Leisure Center, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1215 (N.L.R.B. 1998)

GRAND RIVER VILLAGE 1215
Leisure Centers, Incorporated d/b/a Grand River
Village and Local 243, International Brother-
hood of Teamsters, AFL–CIO. Cases 7–CA–
38229 and 7–RC–20797
September 30, 1998
DECISION, ORDER, AND DIRECTION
BY MEMBERS FOX, HURTGEN, AND BRAME
On October 24, 1997, Administrative Law Judge
Robert T. Wallace issued the attached decision. The
Respondent filed exceptions and a supporting 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 record1 in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings,2 findings,3 and conclusions4 and
to adopt the recommended Order as modified.5

1 Four determinative challenged ballots were cast at the March 5,
1996 election. The parties have stipulated that two of the challenged
employees were ineligible to vote. Challenges to the ballots of em-
ployees Bruchnak and West remain to be resolved.
2 The Respondent moved to strike the testimony of former Supervi-
sor Roth on the ground that the General Counsel had not consulted with
the Respondent’s counsel before contacting her. The judge denied the
motion and the Respondent renews it here. We affirm the judge’s
ruling. It is well established that former supervisors are not agents of
the employer and that statements they make after the employment
relationship has ended are not binding on the employer as admissions.
See Rule 801(d)(2)(D), Fed.R.Evid.; Sec. 10056.6, NLRB General
Counsel’s Casehandling Manual. Roth was no longer employed by the
Respondent when the General Counsel contacted her during the inves-
tigation. Accordingly, the General Counsel had no duty to notify the
Respondent’s counsel. Southern Maryland Hospital Center, 288
NLRB 481 fn. 1 (1988). See also Electronic Data Systems Corp., 305
NLRB 219, 239 (1991).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 In overruling the challenge to employee West’s vote, we do not
rely on letters from the Respondent’s former counsel, dated March 25
and April 3, 1996, notifying the Regional Director that certain employ-
ees on the eligibility list were no longer employed, or on the judge’s
characterization of some of the Respondent’s internal documents as
“questionable.” On the latter point, even taking the documents at face
value, we find that they do not establish West’s ineligibility to vote.
In assessing whether an individual is a guard within the meaning of
Sec. 9(b)(3) of the Act, Member Brame would apply the test set forth
by the Eighth Circuit in McDonnell Aircraft Co. v. NLRB, 827 F.2d
324, 326 (8th Cir. 1987), which turns on the existence of an “obligation
to protect the employer’s property combined with the responsibility to
enforce rules against fellow employees.” Justin West is a custodian
who, as a small part of his job, checks to see whether doors are locked.
There is no evidence that he has any “responsibility to enforce rules
against fellow employees.” On this basis, Member Brame agrees with
his colleagues that West is not a guard for statutory purposes, and joins
in overruling the challenge to his ballot.
5 The judge inadvertently omitted from his Order and notice a pro-
vision for removing reference to the unlawful discharge from the Re-
spondent’s records. We accordingly shall modify the Order and substi-
tute a new notice.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Leisure
Centers, Incorporated d/b/a Grand River Village, Farm-
ington Hills, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
“ (c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter notify Todd Bruch-
nak in writing that this has been done and that the dis-
charge will not be used against him in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
DIRECTION
It is directed in Case 7–RC–20797 that the Regional
Director for Region 7 shall, within 14 days from the date
of this Decision, Order, and Direction, open and count
the ballots of Todd Bruchnak and Justin West. The Re-
gional Director shall then serve on the parties a revised
tally of ballots and issue the appropriate certification.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discriminate against or discharge Todd
Bruchnak or any other individual because they engaged
in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Todd Bruchnak his former position, or, if that posi-
tion is not available, a substantially equivalent position,
without prejudice to seniority or any other rights or privi-
leges to which he may be entitled.
326 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
WE WILL make Todd Bruchnak whole for any and all
loss incurred as a result of our unlawful discrimination
against him, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful discharge, and WE WILL, within 3 days thereaf-
ter, notify Todd Bruchnak in writing that this has been
done and that the discharge will not be used against him
in any way.

LEISURE CENTERS, INCORPORATED D/B/A
GRAND RIVER VILLAGE

Mark Rubin, Esq. and Patricia Fedowa, Esq., for the General
Counsel.
Robert Seigel, Esq., for the Respondent.
