Natural Life Inc. d/b/a Heart and Weight Institute

National Labor Relations Board - Board Decisions

Mar 30, 2018

366 NLRB No. 53 (N.L.R.B. 2018)

366 NLRB No. 53
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Natural Life, Inc. d/b/a Heart and Weight Institute
and Myeasha Strain. Case 28–CA–181573
March 30, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS MCFERRAN
AND EMANUEL
On April 5, 2017, Administrative Law Judge Ira San-
dron issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a re-
ply. The General Counsel filed limited exceptions and a
supporting brief, the Respondent filed an answering
brief, and the General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions,3

1 Invoking the “missing witness” rule, the judge drew an adverse in-
ference against the Respondent for its failure to call former sales man-
ager John Finley to testify about the dates of his employment. The
Respondent excepted to the judge’s ruling, and we find merit in this
exception. The “missing witness” rule allows a judge to draw an ad-
verse inference against a party that fails to call a witness who is under
the control of that party and is reasonably expected to be favorably
disposed towards it. Electrical Workers IBEW Local 3 (Teknion, Inc.),
329 NLRB 337, 337 fn. 1 (1999); Reno Hilton, 326 NLRB 1421, 1421
fn. 1 (1998), enfd. 196 F.3d 1275 (D.C. Cir. 1999). A former employ-
ee, such as Finley, however, is not generally considered to be under a
party’s control. See, e.g., Food & Commercial Workers Local 1439
(Rosauer's Supermarket), 275 NLRB 30, 35 fn. 10 (1985); 48A
Am.Jur. 2d Labor and Labor Relations Sec. 2021 (2017). Nevertheless,
we find this was harmless error. Because we agree with the judge that
the Respondent discharged its employees in retaliation for their engag-
ing in protected concerted activity, not because there was no available
manager, an adverse inference about the dates of Finley's employment
would not affect the outcome of the case. We also observe that, in
summarizing the “missing witness” rule, the judge appears to have
inadvertently misquoted 29 Am.Jur. 2d Evidence Sec. 178.
2 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.
3 We agree with the judge that the Respondent violated Sec. 8(a)(1)
of the Act when it discharged the sales department employees on July
27, 2016, because they engaged in protected concerted activity. As a
result, we find it unnecessary to pass on the judge’s additional conclu-
sion that the Respondent’s failure to recall all of those employees inde-
pendently violated Sec. 8(a)(1), as that additional finding would not
materially affect the remedy. Member McFerran would simply affirm
to amend the remedy, and to adopt the recommended
Order as modified and set forth in full below.4
ORDER
The Respondent, Natural Life, Inc. d/b/a Heart and
Weight Institute, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression that it is engaged in sur-
veillance of its employees’ protected concerted activities.
(b) Discharging employees because they engage in
protected concerted activities.
(c) Informing employees that they are being dis-
charged because they engaged in protected concerted
activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

both violations. She would note that the Respondent failed to provide
argument in support of its exception to the failure-to-recall violation.
The Respondent also excepts to the judge’s findings that it violated
Sec. 8(a)(1) by creating an impression of surveillance on July 27 and by
telling employees that they were terminated and would not be rehired
because of their protected concerted activities. However, the Respond-
ent presents no argument in support of these exceptions. In accordance
with Rule 102.46(a)(1)(ii), we shall therefore disregard them. See
Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd.
456 F.3d 265 (1st Cir. 2006).
No exceptions were filed to the judge’s dismissal of the allegations
that the Respondent violated Sec. 8(a)(1) by surveilling employees on
July 27 and August 3 and by creating the impression of surveillance on
August 3.
Member McFerran would find merit to the General Counsel’s excep-
tion to the judge’s finding that the Respondent did not promulgate an
unlawful rule against workplace complaining. However, rather than
deem the Respondent’s statement the promulgation of a new rule, she
would find it to be an unlawful “suggest[ion] that expressions of dissat-
isfaction with working conditions were inconsistent with continued
employment.” Stoody Co., 312 NLRB 1175, 1175 (1993).
4 Given the judge’s findings, we shall include Emmanual Findley
among the employees entitled to reinstatement. The Respondent will
have the opportunity to present evidence during the compliance stage of
this proceeding regarding Findley’s prearranged transfer to the custom-
er service department and its corresponding remedial obligations to
him. We shall amend the judge’s remedy to require the Respondent to
read the remedial notice to its employees. Given the number of em-
ployees involved (nine) and the Respondent’s expulsion of an entire
department (sales) for unlawful reasons, we believe an oral repudiation
of the unlawful conduct is necessary to dispel its effects. See The
Sheraton Anchorage, 363 NLRB No. 6, slip op. at 2 (2015) (notice
reading warranted where employer’s violations are serious and wide-
spread); Concrete Form Walls, Inc., 346 NLRB 831 (2006) (ordering
notice reading where employer unlawfully discharged four employees
for voting in a representation election and committed one additional
Sec. 8(a)(1) violation). We shall modify the judge’s recommended
Order to conform to our findings and the Board’s standard remedial
language. We shall also substitute a new notice to conform to the Or-
der as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Myeasha Strain, Emmanual Findley, Roberta Frenzel,
Mary Martin, John McCawley, and Robert Thompson
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(b) Make Myeasha Strain, Donovan Boyd, Emmanual
Findley, Roberta Frenzel, Mary Martin, John McCawley,
Carrie Pappan, Jennifer Smith, and Robert Thompson
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the man-
ner set forth in the remedy section of the decision.
(c) Compensate Myeasha Strain, Donovan Boyd,
Emmanual Findley, Roberta Frenzel, Mary Martin, John
McCawley, Carrie Pappan, Jennifer Smith, and Robert
Thompson for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and file with the
Regional Director for Region 28, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award(s)
to the appropriate calendar year(s) for Myeasha Strain,
Donovan Boyd, Emmanual Findley, Roberta Frenzel,
Mary Martin, John McCawley, Carrie Pappan, Jennifer
Smith, and Robert Thompson.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges of Myeasha Strain, Donovan Boyd, Emmanual
Findley, Roberta Frenzel, Mary Martin, John McCawley,
Carrie Pappan, Jennifer Smith, and Robert Thompson,
and within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms

