LA Film School, LLC and its branch LA Recording School, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 6, 2011

31-CA-029627 (N.L.R.B. Apr. 6, 2011)

JD(ATL)–09–11
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
LA FILM SCHOOL, LLC AND ITS
BRANCH LA RECORDING SCHOOL, LLC
and Cases 31-CA-29627
31-CA-29642
CALIFORNIA FEDERATION OF TEACHERS, 31-CA-29719
BRANDII GRACE, An Individual 31-CA-29773
31-CA-29775
31-CA-29776
Juan Carlos Ochoa Diaz, Esq.,
for the Acting General Counsel.
Lawrence Rosenzweig, Esq., of Santa Monica, CA,
for the Charging Party.
Ronald J. Klepetar and Dawn Kennedy, Esqs.
(Baker & Hostetler, LLP), of Los Angeles, CA,
for the Respondent.
DECISION
Statement of the Case
Robert A. Ringler, Administrative Law Judge. This case was heard in Los
Angeles, California, from January 10 to 13, 2011. The original charge was jointly filed
by the California Federation of Teachers (Union) and Brandii Grace, an individual, on
March 3, 2010.1 A consolidated complaint (complaint) issued on September 22,2 which
alleged, inter alia, that the LA Film School, LLC and its branch LA Recording
School, LLC (School or Respondent), violated Section 8(a)(1) and (3) of the National
Labor Relations Act (Act), by: suspending and then firing Grace; threatening

1 All dates herein are 2010, unless otherwise stated.
2 At the hearing, Counsel for the Acting General Counsel withdrew par. 6(C) of the complaint, which involved
a written warning issued to Celina Reising in Case 31-CA-29642.
JD(ATL)–09–11
2
employees with retaliation for their Union activities; promising employees benefits in
order to discourage their Union activities; creating the impression that Union activities
were under surveillance; instructing employees to rescind their Union authorization
cards; directing employees to not attend Union meetings; and by creating and
disparately enforcing access rules in order to impede Union activities.5
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the parties’ briefs, I make the following:
Findings of Fact10
I. Jurisdiction.
At all material times, the School has operated an institution of higher learning in
Los Angeles, California, where it maintains its office and place of business. During the 15
12-month period ending August 31, it derived gross revenues exceeding $1 million, and
purchased and received at its Los Angeles, California facility goods valued in excess of
$5000 directly from points located outside of California. The School admits, and I find,
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. It also admits, and I find, that the Union is a labor organization within the 20
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices.
A. Background.25
The School offers associate degree programs in film, computer animation, video
game production, and recording arts.3 It employs approximately 135 faculty members.
The majority of the faculty is employed in the film and recording departments, while the
minority, i.e., five instructors, is employed in the game department. 30
Diana Derycz-Kessler, chief executive officer and president, runs the School.
William Smith, vice-president of education, reports directly to her and oversees
curriculum, faculty, and related matters. At all relevant times, Brian Walker was the
human resources director.4 The film, animation, recording and game departments are 35
each headed by a program director.
Michael Blackledge, program director, was hired in July 2008 to develop the
fledgling game department.5 He recruited Grace, after finding her contact and
background information on a business networking website. Grace, who was living in 40
Seattle, Washington, was then employed as a game design instructor at Digipen

3 It consists of four buildings, which are located at: 6353, 6363, and 6690 Sunset Blvd.; and
1605 Ivar Ave.
4 After the instant events, Walker resigned and accepted a similar job at Bank of America.
5 The department began accepting students in October 2009.
JD(ATL)–09–11
3
Institute of Technology. Blackledge was impressed by her academic and professional
background, and contacted her via e-mail to gauge her interest in a faculty position.
Her subsequent recruitment entailed phone interviews and an in person interview. On
August 11, 2009, Grace accepted a faculty position in the game department at an
annual salary of $70,000. R. Exh 1. 5
On August 31, 2009, Grace began her employment. She was supervised by
Blackledge. Because the Game Design I and II (GD1 and GD2) classes that she was
hired to teach were not scheduled to begin until June, she volunteered to teach a
Business of Games (BOG) class in October 2009. R. Exhs. 2–3. 10
Grace began teaching BOG in late-October. It was a 32-hour course, which was
taught in 8, 4-hour blocks. It covered game development, marketing, testing, and
licensing. She prepared a lengthy lesson plan, which divided each day into 15-minute
blocks. R. Exhs. 8, 30. The lesson plan highlighted discussion points, class materials, 15
equipment, objectives, assessments and assignments. Grace testified that Smith,
Blackledge’s superior, complemented her lesson plan and only proposed ministerial
changes, which were completed. R. Exh. 9.
In addition to teaching, Grace assisted with student recruitment. The record 20
failed to reveal that she held the authority to hire, transfer, suspend, lay off, or perform
any other supervisory functions. Moreover, she did not exercise any authority beyond
the academic discretion to design courses and evaluate students.
B. The Union’s Organizing Drive.25
The Union’s campaign was driven by the School’s creation of a new faculty pay
system.6 On January 25, Smith announced that the faculty would be reclassified from
salaried to hourly employees, who would only be paid for hours taught in the classroom.
GC Exh. 2. The change reduced wages for all, but the few, who provided 40 weekly 30
hours of classroom instruction.
Grace was blindsided by this news. Within months of relocating from a stable
position at an established institution, her full-time salary and benefits were unexpectedly
slashed. Her situation was even more sobering because she was only teaching a single 35
course. She did not, however, accept the news submissively and responded by building
a coalition of disgruntled colleagues. This coalition gave rise to the Union’s organizing
drive.
On January 29, Grace and 16 colleagues attended a faculty-only meeting at the 40
School,7 which focused on concerns regarding the new wage system. Grace and
Dominick Koletese, another faculty member, arranged and chaired the meeting. Grace

6 The School created this policy, following an 80-percent decrease in enrollment.
7 The meeting was held at 6363 Sunset Blvd. in the 5th floor conference room, which was near Smith’s and
Program Directors Joseph Byron’s and Bobby Milly’s offices.
JD(ATL)–09–11
4
recalled colleagues voicing anger, and lamenting that Walker had already asked some
of them to sign new employment contracts reflecting their wage reduction. They ended
the meeting by agreeing to temporarily not sign the new contracts, and decided to
reconvene, once further research was performed.
5
On February 1, Grace held another meeting at the School.8 She informed her
colleagues that, after contacting various agencies, she learned that they were at-will
employees, who were individually powerless to challenge the new system. She did
state, however, that they could collectively protest the change, if they unionized. She
recalled the group welcoming her suggestion. She agreed, as a result, to research the 10
issue further.
Grace eventually contacted Union field representative Peter Nguyen. On
February 2, at Grace’s behest, Nguyen lectured 30 faculty members at the School, and
explained the unionization process.9 Grace addressed the audience and advocated 15
unionizing. The meeting resulted in the creation of an organizing committee, which was
run by Grace and five others. Grace provided unrebutted testimony that the meeting
space was reserved by Ariel Levy, a supervisor, and that he attended and observed this
gathering.10
20
On February 11, within less than 2 weeks of the first Union meeting, Blackledge
and Smith met with Grace and her game faculty colleagues. At this meeting, Smith
unexpectedly announced that the game faculty would be returned to salaried positions.
He cited their hard work and Blackledge’s ongoing praise as his rationale. He explained
that their position titles would change from course directors to department chairs.11 25
When Grace asked whether the title change included any supervisory duties, Smith
stated that it would not.12
Shortly after the February 11 meeting ended, Grace met privately with
Blackledge. She testified that, after receiving his congratulations, the tenor of their 30
discussion changed. She recalled him: accusing her of leading the faculty “revolt”;
warning that, unless she stopped, there would be retaliation; calling her “too lawyerly”;
and cautioning her to accept the School’s largesse gracefully. During his testimony,
Blackledge denied these comments.
35
Because Grace testified that Blackledge called her the leader of the revolt and
threatened her, and Blackledge denied such comments, I must make a credibility