Lee Ann Anderson, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This con-
solidated case was tried in Detroit, Michigan, on November 19
and 20, 1996. The complaint in Case 7–CA–38229, as
amended at the hearing, alleges that the Respondent violated
Section 8(a)(1) of the Act by interrogating employees about
union activities and Section 8(a)(3) and (1) of the Act by dis-
charging employee Todd Bruchnak because of his union activi-
ties. The Respondent submitted answers denying the essential
allegations in the complaint. The representation case, Case 7–
RC–20797 involves a Board-conducted election which the
Charging Party Union lost 13–12, with 4 determinative chal-
lenged ballots. The parties stipulated that two of the challenges
involve employees who, it is now agreed, were not eligible to
vote in the election. The other two challenges remain to be
resolved. The Respondent alleges that Bruchnak was not eligi-
ble to vote because he was properly discharged, and, in any
event, did not have a community of interest with the other em-
ployees in the election. It also alleges that another employee,
Justin West, was ineligible because he was excluded from the
unit by the terms of the election agreement of the parties. The
Charging Party Union urges that the ballots of both employees
should be counted. After the conclusion of the trial, the parties
filed briefs, which I have read and considered.
Based on the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Farmington Hills, Michigan, is engaged in the op-
eration and management of an assisted living facility. In a
representative 1-year period, the Respondent derived gross
revenue in excess of $500,000; it also purchased supplies val-
ued in excess of $10,000 from suppliers outside the State of
Michigan and caused them to be shipped directly to its facility
in Farmington Hills. Accordingly, I find as the Respondent
concedes, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Charging Party Union (the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent’s Farmington Hills facility is a retirement
community featuring independent living with services such as
meals, housekeeping, and maintenance for approximately 170
residents. The catered living department, with 36 residents, 30
provides additional services such as assistance from a resident’s
apartment to the dining room and medication reminders. The
facility is one of 33 owned by Respondent nationwide. The
Farmington Hills facility is not a licensed nursing home, al-
though it is staffed 24 hours per day.
A. Bruchnak’s Discharge
Todd Bruchnak worked as a dietary aide in the catered living
department at the Farmington Hills facility, under the immedi-
ate supervision of Mary Roth. His job included working in the
kitchen, answering emergency calls, passing out, but not
administering, medication, watching monitors, and making
beds. In answering emergency calls, he was required to respond
to signals from residents who pulled emergency cords in their
apartments. He was instructed to enter apartments, see if resi-
dents were coherent, and determine whether to call 911. He
was not to provide medical assistance. According to Roth,
Bruchnak was a good employee with a quality rating of “one
hundred percent.”
Bruchnak was a high school student, who was working under
a co-op arrangement whereby he was evaluated for and re-
ceived course credit for his work. He began working for the
Respondent in September 1994, but he also worked beyond the
school term, including the summer of 1995. He regularly
worked about 35 hours per week and was, of course, paid for
his work. He worked side by side with other regular full- and
part-time employees and the substance of his work and working
conditions was the same as that of other employees.
In January 1996, Bruchnak became the leader of an effort to
bring about union representation. He talked to his fellow em-
ployees at the facility before and after work and during breaks.
He also contacted a union representative, from whom he ob-
tained union authorization cards, which he then distributed to
employees. He signed a card on February 4, 1996, and, during
the next few days, circulated cards, asked his fellow employees
to sign them, and collected the signed cards. This was done
openly at the facility on nonwork time. The Respondent’s ex-
ecutive director, Marguerite Casey, testified that she knew of
Bruchnak’s union activities in early February.
On February 9, 1996, Bruchnak was terminated. Supervisor
Roth, who was no longer employed by the Respondent at the
time of the trial, testified that she was called into Casey’s office
on the morning of February 9 and told that Bruchnak had to be
fired. Roth said she had “no reason” to do so. Casey then told
Roth that the “higher ups in the company said that we need to
fire him because he was involved with the union deal that was
going on.” Casey mentioned no other business-related reason
for the discharge. Casey, who also was no longer employed by
the Respondent at the time of the trial, controverted the essen-
tials of Roth’s testimony, although she conceded that she and
Roth met to discuss the discharge, that she was directed by
higher management to fire Bruchnak, and that Roth said she
GRAND RIVER VILLAGE 1217
had no reason to discharge him. I credit Roth’s account for
reasons I will discuss in greater detail later in this decision.1
Shortly after the meeting between Casey and Roth, Casey
did indeed carry out the discharge, after which she had Bruch-
nak sign a statement barring him from the Respondent’s prem-
ises after his termination. Casey told Bruchnak that he was
being discharged because of an incident report he completed
the night before, which showed that, after answering an emer-
gency call where he found a resident on the floor in her apart-
ment complaining about chest pains and dizziness, he took her
pulse and called 911. Casey expressed the view that Bruchnak
was taking too much responsibility during the emergency call
because he had taken the resident’s pulse.