5 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
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since July 27, 2016.
(g) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance, at
which the attached notice marked “Appendix” is to be
read to employees by a responsible management official
in the presence of a Board agent if the Region so desires,
or, at the Respondent’s option, by a Board agent in the
presence of a responsible management official.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. March 30, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 3
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your protected concerted activi-
ties.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT inform you that you are being dis-
charged because you engaged in protected concerted
activities
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Myeasha Strain, Emmanual Findley, Rob-
erta Frenzel, Mary Martin, John McCawley, and Robert
Thompson full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed
WE WILL make Myeasha Strain, Donovan Boyd, Em-
manual Findley, Roberta Frenzel, Mary Martin, John
McCawley, Carrie Pappan, Jennifer Smith, and Robert
Thompson whole for any loss of earnings and other ben-
efits resulting from their discharge, less any net interim
earnings, plus interest, and WE WILL also make such em-
ployees whole for reasonable search-for-work and inter-
im employment expenses, plus interest.
WE WILL compensate Myeasha Strain, Donovan Boyd,
Emmanual Findley, Roberta Frenzel, Mary Martin, John
McCawley, Carrie Pappan, Jennifer Smith, and Robert
Thompson for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file
with the Regional Director for Region 28, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar year(s) for each
employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Myeasha Strain, Donovan Boyd, Em-
manual Findley, Roberta Frenzel, Mary Martin, John
McCawley, Carrie Pappan, Jennifer Smith, and Robert
Thompson, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges will not be used against them in any way.
NATURAL LIFE, INC. D/B/A HEART AND
WEIGHT INSTITUTE
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-181573 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Elise F. Oviedo, Esq., for the General Counsel.
Erica J. Chee, Esq. (Ogletree, Deakins, Nash, Smoak & Stew-
art, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter is be-
fore me on a complaint and notice of hearing (the complaint)
issued on October 18, 2016, arising from unfair labor practice
charges that Myeasha Strain (Strain) filed against Natural Life,
Inc. d/b/a Heart and Weight Institute (the Respondent or the
Company), alleging violations of section 8(a)(1) of the Act.
Pursuant to notice, I conducted a trial in Las Vegas, Nevada,
on January 9–11, 2017, at which I afforded the parties a full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. The General Counsel and
the Respondent filed helpful posthearing briefs that I have duly
considered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Issues
(1) Did the Respondent, on July 27, 2016,1 discharge its en-
tire sales department, including Strain, Donovan Boyd, Em-
manuel (Manny) Findley, Roberta Frenzel, Mary Martin, John
McCawley, Carrie Pappan, Jennifer Smith, and Robert
Thompson, because sales department employees had engaged
in protected concerted activities?
(2) Did the Respondent, after July 27, refuse to consider re-
hiring, and did not rehire, Strain, Frenzel, Martin, McCawley,
and Thompson because they had engaged, or were suspected
of engaging, in protected concerted activities?2
(3) Did the Respondent, after July 27, also refuse to consider
rehiring, and did not rehire, Strain because she posted com-
ments and pictures on her Facebook critical of the Respond-
ent’s policies regarding sales employees’ pay and workplace
conditions?
(4) Did the Respondent’s quality assurance department (QA)
engage in surveillance of employees to discover their concert-
ed activities, by listening in on their telephone calls from
about February 5 through about July 27?
(5) Did Linda Guggia, as an agent of the Respondent, tell
employees on July 27 that the Respondent had recorded calls
of people talking about getting an attorney with regard to their
terms and conditions of employment, thereby creating the im-
pression of surveillance of their protected concerted activities?
(6) On the same date, did Guggia threaten employees with
discharge/not being rehired because of their negativity and
complaints about terms and conditions of employment?
(7) On the same date, did Guggia, through her oral an-
nouncement, promulgate and since then maintain the rule that
employees are not allowed to be negative or complain about
terms and condition of employment?
(8) Did Guggia, in response to Strain’s earlier protected activ-
ity, go to Strain’s Facebook page on August 3, to engage in
surveillance of employees engaged in concerted activities?
(9) Did Guggia, on August 3, create the impression of sur-
veillance of employees’ protected activities, by commenting
to Strain about her posting comments and pictures on her Fa-
cebook critical of the Respondent’s policies regarding sales
employees’ pay and workplace conditions?
Witnesses and Credibility
The General Counsel called Strain and Thompson (her son),
as well as Guggia as a 611(c) adverse witness. The Respondent
called Company Owner Konstantine (Korny) Stoyanov and
Guggia.
Strain was a reliable witness. She testified confidently; in
appropriate detail, considering the length of her employment,
the many incidents involved, and the frequent changes in her
position and compensation; and without any apparent attempts

1 All dates hereinafter occurred in 2016 unless otherwise indicated.
2 Par. 4(l) of the complaint alleges that they were “applicants” as of
August 3, but Strain did not apply for reemployment after July 27, and
there is no evidence that any of the others did so.
to embellish or skew her testimony in her favor.
For example, Strain testified that on an occasion when Man-
ager Jim Spencer made a racist statement, other employees but
not she, told him that he could not say that. As another exam-
ple, when I asked Strain how often, between May and July 27,
2016, she and other employees spoke about going to the NLRB
or getting an attorney, Strain testified that it was less than a
majority of weeks. Strain conceded that she casually uses the
expression, “I got something for their asses,” and she testified
that she recalled one occasion prior to July 27 when she had
used it when talking with Guggia. Further, Thompson corrobo-
rated her testimony of what she said (or did not say) to Guggia
during and after the July 27 meeting, contradicting Guggia’s
testimony. Finally, Strain’s testimony of the protected concert-
ed activities in which she and other employees engaged was
supported by the stipulations into which counsels entered, as
well as Guggia’s statements at the July 27 meeting.
In contrast, neither Guggia nor Stoyanov were credible. In
demeanor, Guggia appeared nervous and uncomfortable, to the
point of distressed. Although she answered background ques-
tions directly and without hesitation, she was markedly equivo-
cal, vague, and/or nonresponsive when answering questions
concerning her supervisory status on and before July 27, what
she told employees when she terminated them that day, when
she started reconstituting the sales department after July 27, and
why Strain was not rehired. Indeed, she appeared to be making
an almost desperate attempt to say the “right words,”3 which I
interpret as not harming the Respondent’s case. For example,
regarding resumption of the sales department after July 27:4
GC: When did you say you started calling people to build up
at a team?
Answer: Well, I mean, it wasn’t—they were already calling
me, but I mean I called people back that had called me. . . .
Like, the beginning—probably the beginning of August,
maybe second week of August. I don’t remember.
. . . .
GC: And can you please tell us again when you started back
hiring[sic] employees for your team?
Answer: I don’t remember. I don’t know. . . .
My demeanor assessment wholly aside, her testimony itself
was replete with inconsistencies. For example, she first testi-
fied that prior to July 27, when Sales Manager John Finley was
absent, no one filled in for him as acting manager because the
employees “always. worked together as a team. . . . ,” but she
then stated that “[W]hen he was gone, I would, of course, step
up to the plate” and communicate directly with Stoyanov.5 As
another example, Guggia testified more than once that Strain’s
purported threat on July 27 was the main reason she did not
recall Strain back to work. Yet, when Strain asked her on the
stand whether she felt threatened on July 27, Guggia replied, “I
didn’t. No, I didn’t. I thought that we were friends. . . .
[T]hat’s why it bothered me a lot. . . . ”6

3 Tr. 64.
4 Tr. 145, 152–153.
5 Tr. 34–35.
6 Tr. 168.
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 5
Most damaging to Guggia’s credibility was that her testimo-
ny on key points was directly contradicted by statements that
she made in her affidavit of September 7 (GC Exh. 7) and in
the stipulated transcript of the tape recording that Strain made
of Guggia’s statements when she terminated the employees on
July 27 (GC Exh. 3(b) (the transcript). Moreover, the tape
recording contradicted statements in her affidavit.
Thus, Guggia denied telling employees at the meeting that
the Company was closing its doors and that they were fired.7
And, in her affidavit (at 3) she stated that she told employees
that “we would be closing down temporarily for about a week
or two.” On the contrary, the transcript shows that she said the
following (at 2-3):
Strain: So basically, Kony fired everybody.
IT Supervisor Hensley: Everybody’s gone.
Guggia: Yup.
Hensley: He’s shut it down.
Guggia: He can’t afford to pay us anymore. . . .
Guggia testified that she did not bring up employees’ com-
plaints about losing their base salary, losing their openers from
the Philippines, or bumped chargebacks vis-à-vis their con-
tracts. In contrast, the transcript reflects that she mentioned all
of these complaints. She further testified that she did not say
anything about negativity, but the transcript reflects that she
made numerous references to negativity, including the state-
ment (at 8), “If everybody feels that negative about the compa-
ny, they shouldn’t be here.”
Guggia denied telling the employees on July 27 that QA had
recordings of them talking about a lawsuit, but the transcript
states (at 3–4):
But this is what happens when you have angry people all the
time, and you have QA constantly listening to what we say
behind closed doors, behind . . . to each other, side by side;
they have recordings of people saying things that are just hor-
rible. They have a whole conversation of people talking
about a lawsuit like, half an hour long. . . .
As to why she did not call Strain back to work, Guggia testi-
fied that the primary reason was that Strain threatened her as
she was leaving the facility on July 27, after being fired; more
specifically, that Strain said, “I have something for their ass-
es,”8 which Guggia purportedly took as a personal threat to her
and her vehicles. Such a reaction is unreasonable from an ob-
jective standpoint, since there is nothing in the record suggest-
ing that Strain had ever engaged in, or threatened, violence. In
contrast, Guggia’s affidavit (at 4) states that Strain made the
comment during the meeting, not as she was leaving, and that
“I did not respond to her. I simply said that I love everybody
and the timing couldn’t be worse for my cruise. . . . ”
Guggia’s affidavit mentions nothing about her taking that
remark as threatening or that it played any part in her decision
not to recall Strain. Instead, the affidavit states (at 4–5) that
Guggia looked at Strain’s Facebook page after she returned
from vacation and decided not to call Strain back because she