8 The meeting was held at 6363 Sunset Blvd. in a 4th floor classroom.
9 This meeting was held at 1605 Ivar Ave. at the Ivar Theater.
10 See Jt. Ext. 1 (joint stipulation that Levy was a Sec. 2(11) supervisor).
11 Pay records show that Grace’s title changed from course director to department chair during the February
14 to 27 pay period, and she retained her original salary. GC Exhs. 2-3.
12 On February 19, Grace met with Walker and asked whether she would receive a new contract, which
reflected her promotion. She related that Walker replied that, per Blackledge, the title change was non-
substantive and she would not receive a new contract.
JD(ATL)–09–11
5
resolution. For several reasons, I credit Grace’s account. I found her testimony and
demeanor to be forthright, consistent, and truthful. I found Blackledge’s demeanor less
than candid. His testimony was vastly more helpful on direct than cross, which was
marked by pauses, spotty recall, and periodic dismay that his integrity was being
questioned. I also find it plausible that the School offered Grace a quid pro quo of 5
salaried status in return for ending her Union activities, and that Blackledge’s threat
communicated their offer.
On February 20, Grace met privately with animation department program director
Bobby Milly. She testified that she asked him about a rumor that he had banned the 10
animation faculty from attending Union meetings. Grace stated that Milly admitted the
ban, and related that his actions were approved by William Heavener, his superior.
Because the School, without explanation, failed to call either Milly or Heavener to rebut
this testimony, I credit Grace’s account, which was forthright and believable. See
Douglas Aircraft Co., 308 NLRB 1217 (1992) (failure to call a witness “who may 15
reasonably be assumed to be favorably disposed to the party, [supports] an adverse
inference … regarding any factual question on which the witness is likely to have
knowledge.”).
Later on February 20, Grace and 20 faculty members met with Union 20
representative Nguyen at the Waffle House.13 Nguyen collected several signed
authorization cards at this meeting. In addition, Grace agreed to solicit signed cards
from 12 non-attending faculty members and related that, over the next few days, she
acquired seven additional cards.
25
C. Grace’s Warning and Suspension.
On February 22, Grace received a warning and 2-day suspension. GC Exhs. 6—
7.14 She testified that Blackledge accused her of being combative and turning the
game department against him. The discipline was based upon: (1) a December 9, 2009 30
e-mail and follow up discussion with Blackledge (GC Exh. 8); and (2) her ongoing failure
to submit course materials. She was placed on a 60-day probationary period,
reclassified back to hourly status, and directed to, “provide Lesson Plans, Course Grid
and Syllabi in the proper format for the Business of Games and Game Design I
[courses] within 30 days.” She stated that she was not allowed to respond to the 35
allegations, and was also told that, effective immediately, she must continuously keep
Blackledge apprised of her whereabouts.15 As will be discussed, I find the reasons
behind the warning and suspension to be pretextual.
D. The Union’s Petition.40

13 The Waffle House is one city block from the School.
14 GC Exh. 7 is incorrectly dated January 22, instead of February 22. Although the exhibit does not describe a
suspension, it is undisputed that Grace received a 2-day suspension at this meeting.
15 Blackledge acknowledged this statement.
JD(ATL)–09–11
6
On February 24, before Grace returned from her suspension, the Union filed a
Petition with the Board seeking to represent the faculty. GC Exh. 19. The Petition
alleged that over 30 percent of the faculty supported the Union. By facsimiles dated
February 25 and March 1, Derycz-Kessler was notified about the Petition. Jt. Exh. 1,
Att. A, B. 5
E. Grace’s Leave Following Her Suspension.
Following the suspension, Grace took leave on February 25 and 26. Blackledge,
Walker and Smith stated that, although she had earned the leave, they were 10
disappointed that she was absent at a critical point in her tenure. They did not,
however, testify that they denied her leave request, or ordered her to immediately
return. Grace explained that she took leave because she feared that her firing was
imminent and needed time to move in with a family member in order to prepare for her
probable loss of income.15
F. Grace’s Termination.
On March 1, Grace returned to work; on March 2, she was fired. Her separation
notice cited insubordination, “recurring verbally combative and aggressive behavior,”20
and “refusal to complete course documentation.” Jt. Exh. 1, Att. C. The School’s
witnesses cited her December 9, 2009 and February 15 e-mails, insubordinate follow up
discussions with Blackledge, and ongoing failure to submit materials as examples of her
misconduct. They related that, when she failed to submit course materials on March 1,
her discharge became their only option. Walker indicated that the School has fired 25
other employees for absenteeism, performance and insubordination. R. Exhs. 26–29.
Derycz-Kessler, Smith, Blackledge and Walker denied knowing about the Union
campaign or Grace’s connected activities, when she was fired. They, instead, claimed
that they first learned about these activities a few hours after her firing. I do not credit 30
their testimony. First, Blackledge knew about the campaign when he threatened Grace.
Likewise, Milly, another supervisor, knew about the campaign when he banned the
animation faculty from attending Union meetings. Levy, another supervisor, also
arranged and observed a Union meeting on February 2. I find it likely that these
supervisors told their superiors about the campaign and Grace’s role. Second, I find it 35
improbable that Derycz-Kessler, who was faxed notices about the Petition on February
25 and March 1, was not made immediately aware of this key personnel issue. Third,
given that Grace held several Union meetings at the School within close proximity to
Smith’s and Milly’s offices, I find it doubtful that the School did not contemporaneously
learn about some, or all, of these meetings. Accordingly, I find that the School knew 40
about the Union organizing campaign and Grace’s role when she was fired.
G. December 9, 2009 E-mail and Meeting with Blackledge.
As noted, the School alleged that Grace’s firing was largely based on a 45
December 9, 2009 e-mail and follow up discussion with Blackledge. In response to an
JD(ATL)–09–11
7
e-mail from Blackledge regarding a candidate for an applied math and logic faculty
position in the game department, Grace e-mailed this reply to Blackledge:16
He has ZERO game experience—his resume doesn’t even mention
games. I would say he is entirely unqualified. 5
I am happy he would like to explore … games. I would highly encourage
him to apply again in the future after he completes his study of them ….
Michael: This is an APPLIED class. The entire point is to teach students 10
how to APPLY math, logic and physics concepts AS THEY APPLY TO
GAME PROGRAMMING ….
The class cannot be taught by someone who has no knowledge of how
these subjects are practically applied in game development!!! …. 15
GC Exh. 8 (emphasis as in original).
Grace testified that, after sending the e-mail, she grew concerned that it might be
misconstrued as something other than a candid critique. She stated that, in order to 20
avoid a misunderstanding, she met with Blackledge shortly after sending the e-mail and
explained her intentions. She recollected that he had not yet read the e-mail, appeared
comfortable with her explanation, and proceeded to discuss the candidate’s
qualifications. She related that she was respectful, discussed the position’s duties, and
reviewed another applicant’s resume with him. She stated that the meeting ended 25
cordially, and the issue appeared to be resolved.
On December 10, Blackledge sent the following e-mail to Grace:
[I]n the future, I’m asking that you come to me in person instead of 30
sending heated e-mails of this nature It can affect to moral [sic] of the
dept. and reflect poorly on your professionalism. E-mail is a tool for
sharing information, it does not convey emotion.
R. Exh. 10. Grace indicated that she and Blackledge did not discuss the matter further, 35
until it was raised in connection with her suspension and firing.
Blackledge testified, on the other hand, that Grace’s e-mail was disrespectful.
He related that her disrespect was magnified when she copied her e-mail to three game
faculty members. He recalled that Grace stopped by his office after sending the e-mail, 40
half-heartedly apologized and proceeded to hostilely question his understanding of the
position. He indicated that she screamed and berated him, and left him with no
alternative, other than to ask her to leave. He asserted that she was so hostile that he
grew concerned that the altercation would escalate, if not abruptly halted. He averred