The above is based on a composite account of the discharge
interview. To the extent that there are differences in the testi-
mony of Casey and Bruchnak, I credit Bruchnak over Casey for
reasons I shall discuss later in this decision.
Casey, as the executive director of the Farmington Hills fa-
cility, had full authority to fire employees without the interven-
tion of her superiors, and did so on other occasions. However,
on the morning of February 9, before she spoke with Ross or
Bruchnak, she called Regional Director Richard Howells, who
was stationed in Dayton, Ohio. He in turn consulted President
John Luciani, who was apparently located in Boca Raton, Flor-
ida. After talking with Luciani, Howells called Casey back and
directed her to terminate Bruchnak.
On March 1, 1996, the Union filed an election petition, and,
pursuant to a Stipulated Election Agreement, an election was
conducted among the Respondent’s employees. Prior to the
election, scheduled for April 5, 1996, Casey delivered several
speeches to assembled employees asking them to vote against
the Union. In two of them, she pointedly referred to Bruchnak.
The written draft of her first speech, delivered in mid-March,
states as follows:

Some of you have asked “what’s going to happen to
ToddBruchnak?” We fired Todd, so he’s gone and we
have NO–INTENTION of hiring him back. The union
filed a charge with the NLRB complaining about the fir-
ing, but that charge won’t be decided upon for a long time
. . . perhaps years. This union election will be long over
before that case is tried. The union has lawyers and we
have lawyers too. Our lawyers will fight that case and
we’ll let you know when a decision is reached. But for
now, HE’S GONE!
B. The Respondent’s Explanation for the Discharge
The Respondent’s explanation for Bruchnak’s discharge
rests on the testimony of Casey and Howells. Their explanation
is not plausible. Casey testified that Bruchnak was fired for
“inappropriate performance of his job, for doing things above
and beyond what we were allowed to do with our residents.”
She also testified that Howells and Luciani made the final deci-

1 In its brief, the Respondent renewed a motion, which I denied at
trial, that Roth’s testimony be stricken because the General Counssel
contacted Roth without consulting the Respondent’s counsel. Although
the Board’s Casehandling Manual requires counsel for the General
Counsel to first contact counsel for respondents before talking with
their supervisors, Roth was clearly not employed by the Respondent
when she was contacted by the General Counsel. There was thus no
violation of the manual provisions and there is no reason to strike
Roth’s testimony. I therefore reaffirm my ruling denying the motion to
strike.
sion and that Luciani did so at Howells’ recommendation.
Howells testified that Casey called him, after reading the Feb-
ruary 8 incident report which revealed that Bruchnak had taken
a resident’s pulse. According to Howells, Casey, who had dis-
cussed similar incidents with him in the past, said that he was
involved in another one, “performing procedures that were
more than standby.” (Tr. at 137.)
Although both Casey and Howells suggested that the Febru-
ary 8 incident was one of several that motivated them, it is clear
that they focused on the February 8 incident as the precipitating
factor in the discharge. The alleged offense itself was minor,
almost trivial. According to Casey, she was concerned that
Bruchnak, in answering the emergency call, checking on the
resident and calling 911, had taken the resident’s pulse. No one
criticized Bruchnak at the time for what he did, and there is no
evidence that anyone suffered or was prejudiced by his taking
the resident’s pulse. Bruchnak’s supervisor, Roth, acknowl-
edged that employees are generally supposed to avoid medical
intervention or even touching stricken residents; they are sup-
posed to simply call 911. Roth, however, said that it was only
natural for aides, to touch a stricken patient, for example, to
“grab a person’s hand” or to take a pulse. She herself had done
so. Bruchnak was instructed in accordance with Roth’s views.
Thus, it seems implausible to me that the February 8 incident,
based on Bruchnak’s own written report, would be the precipi-
tating event for a summary discharge of a high school co-op
student—indeed one that needed the final decision of the presi-
dent of a company that runs 33 nursing homes throughout the
country. Indeed, the discharge came without any prior written
warnings that Bruchnak had violated the so-called no-touching
rule when answering emergency calls.
