NC-DSH,LLP d/b/a Desert Springs Hospital Medical Center

National Labor Relations Board - Board Decisions

May 10, 2016

363 NLRB No. 185 (N.L.R.B. 2016)

363 NLRB No. 185
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.
NC-DSH, LLP d/b/a Desert Springs Hospital Medical
Center and Theresa Van Leer. Case 28–CA–
127971
May 10, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On March 13, 2015, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
and General Counsel each filed exceptions and support-
ing briefs, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
We agree with the judge that Theresa Van Leer en-
gaged in protected activity by discussing with employee
Terri Fulton how employees would vote in a union elec-
tion held in March 2014, and that Van Leer did not lose
the protection of the Act by using profane language dur-
ing that conversation.3 We accordingly adopt the judge’s

1 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.
2 We shall modify the judge’s recommended Order to conform to our
findings. In accordance with our decision in AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016), we shall further modify the judge’s
Order to require the Respondent to compensate Theresa Van Leer for
the adverse tax consequences, if any, of receiving a lump-sum backpay
award and to file a report with the Regional Director for Region 28
allocating the backpay award to the appropriate calendar year. We
shall substitute a new notice to conform to the Order as modified.
3 In determining whether there is a loss of the Act’s protection in a
conversation among employees, the weight of the Board’s decisions
suggests that the appropriate standard is one that considers all the cir-
cumstances surrounding the conduct at issue. See Honda of America
Mfg., 334 NLRB 751, 752 (2001), enfd. 73 Fed. Appx. 810 (6th Cir.
2003); Honda of America Mfg., 334 NLRB 746, 747–748 (2001) (em-
ployee lost the protection of the Act by distributing fliers stating that
another employee should “come out of the closet,” as the phrase was
inappropriate and disrespectful, the distribution of the fliers was not an
impulsive act, and the respondent’s discipline of the employee was
consistent with its response to similar employee behavior); Nor-Cal
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act by disciplining Van Leer for engaging in
that activity.4 We also adopt, for the reasons stated in his
decision, the judge’s finding that the Respondent violated
Section 8(a)(1) by directing Van Leer not to discuss the
Respondent’s investigation of her conversation about the
union election and the discipline it issued her for engag-
ing in that activity.5 Contrary to the judge and in agree-

Beverage Co., 330 NLRB 610, 611 (2000) (employee did not lose the
protection of the Act by using the word “scab” when attempting to
engender employees’ support for a union strike, where the statement
was made without threats, physical gestures, or contact); Traverse City
Osteopathic Hospital, 260 NLRB 1061, 1061–1062 (1982) (employee
did not lose the Act’s protection by using profane language during
discussion of the merits of union representation, where discussion
occurred during nonworking time, outside of a patient care area, and in
the presence of a few nonemployee visitors, and where the respondent
previously tolerated the use of profane language), enfd. 711 F.2d 1059
(6th Cir. 1983); but see Beverly Health & Rehabilitation Services, 346
NLRB 1319, 1322–1323 (2006) (applying Atlantic Steel Co., 245
NLRB 814 (1979), to determine whether the employee lost the protec-
tion of the Act during a conversation with another employee). Having
considered all the surrounding circumstances, we find that Van Leer
did not lose the Act’s protection. As explained by the judge, Van Leer
was off duty when she called Fulton, and did not know that Fulton was
on duty until the end of their conversation. Further, only Fulton heard
Van Leer make the statements at issue, and Van Leer’s use of profanity
was unaccompanied by any threat of harm. Additionally, there is no
evidence that Fulton was in a patient care area when she answered Van
Leer’s call, and Van Leer testified without contradiction or rebuttal that
it was not uncommon for her to use profane language during her con-
versations with Fulton. See Traverse City, supra.
“Typically, the Board has applied the Atlantic Steel factors to ana-
lyze whether direct communications, face-to-face in the workplace,
between an employee and a manager or supervisor constituted conduct
so opprobrious that the employee lost the protection of the Act.” Triple
Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 4 (2014), enfd.
629 Fed. Appx. 33 (2d Cir. 2015). But even applying Atlantic Steel
here, it would be clear that Van Leer’s use of profane language did not
cause her to lose the Act’s protection for the reasons stated by the
judge. See Beverly Health, supra at 1322–1323 (employee did not lose
the Act’s protection under Atlantic Steel by using profane language
during employees’ discussion of grievance, where discussion occurred
off the clock in a nonpatient care area and comments were unaccompa-
nied by insubordination, physical contact, or threat of physical harm).
4 In adopting this finding, we do not rely on the judge’s suggestion
that the Board’s decision in Triple Play Sports Bar & Grille, supra,
indicates that these circumstances warrant an application of Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393 (1983). In Triple Play Sports Bar & Grille,
the Board applied Wright Line to address an employer’s contention that
its discharge of two employees was motivated by conduct unrelated to
their protected activity. See Triple Play Sports Bar & Grille, supra,
361 NLRB No. 31, slip op. at 6, 21–22. Cf. St. Joseph’s Hospital, 337
NLRB 94, 95 (2001) (“A Wright Line analysis is not appropriate where
the conduct for which the employer claims to have disciplined the
employee was protected activity.”).
5 In adopting this finding, we do not rely on the judge’s citation to
Bryant Health Center, Inc., 353 NLRB 739 (2009), a case decided by a
two-member Board. See New Process Steel v. NLRB, 560 U.S. 674
(2010). Nor do we rely on his citation to Fresenius USA Mfg. Inc., 358
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment with the General Counsel, however, we additional-
ly find that the Respondent violated Section 8(a)(1) by
threatening Van Leer with unspecified reprisals if she did
not comply with the Respondent’s directive.
The Respondent operates a hospital and medical center
in Las Vegas, Nevada. In early 2014,6 SEIU, Local 1107
filed a petition seeking to represent a unit of the Re-
spondent’s CNAs, technicians, and physical therapy
aides. An election was scheduled for March 20 and 21.
Charging Party Theresa Van Leer, an employee of the
Respondent, actively participated in Local 1107’s organ-
izing efforts. On March 19, Van Leer was off duty when
she heard a rumor that employees assigned to Respond-
ent’s Tower 5 might not vote in favor of representation.
Van Leer called the personal cell phone of Tower 5 em-
ployee Terri Fulton, who was on duty, and stated:
[W]hat the fuck is this I’m hearing that everybody is
saying—I got a call that . . . everyone on Tower 5
wants everyone to get together and wait a year to see
what the hospital do [sic], and then unionize again. . . .
I’m so sick of hearing this motherfucking shit. I just
want it all to be over.7
On March 28, Human Resources Director Yomi Fabiyi
told Van Leer that the Respondent was investigating al-
legations that Van Leer had threatened employees before
the election, and that she was suspended pending com-
pletion of the investigation. Although Van Leer admitted
to the conversation with Fulton, she denied threatening
any employees. Fabiyi told Van Leer that she was to
refrain from sharing with others what they discussed in
the meeting, including her suspension, and that “it will
be trouble for [her]” if she failed to follow Fabiyi’s di-
rective. On April 8, Fabiyi issued Van Leer a written
warning for her March 19 conversation with Fulton and
told Van Leer not to discuss her discipline with others,
and added “it could be trouble” for Van Leer if she did
so.
The complaint alleged, among other things, that the
Respondent violated Section 8(a)(1) by issuing a di-
rective “prohibiting its employees from discussing their
terms and conditions of employment, including disci-