16 This e-mail was also sent to three video game department faculty members.
JD(ATL)–09–11
8
that Grace initially refused to leave his office; but, eventually calmed down and obliged
after reviewing a more qualified applicant’s resume. He indicated that he immediately
reported her rant to Walker. He did not, however, explain why, given the seriousness of
his account, he failed to take immediate disciplinary action, instead of silently waiting
three months to raise this matter.5
Because Blackledge testified that Grace engaged in an aggressive tirade, and
Grace denied such action, I must make a credibility determination in order to resolve
this contradiction. Once again, I credit Grace’s account. As stated, I credit her
demeanor over Blackledge’s. In addition, I find it probable that, if Grace actually 10
engaged in the aggressive outburst that Blackledge alleged, she would have been
promptly disciplined or fired. I find Blackledge’s account inconsistent with his mild
follow-up e-mail, which only asked Grace to speak to him personally in the future and
conspicuously failed to cite her alleged outburst. It seems obvious that most
supervisors would consider an assault worse than an undiplomatic e-mail, and would 15
promptly document and address such behavior.
H. February 15 E-mail and Submission of Course Materials.
The School contended that its decision to fire Grace was also largely based on 20
her refusal to submit adequate course materials for the BOG, GD1 and GD2 courses.
Blackledge testified that her BOG lesson plans lacked: sufficient detail, copies of
quizzes and exams, power point presentations and syllabi. He asserted that Grace was
continuously unwilling to correct deficiencies.
25
Grace, on the other hand, testified that her BOG course outlines from October
2009 were approved by both Blackledge and Smith. She noted that she met with Smith
to discuss these materials and he solely suggested minor revisions, which were
completed. R. Exh. 9. She related that Blackledge made de minimis changes to her
October 2009 materials, which were completed. She contended that, once she 30
attempted to unionize the faculty, her work product became unacceptable, and the
same BOG course materials that passed muster in October 2009 were rejected, when
she prepared to reteach the course in March.
The parties offered numerous e-mail exhibits regarding course materials. One 35
set of e-mails occurred before January 25, i.e., the onset of Grace’s Union activity, while
the other set occurred thereafter. This distinction is quite telling; inasmuch as the pre-
Union activity e-mails are either positive or neutral, while the post-Union activity e-mails
are consistently critical.
40
JD(ATL)–09–11
9
The pre-Union activity e-mails, as noted, were generally positive. See, e.g.,
GC Exh. 16 (“thanks for your work on BOG this week.”); R. Exh. 30 (Blackledge’s e-
mail to Smith enclosing BOG course materials with the praise, “[s]he put these together
in record time….”); R Exh. 9 (asking Grace to “consolidate … lesson plans into a single
doc [and] … make the changes that Bill … discussed related to segment times ….” but, 5
conspicuously failing to describe any substantive problems).17
The post-Union activity e-mails were, however, critical. For instance, on
February 15, Blackledge and Grace had the following exchange concerning the March
BOG course:10
[Grace] Here is the updated March BOG course outline….
[Blackledge] [T]his is a great start, but you’ll need to use the standard
formatting. Again, I need the lesson plan, course grid and 15
syllabus (if updated) ….
[Grace] This is the same accepted format as the grid I handed in last
time. I changed the course content, not the format.
20
[Blackledge] I’m asking you to use the standard format from now on, for
all courses. I let it slide last time due to time constraints. :)18
GC. Exh. 10; see also R. Exh. 14. By way of further example, on February 15, Grace
sent Blackledge a multiple page, e-mail covering various accreditation issues, including 25
student attendance, student terminations, graduation issues, and a host of other
matters. GC Exh. 11. A relatively minor portion of this e-mail discussed lesson plans:
There is NO [accreditation] requirement for documentation such as
“Course Grids” or “Lesson Plans”. A syllabus and the course catalog are 30
all that is necessary to cover all required course information.
Even though this communication was solely informational, it was construed by
Blackledge to be insubordinate. See R. Exh. 19 (“[a]fter reading the e-mail from Brandii,
it was clear to me that she was shrewdly attempting to refuse my request [to submit 35
BOG course materials] on the basis that it was not a requirement by the ACCSC.”).
Blackledge testified that he was upset about Grace’s February 15 e-mail, and
thought that she was again refusing to provide course materials. He expressed concern
that Grace, who was not an accreditation expert, was conveying inaccurate information. 40
He reported that, following the e-mail, Grace dropped by his office and engaged in

