost one full month before agreeing to a date
for an initial bargaining session, which it then canceled.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent’s additional stated reasons for canceling
this initial session—the Union’s purported failure to train
employee bargaining representatives, request infor-
mation, and develop a written contract proposal—were
equally baseless. On May 22, the Union reported to the
Respondent that it intended to train its bargaining repre-
sentatives on June 4, and the Union did just that. More-
over, neither the submission of an information request
nor the preparation of a contract proposal is a valid pre-
requisite for an initial bargaining session.
In June, the Union continued to propose potential bar-
gaining dates and questioned the Respondent’s refusal to
schedule more than one bargaining date at a time. The
Respondent, however, again agreed to just one date, July
13. Accordingly, almost 12 weeks elapsed from the Un-
ion’s first request for bargaining dates (on April 23) to
the date the parties met for the first time, July 13.
The Respondent’s dilatory tactics persisted. Although
the parties had agreed that bargaining sessions would last
from 9 a.m. to 5 p.m., the Respondent ended the parties’
first bargaining session before noon, claiming that it was
unprepared to discuss any element of the Union’s initial
contract proposal even though the Union had furnished
that proposal to the Respondent a week earlier. At the
second session on August 6, the Respondent again ended
negotiations before noon. At the parties’ third session on
September 17, the Respondent refused to discuss a num-
ber of proposals and again prematurely ended that ses-
sion before noon.
The parties met on October 16 and November 26, but
the Respondent canceled the December 18 session with
just one day’s notice. Although the Respondent prom-
ised that it would reach out to the Union to reschedule
that session, it did not do so. Only the Union made an
effort to schedule additional sessions. On January 25,
2013, more than 5 weeks after canceling the December
18 session, the Respondent finally communicated with
the Union and proposed to meet on February 21. Be-
cause of the Respondent’s continued dilatory conduct,
almost 3 months elapsed between its proposed February
21, 2013 session and the parties’ previous meeting on
November 26.
On these facts, we find that the Respondent violated
Section 8(a)(5) by failing and refusing to meet with the
Union at reasonable times to engage in collective bar-
gaining. See Fruehauf Trailer Services, 335 NLRB 393,
393 (2001) (finding that employer failed to meet at rea-
sonable times where “it took two letters from the [u]nion
and the passage of almost 3 months before the [employ-
er] met with the [u]nion for an initial bargaining ses-
sion,” and when the parties finally met, the employer did
not “offer[] any substantive response to the [u]nion’s
initial proposal”); Calex Corp., 322 NLRB 977, 978
(1997) (employer exhibited an unlawful “pattern of de-
lay” where, even though the parties had 19 bargaining
sessions in 15 months following union certification, the
employer canceled a number of bargaining sessions be-
cause of various asserted scheduling problems), enfd.
144 F.3d 904 (6th Cir. 1998); Bryant & Stratton Business
Institute, 321 NLRB 1007, 1042 (1996) (finding that
employer failed to meet at reasonable times where it
would only bargain approximately 1 day per month, lim-
ited the time available for bargaining by insisting on
meeting in the late afternoon and then leaving early to
catch a flight, and was generally reluctant to schedule
multiple bargaining dates in advance), enfd. 140 F.3d
169 (2d Cir. 1998).14
2. The Respondent’s failures to provide, and delays in
providing, requested relevant information
The complaint includes multiple allegations that the
Respondent violated Section 8(a)(5) by failing to pro-
vide, and unreasonably delaying in providing, the Union
with requested relevant information. The judge did not
address any of these allegations, and the General Counsel
has excepted to his failure to do so with respect to certain
requests. Consistent with the General Counsel’s excep-
tions, we find the following violations.
On June 1, the Union submitted its first information
request.15 On June 11, the Respondent provided some of
the requested information. Left unfurnished was the fol-
lowing information, the relevance of which the Respond-
ent does not question (except for item 7): (1) employee
schedules, house name, and shift information; (2) em-
ployee transfers, promotions, and movement in and out
of the unit since December 11, 2011; (3) job descriptions
and memos about job expectations; (4) memos or written
materials on policies and procedures, rules, and guide-
lines for employees; (5) history of wages and raises for
employees for a 5-year period; (6) training programs and
requirements for staff, including all training records since
December 1, 2011; and (7) all payments received from
the State. The General Counsel contends that the Re-

14 It is no defense that the Respondent’s chosen lead negotiator,
Lofland, canceled bargaining sessions or was otherwise unavailable to
meet due to personal and business-related matters, i.e., a vacation, an
Achilles tendon injury, miscommunication with his assistant, jury duty,
his health concerns and those of his relatives, a State audit, or his prep-
aration for an unfair labor practice hearing. The Board has consistently
rejected this “busy negotiator defense.” See, e.g., Calex Corp., 322
NLRB at 978 (“[I]t is well settled than an employer’s chosen negotiator
is its agent for the purposes of collective bargaining, and that if the
negotiator causes delays in the negotiating process, the employer must
bear the consequences.”).
15 The complaint mistakenly referred to this as the May 22 infor-
mation request.
KITSAP TENANT SUPPORT SERVICES, INC. 7
spondent violated Section 8(a)(5) by delaying in provid-
ing items 1–6 and by failing to provide item 7. For the
following reasons, we agree.
The Respondent states that it provided the information
requested in items 1–6 on “June 15, July 3, August 3, and
September 14.” Accordingly, by its own admission, the
Respondent delayed in providing some of this infor-
mation for 10 ½ weeks (June 1 to August 3), and it de-
layed in providing other of this information for 16 ½
weeks (June 1 to September 14). The Respondent offers
no explanation for these delays. We find that these de-
lays were unreasonable and unlawful. See, e.g., Civil
Service Employees Assn., 311 NLRB 6, 9 (1993) (10-
week delay unlawful); Montgomery Ward & Co., 234
NLRB 588, 589–590 (1978) (3-month delay unlawful).
Turning to the Union’s request for information regard-
ing payments received from the State, we find that the
Respondent violated Section 8(a)(5) by failing to provide
this information to the Union.16 The Respondent argues
that it is has no obligation to provide this financial in-
formation because a presumption of relevancy does not
apply “to a request for financial structure or condition.”
The Respondent is correct that “generally, an employer is
not obligated to open its financial records to a union un-
less the employer has claimed an inability to pay.”
Caldwell Mfg. Co., 346 NLRB 1159, 1160 (2006). The
Respondent did not assert inability to pay. However, the
Union did not seek general access to the Respondent’s
financial records. It only asked for information regard-
ing payments the Respondent received from the State of
Washington.
Where an employer adopts bargaining positions that
make certain financial information relevant, the union is
entitled to that information in order “to evaluate and veri-
fy the [employer’s] assertions and develop its own bar-
gaining positions.” Id. The Respondent’s proposed
management-rights clause and compensation proposal
stated that because of “fluctuations” or “reduc[tions]” in
State reimbursement rates, the Respondent would reserve
the right to modify compensation and benefits on 30
days’ notice to the Union. Moreover, the parties’ com-
peting proposals regarding compensation suggested that
they disagreed on whether current appropriation levels
allowed for an increase in existing wage rates. In July,
the Union proposed wage rates of $12.09/hour and
$14.09/hour for Direct Service Staff and HOHs, respec-
tively. In August, the Respondent proposed maintaining

16 Again, the Union repeated its request for this information on Oc-
tober 29. At that time, the Union clarified that it sought “total ISS
dollars [a term used to describe payments received from the State] paid
to bargaining unit members per month, including overtime since March
2012.” The Respondent again refused to provide this information.
the Direct Service Staff wage rate at $10.09/hour. We
find that the information the Union requested regarding
payments received from the State would have aided the
Union in determining whether the Respondent had any
room for potential movement on wage rates—a crucially
important bargaining subject—based on current appro-
priations.17
On July 17, the Union requested job descriptions,
memos, and job postings concerning the Respondent’s
HOH position. The Respondent does not question the
relevance of this information. On October 12, the Re-
spondent provided the Union with a list of HOH job du-
ties, without any explanation for the delay. We find that
this almost 3-month delay in providing this information
violated Section 8(a)(5). See Montgomery Ward & Co.,
234 NLRB at 589–590 (3-month delay unlawful). The
Respondent entirely failed to provide the Union with
copies of memos and job postings concerning the HOH
position. We find that the failure to provide this relevant
information also violated Section 8(a)(5).18
3. The Respondent’s overall bad-faith bargaining
The complaint alleges, and the General Counsel argues
in his exceptions, that the Respondent’s conduct, viewed
in its entirety, demonstrates that the Respondent was
bargaining without a sincere desire to reach a collective-
bargaining agreement, and therefore the Respondent en-
gaged in overall bad-faith bargaining. The judge did not
address this complaint allegation. For the following rea-
sons, we agree with the General Counsel and find that
the totality of the Respondent’s conduct during negotia-

17 We need not pass on whether the Respondent violated the Act by
its refusal to furnish information regarding payments received from the
State in response to the Union’s June 1 request for that information,
before the Respondent had given the Union its initial contract proposal
(on August 3). The Union asked for the same information again on
October 29, by which time the Respondent had clearly linked its bar-
gaining positions to State reimbursement rates. The Respondent’s
refusal to furnish the information in response to the October 29 request
was clearly unlawful under Caldwell, supra. The precise date of the
violation has no effect on the remedy.
18 We reject the General Counsel’s argument that the Respondent
further violated Sec. 8(a)(5) by failing to sufficiently explain the mean-
ing of two terms it used during negotiations. First, on May 21, Lofland
stated to the Union that the Respondent’s negotiating team would need
final approval from “the Board” before the parties could reach a full
and complete agreement. The General Counsel asserts that the Re-
spondent refused to identify the “Board.” In a June 1 letter to the Un-
ion, however, Lofland explained that the “Board” referred to “the
Board of Directors of [Kitsap.]” Second, in its compensation proposal,
the Respondent stated that current employees, except those working
night shifts, would be “red circled.” Although the Respondent’s pro-
posal did not define the term “red circled,” the General Counsel does
not dispute the Respondent’s assertion that Clifthorne, as an experi-
enced negotiator, would have understood that term to mean that those
employees would “continue to receive the same rate of wages.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions demonstrates that it engaged in bad-faith bargain-
ing.
Section 8(d) of the Act defines the duty to bargain col-
lectively as “the performance of the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment . . . . but such obligation does not compel
either party to agree to a proposal or require the making
of a concession.” Good-faith bargaining “presupposes a
desire to reach ultimate agreement, to enter into a collec-
tive bargaining contract.” NLRB v. Insurance Agents’
Union, 361 U.S. 477, 485 (1960). In determining wheth-
er a party has violated its statutory duty to bargain in
good faith, the Board “looks to the totality of the circum-
stances in which the bargaining took place.” Overnite
Transportation Co., 296 NLRB 669, 671 (1989), enfd.
938 F.2d 815 (7th Cir. 1991). “From the context of an
employer’s total conduct, it must be decided whether the
employer is engaging in hard but lawful bargaining to
achieve a contract that it considers desirable or is unlaw-
fully endeavoring to frustrate the possibility of arriving at
any agreement.” Public Service Co. of Oklahoma (PSO),
334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th
Cir. 2003).
As discussed in greater detail above, we find that the
Respondent exhibited bad faith by engaging in dilatory
tactics, failing to provide the Union with requested rele-
vant information, and delaying in providing the Union
with relevant information. The Respondent’s dilatory
tactics began almost immediately after the Union’s certi-
fication and persisted throughout negotiations. The in-
formation the Respondent unreasonably delayed in fur-
nishing to the Union involved matters critical to the Un-
ion’s ability to formulate proposals and engage in mean-
ingful bargaining, including unit employees’ wage histo-
ries, schedules, work history, training, employee job de-
scriptions, the Respondent’s rules and policies, and in-
formation about the HOH position. Moreover, the Re-
spondent’s outright refusal to provide information con-
cerning State payments impacted the Union’s ability to
meaningfully bargain over wages and benefits, perhaps
the most critical of all mandatory subjects of bargaining.
The Board has found that such unlawful conduct is evi-
dence of an employer’s overall bad faith. See, e.g., Re-
gency Service Carts, Inc., 345 NLRB 671, 672–673
(2005).
The Respondent’s conduct concerning the HOH posi-
tion is further evidence of its bad faith. It is well settled
that “the withdrawal of a proposal by an employer with-
out good cause is evidence of a lack of good faith bar-
gaining by the employer in violation of Section 8(a)(5) of
the Act where the proposal has been tentatively agreed
on.” Valley Central Emergency Veterinary Hospital, 349
NLRB 1126, 1127 (2007) (internal quotation omitted);
see also Driftwood Convalescent Hospital, 312 NLRB
247, 252 (1993) (stating that when “an employer with-
draws a bargaining proposal on which tentative agree-
ment has been reached and, in its place, substitutes a re-
gressive proposal, this conduct has the inevitable and
foreseeable effect of obstructing and impeding the collec-
tive-bargaining process”), enfd. sub nom. NLRB v. Valley
West Health Care, 67 F.3d 307 (9th Cir. 1995). The Re-
spondent offered no explanation for its April 2013 deci-
sion to repudiate the parties’ tentative agreement the pre-
vious November to include the HOH position in the bar-
gaining unit. Such regressive bargaining suggests the
Respondent was not serious about coming to an agree-
ment and would continue to walk back proposals so as to
frustrate the Union and delay agreement. We find that
this unexplained conduct concerning an issue so crucial
to collective bargaining—the composition of the bargain-
ing unit—is inconsistent with a sincere willingness to
reach agreement.19
Finally, although we conclude that the conduct de-
scribed above, without more, warrants a finding of over-
all bad-faith bargaining, we agree with the General
Counsel that the Respondent’s bargaining proposals fur-
ther demonstrate that the Respondent failed to bargain in
good faith. The Board does not evaluate whether par-
ticular proposals are acceptable or unacceptable. See
NLRB v. American National Insurance Co., 343 U.S.
395, 403–404 (1952). However, the Board will examine
proposals when appropriate and consider whether, on the
basis of objective factors, such bargaining positions con-
stitute evidence of bad-faith bargaining. Reichhold
Chemicals, 288 NLRB 69, 69 (1988), affd. in relevant
part 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S.
1053 (1991). An inference of bad-faith bargaining is
appropriate when the employer’s proposals, taken as a
whole, would leave the union and the employees it repre-
sents with substantially fewer rights and less protection
than provided by law without a contract. Public Service
Co. of Oklahoma (PSO), 334 NLRB at 487–488. Put
somewhat differently, an inference of bad-faith bargain-
ing is warranted when an employer’s proposals “would
strip the [u]nion of any effective method of representing