NLRB 1261 (2012), a case decided by a panel that included two per-
sons whose appointments to the Board were not valid. See NLRB v.
Noel Canning, 134 S.Ct. 2550 (2014). Instead, we rely on Fresenius
USA Mfg. Inc., 362 NLRB No. 130, slip op. at 2 (2015), and SNE En-
terprises, 347 NLRB 472 (2006), enfd. 257 Fed. Appx. 642 (4th Cir.
2007).
6 All dates are in 2014.
7 The judge’s summary of Van Leer’s testimony about her conversa-
tion with Fulton includes an additional word and space not reflected in
the record, as well as a punctuation error. We correct these minor
errors in quoting Van Leer’s testimony.
pline being issued to them,” and by “threaten[ing] its
employees with unspecified reprisals because they en-
gaged in union activities.” Although the judge correctly
found that Fabiyi’s directive to Van Leer not to discuss
the Respondent’s investigation or her suspension and
warning violated Section 8(a)(1), the judge, without ex-
planation, dismissed the threat-of-reprisals allegation.
Contrary to the judge, we find that Fabiyi’s statements,
suggesting “trouble” for Van Leer if she did not refrain
from discussing the Respondent’s investigation and her
discipline, conveyed threats of unspecified reprisals that
also violated Section 8(a)(1).
“The Board’s well-established test for interference, re-
straint, and coercion under Section 8(a)(1) is an objective
one and depends on ‘whether the employer engaged in
conduct which, it may reasonably be said, tends to inter-
fere with the free exercise of employee rights under the
Act.’” ITT Federal Services Corp., 335 NLRB 998,
1002 (2001) (quoting American Freightways Co., 124
NLRB 146, 147 (1959)). Applying this test, the Board
has held that an employer violates Section 8(a)(1) by
threatening employees with unspecified reprisals for en-
gaging in discussions protected under the Act. See, e.g.,
Alaska Ship & Drydock, 340 NLRB 874, 878 (2003)
(respondent violated Section 8(a)(1) by its supervisor’s
statement that an employee would be in “big trouble” if
he discussed employee wages with another employee).
Moreover, the Board has held that an unlawful directive
can additionally violate Section 8(a)(1) when it is rein-
forced by an unlawful threat of reprisal. See, e.g., SKD
Jonesville Division L.P., 340 NLRB 101, 103 (2003)
(respondent violated Section 8(a)(1) by issuing a written
warning to an employee prohibiting her from discussing
work-related matters with other employees and by con-
veying a threat of discipline or discharge if she did not
comply).
We find that Fabiyi’s statements suggesting possible
“trouble” for Van Leer conveyed in the clearest terms
that she could receive further discipline if she continued
to have conversations about employee discipline, the
Respondent’s disciplinary investigations, or her union
activity. With regard to union activity, we note that
Fabiyi’s statements were part of the res gestae of the al-
ready-found violations based on the Respondent’s disci-
plining of Van Leer and would clearly dissuade Van Leer
from discussing her prior protected conversation with
Fulton. Accordingly, we reverse the judge’s dismissal of
this complaint allegation and find that Fabiyi threatened
Van Leer with unspecified reprisals if she continued to
exercise her Section 7 rights, thereby violating Section
8(a)(1) of the Act. See, e.g., Ozburn-Hessey Logistics,
LLC, 357 NLRB 1456, 1490 (2011) (respondent violated
NC-DSH, LLP 3
Section 8(a)(1) by its manager’s threat to an employee
that there would be “repercussions” if anyone found out
that the manager had accused the employee of discussing
union matters with other employees and asked about her
union sympathies), enfd. mem. 605 Fed. Appx. 1 (D.C.
Cir. 2015); Parkview Hospital, Inc., 343 NLRB 76, 81
(2004) (respondent violated Section 8(a)(1) by its man-
ager’s statement to an employee that the respondent did
not want the employee to get in trouble, where the state-
ment was made during a meeting in which the employee
was issued a warning for engaging in union activity);
Alaska Ship & Drydock, supra.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3:
“3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
telling Theresa Van Leer not to discuss employee disci-
pline, disciplinary investigations, or union activity.”
Insert the following as Conclusions of Law 4:
“4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
threatening Theresa Van Leer with unspecified reprisals
if she did not comply with its directive not to discuss
employee discipline, disciplinary investigations, or union
activity.”
ORDER
The National Labor Relations Board orders that the
Respondent, NC-DSH, LLP d/b/a Desert Springs Hospi-
tal Medical Center, Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, issuing disciplinary warnings to, or
otherwise discriminating against, employees for engag-
ing in activities in support of Service Employees Interna-
tional Union, Local 1107 or any other labor organization.
(b) Telling employees not to discuss employee disci-
pline, disciplinary investigations, or union activity.
(c) Threatening employees with unspecified reprisals
if they discuss employee discipline, disciplinary investi-
gations, or union activity.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Theresa Van Leer whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in the
remedy section of the judge’s decision.
(b) Compensate Theresa Van Leer for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, 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 allo-
cating the backpay award to the appropriate calendar
year.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to Theresa Van Leer’s
suspension and level 3 warning, and within 3 days there-
after, notify Theresa Van Leer in writing that this has
been done and that the suspension and level 3 warning
will not be used against her in any way.
(d) 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.
(e) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms
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,
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 March 28, 2014.
(f) 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.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 10, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
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 suspend, discipline, or otherwise dis-
criminate against you for engaging in activities in sup-
port of Service Employees International Union, Local
1107 or any other labor organization.
WE WILL NOT tell you not to discuss employee disci-
pline, disciplinary investigations, or union activity.
WE WILL NOT threaten you with unspecified reprisals if
you discuss employee discipline, disciplinary investiga-
tions, or union activity.
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 make Theresa Van Leer whole for any loss of
earnings and other benefits suffered as a result of our
discrimination against her.
WE WILL compensate Theresa Van Leer for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector 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 to the
appropriate calendar year.
WE WILL remove from our files any reference to the
suspension and level 3 warning of Theresa Van Leer, and
WE WILL, within 3 days thereafter notify her in writing
that this has been done and that the suspension and level
3 warning will not be used against her in any way.
NC-DSH, LLP D/B/A DESERT SPRINGS
HOSPITAL MEDICAL CENTER
The Board’s decision can be found at
http://www.nlrb.gov/case/28–CA–127971 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Fernando Anzaldua, Esq., for the General Counsel.
Thomas H. Keim, Jr., Esq. (Ford & Harrison, LLP), for the
Respondent.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is be-
fore me on a July 31, 2014,1 complaint and notice of hearing
(the complaint) stemming from an unfair labor practice charge
that Theresa Van Leer filed on May 2 against NC-DSH, LLP
d/b/a Desert Springs Hospital Medical Center (the Respondent
or the Hospital), in connection with an unsuccessful organizing
effort mounted by Service Employees International Union,
Local 1107 (the Union).
I conducted a trial in Las Vegas, Nevada, on January 6 and 7,
2015, at which I afforded the parties full opportunity to be
heard, to examine and cross-examine witnesses, and to intro-
duce evidence.