17 The remainder of the pre-Union activity e-mails either requested minor procedural action or described
procedures. See, e.g., GC Exhs. 18, 26; R. Exhs. 5, 6, 12, 13.
18 It is noteworthy, however, that Blackledge failed to define what he meant by “standard formatting,” or explain
how her previously submitted, accepted material should be amended.
JD(ATL)–09–11
10
another a hostile dialogue, which included these comments:
Can I complete the course materials? Yes. Will I is another question?
If Bill Smith asked me to dress up in a chicken suit and come to work, can 5
I? Yes, but, will I is another question?
See also R. Exh. 19.
Grace, on the other hand, acknowledged stopping by Blackledge’s office to 10
discuss the e-mail, but, denied using any sarcasm, acting hostilely, or refusing to
provide course materials. She added that there was an ongoing debate amongst the
faculty regarding whether course grids and lesson plans were required for accreditation.
She stated that her e-mail solely attempted to respond to this debate, as well as a
number of other, unrelated accreditation issues. 15
Because Blackledge testified that Grace engaged in another hostile tirade on
February 15, and Grace denied such conduct, I must make another credibility
determination. I credit Grace’s testimony over Blackledge’s for the same host of
reasons previously discussed. 20
I. Post-discharge discovery that Grace’s laptop was damaged.
The School contended that, even assuming arguendo that it lacked legitimate
cause to terminate Grace on March 2, it possessed such cause after it made its post-25
termination discovery that she intentionally damaged her laptop by removing its partition,
operating system, software, and files. Grace testified that she did not return her laptop at
the March 2 termination meeting because it was at her home residence. She indicated
that her mother returned the laptop to the School on her behalf on March 3.
30
Denny Trujillo, director of the information technology department, testified that he
received Grace’s laptop about 4 to 5 days after her termination, i.e., March 6 or 7. He
recalled Diana Reneau from human resources bringing it to his office. He explained
that faculty laptops are equipped with an operating system and various software
applications. He noted the following problem with Grace’s laptop: 35
It appeared that no operating system and no partition existed on the
laptop. It booted with a black screen.
He concluded that someone intentionally deleted the partition because this action 40
involves several deliberate steps. He stated that a computer virus cannot cause a
deleted partition. He added that, due to the deleted partition, the laptop lacked an
operating system, software and files. He indicated that the laptop was not physically
damaged and became operational, once a new partition, operating system and software
were reinstalled. He was unable to determine when the partition was removed, or 45
identify who he suspected might have removed the partition.
JD(ATL)–09–11
11
Grace denied causing the damage at issue. Blackledge denied having any
contact with Grace’s laptop following her termination.
J. Union Access Issues:5
On March 9, Union representative Nguyen visited the School to accompany
Reising, a member of the Union’s organizing team, to a possible disciplinary meeting.
He related that he passed by security without obtaining a visitors’ badge and met with
Reising and several faculty members.19 While they waited for Reising’s meeting to 10
begin, Smith arrived and questioned why they were there. Nguyen identified himself
and told Smith that they were there to protect Reising’s Weingarten rights and
accompany her to the meeting. Smith replied that Reising could not bring a
representative and departed. Nguyen related that, even though the group waited
peacefully for Reising and was not disruptive, Smith continued to monitor them and 15
question their presence. After Reising’s meeting ended, the group walked over to her
office in an adjacent building to discuss her encounter.
Nguyen indicated that he passed by the security kiosk without issue, while
someone in his party indentified him as a visitor. Within a few minutes of entering 20
Reising’s office, a security guard appeared and escorted Nguyen to the lobby, where he
was told to leave. He testified that he initially refused and explained that he was a
faculty guest who was acting appropriately. He asked for an explanation, which was
declined. At some point, four other security officers arrived. They insisted that he
depart, reminded him that he was on private property, explained that Smith had ordered 25
his ejection and threatened physical force.20 He eventually relented and departed. He
added that he previously visited School without issue.
At the time of Nguyen’s ejection, the School had the following visitors’ policy:
30
VISITORS seeking access for Faculty, Staff and/or Employees of L.A.
Film, security procedures are as follows:
1) All VISITORS are required to provide their name and
destination to the Security Officer.35
2) Security Officers are to check a photo identification of the
VISITOR (Driver’s License; etc.) and ensure that the name on the
ID matches the name the VISITOR has provided.
40
3) Officers shall call the staff member the Visitor is to see –
Officers shall provide the name of the Visitor to the staff member. (If
you are unable to contact the staff member, Officers are to politely

19 He identified Reising, Tema Levine Staig, and Barbara Dunphy.
20 Nguyen’s expulsion generated multiple incident reports. GC Exh. 22.
JD(ATL)–09–11
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request the VISITOR to stand by for a few minutes until the staff
member is contacted.
4) If the Visitor is authorized, Officers shall record the
information in the VISITOR LOG. (Name, Destination, Time In & 5
Out). (If the Visitor is not authorized, Officers shall politely inform
the visitor that they do not have an appointment scheduled,
therefore they cannot proceed.).
5) Officers shall then record the individual’s name on the Visitor 10
Badge and inform the visitor that the Visitor Badge must be worn at
all time while on premises….
Any Security Officer that observes an individual on the property without a
visitor badge MUST confront the individual and ask them how they can 15
assist them. Officers are to use courtesy when confronting individuals as
most people have legitimate reasons for entering the facility.
If the individual is authorized to be on the premises, the guard shall escort
the individual to the Building One Lobby Officer or the 3rd Level Office to 20
obtain a new Visitor Badge. Unauthorized individuals shall be escorted to
the exit.
GC Exh. 20 (emphasis as in the original).
25
On March 10, following Nguyen’s ejection, the School issued a written security
alert, which placed its security force on “high alert” for Nguyen, and directed them to bar
him from entering the School. GC Exh. 21. This alert contained a detailed description
of his physical appearance and identified him as a Union representative. The School’s
witnesses failed to explain the School’s basis for issuing this alert.30
On March 11, Pat Olmstead, vice president of operations and facilities, issued
this memorandum:
We have had a rash of thefts over the last few weeks. Students and staff 35
have voiced their concerns….
Another issue we’re facing is knowing who and who isn’t permitted on
campus. With the increased activity this has become more difficult for our
security team…. In our continuing efforts to keep the premises safe we 40
are instituting new visitor policies.
 Employees’ visitors must be cleared by their department head.
A valid reason must be given for the visit.
ï‚· Once cleared, all visitors must be reported via phone or e-mail 45
to the reception desk prior to their arrival.
JD(ATL)–09–11
13
ï‚· Visitors must only enter the buildings through the Main Sunset
Blvd. entrances … and sign in with security.
ï‚· Visitors not on the reception list will be delayed until cleared by
the department head.
ï‚· All guest speakers must be approved by Bill Smith prior to 5
scheduling.
ï‚· No visitors are permitted at the Ivar Theater. Employees and
students only. Employees wishing to take visitors to Ivar must
be accompanied by security….
Jt. Exh. 1, Att. D. 10
Olmstead testified that the School houses valuable computer, film and recording
systems. He related that, generally, visitors who fail to check in with security, are not
automatically expelled, as long as they’re conducting legitimate business. He added
that he would normally “defer to the instructor,” whom the person was visiting, before 15
seeking expulsion. He reiterated that the new policy addressed the recent rash of
thefts.
Tema Levine Staig, a faculty member, testified that on at least five prior
occasions, her guests visited the School without hindrance. See also GC Exhs. 23–24. 20
She related that the School never previously required management pre-approval for
visitors.
Smith testified that he met privately with Reising on March 9 and saw no reason
for Nguyen to participate. He acknowledged calling security and ordering Nguyen’s 25
expulsion.
K. Revocation of Authorization Cards.
On March 12 and 22, Derycz-Kessler e-mailed the faculty a sample card 30
revocation letter, which was addressed to Union representative Nguyen:
I recently signed a union authorization card for your union. This letter is to
notify you that I am revoking my authorization, want to withdraw from
membership in your union and am requesting that you return my 35
authorization card to me….
Jt. Exh. 1, Att. E-F. The above-described letter was attached to an Election Questions
and Answers memorandum. See R. Exh. 17.
40
L. Milly’s Disavowal Memorandum.
On April 29, Milly issued the following memorandum to the animation department
faculty:
JD(ATL)–09–11
14
I would like to clear up a misunderstanding about a statement I made to
the team back in February of this year.
My statement pertained to the memo regarding a change in faculty status 5
from salary to hourly. Before the release of the memo, I had a discussion
with our team where I suggested that we deal with this change within our
own department ….
Due to issues with this change, Faculty from other departments arranged 10
to meet and discuss this change in status, and invited members of
Computer Animation to attend. As we had dealt with this issue internally, I
did not want the team to become involved in other departments’ policies
and politics.
15
This statement was misinterpreted by others to mean that I did not want
the team to become involved in union related activities. This was not true,
because at the time I was not aware that people were meeting to propose
organizing the faculty in a union. I respect any faculty members’ right to
participate in organizing activities or the right to refrain from such 20
activities.
Jt. Exh. 1, Att. G.
III. Analysis.25
A. Independent 8(a)(1) Allegations.
1. Blackledge’s threat.
30
The School violated Section 8(a)(1) of the Act, when Blackledge threatened
Grace with retaliation for engaging in Union activities on February 11.21 A statement is
an unlawful threat under Section 8(a)(1), when it interferes with, restrains, or coerces
employees in the exercise of their Section 7 rights. 29 U.S.C. § 158(a). In evaluating
such statements, the Board:35
[D]oes not consider subjective reactions, but rather whether, under all the
circumstances, a respondent’s remarks reasonably tended to restrain,
coerce, or interfere with employees’ rights guaranteed under the Act.
40
Sage Dining Service, 312 NLRB 845, 846 (1993); see also Empire State Weeklies, Inc.,
354 NLRB No. 91, slip op. at p. 3 (2009) (totality of circumstances standard); Double D
Construction Group, 339 NLRB 303 (2003) (“test of whether a statement is unlawful is
whether the words could reasonably be construed as coercive, whether or not that is the

