National Dance Institute - New Mexico, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 10, 2016

28-CA-157050 (N.L.R.B. Feb. 10, 2016)

JD–(SF)-06-16
Santa Fe, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NATIONAL DANCE INSTITUTE – NEW MEXICO, INC.
and Case 28-CA-157050
DIANA M. OROZCO-GARRETT, AN INDIVIDUAL.
Cristobal Munoz, Esq.
Chris Doyle, Esq.
for the General Counsel.
Patricia Salazar Ives, Esq.
Cuddy & McCarthy, LLP,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Santa Fe, New
Mexico on December 1–4, 2015. Diana Mr. Orozco-Garrett (the Charging Party) filed the
original charge on July 30, 2015, and an amended charge on September 11, 2015.1 The General
Counsel issued the complaint on October 9. National Dance Institute - New Mexico, Inc. (the
Respondent or NDI) filed a timely answer denying all material allegations.
The complaint alleges the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by promulgating and/or maintaining an overly broad rules regarding
employee conduct and threatening employees with reprisal. The complaint further alleges the
Respondent violated Section 8(a)(4) and (1) of the Act by failing to assign dance classes to the
Charging Party and terminating her employment.

1 All dates are in 2015 unless otherwise indicated. The Respondent filed a motion to correct the
transcript, which the General Counsel opposed. Many of the corrections are simple typos. With regard to
any material changes in testimony, I have relied on the official transcript and not the Respondent’s
proposed amended transcript.
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2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following5
FINDINGS OF FACT
I. JURISDICTION10
National Dance Institute - New Mexico, Inc., a nonprofit corporation with an office and
place of business in Santa Fe, New Mexico, provides dance classes to students in New Mexico’s
schools. The Respondent admits, and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7). 15
II. STATEMENT OF FACTS
A. Background and the Respondent’s Operations
20
NDI’s headquarters are in Santa Fe, and it also has offices in Albuquerque. It serves
students across the State of New Mexico.
NDI has an outreach program in public elementary schools, targeting schools with
families living in poverty. It runs for 30 weeks, and consists of NDI sending a teacher and a 25
pianist into a public elementary school once a week for 30 weeks. Classes are 50 minutes long
and have specific curriculum. Students in this program can audition for the Super Wonderful
Advance Team (SWAT), which meets on Friday afternoon or Saturday morning for
approximately 30 weeks during the school year. All students in the outreach program and on the
SWAT team participate in one of two year-end performances at NDI’s Santa Fe facility, referred 30
to as the dance barns. NDI also has after school, weekend, and summer programs.
NDI’s purpose is broader than simply teaching dance. NDI strives to help children
develop self-discipline, a standard of excellence, and a belief in themselves that will carry into
all aspects of their lives. (Tr. 203–204; R Exh. TT.)2 Students are taught to adhere to the “core 35
four”: work hard, do your personal best, never give up, and choose a healthy lifestyle. (Tr. 41.)
NDI’s tagline is “teaching children excellence.” (Tr. 203.) NDI's core values are a belief in
children, social responsibility, excellence, sustainability, and financial integrity. (Tr. 11.)
At all relevant times, Russell Baker has been NDI’s executive director. He reports to 40
NDI’s Board of Directors, chaired by Diane Doniger. Maria Wolfe is NDI’s director of business

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the
Respondent’s exhibit; “GC Exh.” for the General Counsel’s exhibit; and “GC Br.” for the General
Counsel’s brief. Although I have included several citations to the record to highlight particular testimony
or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited but rather are based my review and consideration of the entire record.
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3
and administration, with oversight of NDI’s human resources function. Liz Salganek is NDI’s
artistic director, with responsibilities overseeing all of the artistic programs around the State.
Emily Lowman is the Santa Fe outreach artistic director, responsible for the year-end
performance. Melissa Briggs directed the Santa Fe Summer Institute during the summer of
2015. Alison Montoya is the Santa Fe program producer. In this capacity, she administrates the 5
program in Santa Fe and assists with the year-end production. She conducts three annual
meetings at each of the schools that participate in the program: a start-up meeting at the
beginning of the school year, an event-prep meeting before the performance, and a wrap-up
meeting at the end of the school year.
10
NDI employs part-time and full-time teachers. The full-time teachers have duties outside
the classroom. During the relevant time period there were approximately five full-time teachers
and three part-time teachers.
NDI teachers are expected to serve as role models for the constituents they serve. They 15
must participate in a two-week teaching excellence workshop before they start working with
students. (Tr. 201–202.) Teachers are expected to exhibit NDI’s core competencies of an
excellent NDI New Mexico instructor. These competencies are broken down into the following
categories: achieving the mission, classroom management, teaching techniques, student-teacher
connection, curriculum, modeling, choreography, seeing students, and communication. (R Exh. 20
B.) Instructors are trained on the competencies when they start at NDI and are also trained
annually. (Tr. 201–202.) Instructors are also provided with NDI’s teaching excellence manual,
which sets forth expectations of NDI teachers. The “core emphasis is on excellence, precision,
teamwork, and total physical commitment.” If a teacher becomes frustrated and yells at students
or otherwise does not model excellence, the teacher is instructed to apologize. (R Exh. C.) 25
Teachers were also provided with the NDI New Mexico Child Safety and Discipline policy for
the 2014–2015 school year. (R Exh. D.)
B. The Charging Party’s Probation and Previous Charges
30
Orozco-Garrett served as a part-time dance instructor for 14 years. She had taught at
Sweeney Elementary School during the 2013-2014 school year. At the start-up meeting at
Sweeney on September 9, 2014, the principal complained that Orozco-Garrett had been verbally
abusive and disrespectful to her in front of her staff, and had been disrespectful to the teachers.
(Tr. 410–411; R Exhs. NN, OO.) The principal and teachers discussed not having NDI at 35
Sweeney because of Orozco-Garrett’s behavior. Montoya and Lowman had attended the
meeting, and Montoya sent Lowman and Salganek an email describing what the principal had
told them.3 (R Exh. EEE; Tr. 664.)

3 Orozco-Garrett had previously been counseled about behavior similar to what is at issue in the
instant complaint. On July 23, 2010, in response to Orozco-Garrett’s request for a larger teaching
schedule, Baker stated he would consider increasing her workload if her performance and attitude were
improved. Specifically, Baker instructed Orozco-Garrett to build a positive collaboration between herself
and her supervisor, increase communication and follow-up with her managers by meeting deadlines and
attending meetings on time, and build strong and positive relationships with NDI’s constituents. (R Exh.
UU.)
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4
On September 10, 2014, Baker issued Orozco-Garrett a letter of warning and placed her
on probation.4 Orozco-Garrett filed a charge with the National Labor Relations Board (the Board
or NLRB) on September 17, 2014, alleging that the Respondent had prohibited employees from
discussing their terms and conditions of employment. (GC Exh. 34.) Orozco-Garrett filed
another charge with the Board on November 25, 2014, alleging her probation was motivated by 5
discrimination for her protected activities. She also alleged the Respondent had prohibited
employees from discussing the terms and conditions of their employment, maintained overly-
broad work rules, threatened employees, and created the impression that employees were under
surveillance. (GC Exh. 35.)
10
The Regional Director for Region 28 issued an amended complaint on March 10, 2015,
alleging the Respondent violated the Act as alleged in the charges. (GC Exh. 36.) The complaint
was settled, with the Respondent agreeing to pay Orozco-Garret $213.00 backpay for auditions
she was not permitted to attend, revise its Standards of Professional Conduct policy, and delete
language in Orozco-Garrett’s probation letter that could be construed as prohibiting protected 15
activity. (Tr. 219–221; R Exh. FFF.) The probationary period and terms otherwise remained
the same. (R Exhs. H, CC, DD.)
Salganek emailed Orozco-Garrett the revised probation letter on March 24, 2015, and
offered to discuss it with her. Orozco-Garrett responded, setting forth numerous conditions 20
precedent to discussing the matter with Salganek, and pointing out the legal deficiencies she
perceived with the document. (R Exh. EE.) Orozco-Garrett refused to sign her letter of
probation. (Tr. 411, 613.)
The Respondent distributed a notice pursuant to the settlement agreement on March 27, 25
2015. (R Exh. G.)
C. Events in February and March 2015
Lowman conducts monthly team meetings for the Santa Fe program. The meetings 30
include the musicians and teachers in the outreach program. (Tr. 387, 454–455.) In February
2015, Lowman sent Orozco-Garrett an email asking her to be on time for future team meetings.
Orozco-Garrett had been late for a February 11 meeting because she was teaching a class right
before the meeting and stopped to pick up lunch.5 (GC Exhs. 4, 38.) Other employees have been
late to meetings, and Lowman has spoken to them about it. (Tr. 285–287; 461–462.) 35
During the meeting, Lowman discussed a change to some choreography that would affect
the teachers, and said, “Please don't be mad. Don't make a voodoo doll out of me.” Salganek
heard Orozco-Garret say under her breath, “There's already a voodoo doll of you.” Salganek told
Orozco-Garrett she would consider future similar comments to be insubordinate. Orozco-Garrett 40