1 All dates hereinafter occurred in 2014 unless otherwise indicated.
NC-DSH, LLP 5
Issues
(1) Did Chief Executive Officer Sam Kaufman, on about
March 8, solicit employee complaints and grievances and,
explicitly or implicitly, promise employees better benefits
and/or terms and conditions of employment if they rejected
the Union as their collective-bargaining representative?
(2) Did Chief Nursing Officer Ellie McNutt, on about March
15, engage in that same conduct?
(3) Did the Respondent violate Section 8(a)(3) and (1) by
suspending Certified Nursing Assistant (CNA) Van Leer
from March 28 through April 8 because of a March 19 tele-
phone conversation that she had with Tower 5 CNA Terri
Fulton concerning how Tower 5 employees would vote in the
election scheduled for March 20 and 21?
(4) Did the Respondent violate Section 8(a)(3) and (1) by is-
suing Van Leer a level 3 or final warning on April 8 for that
same reason?
(5) At the March 28 meeting in which Van Leer was sus-
pended, did Human Resources (HR) Director Yomi Fabiyi:
(a) Interrogate her about her union membership, activi-
ties, and sympathies?
(b) Create the impression that the Respondent was en-
gaging in surveillance of her union activities by telling
her that she had called other employees about the Un-
ion?
(c) Threaten her with unspecified reprisals because she
engaged in union activities?
(6) On March 28, after Van Leer was suspended, did Carol
Dugan, director of nursing, issue Van Leer an overly-broad
and discriminatory directive or rule prohibiting her from dis-
cussing her terms and conditions of employment, including
the suspension issued to her, with other employees?
(7) At the April 8 meeting in which Fabiyi issued Van Leer
the level 3 warning, did he:
(a) Issue Van Leer an overly-broad and discriminatory di-
rective or rule prohibiting her from discussing her terms
and conditions of employment, including the discipline is-
sued to her, with other employees?
(b) Threaten her with unspecified reprisals because she
engaged in union activities?
The charge alleges that the Respondent (1) interrogated em-
ployees about their union activities and directed employees not
to discuss their discipline with coworkers, and (2) discriminated
against Van Leer by disciplining her due to her union activities.
The last paragraph is the boilerplate language, “By these and
other actions,” the Respondent interfered with, restrained and
coerced employees in violation of Section 7.
As a threshold matter, the Respondent contends that due pro-
cess considerations should bar the following allegations be-
cause they were not raised in the charge or any amended
charge: (1) Kaufman’s and McNutt’s conduct; (2) Fabiyi’s
creating the impression of surveillance and threatening Van
Leer with unspecified reprisals on March 28; and (3) Fabiyi’s
threatening her with unspecified reprisals on April 8.
The General Counsel at trial represented that the Region had
sought to take statements from Fabiyi, Kaufman, and McNutt
but the Respondent had failed to make them available, and
contended that the “[b]y these and other actions” language in
the charge encompassed the additional allegations.
The Supreme Court has held that a complaint may encom-
pass any matter sufficiently related to or growing out of con-
duct alleged in a charge. NLRB v. Fant Milling Co., 360 U.S.
301, 309 (1959); National Licorice Co. v. NLRB, 309 U.S. 350,
369 (1940).
In Redd-I, Inc., 290 NLRB 1115, 1115–1116 (1988), the
Board held that in deciding whether complaint amendments are
sufficiently related to charge allegations, it would apply the
“closely related” test comprised of the following factors:
(1) Whether the untimely allegations involve the same le-
gal theory as the allegations in the timely charge.
(2) Whether the otherwise untimely allegations arise from
the same factual circumstances or sequence of events as
the pending timely charge.
(3) Whether the respondent would raise the same or simi-
lar defenses to both allegations.
In Nickles Bakery of Indiana, 296 NLRB 927, 927–928
(1989), the Board decided that this same “closely related” test
should apply to the General Counsel’s adding uncharged alle-
gations to a complaint. The Board specifically overruled cases
“holding or implying that the catchall ‘other acts’ language
preprinted on the charge form provides a sufficient basis, on its
own, to support any and all 8(a)(1) complaint allegations.” Id.
at 929. In this regard, the Board (Id. at 927 fn. 8) cited an earli-
er version of section 10064.5 of the General Counsel’s
casehandling manual, which was similar to the current provi-
sion that now reads:
If the allegations of the charge are too narrow, not sufficiently
specific or otherwise flawed, the charging party or its repre-
sentative should be apprised of the potential deficiency in the
existing charge and given the opportunity to file an amended
charge. The charging party should also be advised that failure
to file the amended charge may affect the Regional Office de-
termination of the case and that any complaint can cover only
matters closely related to the allegations of the charge.
The additional 8(a)(1) allegations concerning Fabiye regard-
ed statements that he made during his meetings with Van Leer
on March 28 and April 8, at which the Respondent allegedly
suspended and disciplined her in violation of Section 8(a)(3).
Moreover, some of the interrogation alleged in the charge relat-
ed to Fabiye’s statements at the March 28 meeting. According-
ly, I conclude that these allegations arose from the same factual
circumstances or sequence of events as the allegations con-
tained in the charge and that the General Counsel has met the
“closely related” test.
On the other hand, nothing in the charge would have provid-
ed the Respondent with any kind of reasonable notice that
Kaufman and McNutt were alleged to have committed any
violations of the Act. Their solicitation of grievances and
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
promise of benefits in meetings with employees was not part of
the res gestae of the 8(a)(3) actions that the Respondent took
against Van Leer, did not involve the same 8(a)(1) conduct as
that alleged in the charge, and did not take place at the same
time as the alleged 8(a)(1) conduct.2
Although the General Counsel did seek to take their state-
ments, there is no evidence that the Respondent was provided
with any specifics of the unpled allegations against them. In
these circumstances, the General Counsel should have had Van
Leer submit an amended charge as per section 10064.5 of the
casehandling manual.
Accordingly, I find that the allegations pertaining to Kauf-
man and McNutt did not meet the “closely related” test and
therefore were not properly part of the complaint. Because this
determination could be reversed on appeal, I will go ahead and
discuss the facts relating to these allegations and decide how I
would rule on them were they appropriately before me.
Witnesses
The General Counsel called Van Leer and, as adverse wit-
nesses under Section 611(c): Fabiyi, Kaufman, and McNutt, as
well as Colleen Murphy, director of interventional services, and
Jeanne Schmid, vice president, labor relations for Universal
Health Services (the Hospital’s parent company, apparently aka
Valley Health System).
The Respondent called Wayne Cassard, assistant director of
HR for Valley Health System.
Nursing Director Dugan, an admitted agent of the Respond-
ent, was present in the meetings that Van Leer had with Fabiyi
on March 28 and April 8. Yet, the Respondent did not call her
to corroborate Fabiyi’s versions or deny Van Leer’s versions of
what was said therein.
The sole basis for Van Leer’s suspension and discipline was
what she said in the one telephone conversation with Fulton on
March 19. Accordingly, Fulton’s absence as a witness leaves a
serious evidentiary hole in the record. We do not have her
firsthand account of that conversation; whether she would con-
firm or dispute Van Leer’s testimony that they typically use the
term “fuck” or variations thereof in conversing; and whether, as
suggested by Murphy’s March 26 email to Fabiyi and by Van
Leer’s hearsay testimony, she was pressured by other employ-
ees to make the complaint, causing or contributing to her being
visibly upset when she reported the conversation on March 19.
Our system of jurisprudence has what is called the “missing
witness rule,” which provides 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, it is within an administrative law judge’s discre-
tion 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

2 The General Counsel has not contended that the Respondent en-
gaged in “an overall plan to resist the warranted.
corroborate 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) (“The decision to
draw an adverse inference lies within the sound discretion of
the trier of fact”). In that event, drawing an adverse inference
regarding any factual question on which the witness is likely to
have knowledge is appropriate. International Automated Ma-
chines, 285 NLRB 1122, 1123 (1987), enfd. mem 861 F.2d 720
(6th Cir. 1988).
Clearly, the Respondent’s failure to call Dugan, a managerial
employee, leads to an adverse inference that her testimony
would not have supported Fabiyi’s versions of the conversa-
tions that he had with Van Leer in the meetings of March 28
and April 8.
The issue of whether an adverse inference should be drawn
for Fulton’s failure to be present—and, if so, against whom—is
more problematic because she was and remains a rank-and-file
employee. The General Counsel and the Respondent disagree
as to which party should suffer an adverse inference by virtue
of Fulton’s nonattendance at the trial.
The General Counsel issued subpoenas for Fulton’s attend-
ance,3 although there is no proof of service, but declined at the
conclusion of the trial to move for a continuance to seek sub-
poena enforcement. However, I believe that in the circum-
stances of this case, the Respondent bore the burden of present-
ing Fulton, or at least showing that it made a bona fide but un-
successful effort to do so.
As the above cases indicate, the key in determining whether
an adverse inference should be drawn against a party for not
calling a witness is whether the witness could reasonably be
expected to corroborate its version of events, as reflected by the
language “particularly when the witness is the party’s agent and
thus within its authority or control.” In other words, the wit-
ness does not necessarily need to be an agent and within the
party’s authority or control.
Thus, in Ready Mix Concrete Co., 317 NLRB 1140, 1141–
1142 (1995), Judge Mary Cracraft drew an adverse inference
against the respondent-employer when it did not call quality
control personnel to corroborate a supervisor’s account of an
incident over the dischargee’s version. In DPI New England,
354 NLRB 849, 858 (2009), Judge Paul Bogas suggested an
adverse inference against a respondent-employer for its failure
to call any individuals who had purportedly complained against
the dischargee (two of them were current supervisors, but the
others were not).
Finally, in Associated Builders, Inc., 2001 WL 1589691
(2001), Judge Thomas Patton applied the adverse inference rule
against the respondent-employer for its failure to call an em-
ployee whose purported complaint to a supervisor was one of
the reasons that the alleged discriminatee was terminated. Alt-
hough the decision is not precedential, I find it rationally per-
suasive.