21 This allegation is listed in par. 8 of the complaint.
JD(ATL)–09–11
15
only reasonable construction.”).
On February 11, Blackledge told Grace that he knew that she was leading the
“revolt” and warned her that, unless she stopped, retaliation would ensue. He also told
Grace to stop being “too lawyerly,” and urged her to accept her reclassification without5
protest. Under the circumstances, a reasonable employee in Grace’s position would
consider these statements to be a threat to either stop engaging in Union activities, or
suffer unspecified reprisals. As a result, Blackledge’s comments violated Section
8(a)(1).
10
2. Reclassification of the game faculty.
Smith violated Section 8(a)(1), when he offered the game faculty reclassification
to salaried positions on February 11.22 Absent a showing of a legitimate business
reason for the timing of a grant of benefits during an organizing campaign, the Board 15
will infer an improper motive and find interference with employee rights under the Act.
KOFY TV-20, 332 NLRB 771, 773 (2000). A legitimate business reason may be
established by showing that the benefits were granted in accordance with a preexisting
established program. Id.
20
Smith’s actions were unlawfully designed to interfere with employees’ Section 7
rights. First, the decision to change the entire faculty from salaried to hourly positions
was the seminal issue behind the Union’s campaign. I find that the School reclassified
the game faculty in order to placate Grace, the lead organizer, regarding her own wage
issue, and coax her to abandon her organizing efforts. This finding is supported by 25
Blackledge’s retaliatory threat. Second, the timing of the game faculty’s reclassification
is suspect. Within 17 days of the start of the Union’s campaign, the School decided to
return the five-person game faculty to salaried status, while ignoring the legitimate
interests of its remaining 130 faculty members. Third, the School’s decision to
reclassify the game faculty occurred in the context of the several ULPs described 30
herein. Lastly, the School’s asserted reasons for reclassifying the game faculty are
pretextual, i.e., their strong work and Blackledge’s praise. All of these reasons,
however, existed when the School created its wage policy only 17 days earlier, and
could have been addressed at that time. It is improbable that the School would have
overruled a carefully planned wage decision, and risked greater faculty disaffection by 35
rewarding only five new faculty members, unless it had a strong reason, i.e., stifling the
organizing drive. I find it probable that the School previously considered the game
faculty’s hard work and Blackledge’s praise before it announced its wage decision, and
initially dismissed such considerations. Accordingly, Smith violated Section 8(a)(1)
when he reclassified the game faculty.40
3. Milly’s order.
The School violated Section 8(a)(1), when Milly directed the animation faculty to

22 This allegation is listed in par. 9 of the complaint.
JD(ATL)–09–11
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not attend Union meetings.23 It is unlawful for employers to direct employees to not
attend union meetings. See, e.g., Hanson Aggregates Central, 337 NLRB 870,
875–876 (2002).
The School contends that, even if Milly’s statements were unlawful, his April 29 5
disavowal memo self-remedied any violation. In order for an employer to self-remedy a
violation of the Act, it must meet the test set forth in Passavant Memorial Area Hospital,
237 NLRB 138 (1978), which provides that repudiation must be: timely, unambiguous,
specifically refer to the unlawful conduct, broadly published, and unaccompanied by
other violations. In Holly Farms, 311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th 10
Cir. 1994), the Board held that the employer must also admit the wrongdoing.
I find that the School has not met the Passavant test. Although reasonably
timely, Milly’s repudiation was ambiguous, not broadly published and failed to admit
wrongdoing. Moreover, the unlawful statement was accompanied by the several other 15
unremedied ULPs at issue herein.
4. Impressions of surveillance.
The School created an unlawful impression of surveillance, when: Blackledge 20
told Grace that he knew that she was the leader of the revolt on February 11;
Blackledge told Grace to keep him informed of her whereabouts at all times on February
22, and accused her of turning the game faculty against him; and Milly directed the
animation faculty to not attend Union meetings.24 The test for whether an employer
creates an unlawful impression of surveillance is whether, under the circumstances, an 25
employee could reasonably conclude that their union activities are being monitored.
Rogers Electric, Inc., 346 NLRB 508, 509 (2006).
Under the circumstances, a reasonable employee would construe the above-
described statements, i.e., you’re the leader of the “revolt,” keep me informed of your 30
“whereabouts,” you’ve turned the game faculty against me, and do not attend Union
meetings, to mean that their Union activities were being closely monitored. Thus, such
statements violated Section 8(a)(1).
5. Nguyen’s expulsion.35
I find that the School violated Section 8(a)(1), when it expelled Union organizer
Nguyen on March 9.25 In Register-Guard, 351 NLRB 1110 (2007), the Board held:
[A]n employer violates 8(a)(1) of the Act by prohibiting nonemployee
distribution of union literature if its actions “discriminate against the union 40
by allowing other distribution.” After determining that the employer’s