7 Tr. 70, 75.
8 Tr. 107.
had said “horrible things about the company and the Owner,
and his affiliate[sic] companies.” In this regard, Guggia testi-
fied that after the July 27 meeting, she sent an email to
Stoyanov about the purported threat that day, but the Respond-
ent’s counsel represented that no such document was provided
to her. Furthermore, as earlier stated, Guggia testified at one
point that she did not feel threatened on July 27.
Guggia testified that when she went on her cruise on July 28,
she had no idea of any plans for the sales department after her
return; rather, she had an epiphany while on the cruise of how
the department could be restructured. According to Guggia and
Stoyanov, they discussed this only after she came back on Au-
gust 1, and he gave approval on a trial basis. However, state-
ments that Guggia made on July 27, to Strain individually and
to the sales persons as a group, reflect that she was already
planning to have a new sales team upon her return. Moreover,
a document (GC Exh. 9(a)) that the Respondent provided dur-
ing the investigation states (at 2), “On August 2, when Linda
came back the [sales] agents was[sic] Lori Bass, Trudy Maxey,
and Carrie Pappan,” strongly suggesting that they were already
working in sales even before Guggia returned from the cruise
or, at the very least, that they were doing so within a day of her
return. In view of this time frame, I have to believe that
Stoyanov and Guggia had firm plans on July 27 to reopen the
sales department almost immediately.
In sum, Guggia’s testimony—itself deficient—was under-
mined by her affidavit, the tape recording of what she told em-
ployees on July 27, and the Respondent’s own submission to
the Region. As such, I conclude that it was totally unreliable.
Stoyanov, too, was not a credible witness, especially in view
of his business acumen, as reflected by his testimony that he
owns and operates a number of businesses, in Las Vegas, the
Philippines, and Europe; and his testimony that, although he is
not often physically present at the facility, he maintains regular
contact with company managers by Skype or email.
Thus, Stoyanov was often evasive, some of his testimony
was contradictory, and portions of his testimony were not be-
lievable. As to Guggia’s authority between March and July,
Stoyanov incredibly testified that he could “not recall” if he
used her to convey messages to employees, used her to convey
messages when Sales Manager John Finley was absent, or if he
had anyone else make announcements when Finley was not
there.9 When asked when he made the decision to close the
sales department, he answered nonresponsively: “It was on the
table every single month.”10
Stoyanov gave contradictory testimony regarding what in-
structions he gave Guggia concerning what to tell sales em-
ployees about the July 27 closing. At one point, he testified
that he called Guggia by Skype from Europe and told her they
needed to close the office “temporarily” while she was on vaca-
tion because “we [had] no idea what’s going on with John Fin-
ley.11 He further testified that he told her to tell employees that
the department would reopen after she returned from vacation.
Yet, he later testified that he authorized her to tell employees

9 Tr. 585–586.
10 Tr. 519.
11 Tr. 546.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that the Company was closing the sales room and not to come
back. Moreover, for a businessperson who operates interna-
tionally, Stoyanov’s professed ignorance of what the term
“fire” means in the employment context was wholly unbelieva-
ble.
For a variety of reasons, Stoyanov failed to provide a con-
vincing reason for the timing of the closing of the sales depart-
ment on July 27. Both he and Guggia testified that on July 27,
they believed that Finley was looking for another job and was
not coming back to work and that they discussed the fact that in
Guggia’s absence, there would be no onsite supervisor for the
sales department.
However, I credit Strain’s unrebutted testimony that on the
morning of July 27, Finley sent a Skype to the sales department
stating that Stoyanov had given him a personal day off, that
Guggia would be in charge for the day, and that he would be
returning tomorrow. In this regard, Stoyanov could “not re-
call” if he gave Finley that day off on personal time,12 and
Guggia did not testify on that point. In fact, Stoyanov indirect-
ly corroborated Strain’s testimony reflecting that Finley was
still the sales manager as of July 27 and 28—he testified that he
called Guggia on July 27 because he could not get in touch with
Finley.
The Respondent did not call Finley as a witness, and the date
that he left the Company’s employ, as well as the circumstances
of his separation, remain unknown. Our system of jurispru-
dence has what is called the “missing witness rule,” which pro-
vides that:
Where relevant evidence which would properly be part of a
case is within the control of the party whose interest it would
normally be to provide it, and he fails to do so without satis-
factory explanation, the [trier of fact] may draw an inference
that such evidence would have been unfavorable to him. 29
Am. Jur.2d §178.
Normally, an administrative law judge has the discretion to
draw an adverse inference based on a party’s failure to call a
witness who may reasonably assumed to be favorably disposed
to the party and who could reasonably be expected to corrobo-
rate its version of events, particularly when the witness is the
party’s agent and thus within its authority or control. Roosevelt
Memorial Medical Center, 348 NLRB 1016, 1022 (2006); see
also Martin Luther King, Sr. Nursing Center, 231 NLRB 15, 15
fn. 1 (1977); Underwriters Laboratories Inc. v. NLRB, 147 F.3d
1048, 1054 (9th Cir. 1998). In that event, drawing an adverse
inference regarding any factual question on which the witness
is likely to have knowledge is appropriate. International Auto-
mated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem.
861 F.2d 720 (6th Cir. 1988).
The Respondent offered no evidence to show that it sought
to procure Finley’s presence as a witness, by subpoena if neces-
sary, and I draw the appropriate adverse inferences.
Even if Finley and Guggia were not going to be present from
July 28 to on about August 1, the Respondent had customer
service and IT departments, each of which had a supervisor.

12 Tr. 564.
Furthermore, Guggia told Stoyanov a few weeks prior to July
27 that she was going on vacation on July 28, so he knew con-
siderably ahead of time that she would be gone for a few days.
As General Counsel Exhibit 9(a) shows, the Respondent by
August 2 and by Guggia’s return already had three employees
doing sales, two from customer service and one prior sales
person who had just been fired. I can think of no legitimate
business justification for terminating an entire sales department
and then within a few days starting a resumption of the opera-
tion.
At this junction, I will address my rejection of Respondent
Exhibit 3, daily reports from January 1—March 6. After
Stoyanov testified on voir dire that he relied on the document in
making the decision to close the sales department, the General
Counsel objected to the document and any testimony thereon
on the basis that the document was not provided pursuant to the
General Counsel’s subpoena duces tecum (GC Exh. 11). Para-
graph 18 thereof asked for “documents and communications
which set forth, discuss, and/or relate to the reasons for which”
the sales department employees were discharged on July 27,
and paragraph 19 requested “[d]ocuments . . . on which Re-
spondent relied in discharging” them. In response to the Gen-
eral Counsel’s objection, the Respondent’s counsel advanced
the rather creative argument that the document did not specifi-
cally relate to the discharges but to the closure of the sales
room. I rejected that argument on the basis that the two events
have to be considered one and the same res gestae and cannot
be meaningfully distinguished.
The General Counsel requested sanctions for noncompliance,
including rejection of Respondent Exhibit 3 and barring the
Respondent from presenting evidence about the subject matter
sought by the subpoena, more specifically, purported economic
bases. I granted that request, citing M.D. Miller Trucking, 361
NLRB 1225 (2004); McAllister Towing & Transportation, 341
NLRB 394 (2005), enfd. Mem 156 Fed Appx. 386 (2d Cir.
2005); and Perdue Farms, 323 NLRB 345 (1997), affd. in rele-
vant part, 144 F.3d 830, 839–834 (D.C. Cir. 1998).
In any event, in view of Stoyanov’s unreliability as a wit-
ness, I cannot fathom how documents relating to business con-
ditions for the first quarter of 2016 could show justification for
the timing of the discharges on July 27. Significantly,
Stoyanov first testified that the Company was not profitable for
the past “three or four years” and then that it “[w]as never a
profitable company” despite his “always” bringing in new
managers.13
This provides one example of aspects of his testimony that
strained credulity. The Company has been in operation since
2004, and I simply cannot believe that he would have operated
a business at a loss for 12 years. Another example was his
professed ignorance of whether Finley was still an employee of
the Company on July 27. Finally, although both Stoyanov and
Guggia testified that she always needs to get his approval, in-
cluding for the hiring of sales people, Stoyanov testified that he
gave her no guidelines on how many people to hire when the
operation resumed in August and could “not recall” giving her