3 GC Exhs. 11, 13. The latter was erroneously a subpoena duces
tecum.
NC-DSH, LLP 7
Here, the General Counsel did not need to rely on Fulton’s
testimony to establish a prima facie case. On the contrary, the
Respondent’s suspension and discipline of Van Leer was based
solely on what Fulton told management witnesses about the
March 19 phone conversation; if she had not corroborated their
testimony thereon, the Respondent’s defenses would have col-
lapsed. Simple logic dictates that the Respondent would have
wanted Fulton to testify to substantiate management representa-
tives’ accounts of what she told them, and to rebut any contrary
testimony of Van Leer. I note that management did not take a
sworn statement from Fulton or even have her write down a
report of the conversation.
Accordingly, I draw an adverse inference against the Re-
spondent for failing to call Fulton or showing that it sought
unsuccessfully to secure her presence. In the event that higher
authority disagrees with my conclusion that an adverse infer-
ence is warranted in these circumstances, my credibility resolu-
tions remain the same for the reasons stated below.
Credibility
At the outset, I note the well-established precept that a wit-
ness may be found partially credible; the mere fact that the
witness is discredited on one point does not automatically mean
that he or she must be discredited in all respects. Golden Hours
Convalescent Hospitals, 182 NLRB 796, 799 (1970). Rather, a
witness’ testimony is appropriately weighed with the evidence
as a whole and evaluated for plausibility. Id. at 798–799; see
also MEMC Electronic Materials, 342 NLRB 1172, 1183 fn. 13
(2004), quoting Americare Pine Lodge Nursing, 325 NLRB 98
fn. 1 (1997); Excel Container, 325 NLRB 17 fn. 1 (1997). As
Chief Judge Learned Hand stated in NLRB v. Universal Cam-
era Corp., 179 F.2d 749, 754 (2nd Cir. 1950), regarding wit-
ness testimony, “[N]othing is more common in all kinds of
judicial decisions than to believe some and not all.”
The management representatives (Cassard, Fabiyi, and Mur-
phy) involved in the events surrounding Van Leer’s suspension
and termination were not fully credible, for the following rea-
sons.
Fabiyi was not believable on several critical points because
portions of his testimony were contradicted by management
documents, including those he prepared; inconsistent with
Cassard’s testimony; or implausible. Moreover, the notes that
he took of what Van Leer stated in his meeting with her on
March 28, do not match his undated memorandum of such.4
Perhaps most suspiciously, he offered no explanation of why
he asked neither Fulton nor Van Leer to give signed written
statements, even though he testified that it is normal policy to
ask for such and then make notes in lieu of a written statement
only if the employee will not give one. In this regard, on cross-
examination, Cassard first testified that he did ask Fabiyi to
take a written statement from Fulton but then patently back-
tracked, diminishing my faith in the reliability of his testimony
as well. Fabiyi’s failure to ask for such statements is particular-
ly suspect in light of the following. The Respondent had hired
management consultants specializing in the National Labor
Relations Act (NLRA) to run its preelection campaign to re-

4 Compare GC Exhs. 4 and 6.
main union-free, and they conducted training of manage-
ment/supervisors on what they could say and do to employees
within the parameters of the Act. When Murphy first saw Ful-
ton, she saw fit to call in Andrew Capp, one of those consult-
ants. As later discussed, Murphy was inconsistent and equivo-
cal in giving the reason why she did this. In the absence of
another valid explanation, it must be concluded that she did so
because the incident was connected to the union organizing
drive, especially when Capp had a second consultant attend the
meeting. Accordingly, I would expect that Fabiyi would have
realized the importance of gathering solid evidence (to wit,
signed written statements) in a situation where an employee
might be disciplined for engaging in union activity.
I further note that nothing in Fabiyi’s or Van Leer’s testimo-
ny, or in Fabiyi’s notes, reflects that at the March 28 meeting,
Fabiyi asked Van Leer anything about her approaching Fulton
on March 20. Yet, Cassard testified that this was conduct that
was considered in deciding on the level 3 discipline.
When I asked Fabiyi if the subject of the Union came up at
all in his March 28 meeting with Van Leer, he unequivocally
answered no, but this is contradicted by (1) the March 20 mem-
orandum that Schmid had provided him before this meeting
stating that “Terri reported that Theresa indicated that she was
very upset that Terri was not going to vote for the union”;5 and
(2) Fabiyi’s notes of his March 25 interview with Fulton, the
first lines of which included what purports to be Fulton’s
statement that Van Leer said, “What do you mean no to the
vote?”6
Also as to the March 28 meeting, Fabiyi testified that he did
not raise, as an allegation, Van Leer’s threat to other employee
to “kick your ass.”7 Indeed, he testified that the term never
came up at all. However, consistent with Van Leer’s testimony
to the contrary, the first paragraph of his undated memorandum
of the meeting includes the statement, “She denied threatening
to beat anyone’s ass.”8 Clearly, a denial presupposes an accu-
sation, and to claim that there was no inconsistency because
“kick your ass” is different than “beat your ass” would be dis-
ingenuous.
Cassard, too, was not entirely credible. As stated above, he
first testified that he asked Fabiyi to take a written statement
from Fulton but then apparently deliberately retreated from that
testimony. Moreover, he incredibly testified on cross-
examination that he did not recall if Fabiyi had informed him
that the phone conversation between Fulton and Van Leer relat-
ed to the Union. This testimony was directly contradicted by
his testimony that he reviewed the language contained in the
level 3 discipline prior to it issuance on April 8. The incident
report therein expressly refers to Van Leer’s having expressed
her views in support of the Union in the phone call. After the
General Counsel showed him the incident report, Cassard pro-
fessed to have had his memory refreshed that the phone call had
dealt with the Union.
Murphy appeared disinterested. She professed lack of recol-