23 This allegation is listed in par. 10 of the complaint.
24 These allegations are listed in pars. 7 and 11 of the complaint.
25 This allegation is listed in par. 12 of the complaint.
JD(ATL)–09–11
17
decision to deny the union access was based “solely on the Union’s status
as a labor organization and its desire to engage in labor-related speech,”
the Board [has] found … that “[s]uch discriminatory exclusion” violated
Section 8(a)(1).
5
Similarly, … the Board [has] found that the employer violated Section
8(a)(1) by sending employees a message stating that “it is not appropriate
for union literature to be … placed in our breakroom.” The Board found
that the message was discriminatory, and therefore unlawful, because it
“barred only union literature, and no other, from being placed in the 10
breakroom.” ….
We therefore [hold] … that unlawful discrimination consists of disparate
treatment of activities or communications of a similar character because of
their union or other Section 7-protected status …. 15
Id. at 1118-1119 (citations and footnotes omitted). In applying the latter standard, the
Board has found that an employer violates Section 8(a)(1), when it discriminatorily adds
additional, unwritten, restrictions to an otherwise lawful access policy in order to prevent
union-related access or speech. See, e.g., Hawaii Tribune-Herald, 356 NLRB No. 63, 20
slip op. at 1, 28–29 (2011) (employer violated Sec. 8(a)(1) when it required union
representatives to obtain management approval for visits, even though its written
security policy permitted all visitors to enter the facility without prior management
approval); Register-Guard, supra, 351 NLRB at 1119 (employer violated Sec. 8(a)(1)
when it prohibited union e-mails that were informational, nonsolicitations, even though 25
written policy “prohibited only ‘nonjob-related solicitations,’ not all nonjob-related
communications.”).
I find that the School violated Section 8(a)(1), when it ejected Nguyen. The
applicable security policy did not grant management the right to approve faculty visitors; 30
it solely required faculty approval. GC Exh. 20. The policy provided that, in the event
that an authorized visitor failed to initially check in with security, they should be escorted
to the lobby, issued a visitor’s badge and permitted to return to their destination. Even
though Smith knew that Nguyen’s visit was approved by the faculty and he was not
causing a disturbance, he pursued his eviction after learning that he was a Union 35
representative. Moreover, Levine Staig testified that the School never previously
required management preapproval for visitors. It is noteworthy that the School felt so
strongly about banning Nguyen from its facility that it issued a security alert the day after
his eviction, which appeared to ban him in perpetuity. GC Exh. 21. Accordingly,
Nguyen’s eviction violated Section 8(a)(1). See Hawaii Tribune-Herald, supra.40
6. The new security policy.
I find that the School violated Section 8(a)(1), when it promulgated and
maintained a new security policy on March 11, which required that visitors receive 45
JD(ATL)–09–11
18
management approval before being granted access.26 As a threshold matter, I note
that Counsel for the Acting General Counsel and the Union have not contended that the
new security policy is unlawful on its face; they have solely asserted that its timing was
unlawful.
5
It is settled law that an otherwise valid no-solicitation, no-distribution rule violates
the Act, when it is promulgated to interfere with employees’ rights to self-organization,
rather than to maintain production and discipline. Cannondale Corp., 310 NLRB 845
(1993); Harry M. Stevens Services, 277 NLRB 276 (1985). In the instant case, the
School’s new security policy was imposed only 2 days after Nguyen’s unlawful eviction 10
and in tandem with an array of other ULPs. I find, as a result, that the new security
policy was unlawfully timed and designed to interfere with the faculty’s Section 7 rights.
7. Withdrawal of union authorization cards.
15
The School violated Section 8(a)(1), when Derycz-Kessler assisted the faculty
with the withdrawal of their union authorization cards on March 12 and 22.27 In
Mohawk Industries, the Board held:
[A]s a general rule, an employer may not solicit employees to revoke their 20
authorization cards. An employer may, however, advise employees that
they may revoke their authorization cards, so long as the employer neither
offers assistance in doing so or seeks to monitor whether employees do
so nor otherwise creates an atmosphere wherein employees would tend to
feel peril in refraining from revoking. Thus, an employer may not offer 25
assistance to employees in revoking authorization cards in the context of
other contemporaneous ULPs.
334 NLRB 1170, 1170–1171 (2001) (citations omitted).
30
Derycz-Kessler’s assisted the faculty with the revocation of their authorization
cards in tandem with the commission of several ULPs.28 Thus, such aid was unlawful.
B. Grace’s Suspension and Firing.
35
I find that the School violated Section 8(a)(1) and (3), when it suspended and
terminated Grace.29 The framework for analyzing alleged violations of Section 8(a)(3)
is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied

26 This allegation is listed in par. 13 of the complaint.
27 This allegation is listed in par. 14 of the complaint.
28 I also note that Derycz-Kessler simultaneously requested employees to report whether they had been
harassed by coworkers pressuring them to sign cards (see Jt. Exh. 1, Att. E-F; R. Exh. 17), which was also
unlawful. See Eastern Maine Medical Center, 277 NLRB 1374, 1375 (1985) (statement by an employer
urging employees to report being harassed or pressured into signing cards is overly broad and unlawful,
inasmuch as such statements encourage employees to identify pro-Union solicitors).
29 These allegations are listed in par. 6 of the complaint.
JD(ATL)–09–11
19
455 U.S. 989 (1982). Under Wright Line, the General Counsel must make a prima facie
showing that the employee’s protected conduct motivated the adverse action. The
General Counsel must show, either by direct or circumstantial evidence, that the
employee engaged in protected conduct, the employer knew or suspected that she
engaged in such conduct, and the employer harbored animus and took action because 5
of such animus.
Under the Wright Line framework, if the General Counsel makes a prima facie
showing, it meets its initial burden to persuade, by a preponderance of the evidence,
that protected activity was a motivating factor in the employer’s action. Once this is 10
established, the burden of persuasion shifts to the employer to show that it would have
taken the same adverse action, even in absence of the protected activity. NLRB v.
Transportation Corp., 462 U.S. 393, 399, 403 (1983); Manno Electric, 321 NLRB 278,
280, n. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To meet this burden,
“an employer cannot simply present a legitimate reason for its action but must persuade 15
by a preponderance of the evidence that the same action would have taken place even
in the absence of the protected conduct.” Serrano Painting, 332 NLRB 1363, 1366
(2000). If the employer’s proffered defenses are found to be a pretext, i.e., the reasons
given for its actions are either false or not, in fact, relied on, the employer fails by
definition to show that it would have taken the same action for those reasons, and there 20
is no need to perform the second part of the Wright Line analysis. On the other hand,
further analysis is required if the defense is one of “dual motivation,” that is, the
employer defends that, even if an invalid reason might have played some part in the
employer’s motivation, it would have taken the same action against the employee for
permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 25
(D.C. Cir. 2005).
1. Union activity.
Grace engaged in extensive union activity. She organized and held multiple 30
union meetings at the School. She researched unionizing, introduced the Union to the
faculty, advocated unionizing at faculty meetings, served on the Union’s organizing
committee, and secured signed authorization cards from the faculty. Her efforts
resulted in the Union filing a Petition with the Board on February 24, within a month of
her first meeting. 35
2. Knowledge.
The School was aware of Grace’s activity. Levy, a supervisor, set up and
observed a significant union meeting; Blackledge told Grace that she was the leader of 40
the “revolt” and threatened retaliation; and Milly told the animation faculty to not attend
union meetings. See State Plaza, Inc., 347 NLRB 755, 756-757 (2006)(supervisor’s
knowledge of union activities is imputed to the employer unless credited testimony
establishes the contrary); Dobbs International Services, 335 NLRB 972, 973 (2001); Dr.
Phillip Megdal, D.D.S., Inc., 267 NLRB 82, 82 (1983). In addition, Smith reclassified the 45
game faculty in order to induce Grace to stop her union activities. By facsimiles dated
JD(ATL)–09–11
20
February 25 and March 1, the Board advised Derycz-Kessler about the Union’s Petition.
Lastly, as stated, although Blackledge, Smith, Walker, and Derycz-Kessler each denied
knowing about the organizing drive or Grace’s union activities until after her firing, I do
not credit this testimony.
5
3. Union animus caused the adverse action.
The School harbored significant union animus, and suspended and later fired
Grace due to such animus. The union animus, which caused Grace’s suspension and
firing, included Blackledge’s retaliatory threat and accusation that she was turning the 10
game faculty against him, Smith offering the game faculty salaried positions in order to
repress the organizing drive, Milly’s order to the animation faculty to not attend union
meetings, unlawful surveillance, Nguyen’s expulsion, the unlawful implementation of the
new access policy, and Derycz-Kessler assisting faculty with the withdrawal of their
authorization cards. Animus and causation are further demonstrated by the close timing 15
between Grace’s discipline and her union activities. Specifically, she was: suspended
within 11 days of, and fired within 19 days of, Blackledge’s retaliatory threat; fired within
4 workdays of the filing of the Union’s Petition; and fired within 35 days of the start of
her organizing activity. See State Plaza, Inc., supra, 347 NLRB at 756 (adverse action
occurring shortly after an employee has engaged in protected activity raises an 20
inference of unlawful motive); La Gloria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71
Fed. Appx. 441 (5th Cir. 2003). Animus and causation are further demonstrated by the
School’s continuous reduction of Grace’s deadline for submitting BOG course materials,
i.e., the deadline inexplicably shrunk from 30 days on February 22 (GC Exh. 7), to 7
days on February 28 (R. Exh. 21), to being immediate on March 1 (Blackledge 25
testimony). The School’s unwillingness to afford Grace the promised rehabilitation
period demonstrates animus. Animus is also shown by the shifting reasons provided for
the termination. Even though her suspension and termination notices did not cite
attendance problems (see GC Exh. 7; Jt. Exh. 1, Att. C), the School repeatedly asserted
at the hearing that she was also fired for attendance issues.30 See Approved Electric 30
Corp., 356 NLRB No. 45 (2010) (nondiscriminatory reasons for discharge offered at the
hearing were found to be pretextual, where different from those set forth in the
discharge letters). Lastly, animus is strongly demonstrated by the fact that Grace’s
suspension evolved into a termination within less than two working days of returning
from her suspension, even though there were no intervening events during this period 35
that warranted termination. The only seminal event that occurred between the
suspension and discharge was the filing of the Union’s Petition. Moreover, by e-mail
dated February 28, even Smith, one of the School’s key decision makers, opined that
terminating Grace within days of her suspension was unfair. R. Exh. 22 (“It seems to
me that letting her go now without a chance to change the unacceptable behavior would 40
be somewhat unfair and put us in a compromising position.”).