13 Tr. 503.
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 7
guidelines on pay rates.14
For all of the above reasons, I credit Strain’s testimony over
that of Stoyanov and Guggia where they diverged.
Facts
Based on the entire record, including the pleadings, testimo-
ny of witnesses, and my observations of their demeanor, docu-
ments, and the parties’ stipulations, I find the facts as follows.
The Respondent’s Business Operation
Since 2004, the Respondent, a corporation with an office and
place of business in Las Vegas, Nevada (the facility), has en-
gaged in the telemarketing retail sale and distribution of health
supplements. The Respondent has admitted jurisdiction as
alleged in paragraph 2 of the complaint, and I so find.
Konstantine (Korny) Stoyanov is the owner and president of
the Company. He also owns an affiliated company in Cebu, the
Philippines, the employees of which have interacted with those
of the Company; and a separate company in Las Vegas,
411Locals, an advertising agency. At one time, the human
resources (HR) office of 411Locals performed HR services for
the Company, and for purposes of this case, the Respondent
stipulated that Hollie Anderson and Gina Neist of that office
acted as its agents. HR functions are now performed at the
Company by Mariana Stoyonova, Stoyanov’s mother,15 and
Militsa Georgieva. 411Locals continues to perform accounting
services for the Company. Finally, Stoyanov has businesses in
Europe. He spends about 70 to 80 percent of the year outside
the United States.
The Respondent has used several classifications of sales per-
sons, including:
(1) Opener – opens up leads for the closer by “cold-calling”
potential customers and finding out of they are interested. If
so, the next step is handled by a closer.
(2) Closer – calls a customer back and reviews the condi-
tions of the order. If the deal is closed, the closer gets the cus-
tomer’s information and sets up a payment plan.
(3) Front-to-Back – salesperson both opens and closes the
transaction.
(4) Bumper (or Verifier) – verifies everything that the closer
original started and then offers a package deal, for example a
year’s product, at a reduced cost but requiring a lump sum
payment. This is called “bumping” because the sale is con-
sidered an increased sale. This has been the position with the
highest compensation and responsibility.
(5) Reloader – calls customers who have discontinued buy-
ing and tries to get them back on the product or to order a dif-
ferent product, or calls customers who are close to running out
and get them to reorder.
The flat wage rate and commission varies by classification
and has not stayed constant. At times, openers in the Philip-
pines have made the initial calls to potential customers in the

14 Tr. 562.
15 The spelling of her last name differs from her son’s.
United States, with closers in Las Vegas taking over thereafter.
It is undisputed that Stoyanov has at all times maintained ul-
timate decision-making authority and has regularly communi-
cated with local management. The management structure at the
facility has undergone numerous changes in recent years, mak-
ing difficult precise demarcation of lines of authority. From
approximately late 2014–2016, Sales Director Jim Spencer was
the highest-ranking manager. Under him were Sales Manager
John Finley, from approximately mid-2015 on; and, when she
served as a sales manager, Linda Guggia.
Prior to March 2016, the Company maintained sales offices
on the first and second floors of a commercial building, each
with a separate team of sales persons. The offices were acces-
sible through outside corridors and had no physical connection
with one another. In March, the upstairs sales office was closed
and merged with the downstairs office, at which time Finley
became the sales manager for all of the sales people. Guggia,
who had been the upstairs sales manager since August 2015,
returned to her former position of bumper. Nevertheless, dur-
ing the period March to July 26, she served as the acting man-
ager in Finley’s absence, at which times she instructed employ-
ees and directed their breaks. As of around July 1, she held
daily morning meetings with sales employees, and she conduct-
ed a meeting in about June with sales employees, at which she
announced changes that the Company was making in the opera-
tion and the employees’ job duties. It is undisputed that she has
been the sales manager and a supervisor and agent since at least
shortly after she returned in August.
Myeasha Strain’s Employment
Strain started with the Company as an opener in September
2011 and 6 months later was promoted to a closer. She left in
December 2012 and returned in March 2013 as a closer/bumper
in the downstairs sales office. In March, she became a loader
for about 2 weeks and then became a closer, with bumper and
training responsibilities, as needed.16 She remained in that
position until July 27, 2016.17
The Respondent has not contended that any deficiencies in
Strain’s performance played a role in her termination or its
failure to recall her after July 27. On the contrary, the record
reflects that Stoyanov held her in high esteem, as reflected by a
July 19 email from Stoyanov to Finley (R. Exh. 2). Therein,
Stoyanov rejected Finley’s proposal to use openers in Cebu or
Las Vegas rather than have only front-to-back sales. Stoyanov
went on to state that if Finley did not think that he could make
it work, Strain, I.T. Supervisor Shawn Hensley, or Guggia
could take over for him.

16 At that time, Guggia was made the regular bumper over all of the
sales people. Strain questioned why she was demoted from bumper
when she had more seniority than Guggia, but this is not an issue before
me. The General Counsel does not contend that any conduct of the
Respondent prior to July 27 was unlawful.
17 See GC Exh. 10, Strain’s last contract, effective July 5. For pur-
poses of this case, the Respondent is not contending that she or the
other individuals named in the complaint were independent contractors
rather than employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Strain’s and Other Employees’ Protected Concerted Activi-
ties Prior to July 27, 2016
Spencer held the role of a sales manager prior to leaving in
2014 and returning as sales director in approximately late 2014.
Both during his tenure as manager and after he returned as di-
rector, he constantly made racist or sexist comments.
For example, on one occasion as a manager, in front of sev-
eral salespeople, he sang a ditty in which he used the term,
“coon babies.” At that time, other employees not including
Strain objected. However, a week thereafter, Strain “Skyped”
Stoyanov and complained that Spencer was prejudiced.
Stoyanov told that he would talk to Spencer. Spencer contin-
ued using racist terms, and Strain repeatedly complained about
this to Stoyanov, who told her that “you guys need to get
along.”18
On another occasion, which Strain believed occurred when
Spencer was already a director, Stoyanov had lunch delivered
to the sales room. The following occurred.19 Spencer ordered
chicken, saying, “[Y]ou guys just want chicken don’t you,
don’t you guys like chicken?” As Spencer was passing out the
chicken, he asked Strain what piece she wanted. When she said
a breast, he said, “Why should I give you the breast, you have
two big ones already.” One of the male employees responded
that Spencer was not supposed to say that, to which Spencer
replied, “Well, why shouldn’t I; she does, two big ones.” The
other employee wrote up a written complaint about this and
gave it to Gina Neist of HR.
Neist came in one day and told the sales employees that she
was going to meet them one-on-one the next day so they could
write up their complaints about Spencer. Neist did so, and
Strain presented her with written complaints concerning him.
After Finley became downstairs sales manager in approxi-
mately mid-2015, employees, including Strain complained to
him about their pay going up and down, Spencer and his com-
ments, and their desire for better benefits. Within a month of
Finley’s becoming sales manager, he came into Strain’s office,
which was on the first floor. He told her that he was the liaison
between the upstairs and downstairs sales offices and wanted to
get here statements about what was going on. He wrote down
what she said about Spencer’s racist and sexist remarks, the
changing of rules and pay, and the Respondent’s failed attempt
in late 2015 to institute a fingerprint system for signing in.
Afterward, Strain observed him going over to other sales per-
sons, sitting down with them, and writing as they were talking.
From May to July 27, at various locations in the premises,
Strain spoke with other employees about going to the NLRB or
getting an attorney because the Company was taking money out
of their paychecks for charge backs for returned products that
had been bumped up. This occurred on many, but not a majori-
ty, of weeks during that period. Strain and other employees
voiced this complaint to Finley.
As a specific example, on May 16, Strain went over to Fin-
ley’s desk and asked why approximately $200 was being de-
ducted from her paycheck. He responded that it was for charge