The lack of previous written warnings for the offense of
touching residents during an emergency call is particularly
telling because there is no apparent written rule on the subject
against which to determine whether warnings are justified or
uniformly issued or applied. Moreover, the Respondent did
have a policy of issuing written warnings to document disci-
pline. Indeed, in August 1995, Bruchnak himself had received
two such warnings, although neither involved touching resi-
dents when answering emergency calls. The August 1995
warnings themselves are not clear—indeed, they are vague and
basically unsupported. There was no testimony on the underly-
ing incidents that prompted them. For example, the August 8,
1995 warning mentions “taking on too much responsibility,”
itself an ambiguous standard, along with “spending too much
time” with residents and their families and touching a hallway
camera. There is no further explanation of the alleged offense,
but Bruchnak’s written response to the warning questions the
factual allegations in it and states that someone else made a call
for which he apparently was criticized. The August 21, 1995
warning deals only with Bruchnak’s alleged angry reaction to
some unspecified decisions, going into resident apartments to
visit, and picking up paychecks for others. Here too there was
no evidence of the underlying incidents. Thus, not only do the
August 1995 warnings fail to deal with the no-touching rule,
but nothing in the warnings or the evidentiary record provides a
basis for determining what, if anything, Bruchnak had done
wrong.
Although both Casey and Howells referred to a “taking on
too much responsibility” offense on the part of Bruchnak, that
term—ambiguous as it is—was not used to refer to Bruchnak’s
alleged violation of the no-touching rule during emergencies
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218
until December 1995 or January 1996. At that point, Casey
testified that she did tell Roth to tell Bruchnak to “back off”
and stop “taking too much responsibility” during emergency
calls, although there is some conflict between Roth and Casey
as to exactly when or how often this took place. Roth acknowl-
edged that she spoke to Bruchnak about “performing hands on
procedures,” but “no more than I spoke to any of my other em-
ployees.” (Tr. at 30.)
Casey did, however, read three incident reports submitted by
Bruchnak in late January 1996, which she viewed as showing
violations of the no-touching rule during emergencies. The
reports themselves are sketchy. In one, dated January 21, 1996,
Bruchnak stated that he called “poison control” after someone
told him that the resident had overdosed on medication, “they
had Louise take her blood sugar” and Bruchnak called EMS,
apparently an emergency service. There is no clear evidence of
Bruchnak touching a resident. In a second, that dated January
25, the report said another employee lifted the stricken resident,
thus violating the no-touching rule, and Bruchnak “checked his
feeling in arms and legs, none.” He also indicated that he
called 911. The third, undated, incident report also states that
another employee lifted the stricken resident from the floor.
The report states that Bruchnak called EMS and someone (the
report is not clear on this) took her blood pressure. No further
evidence of these incidents appears in the record, and, of
course, Casey was privy only to Bruchnak’s written incident
reports, which, she testified, she reads routinely. Significantly,
no one—not Roth nor any other supervisor—criticized Bruch-
nak for his conduct on these occasions. Nor do the written
incident reports demonstrate obvious improprieties. Even if
they did, it is clear that other employees were involved in
touching residents or intervening; but there is no evidence of
any criticism of such other employees or even of any concern
over, or investigations of, the alleged improprieties.
More importantly, however, after reading each of the three
incident reports discussed above, Casey saw no need to talk
directly to Bruchnak, issue him written warnings, or make it
clear that he was subject to discharge for doing what he was
doing. Indeed, as shown above, both by the testimony of Roth
and Bruchnak, as well as the Respondent’s failure to warn or
criticize other employees such as those involved in the January
1996 incident reports, the no-touching rule during emergencies
was not uniformly enforced.
As for Howells, he testified that he was aware of Bruchnak’s
alleged problem with “performing medical procedures” during
emergency calls as early as August 1995. (Tr. at 134–135.) He
allegedly learned of this problem during his periodic visits to
the facility and talking with Casey. The difficulty with this
testimony is that, as indicated above, the August 1995 written
warnings do not document violations of the Respondent’s no-
touching rule during emergency calls. When testifying about
her previous conversations with Howells about Bruchnak, Ca-
sey herself was not specific about what was said or what
Bruchnak’s problem was. She referred to these conversations
in an almost off-hand manner stating, “I had previously spoken
with [Howells] on numerous occasions . . . About Todd’s
performance and these things going on.” (Tr. at 182–183.)
Finally, I note that Casey and Howells testified about a con-
cern that medical-type intervention by employees might expose
the Respondent to some kind of liability. That is a superficially
appealing position. But, like most of their testimony, it was
conclusory, unspecific, and unsupported by probative
documentary or other evidence. More importantly, it did not tie
mentary or other evidence. More importantly, it did not tie into
Bruchnak’s alleged offense. It failed convincingly to demon-
strate why it was necessary to fire Bruchnak for taking a resi-
dent’s pulse during an emergency call, a fact that he himself
reported.