30 Walker admitted that Grace was free to utilize earned sick leave. Moreover, her pay records demonstrate
that, prior to her termination, she had a balance of 24 hours of sick leave and 72 hours of annual leave. GC
Exh. 4. These balances do not support the School’s claim that Grace had attendance issues.
JD(ATL)–09–11
21
4. Prima facie case under Wright Line.
I find that Counsel for the Acting General Counsel has proven that: Grace
engaged in union activity; the School was aware of such activity; and union animus
triggered her suspension and firing. Accordingly, I find that he has met his initial burden
of persuasion under Wright Line. I will now consider the School’s asserted discharge5
reasons.
5. Pretextual discharge reasons.
I find that the School’s explanation for suspending and firing Grace is pretextual. 10
It cited the following events: her December 9, 2009 e-mail and follow up meeting; her
February 9 e-mail and follow up meeting; and her ongoing failure to submit course
materials and lesson plans.
Regarding Grace’s December 9, 2009 e-mail and follow-up meeting, I find that 15
these events do not support her discharge. First, regarding the e-mail itself, I do not
find that her usage of capitalizing, bolding, italicizing, underlining, limited sarcasm and
exclamation points warranted discipline. Her comments, while less than diplomatic, did
not constitute insubordination, and conveyed legitimate opinion about a candidate’s
qualifications. Her statements were made to a supervisor and fellow faculty in an 20
academic setting, where one would assume that ideas could be honestly debated
without the fear of discipline. I find it hard to believe that, absent Grace’s Union activity,
a School that regularly deals in controversial mediums, such as film, would be so
distraught by the choice of font in a rather insignificant e-mail. Second, as noted,
regarding the December 9, 2009 follow up meeting, I do not credit Blackledge’s claim 25
that Grace behaved like a raving lunatic, and found that their exchange was peaceful.
Third, if the School truly found her e-mail and follow up meeting as offensive as alleged,
it would have immediately disciplined or fired her, instead of waiting 3 months to dredge
up a dormant matter. I find, therefore, that the School’s reliance on Grace’s December
9, 2009 e-mail and conduct during the follow up meeting were pretextual discharge 30
reasons.
Concerning Grace’s February 9 e-mail and follow up meeting, and failure to
submit BOG materials, I find that these allegations are also pretextual discharge
reasons. First, contrary to the School’s assertion, Grace’s February 9 e-mail was not a 35
refusal to provide course materials. It solely appeared to be informational and regarded
a host of accreditation issues, of which only a small portion had any connection to
course materials. Second, as noted, I did not credit Blackledge’s testimony that Grace
engaged in a tirade at their follow up meeting. Third, the School failed to prove that
Grace’s BOG materials were deficient. It accepted her BOG materials in October 2009, 40
prior to her Union activity, and then rejected essentially the same materials in March,
following her Union activity. Moreover, in October 2009. Blackledge complimented her
materials (R. Exh. 30), Smith made only minor revisions (R. Exh. 9), and she was
permitted to teach the course with these materials. The School failed to present any
evidence that the October 2009 BOG course was unsuccessful, students were 45
dissatisfied, or the overall learning experience suffered. The School conspicuously
JD(ATL)–09–11
22
failed to provide lesson plans prepared by other game faculty members, which could
concretely demonstrate how Grace’s lesson plans were deficient. It solely provided a
lesson plan for a film course (i.e., a seemingly different discipline) as a model (R. Exh.
6), which appeared, upon review, to be sufficiently comparable to Grace’s BOG lesson
plan (R. Exhs. 8, 14, 30). Ironically, the School’s model lesson plan for the film course 5
noticeably lacked many of the same things that Blackledge found so intolerable with
Grace’s BOG materials, i.e., it also lacked quizzes, exams and power point
presentations. Lastly, the Schools witnesses spoke almost exclusively in generalities
regarding how Grace’s lesson plans were insufficient, and failed to offer greater
explanation beyond repeating that it lacked quizzes, exams, and power point 10
presentations.31 Moreover, the e-mail evidence also failed to specifically cite exactly
what was wrong with her lesson plans. Accordingly, I find that Grace’s February 9 e-
mail, follow up discussion, and submission of BOG course materials were pretextual
discharge reasons.
15
Based on my above analysis of the School’s discharge reasons, as well as my
consideration of the many factors that led me to find express and inferred animus, and
knowledge, I conclude that its proffered reasons were mere pretexts and that antiunion
animus motivated the School’s actions. Accordingly, no further analysis of its defenses
is necessary for, as the Board stated in Rood Trucking Co., 342 NLRB 895, 898 (2004):20
A finding of pretext defeats any attempt by the Respondent to show that it
would have discharged the discriminatees absent their union activities.
This is because where “the evidence establishes that the reasons given
for the Respondent’s actions are pretextual—that is, either false or not in 25
fact relied upon—the Respondent fails by definition to show that it would
have taken the same action for those reasons, absent the protected
conduct, and thus there is no need to perform the second part of the
Wright Line analysis.” Golden State Foods Corp., 340 NLRB 382, 385
(2003). . . .30
6. After-acquired evidence of misconduct.
The School contends that, even assuming arguendo, Grace was unlawfully
discharged, she is precluded from seeking reinstatement or full back pay on the basis of 35
after-acquired evidence of misconduct. It avers that she intentionally damaged her
laptop by removing the partition, operating system, software and files. I find that this
argument lacks merit.
In John Cuneo, Inc., 298 NLRB 856 (1990), the Board held that, if an employer 40
shows that an employee engaged in misconduct for which it would have discharged any
employee, reinstatement is not ordered and backpay is terminated on the date that it