5 Jt. Exh. 5.
6 GC Exh. 4 at 1.
7 Tr. 118.
8 GC Exh. 6.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lection on numerous points, lending doubts to her reliability as
a witness. Further as I noted above, she was contradictory on
why she called Labor Relations Consultant Capp in to attend
the meeting she had with Fulton, offering different reasons
during the course of her testimony of why she did so: To see if
he could help figure out how to handle the situation; to help her
with the situation; to merely serve as a witness (at odds with
her testimony that he was the one who spoke to Fulton and that
she listened); because Fulton was very upset.9 Capp was not
called as a witness, and Schmid, who was also present, did not
offer any details concerning his role. Based on Murphy’s in-
consistent testimony thereon, I cannot find as a fact the purpose
of his being called or the nature of his participation. I do find
that Murphy’s fluctuating testimony undermined her credibility.
Another aspect of Murphy’s testimony further diminished
her credibility. Murphy testified that she first became aware of
the phone call when Fulton told her about it, 5 minutes after it
occurred, and that no other employees approached her about the
conversation. However, Murphy’s email to Fabiyi on March
26, states that “[Fulton] was very upset and ended the call when
I made eye contact with her” and that “[s]hortly thereafter the
HUC [hospital unit coordinator or floor secretary] came to me
and asked me to speak with the CNA [Fulton] that was so up-
set.” 10 After the General Counsel pointed this out to Murphy,
she professed that she had no independent recall thereof or of
whom the HUC was that day. Murphy’s evasiveness on this
matter—in the absence of any testimony from Fulton—causes
me to wonder whether Fulton came to report the incident on her
volition or was pressured by other employees to do so. I note
that Fabiyi’s notes reflect that Fulton stated that she had related
the call to two coworkers, and they informed Murphy.
I also have to wonder why Murphy did not stop to talk to
Fulton when she allegedly observed her being “very upset”
when she was on the phone with Van Leer. That would certain-
ly have been the normal reaction one would expect of a manag-
er encountering such a situation.
I do credit Murphy’s testimony, as corroborated by Schmid,
who was credible, that Fulton was upset at the March 19 meet-
ing. However, whether this was the result solely of the phone
call or in part also due to being coerced by other employees
into complaining cannot be answered from this record. In any
event, I cannot find that Murphy provided a reliable account of
who initiated her meeting with Fulton.
Kaufman and McNutt testified only as to independent 8(a)(1)
allegations concerning Van Leer. They, too, were not fully
credible. The credibility of their testimony must be evaluated
in the context of the Hospital’s organized campaign against
unionization, as reflected by its hiring of outside consultants
specializing in the NLRA and the training that they gave to
managers and supervisors as to what they could say and do.
Viewed in this light, I find suspicious Kaufman’s testimony
that he could not recall keeping the notes that he took as he
went around asking employees their concerns, or what he did
with them. Similarly, I do not credit McNutt’s testimony that
she conducted small group meetings with employees sua sponte

9 Tr. 179–182, 189.
10 GC Exh. 3 at 1.
and with no direction from anyone else, and that she had no
discussions with other managers or supervisors about how to
conduct them. Allowing McNutt free rein to speak to employ-
ees as she chose would have been wholly inconsistent with the
Hospital’s systematic campaign approach.
Moreover, Kaufman seemed noticeably uncomfortable, al-
most defensive, and had a sketchy recall in general about the
small group meetings that he held with employees during the
organizing campaign. Furthermore, although he testified that
he could not recall if he wrote down the names of employees
who raised concerns, he also testified that if he later ran into
such employees, he shared information with them if he could.
Since he conducted “many such meetings” on all the floors, I
can only wonder how he remembered who had said what.
In any event, neither Kauffman nor McNutt could specifical-
ly recall speaking to Van Leer, and they therefore were not able
to specifically rebut the statements that she attributed to them.
Turning to Van Leer, one aspect of her testimony were not
plausible: Her denials on cross-examination that she called
Fulton because she was upset about Tower 5 employees talking
about not voting for union representation, or that she wanted
Fulton and the other employees who worked there to vote yes.
Her own testimony of what she said to Fulton leaves no doubt
that her purpose in making the phone call was related to her
desire to have coworkers, including Fulton, vote for the Union.
Nevertheless, Van Leer answered questions readily and without
hesitation, was reasonably consistent throughout her testimony,
and made no efforts to deny using profanities in her conversa-
tion with Fulton. Accordingly I generally credit her over Fabiyi
and Murphy, whose testimony was replete with numerous
flaws.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, written and oral
stipulations, and the thoughtful posttrial briefs that the General
Counsel and the Respondent filed, I find the following.
The Respondent, one of five hospitals owned and operated
by Universal Health Services aka Valley Health System, is a
limited liability company that operates a hospital and medical
center in Las Vegas, Nevada. The Respondent has admitted
jurisdiction as alleged in the complaint, and I so find.
In approximately late 2012, the Union began an organizing
drive at the Hospital, and it later filed a petition to represent
approximately 230 employees in a unit composed of all full-
time, regular part-time and per diem CNAs, various classifica-
tions of technicians, and physical therapy aides. An election
conducted on March 20 and 21 resulted in a majority of em-
ployees voting against representation.11
Between January and March, the Respondent conducted
formal and informal meetings with employees, to discuss the
Union, the union organizing campaign, and/or the election, in
an effort to convince employees to vote against representation.
In this regard, the Respondent employed outside labor relations
consultants specializing in the NLRA to manage its campaign,

11 See Jt. Exh. 2.
NC-DSH, LLP 9
as part of which they instructed managers and supervisors train-
ing on what they lawfully could say and do.
Kaufman and McNutt were among the various managers and
supervisors who conducted informal meetings with small num-
bers of employees on the floors. Van Leer participated in two
such meetings. I credit her unrebutted accounts of them as
follows.
On about March 8, in the morning, Van Leer was in a hall-
way with three other CNAs when Kaufman approached. He
proceeded to give them reasons why he felt that they should
vote no in the election; along the lines that the Union could not
help them, union promises could not be believed, and the Hos-
pital could help them with their concerns. He asked if they had
any concerns or issues that needed to be addressed. Van Leer
replied that her problem was the pay and asked why the Hospi-
tal’s CNAs were the lowest paid in the Las Vegas area. Kauf-
man wrote down her name on the notepad that he was carrying
and said that he would investigate her claim and get back to
her. He never did so.
On about March 15, in the afternoon, Van Leer was with an-
other CNA in a hallway when McNutt approached. She said
that she wanted to talk to them about the Union and if they had
any concerns that needed to be addressed. Van Leer responded
that she had already talked to Kaufman about the money issue.
McNutt replied that this had already been brought to her atten-
tion and to give the Hospital a chance to fix the problem; they
did not need a union to fix their problems.
During the course of the union organizing campaign, Van
Leer attended union meetings and discussed unionization with
other employees, as well as gave other employees authorization
cards to sign. On March 19, while not at work, she received a
phone call from a Tower 5 employee that Tower 5 employees
were essentially talking about voting against the Union in the
election scheduled to begin the next day. Van Leer already had
Fulton’s cell phone number and called her at about 5 p.m. The
conversation lasted a couple of minutes and ended when Mur-
phy walked by Fulton’s desk.
It is clear from Van Leer’s candid description of the lan-
guage that she used in the phone call that she was very upset,
indeed agitated at hearing this rumor. Thus, she said almost
immediately (not necessarily verbatim):12
[W]hat the fuck is this I’m hearing that everybody is saying—
I got a call that . . . everyone on Tower 5 wants to everyone to
get together and wait a year to see what the hospital do [sic],
and then unionize again. . . . I’m so sick of hearing this moth-
er fucking shit. I just want it all to be over.
I credit Van Leer’s testimony that she did not know that Ful-
ton was at work until the end of the conversation, when Fulton
said that Murphy was at her desk, over hearsay evidence that
Fulton told her she was at work at the start of the phone call.
The same holds true for the contents of the conversation. What