19 The scope of the bargaining unit is a permissive subject of bar-
gaining and cannot be modified by the employer without the consent of
the union or the approval of the Board. See, e.g., Solutia, Inc., 357
NLRB 58, 62 (2011), enfd. 699 F.3d 50 (1st Cir. 2012). The judge
found, however, that the Respondent did not unlawfully insist on the
removal of the HOH position from the unit because it did not insist on
its position to the point of impasse. There are no exceptions to the
judge’s finding.
KITSAP TENANT SUPPORT SERVICES, INC. 9
its members . . . further excluding it from any participa-
tion in decisions affecting important conditions of em-
ployment . . . thus exposing the company’s bad faith.”
A-1 King Size Sandwiches, Inc., 265 NLRB 850, 859
(1982) (internal quotations omitted), enfd. 732 F.2d 872
(11th Cir. 1984), cert. denied 469 U.S. 1035 (1984). We
recognize, of course, that under the Act neither the Board
nor the courts may compel concessions or otherwise sit
in judgment upon the substantive terms of collective-
bargaining agreements. American National Insurance
Co., 343 U.S. at 403–404. Our examination of the Re-
spondent’s proposals is undertaken to determine, not
their merits, but “whether in combination and by the
manner proposed they evidence an intent not to reach
agreement.” Coastal Electric Cooperative, 311 NLRB
1126, 1127 (1993).
Considering these factors, we find that the Respond-
ent’s proposals evinced bad-faith bargaining. First, the
Respondent sought to deny the Union any role in deter-
mining wages and benefits during the life of the contract.
The compensation provision of the Respondent’s final
October contract proposal provided that the Respondent
“reserves the right to reduce the rates paid if the Depart-
ment of Social & Health Services reduces the benchmark
rate, the Legislature reduces funding, or changes to
health care laws and contributions occur.” Under this
proposal, the Union would be entitled only to receive
notice of any wage rate changes, not to bargain over pro-
posed changes in wage rates. This provision left no
doubt that the Respondent sought to deny the Union any
role in establishing wage rates during the life of the con-
tract. The management-rights clause of the Respondent’s
final contract proposal repeated this language and clari-
fied that the Respondent considered “compensation” to
include “wages and benefits.” The management-rights
clause also provided that the Respondent had the “right
to increase compensation and/or benefits of employees
above that minimally required under the terms of this
Agreement.”
Second, by its proposals regarding discipline and dis-
charge, the Respondent sought to retain unfettered dis-
cretion over those vitally important areas as well. The
Respondent’s final contract proposal provided for “at
will” employment, with no limits on the Respondent’s
right to discharge unit employees (other than those limits
imposed by law). Although the discipline provision in
the Respondent’s proposed final contract provided for a
progressive disciplinary schedule, utilizing that schedule
would be entirely at the discretion of the Respondent.
The proposed contract provided that the Respondent
“may” follow a progressive disciplinary schedule, and
the “step to be utilized and the degree of discipline to be
imposed is [sic] solely within the judgment and discre-
tion of [Kitsap]” (emphasis added). The Respondent’s
proposed management-rights clause similarly provided
the Respondent with the “sole[] and exclusive[] . . .
right[]” to “promote, demote, suspend, discipline, layoff,
or discharge employees.” The proposed management-
rights clause also would have granted the Respondent the
exclusive right to “make . . . reasonable rules, regula-
tions, deployment plan and policy and operational manu-
al adjustments” and to “enforce the Employer’s policies
and Operations Manual.” This language would grant to
the Respondent unilateral control over work rules, poli-
cies, and other regulations, which obviously also affect
employee discipline.
Finally, the Respondent’s proposed contract would ex-
clude from the grievance procedure the Respondent’s
exercise of the extraordinarily broad discretion provided
it under many of these proposed provisions. The Re-
spondent’s proposed management-rights clause provided
that the rights established therein “shall not be subject to
the grievance procedure or to dispute resolution proce-
dure.” 20 Accordingly, employees and the Union would
be left with no avenue to challenge any of the Respond-
ent’s decisions with regard to the nearly exhaustive list
of rights reserved to the Respondent under the manage-
ment-rights clause. The Board has consistently found
this factor to be an indicator of bad faith. See, e.g., Re-
gency Service Carts, 345 NLRB at 675, 722 (where em-
ployer’s management-rights clause was “extremely
broad,” employer exhibited bad faith by proposing that
rights granted therein would not be “subject to the griev-
ance procedure and/or arbitration”).
These proposals of the Respondent would have re-
quired the Union “to cede substantially all of its repre-
sentational function, and would have so damaged the
Union’s ability to function as the employees’ bargaining
representative that the Respondent could not seriously
have expected meaningful collective bargaining.” Public
Service Co. of Oklahoma (PSO), 334 NLRB at 489; see
also Regency Service Carts, 345 NLRB at 672–676 (em-
ployer bargained in bad faith where it engaged in dilatory
tactics, failed to timely respond to information requests,
adhered to a proposed management-rights clause that left
it with “unilateral control [] over virtually all significant
terms and conditions of employment,” and insisted on a

20 The Respondent’s proposed management-rights clause additional-
ly grants the Respondent the exclusive right to control other significant
terms and conditions of employment, including employees’ work
schedules; the subcontracting of work; the granting and scheduling of
time off, including annual leave; the transfer and relocation of bargain-
ing-unit members; and the assignment of bargaining-unit work to su-
pervisors.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
grievance and arbitration clause that excluded from arbi-
tral review the employer’s exercise of discretion under its
proposed management-rights clause); A-1 King Size
Sandwiches, Inc., 265 NLRB at 858–859 (employer bar-
gained in bad faith where it insisted on the unilateral
right to set wage rates and “total control over virtually
every significant aspect of the employment relationship,”
including discipline and discharge, work rules and regu-
lations, subcontracting, and the transferring of unit
work). In sum, the Respondent’s collective-bargaining
proposals provide an additional basis for finding the Re-
spondent’s bad faith.
For all the reasons discussed above, we find that the
Respondent violated Section 8(a)(5) by engaging in
overall bad-faith bargaining.21
II. 8(A)(3) ALLEGATIONS
The complaint alleges that the Respondent violated
Section 8(a)(3) of the Act through a variety of discipli-
nary actions involving five employees. The judge dis-
missed all these allegations except for three involving
employee Lisa Hennings.22 For the reasons that follow,
we adopt the judge’s findings regarding the three viola-
tions involving Hennings, we adopt the judge’s dismissal
of certain 8(a)(3) allegations, and we reverse the judge
and find certain additional 8(a)(3) violations as discussed
below.23
A. Bonnie Minor
1. Facts
As noted, the Union began its organizing campaign in
November 2011. Union Organizer Timothy Tharp testi-
fied that the Union engaged in a preelection “blitz” dur-
ing the first weekend of December 2011. As part of this
blitz, the Union visited over 50 employees at their
homes, solicited employee signatures for authorization
cards, and held a meeting on Sunday, December 4 at a

21 The judge found that the Union, at an unspecified time, “agreed to
Respondent’s [management-rights] proposal with a minor exception.”
However, the only statement in the record concerning this finding is
Respondent’s counsel’s assertion, during closing arguments at the
Board hearing, that the Union agreed to that proposal during federal
mediation, which began in May 2013. Nevertheless, the judge’s find-
ing, which no party excepted to, does not impact our determination that
the Respondent engaged in overall bad-faith bargaining at least through
April 2013.
22 See Sec. D, below.
23 No party excepts to the judge’s dismissal of 8(a)(3) allegations
involving disciplinary actions taken against employee Terry Owens. At
the hearing, the General Counsel withdrew 8(a)(3) allegations involv-
ing employee Lenora Jones. There are also no exceptions to the
judge’s dismissal of the allegation that the discharge of employee John-
nie Driskell violated Sec. 8(a)(3). As discussed below, however, the
General Counsel contends that the ALJ erred in failing to address
whether Driskell’s discharge also violated Sec. 8(a)(1). See Part III,
infra.
local hotel. Tharp further testified that on December 14,
the Union mailed employees a flyer, which included the
names and photographs of several employees and identi-
fied these employees as members of the Union’s organiz-
ing committee. The judge found that the Respondent
learned of the union campaign in December 2011. Gen-
eral Manager Alan Frey, who played a significant role in
all of the Respondent’s allegedly unlawful disciplinary
actions, testified that he learned of the campaign in No-
vember 2011. Frey also admitted seeing the union flyer
“sometime [in the] middle of December.” The Respond-
ent opposed the Union’s organizational efforts. Begin-
ning December 7, 2011, the Respondent held several
mandatory employee meetings, where a consultant hired
by the Respondent advocated against unionization.
The Respondent hired Minor in June 2008 and pro-
moted her to an HOH position in late 2009. Minor was a
member of the Union’s organizing committee. Minor
also attended union meetings, including the December 4
blitz meeting. Her picture was included on the union
flyer. On December 1, 2011, Minor received a strongly
positive performance evaluation.24
In the fall of 2011, Minor and HOH Johnson Ezebrio
volunteered to organize multiresidence Thanksgiving and
Christmas parties. The Respondent does not dispute the
General Counsel’s claim that the Respondent has no set
rules or guidelines for the planning of such parties. The
Respondent’s clients were responsible for contributing
money for food and other party-related expenses. Prior
to the Thanksgiving party, employees reported to Minor
that some clients could not afford to participate in both
parties. Minor decided to cancel the Christmas party.
On December 7, 2011, Frey called Minor, told her she
had no right to cancel the party, and instructed her to
reschedule the party, which she promptly did. Frey made
no mention of discipline.
That same day, after Frey’s phone call with Minor,
employee Joy Woodward called Frey to report Minor.
Woodward reported that Minor told three clients that
during her conversation with Frey, Frey had screamed at,
yelled at, and been mean to Minor. Frey testified that
this behavior concerned him, and he called Minor into
his office to discuss it. Human Resources representative
Kathy Grice also attended this meeting. Minor com-
plained that Frey treated her like he was her father, but
she admitted that Frey did not yell or scream during their

24 Minor received the highest rating (“[c]onsistently at highest
standard”) in seven out of ten performance evaluation categories:
ability to learn, knowledge of work, initiative, attitude toward company
policy, dependability, personality, and attitude. Minor received the
second highest rating (“[u]sually of highest quality”) in the remaining
three categories: quality of work, quantity of work, and industry.
KITSAP TENANT SUPPORT SERVICES, INC. 11
phone conversation. Frey explained to Minor that her
behavior was inappropriate because it constituted “trian-
gulation,” but he did not indicate any discipline would be
forthcoming or was even being considered.
Psychotherapist Michael Allan Comte explained that
triangulation occurs when a staff member uses a client to
get what the staff member wants. Comte further testified
that clients should not learn of conflict between man-
agement and staff because such knowledge would be
counter-therapeutic. The General Counsel does not dis-
pute the Respondent’s assertion that “Client T,” a rape
victim, overheard Minor’s remarks. Frey testified that it
took 15 years for him to build a trusting relationship with
Client T and that Minor’s triangulation could risk that
relationship as well as the Respondent’s relationship with
additional clients.
Shortly after her meeting with Frey and Grice, Minor
attended the Respondent’s first mandatory meeting relat-
ed to the union campaign. During the meeting, Minor
asked the consultant “how much money [the] Respond-
ent was paying him.” Immediately after that meeting,
Minor left the facility to attend a union organizing meet-
ing.
After the organizing meeting had concluded, Grice
called Minor to inform her that the Respondent had de-
cided to terminate her employment. Minor testified that
Grice explained that the termination was the result of her
insubordination. The next day, the Respondent issued
Minor a letter of termination, which cited Minor’s failure
to follow protocol concerning the holiday party, poor
attitude and judgment crossing professional boundaries,
misrepresentation of information to clients and staff, and
causing distress to clients.
2. Analysis
The General Counsel alleges that the Respondent vio-
lated Section 8(a)(3) by discharging Minor on December
7, 2011. The judge dismissed this allegation. We re-
verse and find the violation.
Our analysis of the Respondent’s disciplinary actions
in this case, including Minor’s discharge, is governed by
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). Under Wright Line, the General
Counsel has the burden to prove that an employee’s Sec-
tion 7 activity was a motivating factor in the employer’s
adverse employment action against the employee. The
elements required to support the General Counsel’s ini-
tial showing are union or other protected concerted activ-
ity by the employee, employer knowledge of that activi-
ty, and animus on the part of the employer. See, e.g.,
Libertyville Toyota, 360 NLRB 1298, 1301 (2014), enfd.
801 F.3d 767 (7th Cir. 2015). Unlawful employer moti-
vation may be established by circumstantial evidence,
including, among other things, (1) the timing of the em-
ployer’s adverse action in relationship to the employee’s
protected activity, (2) the presence of other unfair labor
practices, (3) statements and actions showing the em-
ployer’s general and specific animus, (4) the disparate
treatment of the discriminatees, (5) departure from past
practice, and (6) evidence that an employer’s proffered
explanation for the adverse action is a pretext. See Na-
tional Dance Institute—New Mexico, Inc., 364 NLRB
No. 35, slip op. at 10 (2016).
If the General Counsel makes the required initial
showing, the burden shifts to the employer to prove by a
preponderance of the evidence that it would have taken
the same action even in the absence of the union or other
protected concerted activity. Libertyville Toyota, 360
NLRB at 1301. The employer does not meet its burden
merely by establishing that it had a legitimate reason for
its action; rather, it must demonstrate that it would have
taken the same action in the absence of the protected
conduct. See, e.g., Bruce Packing Co., 357 NLRB 1084,
1086–1087 (2011), enfd. in pertinent part 795 F.3d 18
(D.C. Cir. 2015). If the evidence establishes that the
proffered reasons for the employer’s action are pretextu-
al—i.e., either false or not actually relied upon—the em-
ployer fails by definition to show that it would have tak-
en the same action for those reasons in the absence of the
protected conduct. See, e.g., Golden State Foods Corp.,
340 NLRB 382, 385 (2003).25

25 Contrary to the judge’s characterization of Wright Line, “proving
that an employee’s protected activity was a motivating factor in the
employer’s action does not require the General Counsel . . . to demon-
strate some additional, undefined ‘nexus’ between the employee’s
protected activity and the adverse action.” See Libertyville Toyota, 360
NLRB at 1301 fn. 10 (2014) (collecting cases), enfd. sub nom. AutoNa-
tion, Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015).
Regarding Wright Line, supra, Chairman Ring agrees with the views
expressed by Member Kaplan in Advanced Masonry Assoc., LLC d/b/a
Advanced Masonry Systems, 366 NLRB No. 57, slip op. at 3–4 fn. 8
(2018), and by former Member Johnson in St. Bernard Hospital &
Health Care Center, 360 NLRB 53, 53 fn. 2 (2013). Thus, he agrees
that there is no separate and distinct “nexus” element that the General
Counsel must satisfy under Wright Line. He emphasizes, however, that
Wright Line is inherently a causation test. Thus, identification of a
causal nexus as a separate element the General Counsel must establish
to sustain his burden of proof is superfluous because “[t]he ultimate
inquiry” is whether there is a nexus between the employee’s protected
activity and the challenged adverse employment action. Chevron Min-
ing, Inc. v. NLRB, 684 F.3d 1318, 1327–1328 (D.C. Cir. 2012). To the
extent his colleagues suggest that the General Counsel invariably sus-
tains his burden of proof under Wright Line whenever, in addition to
protected activity and knowledge thereof, the record contains evidence
of animus, Chairman Ring disagrees. Not just any evidence of animus
against protected activity generally will necessarily satisfy the initial
Wright Line burden of proving unlawful motivation for the particular
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We find that the General Counsel has met his initial
burden of showing that Minor’s protected activity was a
motivating factor in the Respondent’s decision to dis-
charge her. There is no dispute that Minor engaged in
union activity and that the Respondent knew of such ac-
tivity. She was a member of the Union’s initial organiz-
ing campaign and attended union meetings, including the
December 4 meeting that capped the Union’s campaign
blitz. At the Respondent’s December 7 mandatory cam-
paign meeting, Minor asked the Respondent’s consultant
how much the Respondent paid him.
The suspicious timing of Minor’s discharge supports
our finding that the General Counsel met his initial bur-
den of showing the Respondent’s antiunion animus. The
Respondent became aware of the Union’s organizing
campaign a short time before Minor’s December 7 dis-
charge. It is undisputed that the campaign blitz, which
occurred just days before Minor’s discharge, was highly
visible. It appears that the Respondent was concerned
enough about the Union’s mounting campaign, including
the blitz, to quickly schedule a mandatory employee
meeting facilitated by an outside consultant. Notably,
the Respondent discharged Minor on the very day of that
first mandatory campaign meeting, at which Minor chal-
lenged the Respondent’s consultant and expressed her
prounion sentiment. Minor’s discharge also occurred
shortly after she attended a union meeting that same day.
We find that this timing strongly supports a finding that
Minor’s prounion activity was a motivating factor in the
Respondent’s decision to discharge her.26 See Lucky Cab
Co., 360 NLRB 271, 274 (2014) (“The Board has long
held that the timing of adverse action shortly after an
employee has engaged in protected activity . . . may raise
an inference of animus and unlawful motive.”); KAG-
West, LLC, 362 NLRB No. 121, slip op. at 2 (2015)
(“‘Timing alone may suggest anti-union animus as a mo-
tivating factor in an employer’s action.’”) (quoting
Masland Industries, 311 NLRB 184, 197 (1993)), peti-
tion for review dismissed 2017 WL 160821 (D.C. Cir.
2017).