4 Orozco-Garrett filed a charge of discrimination with the New Mexico Department of Workforce
Solutions, Human Rights Bureau and the Equal Employment Opportunity Commission, alleging her
probation was unlawful discrimination based on her national origin. (R Exh. VV.)
5 Orozco-Garrett did not attend the March 2015 meeting due to a medical condition. Lowman met
with her separately to go over the material that was covered in the meeting.
JD–(SF)-06-16
5
responded, “Of course you would.”6 (Tr. 291–292; GC Exh. 4.) Orozco-Garrett received no
discipline for being late for the meeting or for making the voodoo doll comment. (Tr. 295–296.)
In February and March, Orozco-Garrett made suggestions about the artistic aspects of the
performance. Among other suggestions, she wanted Hispanic authors to be part of the program 5
because the students NDI serves are predominantly Hispanic.7 (GC Exhs. 39–41; R Exhs. MM,
PP, WW; Tr. 324, 463–472.)
On March 13 and 15, Baker sent emails notifying employees the Respondent had
rescinded the Standards of Professional Conduct policy and replaced it with the Employee 10
Conduct policy. Baker attached the new policy and instructed the employees to review it.8 (GC
Exh. 8; R Exh. F.)
D. The Year-End Performance
15
As noted above, the year-end performances for the Santa Fe outreach program take place
at the dance barns. The facility comprising the dance barns has six dance studios, two of which
convert into a performing arts theater. The year-end performances include students from third–
ninth grades, as well as about a group of about 20 kindergartners, for a total of about 500
participants per performance. There are two sets of performances during consecutive weeks, each 20
lasting three days.
Rehearsals take place prior to the performances. Initially, each school is bused to the
dance barns separately so the students can get acclimated to the environment. The rehearsals
occur in stages: first with just one class, then as a school, and then with all participants.25
Students who are not performing at a given time wait in holding areas. Generally, when the
schools rehearse together, it is the first time students from different schools interact. The
schoolteacher for each participating class comes to the rehearsals and the performances. In
addition, each school is assigned a “runner” who is responsible for helping students get
organized in the holding area, lining the students up for their dances, accompanying them to the 30
stage, waiting for them while they're on the stage, and then they accompanying them back to the
holding area. The runners and classroom teachers supervise the students.9 At any given time,
between roughly 40 and 100 kids are in a holding area. Educational assistants assigned to
disabled students through the public schools accompany their students to the rehearsals and
performances.10 Other volunteers also help facilitate the rehearsals and performances. 35

6 Right after the meeting, Orozco-Garrett posted the following comment on her Facebook page” “Voo
doo hoo doo, you’re gonna be doo doo!” (R Exh. GG.) She also later posted a picture of a voo doo doll
with the caption, “Respect the voodoo doll bitches.” (R Exh. HH.)
7 Orozco-Garrett pointed out to Salganek that her suggestion about Hispanic authors was not included
in the minutes of the February 11 meeting. (GC Exh. 41.)
8 Debbie Baciocco, a human resources specialist, sent the March 13 email on Baker’s behalf.
According to Wolfe, the NLRB attorney working with NDI on settling the previous complaint approved
the language in this version. (Tr. 704.)
9 Teachers receive a stipend from NDI for their time participating in the event.
10 Disabled students are integrated into the program, and they are not labeled or otherwise identified
to the NDI staff as disabled.
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6
For the 2014–2015 school year, the dress rehearsals occurred on Wednesday, and the
performances were Thursday (two morning and one evening performances), Friday (two evening
performances), and Saturday (one afternoon and one evening performance).
Some parts of the performance include all students, while other parts involve only some 5
of the students. Near the beginning of the performance, all students participate in “runs and
jumps.” This involves two lines of students who run onto the stage one at a time, do a jump, and
run off the stage. During the May 2015 performance, Orozco-Garrett was stationed upstage right
to help direct traffic during runs and jumps, and to ensure the two lines did not run into each
other. (Tr. 476–479.) 10
Pamela Ladas, a part-time instructor, was the NDI dance teacher at Gonzales Elementary
School. During the second week of performances, an incident between an NDI instructor and an
educational assistant (EA) named Laura Robledo, which allegedly occurred on June 14, was
reported to Salganek. Robledo was assisting a visually impaired student from Gonzales. 15
Robledo and Ladas approached Salganek, and Robledo told Salganek that an NDI staff member
with short dark hair had grabbed her arm so hard it left a bruise, and the staff member had
handled her student in a rough manner.11 Robledo identified Orozco-Garrett as the NDI
instructor. (Tr. 326–327.) Salganek informed Orozco-Garrett about the incident, and Orozco-
Garrett responded that she never touched anyone. 12 (Tr. 329, 480–481.) Orozco-Garrett 20
approached Robledo the evening on June 14 and told her she had heard there had been an
incident with a child. According to Orozco-Garrett, Robledo said the incident had nothing to do
with the child. (Tr. 498–499.)
Salganek sent an email to Baker and Wolfe at 5:15 p.m. on June 15, reporting her 25
conversations with Robledo and Orozco-Garrett regarding the incident. (R Exh. I.) Baker
responded to Salganek’s email, asking if there was a photo of the bruise and inquiring as to
whether any other adults were present. Salganek informed Baker that Ladas was present when
Robledo described the incident and identified Orozco-Garrett. (R Exh. J.)
30
On May 16, Wolfe and Salganek met with Robledo, who reiterated what she had told
Salganek. Robledo said that Orozco-Garrett had apologized to her. She further expressed that
she did not want to get anyone in trouble, but wanted to make sure such an incident did not recur.
Wolfe took a picture of the bruise and forwarded it, along with her notes from the meeting, to
Baker. (R Exh. K.) 35
Another incident occurred during the May 14 performance. Instructor Gemetria St. Clair
reported to Lowman that she had moved Ms. Lussiez, a teacher from Gonzales, from one spot to
another and thought it had disturbed the teacher. St. Clair apologized to the teacher and reported
it to Lowman because she felt she had done something wrong and wanted her to know. Lowman 40
reported the incident to Baker and Salganek. (Tr. 408.)

11 Robledo had initially reported the incident to Ladas, who found Salganek. (Tr. 327.)
12 She remembered yelling, over the music, that the line needed to keep moving during the first run-
through of runs and jumps. (Tr. 487–489.)
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7
The Gonzales Elementary wrap-up meeting occurred on May 20. Montoya attended on
behalf of NDI.13 When Montoya arrived at the meeting, she saw the principal was there, and she
figured there must be a problem because NDI had been at Gonzales Elementary for 16 or 17
years, and the principal did not usually attend the meetings. (Tr. 671.) The complaints about St.
Clair and Orozco-Garrett were discussed at the meeting, and the principal stated such incidents 5
could not reoccur. The principal appeared upset to Montoya, and told her he should not have to
worry about people coming back from NDI bruised. Various other complaints about the length
of the program and its toll on the teachers were also discussed. (R Exh. M; Tr. 673–674.) After
Montoya left the meeting, she informed Salganek about it. (Tr. 674.) Salganek prepared an
incident report on May 20, which Baker signed on May 28. (R Exh. N.)10
Baker investigated the incidents involving Orozco-Garrett and St. Clair. (R Exh. A.)14
He left a phone message with Orozco-Garrett requesting to meet to discuss the incident. Orozco-
Garrett responded in writing May 27, asking what “incident” Baker wanted to discuss. Baker
responded that it was the interaction between Orozco-Garrett and the EA from Gonzales, and 15
asked when she was available to meet. (R Exh. P.) Orozco-Garrett responded on May 28,
expressing surprise at the request because she had spoken to both EAs and the children, and was
told no such accusation was made. She expressed her belief that she should be commended for
avoiding a near catastrophe during the runs and jumps number resulting from Lowman’s
negligence by failing to properly instruct the blind dancers and their aids. She also criticized 20
Ladas’ judgment in her placement of the visually impaired students. Orozco-Garrett said she
would meet with Baker only after being fully informed in specific detail regarding the nature of
the allegations, who made them, when and where the alleged incident took place, the names and
contact information of anyone with personal knowledge, and the evidence to support the claim.
Orozco-Garrett also stated that if Wolfe was to be present, she would bring her husband, a retired 25
civil rights attorney, to the meeting. (GC Exh. 11.)
Baker sent Orozco-Garrett an email on May 29, informing her that the purpose of the
meeting he requested was to get her perspective on the interaction with the EA from Gonzales
Elementary. (R Exh. Q.) Orozco-Garrett responded on June 3, with an email similar to her May 30
28 correspondence. (GC Exh. 12.)
On June 8, Baker sent Orozco-Garrett and email stating that NDI had received a
complaint on May 15 from EA Laura Robledo about the way Orozco-Garrett handled her
backstage during the May 14 performance. He told her the substance of the allegations, and 35
stated that representatives from Gonzales had asked that NDI take measures to ensure it did not
happen again. Baker again asked to meet with Orozco-Garrett, and gave her some proposed
dates and times. (GC Exh. 12a.) Orozco-Garrett responded later that day, stating that Baker’s
letter was not responsive to her previous request. She denied that she had engaged in the conduct
ascribed to her by Robledo, requested information about how the complaint was made and 40
conveyed up the chain at NDI, and reiterated that Robledo had told her she had made no
allegations against her. She also requested specific information about the wrap-up meeting at
Gonzales. (GC Exh. 13.)