12 Tr. 213–214.
Fulton related to management is another matter and will be
addressed subsequently.13
Based on Murphy’s March 26 email and Fabiyi’s notes of
what Fulton told him on March 25, and my not finding Mur-
phy’s testimony credible on point, I find that Fulton was not the
first employee to tell Murphy about the telephone conversation
that she had with Van Leer. The identity of that individual or
individuals remains unknown, as does the nature of any conver-
sation he/she/they had with Murphy.
Shortly after the phone conversation, Fulton went to Mur-
phy’s office, where she met with Murphy, Schmid, and Labor
Relations Consultants Capp and Jose (last name unknown).
None of the individuals who attended the meeting offered tes-
timony concerning the contents of what Fulton reported. On
611(c) examination, Murphy and Schmid testified only about
Fulton’s state of mind, and neither Fulton nor either of the two
labor relations consultants were witnesses.
The next morning, Van Leer saw Fulton as they were going
into work. The step 3 discipline issued to Van Leer was, by its
express language, based solely on the March 19 telephone con-
versation. Accordingly, I need not describe their interaction
that day or thereafter.
On about March 20, Schmid prepared an email describing
the meeting, and she sent it to Fabiyi.14 Fabiyi met with Fulton
and Murphy on March 25, in his office, where he presented the
email to Fulton. He asked her to review it and annotate any
changes, which she did.15 She wrote in “did not say” by the
statements that Van Leer had called her, “You mother-fucking
bitch,” “I/We will beat your ass,” and “You bitch, you’re gonna
pay.” She also added the sentence that she had answered her
cell phone because she was expecting a phone call from her
mother-in-law, whose name is Theresa. She then signed the
document.
Fabiyi also asked Fulton to describe the conversation, and he
took notes of what she said.16 Again, I am at a loss as to why
he did not take a full written statement from her. The two pag-
es of notes, handwritten and double spaced, are more summary
in nature than a complete rendition. There is no indication of
what, if any, statements were in direct response to questions
that Fabiye asked. The notes indicate that Van Leer started the
phone conversation with, “Girl what the fuck is going on there?
What do you mean no to the vote? Tell them mother fuckers
you need to get it right.” There is no other mention of Van
Leer using obscenities. The notes also reflect that Fulton re-
ported the conversation to two coworkers, who informed Mur-
phy, and that Fulton felt threatened (although no reason why is
given).
On March 26, Fabiyi requested that Murphy send him an
email describing her discussion with Fulton on March 19.17 I
find this peculiar since he had already interviewed Fulton, the
only individual other than Van Leer who could offer direct

13 Such statements are hearsay and therefore cannot go to the truth of
the matter asserted. They are admissible as far as going to the issue of
what was reported to management.
14 Jt. Exh. 5.
15 Jt. Exh. 6.
16 GC Exh. 4.
17 GC Exh. 3 at 1–2.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimony about the contents of their conversation. Murphy
complied.18
Van Leer’s suspension
Fabiyi made the decision to suspend Van Leer, after consult-
ing with Cassard. On March 28, he met with Van Leer and
Dugan in his office. I credit Van Leer’s account over Fabiyi’s
because Fabiyi was not a reliable witness, the Respondent did
not call Dugan to corroborate his testimony, and Van Leer was
generally more credible than he was.
As with Fulton, Fabiyi chose not to ask Van Leer to give a
full written statement, and he again instead took rather sum-
mary notes of what she said, with no indication of any ques-
tions that he might have asked.19
I find the following. When Van Leer went into his office,
Fabiyi told her that he needed her badge because she was being
suspended. She asked why, and he replied that she was under
investigation because she had called several employees and told
them that she was going to kick their asses if they did not see
her views about the Union. She asked who had said that, and
he replied that he was not at liberty to say. She denied talking
to anyone other than Fulton, but he replied no, they had several
complaints against her.
I credit Van Leer’s testimony above over Fabiye’s testimony
that she sua sponte volunteered that she called only Fulton.
Most importantly, Van Leer’s version is supported by an undat-
ed memorandum of the meeting that Fabiye prepared, which
states in the first paragraph, “She denied threatening to beat
anyone’s ass.”20 Moreover, his notes of what she said at the
meeting strongly suggest that he questioned her about calling
other employees. Thus, most of the notes address Van Leer’s
contacts with other employees, and close to their end, there is
the statement, “No, I didn’t call anyone else or call anyone a
snitch.”21
Fabiye asked her about the conversation with Fulton, and she
replied that it was about the Union. When he asked for the
specifics of the conversation, she responded that it was private
and not his business.
Fabiye told her that she needed to be removed from the
building because they took threatening somebody very serious-
ly. Van Leer asked if it was such a serious threat, why had she
not been removed from the building on March 20. Fabiye indi-
cated that he had a backlog of paperwork. He also told her not
to discuss with anyone else what they were discussing in the
meeting, including the suspension, or “it will be trouble for
you.”22
Van Leer asked him to confirm that the charge against her
was that she called several people and said she was going to
kick their asses, because she felt as though Kaufman and
McNutt were lying about her, and she did not want them to
come back with another charge. Fabiyi said yes and that if she
had not done do so, she would be paid for the time she missed
as a result of the suspension. Fabiyi did not give her a fixed

18 Id. at 1.
19 GC Exh. 5.
20 GC Exh. 6 at 1.
21 GC Exh. 5 at 4.
22 Tr. 237.
duration for the suspension but told her that once the investiga-
tion was completed, he would call her.
Dugan escorted Van Leer out of Fabiyi’s office. She told
Van Leer to calm down and said that when they got back to the
floor, Van Leer should get her personal belongings and leave,
not stand around and talk about “what was going on,”23 because
she was being suspended. Dugan tried to reassure Van Leer by
saying that if the allegations against her were untrue, she did
not have to worry.
The Respondent’s discipline policies
The Respondent’s discipline policies are contained in HR
policies 601 and 602,24 HR 601 sets out various types of mis-
conduct that may result in preventive counseling, written warn-
ing, final warning, suspension, and/or immediate employment
termination. The first of these and the one pertinent is:25
Disruptive behavior including but not limited to verbal or
physical abuse/threats, intimidating, swearing, or coercing be-
havior directed toward (or in the presence of) a patient, visitor,
contracted personnel or facility employee or any behavior
which disrupts or interferes with patient care, another staff
member’s work performance, or creates a non-productive
work environment.
HR 602 provides guidelines for discipline designed to
achieve a change in an employee’s behavior, conduct, or work
performance. It sets out a progressive discipline system by
providing for four levels of corrective action, with the caveat
that certain behaviors may be considered so serious in nature
that termination is the appropriate outcome: Level 1, initial
discussion (verbal warning); level 2, performance improvement
plan (PIP), a written warning; level 3, final (written) warning;
and level 4, termination. Level 2 should be utilized if the em-
ployee’s performance or behavioral problems continue after the
verbal warning, and level 3 should be utilized if the employee’s
performance or behavioral issues have continued after the PIP
or if the employee refused to sign the action plan.
The policy further states that the following may be consid-
ered in determining what level should be selected:
Severity of the incident
Frequency of the Incident
Previous overall performance/behavior
Tenure of the employee
Mitigating circumstances
Commitment of the employee to the overall corrective ac-
tion/PIP.
Van Leer’s level 3 warning
Fabiye conducted no further investigation after his March 28
meeting with Van Leer, and the only action he took thereafter
was to discuss with Cassard the discipline to impose. As with
the suspension, they jointly made the decision on the discipline
that Van Leer received on April 8. Cassard reviewed and ap-
proved the language of the written warning prior to its issuance.