18 Tr. 231.
19 Tr. 229.
backs. Strain replied that she had not agreed to such. He re-
sponded that was how the Company was going to do it. Strain
then stated that if the Company was going to do so without
permission, she would have to get an attorney. Finley told her
that he typed up what she said and sent it to Stoyanov. Later,
Finley told her that Stoyanov said to give her the money.
At one time, Las Vegas had about 15 sales persons designat-
ed as openers, who worked with about 8 closers. Starting in
late 2015, the number of openers in Las Vegas gradually de-
creased, and by approximately the end of May, all of the open-
ers were in the Philippines.
In around June, Guggia held a meeting with the sales em-
ployees. She told them that in the following month, the Com-
pany was eliminating the position of openers, employees in the
Philippines would no longer perform that function, and Las
Vegas employees now would have to sell front-to-back (and
would lose the benefit of having “warm leads”). The sales
people, including Strain, objected to this change. Strain specif-
ically asked whether the Company wanted warm bumps, to
which Guggia responded that Stoyanov and Finley had decided
the cost of openers was too high. Strain then said that she had
been there for 5 years and that every manager who had tried
front-to-back had failed.
The change was implemented about a week later, and em-
ployees saw reductions in their next paychecks. Strain and
others frequently complained about this among themselves in
various locations, both inside and in the proximity of the facili-
ty; and to Finley and Guggia at morning meetings around July
1. In this regard, I credit Strain’s testimony that at those meet-
ings, “all of us” complained “as a group” about no longer hav-
ing openers.20
The last contracts for the sales people were distributed on
about July 5. It provided, inter alia, that they would be charged
back only on recurring bottle sales (one bottle every month), as
opposed to a big bulk package. About a week afterward, Finley
announced the amount of money that would be taken out for
bulk chargebacks. Thereafter, the employees, including Strain,
complained among themselves that this was not in their con-
tracts.
At around noon on about July 15, Strain and Pappan went to
speak to Finley. They had their latest contracts with them.
Strain was the first to ask why she was being charged bulk
chargebacks. Finley replied that he would get a copy of her
contract, and he called in Militsa Georgieva of HR. Then he
typed up something and said that he would wait for a response
from Stoyanov. Strain went back to her desk, which was right
next to his. She heard Pappan complain to him about the
chargebacks to her pay and that the Company had her owing
money rather than getting paid. About an hour later, Finley
told Strain that Stoyanov said to pay her.
On July 26, Strain sent Stoyanov an email, complaining that
“[t]here’s so much negativity coming from management daily,”
about the way management was treating employees, and about
bonus payments. (R. Exh. 1.)
The parties stipulated (for purposes of this case only) that at
various times from the end of 2013 to 2015, Strain and other

20 Tr. 303–305.
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 9
employees engaged in concerted activities by making com-
plaints to HR and management regarding racism and sexism in
the workplace. The parties further stipulated that for the period
February 5–August 3, employees other than Strain complained
about canceled customer orders, meaning deducting charge
back fees from employee pay; office negativity; and other terms
and conditions of employment.
July 27, 2016 Closure of the Sales Department and Dis-
charges of its Employees
Because Stoyanov and Guggia were singularly unreliable
witnesses, I can make no findings of fact of why and when the
Respondent made the decision to close the sales department and
terminate all of the employees. I do find, based on their con-
sistent testimony on point, that Stoyanov conferred actual au-
thority on Guggia to communicate the closing to the sales em-
ployees.21
On the morning of July 27, Finley sent a Skype to the sales
employees. He stated that he had something wrong with his
water heater, that Stoyanov had given him a personal day off,
and that Guggia would be in charge for the day. He further
stated that he would see them (the sales people) tomorrow.
Later on, at some point, Guggia announced to employees that
she had made salesperson Emmanuel Findley a customer ser-
vice agent.
At approximately 11:30 a.m., Guggia began calling employ-
ees one by one into her office, for approximately 5–7 minutes
each. When Strain was there, Guggia stated that they were
trying to get rid of Finley and asked how Strain felt. Strain
replied that she just wanted to work. Guggia then asked, “How
do you feel about working on my team if I can get a team to-
gether?”22 Strain repeated that she just wanted to work. Gug-
gia then stated that she and Stoyanov were still in discussion
about how to make the sales team work. Strain returned to her
work station.
At 2 p.m., Guggia came onto the sales floor, as did IT Man-
ager Shawn Hensley. Employees remained at their work sta-
tions. Guggia announced that the Company was “closing the
doors today.”23 Guggia and Hensley both stated that they had
tried without success to get Stoyanov to reconsider that deci-
sion. Guggia also said, “You know, you guys already know
what you’ve been doing, people have been complaining.”24
At this point, Strain started recording on her cell phone.
General Counsel’s Exhibit 3(b) is the stipulated transcript of
what is said on the tape recording (GC Exh. 3(a)). It is 10 pag-
es long. Following is a summary, with selected excerpts.
Throughout her remarks, Guggia spoke of the negativity in
the sales department, and the failure of sales people to work
together. She blamed this on both the employees and (not by
name) Spencer, and cited employee complaints about one an-
other and about the workplace.
During the course of those remarks, Guggia specifically ref-
erenced the Company’s use of openers in Cebu, stating that a

21 Tr. 67, 565–566.
22 Tr. 359.
23 Tr. 361.
24 Tr. 363.
plan to train them better was needed. She also referred to em-
ployees’ complaints about their base salaries and bump backs.
Near the beginning, both Hensley and Guggia were unequiv-
ocal in saying that the sales department employees were fired.
After Guggia stated that she would help them to get other jobs,
the following statements were made (at 2–3):
Strain: So basically, Kony fired everybody.
Hensley: Everbody’s gone.
Guggia: Yup.
Hensley: He’s shut it down.
Guggia: He can’t afford to pay us anymore. . . . [W]e have to
close the doors.”
Thereafter, Guggia repeatedly offered to help them get other
jobs. Paradoxically, Guggia also made statements clearly indi-
cating that the closure was not permanent. Thus, Guggia stated
that she would be returning to work after her cruise, both she
and Henley stated that the operation needed to be restructured,
and she said (at 5):
I want the best team. I want the best people. I don’t want
people who want to sue. I don’t want people who are gon-
na[sic] constantly nag. . . . And if you ever want to be on my
team again one day, . . . . I would love to have you if you fit
into that criteria. If you’re a negative person that’s not willing
to grow or learn, or deal with the hard times, I don’t want to
work with you. . . .
In fact, she said at one point (at 6), “I foresee us working to-
gether soon.”
As far as the reason for the closure, Guggia said (at 3–4):
But this is what happens when you have angry people all the
time, and you have QA constantly listening to what we say
behind closed doors, behind . . . to each other, side by side;
they have recordings of people saying things that are just hor-
rible. They have a whole conversation of people talking
about a lawsuit like, like, half an hour long. . . . I don’t want to
deal with people that, you know, want to do that to me. You
pick and choose who you want down the road to work with
you. . . .
Stoyanov testified without controversion that quality control
listens in and records conversations between sales persons and
customers on a random basis or if there is a question of how a
particular sales person is performing.
Although Guggia stated in her affidavit (GC Exh.7 at 4) that
Strain said during the meeting that “she had something for their
ass,” this remark does not appear in the stipulated transcript,
which I find more reliable than Guggia’s testimony. The tran-
script (at 10) does support Strain’s testimony (and that of
Thompson) that after the conclusion of the meeting, Strain
asked for a mail bucket so that she could retrieve her personal
possessions from her desk.
For reasons previously stated, I do not believe Guggia’s tes-
timony that as Strain was leaving the facility, Strain directed
the remark about “something for their ass” at her. I credit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Strain that, although she does use the expression at times in
casual conversation, she did not say it to Guggia at any time
that day.
Events after July 27
By August 2, Lori Bass and Trudy Maxey from customer
service, and former sales employee Pappan were working as
sales agents, and Boyd came back in that role on August 10.25
In mid-August, Guggia rehired Smith, and she has also hired at
least two other sales persons who had previous experience with
the Company but were not employed as of July 27. Guggia’s
testimony concerning why she rehired certain ex-employees but
not others was vague and evasive, and patently unreliable. By
mid-August, Guggia was formally designated the bumper and
sales manager, a position that the Respondent concedes was
supervisory within the meaning of Section 2(11) of the Act.
As of August 3, Guggia and Strain were Facebook friends,
and that day, Guggia initiated a series of Messenger communi-
cations with her.26 Guggia started by stating that she was told
Strain was taking pictures of her Facebook page and sending it
to people. Strain denied this, but Guggia continued with the
accusation, and their exchange grew increasingly antagonistic,
to the point of overtly hostile.
Strain had a Facebook account that she used before and after
July 27. Among those posts after July 27 were those contained
in General Counsel Exhibit 6(a), which represents some of the
posts that Guggia provided to the Region during the investiga-
tion. Page 1 is a cartoon negative toward employers in general;
page 3 makes negative comments about 411Locals; and pages 4
and 5 criticize the Company for racism and outsourcing to Ce-
bu.
I do not credit Guggia’s claim at trial that the Board agent
simply requested confirmation of Strain’s Facebook account
and that Guggia did not specifically select certain posts. Ra-
ther, logic dictates that she sent posts that she believed support-
ed the statement in her affidavit (GC Exh. 7 at 4–5) that, after
hearing that Strain had said “horrible things” about her on Fa-
cebook:
I then looked at her Facebook page and saw her saying horri-
ble things about the company and the Owner, and his affiliate
companies. For example, she was saying things like, the
company was stealing from her paycheck and the company
was racist. Based on her comments, I decided not to ask her
to come back to work for the company.
In contrast to her affidavit, Guggia emphasized at trial that
her primary reason for not recalling Strain was Strain’s com-
ment as she left on July 27 that “she had something for their
ass,” which Guggia asserts she construed as a serious threat to
her personal safety and her automobiles in the parking lot.
In an October 5 email to Stoyanov (GC Exh. 4 at 2), Guggia
stated that she did not recall Strain because she was “not only
threatening to sue the company but said she had something for
that ass,” which Guggia took as a threat. In the context of feel-
ing threatened, Guggia went on to say that she had seen or