31 I found this point somewhat deceptive, given that Blackledge never contended that Grace did not actually
administer exams and quizzes to her BOG students.
JD(ATL)–09–11
23
first learned of the misconduct.32 In C-Town, 281 NLRB 458, 458 (1986), the Board
noted:
[N]ot every impropriety deprives the offending employee of the protection
of the Act. The Board looks at the nature of the misconduct and denies 5
reinstatement in those flagrant cases “in which the misconduct is violent or
of such a character as to render the employees unfit for further service.”
[Citations omitted].
I find that the School has failed to meet its burden of proving that Grace caused 10
the laptop’s damage. Trujillo, who was a very credible witness, stated that he could not
estimate when the damage occurred, and failed to opine who caused it. He indicated
that his office did not receive the laptop until March 6 or 7, even though it was returned
to the School on March 3. In presenting its case, the School wholly failed to account for
this critical 3 or 4-day gap, by adducing a chain of custody, or otherwise explaining why 15
someone would have mysteriously held on to the laptop for such a long period before
bringing it to Trujillo. As a result, although I find that it is possible that Grace might have
caused the damage out of frustration over her circumstances, I also find that it is just as
likely that someone at the School could have caused the damage after she returned the
laptop in order to buttress her firing, or erase potentially exculpatory evidence.3320
Accordingly, given that the School retained the burden of proof on this issue, I find that it
failed to prove that Grace engaged in misconduct.34
7. Supervisory status.
25
Although the School asserted in its Answer that Grace was a supervisor within
the meaning of Section 2(11) of the Act and, as such, lacked the Act’s protection, I find
that this affirmative defense lacks merit. The School failed to adduce any evidence of
supervisory status at the hearing or even raise this issue in its post hearing brief.
Moreover, the record fails to reveal any evidence that Grace was supervisory. There is 30
no evidence that she held the authority to hire, fire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, discipline, responsibly direct, or resolve grievances,
or effectively recommend such actions, in her capacity as either a course director or
department chair.

32 See, e.g., First Transit, Inc., 350 NLRB 825, 828–830 (2007) (employee lied on employment application
about a 2nd degree robbery conviction); Hadco Aluminum & Metal Corp., 331 NLRB 518 (2000) (serious
threats of violence); Alto-Shoom, Inc., 307 NLRB 1466, 1467 (1992) (threats made to induce witnesses to
testify in a certain manner).
33 Moreover, although Blackledge denied possession of the laptop following Grace’s firing, I do not, for all of
the reasons previously stated, credit his testimony.
34 Even assuming arguendo that the School proved that Grace damaged the laptop, which it did not, I find that,
because the laptop was not physically damaged and remained operational once its software was reinstalled,
such misconduct would not warrant the denial of her reinstatement rights. Specifically, I find that the alleged
misconduct was not, “violent or of such a character as to render … [her] unfit for further service.” C-Town,
supra.
JD(ATL)–09–11
24
Conclusions of Law
1. The School is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.5
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The School violated Section 8(a)(1) of the Act by:10
a) Threatening employees with unspecified retaliation, if they engaged
in Union or other protected concerted activities;
b) Promising employees benefits, in order to discourage their support 15
of the Union;
c) Instructing employees not to attend meetings where others were
discussing terms and conditions of employment and the Union;
20
d) Creating an impression that union activities were under
surveillance;
e) Disparately and discriminatorily enforcing its security policy by
evicting union representatives, and requiring management’s approval for their visit.25
f) Promulgating, maintaining, or enforcing a new security policy in
order to discourage union activities; and
g) Helping employees withdraw their union authorization cards.30
4. The School violated Section 8(a)(1) and (3) of the Act by suspending, and
then terminating, Grace, because she engaged in union or other protected concerted
activities.
35
5. The unfair labor practices set forth above affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
40
Having found that the School has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The School, having unlawfully terminated its employee, Brandii Grace, must offer 45
her reinstatement and make her whole for any loss of earnings and other benefits.
JD(ATL)–09–11
25
Backpay shall be computed on a quarterly basis from the date of her discharge to the
date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010). The School shall also be ordered to 5
expunge from its records any reference to her unlawful termination, give her written
notice of such expunction and inform her that its unlawful conduct will not be used
against her as a basis for any future personnel-related actions. The School is also
ordered to distribute appropriate remedial notices electronically via email to its faculty,
in addition to the traditional, physical posting of paper notices on a bulletin board. 10
See J & R Flooring, Inc., 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:35
15
ORDER
The School, LA Film School, LLC, and its branch LA Recording School, LLC, its
officers, agents, successors, and assigns, shall:
20
1. Cease and desist from:
a) Threatening employees with unspecified retaliation, if they engage
in Union or other protected concerted activities;
25
b) Promising employees benefits in order to discourage their support
of the Union;
c) Instructing employees not to attend meetings where others were
discussing terms and conditions of employment and the Union;30
d) Creating an impression that their employees’ union activities are
under surveillance;
e) Disparately and discriminatorily enforcing its security policy by 35
evicting union representatives, and requiring management’s approval for their visit;
f) Promulgating, maintaining, or enforcing a new security policy in
order to discourage union activities;
40
g) Helping employees withdraw their union authorization cards;

35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–09–11
26
h) Terminating or suspending any employee for engaging in union
activities; and
i) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them by Section 7 of the 5
Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
10
a) Within 14 days from the date of the Board’s Order, offer Grace full
reinstatement to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
15
b) Make Grace 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.
c) Within 14 days from the date of the Board’s Order, remove from its 20
files any reference to Grace’s unlawful discharge, and within 3 days thereafter notify her
in writing that this has been done and that the discharge will not be used against her in
any way.
d) Preserve and, within 14 days of a request, or such additional time 25
as the Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.30
e) Within 14 days after service by the Region, physically post at its
Los Angeles, California facility, and electronically notify via email its faculty who were
employed by the School at its Los California, California facility at any time since
February 11, 2010, copies of the attached Notice marked “Appendix.”36 Copies of the 35
Notice, on forms provided by the Regional Director for Region 31, after being signed by
the School’s authorized representative, shall be physically posted by the School and
maintained for 60 consecutive days in conspicuous places including all places where
Notices to employees are customarily posted. Reasonable steps shall be taken by the
School to ensure that the Notices are not altered, defaced, or covered by any other 40
material. In the event that, during the pendency of these proceedings, the School has
gone out of business or closed the facility involved in these proceedings, the School

36 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(ATL)–09–11
27
shall duplicate and mail, at its own expense, a copy of the Notice to all current
employees and former employees employed by the School at any time since February
11, 2010.
f) Within 21 days after service by the Region, file with the Regional 5
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., April 6, 2011.
10
____________________________
Robert A. Ringler 15
Administrative Law Judge
JD(ATL)–09–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT threaten to take any adverse action against you for supporting the
California Federation of Teachers (the Union) or any other union.
WE WILL NOT discharge or discipline you for supporting the Union or any other union.
WE WILL NOT promise you benefits in order to discourage your support of the Union or
any other union.
WE WILL NOT tell you not to attend meetings where other employees are discussing
terms and conditions of employment, the Union or any other union.
WE WILL NOT make it appear to you that we are watching to see whether you are
involved in efforts or activities in support of the Union, or any other union.
WE WILL NOT disparately and discriminatorily enforce our security policy by evicting
Union representatives, and requiring management’s approval of their visit.
WE WILL NOT promulgate, maintain, or enforce a new security policy in order to
discourage your support of the Union or any other union.
WE WILL NOT ask you or order you to get back authorization cards that you signed in
support of the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
JD(ATL)–09–11
29
WE WILL, within 14 days from the date of this Order, offer Brandii Grace full
reinstatement to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
WE WILL make Brandii Grace whole for any loss of earnings and other benefits
resulting from her discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any
reference to the unlawful discharge of Brandii Grace, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done and that the discharge will not be
used against her in any way.
LA FILM SCHOOL, LLC AND ITS
BRANCH LA RECORDING SCHOOL, LLC
Dated: ____________ By: ___________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235-7424.