23 Tr. 239.
24 Jt. Exhs. 3, 4, respectively.
25 Jt. Exh. 3 at 2.
NC-DSH, LLP 11
Cassard and Fabiye did not offer a consistent credible ac-
count of how and when they arrived at a level 3 warning . Thus,
both were suspiciously vague about the communications that
they had with each other regarding the matter. They also con-
tradicted each other concerning whether her past performance
was considered in deciding on that level of discipline. Finally,
Cassard testified that Van Leer’s approaching Fulton in the
parking lot on March 20 was a factor, but Fabiye said nothing
about it being a consideration, and the warning itself mentions
only the March 19 phone call.
Fabiye called Van Leer on April 7 and asked her to come to
his office. She did so the following evening. Dugan was also
present. For reasons already stated, I credit Van Leer’s version
of what was said, rather than Fabiye’s, as follows. I note that
Fabiye did not specifically deny telling Van Leer not to discuss
her discipline with other employees.
Fabiye told Van Leer that other employees had been termi-
nated for the exact same reason but that she was being given a
level 3. She asked why. He replied because she had called
Fulton and used abusive language and profanity. Van Leer
pointed out that this was not with what she had initially been
charged: Calling several employees and saying that she would
kick their asses if they did not see her views. She asked why he
called her language abusive because her cursing had not been
directed toward Fulton or anyone else. She further said that she
was home on her own time. He replied that she should have
asked Fulton where she was, whether she was at work. Van
Leer replied no, that Fulton should have told her if she could
not talk. Van Leer added that she found out that Fulton was at
work only at the end of the conversation.
Van Leer and Fabiye got into a heated exchange after Van
Leer refused to sign the warning, and Fabiye told her that she
could not get a copy. During the course thereof, he also told
her not to discuss her level 3 with coworkers, or “it could be
trouble for you.”26 Van Leer accused him of telling her not to
discuss it because he knew that it was a bogus charge made up
by Kaufman and McNutt because of her support for the Union.
She asked if she would be paid for the time that she was sus-
pended, and he replied no. He also stated that she would be
issued a corrective action plan.
The incident report in the level 3 warning that she received27
cited HR policy 601 (employee conduct and work rules) and
stated:
You displayed disruptive behavior that included profane and
abusive language that was directed toward a hospital employ-
ee while the employee was at work and on duty. While we
respect your right to express your views related to union or-
ganizing, it is not appropriate and in violation of our policy to
do so using profane and abusive language.
Van Leer returned to work on April 10. She never received a
corrective action plan. In response to the General Counsel’s
subpoena duces tecum, the Respondent provided, inter alia, a
level 3 discipline issued to another CNA on June 9 for engaging

26 Tr. 242.
27 GC Exh. 7. The March 8, 2014 dates by Fabiyi’s and Dugan’s
signatures were errors.
in a verbal confrontation with a coworker in the presence of
other coworkers.28 Unlike Van Leer, she had previously re-
ceived a level 2 warning in December 2013, concerning her
behavior.
Analysis and Conclusions
Preelection statements by Kaufman and McNutt
The Board has recognized that “generalized expressions of
an employer’s desire to make things better have long been held
to be within the limits of campaign propaganda.” MacDonald
Machinery Co., 335 NLRB 319, 319 (2001); see also National
Micronetics, Inc., 277 NLRB 993, 993 (1985) (employer’s
generalized request for “another chance” and “more time” did
not violate Section 8(a)(1)). Such statements can be distin-
guished from promises of improvements in specific terms and
conditions of employment. See Purple Communications, Inc.,
361 NLRB No. 43, slip op. 4 (2014).
Fundamentally, such statements found lawful are not in the
context of solicitation of employee grievances or complaints.
As to the solicitation of grievances, the Board stated in Traction
Wholesale Center Co., 328 NLRB 1058, 1058 (1999), citing
Reliance Electric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d
503 (6th Cir. 1972):
When an employer undertakes to solicit employee grievances
during an organizational campaign, there is a “compelling in-
ference,” which the Board can make, that the employer is im-
plicitly promise to correct the grievances and thereby influ-
ence employees to vote against union representation. Such
conduct violates the Act.
In connection with the solicitation of grievances, a statement
indicating that the employer is “looking into” making changes
desired by employees indicates that action is being contemplat-
ed and constitutes an implied promise of improvements. Pur-
ple Communications, supra, 361 NLRB No. 43 at slip op. 4.
This inference is “particularly compelling” when, prior to the
union’s organizing campaign, the employer has not had a pre-
vious practice of soliciting grievances. Garda CL Great Lakes,
Inc., 359 NLRB No. 148, slip op. 1 (2013), citing Amptech,
Inc., 342 NLRB 1131, 1137 (2004), enfd. 165 Fed. App. 435
(6th Cir. 2006).
Here, the Respondent failed to provide evidence that prior to
the Union’s organizing campaign, it ever engaged in a practice
of soliciting employee grievances or complaints. Indeed, the
two conversations in question occurred less than 2 weeks be-
fore the scheduled election.
Before soliciting employee grievances, Kaufman told em-
ployees that the Hospital, but not the Union, could help them
with their concerns, and after Van Leer complained about pay,
he told her he would investigate her claim and get back to her.
After McNutt solicited grievances and Van Leer raised the
money issue, McNutt replied that this had already been brought
to her attention and to give the Hospital a chance to fix the
problem; the employees did not need a union to help them fix
their problems.

28 GC Exh. 8.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the above circumstances, I conclude that, if allegations
were properly before me, the Respondent, through Kaufman
and McNutt, violated Section 8(a)(1) by soliciting employee
complaints and grievances and promising, either explicitly or
implicitly, to remedy them during a union organizing cam-
paign.29
Allegations concerning statements on March 28
1. Fabiye interrogated Van Leer about her union activities
and sympathies.
The test for determining whether questioning of an employee
violates Section 8(a)(1) of the Act is whether it would reasona-
bly tend to coerce employees in the exercise of their Section 7
rights. Grand Canyon University, 362 NLRB No. 13 slip op. 1
(2015), citing Hanes Hoisery, Inc., 219 NLRB 338, 338 (1975).
Fabiyi told Van Leer that she was under investigation be-
cause several employees had complained that she had called
and told them that she was going to kick their asses if they did
not see her views about the Union. Inasmuch as he was pre-
sumably investigating these, due process dictated that he give
her an opportunity to present her versions of what she had said.
I see no coercion in this and therefore recommend that the alle-
gation be dismissed. See Fresenius USA Mfg. Inc, 358 NLRB
1261, 1264 (2012) (Employer may appropriately question em-
ployees about facially valid claims of harassment and threats,
even if that conduct took place during the employees’ exercise
of Section 7 rights); Bridgestone Firestone South Carolina, 350
NLRB 526, 528–529 (2007).
2. Fabiye created an impression of surveillance of Van Leer’s
union activities by telling her that they knew she had called
other employees about the Union.
The Board’s test for determining whether an employer has
created an impression of surveillance is whether the employee
would reasonably assume from the statement in question that
her union activities had been placed under surveillance. Fred’k
Wallace & Son, Inc., 331 NLRB 914, 914 (2000); Tres
Estrellas de Oro, 329 NLRB 50, 50 (1999). An employer cre-
ates such an impression by indicating that it is closely monitor-
ing the degree of an employee’s union involvement. Flexisteel
Industries, Inc., 311 NLRB 257, 257 (1993); Emerson Electric
Co., 287 NLRB 1065, 1065 (1988).
As stated above, the alleged complaints involved telephone
calls, and I do not know how the Respondent could have en-
gaged in surveillance of telephone calls unless it had conducted
(presumably illegal) wire-tapping, of which there is no evi-
dence in the record. Telling Van Leer that several employees
had complained about her carries no connotation that the Hos-
pital was monitoring her union activities. Accordingly, I rec-
ommend dismissal of this allegation.
3. Fabiye threatened Van Leer with unspecified reprisals be-
cause she engaged in union activities.
This relates to Fabiye’s statement that Van Leer should not