25 GC Exh. 9(a) at 2.
26 GC Exh. 5. Strain’s moniker was “Velvetheoneandonly.”
learned that as recently as September 30, Strain was making
statements on her Facebook page that Guggia perceived to be
negative references to her.
Analysis and Conclusions
I. GUGGIA’S AUTHORITY ON JULY 27
Unquestionably, Guggia was vested with actual and apparent
authority when she conducted the July 27 meeting with em-
ployees and told them that they were terminated. Thus,
Stoyanov and Guggia admitted that she had actual authority to
speak on behalf of the Company. As far as apparent authority,
Guggia’s statements at the meeting, with IT Manager Henley’s
participation, clearly would have led employees to reasonably
believe that she was speaking as a management representative.
See Pan Oston Co., 336 NLRB 305, 305–306 (2001). Signifi-
cantly, Guggia had been a sales manager, filled in for Sales
Manager Finley in his absence, regularly conducted meetings
with employees regarding company policies, and announced
that same day that she had made salesperson Findley a custom-
er service agent. She was therefore clothed with implied au-
thority to act for management. See Quality Drywall Co., 254
NLRB 617, 620 (1981). I therefore reject the Respondent’s
argument (Br. 11–14) that she acted without authority when she
conducted the July 27 meeting.
II. INDEPENDENT 8(A)(1) ALLEGATIONS
Surveillance
An employer violates Section 8(a)(1) when it observes em-
ployees engaged in Section 7 activity in a way that is “more
than ordinary or casual,” making such conduct coercive. Sands
Hotel & Casino 306 NLRB 172, 172 (1992), enfd. sub nom.
mem. 993 F.2d 913 (D. C. Cir. 1993); Arrow Automotive Indus-
tries, 358 NLRB 860, 860 (1981), enfd. 679 F.3d 875 (4th Cir.
1982). Indicia of coerciveness include the nature and duration
of the observation, the employer’s distance from its employees
while observing them, and whether the employer engaged in
other coercive behavior during its observation. Aladdin Gam-
ing LLC, 345 NLRB 585, 585–586 (2005), rev. denied sub
nom. 515 F.3d 942 (9th Cir. 2008). An employer’s surveillance
of union organizing meetings attended by employees consti-
tutes an unfair labor practice. Athens Disposal Co., 315 NLRB
87, 97 (1994); Action Auto Store, 298 NLRB 875, 887 (1990).
1. Did the Respondent’s QA department engage in surveil-
lance of employees to discover their concerted activities, by
listening in on their telephone calls from about February 5
through July 27, 2016?
The statement that Guggia made on July 27 concerning the
QA department does not in and of itself establish the above
conduct. Stoyanov testified that QA records only calls between
sales persons and customers on a random basis or if there is a
question of how a sales person is performing, and there is no
evidence to the contrary. Accordingly, I recommend dismissal
of this allegation.
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 11
2. Did Guggia, in response to Strain’s earlier protected activi-
ty, go to Strain’s Facebook page on August 3, and thereafter,
to engage in surveillance of employees engaged in concerted
activities?
On August 3, Guggia and Strain were still Facebook friends,
and Guggia testified that she had heard that Strain was saying
“horrible things” about her and then looked at Strain’s Face-
book page. Similarly, in her October 5 email to Stoyanov,
Guggia inferred that she had looked at Strain’s Facebook page
as recently as September 30 in the context of what Strain was
saying about her individually. Although Guggia was not a
credible witness in general, this is not enough to warrant the
drawing of an inference that Guggia was engaging in surveil-
lance of Strain’s concerted activities. I therefore recommend
dismissal of this allegation.
Impression of surveillance
The Board’s test for determining whether an employer has
created an impression of surveillance is whether employees
would reasonably assume from the statement in question that
their union or other protected activities had been placed under
surveillance. Durham School Services, L.P., 361 NLRB No.
44, slip op. at 1 (2015); Fred’k Wallace & Son, Inc., 331 NLRB
914, 914 (2000). An employer creates such an impression by
indicating that it is closely monitoring the degree of employees’
involvement in protected activities. Flexisteel Industries, 311
NLRB 257, 257 (1993); Emerson Electric Co., 287 NLRB
1065, 1065 (1988).
1. Did Guggia tell employees on July 27, 2016 that the Re-
spondent had recorded calls of people talking about getting an
attorney with regard to their terms and conditions of employ-
ment, thereby creating the impression of surveillance of their
protected concerted activities?
In discussing the closing of the sales department, Guggia
made the statement:
[T]his is what happens when you have angry people all the
time, and you have QA constantly listening to what we say
behind closed doors, behind. . . . to each other, side by side;
they have recordings of people saying things that are just hor-
rible. They have a whole conversation of people talking
about a lawsuit like, like, half an hour long.
The filing of an employment—related class or collection ac-
tion relating to terms and conditions of employment is protect-
ed activity. Planet Beauty, 364 NLRB No. 3, slip op. at 1 fn. 1
(2016); Beyoglu, 362 NLRB No. 152, slip op. at 2 (2015).
Accordingly by stating that the Company was constantly listen-
ing in and recording employees’ conversations about taking
legal action, Guggia gave employees the reasonable impression
that their protected activities were under surveillance, and the
Respondent thereby violated Section 8(a)(1).
2. Did Guggia, on August 3, create the impression of surveil-
lance of employees’ protected activity, by commenting to
Strain about her posting comments and pictures on her Face-
book critical of the Respondent’s policies regarding sales em-
ployees’ pay and workplace conditions?
This relates to Guggia’s Messenger communications to
Strain, in which Guggia stated that she had been told Strain was
taking pictures of her Facebook and sending to people. Guggia
said nothing in her comments explicitly or implicitly referring
to the Company or its policies or practices. Accordingly, I
recommend that this allegation be dismissed.
Other alleged violations
These pertain to Guggia’s statements at the July 27 meeting.
1. Did Guggia threaten employees with discharge/not being
rehired because of their negativity and complaints about terms
and conditions of employment?
Inasmuch as all of the employees were actually discharged
that day, it well could be argued that any threat to discharge
them is essentially subsumed by the issue of the legality of the
discharges themselves. See now Chairman Miscimarra’s dis-
sent on point in Andronaco Industries, 364 NLRB No. 142, slip
op. at 1 fn. 1 (2016). Nonetheless, the Board has held that an
employer’s statements linking an unlawful discharge to an em-
ployee’s protected activity independently violates Section
8(a)(1). Triple Play Sports Bar & Grill, 361 NLRB 308, 308
fn.2 (2014), affd. sub nom. Three D, LLC d/b/a Triple Play
Sports Bar 7 Grille v. NLRB, 629 Fed. Appx. 33 (2d Cir. 2015),
361 NLRB No. 31, slip op. at 1 fn. 2; Benesight, Inc., 337
NLRB 282, 283–284 (2001). I will return to this allegation at
the conclusion of my analysis of the discharges themselves.
2. Did Guggia, through her oral announcement, promulgate
and since then maintain the rule that employees are not al-
lowed to be negative or complain about terms and condition
of employment?
It is difficult to conceptualize how Guggia was promulgating
a rule when all of the employees to whom she spoke were being
discharged; there would be no rules of any kind to enforce once
they were no longer employed. There is no evidence that any
employees other than sales persons heard what she said at the
meeting. Neither is there is any evidence that since the resump-
tion of the sales department’s operation, Guggia has said any-
thing along the same lines. Accordingly, I recommend dismis-
sal of this allegation.
III. THE JULY 27 DISCHARGES
The framework for analyzing alleged violations of Section
8(a)(1) turning on employer motivation is Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). General Motors Corp., 347
NLRB No. 67 fn. 3 (2006) (not reported in Board volumes).
Under Wright Line, the General Counsel must make a prima
facie showing sufficient to support an inference that the em-
ployee’s protected conduct motivated an employer’s adverse
action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in protect-
ed conduct, the employer knew or suspected the employee en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
gaged in such conduct, the employer harbored animus, and the
employer took action because of this animus.
Under Wright Line, if the General Counsel establishes a pri-
ma facie case of discriminatory conduct, it meets its initial bur-
den to persuade, by a preponderance of the evidence, that pro-
tected activity was a motivating factor in the employer’s action.
The burden of persuasion then shifts to the employer to show
that it would have taken the same adverse action even in ab-
sence of such activity. NLRB v. Transportation Corp., 462
U.S. 393, 399−403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d
800, 811 (6th Cir. 2002); Manno Electric, 321 NLRB 278, 280
fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam).
To meet this burden, “[A]n employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano
Painting, 332 NLRB 1363, 1366 (2000), citing Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for the employer’s actions are either
false or not, in fact, relied on, the employer fails by definition
to show that it would have taken the same action for those rea-
sons, and there is no need to perform the second part of the
Wright Line analysis. On the other hand, further analysis is
required if the defense is one of “dual motivation,” that is, the
employer defends that, even if an invalid reason might have
played some part in the employer’s motivation, the employer
would have taken the same action against the employee for
permissible reasons. Palace Sports & Entertainment, Inc. v.
NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
As far as Strain and other employees engaging in protected
concerted activities and employer knowledge thereof, the par-
ties stipulated that at various times from the end of 2013 to
2015, Strain and other employees engaged in concerted activi-
ties by making complaints to HR and management regarding
racism and sexism in the workplace.27 The parties further
stipulated that for the period February 5—August 3, 2016, em-
ployees other than Strain complained about canceled customer
orders, meaning deducting charge back fees from employee
pay; office negativity; and other terms and conditions of em-
ployment. In this regard, at morning meetings conducted by
Guggia, employees, as a group, voiced complaints about losing
openers. Strain herself, on numerous occasions from 2015 to
July 26, 2016, talked to other employees about their shared
dissatisfaction with chargebacks, bonuses, office negativity,
outsourcing policies, and other terms and conditions of em-
ployment; and she voiced those complaints directly to Finley
and/or Stoyonav.
Not every single sales person might have engaged in such
protected activity. Nonetheless, employees are protected from