In these circumstances, I find that the explanation offered by
Casey and Howells for the summary discharge of Bruchnak is
unpersuasive and implausible.
C. Credibility
As indicated above, the testimony of Casey and Howells as
to their explanation for Bruchnak’s discharge does not with-
stand scrutiny and reflects adversely on their credibility. Both
Casey and Howells seemed to me to be stretching the so-called
no-touching rule beyond its reasonable limits and were intent
on stretching it further to apply to Bruchnak without adequate
evidentiary support. Their testimony was vague and conclusory
in describing Bruchnak’s alleged derelictions. Moreover, I
thought their demeanor was not that of straightforward, candid
witnesses.
Other aspects of their testimony also show them to be unreli-
able witnesses. I find it implausible, as they both testified, that
Casey did not tell Howells that a union organizing campaign
had been initiated at the facility; Casey, of course, knew, and
she also knew that Bruchnak was involved. Since they both
testified that they talked on numerous occasions about Bruch-
nak’s job performance and Casey had numerous contacts with
Howells on other matters in the normal course of their relation-
ship, I find it hard to believe that they did not discuss such a
momentous happening in the life of the Farmington Hills facil-
ity. Indeed, in view of the strident antiunion speeches delivered
by Casey to employees during the subsequent election cam-
paign, it is clear that Casey—and indeed, the Respondent—felt
strongly about keeping the Union out of its facility. In these
circumstances, one would naturally expect Casey to tell How-
ells at least that a union campaign was underway.
I also find inconceivable that the Respondent would have re-
quired the intervention of its corporate president to direct the
discharge of a high school student and co-op employee for
taking the pulse of a stricken resident during an emergency call.
On the other hand, I find it quite plausible that Casey would
have shared with Roth, whom she viewed as part of manage-
ment, the real reason for the discharge, Bruchnak’s union ac-
tivities.
Roth and Bruchnak impressed me as candid witnesses who
exhibited truthful demeanors. Both conceded they literally
violated the so-called no-touching rule, which, of course, was
nowhere written or clearly defined. I believe them when they
say others likewise violated the rule without the Respondent’s
intervention because the Respondent did nothing to the two
aides who touched residents as described in the January 1996
incident reports written by Bruchnak and used by the Respon-
dent in a pretextual effort to support the discharge. Roth had
been terminated by the Respondent when she testified, as had
Casey. But Roth seemed to me to bear no grudge against the
Respondent. She cooperated with the General Counsel, an-
swered a government subpoena from Florida, where she was
living, and traveled to the site of the hearing in Detroit. She
testified truthfully. Bruchnak himself candidly admitted to an
angry outburst at his summary discharge and candidly wrote
incident reports later used by the Respondent against him, de-
GRAND RIVER VILLAGE 1219
tailing his dedication in dealing with elderly residents, who
were, of course, the Respondent’s consumers.
One other credibility determination must be resolved. Tracy
Reese, an employee of the Respondent until she quit in March
1996, testified on behalf of the General Counsel to two signifi-
cant matters in this case. First, she testified that, sometime in
March 1996, she was called into Casey’s office, and, in the
presence of another employee and Roth, was asked whether she
and the other employee knew about the Union coming in. She
was also told that union dues would cut into her paycheck. It is
undisputed that Casey called the employees into her office to
read them a prepared antiunion speech she delivered to assem-
bled employees at an earlier time when those employees were
absent. The above testimony is relied on by the General Coun-
sel to support the separate 8(a)(1) allegation.
Reese also testified that, earlier on the day when the interro-
gation took place, she overheard a conversation between Casey
and a woman named Sue, who was identified as the Respon-
dent’s activities director, in which Casey asked Sue if Sue knew
why the Respondent had been fired. According to Reese, Sue
said, “because of the union he got in,” and Casey replied, “Yes,
exactly.”
Casey denied making the statements attributed to her by
Reese and none of the other participants in the incidents related
above testified about them, including Roth who testified about
other matters in this proceeding.
As discussed earlier, I did not find Casey to be a reliable
witness, particularly on the Bruchnak discharge. But Reese
also did not impress me as a reliable witness. Her testimony
was not corroborated and she exhibited what to me seemed a
palpable hostility toward the Respondent that reflected on her
credibility. I find it also significant that, in her opening testi-
mony, she did not mention that Casey was reading from a pre-
pared text for at least part of the time, a fact she later conceded
when called on rebuttal. Accordingly, I cannot credit Reese’s
testimony on either of the matters discussed above.