adverse employment action at issue. See, e.g., Roadway Express, Inc.,
347 NLRB 1419, 1419 fn. 2 (2006) (finding that, although there was
some evidence of animus in the record, it was insufficient to sustain the
General Counsel’s initial Wright Line burden of proof); Atlantic Veal &
Lamb, Inc., 342 NLRB 418, 418–419 (2004) (finding insufficient facts
to show that the respondent’s animus against employee Rosario’s union
activity was a motivating factor in the decision not to recall him), enfd.
156 Fed. Appx. 330 (D.C. Cir. 2005). Applying this standard, Chair-
man Ring agrees with the findings set forth below.
26 Indeed, when Frey first met with Minor to discuss the incident—
which occurred before she expressed her prounion sentiment at the
Respondent’s mandatory meeting—Frey did not mention discipline of
any kind.
The timing of the Respondent’s decision is even more
suspicious given its proximity to Minor’s strongly posi-
tive performance evaluation, which she received just 1
week prior to her discharge. Thus, the Respondent chose
to quickly discharge Minor, rather than issuing her a
lesser form of discipline, despite having just given her a
positive performance evaluation and despite the lack of
any evidence that Minor had ever been disciplined previ-
ously. See Toll Mfg. Co., 341 NLRB 833, 833 (2004)
(finding that employer acted with unlawful motivation
where it discharged a leading union activist “precipitous-
ly and without prior warning on the heels of the union
campaign”).
Finally, the Respondent’s extensive unfair labor prac-
tices in violation of Section 8(a)(5), including its overall
failure to bargain in good faith, further demonstrate its
animus. See, e.g., U.S. Marine Corp., 293 NLRB 669,
669–671 (1989) (animus demonstrated by, among other
things, employer’s “numerous 8(a)(5) violations,” in-
cluding its failure to provide information and bad-faith
bargaining), enfd. 944 F.2d 1305 (7th Cir. 1991), cert.
denied 503 U.S. 936 (1992).
Accordingly, the burden shifted to the Respondent to
show that it would have discharged Minor even in the
absence of her union activity. We find that the Respond-
ent did not meet its burden in this regard. The Respond-
ent argues that Minor’s triangulation—her (false) claim,
in the presence of Client T, that Frey had screamed at,
yelled at, and been mean to her—was “potentially far-
reaching” and would have “serious consequences” to its
clients. The General Counsel does not dispute Comte’s
testimony that it is counter-therapeutic for clients, like
Client T, to be enmeshed in conflicts between employees
and their supervisors. However, while Minor engaged in
improper conduct, the judge made an unsubstantiated
leap in finding that the Respondent had carried its Wright
Line defense burden to prove that her discharge would
have occurred without regard to Minor’s protected con-
duct. Neither the judge nor the Respondent identified
any instances of termination for prior employee counter-
therapeutic conduct. The judge summarily concluded
that Minor engaged in a “major violation of policy” but
failed to identify any protocol by the Respondent for
discharging employees for counter-therapeutic conduct.
Indeed, discussed below are examples of Respondent’s
employees who purposefully physically injured clients—
surely also deemed a major violation of policy—without
being terminated. The judge’s finding that Minor’s “ma-
jor violation of policy” warranted her discharge does not
equate to a finding that the Respondent met its Wright
Line defense burden. See Hicks Oil & Hicksgas, 293
NLRB 84, 85 (1989) (“A judge’s personal belief that the
KITSAP TENANT SUPPORT SERVICES, INC. 13
employer’s legitimate reason was sufficient to warrant
the action taken is not a substitute for evidence that the
employer would have relied on [the nondiscriminatory]
reason alone.”), enfd. 942 F.2d 1140 (7th Cir. 1991). We
do not condone Minor’s conduct, and we fully recognize
the Respondent’s important role in ensuring the well-
being of its clients. However, the Respondent’s articula-
tion of a legitimate reason for its termination decision
does not constitute a showing that it would have dis-
charged Minor for that reason even in the absence of
Minor’s union activities. See Bruce Packing Co., 357
NLRB at 1086–1087 (employer does not meet its Wright
Line defense burden merely by establishing that it had a
legitimate reason for its action; rather, it must demon-
strate that it would have taken the same action in the ab-
sence of the protected conduct). Accordingly, we find
that the Respondent violated Section 8(a)(3) when it dis-
charged Minor on December 7, 2011.
B. Alicia Sale and Hannah Gates
1. Facts
Alicia Sale and Hannah Gates worked as Direct Ser-
vice Staff at the same client residence. Both were prom-
inent supporters of the Union. Sale and Gates appeared
on the union flyer mailed to employees on December 14,
2011, which identified them as members of the union
organizing committee. As noted, Frey admitted seeing
the flyer in mid-December 2011.
On the morning of December 20, 2011, Gates called
HOH Jessica Lanzoratta after Sale discovered that a cli-
ent (Client R) had a bruise and scratch on his leg. Frey
testified that Client R is 84 years old and suffers signifi-
cant speech and physical issues due to cerebral palsy.
Lanzoratta reported Client R’s physical issues to Frey,
who that same morning visited the residence, along with
Program Coordinator Mieke Middelhoven. It is undis-
puted that Sale and Gates were responsible for Client R’s
care that day.
Frey and Sale met in Client R’s room. Frey evaluated
Client R and determined that his wheelchair caused the
injuries. Client R also complained to Frey that his stom-
ach hurt. Frey testified that Client R stated that he had
been asking to go to the doctor all morning. Frey also
testified that Sale admitted as much. Sale and Gates tes-
tified that Client R did not ask to see a doctor that morn-
ing. The judge acknowledged this conflicting testimony
and tacitly credited Frey, finding that “Frey heard from
client R that he had requested to see a doctor.” 27 The

27 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
Respondent arranged for Lanzoratta to take Client R to
the doctor.
That same day (December 20, 2011), the Respondent
completed an incident report, which named Gates as the
involved employee. The report does not mention Sale.
The report explained that Gates observed Client R’s inju-
ries, that Frey and Middelhoven determined that the inju-
ries were likely due to a sharp piece of metal on Client
R’s wheelchair, and that “[Kitsap] Staff are covering up
this piece of metal to alleviate the sharp point to avoid
further injuries.” On the afternoon of December 20,
2011, the Region faxed notification to Frey that the Un-
ion had filed its election petition.
Gates testified that an employee from the wheelchair
company visited the residence on December 21, 2011.
Gates testified that the company employee inspected the
wheelchair, reported to Gates that he did not see anything
that would have hurt Client R, but suggested they pad the
wheelchair if they saw fit. Gates testified that HOH
Lanzoratta told her that she would purchase materials to
pad the wheelchair. Gates further testified that Frey was
aware of the wheelchair company’s visit, that Lanzoratta
would repair the wheelchair, and that Frey was not upset
that Sale and Gates failed to repair the wheelchair.
Although the judge did not explicitly cite Gates’ testi-
mony, he appeared to credit Frey’s contrary testimony.
Frey testified that he told Sale and Gates to repair the
wheelchair—which is consistent with the earlier incident
report stating that “[Kitsap] Staff are covering up this
piece of metal . . . to avoid further injuries”—and that
they failed to do so. The judge found that Frey returned
to the residence on December 21, discovered the repairs
had not been made by Sale and Gates as requested, and
completed them himself.
On December 23, 2011, the Respondent informed Sale
and Gates, through identical letters, that it had placed
them on administrative leave pending further investiga-
tion.28 The letters fault Sale and Gates for not honoring
Client R’s requests to see a doctor and for failing to re-
pair the wheelchair. The letters conclude that the em-
ployees’ “failure to act in response to the client’s needs
and requests jeopardized the client [and] Kitsap . . . and
constitutes neglect.” On January 4, Gates attended a
representation case hearing as a supporter of the Union.
Frey reported the incidents to the State of Washington.
The State’s investigator, Rodney Johnson, testified at the

correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
28 These letters do not state that Sale’s and Gates’ suspensions were
without pay, and the General Counsel does not allege as much.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hearing. Johnson testified that he first contacted Frey
about the investigation by phone on January 31.
On February 1, the Respondent discharged Sale and
Gates. The Respondent issued them identical discharge
letters, which cited their refusal “to seek medical assis-
tance in a timely manner for Client [R] when he asked to
be transported the Doctor as he was having severe stom-
ach pains” and their failure to follow an order “to cover
these sharp points [on the wheelchair] with tape.”
State investigator Johnson testified that following his
initial contact with Frey, he subsequently interviewed
Sale, Gates, Client R, and HOH Lanzoratta. On March
27, the State “closed this case without disciplinary action
because no violation was determined.”
2. Analysis
The General Counsel alleges that the Respondent vio-
lated Section 8(a)(3) by placing Sale and Gates on ad-
ministrative leave on December 23, 2011, and by dis-
charging them on February 1. The judge dismissed these
allegations. We reverse and find the violations.
The General Counsel has met his initial burden of
showing that Sale’s and Gates’ protected activity was a
motivating factor in the adverse employment actions.
Both employees engaged in protected activity, and the
Respondent had knowledge of that protected activity.
Sale and Gates supported the Union, including by partic-
ipating as members of the union organizing committee.
Their names and pictures appeared on the union flyer, of
which Frey became aware in mid-December 2011.
The timing of the adverse actions taken against Sale
and Gates supports a finding that the General Counsel
met his initial burden of showing antiunion animus. The
Respondent placed Sale and Gates on administrative
leave 3 weeks after the union blitz, less than 2 weeks
after they appeared on the union flyer, and just 2 days
after the Respondent received notice that the Union’s
campaign was successful enough to support the filing of
an election petition. In addition, the Respondent dis-
charged Gates about 1 month after Gates attended the
preelection hearing, where she lent her support to the
Union.
Notably, the Respondent did not wait until the conclu-
sion of the investigation before deciding to discharge
Sale and Gates. They were discharged on February 1,
even though the results of the investigation were not is-
sued until March 27. Both employees were on adminis-
trative leave during the investigation; there was no evi-
dent risk to patients that could have prompted the Re-
spondent’s hasty decision.
The General Counsel has further demonstrated animus
by his strong showing that Sale and Gates were treated
disparately compared to other employees who committed
similar acts. The General Counsel introduced discipli-
nary reports concerning employees Jackie Cavanaugh
and Gerry Goodman. Regarding Cavanaugh, on Decem-
ber 2, 2011, Manager Dawn Worthing filed an incident
management report stating that Cavanaugh yelled at a
client, pulled the client by her arms, put her knee into the
client’s side, and pushed the client’s chair from behind in
an effort to place the client in a timeout. Frey reported
this incident to the State of Washington for investigation.
Frey testified that the State closed its investigation on
October 17 (the record does not indicate the outcome of
that investigation). Frey further testified that, during the
investigation, Cavanaugh “stayed working the whole
period of time” but “was never left unsupervised with a
client.” As of the May 2013 hearing date in this proceed-
ing, the Respondent continued to employ Cavanaugh.
Regarding Goodman, on August 25, 2011, Worthing
filed an incident management report stating that Good-
man purposely injured a client’s ankle. The Respondent
retrained all staff on how to physically transfer that client
and prohibited Goodman from working alone with the
client. The Respondent does not assert that it placed
Goodman on administrative leave because of his mis-
conduct.
The Respondent has failed to explain why it treated
Sale and Gates far more harshly than Cavanaugh and
Goodman for committing comparable, if not lesser, in-
stances of patient neglect and mistreatment. Sale and
Gates assertedly neglected to repair a client’s wheelchair,
causing injury to the client, and they failed to address the
client’s request to see a doctor. In contrast, the Respond-
ent’s client report for Cavanaugh documents intentional
abuse, including physical abuse: pulling the client by her
arms and putting her knee into the client’s side. But
whereas Sale and Gates were placed on administrative
leave and subsequently discharged, the Respondent con-
tinued to employ Cavanaugh and merely ensured that she
was not left unsupervised with that specific client. Nota-
bly, the Cavanaugh incident occurred just weeks before
the Sale and Gates incident. The Goodman incident also
involved a client’s physical injury due to employee ne-
glect or misjudgment, or worse: Worthing’s report stated
that Goodman purposely injured the client’s ankle.
Again, rather than discharging Goodman or placing her
on administrative leave, the Respondent merely retrained
staff and prohibited Goodman from working alone with
that client. Consistent with well-established Board prec-
edent, we find that the disparate treatment of Sale and
Gates strongly supports an inference of unlawful motiva-
tion on the Respondent’s part, which we draw. See, e.g.,
Central Valley Meat Co., 346 NLRB 1078, 1079 (2006)
(employee’s verbal warnings and discharge for failing to
KITSAP TENANT SUPPORT SERVICES, INC. 15
sanitize tools found unlawful where “other employees
received only written warnings for sanitation violations
and were not discharged”); Naomi Knitting Plant, supra,
328 NLRB at 1283 (employee was discharged for con-
duct “for which other employees in the same position
were not disciplined. Such is a classic case of disparate
treatment.”).
We find that the Respondent has not met its defense
burden under Wright Line. The Respondent has offered
no explanation for its disparate treatment of Sale and
Gates. It contends that it had legitimate reasons for dis-
ciplining Sale and Gates because the testimony shows
that they failed to repair the wheelchair and failed to act
on Client R’s requests to see a doctor. Again, however,
the Respondent’s burden is not merely to show that it had
a legitimate reason to act as it did, but to prove that it
would have taken the challenged actions had Sale and
Gates not engaged in protected conduct. E.g., Bruce
Packing, 357 NLRB at 1086–1087. The Respondent has
not done so. Accordingly, we find that the Respondent
violated Section 8(a)(3) when it placed Sale and Gates on
administrative leave and subsequently discharged them.
C. Gary Martell
1. Facts
The Respondent hired Gary Martell in October 2011.
That same month, Martell signed and initialed the Re-
spondent’s “Employee Professional Relationship Con-
tract,” which identifies “behavioral requirements that all
staff must follow.”29 The General Counsel does not al-
lege that this contract is unlawful. In December 2011,
Martell began working with several clients as part of the
Respondent’s Supportive Living Lite (SLL) program.
Unlike direct service clients, who require significant
support, clients in the SLL program require less assis-
tance. Martell’s duties in this position included complet-
ing paperwork regarding clients’ finances—i.e., prepar-
ing an accounting of clients’ income and money spent—
and presenting that paperwork to the Respondent during
monthly meetings.
Client Resources Specialist Jamie Callahan testified
that, during the spring of 2012, Martell failed to notice an

29 By signing the Respondent’s Employee Professional Relationship
Contract, Martell agreed that (1) he was “not allowed to have any per-
sonal contact with clients outside of [his] usual work hours,” (2) he was
“only allowed to be present at the clients [sic] home during [his] sched-
uled work shift,” a policy that “helps protect against some staff being
viewed as more caring than other staff and helps staff avoid developing
personal relationships outside their professional role,” and (3) he “must
maintain clear separation of [his] personal life and [his] professional
life”—specifically, he “shall not discuss information of high emotional
content about [his] personal life with clients. This includes information
about [his] personal relationships, work problems, financial situation,
or living situation.”
unauthorized charge on a client’s bank account. Calla-
han testified that she contacted the company to reverse
the charge and instructed Martell to monitor the client’s
bank account to verify that the charge was reversed. The
company did not reverse the charge, and Callahan testi-
fied that Martell failed to detect its failure to do so.
There is no dispute that Martell struggled with properly
completing financial paperwork.30 Callahan testified that
she continued to train Martell in this aspect of his re-
sponsibilities.
The Respondent presented undisputed evidence that
Martell also failed to properly schedule his time with
clients. Frey testified that Manager Worthing learned
that Martell’s monthly schedule revealed scheduling
overlaps, i.e., instances where his schedule showed him
working with two clients at the same time. Worthing
testified that this was inappropriate because the Re-
spondent can only bill one client for any given block of
time.
On May 22, the Union notified the Respondent that it
had selected five employees, including Martell, to serve
on the Union’s bargaining committee.31
In a May 31 email to Frey, Worthing reported that she
worked with Martell to correct his scheduling overlaps.
Worthing also noted that she discussed with Martell his
“trouble with financial paperwork.” On June 1, Frey
issued Martell a written warning for his scheduling er-
rors. The warning also notes that Callahan and Manager
Molly Parsons reported that they had to “walk [Martell]
through [his] financials on several occasions” and ex-
pressed their concern that Martell did not “grasp the con-
cept of the required paperwork” and did not put forth
much effort in completing it. The General Counsel does
not allege that this written warning violated the Act.
On June 8, Martell met with Callahan and Parsons to
discuss his May paperwork. Callahan testified that Mar-
tell’s financial paperwork was “completely blank.” Mar-
tell offered no explanation for his failure to complete the
paperwork. Callahan immediately reported this to Frey,
who instructed Martell to complete the paperwork in
another room. A few minutes later, Frey returned and
suspended Martell without pay.