13 As per her usual practice, Montoya took the minutes at the meeting. (Tr. 663, 670.)
14 The investigations took several weeks due to summer schedules. (Tr. 496–497; R Exh. A.)
JD–(SF)-06-16
8
Baker again requested to meet with Orozco-Garret in an email dated June 16. Orozco-
Garrett responded the following day, stating that she was awaiting an evaluation of the request
from her attorney before responding. (R Exh. S.)
Baker sent another email to Orozco-Garrett on Tuesday, June 23, stating he had provided 5
her with the information he had regarding the allegation, and requesting, again, to meet with her.
He stated that after they met, he would gather more information and determine if the complaint
was valid. He asked her to provide a date and time to meet, and stated that if they could not meet
by Thursday, he would consider her May 28 and June 22 emails and attachments to be her
response. (GC Exh. 13a.) 10
On June 29, Orozco-Garrett sent Baker a letter, broken down into enumerated sections
expressing her belief that she had been subjected to “[d]isparate treatment, violation of due
process, and unconscionable course of dealing.” She summarized their previous correspondence
and expressed that Baker had not been responsive to her previous requests. She explained that 15
she could not have grabbed anyone because she had an injured left elbow, and during runs and
jumps she held out her left arm and pointed with her right hand. Orozco-Garrett again reiterated
that Robledo made no allegations against her. She told Baker he was acting in bad faith and
stated that she would file complaints with the EEOC and the NLRB if the matter was not closed
and any reference to it removed from her personnel file by July 10. (GC Exh. 14; Tr. 481–483.) 20
Baker responded on July 9, stating he was disappointed Orozco-Garrett was unwilling to
meet with him so that he could hear her view of what had occurred on May 14. He informed her
that the he would rely on her emails as her response to the allegation, and determine what if any
action should be taken. Baker also informed Orozco-Garrett that the matter would only become 25
part of her personnel file if action was taken against her. (R Exh. T.) Orozco-Garrett emailed
Baker on July 13, to inform him that she had never refused to meet with him about the Robledo
incident. (GC Exh. 16.)
After his attempts to meet with Orozco-Garrett, Baker began scheduling meetings with 30
others. He spoke with the principal and in-school school coordinator from Gonzales Elementary
School. He also interviewed Robledo, Ladas, Montoya, and Salganek, and prepared a report
documenting his conversations with these individuals.15 Baker concluded that Robledo had not
fabricated the incident. He noted Robledo’s report that Orozco-Garrett had apologized to her,
and he found this impossible to reconcile with Orozco-Garrett’s denial that anything had 35
occurred. Baker deduced from the nature of Orozco-Garrett’s written responses to him that she
was avoiding discussing the incident by attempting to cloud and confuse the issues. Baker
concluded that Orozco-Garrett had violated the terms of her probation. (R Exh. A.)
Baker also investigated the St. Clair incident. He interviewed the principal and in-school 40
coordinator from Gonzales, as well as Lussiez. He also spoke with St. Clair, Salganek, Wolfe,
and Montoya. St. Clair was very apologetic about her behavior to Salganek and Baker. She had
ideas on how to improve in the future and how everyone could work better backstage to avoid
such an incident. (Tr. 188; R Exh. A.)
45

15 At Salganek’s request, Ladas also forwarded an email describing what she observed. (R Exh. O.)
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E. The Summer Programs
Orozco-Garrett taught for NDI’s summer program at the dance barns during the last three
weeks of June. (Tr. 153, 497–498.) She also taught at a one-week program in Artesia, New 5
Mexico in July. (Tr. 143–144.)
F. The Kitchen Sink Email and Reports about Profanity
On June 18, at 8:25 a.m., Lowman sent an email to the NDI staff stating she had just 10
spent 20 minutes cleaning the kitchen sink and it “was probably the grossest thing I have ever
done . . . not exaggerating.” She described molding lemon peels, some crickets, and dirty dishes
covered in poured-out coffee. She asked the staff to clean up after themselves “so that we do not
create a new habitat for creepy crawlies in our sink again.” She ended with a thank you,
followed by a smiley face. (R Exh. II.) 15
That same morning, in the hallway of the dance barns, Orozco-Garrett approached Rachel
Carpenter, NDI’s north program producer, and started talking about how pitiful Lowman’s email
was. Orozco-Garrett told Carpenter that Lowman had nothing better to do but complain about
the sink, and said she’d cleaned up more shit than Lowman ever had. According to Carpenter, 20
Orozco-Garrett repeatedly used the F-word. Carpenter tried to use her body language to convey
she was not interested in talking with Orozco-Garrett, and eventually told her she needed to get
back to work. (Tr. 681–682.) There were not parents or students nearby during this
conversation. (Tr. 507, 692.)
25
Later that day, Carpenter and Briggs were directing children to their studios, and Orozco-
Garrett approached. There were parents and children in the vicinity, and Orozco-Garrett began
swearing. (Tr. 683–684; GC Exh. 18.) That same afternoon, NDI Residency Director Hannah
Foss and Carpenter were setting up T-shirts to sell at a table in the dance barns. Orozco-Garrett
came in and helped set up the T-shirts. She started talking about Lowman’s email again, using 30
swear words, and saying she was going to buy cockroaches to put in the sink. Class was just
ending and there were parents and volunteers around. (Tr. 685–686; GC Exh. 18.) That
afternoon, Carpenter approached Lowman to tell her what had transpired. Lowman directed her
to Salganek. (Tr. 689.)
35
On June 19, Carpenter reported to Salganek the incidents that had occurred the prior day.
(Tr. 305.) Carpenter reported that she felt Orozco-Garrett was belittling, bullying, and mocking
Lowman. (Tr. 311; R Exh. JJ.)
On July 13, Salganek sent Orozco-Garrett an email stating that she and Carpenter had 40
met regarding some comments Orozco-Garrett had made to Carpenter. Salganek informed
Orozco-Garrett that her comments had made Carpenter feel uncomfortable, and Carpenter
thought they were personally demeaning to Lowman. Salganek reminded Orozco-Garrett about
their previous conversation about the voodoo doll comment. Salganek requested to meet with
Orozco-Garrett before deciding whether her comments about Lowman were inappropriate. (GC 45
Exh. 15.)
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10
Orozco-Garrett responded the same day, stating that Salganek’s letter violated the
settlement agreement in her previous case. She expressed her belief that she had the right to
discuss supervisory personnel, and noted that there have been cases holding that calling a
supervisor an “asshole” was protected. She concluded by stating, “You clearly do not know the
scope of protected employee activity under the NLRA, just as you do not understand the concept 5
of insubordination” and added that she was forwarding Salganek’s email to the NLRB. (GC
Exh. 17.)
At Salganek’s request, on July 14, Carpenter and Briggs sent Salganek emails regarding
their interactions with Orozco-Garrett on June 18.16 (R Exh. KK; GC Exh. 18; Tr. 310.) 10
On July 31, Salganek sent Orozco-Garrett another email reiterating her belief that the
comments Orozco-Garrett had made about Lowman were intended to belittle and humiliate her.
Salganek informed Orozco-Garrett that she believed the comments were insubordinate and in
violation of NDI’s standards of professional conduct. She also expressed her belief that Orozco-15
Garrett’s July 13 response was insubordinate because she was attempting to investigate a
complaint and she was met with defiance and disrespect. Salganek reminded Orozco-Garrett of
the terms of her probation, and informed her she was copying Baker and they would discuss
possible discipline. (R Exh. U.)
20
Orozco-Garret responded on August 3, with Baker cc’d, stating she was forwarding
Salganek’s July 31 email to the NLRB, and expressing her belief that it violated the settlement
agreement and constituted a threat based on her protected concerted activity. Orozco-Garrett
again broke her response into sections. In Section I, she expressed her displeasure with how the
Sweeney matter that led to her probationary status had been handled. In Section II, she denied 25
using foul language within earshot of students and stated she had not been informed of what she
allegedly had said. In Section III, Orozco-Garrett pointed out that others had made comments
about Lowman, expressed her belief that Lowman perpetrates negative talk, and stated she
thought there was a different standard for Hispanics. In Section IV, Orozco Garrett opined that
Lowman’s characterization of her behavior as insubordinate was an illegal characterization of 30
her employee rights, and reminded Lowman that during settlement negotiations she was required
to remove language in a disciplinary letter requiring her to be respectful in her interactions with
management. In Section V, Orozco-Garrett said Salganek had tried to make it seem like she had
called Lowman and “asshole.” Orozco-Garrett clarified that she “was simply making you aware
of the principle that civility in the workplace is dead before the NLRB.” She cited to a Board 35
case, as follows:
In Plaza Auto Center, [I]nc., 360 NLRB No. 117 (2014), the NLRB Board ruled that an
employer violated the NLRA when it terminated an employee for cursing at his employer
in a meeting about his pay. The employee called the owner, in a meeting with his 40
manager, a “fucking crook” and an “asshole”; told the manager that the owner of the
company was “stupid” and that nobody liked him; and shoved his chair and said that if
the company fired him, they would regret it. They did.