27 An employer’s Equal Employment practices come under the pe-
numbra of “terms and conditions of employment,” and concerted activi-
ty protesting racism or sexism is protected. See, e.g., Continental Pet
Technologies, 291 NLRB 290, 291 (1988); Diagnostic Center Hospital
Corp., 228 NLRB 1215, 1217 (1977). The Respondent does not con-
tend that the activities here were pursued in a manner that stripped them
of the Act’s protection.
discriminatory conduct by an employer due to their suspected
union or other protected activity, even if the employer’s belief
is mistaken. See NLRB v. Link Belt Co., 311 U.S. 584, 589–
590 (1941); Alternative Energy Applications, Inc., 361 NLRB
1203, 1206 fn. 8 (20014). Guggia’s remarks at the July 27
meeting, as well as the discharges of all employees, shows that
the Respondent considered all of them collectively to have
discussed filing a lawsuit against the Company and to have
complained about various terms and conditions of their em-
ployment.
I therefore find that the General Counsel has established the
elements of engagement in protected concerted activity and
employer knowledge with respect to all of the sales employees
who were discharged on July 27.
The elements of employer animus and action as a result of
that animus are satisfied by Guggia’s statements at the July 27
meeting and the concomitant discharges: Guggia unequivocal-
ly connected the closure of the sales department and the dis-
charges of all of its employees to their conversations about
filing a lawsuit; their negativity toward the Company; and their
complaints about terms and conditions of employment, includ-
ing base salaries and bump backs. Additionally, she made it
abundantly clear that the Respondent would not consider rehir-
ing employees who engaged in such conduct. In view of that
express animus, I need not consider at this junction the issue of
implied animus.
Accordingly, I conclude that the General Counsel has made
out a prima facie case that Strain and the other individuals
named in paragraph 4(j) of the complaint were discharged on
July 27 because they engaged in protected concerted activities.
The next step in the analysis is whether the Respondent has
met its burden of persuasion of showing that it would have
discharged the entire sales department on July 27 even in the
absence of their protected concerted activities.
The Respondent advanced two reasons for the closing of the
sales department and the discharges: (1) financial considera-
tions, which I will address for the sake of argument even
though I rejected evidence thereof; and (2) lack of supervision
when Guggia would be away on vacation. I find them both
pretextual, for the following reasons.
Obviously, at the time that the discharges occurred, the Re-
spondent had concrete plans to reopen the department within a
very short time and the intention to staff it with employees
who, as Guggia made clear, would not threaten lawsuits, be
“negative” toward the Company, or complain about terms and
conditions of employment. These conclusions are confirmed
by the fact that by August 2, mere days after the closure, the
Respondent already had a new sales team with two employees
from customer service and one rehire from July 27, and by mid-
August had rehired two additional former sales department
employees. It is inconceivable in these circumstances that eco-
nomic considerations played any role in the timing of the clo-
sure, especially when Stoyanov testified that the business had
been losing money for years.
The Respondent’s argument that it had to close on July 27
because no supervisors would be available during the 4 or 5
days that Guggia was on vacation is, frankly, laughable. First,
the evidence shows that Finley was still employed as of July 27
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 13
and planned to return to the office on July 28 and, even if he
was not available, the Respondent could have used the custom-
er service supervisor or Manager Hensley to cover for Guggia
for the brief period that she was away. Moreover, Strain was
serving as a bumper and trainer as needed, and she had previ-
ously been a full-time bumper. Indeed, in an email of July 19,
Stoyanov suggested Strain as one of the individuals who might
take Finley’s position if Finley did not want to implement
Stoyanov’s proposals. The Respondent has not demonstrated
any good reason why none of those individuals could have run
the sales department in Guggia’s stead for a period of such
short duration.
Based on the above, I conclude that the Respondent dis-
charged Strain, Boyd, Findley, Frenzel, McCawley, Smith, and
Thompson on July 27 because they engaged in protected con-
certed activities, or the Respondent believed such. Therefore,
their discharges violated Section 8(a)(1) of the Act.28 I further
conclude that the Respondent independently violated Section
8(a)(1) when Guggia told employees that they were being ter-
minated and would not be rehired because of their protected
concerted activities. See the cases that I cited earlier.
IV. FAILURE TO RECALL STRAIN AND OTHER EMPLOYEES
Because the Respondent discharged the above employees, it
had the obligation to offer them reinstatement and backpay in
accordance with the normal Board remedy. The Respondent
did not do so as to Strain, Frenzel, Martin, McCawley, and
Thompson. This was despite the fact that Guggia, after August
10, hired as sales persons at least two people who had previous-
ly worked for the Company but not been department employees
as of July 27.
As to Strain, Guggia stated in an October 5 email to
Stoyanov that one of the reasons she did not recall Strain was
she was “threatening to sue the company. . . .” As I noted, this
constitutes a protected activity.
Further as to Strain, Guggia’s affidavit—which I credit over
her unsatisfactory testimony—unequivocally states that Guggia
did not recall Strain because, after Strain was discharged, she
posted “horrible” Facebook posts about the Company,
411Locals, and Stoyanov, including “saying things like, the
company was stealing from her paycheck and the company was
racist.” Thus, Guggia admitted that Strain was not rehired be-
cause she had engaged in complaining on Facebook about
terms and conditions of employment.
Among Strain’s posts that Guggia provided to Region were
posts criticizing the Company for racism and outsourcing to
Cebu, policies that affected the sales department as a whole, as
reflected by the employees’ concerted complaints concerning
them. The Board has held that Facebook comments protesting
employer’s policies regarding terms and conditions of employ-
ment, as opposed to “mere griping,” constitute protected activi-
ty unless the comments are so egregious as to take them outside