30 The General Counsel acknowledges that “[e]ver since he was as-
signed to his first SLL client in December 2011, Martell had struggled
with the paperwork required of him,” and that “from January through
May 2012 . . . Martell showed up to his monthly paperwork meetings at
Respondent’s office with incomplete financial paperwork and questions
on how to properly complete it.”
31 The judge mistakenly found that Martell attended a bargaining
session on June 4. The parties did not bargain on that date. Rather, the
Union held its training session for bargaining representatives—
including Martell—on June 4.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That same day, Frey issued Martell a letter listing six
reasons for his suspension: (1) failure to complete the
paperwork due in early June, (2) inaccurate January pa-
perwork, (3) untimely and inaccurate April paperwork,
(4) failure to appropriately complete his schedule by
overlapping client time, (5) inappropriately raising his
voice at staff on June 7, and (6) “dropp[ing] the ball” by
failing to complete paperwork on a daily basis.
On June 12, Frey, Program Coordinator Middelhoven,
Union Representative Tharp, and Martell met to discuss
Martell’s suspension. Martell admitted the scheduling
errors and acknowledged that there was no excuse for his
failure to complete the financial paperwork due in June.
On June 20, Frey informed Martell that he was still on
suspension pending the Respondent’s continued investi-
gation into the matters outlined in Martell’s June 8 writ-
ten suspension. Frey asked that Martell respond to ques-
tions concerning the unauthorized bank charge incident
discussed above, and more generally, Frey asked whether
Martell understood the “importance of preparing client
financials, both as a requirement of this agency and the
State of Washington.” Frey also raised a new issue, ask-
ing Martell to explain his decision “on more than a dozen
occasions” to use clients’ first and last names in financial
paperwork, thereby “disclosing confidential information
without a signed release to do so.” Martell provided a
written response as instructed.
During his suspension, Martell went to a client’s home
during nonworking hours and discussed his suspension
with the client. Frey testified that he spoke with the cli-
ent about his conversation with Martell. Frey testified
that the client, who is autistic and has a tendency to fix-
ate on things, spoke about the specifics of Martell’s sus-
pension and became “very obsessed” with the Union
after speaking with Martell. On June 28, the Respondent
sent Martell a letter asking that he explain his meeting
and conversation with this client. On July 9, Martell
provided a written response. Martell admitted that he
told the client he was “in trouble for not completing [his]
paperwork.” He also acknowledged the Employee Pro-
fessional Relationship Contract, which prohibits such
conduct. On July 13, Martell participated in the parties’
first bargaining session.
The Respondent discharged Martell on July 19. In an
explanatory letter, the Respondent reiterated the six rea-
sons cited in Frey’s earlier suspension letter and added
two additional reasons for Martell’s discharge: (1) at a
talent show rehearsal, engaging in a conversation with a
staff member for an hour instead of engaging with clients
and completing paperwork, and (2) failing to follow
“[Kitsap] policies regarding confidentiality despite spe-
cific direction to do so.” The letter also referenced Mar-
tell’s failure to adhere to the Employee Professional Re-
lationship Contract described above.
2. Analysis
The General Counsel alleges that the Respondent vio-
lated Section 8(a)(3) by placing Martell on administra-
tive leave on June 8 and discharging him on July 19. We
adopt the judge’s dismissal of these complaint allega-
tions.
We find it unnecessary to determine whether the Gen-
eral Counsel met his initial burden under Wright Line.
Even if he did, we find that the Respondent established
that it would have suspended and discharged Martell
even in the absence of his protected union activity. As
explained above, Martell exhibited a pattern of poor per-
formance in meeting his duty to complete financial pa-
perwork. The Respondent did not ignore his poor per-
formance but rather addressed it through training, coach-
ing, and a lawful June 1 written warning. That warning
did not lead to improved performance, as evidenced by
Martell’s showing up for a June 8 meeting having com-
pleted no financial paperwork at all. We are persuaded
that the Respondent would have imposed further disci-
pline on Martell for this incident even in the absence of
his union activities.
The General Counsel argues that Martell was treated
disparately compared to other employees whom the Gen-
eral Counsel argues similarly failed to properly complete
client financial paperwork.32 While the Respondent does
not dispute that it did not suspend or discharge these
comparator employees, we do not find those instances
comparable to Martell’s conduct. The record demon-

32 The General Counsel introduced evidence of four “Caregiver
Document Events,” which memorialized the following incidents:
(1) On September 22, 2011, the Respondent informed Muriel Spence
that because she took two clients on a cruise, she was responsible for
“ledgering their money.” A few days later, Spence had not completed
this ledgering. Spence requested an original balance, and the Re-
spondent provided it.
(2) On June 8, Tamera McDowell did not show up for a paperwork
meeting. McDowell claimed she forgot about the meeting, but the
Respondent observed her working on the paperwork outside an office.
McDowell admitted that she had not forgotten about the meeting and
had not completed the paperwork, apologized for making excuses, and
promised to complete her paperwork.
(3) On July 6, the Respondent explained to Kimberley Smith that she
needed to maintain a daily running balance of a client’s finances, ra-
ther than just an end-of-the-month balance.
(4) On September 10, Joshua Westgate arrived to a paperwork meet-
ing without reconciling a client’s bank statement and having failed to
complete entries for two transactions. Westgate completed the recon-
ciliation and two entries. The Respondent informed Westgate that it
was important he complete and reconcile ledgers in advance of pa-
perwork meetings.
KITSAP TENANT SUPPORT SERVICES, INC. 17
strates that those employees failed, on one occasion, to
properly complete financial paperwork. By comparison,
Martell exhibited an ongoing pattern of failing to proper-
ly complete financial paperwork, for which he received
training, coaching, and a lawful written warning. Mar-
tell’s lawful warning accurately reflected this pattern of
failure: it reported that the Respondent had to “walk
[Martell] through [his] financials on several occasions,”
and it expressed concern that Martell did not “grasp the
concept of the required paperwork.” Moreover, on June
8 Martell showed up at his financial paperwork meeting
without having prepared any records at all. In contrast,
the General Counsel’s comparators either failed to fully
complete paperwork, or they fully completed their pa-
perwork, but with mistakes.
The General Counsel argues that the Respondent was
willing to tolerate Martell’s incomplete paperwork for
months and only chose to discipline him in early June
after learning that he would represent the Union during
contract negotiations. We are unpersuaded by this argu-
ment. The Respondent did not ignore Martell’s incom-
plete paperwork. Callahan coached and trained Martell,
and Worthing also worked with him. Moreover, there is
no dispute that the written warning issued to Martell on
June 1 was lawful, and this discipline also occurred after
the Respondent learned of Martell’s status as a union
bargaining representative. Martell’s performance follow-
ing this lawful warning promptly went from bad to worse
when he showed up on June 8 without having done any
work on required financial reports. It stands to reason
that the Respondent would treat Martell’s failure to take
the June 1 warning to heart by imposing additional and
progressive discipline. We find that it would have done
so regardless of Martell’s union activity.
The General Counsel also questions the timing of the
Respondent’s decision to discharge Martell, just 6 days
after the parties’ first bargaining session. But the Re-
spondent discharged Martell at that time only after he
approached a client to complain about his suspension.
The Respondent maintains a policy prohibiting such
conduct, which the General Counsel does not allege to be
unlawful. And the Respondent offered undisputed evi-
dence that this discussion in fact had a negative impact
on that client.
Finally, we reject the General Counsel’s suggestion
that the Respondent should be faulted for delaying al-
most 2 months before it decided to discharge Martell.
The Respondent used this time to investigate Martell’s
actions, to meet with Martell and a union representative
to discuss his suspension, and to provide Martell the op-
portunity to explain, in writing, his failure to provide a
month’s worth of financial paperwork, his decision to
enmesh a client in his suspension, and his overall work
performance. Frey testified that before he could dis-
charge Martell, he had to discuss the matter with admin-
istrator Closser, speak to Callahan, and follow various
HR procedures, all of which took time to complete. If
anything, this conduct bolsters our finding that the Re-
spondent met its defense burden under Wright Line. Cf.
Denholme & Mohr, Inc., 292 NLRB 61, 67 (1988) (find-
ing that employer’s “failure to investigate the alleged
misconduct of its employees fully and fairly, or even to
provide them with an opportunity to rebut the accusa-
tions made against them, suggests the presence of dis-
criminatory motivation”).
Accordingly, we dismiss all 8(a)(3) complaint allega-
tions relating to Martell.33
D. Lisa Hennings
1. Facts
The Respondent hired Lisa Hennings in November
2009 and promoted her to an HOH position in early
2010. Hennings’ name and picture appeared in the Un-
ion’s December 2011 flyer. In December 2011, Hen-
nings attended a company meeting, which Frey also at-
tended. The judge found that at this meeting, Hennings
“indicated to Frey that she was in favor of the Union.”
Specifically, Hennings testified that “the subject of the
union came up,” she told Frey “you know what side I’m
on . . . I’m pro union,” and Frey responded, “I kind of
figured that.” Union Representative Tharp testified that
Hennings was present at the election vote count on
March 15.
On March 16, the Respondent issued Hennings a letter
of reprimand for lending money to three clients during a
grocery trip. The reprimand noted that “the OPSL
[Olympic Peninsula Supportive Living] Code of Conduct
states ‘[c]aregivers are not to borrow or lend anything
which includes money or food from their clients.’” The
General Counsel does not dispute the existence of this
rule or allege that it is unlawful. Hennings admitted that
she lent the clients money, but testified that it was
“common practice” for employees to lend clients money
and that the Respondent “never” disciplined employees
for doing so.
On April 12, the Respondent issued Hennings a written
warning for being 7 minutes late to work. The Respond-

33 Member Pearce would find that the Respondent did not meet its
burden of showing it would have discharged Martell even in the ab-
sence of his protected activity. The Respondent learned about Martell’s
visit to the client in late June, but did not discharge him for that and
other conduct until July 19, which was only after he participated in the
July 13 bargaining session as a member of the Union’s bargaining
committee. The Respondent has failed to provide any valid explanation
for this sequence.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent does not dispute Hennings’ testimony that she was
late that day because she had attended a union meeting,
where the Union held nominations to select members of
its bargaining committee. In May, the Union announced
that Hennings was a member of its bargaining commit-
tee. Hennings attended the August 6 bargaining session.
On August 10, the Respondent issued Hennings a letter
of direction. The letter reported that Frey witnessed
Hennings completing a staff schedule, which Frey assert-
ed was not an HOH job duty. Hennings testified that she
was not scheduling employees but rather writing down
shift assignments that had been made by Human Re-
sources Representative Grice. In the letter of direction,
Frey stated: “May I remind you, that in sworn testimony,
at NLRB Headquarters in Seattle, [Kitsap] Head of
Households testified that they do not and have never
scheduled staff.” In the judge’s words, Frey told Hen-
nings that “she had better not be scheduling because
there had been testimony in the Board representation
case that head of households did not do scheduling.”
The judge found, however, that the Respondent present-
ed contrary evidence at the representation-case hearing
that “heads of household did scheduling for their house-
holds.” The Respondent does not dispute the judge’s
finding.
On August 15, the Respondent issued Hennings a letter
of direction regarding two issues, monthly narratives and
medication charting. First, the letter noted that Hennings
had only made three narrative entries for that month, and
it admonished her for making “little progress.” The letter
also stated that “the trend you were setting seemed to
also be followed by the rest of your Household as most
of the narrative pages were empty for each of the cli-
ents.” Second, the letter admonished Hennings for fail-
ing to record, on two occasions, why a client did not re-
ceive medication as scheduled. It is undisputed that
caregivers are responsible for recording clients’ daily
activities, including a log of medication taken and any
reason why a client did not receive medication.
On August 20, the Respondent issued Hennings a writ-
ten warning for failing to work an assigned schedule. On
that day, Hennings attended a birthday party at a resi-
dence (not her regularly assigned residence) and was
responsible for the care of two clients who attended that
party. To assist her daughter, who had locked herself out
of her home, Hennings left the party at a time when one
of her clients remained there. Hennings testified that the
HOH running the party agreed to watch Hennings’ client
while Hennings helped her daughter. Hennings testified
that after helping her daughter, she returned to her regu-
larly assigned residence because by that time, her second
client had also left the party. In the written warning,
Frey stated that he happened to drive by when Hennings
returned to her regularly assigned residence, and he did
not see her with any clients. Frey expressed concern that
Hennings was not attending the party and supporting her
two clients, and he admonished Hennings for not secur-
ing coverage for her clients.
In November, the Union held a protest march at the
home of the Respondent’s owner. Hennings did not par-
ticipate in this march. In December, Frey and the owner
approached Hennings and complained about the march.
Hennings stated that she was not involved. The Re-
spondent does not dispute Hennings’ testimony that Frey
responded, “You’re union, you’re involved.”
On February 4, 2013, Frey called Hennings, stated that
he had serious concerns with her work, and placed her on
administrative leave without pay. On February 6, 2013,
the Respondent demoted Hennings. In a written docu-
ment, Frey cited the following conduct as reasons for her
demotion: (1) Hennings’ April 2012 7-minute late arri-
val, (2) her August 2012 unauthorized scheduling of
staff, (3) her August 2012 failure to complete narratives
and note medication issues, and (4) her August 2012 de-
cision to leave the client party to help her daughter. The
Respondent also cited a host of additional reasons, in-
cluding multiple medication errors, acting “too touchy
feely” with clients, scheduling medical appointments
without securing adequate staff coverage, and general job
inattentiveness. Frey concluded that he had “serious
concerns as to your ability to follow direction as given to
you by your Supervisors as well as your ability to follow
this agency’s policy and procedures.”
2. Analysis
For the following reasons, we adopt the judge’s find-
ings that the Respondent violated Section 8(a)(3) by issu-
ing Hennings the April 12 written warning and the Au-
gust 10 letter of direction, and by demoting Hennings on
February 6, 2013. We reverse the judge and find that the
Respondent also violated Section 8(a)(3) by issuing
Hennings the August 15 letter of direction and by placing
Hennings on administrative leave on February 4, 2013.
Finally, we affirm the judge’s dismissal of complaint
allegations concerning Henning’s March 16 letter of rep-
rimand and her August 20 written warning.34