D. Analysis and Conclusions
The evidence overwhelmingly demonstrates that the Re-
spondent fired Bruchnak for his union activities. The discharge
came within days of his having spearheaded an effort to bring
the Union into the facility, a fact known by the Respondent.
Executive Director Casey admitted to Roth, Bruchnak’s super-
visor, that he was being discharged for his union activities,
even though Roth stated that she had no reason to discharge
him. Indeed, Roth had high regard for Bruchnak. Moreover, as
discussed above, the Respondent’s explanation for the dis-
charge did not withstand scrutiny and was pretextual. The
summary dismissal came at the direction of the Respondent’s
corporate president, without prior written warnings on the spe-
cific type of offense charged or suggestions of impending dis-
charge. Finally, the Respondent’s specifically focused animus
was shown by its written banishment of Bruchnak from its
premises immediately after his discharge. This was not done,
for example, when Casey was terminated. Such specifically
focused animus was also demonstrated when the Respondent
used Bruchnak’s discharge in its antiunion election speeches. It
did not tell employees that Bruchnak was fired for cause, the
legal position it now advances; instead, it was content to leave
the impression among employees that his discharge was indeed
union related. In these circumstances, I find that the Respon-
dent fired Bruchnak because of his union activities in violation
of Section 8(a)(3) and (1) of the Act. See Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 482 U.S. 393 (1983).2
Based on my having discredited the testimony of Tracy
Reese, I shall dismiss the 8(a)(1) allegation that the Respondent
unlawfully interrogated employees.
III. THE REPRESENTATION CASE
A. Bruchnak is Eligible to Vote
As I have found, Bruchnak was unlawfully discharged prior
to the election. Had he not been unlawfully discharged, he
would have been employed on the date of the election. He thus
did not lose his voter eligibility because of his unlawful dis-
charge.
The Respondent urges another ground for not counting his
vote. It alleges that as a co-op employee and high school stu-
dent he did not have a community of interest with the rest of the
employees in the election unit. I disagree.3
As I have mentioned above, Bruchnak worked 35 hours a
week, performed essentially the same duties as other part-time
and full-time employees, and worked side by side with them
under the same rules and working conditions. Moreover, he
continued to work for the Respondent beyond the school year
and during the summer, with no interruption. Although Bruch-
nak received school credits for his employment, his employ-
ment was regular and substantial and he shared a community of
interest with other employees in the election unit. Bruchnak is
thus included in the unit and entitled to have his vote counted.
See W & W Tool & Die Mfg. Co., 225 NLRB 1000, 1001 fn.
11 (1976); and Parkwood IGA Foodliner, 210 NLRB 349
(1974).
The Respondent cites to the co-op agreement between it and
Bruchnak’s school to allege that the Respondent surrendered
some aspects of control over Bruchnak. Thus, it states that the
Respondent is to notify the school’s co-op coordinator of im-
proper performance of duties for the coordinator to take “cor-
rective steps” with the student, and that, if Bruchnak dropped
out of school, the Respondent would be expected to dismiss
him. The latter, of course, never happened, but, in any event,
the Respondent employed Bruchnak beyond the school year.
The former is a specious argument. There is no evidence that
the Respondent ever notified Bruchnak’s school of his alleged
improper performance, and its failure to do so lends credence to
my finding that he was discriminatorily discharged. Indeed, the
Respondent itself apparently failed to abide by its pledge in the
agreement to “first notify” the coordinator before terminating
Bruchnak. Nothing in the one-page form co-op agreement
warrants a finding that Bruchnak did not have a community of
interest with other employees or that the Respondent was
significantly restricted in its handling of his employment.

2 It is well settled that if, as here, a respondent’s reason for its action
is pretextual, that fact supports the General Counsel’s showing of dis-
crimination and defeats any attempt by a respondent to show it would
have acted the same way absent discrimination. See Greyhound Lines
Inc., 319 NLRB 554, 575 (1995), and cases there cited.
3 The Charging Party alleges that the Respondent waived its reliance
on this argument by not raising it in the pleadings. I will assume ar-
guendo that the Respondent did not waive this argument.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
B. Justin West is Eligible to Vote
The Respondent alleges that employee Justin West’s vote
should not be counted on alternative grounds, first, because he
was terminated before the date of the election, and, second,
because he was a security guard within the meaning of Section
9(b)(3) of the Act.4
I find that West was an employee as of the date of the elec-
tion, April 5, 1996, and that he was not a guard within the
meaning of the Act and applicable authorities.