16 Briggs asked Salganek not to mention her by name if possible when Salganek discussed the
incident with Orozco-Garrett.
JD–(SF)-06-16
11
(Emphasis in original.) In Section VI, Orozco-Garrett faulted Salganek for relying on a portion
of the employee handbook that had yet to be distributed and opining that even if the language for
the revised employee handbook had been approved by the Board, it was too broad and vague to
be enforceable. Finally, in Section VII Orozco-Garrett stated that, in her view, she was no longer
on probation because her probationary period ended on the last day of school in May. Orozco-5
Garrett concluded by stating that she would not meet with Salganek until she was advised of the
factual content of the allegations against her. (R Exh. V.)
On August 5, Wolfe informed management not to firm up any schedules that included
Orozco-Garrett or St. Clair as instructors for the upcoming school year until Baker finished his 10
investigations. (R Exh. W.)
On August 25, Baker issued St. Clair a letter about her behavior that was also sent to her
personnel file. (Tr. 188–189; R Exh. Y.)
15
Also on August 25, Orozco-Garrett sent a text stating, “The grossest thing she’s ever
done, ‘not exaggerating’ Ok, I’ve cleaned up barf, urine, kid poop . . . all at NDI. I was thinking
of sending a response that the crickets were mine! They must have escaped! Poor crickets!”17 (R
Exh. ZZ.)
20
Orozco-Garrett emailed Lowman on August 25 asking about her schedule for the school
year. She said she expected a second class assignment because her probationary period had
expired. Lowman forwarded the email to Baker, and expressed her opinion that Orozco-Garrett
did not meet the terms of her probationary period. Lowman said it had been difficult to work as
Orozco-Garrett’s supervisor because she came to meetings late, wrote hateful emails, and spoke 25
ill of her as a person, not just as a supervisor. She asked Baker to advise her on how to proceed.
(R Exh. AA.)
Salganek forwarded Carpenter’s complaint to Baker. He spoke with Carpenter, Foss, and
Briggs in connection with Carpenter’s complaint. (Tr. 141–142, 149.) On August 27, Baker sent 30
Orozco-Garrett an email about Carpenter’s complaint. He reiterated Carpenter’s allegations that
Orozco-Garrett cussed in front of children, and stated that Foss reported she had a similar
experience with Orozco-Garrett cussing in front of children. Baker asked Orozco-Garrett to send
any response to him by the end of the day on August 28. (GC Exh. 21.)
35
On August 28, Orozco-Garrett responded, expressing at the outset her belief and
incredulity that Baker and Salganek were blatantly violating the settlement agreement. She
denied that she cussed in front of children or parents, and asserted that Baker and Salganek were
fabricating the factual allegations. She requested the names of the parents and students and
factual statements from them regarding what they heard. Orozco-Garrett then gave examples of 40
other instances where foul language was used in front of children but no action was taken. (GC
Exh. 22.) On August 31, Baker emailed Orozco-Garrett and asked for the names of any
witnesses she would like him to interview in connection with Carpenter’s complaint. He also
expressed that he was unaware that other employees had used foul language in front of children
and asked her to provide information so he could look into the matter. (GC Exh. 23.) 45

17 Orozco-Garrett could not recall to whom she sent the text. (Tr. 646.)
JD–(SF)-06-16
12
On August 31, Orozco-Garrett’s husband hand-delivered to Doniger a letter outlining
Orozco-Garrett’s complaints against the Respondent and asking NDI’s Board of Directors to
address them. (GC Exh. 24; Tr. 525.)
5
On September 2, Orozco-Garrett sent Baker a letter setting forth her view that she could
not respond to the shifting allegations against her with regard to her conversation with Carpenter.
She gave examples of other employees’ conduct and expressed her belief she was being treated
disparately. With regard to Baker’s request for information regarding employees who had used
profanity in front of children, Orozco-Garrett gave some examples without referencing names, 10
and informed him if he was unaware of these incidents it was because he had divorced himself
from everyday teaching responsibilities and employed managers who conduct themselves far
worse than anything alleged in the complaint against her. She added, “All details, including
name (sic) of offenders, of the above scenario will be made public should you persist in this
claim and it becomes necessary to litigate it in federal court.” (GC Exh. 25.) 15
NDI did not receive complaints from parents or students about Orozco-Garrett’s
language. (Tr. 179.)
On September 3, Doniger responded to Orozco-Garrett’s letter, informing her she would 20
bring her concerns to the Board of Directors, and notifying her that the Board’s governance
committee was reviewing the employee handbook. (GC Exh. 26.)
G. Revised Employee Conduct Policy
25
The employee conduct rule was revised on September 3, and renamed “Expectations for
Employee Conduct.” It was incorporated into a revised employee handbook. (GC Exh. 37.)
The revised rule states, in relevant part:
Expectations for Employee Conduct30
Being insubordinate, threatening, intimidating or disrespectful to managers, supervisors,
coworkers, or any other individual in the course of conducting business will result in
discipline, up to and including termination.
35
NDI added the following language at the end of the rule:
Note that all employees have rights under the NLRA to engage in protected concerted
activities including discussing your terms and conditions of employment, wages or
benefits or work conditions. Nothing in this policy is meant to, nor should it be 40
interpreted to, in any way limit your rights under any applicable federal, state, or local
laws, including your rights under Section 7 of the National Labor Relations Act,
including but not limited to the right to engage in protected concerted activities with other
employees for the purposes of their mutual aid and/or protection, or to improve terms and
conditions of employment, such as wages and benefits.45
The previous page states:
JD–(SF)-06-16
13
The National Labor Relations Act (NLRA) gives employees, among other rights, the
right to discuss wages, hours, and other terms and conditions of employment with fellow
employees, as well as with non-employees. The NLRA also gives employees the right to
argue and debate with each other about unions, management and their terms and 5
conditions of employment. None of NDI-New Mexico's rules, regulations or policies,
including but not limited to those in this Handbook, should be construed as prohibiting
such employee discussions or rights.
(GC Exh. 37, pp. 9–10.)10
H. The Charging Party’s Termination
Baker prepared the summary of his investigation into Carpenter’s complaint about
Orozco-Garrett on September 3. After speaking with Carpenter, Baker concluded that Orozco-15
Garret’s comments “were rude and intended to belittle and humiliate Emily and were motivated
by your personal animosity toward her [Lowman] rather than any attempt to discuss your
working conditions.” He determined her conduct was insubordinate and in violation of NDI’s
standards of professional conduct, which state:
20
NDI New Mexico requires all employees to adhere to the highest standards of conduct in
their appearance, behavior, language and mannerisms when representing NDI New
Mexico, whether on or off NDI New Mexico premises. Please keep in mind that as a
representative of NDI New Mexico, you are inherently a role model for the children and
families we serve.25
Baker summarized his interviews with Salganek, Carpenter, Briggs, and Foss, as well as the
emails from Orozco-Garrett. He considered the earlier complaint involving the EA at Gonzales
Elementary, and recommended Orozco-Garrett’s termination. (R Exh. BB; Tr. 257.) Baker also
independently recommended Orozco-Garrett’s termination based on his investigation into the 30
complaint from Robledo. (R Exh. A.)
Orozco-Garrett was terminated September 4. Her letter of termination, signed by Baker,
references that she was on probation for the 2014–2015 school year following the complaints she
was rude to staff at Sweeney Elementary School. The letter then references the complaint about 35
the visually impaired student and the EA, as well as Carpenter’s complaint, detailed above. The
final paragraph states:
You have acted disrespectfully, unprofessionally, and inappropriately toward members of
the NDI New Mexico community, including the children we serve. You refuse to accept 40
constructive criticism directed toward improvement of your performance or to take
responsibility for your behavior. Instead, you blame others and are combative rather than
cooperative, and have repeatedly shown that you are unwilling to change. Such conduct
is unacceptable and disruptive. Therefore, I am terminating your employment with NDI
New Mexico effective immediately.45
JD–(SF)-06-16
14
The letter concludes by instructing Orozco-Garrett to make arrangements to turn in her key and
any other possessions that belong to NDI. (GC Exh. 27.) Baker was the decisionmaker. (Tr.
193.)
On September 8, Orozco-Garrett filed a notice of appeal and complaint with NDI’s Board 5
of Directors. (GC Exh. 28.) On September 30, NDI’s attorney responded that because Orozco-
Garrett was not an employee, she was no longer covered by the employee handbook and the
Board would not consider her appeal. (GC Exh. 30.)
10
III. DECISION AND ANALYSIS
A. Witness Credibility
A credibility determination may rest on various factors, including “the context of the 15
witness' testimony, the witness' demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole.” Hills & Dales General Hospital, 360 NLRB No. 70, slip op at 7 (2014),
citing Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001). In making credibility resolutions, it is well established that the trier of fact may 20
believe some, but not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d
749 (2d Cir. 1950).
In evaluating the various different versions of events, I have fully reviewed the entire
record and carefully observed the demeanor of all the witnesses. I have considered the apparent 25
interests of the witnesses; the inherent probabilities in light of other events; corroboration or the
lack of it; consistencies or inconsistencies within the testimony of each witness and between
witnesses with similar apparent interests. See, e.g. NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962). Testimony or other evidence in contradiction to my factual findings has been carefully
considered but discredited. Where there is inconsistent evidence on a material point, my 30
credibility findings are incorporated into my legal analysis below.
B. Protected Concerted Activity
Complaint paragraph 4(a) alleges that around March 2015, Orozco-Garrett engaged in 35
concerted activities with other employees for the purposes of mutual aid and protection by
discussing the Respondent’s working conditions, including, but not limited to, criticizing artistic
choices made by management during staff meetings and criticizing management workplace
decisions.
40
“To be protected under Section 7 of the Act, employee conduct must be both ‘concerted’
and engaged in for the purpose of ‘mutual aid or protection.’” Fresh & Easy Neighborhood
Market, 361 NLRB No. 12, slip op. at 3 (2014). For the reasons set forth below, I find Orozco-
Garrett’s complaints criticizing management were neither concerted nor protected.
45
The Board has held that activity is concerted if it is “engaged in with or on the authority
of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries
JD–(SF)-06-16
15
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882
(1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988). Concerted activity also includes “circumstances where individual employees seek to
initiate or to induce or to prepare for group action” and where an individual employee brings 5
“truly group complaints to management’s attention.” Meyers II, 281 NLRB at 887. An
individual employee’s complaint is concerted if it is a “logical outgrowth of the concerns of the
group.” Every Woman’s Place, 282 NLRB 413 (1986); Mike Yurosek & Son, Inc., 306 NLRB
1037, 1038 (1992), after remand, 3 10 NLRB 831 (1993), enfd. 53 F.3d 261 (9th Cir. 1995).
10
I find Orozco-Garret’s complaints criticizing management’s artistic choices were not
concerted. Orozco-Garrett failed to show how her suggestions about the artistic direction of the
year-end show, a highly subjective topic, would benefit her fellow employees.18 The General
Counsel argues, “It is axiomatic that a dance instructor’s criticism of management’s artistic
choices for the end-of-year performances during a monthly preparation and choreography 15
meeting of instructors and staff held for the purpose of preparing for those performances, are
discussions of working conditions of all instructors and staff preparing for the performances.”
(GC Br. p. 25.) Merely raising suggestions in a group meeting does not prove that Orozco-
Garrett’s criticisms or suggestions about management’s artistic choices were shared by other
employees, however, or that other employees would see her suggested changes as benefitting 20
them in any way.19
Aside from Orozco-Garrett’s suggested changes to the year-end show, her other
complaint involving management stems from Lowman’s kitchen sink email. The General
Counsel has not met its burden to show Orozco-Garrett’s belittling of Lowman for her 25
characterization of the filthiness of the kitchen sink was concerted activity. Not a single witness
was called to testify that they took umbrage with Lowman’s email. Indeed, the evidence shows
that the employees with whom Orozco-Garrett ostensibly shared her disdain for Lowman’s email
did not share her viewpoint, and did not want to discuss the matter with her.20
30
Finally, there is no evidence that Orozco-Garrett’s suggestions about the year-end
performance or her comments about Lowman were geared toward group action.
Based on the foregoing, I find the General Counsel has failed to adduce evidence
sufficient to establish Orozco-Garrett’s complaints were concerted. 35