34 In agreeing with the judge’s dismissal of the allegation concern-
ing the March 16 letter of reprimand, Chairman Ring and Member
Pearce note that Hennings’ conduct—lending money to clients—
violated the Respondent’s rules, and the judge implicitly discredited
Hennings’ testimony that lending money was a common practice en-
gaged in by employees without discipline.
KITSAP TENANT SUPPORT SERVICES, INC. 19
a. The April 12 written warning for lateness
We find that the General Counsel has met his initial
burden under Wright Line to show that Hennings’ pro-
tected conduct was a motivating factor in the Respond-
ent’s decision to issue Hennings a warning on April 12
for being 7 minutes late. Concerning this allegation and
all others that involve Hennings, the General Counsel has
established that Hennings actively supported the Union
and that the Respondent had knowledge of that protected
activity. Hennings’ name and picture appeared in the
Union’s December 2011 flyer; at a December 2011 meet-
ing with Frey, Hennings confirmed her prounion stance
when she told Frey, “You know what side I’m on”; and
Hennings was present at the March 15 election vote
count. The timing of the April 12 warning also supports
the General Counsel’s case. On the same day she re-
ceived this written warning, Hennings attended a meeting
where the Union considered nominations for its bargain-
ing committee. Indeed, this meeting was the reason
Hennings was 7 minutes late.
In addition, the General Counsel established that other
employees were guilty of more egregious instances of
tardiness than Hennings’ 7-minute late arrival, but unlike
Hennings they were not disciplined. The Respondent
does not dispute that the following employees received
no discipline for the following conduct:
• In 2005, employee Manuel Gipson was a “no
show no call” for 9 days, claimed time for several
days that he had not worked, and offered a false
medical excuse for his failure to work.
• In 2006, HOH Shirley Gallauher was “late for
work between 5 and 15 minutes, 3 or 4 days per
week.”
• In 2007, employee Janice Henry was “late almost
everyday [sic] for . . . two weeks.” The Respond-
ent warned her that if she were late again, “disci-
plinary action would need to be taken.”
• In 2008, employee Andie Rood worked for just a
few minutes and left, without telling the Respond-
ent, because of a backache. Rood’s unannounced
departure resulted in clients being “low on food.”
These instances of disparate treatment further support the
General Counsel’s Wright Line case.
The Respondent offered no explanation for this dispar-
ate treatment or any other evidence to show that it would
have issued the April 12 warning even in the absence of
Hennings’ union activities. Accordingly, we find that the
Respondent violated Section 8(a)(3) when, on April 12, it
issued Hennings a written warning for being 7 minutes
late.
b. The August 10 letter of direction for staff scheduling
Next, the General Counsel alleges that the Respondent
violated Section 8(a)(3) when it issued Hennings a letter
of direction on August 10 for scheduling staff. We find
that the General Counsel met his initial burden of show-
ing that Hennings’ union activity was a motivating factor
in this discipline. In addition to the above evidence of
Hennings’ protected activity and the Respondent’s
knowledge of it, in May the Union announced that Hen-
nings would act as one of its bargaining representatives.
In addition, Hennings was an HOH, and the letter of di-
rection itself referenced the protected activity of HOHs
in testifying at the representation-case hearing. In es-
sence, the Respondent disciplined Hennings for conduct
inconsistent with that testimony, not with her position as
an HOH: Frey admitted that at the representation hear-
ing, he testified that HOHs work “hand in hand” with HR
Manager Grice regarding employee scheduling. Incredi-
bly, the Respondent continues to argue that it does not
permit HOHs to schedule staff and therefore Hennings’
discipline for doing so was lawful. The Respondent does
not dispute, however, that it took a contrary position at
the representation-case hearing. Given this contradic-
tion, we find pretextual the Respondent’s asserted reason
for issuing Hennings the August 10 letter of direction.
Accordingly, we find that the Respondent violated Sec-
tion 8(a)(3) when it issued the August 10 letter of direc-
tion.
c. The August 15 letter of direction for failing to com-
plete narratives and medical charting
The General Counsel alleges that the Respondent vio-
lated Section 8(a)(3) on August 15 when it issued Hen-
nings a letter of direction for failing to complete client
narratives and medical charting. In addition to evidence
cited above that supports the General Counsel’s initial
Wright Line case, we find persuasive the General Coun-
sel’s evidence of disparate treatment. Concerning Hen-
nings’ failure to complete client narratives, Frey noted in
the letter of direction that “the trend you were setting
seemed to also be followed by the rest of your Household
as most of the narrative pages were empty for each of the
clients.” The Respondent does not dispute Hennings’
testimony that the Respondent did not discipline these
other employees for failing to complete client narratives.
Concerning Hennings’ medical charting errors, Hennings
testified that other staff members were responsible for
those errors. Although the Respondent argues that Hen-
nings was also responsible for those errors because her
position as an HOH required that she correct them, Frey
admitted at the hearing that the employees who commit-
ted the errors did not receive any discipline. According-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ly, we find that the Respondent violated Section 8(a)(3)
when, on August 15, it issued Hennings a letter of direc-
tion for failing to complete narratives and medical chart-
ing.
d. The February 4, 2013 administrative leave and
February 6, 2013 demotion
We find that the Respondent also violated Section
8(a)(3) on February 4, 2013, when it placed Hennings on
administrative leave, and on February 6, 2013, when it
demoted Hennings. Two months earlier, the Respondent
continued to show antiunion animus when Frey, in the
presence of the Respondent’s owner, accused Hennings
of involvement in the Union’s protest march outside the
owner’s home, stating, “You’re union, you’re involved.”
But even apart from this statement, the Respondent’s
adverse employment actions on February 4 and 6, 2013,
violated the Act because they were based in part on dis-
cipline we have found unlawful. When Frey placed
Hennings on administrative leave, he generally cited his
serious concerns with her work, which logically encom-
passes work-related conduct for which Hennings had
been unlawfully disciplined. And Hennings’ demotion
letter expressly relied on unlawful discipline, citing Hen-
nings’ April 12 written warning and August 10 and 15
letters of direction. Accordingly, the Respondent violat-
ed Section 8(a)(3) when, on February 4, 2013, it placed
Hennings on administrative leave without pay, and when,
on February 6, 2013, it demoted her. See Hays Corp.,
334 NLRB 48, 50 (2001) (“It is well settled that, where a
respondent disciplines an employee based on prior disci-
pline that was unlawful, any further and progressive dis-
cipline based in whole or in part thereon must itself be
unlawful.”).
e. The August 2012 written warning for leaving a client
at a party
We also find that the Respondent has shown that it
would have issued Hennings the August 2012 written
warning even absent her protected activity. It is undis-
puted that one of Hennings’ clients was attending a party,
that Hennings was supposed to remain with this client,
and that Hennings left the residence where the party was
held to attend to a matter unrelated to work (helping her
daughter, who had locked herself out of her home). The
General Counsel introduced comparator evidence, but we
find this evidence too dissimilar to show that Hennings
was treated disparately. The General Counsel also points
out that the Respondent did not discipline staff at the
residence who agreed to watch Hennings’ client. How-
ever, those employees remained at their assigned resi-
dence, while Hennings admittedly left her assigned resi-
dence to perform a matter unrelated to work. Finally, the
General Counsel contends that Frey provided shifting
explanations for his decision to issue Hennings this writ-
ten warning, in that Frey initially testified that he disci-
plined Hennings because she left two clients alone at the
residence, and Frey later acknowledged that Hennings
had in fact left just one client alone. The General Coun-
sel’s contention is meritless. Frey testified that he disci-
plined Hennings because it is improper for an employee
to leave clients—regardless of how many—when the
employee is responsible to monitor them. Accordingly,
like the judge, we dismiss the complaint allegation that
the Respondent violated Section 8(a)(3) when it disci-
plined Hennings for doing so.
III. THE SECTION 8(A)(1) WORK-RULE ALLEGATIONS
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by maintaining seven hand-
book rules: (1) Professional Boundaries, (2) Professional
Standards, (3) Conditions of Employment, (4) Miscon-
duct, (5) Canvassing or Soliciting, (6) Employee Profes-
sional Relationships, and (7) Reasons for Termination.
We find that it will effectuate the policies of the Act to
sever these allegations and retain them for further con-
sideration.
In addition to alleging that the discharges of Minor,
Driskell, and Martell violated Section 8(a)(3) of the Act,
the General Counsel also contends they were unlawful
under Section 8(a)(1) on the basis that the Respondent
discharged each of these employees pursuant to an alleg-
edly overbroad rule. Having found Minor’s discharge
violated Section 8(a)(3), we find it unnecessary to pass
on whether her discharge was also unlawful under this
alternate theory of violation because doing so would not
materially affect the remedy.35 As to the discharges of
Driskell and Martell, we find no merit to the General
Counsel’s 8(a)(1) theory of violation because the record
fails to demonstrate that the Respondent relied on any
allegedly unlawful work rule as a basis for their dis-
charges. The letters of termination issued to Martell in
July and to Driskell in September do not cite any of the
rules alleged to be unlawful, nor is there any clear indica-
tion in the record that the Respondent otherwise relied on
any of those rules when it discharged Martell and
Driskell.
IV. STRICTER ENFORCEMENT OF RULES IN RESPONSE TO
UNION ACTIVITY
The complaint alleges that the Respondent violated
Section 8(a)(3) by “chang[ing] its past practice of not

35 Having found it unnecessary to pass on this theory of violation,
Chairman Ring does not reach the legal issue of whether an employer
violates Sec. 8(a)(1) by disciplining an employee pursuant to an unlaw-
fully overbroad work rule.
KITSAP TENANT SUPPORT SERVICES, INC. 21
enforcing its rules, policies, and/or procedures and . . .
implement[ing] a new practice of strictly enforcing those
rules, policies and/or procedures” in response to employ-
ees’ union activities and to the Union’s certification as
bargaining representative. The judge did not address this
allegation. For the reasons that follow, we find that the
Respondent violated the Act as alleged.
An employer violates Section 8(a)(3) when it increases
discipline of its employees or more strictly enforces its
work rules in response to union activities. Dynamics
Corp. of America, 286 NLRB 920, 921 (1987), enfd. 928
F.2d 609 (2d Cir. 1991). “If the General Counsel
demonstrates that the pattern of discipline after the com-
mencement of union activity deviated from the pattern
prior to the start of union activity, a prima facie case of
discriminatory motive is established requiring the Re-
spondent to show that its increased discipline was moti-
vated by considerations unrelated to its employees’ union
activities.” Jennie-O Foods, 301 NLRB 305, 311 (1991).
Initially, we find that the General Counsel established
a prima facie case of discriminatory motivation. Em-
ployee Gates testified that Frey “started showing up more
after the union.” Employee Jack Hopkins testified that
after the union campaign went “public,” “working condi-
tions became difficult, if not oppressive.” Hopkins testi-
fied that inspections, which a “co-worker” previously
completed on a monthly basis, “became more frequent”
and were “now done by a member of the management
team.” Hopkins further testified that “inspections which
formerly just included things like the smoke detectors,
they would go through the kitchen cabinet and pull out
every can and inspect every expiration date. There was
that kind of pressure put on.” Employees Hennings and
Terry Owens corroborated this testimony. Owens, who
started working for the Respondent in February 2011,
testified that he never saw Frey or Kimberly Krusi (an-
other member of management) visit his assigned resi-
dences until “December of 2011 to January of 2012,”
when the union campaign was underway. Hennings tes-
tified that prior to that campaign, Frey visited her as-
signed residence “maybe once every two weeks,” but he
visited “more frequently” after the union campaign
commenced.
Hennings’ additional testimony demonstrates that the
Respondent also began to document disciplinary actions
more rigorously. Hennings testified that after she re-
ceived her March 16 letter of reprimand, Client Resource
Specialist Callahan explained to Hennings “that she [Cal-
lahan] understood what I was going through, but that
they were looking at a possible audit and they were hav-
ing to—when they discipline or terminate[] people, they
were now having to document in the files.” The timing
of this new audit policy is telling: the election, which the
Union won, took place on March 15, the day before
Hennings received the letter of reprimand.36
We also find compelling the undisputed testimony of
union negotiator Clifthorne. Clifthorne testified that dur-
ing the October bargaining session, the parties discussed
employee access to their personnel files, including past
disciplinary documents and performance evaluations.
Clifthorne testified that in the course of this discussion,
Frey said: “If people wanted more write-ups, they could
have them, starting then.” The Respondent does not dis-
pute this testimony. And on the very day Frey made this
comment, the Respondent issued 10 employees written
warnings for failing to properly complete client narra-
tives. The Respondent does not dispute the General
Counsel’s assertion that, prior to this date, there is no
documentary evidence that the Respondent ever disci-
plined employees for failing to complete narratives.
Moreover, in addition to instances of discipline alleged
to have violated Section 8(a)(3), discussed above, the
General Counsel introduced evidence of over 40 written
disciplines issued by the Respondent from April 2012—
the month after the Union’s certification—through De-
cember 2012. This represented a sharp break from prior
practice. Indeed, the Respondent admits that there is
“little evidence of discipline” prior to the Union’s arrival
and that it only began documenting discipline because
unionization purportedly required it to do so. Yet the
Respondent cites no specific testimony to confirm that it
disciplined employees prior to the Union’s arrival as fre-
quently as it did post-unionization. Accordingly, we find
not only that the General Counsel established a prima
facie case of discriminatory motivation, but also that the
Respondent failed to show that its increased discipline
was motivated by considerations unrelated to its employ-
ees’ union activities. Jennie-O Foods, supra.
Based on the foregoing, we find that the Respondent
violated Section 8(a)(3) by more strictly enforcing its
disciplinary rules because its employees supported the
Union and engaged in union activities. See St. John’s
Community Services—New Jersey, 355 NLRB 414, 414–
415 (2010) (employer violated Section 8(a)(3) where,
prior to unionization, it inconsistently enforced its medi-
cation administration policy, told an employee that it
would go “by the book” because of its employees’ union
activity, and discharged an employee under its new “by
the book” policy “less than 2 weeks after the [u]nion’s
certification”); Print Fulfillment Services LLC, 361
NLRB 1243, 1245–1247 (2014) (employer violated Sec-

36 We have dismissed the allegation that the letter of reprimand vio-
lated the Act.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion 8(a)(3) where it responded to a union’s request for
information concerning its disciplinary policies by an-
nouncing and implementing a new policy of “keep[ing]
records of any disciplinary actions”).
AMENDED CONCLUSIONS OF LAW
1. Kitsap Tenant Support Services, Inc. (the Respond-
ent) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Washington Federation of State Employees, Ameri-
can Federation of State, County and Municipal Employ-
ees, Council 28, AFL–CIO (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees working
for Respondent as Direct Service Staff (DSS) or Head
of Households (HOHs) in Respondent’s Intensive Ten-
ant Support Program (ITS) and Direct Service (DSS)
working in Respondent’s Supported Living Lite Pro-
gram (SL Lite Programs), including such programs in
Respondent’s d/b/a, Olympic Peninsula Supported Liv-
ing (OPSL) operations, located in or about Kitsap
County, Port Angeles, and Port Townsend, Washing-
ton; excluding employees working in the Homecare di-
vision, Head of Households (HOHs) and Direct Service
Staff (DSS) working in the Community Protection Pro-
gram (CP Program) because they are guards as defined
by the Act, and all other guards and supervisors as de-
fined by the Act.
4. The Respondent has violated Section 8(a)(5) and
(1) of the Act by failing and refusing to meet with the
Union at reasonable times for the purposes of collective
bargaining.
5. The Respondent has violated Section 8(a)(5) and
(1) of the Act by failing and refusing to furnish the Un-
ion with information requested on October 29, 2012,
concerning State of Washington payments received,
which is relevant and necessary to the Union’s perfor-
mance of its functions as the collective-bargaining repre-
sentative of the Respondent’s unit employees.
6. The Respondent has violated Section 8(a)(5) and
(1) of the Act by failing and refusing to furnish the Un-
ion with information requested on July 17, 2012, con-
cerning copies of memos and job postings related to the
HOH position, which is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of the Respondent’s unit em-
ployees.
7. The Respondent has violated Section 8(a)(5) and
(1) of the Act by unreasonably delaying in furnishing the
Union with information requested on June 1, 2012, and
July 17, 2012, which is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of the Respondent’s unit em-
ployees.
8. The Respondent has violated Section 8(a)(5) and
(1) of the Act by bargaining in bad faith with no inten-
tion of reaching a collective-bargaining agreement.
9. The Respondent has violated Section 8(a)(3) and
(1) of the Act by discharging Bonnie Minor on Decem-
ber 7, 2011.
10. The Respondent has violated Section 8(a)(3) and
(1) of the Act by placing Alicia Sale and Hannah Gates
on administrative leave on December 23, 2011, and dis-
charging Sale and Gates on February 1, 2012.
11. The Respondent has violated Section 8(a)(3) and
(1) of the Act by issuing Lisa Hennings the following
discipline:
(a) an April 12, 2012 written warning for being 7
minutes late;
(b) an August 10, 2012 letter of direction for staff
scheduling;
(c) an August 15, 2012 letter of direction for failing to
complete narratives and medical charting;
(d) on February 4, 2013, placing Hennings on adminis-
trative leave without pay; and
(e) on February 6, 2013, demoting Hennings.
12. The Respondent has violated Section 8(a)(3) and
(1) of the Act by initiating a policy or practice of enforc-
ing its disciplinary rules more strictly than in the past in
retaliation for its employees’ union activities or support.
13. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order the Respondent to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to provide relevant
and necessary information requested by the Union on
July 17, 2012, and October 29, 2012, we shall order the
Respondent to provide the Union with the requested in-
formation.
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing to bargain at reason-
able times and in good faith with the Union, we shall
order the Respondent to meet at reasonable times and
KITSAP TENANT SUPPORT SERVICES, INC. 23
bargain in good faith with the Union as the exclusive
bargaining representative of its employees in the above-
described bargaining unit with respect to wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, to embody the understanding
in a written agreement.
We grant the General Counsel’s request for a 12-
month extension of the certification year pursuant to
Mar-Jac Poultry, 136 NLRB 785 (1962). An extension
of the certification year is warranted where an employer
“has refused to bargain with the elected bargaining repre-
sentative during part or all of the year immediately fol-
lowing the certification” and as a result “has taken from
the Union the opportunity to bargain during the period
when [u]nions are generally at their greatest strength.”
Northwest Graphics, Inc., 342 NLRB 1288, 1289 (2004)
(internal quotations omitted), enfd. 156 Fed. Appx. 331
(D.C. Cir. 2005). The appropriate length for the exten-
sion must be determined by considering “the nature of
the violations, the number, extent, and dates of the col-
lective-bargaining sessions, the impact of the unfair labor
practices on the bargaining process, and the conduct of
the union during negotiations.” Id.
Here, the Board certified the Union as the exclusive
collective-bargaining representative of the unit employ-
ees in March 2012. As explained in greater detail above,
because of the Respondent’s dilatory tactics, the parties’
first bargaining session did not occur until July 2012.
The Respondent’s dilatory tactics continued through Feb-
ruary 2013. The Respondent unlawfully delayed in
providing the Union with relevant information as late as
September 2012. From at least October 2012 forward,
the Respondent unlawfully refused to provide the Union
with critical State reimbursement information concerning
employee wages and benefits—information the Re-
spondent itself made relevant by the positions it adopted
in collective bargaining. Beginning in August 2012
when it put forward its proposed contract, the Respond-
ent pursued contract proposals that were inconsistent
with a genuine desire to reach agreement. The Respond-
ent’s overall bad-faith bargaining conduct culminated in
its April 2013 repudiation of the parties’ tentative agree-
ment to include the HOH position in the unit. Accord-
ingly, the Respondent’s unlawful conduct interfered with
bargaining and undermined the Union throughout the
certification year. A 12-month extension of the certifica-
tion year is necessary to ensure that the Union receives
the 1-year period of good-faith bargaining to which it is
entitled.37