West was hired for a part-time weekend housekeeper-
security position in January 1996. He worked on Saturday and
Sunday nights from 11 p.m. to 7 a.m. He reported to the main-
tenance office to begin his shift. West’s job duties included
garbage collection, vacuuming, power washing the kitchen
floor, snow removal, assisting employees with emergencies,
and maintenance. He also did some hallway patrolling, a very
small part of his job
Beyond his limited patrolling duties, which essentially
amounted to checking whether doors were locked, West per-
formed no security-type duties. He never enforced security
rules or monitored the ingress or egress of people, inspected
items carried into or out of the facility, or filled out incident
reports. He did not carry a weapon, although he did push a
cleaning cart for most of his workday.
In contrast, the Respondent employed a night monitor who
was on duty at all times West was on duty. She exclusively
performed security-type duties. She sat at a central desk that
included the facility’s electronic surveillance equipment, which
she monitored. West was never trained on this equipment; nor
did he operate such equipment. Indeed, the Respondent appar-
ently did not even view the night monitor as a guard because
her name appeared on the voter eligibility list supplied to the
Board and she voted in the April 5, 1996 election.
West was primarily a housekeeping or maintenance em-
ployee, with incidental patrolling duties, which did not involve
security-type responsibilities. He did not enforce rules to pro-
tect the Respondent's property as required of a guard within the
meaning of Section 9(b)(3) of the Act. He was not therefore a
guard within the meaning of the Act or ineligible to vote be-
cause he was a guard. See Bear River Lumber Co., 150 NLRB
1295, 1297 (1965); and TAC/Temps, 314 NLRB 1142, 1143–
1144 (1994).
As to the second issue involving West's eligibility to vote, it
is clear that an employee is eligible to vote in a Board election
if the employee is employed on the established eligibility date,
which West clearly was, and on the date of the election. See
Plymouth Towing Co.,178 NLRB 651 (1969). It is also well
settled that, in order for a termination to be effective, the em-
ployer's intent to terminate must be communicated to the em-
ployee by some affirmative, objectively established, action. See
Speakman Electric Co., 307 NLRB 1441 (1992); Miami Rivet
Co., 147 NLRB 470, 483–484 (1964). See also Westchester
Plastics v. NLRB, 401 F.2d 903, 908 (6th Cir. 1968), and Cal-
vert Acquisition Co. v. NLRB, 83 F.3d 598, 607 (3d Cir. 1996),
a case cited by the Respondent (Br. at 44), where the court

4 Sec. 9(b)(3) of the Act makes a unit inappropriate if it includes
guards with other employees. It also defines a guard as “any individual
employed as a guard to enforce against employees and other persons
rules to protect property of the employer or to protect the safety of
persons on the employer’s premises.”
stated that an employer may not “merely point to its own sub-
jective intention” to establish a termination.
The Respondent alleges that it intended to terminate West
before April 5. The evidence, however, shows that the Re-
spondent never communicated that alleged intended decision to
West prior to or on the April 5 election date. West last worked
the weekend before April 5 and appeared twice at the Respon-
dent's facility in an attempt to vote. The second time he voted a
challenged ballot because his name was not on the eligibility
list provided to the Board by the Respondent. At no time, even
on election day, did the Respondent approach him in person to
tell him he was or would be terminated. Nor did it send a letter,
fax, or telegram notifying him of such decision prior to April 5.
He found out indirectly on April 7, 1996, 2 days after the elec-
tion, when he was denied access to the facility when trying to
report for work.
Ron Mutter, the Respondent's maintenance and security su-
pervisor, testified that he hired West's replacement on March
22, while West was still working, but did not put him on the
payroll until April 4 because he was awaiting approval from
Casey. He also testified that he wanted to terminate West for
excessive absenteeism and had prepared some internal docu-
ments to effectuate the termination. That testimony is unper-
suasive, given that Mutter did not notify West that he was or
was going to be terminated or replaced or that he even had an
absenteeism problem. Mutter did reach West's mother by tele-
phone on April 6, the day after the election. But, even then, he
did not tell her that her son was discharged. He admitted that
he simply told her to tell Justin not to come to work that night.5
None of the circumstances set forth above constitute objec-
tive evidence of the requisite notification to West himself prior
to the election. Mutter did testify about his efforts to contact
West, but this testimony was unsupported by the telephone
records that were admitted in evidence. Moreover, Mutter’s
other testimony was unreliable. In one instance, as I have noted
above, his testimony was internally inconsistent. Other testi-
mony was implausible and indicative of a frantic, suspicious
effort to remove West from the payroll and put someone else on
in his stead, immediately prior to the election. That testimony
was not rescued by questionable internal documents supposedly
supporting Mutter’s position because West was never told ei-
ther about his impending discharge or of the excessive absen-
teeism that allegedly led to it. Indeed, my assessment of Mut-
ter’s testimony and his uninspiring demeanor convinces me that
he was a wholly unreliable witness. He seemed to be tailoring
his testimony to fit the Respondent’s litigation theory.