18 In his brief, the General Counsel also asserts that Orozco-Garrett made suggestions “to rectify the
communication problem that Spanish-speaking families have with Respondent.” This was not alleged in
the complaint, other than in a catchall manner. Counsel for the General Counsel elicited no testimony
about this at the hearing, and the evidence both of any such communication problem and the nature and
timing of Orozco-Garrett’s attempts to rectify it is insufficient to consider the matter to have been fully
litigated.
19 This is true for all of her artistic suggestions. Indeed, the suggestion that her students be given
more stage time would logically seem to benefit her at the expense of her coworkers.
20 I note this was not a complaint to management or to an outside source, and it was only brought to
management’s attention because Carpenter reported it.
JD–(SF)-06-16
16
Even assuming Orozco-Garrett engaged in concerted activity, I find her comments were
attenuated from wages, hours and other working conditions, and were therefore not protected.
To be protected under the Act, the activity must relate to Section 7 rights. [“S]ome concerted
activity bears a less immediate relationship to employees' interests as employees than other such
activity,” and “at some point the relationship becomes so attenuated that an activity cannot fairly 5
be deemed to come within the ‘mutual aid or protection’ clause.” Eastex, Inc. v. NLRB, 437 U.S.
556, 567–568 (1978). Simply put, it is difficult to see how Orozco’s complaints were aimed at
improving “the interests of employees qua employees.” G & W Electric Specialty Co., 154
NLRB 1136, 1137 (1965).
10
The complaints at issue here largely concern Orozco-Garrett’s impression that the year-
end show did not address the needs and desires of the Hispanic community NDI serves. She was
acting in the interest of her constituents which, while admirable, is not protected activity under
the Act. I find this case very similar to Waters of Orchard Park, 341 NLRB 642 (2004), where
two nursing home healthcare workers expressed concerns about the quality of patient care. The 15
Board found they were not engaged in protected activity because their complaints “were
concerned about the quality of the care and welfare of the residents, not their own working
conditions.” The complaints in both this case and Waters of Orchard Park concerned effects on
customers or constituents, not the conditions under which work was performed.
20
In addition, classroom instruction culminating in the year-end show is, for all intents and
purposes, NDI’s “product.” As stated by Member Meisburg in his concurring opinion in Waters
of Orchard Park, “Although employee interest in that product is desirable, it is not thereby
converted into a working condition. Factory workers, too, may manifest a strong interest in the
goods they produce, but the nature of those goods is not a condition of employment . . .” Id. at 25
645–646. Here, Orozco-Garrett’s suggestions about the artistic direction of the program were
focused on the quality of NDI’s product. “In general, ‘employee efforts to affect the ultimate
direction and managerial policies of the business are beyond the scope’ of Section 7.” Riverbay
Corp., 341 NLRB 255, 257 (2004) (quoting Lutheran Soc. Serv. of Minn., 250 NLRB 35, 41
(1980)). The quality of the “product” is among these managerial prerogatives that are “not 30
encompassed by the ‘mutual aid or protection’ clause.” 250 NLRB at 42.
The General Counsel cites to Enterprise Products, Inc., 264 NLRB 946, 948 (1982), for the
proposition that, “It is settled that ‘when the exercise of a function of management affects conditions
of employment, the employees have a right to protest the particular action taken.’” (quoting 35
Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947, 951 (6th Cir. 1968). (GC Br. p. 25.) The protested
management action in the cited portion of Enterprise Products, however, was suspension of a wage
increase, a matter squarely within Section 7’s purview.
With regard to the complaints stemming from Lowman’s email, I note that Orozco-40
Garrett did not take issue with Lowman’s request for employees to keep the sink clean. Instead,
she derisively expressed her surprise that the kitchen sink was the dirtiest thing Lowman had
ever seen. These expressions were not protests or complaints about working conditions, but
were instead personal jabs at Lowman for her characterization of the sink. See Lutheran Social
Services, supra. 45
JD–(SF)-06-16
17
In analyzing another complaint allegation, i.e. whether Salganek’s July 31 email violated
the Act, the General Counsel argues that Orozco-Garrett’s comments about Lowman’s kitchen
sink email were protected based on Board precedent. The General Counsel first cites to Millcraft
Furniture Co., 282 NLRB 593, 595 (1987). That case, however, involved conduct in connection
with a concerted decision among employees regarding a work stoppage, and is therefore not on 5
point. The General Counsel next points to Fair Mercantile Co., 271 NLRB 1159, 1162–1163
(1984), where two employees together presented their complaints about their office manager’s
manner of assigning work and alleged favoritism to upper management, and is likewise not on
point. Finally, the General Counsel points to Calvin D. Johnson Nursing Home, 261 NLRB 289,
289 n.2 (1982). There, the Board noted that complaints about how employees are treated by their 10
supervisors are protected. As noted directly above, Orozco-Garrett did not complain that
Lowman was unfairly requiring employees to keep the kitchen sink clean, but she instead
mocked Lowman’s description of the sink. Her words “had no substantive content or value that
could have assisted” in furthering a protected cause. See Medina General Operations v. NLRB,
394 F.3d 207, 212 (4th Cir. 2005).15
Based on the foregoing, I find the General Counsel failed to establish Orozco-Garrett
engaged in activity protected by Section 7, as alleged in complaint paragraph 4(a).
C. The Charging Party’s Fall Class Schedule and Termination 20
Paragraph 4(d) and alleges that around August 2015, the Respondent failed to assign
Orozco-Garrett classes for the Respondent’s Fall Program. Paragraph 4(e) alleges that on
September 4, 2015, the Respondent discharged Orozco-Garrett. Both allegations, through
paragraphs 4(f), (g), and (h), assert that the actions were unlawful retaliation for protected 25
concerted activity and for filing previous charges, and were based on application of overly-broad
rules. Because the allegations in paragraphs 4(d) and (e) largely rest on of the same facts, they
are analyzed together.
Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer to interfere 30
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the
Act. The rights guaranteed in Section 7 include the right “to form, join or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection . . . .”35
The basic test for a violation of Section 8(a)(1) is whether under all the circumstances the
employer's conduct reasonably tended to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury, 314 NLRB 470, 472, (1994);
Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992), citing American Freightways Co., 40
124 NLRB 146, 147(1959). Further, “It is well settled that the test of interference, restraint, and
coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether
the coercion succeeded or failed.” American. Tissue Corp., 336 NLRB 435, 441 (2001) (citing
NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)).
45
JD–(SF)-06-16
18
1. Previous charges—Section 8(a)(4) and (1)
Under Section 8(a)(4), it is unlawful for an employer “to discharge or otherwise
discriminate against an employee because he has filed charges or given testimony under this
Act.” In analyzing this allegation, I follow the procedure set forth by the Board in Wright Line, 5
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). See American
Gardens Management Co., 338 NLRB 644 (2002) (Board applies Wright Line to allegations
under Section 8(a)(4)). To prove a violation under Wright Line, the General Counsel must make
an initial showing “sufficient to support the inference that protected conduct was a ‘motivating 10
factor’ in the employer's decision.” 251 NLRB at 1089. If this is accomplished, the burden shifts
to the employer “to demonstrate that the same action would have taken place even in the absence
of the protected conduct.” Id.
Unlawful employer motivation may be established by circumstantial evidence , including, 15
among other things: (1) the timing of the employer’s adverse action in relationship to the
employee’s protected activity; (2) the presence of other unfair labor practices; (3) statements and
actions showing the employer’s general and specific animus; (4) the disparate treatment of the
discriminatees; (5) departure from past practice; and (6) evidence that an employer’s proffered
explanation for the adverse action is a pretext. See Golden Day Schools v. NLRB, 644 F.2d 834, 20
838 (9th Cir. 1981); NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984) (timing);
Mid-Mountain Foods, Inc., 332 NLRB 251, 260 (2000), enfd. mem. 169 LRRM 2448 (4th Cir.
2001); Richardson Bros. South, 312 NLRB 534 (1993) (other unfair labor practices); NLRB v.
Vemco, Inc., 989 F.2d 1468, 1473–1474 (6th Cir. 1993); Affiliated Foods, Inc., 328 NLRB 1107
(1999)(statements showing animus); Naomi Knitting Plant, 328 NLRB 1279, 1283 25
(1999)(disparate treatment); JAMCO, 294 NLRB 896, 905 (1989), affd. mem. 927 F.2d 614
(11th Cir. 1991), cert. denied 502 U.S. 814 (1991) (departure from past practice); Wright Line,
251 NLRB at 1089; Roadway Express, 327 NLRB 25, 26 (1998) (disparate treatment).
The lack of meaningful investigation into the incident may be further evidence of 30
unlawful motivation. “The failure to conduct a meaningful investigation and to give the
employee who is the subject of the investigation an opportunity to explain are [likewise] clear
indicia of discriminatory intent.” See New Orleans Cold Storage & Warehouse Co., Ltd., 326
NLRB 1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir.2000). Another indicator of unlawful
motivation is shifting explanations for a personnel action. See City Stationery, Inc., 340 NLRB 35
523, 524 (2003) (nondiscriminatory reasons for discharge offered at the hearing were found to be
pretextual where different from those set forth in the discharge letters); GATX Logistics, Inc.,
323 NLRB 328, 335 (1997) (“Where . . . an employer provides inconsistent or shifting reasons
for its actions, a reasonable inference can be drawn that the reasons proffered are mere pretexts
designed to mask an unlawful motive.”).40
It is undisputed that Orozco-Garrett filed charges with the Board in Case 28–CA–136974,
about which the Respondent knew. The timing of the Respondent’s decisions to delay
scheduling Orozco-Garrett for classes and terminating her occurred shortly after the complaint
generated by Orozco-Garrett’s previous charges was settled. 45
JD–(SF)-06-16
19
The General Counsel points to disparate treatment, noting that St. Clair was treated more
favorably even though she allegedly committed the same infraction.21 With regard to the
Respondent’s decision to withhold putting them on the schedule for fall classes pending
investigation into the complaints against them, St. Clair and Orozco-Garrett were treated the
same. With regard to the termination, Orozco-Garrett was terminated and St. Clair was not, and 5
thus they were treated differently.
The General Counsel further asserts the “Respondent reacted to Orozco-Garrett’s
concerns with hostility over her disagreement with Respondent’s artistic choice by opting to
“keep the script as is.” (GC Br. p. 4.) It is hard to comprehend how the Respondent’s decision 10
not to take Orozco-Garrett’s advice regarding choreography shows hostility for filing previous
charges.
As evidence of pretext, the General Counsel contends that the fact that Orozco-Garrett
taught during the summer shows that the Respondent knew the allegations against her with 15
regard to grabbing Robledo were false. Baker explained this, however, stating that when the
decision to schedule her for the summer was made, he did not have enough information to
understand the allegations against her, and had thought Orozco-Garrett might provide an
explanation if she met with him. (Tr. 154.) Given the wealth of evidence regarding the Robledo
incident, discussed above in the statement of facts, and the Respondent’s repeated attempts to 20
meet with Orozco-Garrett about it, any inference that the Respondent knew it did not occur lacks
support.
The General Counsel also asserts that the Respondent’s failure to conduct a meaningful
investigation shows the Respondent’s discriminatory intent. I disagree because the record is 25
clear that Baker repeatedly tried to meet with Orozco-Garrett to discuss the Robledo incident and
Orozco-Garrett repeatedly thwarted his attempts to do so. The evidence fails to show that the
Respondent sought to shape or distort the investigation, or that there was not genuine fact
gathering.22 The same holds true for the Carpenter complaint. Salganek asked to meet with
Orozco-Garrett, who in turn responded by telling Salganek she had violated the settlement 30
agreement and she did not understand the scope of protected activity. Despite Salganek asking
Orozco-Garrett to provide times when she could meet, Orozco-Garrett did not respond with any
suggested meeting times.
In its analysis of whether Salganek’s July 31 email to Orozco-Garrett constituted 35
promulgation of an overly-broad rule, the General Counsel asserts that the Respondent provided
shifting explanations for Orozco-Garrett’s termination based on Carpenter’s complaint. The
evidence does not support this, however. While I agree that initially Salganek informed Orozco-
Garrett that Carpenter had complained to her about Orozco-Garrett’s comments mocking
Lowman, it is clear that upon investigating the matter, Carpenter also complained about Orozco-40