37 This 12-month extension commences when the Respondent be-
gins to bargain in good faith. See, e.g., Burrows Paper, 332 NLRB 82
(2000).
For these same reasons, we also agree with the General
Counsel that a bargaining schedule requiring the Re-
spondent to meet and bargain with the Union on a regular
and timely basis is appropriate and would effectuate the
purposes of the Act. See All Seasons Climate Control,
Inc., 357 NLRB 718, 718 fn. 2 (2011) (ordering employ-
er to comply with a bargaining schedule to remedy its
unlawful conduct), enfd. 540 Fed. Appx. 484 (6th Cir.
2013). Upon the Union’s request, we order the Re-
spondent to bargain for a minimum of 15 hours per
week, or in the alternative in accordance with some other
schedule to which the Union agrees. We shall also re-
quire the Respondent to submit written bargaining pro-
gress reports every 15 days to the compliance officer for
Region 19, and to serve copies of those reports on the
Union.
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employees
Bonnie Minor, Alicia Sale, and Hannah Gates, we shall
also order the Respondent to make those unit employees
whole for any loss of earnings and other benefits suffered
as a result of the unlawful discrimination against them.
Backpay shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). In accord-
ance with King Soopers, Inc., 364 NLRB No. 93 (2016),
enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we
shall also order the Respondent to compensate Bonnie
Minor, Alicia Sale, and Hannah Gates for their search-
for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by demoting employee Lisa
Hennings and placing Hennings on administrative leave
without pay, we shall also order the Respondent to make
Hennings whole for any loss of earnings and other bene-
fits suffered as a result of the unlawful discrimination
against her. Backpay shall be computed in accordance
with Ogle Protection Service, Inc., 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.
In addition, we shall order the Respondent to compen-
sate unit employees for any adverse tax consequences of
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
receiving a lump-sum backpay award and to file, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report with the Regional
Director for Region 19 allocating the backpay awards to
the appropriate calendar years for each employee. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
We shall also order the Respondent to offer employees
Bonnie Minor, Alicia Sale, Hannah Gates, and Lisa Hen-
nings full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
Further, the Respondent shall be required to remove
from its files and records all references to (i) the dis-
charges of Bonnie Minor, Alicia Sale, and Hannah Gates,
(ii) the administrative leave of Sale and Gates, and (iii)
the letters of direction, written warning, administrative
leave without pay, and demotion of Hennings, and to
notify them in writing that this has been done and that
those actions will not be used against them in any way.
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by initiating a policy or prac-
tice of enforcing its disciplinary rules more strictly in
retaliation for its employees’ union activities or support,
we shall order the Respondent to rescind that policy or
practice.
ORDER
The National Labor Relations Board orders that the
Respondent, Kitsap Tenant Support Services, Inc.,
Bremerton, Washington, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet at reasonable times
with Washington Federation of State Employees, Ameri-
can Federation of State, County and Municipal Employ-
ees, Council 28, AFL–CIO (the Union) as the exclusive
collective-bargaining representative of employees in the
following appropriate bargaining unit:
All full-time and regular part-time employees working
for Respondent as Direct Service Staff (DSS) or Head
of Households (HOHs) in Respondent’s Intensive Ten-
ant Support Program (ITS) and Direct Service Staff
(DSS) working in Respondent’s Supported Living Lite
Program (SL Lite Programs), including such programs
in Respondent’s d/b/a, Olympic Peninsula Supported
Living (OPSL) operations, located in or about Kitsap
County, Port Angeles, and Port Townsend, Washing-
ton; excluding employees working in the Homecare di-
vision, Head of Households (HOHs) and Direct Service
Staff (DSS) working in the Community Protection Pro-
gram (CP Program) because they are guards as defined
by the Act, and all other guards and supervisors as de-
fined by the Act.
(b) Failing and refusing to bargain collectively with
the Union by failing and refusing to furnish the Union
with requested information that is relevant and necessary
to the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees.
(c) Failing and refusing to bargain collectively with the
Union by unreasonably delaying in furnishing it with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees.
(d) Failing and refusing to bargain in good faith with
the Union for a collective-bargaining agreement affecting
the wages, hours, and working conditions of bargaining-
unit employees.
(e) Discharging, demoting, placing on administrative
leave, disciplining, or otherwise discriminating against
employees because of their support for and activities on
behalf of the Union.
(f) Enforcing its disciplinary rules more strictly than in
the past in retaliation for its employees’ union activities
or support.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Beginning within 15 days of the Union’s request,
meet with the Union at reasonable times and bargain in
good faith with the Union as the exclusive bargaining
representative of employees in the above-described bar-
gaining unit with respect to wages, hours, and other
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a writ-
ten agreement. Upon the Union’s request, such bargain-
ing sessions shall be held for a minimum of 15 hours per
week, or in the alternative on another schedule to which
the Union agrees. Respondent shall submit written bar-
gaining progress reports every 15 days to the compliance
officer for Region 19, and shall serve copies thereof on
the Union.
(b) Furnish to the Union in a timely manner the infor-
mation requested by the Union on October 29, 2012,
regarding payments received from the State of Washing-
ton, and on July 17, 2012, concerning memos and job
postings related to the HOH position.
(c) Within 14 days from the date of this Order, offer
Bonnie Minor, Alicia Sale, Hannah Gates, and Lisa Hen-
KITSAP TENANT SUPPORT SERVICES, INC. 25
nings full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(d) Make Bonnie Minor, Alicia Sale, Hannah Gates,
and Lisa Hennings whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the amended
remedy section of this decision.
(e) Compensate Bonnie Minor, Alicia Sale, Hannah
Gates, and Lisa Hennings for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 19, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for each
employee.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Bonnie Minor, Alicia Sale, and Hannah Gates; the un-
lawful placement of Sale and Gates on administrative
leave; and the unlawful letters of direction, written warn-
ing, placement on administrative leave without pay, and
demotion of Lisa Hennings, and within 3 days thereafter
notify them in writing that this has been done and that
these actions will not be used against them in any way.
(g) 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, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days from the date of this Order, rescind,
in writing, its policy or practice of enforcing its discipli-
nary rules more strictly in retaliation for its employees’
union activities or support.
(i) Within 14 days after service by the Region, post at
its facilities in Bremerton and Port Angeles, Washington,
copies of the attached notice marked “Appendix.”38
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices

38 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.”
to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed any of the
facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at the closed facility or
facilities at any time since December 7, 2011.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 19 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.
IT IS FURTHER ORDERED that the allegations in para-
graphs 10(a)-(g) and 13 of the second amended consoli-
dated complaint in Cases 19–CA–074715, –079006,
–082869, –086006, –088935, –088938, –090108,
–096118, and –099659 are severed and retained for fur-
ther consideration by the Board.
Dated, Washington, D.C. May 31, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 fail and refuse to meet at reasonable
times with Washington Federation of State Employees,
American Federation of State, County and Municipal
Employees, Council 28, AFL–CIO (the Union) as the
exclusive collective-bargaining representative of our
employees in the following appropriate bargaining unit:
All full-time and regular part-time employees working
for Respondent as Direct Service Staff (DSS) or Head
of Households (HOHs) in Respondent’s Intensive Ten-
ant Support Program (ITS) and Direct Service Staff
(DSS) working in Respondent’s Supported Living Lite
Program (SL Lite Programs), including such programs
in Respondent’s d/b/a, Olympic Peninsula Supported
Living (OPSL) operations, located in or about Kitsap
County, Port Angeles, and Port Townsend, Washing-
ton; excluding employees working in the Homecare di-
vision, Head of Households (HOHs) and Direct Service
Staff (DSS) working in the Community Protection Pro-
gram (CP Program) because they are guards as defined
by the Act, and all other guards and supervisors as de-
fined by the Act.
WE WILL NOT fail and refuse to bargain in good faith
with the Union for a collective-bargaining agreement
affecting the wages, hours, and working conditions of
our bargaining-unit employees.
WE WILL NOT refuse to furnish, or unreasonably delay
furnishing, information requested by the Union that is
relevant and necessary to the Union’s performance of its
functions as the collective-bargaining representative of
our bargaining-unit employees.
WE WILL NOT discipline, demote, discharge, place you
on administrative leave, or otherwise discriminate
against you for supporting the Union or any other labor
organization.
WE WILL NOT enforce our disciplinary rules more
strictly than in the past in retaliation for your union activ-
ities or union support.
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, beginning within 15 days of the Union’s re-
quest, meet with the Union at reasonable times and bar-
gain in good faith with the Union as your exclusive bar-
gaining representative with respect to wages, hours, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
written agreement. Upon the Union’s request, such bar-
gaining sessions shall be held for a minimum of 15 hours
per week, or in the alternative on another schedule to
which the Union agrees.
WE WILL submit written bargaining progress reports
every 15 days to the compliance officer for Region 19,
and WE WILL serve copies of these reports on the Union.
WE WILL furnish to the Union, in a timely manner, the
information requested by the Union on October 29, 2012,
regarding payments received from the State of Washing-
ton, and on July 17, 2012, concerning memos and job
postings related to the HOH position.
WE WILL, within 14 days from the date of the Board’s
order, offer Bonnie Minor, Alicia Sale, Hannah Gates,
and Lisa Hennings full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Bonnie Minor, Alicia Sale, Hannah
Gates, and Lisa Hennings whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, less any net interim earnings, plus in-
terest, plus reasonable search-for-work and interim em-
ployment expenses.
WE WILL compensate Bonnie Minor, Alicia Sale, Han-
nah Gates, and Lisa Hennings for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region
19, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Bonnie Minor, Alicia Sale, and Hannah
Gates; the unlawful placement of Sale and Gates on ad-
ministrative leave; and the unlawful letters of direction,
written warning, placement on administrative leave
without pay, and demotion of Lisa Hennings, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that those actions will not be used
against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, rescind, in writing, our policy or practice of en-
forcing our disciplinary rules more strictly in retaliation
for your union activities or union support.
KITSAP TENANT SUPPORT SERVICES, INC.
KITSAP TENANT SUPPORT SERVICES, INC. 27
The Board’s decision can be found at
www.nlrb.gov/case/19-CA-074715 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.
Richard Fiol and Elizabeth DeVleming, for the General Coun-
sel.
Gary Lofland (Halverson Northwest Law Group), of Yakima,
Washington, for the Respondent.
Terry C, Jensen and SaNni Lemonidis (Robblee Detwiler &
Black), of Seattle Washington, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Seattle, Washington, on various dates beginning
May 28, 2013, and ending November 14, 2013. On Febru-
ary 16, 2012, Washington Federation of State Employees,
American Federation of State, County and Municipal Employ-
ees, Council 28, AFL–CIO (the Union) filed the original charge
in Case 19–CA–074715 alleging that Kitsap Tenant Support
Services, Inc. (Respondent) committed certain violations of
Section 8(a)(3) and (1) of the National Labor Relations Act (the
Act). The Union filed the charge in Case 19–CA–079006 on
April 17, 2012. On June 11, 2012, the Union filed the charge in
Case 19–CA–082869. On July 25, 2012, the Union filed an
amended charge in Case 19–CA–082869. The Union filed
amended charges in Case 19–CA–082869 on December 7,
2012, and January 30, 2013, respectively. The Union filed the
charge in Case 19-CA-086006 on July 25, 2012. The Union
filed the charge in Case 19–CA–088935 on September 10,
2012. On October 9, 2012, the charge was amended. The
charge in Case 19–CA–088935 was amended on October 1,
2012, and again on January 10, 2013. The Charge in Case 19–
CA–088938 was filed on September 10, 2012. The Union filed
amended charges in Case 19–CA–088938 on January 30 and
February 8, 2013.
The charge in Case 19–CA–090108 was filed on September
26, 2012, alleging that Respondent violated Section 8(a)(1) and
(5) of the Act. The charge in Case 19–CA–090108 was
amended on January 10, 2013. On January 10, 2013, the Union
filed the charge in Case 19–CA–096118. The charge in Case
19–CA–099659 was filed on March 4, 2013. On June 22,
2012, the Regional Director for Region 19 of the National La-
bor Relations Board (the Board) issued a consolidated com-
plaint and notice of hearing against Respondent, alleging that
Respondent violated Section 8(a)(5), (3), and (1) of the Act.
Respondent filed a timely answer to the complaint, denying all
wrongdoing. An order further consolidating cases and amend-
ed complaint issued on February 28, 2013. A second amended
consolidated complaint was issued on March 27, 2013. Re-
spondent filed timely answers to the complaints, denying all
wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent Corporation, with an office and principal
place of business in Bremerton, Washington, has been engaged
in the business of providing residential support services. In the
12 months prior to the issuance of the complaint, Respondent,
in conducting its business operations, derived gross revenues in
excess of $250,000. Further, Respondent performed services
valued in excess of $50,000 directly to the State of Washington.
Accordingly, Respondent admits, and I find, that Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent’s primary business office is located in Bremer-
ton, Washington; it also maintains an office in Port Angeles,
Washington. Respondent operates three divisions, home care,
tenant support and community protection services. This case
involves the Union’s attempt to organize Respondent’s tenant
support services and community protection service operations.
The Union was certified as the exclusive representative for
direct service staff and head of households in the intensive
tenant support program on March 23, 2012. The employees in
the community protection services were held to be guards and
not included in the bargaining unit.
The Union’s organizing campaign began in November 2011.
In December 2011 Respondent learned of the Union’s cam-
paign and held its first campaign meeting on December 7,
2011. On December 20, the Union filed its petition with Re-
gion 19 of the Board seeking to represent a unit of approxi-
mately 150 of Respondent’s employees in the intensive tenant
support services and community protection services programs.
Employee Bonnie Minor was hired by Respondent in June
2008. At the time of her discharge in December 2011, Minor
was working as the head of household at Respondent’s Olym-