Indeed, Mutter’s testimony and the Respondent’s present po-
sition on this issue conflicts sharply with, and, indeed, is under-
cut by, the actions of the Respondent’s then attorney and agent,
Mark G. Flaherty, immediately prior to the April 5, 1996 elec-
tion. .Flaherty sent two letters to the Regional Director explic-
itly notifying him of named employees who left the Respon-
dent’s employ in the days before the election and asking that
5 I do not credit Mutter’s testimony that he told Justin’s mother to
have Justin call him on this occasion. When he first testified about the
conversation, he testified that he told her only that Justin should not
come to work that night. That is what Delphine West, Justin’s mother,
testified to; and Justin acted on that message, thus corroborating his
mother. A few minutes after testifying that he told Delphine West only
to tell her son not to come in that night, Mutter contradicted himself
and testified that he also told her to tell her son to call him. This is a
prime example of Mutter’s unreliability as a witness.
GRAND RIVER VILLAGE 1221
these individuals be stricken from the eligibility rolls. The
letters, dated March 25 and April 3, 1996, were also sent via
telefax. West’s name was not listed in those letters. Nor was
his alleged termination mentioned in Flaherty’s April 10 letter
to the Board agent in charge of the election, wherein Flaherty
submitted, on behalf of the Respondent, that West’s challenge
should be sustained because he was a security guard. That was
the only basis for the Respondent’s position that West was
ineligible to vote.6
In sum, I find that the evidence demonstrated that West was
employed on April 5, 1996. He was thus an eligible voter and
his vote should be counted.
CONCLUSIONS OF LAW
1. By discriminatorily discharging employee Todd Bruchnak
because of his union activities, the Respondent violated Section
8(a)(3) and (1 ) of the Act.
2. The above violation is an unfair labor practice affecting
commerce within the meaning of the Act.
3. The Respondent has not otherwise violated the Act as al-
leged in the complaint.
4. Todd Bruchnak and Justin West are eligible to vote in the
election of April 5, 1996, and their votes should be counted.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
I shall recommend that the Respondent immediately offer
employment to Todd Bruchnak in his former position or, if that
position is not available, a substantially equivalent position.
Further, the Respondent shall be directed to make him whole
for any and all losses of earnings and other rights, benefits, and
privileges of employment he may have suffered by reason of
the Respondent’s discrimination against him, with interest.
Backpay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as provided
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Leisure Centers, Incorporated d/b/a Grand
River Village, Farmington Hills, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against or discharging Todd Bruchnak or
any other individual because they engaged in union activity.

6 The Respondent contends that West knew he was terminated be-
cause, according to the testimony of the night monitor, Frances Reese,
he told her, 1 or 2 weeks before the election, that he knew he was going
to be replaced because he saw a newspaper ad for his job. Assuming
that this conversation took place, it does not show that the Respondent
actually terminated West or that it notified him of such action. Indeed,
he was still employed at this time and the Respondent could well have
approached him and told him he was terminated. It never did so prior
to the election. Reese’s testimony does not aid the Respondent’s cause.
7 In the event no exceptions are filed as provided by Sec. 102.46 of
the Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
(b) 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) Within 14 days from the date of this Order, offer Todd
Bruchnak his former position, or, if that position is not avail-
able, a substantially equivalent position, without prejudice to
seniority or any other rights or privileges to which he may be
entitled.
(b) Make Todd Bruchnak whole for any and all losses in-
curred as a result of the Respondent’s unlawful discrimination
against him, with interest, as provided in the remedy section of
this decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment Records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Regional Director,
post at its Farmington Hills, Michigan facility copies of the
attached notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained by it for 60
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current and former employees employed by the Respondent
at any time since February 29, 1996.
(e) Within 21 days after service by the Regional Director,
file with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS ALSO ORDERED that Case 7–RC–20797 be remanded to
the Regional Director for Region 7, with directions to count the
ballots of Todd Bruchnak and Justin West and to certify the
results of the election of April 5, 1996.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

8 If this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”