21 Though these arguments were made in the portion of the General Counsel’s brief regarding
protected concerted activity, they are applicable to the allegation regarding previous charges.
22 In this regard, I credit Baker’s undisputed testimony that he spoke to the individuals enumerated in
the statement of facts and held the belief that the incident occurred as reported to him. Baker’s testimony
was consistent and he did not strike me as disingenuous.
JD–(SF)-06-16
20
Garrett’s language in front of parents and students. There was no action taken against Orozco-
Garrett until she was informed of these allegations and permitted an opportunity to respond.
Based on the foregoing, I find the General Counsel has failed to meet the initial burden to
prove that the Respondent’s decision to hold off on scheduling Orozco-Garrett for fall classes 5
violated Section 8(a)(4) and (1). I find, however, based on the evidence of timing and the more
favorable treatment St. Clair received for committing a similar infraction, the General Counsel
has met his initial burden with regard to Orozco-Garrett’s termination.
To rebut the inference that Orozco-Garret’s termination was motivated by retaliation for 10
her previously-filed charges, the Respondent must prove, by preponderant evidence, that it
would have terminated her even had she not filed charges. For the reasons that follow, I find this
burden has been met.
The evidence shows that, in the wake of Orozco-Garrett’s probation for her conduct 15
toward the staff at Sweeney, the Respondent was faced with similar complaints about her
behavior.
With regard to the grabbing incident at the year-end performance, the evidence is clear
that Salganek received a report that Orozco-Garrett grabbed Robledo and bruised her. The 20
General Counsel points out that the Respondent failed to call Robledo as a witness. Both the
Charging Party and the Respondent assert that Robledo would support their respective versions
of events, however, so I draw no conclusions from the failure of any party to subpoena her
testimony. Moreover, any argument that the Respondent is required to prove the incident
actually occurred as reported to Salganek and Montoya misapprehends the Respondent’s burden. 25
See Fresno Bee, 337 NLRB 1161, 1182 (2002). The information Baker gathered, which
included speaking with several individuals and the written responses from Orozco-Garrett, was
sufficient for the Respondent to form a good-faith belief that the incident between Orozco-
Garrett and Robledo occurred as reported to Salganek and Montoya.23
30
The General Counsel notes that Orozco-Garrett had an injury to her left arm and was
much smaller than Robledo, and asserts this should lead to an inference that the grabbing
incident could not have occurred. Had the allegations been that Robledo’s bruise was the result
of Orozco-Garrett somehow overpowering her by force using both of her arms, this argument
would be more compelling. As it stands, however, an injury to one of Orozco-Garrett’s arms and 35
the respective sizes of Robledo and Orozco-Garrett do not suggest that the Respondent should
have believed Orozco-Garrett’s denial that she grabbed Robledo, or her claim that she was
physically incapable of doing so.