1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence, or because it was in and of itself
incredible and unworthy of belief.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pus House. In late 2011, Minor was planning Thanksgiving
and Christmas parties for Respondent’s clients. Minor received
calls from other employees that the clients could not afford two
parties. Since the Thanksgiving party was only days away,
Minor decided to cancel the Christmas party. On December 6,
Minor was told by Jamie Callahan, client resource manager, to
put the Christmas party back on schedule.
On December 4, Minor became a member of the Union’s or-
ganizing committee and her picture was printed on a union
flyer. On December 7, Minor spoke out in favor of the Union
at the Respondent’s union campaign meeting. On the morning
of December 7, Minor received a phone call from Alan Frey,
Respondent’s general manager, to tell her to reschedule the
Christmas party. He told Minor that she had no right to cancel
the party. Minor said she had canceled the party because cli-
ents could not afford two parties. Immediately thereafter, Mi-
nor rescheduled the Christmas party.
Minor was asked to meet with Frey that afternoon, Minor
met with Fry and Human Resources Coordinator Kathy Grice.
Frey again told Minor that she had to reschedule their Christ-
mas party. Minor stated that she had already rescheduled the
party.
Minor attended Respondent’s union campaign meeting short-
ly after her meeting with Frey. Minor asked Respondent’s
consultant how much money Respondent was paying him. The
consultant declined to answer.
Minor then attended a union meeting. Shortly after the union
meeting, Minor received a call from Grice informing her that
she was being terminated. Respondent’s discharge letter states
that Minor failed to follow the protocol set forth by a direct
supervisor in regards to a client party and gift exchange. The
letter also criticizes Minor for her poor attitude and judgment
crossing professional boundaries, misrepresenting information
in regards to client and staff causing distress to the clients.
Frey testified that he learned on the morning of December 7,
that Minor had told three clients that Frey had screamed and
yelled at her and had been mean to her. Frey had a meeting
with Minor that afternoon in which she admitted that she told
clients that Fry had screamed and yelled at her. When Frey
asked why Minor had done so, she answered that Frey was
treating her like her father. She admitted that Frey had not
yelled or screamed. Frey explained that what Minor had done
was “triangulation” and inappropriate. The harm was to clients
and the trust Frey had built with those clients over the years. I
find support for Frey’s explanation in the testimony of expert
witness Allan Comte.
Employee Alicia Sale began working for Respondent in
2008. Employee Hannah Gates began working for Respondent
in 2010. Sale and Gates had their pictures on a prounion flyer.
On December 20, 2011, Sale and Gates were working at Re-
spondent’s “men’s house. That morning Sale noticed a bruise
and scratch on client R. Sale notified Gates of the situation and
Gates called the head of household who was at the “women’s
house.” Gates documented the injury in the client’s folder.
Client R then complained to Sale of a stomachache. Sale and
Gates checked R’s temperature and bowel movements. At that
point the head of household called back and said that Fry and
Mieke Middelhoven would be coming to the house. Gates told
the head of household about R’s stomachache.
That morning, Frey and Mieke Middlehoven, program coor-
dinator, arrived at the men’s house. Upon arriving at the house,
Frey inspected client R’s injury and determined that the bruise
had come from client R’s wheelchair. Frey instructed Gates
and Sale to pad and tape the wheelchair. Fry spoke to the client
and asked whether client R had requested to see a doctor. Cli-
ent R responded that he had. According to Frey, Sale stated
that client R had been asking to see a doctor all morning. At
the hearing, Sale denied this. According to Frey, Sale stated
that there was not enough staff to take client R to the doctor.
Middlehoven made arrangements for Sale to go to the women’s
house and for the head of household to take client R to the doc-
tor.
The following day, Frey returned to the men’s house. He
found that the wheelchair had not been repaired as he had di-
rected. He taped the wheelchair himself. Frey placed Sale and
Gates on administrative leave for failing to provide medical
attention to client R and for failing to tape the wheelchair as
directed. Both Sale and Gates denied that client R had request-
ed to go to the doctor. It is clear that failure to take a client
who has requested medical attention to a doctor is abusive.
On December 23, Sale and Gates were informed by Grice
that they were being placed on administrative leave, because
they had not taken client R to the doctor and had not timely
repaired his wheelchair. Fry reported this incident to the State
of Washington.
On February 1, 2012, Fry discharged Sale and Gates for the
incidents of December 20. The State of Washington later dis-
missed the charges against Sale and Gates substantially because
it could not rely on the testimony of client R.
Employee Terry Owens started working for Respondent in
the community protection program in February 2011. On De-
cember 9, 2011, Owens attended Respondent’s union campaign
meeting. Owens spoke out in favor of the Union at that meet-
ing. Owens met with Frey on December 12 and presented Frey
with 10 questions. Three weeks later, Owens testified for the
Union in the representation case.
On February 14, 2012, Frey observed a locked cabinet in the
house where Owens worked. Owens explained that client J had
agreed to store junk food in the locked cabinet and that the head
of household would control client J’s food intake. Owens told
Frey that client J still had access to other food cabinets; Frey
also observed postings that were degrading to client J. The
next day Frey called a meeting with Owens. Frey placed Ow-
ens on administrative leave. The head of household was sus-
pended pending investigation and later resigned.
Frey told Owens that he was on administrative leave so that
Frey could investigate the locked cabinet. About a week later
Owens met with Frey. Owens was discharged on March 28.
The Respondent claims that Owens asked to be discharged.
Owens was terminated for his treatment of client J; placing
restrictions on client J. Frey testified that he observed Owens
behavior toward client J and found it to be inappropriate, Frey
testified that Owens seemed angry and failed to understand that
his approach had been wrong.
KITSAP TENANT SUPPORT SERVICES, INC. 29
Employee Gary Martell was hired by Respondent in October
2011. In December 2011, Martell began working in the sup-
portive living program. Martell worked with different clients in
different locations. On May 22, 2012, the Union notified Re-
spondent that Martell had been elected to the Union’s bargain-
ing team. Martell attended a bargaining session on June 4.
Martell attended a paperwork meeting in the first week of
June with Callahan and Parsons. The ledger part of Martell’s
paperwork was blank. Callahan asked why the paperwork was
not done and Martell did not make an excuse. Callahan in-
formed Frey that Martell’s paperwork was not complete. Frey
took Martell to another room and told him to complete the pa-
perwork.
A few minutes later, Frey entered the room and stated that
Martell was being placed on administrative leave because his
paperwork was incomplete. Frey testified that Martell had not
performed any work after being placed in the back room. Mar-
tell received a letter dated June 8 from Frey stating that he was
on administrative leave. Included in the letter were allegations
that Martell’s schedule included overlaps indicating that Mar-
tell was in two places at one time. (GC Exh. 129.) On June 12,
Martell met with Frey. According to Frey, at this meeting,
Martell acknowledged that there was no excuse for not com-
pleting his paperwork. Martell admitted missing service hours
for clients.
After being placed on administrative leave, Martell went to a
client’s home and told the client that he had been placed on
administrative leave. Such conduct is prohibited by Respond-
ent. On July 19, 2012, Martell was terminated by Frey. Mar-
tell was terminated for not completing his paperwork, not
providing service hours, and visiting a client while on adminis-
trative leave.
Employee Johnnie Driskell began working for Respondent in
February 2004. In May 2011, Driskell was demoted from head
of household to caregiver. Driskell was later reinstated as a
head of household. Driskell was a leader in the union cam-
paign; her picture was included with union supporters in the
Union’s mid-December flyer. Driskell was later elected to the
Union’s bargaining team.
On June 6, 2012, Driskell was presented with a written warn-
ing for being late for her June 4 shift. Driskell had left a phone
message on June 1, stating that she was switching shifts with
another employee on June 4, so that she could participate in the
Union’s bargaining training. Driskell was to report at 4 p.m. on
June 4. However, on June 4, Driskell did not report until
4:15 p.m. Overtime was paid to an employee who worked until
Driskell arrived.
On Sunday June 24, Frey wrote Driskell regarding a plan of
care meeting held without the presence of a member of man-
agement. The purpose of plan of care meeting is to review the
care needed and the hours of service allocated for the care of
the client. Driskell did not call the meeting. According to
Frey, Driskell had worked with the client only 2 months and
that a member of management needed to be present. Manage-
ment requested an additional meeting. As a result of that meet-
ing, the hours of service to the client were increased. Respond-
ent claims that Frey’s letter to Driskell was not disciplinary but
rather provided guidance to Driskell.
On July 19, 2012, Driskell received a disciplinary warning
for loaning client money. Driskell claimed that she did what
she had done in the past. Frey met with Driskell and a union
representative. Driskell claimed that everyone loaned money to
clients. Frey cited policy against loaning money to clients.
Driskell then claimed that it was not a loan but a gift.
On July 22, while off duty, Driskell received a call from the
house where she was head of household. The staff reported
that two clients were not getting along and they requested
Driskell’s assistance. Driskell drove to the house and found
that two clients had struggled over a television remote control.
Driskell met with Frey the next day but did not mention the
incident. After meeting with Frey, Driskell reported the inci-
dent to management. Driskell described the incident as push-
ing. The next day, Frey placed Driskell on suspension.
Respondent placed Driskell on administrative leave pending
the investigation of a client-to-client assault. Driskell had not
seen any meaningful contact between the clients. Frey reported
Driskell to the State of Washington for not reporting a client-to-
client assault. A meeting was held between Frey and Driskell
and a union representative on August 3. Frey ended the meet-
ing as a result of the union representative’s conduct. Frey held
another meeting with Driskell on August 14. Frey did not ap-
preciate Driskell’s attitude at the meeting. On August 23, Frey
terminated Driskell’s employment.
Employee Lisa Hennings was hired by Respondent in No-
vember 2009. In early 2010, Hennings was promoted to a head
of household position. In November 2011, Hennings became
involved in the Union’s organizing campaign. Her picture
appeared on the Union’s flyer in December 2011. In December
2012, Hennings attended a meeting at Respondent’s Port Ange-
les office. At the meeting Hennings indicated to Frey that she
was in favor of the Union. In May 2012, Hennings was elected
to the Union’s bargaining committee.
On March 16, 2012, Hennings received a letter of reprimand
for loaning clients money. On a trip to a grocery store with
three clients, Hennings lent the clients money so that they could
pay for all their groceries.
On April 12, Hennings received a warning for being late.
Hennings had called the head of household to say that she
would be a few minutes late. The next day, Hennings spoke
with Grice. Grice stated that Hennings had not called the of-
fice. Hennings had never before been disciplined for being a
few minutes late.
On August 6, Hennings attended a bargaining session as a
member of the Union’s bargaining team. On August 9, Hen-
nings was writing down the shifts to be worked at her house.
There had been confusion due to employee absences. Frey told
Hennings that she had better not be scheduling because there
had been testimony in the Board representation case that head
of households did not do scheduling. Hennings answered that
she was not scheduling but merely helping management. Frey
checked with his office and found that Hennings was not help-
ing management with the schedule.
On August 16, Hennings received a letter of direction re-
garding monthly narratives and medication charting. Hennings
was cited for too few narratives of client progress. There were
two medical errors in the reports.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On August 20, Hennings received a written warning for fail-
ure to work her assigned shift. On August 17, Frey had driven
by the house where Hennings worked and observed her getting
out of her car alone. Frey thought Hennings was at another
house supporting clients at a party. Hennings explained that
she had left the party to aid her daughter and that she had asked
another staff person to watch her client. Hennings was written
up for not working her assignment and not notifying the office
to secure coverage for her client.
In December 2012, Frey and M. E. Closser, Respondent’s
owner, approached Hennings and complained that the Union
had marched on Closser’s home. Hennings said that she was
not there. Closser and Frey pressed the issue but Hennings
denied responsibility.
On February 4, 2013, Frey called Hennings and stated that
he had concerns with her work and that she would be placed on
administrative leave while he investigated. Thereafter, Hen-
nings was demoted from her position as head of household.
There was no reduction in pay. Frey was concerned about her
caregiving and training, completing necessary paperwork,
completing narratives, leaving clients unattended, and not call-
ing the office. Hennings requested a transfer to the graveyard
shift where there was less responsibility.
The Union was certified as the exclusive collective-
bargaining agent on March 20, 2012. The Union requested
bargaining dates on April 23. On May 21, Respondent agreed
to bargaining dates. On May 21, the Union informed Respond-
ent of the identity of the 5 employee members of the bargaining
committee. Respondent did not meet with the Union until July
13.
At the July 13 meeting, the Union discussed its first proposal
which it provided to Respondent the previous week. Respond-
ent made no proposals at that meeting. On August 6, Respond-
ent made its first proposal. The Union opposed Respondent’s
proposals on management rights, at-will employment, lack of
union security, and removing head of households from the bar-
gaining unit. The Union contended that Respondent’s pro-
posals on management rights and at-will employment would
nullify nearly everything but compensation that the Union was
attempting to bargain for. No tentative agreements were
reached but the parties agreed to meet again on September 17.
The parties met on September 17. Prior to that meeting the
Union had provided Respondent with modified proposals.
Respondent refused to discuss certain proposals. The parties
next met on November 26. The parties reached an agreement
on the bargaining unit and agreed to meet on December 18.
Respondent later canceled the December 18 meeting. Re-
spondent finally agreed to meet on February 27, 2013. That
date was canceled and the parties agreed to meet on March 11
and 12.
In May 2012, Respondent sent the Union a letter in which it
stated that it reserved the right for its “Board” to void any tenta-
tive agreements. The Union responded asking, “[T]o which
Board are you referring to?” Respondent answered that it was
referring to its board of directors. The Union sent a request for
information on June 1. Respondent answered that request on
June 11. On July 17, the Union made a request for information
regarding the head of household position. Respondent provided
information on October 12, 2012. The Union requested another
information request on October 29. The Union requested doc-
uments and/or information regarding the money spent on unit
employees. Respondent refused to furnish such information.
Respondent proposed a broad management-rights provision.
Further, Respondent proposed an employment at-will provi-
sion. The Union sought just cause language. Respondent’s
proposed grievance provision did not apply unless there was a
demonstrated specific violation of the collective-bargaining
agreement. In its progressive discipline proposal, Respondent
proposed that “the degree of discipline is solely within the
judgment” of Respondent. Respondent slightly modified its
management-rights proposal on October 16. Eventually the
Union agreed substantially to Respondent’s management-rights
clause.
The General Counsel contends that Respondent failed and
refused to bargain in good faith regarding the head of house-
hold position. On September 6, Respondent told the Union that
it would bargain to impasse over the elimination of the head of
household position and later implement its position. On No-
vember 26, the parties reached tentative agreement on the bar-
gaining unit which included the heads of household. However,
on April 12, 2013, Respondent stated that it would seek to elim-
inate the head of household position and create a supervisory
household manager position.
The General Counsel contends that Respondent maintained
the following rules in violation of Section 8(a)(1):
Professional Standards: In the course of your work, you may
have occasion to learn of matters which are confidential. It is
your ethical obligation to consider all information about resi-
dents, clients, their families, and fellow employees, as privi-
leged. You are expected to keep this knowledge in strict con-
fidence. Never discuss any facet of Kitsap Tenant Services,
Inc. or its programs either in or outside of your work site
where they can be overheard by unauthorized people. To pro-
tect yourself from accidental infringement of the policy,
please refer all matters to your Coordinator.
Professional Boundaries: When an employee is no longer
employed by KTSS, Inc., they are required to sign a confiden-
tiality agreement stating they have not and will not reveal Cli-
ent information or confidential matters learned while in the
employ of the agency. Further, the employee must certify that
they have not, nor in any way been party to or knowingly
permitted:
• Disclosure of any confidential matters, or trade secrets of
Kitsap Tenant Services, Inc.
• Retention or duplication of any confidential materials or
documents issued to or used by the employee during
employment.
Employee Professional Relationships: You understand that
you are not allowed to discuss any issue regarding your job
performance or relationships with co-workers or supervisors
with Clients or within earshot of Clients.
Canvassing or Soliciting: Staff members are expected to keep
such activities from occurring on our premises and work sites.
KITSAP TENANT SUPPORT SERVICES, INC. 31
Employees are not allowed to sell, push products, or philoso-
phy, religion to Clients or staff.
Conditions of Employment: Employee agrees not to divulge,
publish, or otherwise make known to unauthorized persons or
to the public any information contained in the course of
providing services, where release of such information may
possibly make the person or persons whom are receiving such
services, supervisors, Clients families and/or fellow Caregiv-
ers identifiable. Employees should recognize that unauthor-
ized release of confidential information might subject them to
civil liability under the provisions of State law and/or dismis-
sal from KTSS, Inc.
Reasons for Termination:
*Violation of Client and/or program confidentiality.
* Violation of policy and procedures of company.
* Misconduct as defined in the orientation manual.
* Failure to follow the Employee Professional Rela-
tionships Contract.
*Failure to sign and follow the Maintaining Client
Confidentiality.
Misconduct: Giving Client information or opinions of the in-
ner workings of the office (similar to rules previously men-
tioned).
III. CONCLUSIONS
The Rules
The Board held in Kinder-Care Learning Centers, 299
NLRB 1171 (1990), that employees have a Section 7 right to
communicate regarding their terms and conditions of employ-
ment to other employees, an employer’s customers, the media,
and the public. In Beth Israel Hospital v. NLRB, 437 US 483
(1978), it was held that a hospital could prohibit solicitations in
patient care areas because “the primary function of a hospital is
patient care and . . . . a tranquil atmosphere is essential to carry-
ing out that function.” Here, Respondent has a fiduciary duty
to keep client information confidential. Its clients are devel-
opmentally disabled and vulnerable, and should be protected
concerning any information regarding their identity or plan of
treatment. Information regarding Respondent’s relationship
with its caregivers could cause emotional problems for Re-
spondent’s developmentally disabled clients. Under these cir-
cumstances, I view patient care areas as anywhere the client
may be. Thus, I find that Respondent’s rule regarding discuss-
ing any issues related to job performance or relationships with
coworkers or supervisors with clients or within earshot of cli-
ents’ is necessary and a lawful exception to the general rule.
Employees have a Section 7 right to communicate regarding
their terms and conditions of employment to other employees,
an employer’s customers, the media, and the public. When an
employee is no longer employed by Respondent he or she is
required to sign a confidentiality agreement stating they have
not and will not reveal client information or confidential mat-
ters learned while in the employ of the agency. I find this rule
too broad and thus violative of Section 7 of the Act.
The Employee Discipline
In cases involving dual motivation, the Board employs the
test set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). Initially, the General
Counsel must establish by a preponderance of the credible evi-
dence that antiunion sentiment was a “motivating factor” for
the discipline or discharge. This means that the General Coun-
sel must prove that the employee was engaged in protected
activity, that the employer knew the employee was engaged in
protected activity, and that the protected activity was a motivat-
ing reason for the employer’s action. Wright Line, supra, 251
NLRB at 1090. Unlawful motivation may be found based upon
direct evidence of employer animus toward the protected activi-
ty. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184
(2004). Alternatively, proof of discriminatory motivation may
be based on circumstantial evidence, as described in Robert
Orr/Sysco Food Services, supra:
To support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other
employees with similar work records or offenses, deviations
from past practice, and proximity in time of the discipline to
the union activity. Embassy Vacation Resorts, 340 NLRB
846, 848 (2003).
If the General Counsel has satisfied the initial burden, the
burden of persuasion shifts to Respondent to show by a pre-
ponderance of the credible evidence that it would have taken
the same action even in the absence of the employee’s pro-
tected activity. If Respondent advances reasons which are
found to be false, an inference that the true motive is an un-
lawful one may be warranted. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). However, Respondent’s defense does not fail simply
because not all the evidence supports its defense or because
some evidence tends to refute it. Merrilat Industries, 307
NLRB 1301, 1303 (1992). Ultimately, the General Counsel
retains the burden of proving discrimination. Wright Line, su-
pra, 251 NLRB at 1088 fn. 11.
The General Counsel has established both Bonnie Minor’s
union activities and the knowledge or constructive knowledge
of those activities by Respondent. There is no doubt that Minor
took the actions for which she was terminated. The issue as to
Minor is whether or not the conduct was the reason for the
discharge rather than her protected union activities. It is there-
fore the termination process that must be examined. The termi-
nation of Minor involved multiple steps and multiple actions by
Respondent’s Frey. Each must be evaluated under the standard
set forth above.
First, I find that the actions of Frey regarding the Christmas
party did not involve disparate treatment of Minor. Thus, I find
that the initiation of the meeting respecting the incident was not
improper. I further find that in telling clients that Frey had
yelled and screamed at her, Minor engaged in a major violation
of policy.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Having gotten past the investigative process, scrutiny must
fall on the discharge decision. I have considered the demeanor
of the witnesses, the arguments of the parties on brief and the
record as well on this critical issue. I find that the General
Counsel has not met his initial burden to show that antiunion
sentiment was a “motivating factor” for Minor’s discharge.
Considering the context, I find that the General Counsel has
not been able to demonstrate by a preponderance of the credible
evidence that the discharge involving Minor was based on anti-
union sentiment. Finally, I find there was no antiunion animus
in the final discharge decision taken or its being carried out as
set forth above.
Given this finding, it follows that the General Counsel has
failed to prove that Bonnie Minor was fired for union activities
as alleged in the complaint. Therefore I shall dismiss those
complaint paragraphs that apply to Minor.
In cases involving dual motivation, the Board employs the
test set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). Initially, the General
Counsel must establish by a preponderance of the credible evi-
dence that antiunion sentiment was a “motivating factor” for
the discipline or discharge. This means that General Counsel
must prove that the employee was engaged in protected activi-
ty, that the employer knew the employee was engaged in pro-
tected activity, and that the protected activity was a motivating
reason for the employer’s action. Wright Line, supra, 251
NLRB at 1090. Unlawful motivation may be found based upon
direct evidence of employer animus toward the protected activi-
ty. Robert Orr/Sysco Food Services, 343 NLRB at 1184. Al-
ternatively, proof of discriminatory motivation may be based on
circumstantial evidence, as described in Robert Orr/Sysco Food
Services, supra:
To support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other
employees with similar work records or offenses, deviations
from past practice, and proximity in time of the discipline to
the union activity. Embassy Vacation Resorts, 340 NLRB at
848.
When the General Counsel has satisfied the initial burden, the
burden of persuasion shifts to Respondent to show by a pre-
ponderance of the credible evidence that it would have taken
the same action even in the absence of the employee’s protect-
ed activity. If Respondent advances reasons which are found to
be false, an inference that the true motive is an unlawful one
may be warranted. Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966); Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). How-
ever, Respondent’s defense does not fail simply because not all
the evidence supports its defense or because some evidence
tends to refute it. Merrilat Industries, 307 NLRB 1301, 1303
(1992). Ultimately, the General Counsel retains the burden of
proving discrimination. Wright Line, supra, 251 NLRB at 1088,
fn. 11.
The General Counsel has established union activity by Alicia
Sale and Hannah Gates. The issue here involves Respondent’s
reason for the discharge. Frey heard from client R that he had
requested to see a doctor. Sale and Gates initially stated that
they did not have the staff to take client R to the doctor. Frey
asked them to tape client R’s wheelchair and this was not done.
Frey reported the failure to take client R to the doctor to the
State of Washington. Here, I find that Frey acted upon his
belief that Sale and Gates had improperly failed to take client R
to the doctor. Thus, I find that Respondent has established that
these employees would have been discharged even in the ab-
sence of union activities.
Terry Owens
In all cases turning on employer motivation, causation is de-
termined pursuant to Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 989
(1982). Initially, the General Counsel must prove, by a pre-
ponderance of the evidence, that protected conduct was a “mo-
tivating factor” in the employer’s decision. To establish this
showing, the General Counsel must adduce evidence of pro-
tected activity, Respondent’s knowledge of the protected activi-
ty, Respondent’s animus toward the protected activity, and a
link or nexus between the protected activity and the adverse
employment action. Farmer Bros. Co., 303 NLRB 638, 649
(1991). If the General Counsel makes this initial showing, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the em-
ployees’ union activity. American Gardens Management Co.,
338 NLRB 644, 645 (2002), citing Taylor & Gaskin, Inc., 277
NLRB 563 fn. 2 (1985), both incorporating Wright Line, supra.
The General Counsel has established that Owens was en-
gaged in union activities and that Respondent had knowledge of
those activities. Respondent established that Owens had taken
part in restricting client J’s access to food supplies and was
aware of, if not the author of improper notices to client J. Frey
observed and found wanting Owens interactions with client J.
Accordingly, I find that Respondent established that Owens
would have been discharged even in the absence of his union
activities.
Gary Martell
The General Counsel has established that Martell engaged in
union activities and that Respondent had knowledge of such
activities. However, Martell failed to complete his required
paperwork. Martell had no excuse for this failure. Martell was
suspended pending an investigation. Martell improperly visited
a client at the client’s home and told the client that he had been
suspended. Thereafter, Frey discharged Martell. Again, I find
that Respondent has established that Martell engaged in con-
duct for which he would be discharged even in the absence of
his union activities.
Johnnie Driskell
The General Counsel has established both Driskell’s union
activities and the knowledge of those activities by Respondent.
There is no doubt that Driskell took the actions for which she
was terminated. The issue as to Driskell is whether or not the
conduct was the reason for the discharge rather than her pro-
KITSAP TENANT SUPPORT SERVICES, INC. 33
tected union activities. It is therefore the termination process
that must be examined. The termination of Driskell involved
multiple steps and multiple actions by Respondent’s Frey.
Each must be evaluated under the standard set forth above.
First, I find that the action of Frey regarding Driskell’s being
late on June 6 questionable. Driskell had made arrangements to
cover her shift and called when she would be late. Driskell
received a letter of direction for not notifying Respondent of a
plan of care meeting. This letter was not discipline. Further,
this action was based on Driskell’s conduct and not her union
activities. Driskell received a warning for loaning a client
money. This was in violation of company policy.
On July 22 Driskell intervened in a client-to-client dispute.
She described the incident as pushing. Frey believed that there
was client-to-client battery and reported this incident to the
State of Washington. Driskell met with Frey on July 23 but did
not mention the client dispute.
I have considered the demeanor of the witnesses, the argu-
ments of the parties on brief, and the record as a while on this
critical issue. I find that the General Counsel has not met his
initial burden to show that antiunion sentiment was a “motivat-
ing factor” for Driskell’s discharge.
Considering the context, I find that the General Counsel has
not been able to demonstrate by a preponderance of the credible
evidence that the discharge involving Driskell was based on
antiunion sentiment. Finally, I find there was no antiunion ani-
mus in the final discharge decision taken or its being carried out
as set forth above.
Given this finding, it follows that the General Counsel has
failed to prove that Johnnie Driskell was fired for union activi-
ties as alleged in the complaint. Therefore I shall dismiss those
complaint paragraphs that apply to Driskell.
Lisa Hennings
In all cases turning on employer motivation, causation is de-
termined pursuant to Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (lst. Cir. 1981), cert. denied 455 U.S. 989
(1982). Initially, the General Counsel must prove, by a pre-
ponderance of the evidence, that protected conduct was a “mo-
tivating factor” in the employer’s decision. To establish this
showing, the General Counsel must adduce evidence of pro-
tected activity, Respondent’s knowledge of the protected activi-
ty, Respondent’s animus toward the protected activity, and a
link or nexus between the protected activity and the adverse
employment action. Farmer Bros. Co., 303 NLRB 638, 649
(1991). If the General Counsel makes this initial showing, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the em-
ployees’ union activity. American Gardens Management Co.,
338 NLRB at 645, citing Taylor & Gaskin, Inc., 277 NLRB 563
fn. 2 (1985), both incorporating Wright Line, supra.
The General Counsel has established that Lisa Hennings en-
gaged in union activities and that Respondent had knowledge of
those activities. Hennings received a letter of reprimand for
loaning money to three clients. I find that this discipline was
based on Hennings conduct and not her union activities. Hen-
nings received a warning for being 7 minutes late. Other em-
ployees were late for longer periods of time without receiving
discipline. Respondent did not explain this discrepancy.
Frey disciplined Hennings for staff scheduling. Frey said
that since employees had testified that head of households had
not done scheduling, Hennings should not be scheduling. Frey
did not explain the inconsistency where Respondent had of-
fered evidence in the representation case that heads of house-
hold did scheduling for their households.
Hennings received discipline for not doing narratives and for
errors in medication charting. I find this discipline to be based
in business reasons and, therefore, not discriminatory. Hen-
nings received a warning for an incident on August 20. Frey
had observed Hennings driving in her car when she was sup-
posed to be at a party with a client. I find no violation in this
discipline.
Respondent ultimately demoted Hennings for missing medi-
cal appointments, errors in medical charts, and her past disci-
plines. I find that the warnings to Hennings for being late and
for scheduling were unlawful. To the extent that these warn-
ings played a part in her demotion, I find the demotion unlaw-
ful.
The Alleged Refusal to Bargain
In determining good-faith bargaining, the Board examines
the totality of the party’s conduct both at and away from the
bargaining table including delay tactics, failure and/or delay in
providing information, unpalatable bargaining demands, and
refusal to explain bargaining positions. Fruehauf Trailer Ser-
vices, 335 NLRB 393 (2001). The determination of a party’s
subjective good faith in bargaining depends on an examination
of the “totality of the circumstances”. NLRB v. Tomco Com-
munications, 567 F.2d 871, 883 (9th Cir. 1978). The Supreme
Court has held that “the Board may not either directly or indi-
rectly, compel concessions or otherwise sit in judgment on the
substantive terms of collective bargaining agreements.” H. K.
Porter Co. v. NLRB, 397 U.S. 99, 106 (1970).
Section 8(a)(5) and (d) of the Act obligates parties to “confer
in good faith with respect to wages, hours, and other terms and
conditions of employment. “ NLRB v. Borg-Warner Corp., 356
U.S. 342, 344 (1958). The good-faith requirement means that a
party may not “negotiate” with a closed mind or decline to
negotiate on a mandatory subject with a closed mind or decline
to negotiate on a mandatory bargaining subject. “While Con-
gress did not compel agreement between employers and bar-
gaining representatives, it did require collective bargaining in
the hope that agreements would result.” NLRB v, Truitt Mfg.
Co., 351 U.S. 149, 152 (1956). Sincere effort to reach common
ground is of the essence is of the essence of good-faith bargain-
ing. NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th
Cir. 1943); NLRB v. Reed & Prince Mfg. Co., 118 F.2d 874,
885 (1st Cir.), cert. denied 313 U.S. 595 (1941).
The quantity or length of bargaining does not establish or
equate with good-faith bargaining. NLRB v. American National
Insurance Co., 343 U.S. 395, 404 (1952). The Board will con-
sider the “totality of the conduct” in assessing whether bargain-
ing was done in good faith. NLRB v. Suffield Academy, 322
F.3d 196 (2d Cir. 2003).
The General Counsel argues that Respondent delayed bar-
gaining and engaged in dilatory tactics. Then after bargaining
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
commenced, Respondent continued to delay. It canceled meet-
ings in July and August. As a result, the parties only met six
times since March 2012. In my view, this is evidence of bad
faith. Fruehauf Trailer Services, 335 NLRB 393 (2001).
The General Counsel further argues that Respondent put
forth proposals that were repugnant to the Union. First, the
General Counsel alleges that Respondent’s proposed manage-
ment-rights provision was so broad as to be repugnant to the
Union. However, the Union agreed to Respondent’s proposal
with a minor exception.
The General Counsel further argues that Respondent’s pro-
posal to change the head of household position to a manage-
ment position was evidence of bad faith. Section 8(a)(5) pro-
hibits a party’s insistence upon a permissible subject as a condi-
tion precedent to entering an agreement and precludes a good-
faith impasse. Borg-Warner Corp., 356 U.S. at 347–349.
However, Respondent did not insist on this provision to im-
passe. No impasse was ever reached.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to delayed bargaining after the certification for almost
4 months.
4. Respondent violated Section 8(a)(1) by maintaining a rule
prohibiting former employees from revealing client information
or confidential matters learned while in the employ of the agen-
cy.
5. Respondent violated Section 8(a)(3) and (1) by disciplin-
ing Lisa Hennings for being late and for scheduling employees.
6. Respondent violated Section 8(a)(3) and (1) for demoting
Lisa Hennings from her position as head of household.
7. Respondent’s conduct above are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effectu-
ate the purposes and policies of the Act. Accordingly, I shall
order Respondent to resume collective bargaining with the
Union.
Having discriminatorily demoted employee Lisa Hennings,
Respondent must offer her reinstatement and make her whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of demotion to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons, 283 NLRB 1173 (1987).
Respondent must also be required to remove any and all ref-
erences to its unlawful discipline of Hennings, from its files and
notify Hennings in writing that this has been done and that the
unlawful discipline will not be the basis for any adverse action
against her in the future. Sterling Sugars, Inc., 261 NLRB 472
(1982).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.2
ORDER
The Respondent, Kitsap Tenant Support Services, Inc,
Bremerton and Port Angeles, Washington, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively by delaying bargaining
for 4 months.
(b) Maintaining a rule whereby former employees are pro-
hibited from revealing client information or confidential mat-
ters learned while in the employ of the agency.
(c) Disciplining or demoting employees for engaging in un-
ion activities.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request, meet and bargain with the Union as the ex-
clusive collective-bargaining representative of its employees in
the appropriate bargaining unit described below:
All full-time and regular part-time employees working for Re-
spondent as Direct Service Staff (DSS) or Head of House-
holds (HOHs) in Respondent’s Intensive Tenant Support
Program (ITS) and Direct Service (DSS) working in Re-
spondent’s Supported Living Lite Program (SLl ite Pro-
grams), including such programs in Respondent’s d/b/a,
Olympic Peninsula Supported Living (OPSL) operations, lo-
cated in or about Kitsap County, Port Angeles, and Port
Townsend, Washington; excluding employees working in the
Homecare division, Head of Households (HOHs) and Direct
Service Staff (DSS) working in the Community Protection
Program (CP Program) because they are guards as defined by
the Act, and all other guards and supervisors as defined by the
Act.
with respect to rates of pay, hours of employment, and other
terms and conditions, and if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Within 14 days from the date of this Order, offer Lisa
Hennings 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 pre-
viously enjoyed but for her unlawful demotion.
(c) Make Hennings whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her in
the manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline of Hennings,