28 Guggia announced that day that Findley was transferring to cus-
tomer service, in which event he may not have had a break in employ-
ment. However, this purported transfer was not confirmed by record
evidence, and I will therefore treat him as a dischargee. Additionally,
any change in his remuneration as a result of the transfer is unknown.
the protection of the Act. Pier Sixty, LLC, 362 NLRB No. 59,
slip op. at 2 (2015); Triple Play Sports Bar & Grille, above at
310–311. The Respondent does not contend that Strain’s
comments lost the Act’s protection because they amounted to
“offensive, defamatory, or opprobrious.” See Container Corp.
of America, 244 NLRB 318, 321 (1979), enfd. in part 649 F.2d
1213 (6th Cir. 1981).
Rather, the thrust of the Respondent’s argument (br. at 19, et.
seq.) is that Strain’s Facebook posts were not engaged in with
the express object of inducing any future group action and
therefore did not constitute protected concerted activity. How-
ever, in Hoodview Vending Co., 362 NLRB No. 81, slip op. at 1
fn. 1 (2015), the Board affirmed its earlier holding in Sabo,
Inc., 359 NLRB 355, 357 (2012), that contemplation of group
action is not required when the conduct applies to “vital terms
and conditions of employment,” including wages and job secu-
rity. In Hoodview Vending, ibid, the Board left open the possi-
bility that other topics might come under this category. Clear-
ly, the outsourcing of work to the Philippines directly impacted
employee’s wages and, indirectly affected their job security.
Therefore, I conclude that outsourcing constituted a “vital term
and condition of employment,” and that contemplation of group
action was not required. I recognize the great importance of
preventing racism in the workplace, but I need not decide
whether that topic also should be fall under this category.
The Respondent (Br. 20) cites World Color (USA) Corp.,
360 NLRB 227, 228 (2014), enf. denied on other grounds 776
F.3d 17 (D.C. Cir. 2015), for the proposition that Facebook
posts must concern terms and conditions of employment and be
intended for, or in response to, coworkers. However, in that
case, the testimony indicated only that the employee had posted
“unspecified criticisms of the Respondent’ and that there was
an “evidentiary gap” in showing that the posts amounted to
protected concerted activity. That is not the situation here.
Accordingly, I conclude that the Respondent committed an
additional violation of Section 8(a)(1) by refusing to consider
Strain for rehire after July 27 because she engaged in protected
concerted activities through social media, specifically Face-
book. As far as the other individuals who were not recalled, I
cannot make a determination on whether the Respondent’s
failure to recall them was based on anything other than their
earlier actual or suspected protected concerted activities at the
workplace.
Conclusions of Law
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(1)
of the Act:
(a) Discharged Myeasha Strain, Donovan Boyd, Emmanual
Findley, Roberta Frenzel, Mary Martin, John McCawley, Carrie
Pappan, Jennifer Smith, and Robert Thompson on July 27,
2016.
(b) Refused and failed to recall Strain, Frenzel, Martin,
McCawley, and Thompson on and after about August 1, 2016.
(c) Gave employees the impression that their protected con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
certed activities had been under surveillance.
(d) Told employees that they were being discharged and
would not be rehired because of their protected concerted activ-
ities.
Remedy
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. The Respondent having
discriminatorily discharged Myeasha Strain, Donovan Boyd,
Emmanuel Findley, Roberta Frenzel, Mary Martin, John
McCawley, Carrie Pappan, Jennifer Smith, and Robert Thomp-
son, must make them whole for any losses of earnings and oth-
er benefits suffered as a result of their discharges.
Specifically, the Respondent shall make Strain, Boyd, Find-
ley, Frenzel, Martin, McCawley, Pappan, Smith, and Thompson
whole for any losses, earnings, and other benefits that they
suffered as a result of their unlawful discharges and, where
applicable, the unlawful refusal and failure to recall them. The
make whole remedy shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). In accordance with King Soopers, Inc.,
364 NLRB No. 93 (2016), the Respondent shall compensate
Strain, Boyd, Findley, Frenzel, Martin, McCawley, Pappan, and
Thompson for search-for-work and interim employment ex-
penses regardless of whether those expenses exceed their inter-
im earnings. Search-for-work and interim employment expens-
es shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, supra., com-
pounded daily as prescribed in Kentucky River Medical Center,
supra. In accordance with Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014), the Respondent shall
compensate Strain, Boyd, Findley, Frenzel, Martin, McCawley,
Pappan, and Thompson for the adverse tax consequences, if
any, of receiving lump sum backpay awards, and, in accordance
with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
the Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, file with
the Regional Director for Region 28 a report allocating backpay
to the appropriate calendar year for each employee. The Re-
gional Director will then assume responsibility for transmission
of the report to the Social Security Administration at the appro-
priate time and in the appropriate manner.
The Respondent also having discriminatorily failed and re-
fused to recall Strain, Frenzel, Martin, McCawley, and Thomp-
son, must offer them full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights or priv-
ileges previously enjoyed.
The Respondent shall expunge from its records any and all
references to the discharges of Strain, Boyd, Findley, Frenzel,
Martin, McCawley, Pappan, Smith, and Thompson.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29
ORDER
The Respondent, Natural Life, Inc. d/b/a Heart and Weight
Institute Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging, refusing, and failing to recall, or otherwise
discriminating against employees for engaging in protected
concerted activities.
(b) Giving employees the impression that their protected
concerted activities have been under surveillance.
(c) Telling employees that they are being discharged and
will not be rehired because of their protected concerted activi-
ties.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by 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 the Board’s Order, offer
Myeasha Strain, Roberta Frenzel, Mary Martin, John McCaw-
ley, and Robert Thompson full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Myeasha Strain, Donovan Boyd, Emmanual Find-
ley, Roberta Frenzel, Mary Martin, John McCawley, Carrie
Pappan, Jennifer Smith, and Robert Thompson whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the rem-
edy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Make Myeasha Strain, Donovan Boyd, Emmanual Findley,
Roberta Frenzel, Mary Martin, John McCawley, Carrie Pappan,
Jennifer Smith, and Robert Thompson, and within 3 days there-
after notify them in writing that this has been done and that the
discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”30 Copies of the notice, on forms provided

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
30 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE 15
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet set, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since July 27, 2016.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. April 5, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT discharge, fail, and refuse to recall you, or oth-
erwise discriminate against you because you engage in protect-
ed concerted activities, including voicing complaints about
your pay and other terms and conditions of employment, either
at the workplace or on social media.
WE WILL NOT give you the impression that your protected
concerted activities have been under surveillance.
WE WILL NOT tell you that you are being discharged and will
not be rehired because of your protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order,
offer Myeseha Strain, Roberta Frenzel, Mary Martin, John
McCawley, and Robert Thompson full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Myeasha Strain, Donovan Boyd, Emmanual
Findley, Roberta Frenzel, Mary Martin, John McCawley, Carrie
Pappan, Jennifer Smith, and Robert Thompson whole for any
loss of earnings and other benefits they suffered as a result of
our discrimination, with interest.
WE WILL remove from our files any references to the dis-
charges of Myeasha Strain, Donovan Boyd, Emmanual Findley,
Roberta Frenzel, Mary Martin, John McCawley, Carrie Pappan,
Jennifer Smith, and Robert Thompson, and we will, within 3
days thereafter notify them in writing that this has been done
and that the discharges will not be used against them in any
way.
NATURAL LIFE, INC. D/B/A HEART AND WEIGHT
INSTITUTE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-181573 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.