23 I credit the testimony of Montoya regarding her description of what was reported to her at the wrap-
up meeting at Gonzales Elementary of her documentation of it. (Tr. 672–675.) Her testimony was open
and appeared to me to be an honest account of what had been a surprising and thus memorable event. It is
also corroborated by Salganek’s account of what Robledo reported to her. I find the Respondent has
established the minutes Montoya took at the wrap-up meeting (R Exh. M) constitute a record of a
regularly-conducted business activity under Federal Rule of Evidence 803(6). Even if they are considered
hearsay, however, they are corroborated by reliable evidence which I have credited herein. See RC
Aluminum Industries, Inc., 343 NLRB 939, 940 (2004).
JD–(SF)-06-16
21
Turning to the Carpenter complaints, I fully credit Carpenter’s testimony regarding what
occurred and what she reported. She testified in a very straightforward manner, and it was clear
to me she reported the conduct to management because it bothered her, not because she was
somehow set up as a pawn for the Respondent. Where Carpenter’s testimony differs from
Orozco-Garrett’s, I credit Carpenter. In addition to her demeanor, Carpenter’s testimony is 5
worthy of belief because she has nothing to gain or lose by being honest. There is no reliable
evidence that she was coerced in her testimony or that she had incentive to embellish it. I find the
Respondent believed Carpenter’s complaint, and legitimately considered it as grounds for
termination. See Good Samaritan Hosp., 265 NLRB 618, 627 (1982).
10
With regard to the different treatment accorded to St. Clair, I find the Respondent has
established there were meaningful distinctions between St. Clair and Orozco-Garrett justifying
different responses. Most significantly, the only complaint against St. Clair concerned her
contact with Lussiez at the year-end performance. Orozco-Garret’s discipline, by contrast, was
evaluated based on the complaints from both Robledo and Carpenter. Moreover, Orozco-Garrett 15
had previously been placed on probation for her conduct at Sweeney. In short, the complaints
regarding Orozco-Garrett demonstrated a pattern of behavior inconsistent with NDI’s mission
and values that had persisted despite efforts to correct it.24
Based on the foregoing, I find the Respondent has met its burden to prove that it would 20
have terminated Orozco-Garrett’s employment even had she not filed previous charges.
2. Protected activity—Section 8(a)(1)
Because I have found that Orozco-Garrett did not engage in protected concerted activity, 25
I find the allegations resting on this theory fail and recommend their dismissal. In the event a
reviewing authority disagrees with me, however, I incorporate my analysis above, and find the
Respondent would have terminated Orozco-Garrett’s employment even had she not engaged in
protected concerted activity.
30
The General Counsel asserts that the record contains substantial evidence of animus
toward Orozco-Garrett based on her protected concerted activity. (GC Br. p. 26.) First the
General Counsel points to Salganek’s July 31, 2015 email to Orozco-Garrett, asserted that it
prohibited employees from discussing work issues with coworkers, and from protesting
management’s decisions and threatened employees if they violated the defunct standards of 35
professional conduct policy. (R Exh. U.) While the email references a portion of the rescinded
standards of professional conduct policy, it does not instruct Orozco-Garrett to refrain from
discussing work issues or protesting management’s decisions. The email does reference the
policy and concludes with Salganek stating that she and Baker would discuss possible discipline
based on Orozco-Garrett’s comments about Lowman and her defiant and insubordinate response 40
to Salganek’s July 13 request to meet to discuss Carpenter’s complaint. I find the July 31 letter
was not borne out of animus, but instead was part of the Respondent’s attempt to address the

24 This pattern was present regardless of whether or not Orozco-Garrett’s probationary period had
expired. I also note that Wolfe provided unrefuted testimony regarding other employees who were
disciplined and/or terminated for conduct similar to Orozco-Garrett’s. (Tr. 699–703.)
JD–(SF)-06-16
22
complaint from Carpenter about Orozco-Garrett’s conduct, and it was an appropriate response to
Orozco-Garrett’s July 13 email.
In any event, assuming the July 31, 2015 email is evidence of animus, for the reasons set
forth in my analysis above, the Respondent has proved it would have terminated Orozco-Garrett 5
based on the complaints it received about her and what was gleaned from the ensuing
investigations.
3. Reliance on overly broad rules—Section 8(a)(1)
10
The General Counsel asserts that Orozco-Garrett was terminated because she violated
Salganek’s July 31 email and the overly-broad employee handbook rule.
The Board has long held that discipline for violating an unlawfully overbroad rule may
violate the Act. Double Eagle Hotel & Casino, 341 NLRB 112, 112 fn. 3 (2004), enfd. 414 F.3d 15
1249 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006). The Board recently clarified that such
discipline is unlawful when an employee violates the rule by “(1) engaging in protected conduct
or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the
Act.” The Continental Group, Inc., 357 NLRB No. 39, slip op. at 4 (2011).
20
As discussed below, I find the email and the handbook rule are not overly-broad, and on
that basis this allegation fails. Moreover, as discussed at length herein, I find Orozco-Garrett did
not violate either rule by engaging in conduct protected by Section 7 or implicating its concerns.
Because I find Orozco-Garrett’s termination was legitimately motivated and not premised 25
on violating unlawfully overbroad rules, I recommend dismissal of complaint paragraphs 4(d)
and (e).
D. Alleged Unlawful Rules
30
1. Expectations for Employee Conduct
Complaint paragraph 4(c) alleges that since September 3, 2015, the Respondent has
maintained and enforced the following overly-broad and discriminatory rule in its Employee
Handbook:35
Expectations for Employee Conduct
Being insubordinate, threatening, intimidating or disrespectful to managers, supervisors,
coworkers, or any other individual in the course of conducting business will result in 40
discipline, up to and including termination.
The General Counsel has the burden to prove that a rule or policy violates the Act. In
determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette 45
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999); Hills & Dales
General Hospital, 360 NLRB No. 70, slip op. at 5 (2014).
JD–(SF)-06-16
23
Under the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004),
if the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in response to union or 5
other protected activity; or (3) the rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647.
A rule does not violate the Act if a reasonable employee merely could conceivably read it
as barring Section 7 activity. Rather, the inquiry is whether a reasonable employee would read 10
the rule as prohibiting Section 7 activity. Id. The question of whether a rule or policy is on its
face a violation of the Act requires a balancing between an employer's right to implement certain
legitimate rules of conduct in order to maintain a level of productivity and discipline at work,
with the right of employees to engage in Section 7 activity. Firestone Tire & Rubber, 238 NLRB
1323, 1324 (1978).15
The Board must give the rule under consideration a reasonable reading and ambiguities
are construed against its promulgator. Lutheran Heritage, supra at 647; Lafayette Park Hotel,
supra at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–470 (D.C. Cir. 2007). Moreover, the
Board must “refrain from reading particular phrases in isolation, and it must not presume 20
improper interference with employee rights.” Lutheran Heritage, supra at 646.
The Expectations for Employee Conduct rule does not explicitly restrict Section 7 rights,
nor does the General Counsel assert it was promulgated in response to protected activity or has
been applied to restrict the exercise of Section 7 activity.25 The General Counsel asserts 25
employees would construe to rule as restricting their Section 7 activity.26 For the following
reasons, I disagree.
I find the Expectation for Employee conduct rule is not overly-broad when read in
context. The rule is limited to conduct “in the course of conducting business,” which limits the 30
prohibition to conduct that would interfere with the Respondent’s legitimate business concerns.
See Copper River of Boiling Springs, LLC, 360 NLRB No. 60, slip op. at 1 (2014). The rule also
contains clear and conspicuously placed limiting language. The last paragraph of the rule, which
appears on the same page as the disputed provision, states:
35
Note that all employees have rights under the NLRA to engage in protected concerted
activities including discussing your terms and conditions of employment, wages or
benefits or work conditions. Nothing in this policy is meant to, nor should it be
interpreted to, in any way limit your rights under any applicable federal, state, or local
laws, including your rights under Section 7 of the National Labor Relations Act, 40
including but not limited to the right to engage in protected concerted activities with other