2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
KITSAP TENANT SUPPORT SERVICES, INC. 35
and within 3 days thereafter notify her in writing that this has
been done and that the discipline will not be used against her in
any way.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Bremerton and Port Angeles, Washington, copies of
the attached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, 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 physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since February 16, 2012.
(f) Within 21 days after service by the Region, file with the
Regional Director for Region 19, a sworn certification of a
responsible official on a form provided by Region 19 attesting
to the steps the Respondent has taken to comply herewith.
Dated, Washington, D.C. June 4, 2014
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively by delaying bar-
gaining for 4 months.

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.”
WE WILL NOT maintain a rule which prohibits former em-
ployees from discussing matters learned while employed by us.
WE WILL NOT discipline and/or demote employees because of
their union activities.
WE WILL NOT make reference to the permanently removed
materials in response to any inquiry from any employer, em-
ployment agency, unemployment insurance office, or reference
seeker and we will not use the permanently removed material
against this employee.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
WE WILL upon request, meet and bargain with the Union as
the exclusive collective-bargaining representative of our em-
ployees in the appropriate bargaining unit described below:
All full-time and regular part-time employees working for Re-
spondent as Direct Service Staff (DSS) or Head of House-
holds (HOHs) in Respondent’s Intensive Tenant Support
Program (ITS) and Direct Service (DSS) working in Re-
spondent’s Supported Living Lite Program (SLl ite Pro-
grams), including such programs in Respondent’s d/b/a,
Olympic Peninsula Supported Living (OPSL) operations, lo-
cated in or about Kitsap County, Port Angeles, and Port
Townsend, Washington; excluding employees working in the
Homecare division, Head of Households (HOHs) and Direct
Service Staff (DSS) working in the Community Protection
Program (CP Program) because they are guards as defined by
the Act, and all other guards and supervisors as defined by the
Act
with respect to rates of pay, hours of employment, and other
terms and conditions, and if an understanding is reached, em-
body such understanding in a signed agreement.
WE WILL make Lisa Hennings whole for her loss of earnings,
if any, for unlawful discipline and demotion, with interest.
WE WILL remove from our files any reference to the unlawful
discipline of Hennings.
KITSAP TENANT SUPPORT SERVICES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-074715 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.