25 Though the revised rule was promulgated in an effort to settle charges that the previous rule was
overly-broad, obviously this is not the type of unlawful promulgation in response to protected activity the
Board seeks to circumscribe. To find otherwise would punish employer attempts to settle complaints.
26 The General Counsel primarily relies on Memorandum GC 15–05, which is not binding precedent.
JD–(SF)-06-16
24
employees for the purposes of their mutual aid and/or protection, or to improve terms and
conditions of employment, such as wages and benefits.
(GC Exh. 37, p. 10.) The previous page also contains a statement describing employees’ rights
under the Act, including the right to argue and debate about working conditions, and explicitly 5
states that no rule should be construed as prohibiting such discussions or rights. (GC Exh. 37 p.
9.) This language spells out that discussions and complaints about working conditions, including
the right to argue and debate about working conditions, are not prohibited by the rule. Moreover,
limiting language is written in a manner that does not require legal skill or training to understand.
10
It is undisputed that NDI’s employees, in the course of conducting NDI’s business of
providing dance instruction to a vulnerable population, are expected to conduct themselves as
role models for the children they serve. Given the context of Expectations for Employee
Conduct rule, read together with the limiting language clearly excepting protected Section 7
activity, both within the rule itself and on the previous page, I find a reasonable employee would 15
not construe the rule as restricting his or her rights under the Act. Accordingly, I recommend
dismissal of complaint paragraph 4(c).
2. Salganek’s July 31 email
20
Complaint paragraph 4(b)(1) alleges that, by Salganek’s July 31, 2015, email, the
Respondent promulgated an overly broad and discriminatory rule that prohibited employees from
discussing work issues with fellow employees and from protesting workplace actions arising
from the Respondent’s management.
25
The framework set forth directly above with regard to the Expectations for Employee
Conduct applies to this allegation.
The General Counsel’s argument in support of this allegation is less than clear. It starts
by mischaracterizing the July 31 email, stating:30
On July 31, Respondent e-mailed Orozco-Garrett it considered her conduct in
communicating disagreement with and protesting Director Lowman’s decision to send a
group e-mail regarding the dirty cantina sink insubordinate and in violation of
Respondent’s defunct and rescinded Standards of Professional Conduct. 35
(GC Br. 21.) Orozco-Garrett did not protest Lowman’s decision to send the email, however, but
rather mocked Lowman’s description of the sink, as set forth fully above. Salganek’s July 31
email took issue with the nature of Orozco-Garret’s comments to Carpenter (about which
Carpenter complained) that Salganek determined were based on personal animosity rather than 40
an attempt to discuss working conditions.27
The General Counsel next argues that Orozco-Garret’s comments about Lowman’s
kitchen sink email were protected, and argues there was unlawful motivation behind the email.
As detailed above, I have found the comments were not concerted or protected, and in any event 45

27 Salganek’s assessment in this regard is consistent with the great weight of the evidence.
JD–(SF)-06-16
25
the protected nature of the comments as well as evidence of animus do not play into the analysis
of whether or not a rule violates Section 8(a)(1).
Next, the General Counsel alleges that actions that distinguish among employees because
they engage in protected concerted activity are inherently destructive of employee rights. More 5
specifically, the General Counsel argues:
Respondent’s promulgation of the overly broad and discriminatory rule in its July 31 e-
mail to Orozco-Garrett and its resulting second investigation of Orozco-Orozco-Garrett,
in regard to her violating that rule by the manner in which she communicated 10
disagreement with and protested Director Lowman’s decision to send a group e-mail
regarding the dirty cantina sink, is inherently destructive of Section 7 rights in that it can
be inferred that Respondent’s conduct was motivated by the desire to discourage such
disagreement and protest. One is held to intend the foreseeable consequences of one’s
actions.15
(GC Br. p. 23.) Again, this is not the analytical framework to assess whether a rule is overly-
broad. Moreover, the authority the General Counsel relies upon is misplaced. The General
Counsel cites to Contractor Servs., Inc., 324 NLRB 1254, 1258 (1977), which involved an
employer who attempted to require union applicants to sign a form waiving their rights to engage 20
in protection union activity as a condition of being hired.28 This is meaningfully distinguishable
from the allegedly unlawful rule here on many fronts.
The portion of the Standards for Professional Conduct cited in the July 31 letter states:
25
NDI New Mexico requires all employees to adhere to the highest standards of conduct in
their appearance, behavior, language and mannerisms when representing NDI New
Mexico, whether on or off NDI New Mexico premises. Please keep in mind that as a
representative of NDI New Mexico, you are inherently a role model for the children and
families we serve.2930
(R Exh. U.)30 This language does not on its face restrict Section 7 Activity. Because I have
found that Orozco-Garrett’s comments about Lowman’s email were not protected concerted
activity, I find any rule contained in the email was not promulgated in response to protected
activity. On this same reasoning, I find it was not applied to restrict Section 7 activity. 35
I further find that a reasonable reading of the cited language would not lead NDI
employees to believe their Section 7 activity was restricted. The plain intent is to ensure NDI
employees adhere to its mission and values in the presence of the constituents it serves, which
includes NDI employees acting as role models to students.31 The nature of the Respondent’s 40

28 The General Counsel also cites to Radio Officers v. NLRB, 347 U.S. 17, 44-45 (1954), which
involves discussion of intent in analyzing allegations under Section 8(a)(3).
29 This rule was voluntarily rescinded and revised pursuant to the settlement agreement.
30 The General Counsel asserts that the promulgation of this rule was a prior unfair labor practice. No
such finding has been made, however, as the rule was voluntarily rescinded pursuant to a settlement
agreement.
31 Orozco-Garrett does not dispute that instructors are expected to model NDI’s principles. (Tr. 611.)
JD–(SF)-06-16
26
business and mission and its training of employees in this regard is extremely important when
reasonably interpreting this email.32 In a different context, as applied to employees not charged
with being role models to underprivileged children, the rule may be considered overly-broad.33
As noted in the statement of facts, NDI employees are trained extensively on how to conduct
themselves while representing NDI to its constituents and a reasonable employee would read the5
language cited in the email as requiring them to adhere to these legitimate standards. Firestone
Tire & Rubber, supra.
Though not entirely clear, the General Counsel also appears to assert the Respondent
promulgated an overly-broad rule by the portion of the email informing Orozco-Garrett of 10
Salganek’s belief that Orozco-Garrett’s response to Salganek’s request to meet with her was
insubordinate. Salganek informed Orozco-Garrett of Carpenter’s complaint on July 13 and
requested to meet with her. Orozco-Garrett’s response that same day is detailed in the statement
of facts and discussed above. The General Counsel has failed to prove how characterization of
Orozco-Garrett’s response, which ignored the request to meet and essentially told Salganek she 15
was ignorant, as insubordinate, is the promulgation of an overly-broad rule under any of the
Lutheran Heritage criteria.
Based on the foregoing, I recommend dismissal of complaint paragraph 4(b)(1).
20
E. Alleged Threats of Reprisal
Complaint paragraph 4(b)(2) alleges the Respondent threatened its employees with
unspecified reprisals if they violated the rule set forth in Salganek’s July 31 email, in violation of
Section 8(a)(1).25
In assessing whether a remark constitutes a threat, the appropriate test is “whether the
remark can reasonably be interpreted by the employee as a threat.” Smithers Tire, 308 NLRB 72
(1992). The actual intent of the speaker or the effect on the listener is immaterial. Smithers Tire,
308 NLRB 72 (1992); see also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) 30
(inquiry under Sec. 8(a)(1) is an objective one which examines whether the employer's actions
would tend to coerce a reasonable employee). The “threats in question need not be explicit if the
language used by the employer or his representative can reasonably by construed as threatening.”
NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The Board considers the totality
of the circumstances in assessing the reasonable tendency of an ambiguous statement or a veiled 35
threat to coerce. KSM Industries, 336 NLRB 133, 133 (2001).
It is undisputed that Salganek’s email threatened Orozco-Garrett with discipline for
engaging in the kind of behavior that led to her probation. Specifically, the relevant portion of
the email states:40

32 As stated by Judge Ries in Lutheran Social Services, 250 NLRB at 43: “In a place of employment
where the mission is to repair distressed young lives, where harmony and accord must certainly be of
critically greater significance than in an ordinary industrial setting, disruption of that requisite
environment by unstinting criticism deserves close consideration.”
33 I make no specific finding in this regard.
In September, 2014, you were told to improve your behavior and were warned that if you
repeated improper behavior or if you ignored or violated any other policies, procedures or
direction from your Program Director or senior management, you would be subject to
disciplinary action, up to termination.
5
(R Exh. U.) The General Counsel also argues that Salganek’s statement that she and Baker
would discuss possible discipline based on Orozco
response to Salganek’s July 13 email constitutes a threat. Citing again to
which I have distinguished above, the General Counsel asserts that “
and sarcastic comments about Director Lowman’s group e10
that e-mail were out of touch with reality o
employer threatens employees with discharge if they concertedly complain about wages, hours,
or other terms and conditions of employment
I find Salganek’s email15
regard to activity protected by Section 7
alleged protected concerted activity
burden to prove the July 31 email was an unlawful threa
paragraph 4(b)(2).
20
The Respondent’s action
terminating her employment did not violate Section 8(a)(4) and (1) of the Act.
25
The Respondent did not promulgate, maintain, or enforce unlawful overly
rules.
The Respondent did not unlawfully threaten its employees
protected Section 7 activity.30
Accordingly, based on the foregoing findings of fact and conclusions of law and the
entire record, I issue the following recommended
ORDER35
The complaint is dismissed.
Dated, Washington, D.C. February 10, 201640
45
JD–
27
-Garrett’s comments about Lowman and her
Fair Mercantile,
Orozco-Garrett’s complaints
-mail and that Lowman’s statements in
r pathetic were protected” and argues that “
” it violates Section 8(a)(1). (GC Br. p. 24.)
does not violate Section 8(a)(1) because it does not threaten with
, as detailed in the above analysis on Orozco
. Accordingly, I find the General Counsel has not met his
t, and recommend dismissal of complaint
CONCLUSIONS OF LAW
s of failing to assign classes to Diana Orozco-Garrett
with reprisal for engaging in
_____________________
Eleanor Laws
Administrative Law Judge
(SF)-06-16
supra,
when an
-Garrett’s
and
-broad work