29 Kaufman’s statement to employees that the Union could not help
them might be construed as another word of saying that it would be
futile for them to select the Union as their representative. However, it
is essentially subsumed by his conduct in soliciting grievances.
discuss anything they said in the meeting, including the suspen-
sion, with anyone else, or “it will be trouble for you.”
His statement was not a threat of unspecified reprisals be-
cause she engaged in union activities. However, the principle
is well established that an employer violates Section 8(a)(1)
when it prohibits employees from speaking to coworkers about
disciplinary investigations or discipline they have received.
See Fresenius USA Mfg., Inc., above at slip op. 1 fn. 1; Bryant
Health Center, Inc., 353 NLRB 739 (2009); SNE Enterprises,
Inc., 347 NLRB 472 (2006). The Respondent does not assert
any confidentiality considerations that might outweigh Van
Leer’s right to discuss her suspension or disciplinary investiga-
tion with other employees, so that narrow exception to the gen-
eral rule is not applicable. See Caesar’s Palace, 336 NLRB
271 (2001).
I therefore conclude that Fabiyi violated Section 8(a)(1) by
prohibiting Van Leer from speaking to coworkers about her
suspension or the investigation.
4. Dugan issued an overly-broad and discriminatory directive
or rule prohibiting Van Leer from discussing terms and condi-
tions of employment, including discipline issued to her.
The legal framework is set out above. The facts do not sup-
port this allegation. Dugan simply told Van Leer to gather her
personal possessions and leave the facility now that she was
under suspension (and no longer on duty) and not “stand
around talking.” Dugan did not say that Van Leer could not
talk to other employees about her suspension after she left the
premises or when she returned to work status. Accordingly, I
recommend that this allegation be dismissed.
Allegations concerning Fabiye’s statements on April 8
(1) Fabiye issued an overly-broad and discriminatory di-
rective or rule prohibiting Van Leer from discussing her terms
and employment, including discipline issued to her.
(2) Fabiye threatened her with unspecified reprisals because
she engaged in union activities.
These allegations relate to Fabiye’s statement that Van Leer
should not discuss her level 3 discipline with coworkers, or “it
could be trouble for you.”
This was a statement, rather than a directive or rule, and it
did not threaten her with unspecified reprisals because she en-
gaged in union activities. However, I do conclude that Fabiye
violated Section 8(a)(1) by prohibiting Van Leer from speaking
to coworkers about the discipline that she received. See the
cases that I cited above.
Van Leer’s suspension and final written warning
The starting point for determining the lawfulness of the Re-
spondent’s imposition of an unpaid suspension and level 3
warning against Van Leer is which legal framework is appro-
priate: Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the gen-
eral analysis used in cases of alleged unlawful discrimination;
or the analysis set out in Atlantic Steel Co., 245 NLRB 814, 816
(1979), used when there is no question that the employer’s
actions stemmed from the employee’s protected activity.
NC-DSH, LLP 13
Wright Line
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-
gaged in such conduct, the employer harbored animus, and the
employer took action because of this animus.
If the General Counsel makes a prima facie case of discrimi-
natory conduct, it meets its initial burden to persuade, by a
preponderance of the evidence, that protected activity was a
motivating factor in the employer’s action. Once this is estab-
lished, the burden of persuasion shifts to the employer to show
that it would have taken the same adverse action even in ab-
sence of the protected 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, “an employer cannot simply
present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.”
Serrano Painting, 332 NLRB 1363, 1366 (2000), citing Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984).
Should the employer’s proffered defenses be found
pretextual, i.e., the reasons given for the employer’s actions are
either false or not, in fact, relied on, the employer fails by defi-
nition to show that it would have taken the same action for
those reasons, 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).
Atlantic Steel
When a respondent-employer defends disciplinary action
based on employee misconduct that is part of the res gestae of
the employee’s protected activity, the Board typically analyzes
the case under the four-factor test set forth in Atlantic Steel Co.,
above. Fresenius USA Mfg., Inc., above at slip op. 5 (2012);
Aluminum Co. of America, 338 NLRB 20, 22 (2002); Atlantic
Steel Co., 245 NLRB 814 (1979). See also Lou’s Transport,
Inc., 361 NLRB No. 158 (2014); United States Postal Service,
360 NLRB No. 74 (2014). The rationale behind this is that
there is an assumed causal connection between the protected
activity of the employee and the discipline, and the pivotal
issue is whether the employee’s conduct was removed from the
Act’s protection. Aluminum Co. of America, id.; Atlantic Scaf-
folding Co., 356 NLRB 835, 839 (2011); Phoenix Transit Sys-
tem, 337 NLRB 510, 510 (2002), enfd. 63 Fed. Appx. 524
(D.C. Cir. 2003).
An Atlantic Steel Co. analysis considers four factors and
weighs them in the aggregate to determine whether the employ-
ee’s otherwise protected activity lost that protection by the
nature of the employee’s conduct: (1) The place of discussion;
(2) the subject matter; (3) the nature of the employee’s out-
burst; and (4) whether the outburst was in any way provoked by
the employer’s ULP’s.
Here, the sole basis for the discipline (the level 3 warning
and resultant unpaid suspension) was Van Leer’s telephone
conversation with a coworker pertaining to employees’ senti-
ments about voting for or against union representation, in
which she directly or indirectly expressed her own views on the
matter. There can be no doubt that this constituted protected
activity under Section 7 of the Act.
Accordingly, this is a single-motive case where there is no
dispute as to the (protected) activity for which discipline was
imposed. Prior to Triple Play Sports Bar & Grille, 361 NLRB
No. 31 (2014), discussed below, precedent would dictate that
without question Atlantic Steel rather than Wright Line governs.
See, e.g., Santa Fe Tortilla Co., 360 NLRB No. 130, slip op. at
3 (2014); Atlantic Scaffolding Co., 356 NLRB 835, 839 (2011)
(“[W]hen the conduct for which the employees are discharged
constitutes protected activity, ‘the only issue is whether [that]
conduct lost the protection of the Act because . . . [i]t crossed
over the line separating protected and unprotected activity.”
Citations omitted); Aluminum Co. of America, 338 NLRB 20,
22 (2002).
In Felix Industries, Inc., 331 NLRB 144, 144–146 (2000),
enf. denied on other grounds 251 F.3d 1051 (D.C. Cir. 2001),
the Board found that statements made by an employee to a
supervisor over the telephone should be analyzed under Atlan-
tic Steel, specifically rejecting the application of Wright Line
“where the conduct for which the Respondent claims to have
discharged [the employee] was protected activity . . .,” (Id. at
146), citing Neff Perkins Co., 315 NLRB 1229, 1129 fn. 2
(1994), and Mast Advertising & Publishing, 304 NLRB 819
(1991).
The application of Atlantic Steel to a situation such as this
one has been placed into question by Triple Play Sports Bar
and Grille, a case involving statements made by two employees
in a Facebook discussion, in which they complained about er-
rors in the employer’s tax withholding calculations. The Board
found Wright Line, rather than Atlantic Steel, to apply, stating
(at slip op. at 4–5) (footnotes omitted):
The clear inapplicability of Atlantic Steel’s ‘place of discus-
sion’ factor supports our conclusion that the Atlantic Steel
framework is tailored to workplace confrontations with the
employer. . . . No manager or supervisor participated in the
discussion, and there was no direct confrontation with man-
agement. Although we do not condone her conduct, we find
that Sanzone’s use of a single expletive to describe a manager,
in the course of a protected discussion on a social media web-
site, does not sufficiently implicate the Respondent’s legiti-
mate interest in maintaining discipline and order in the work-
place to warrant an analysis under Atlantic Steel.
The Board adopted the judge’s finding that the discharges in
question violated Section 8(a)(1) but under Wright Line rather
than Atlantic Steel.
Locale-wise, the scenario here may be considered to fall
somewhere between workplace and off-site since Fulton was at
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work, but Van Leer was not. I am inclined to view it as away
from the workplace since no one other than Fulton was privy to
the call. Moreover, no manager or supervisor participated in
the phone call, and it is difficult to see how what was said
therein interfered with “discipline and order in the workplace.”
Manager Murphy’s conduct refutes any claim to the contrary:
She did not stop when she passed by Fulton’s desk during the
phone call but instead continued on her way, and she initiated
no communication with Fulton afterward.
In view of the uncertainty of which analysis the Board would
find appropriate, I will analyze the case under both standards.
Atlantic Steel analysis
1. Place of discussion.
As Fresenius indicates (slip op. at 6), if the place of discus-
sion is one that is unlikely to disrupt production, i.e., a nonwork
area, it favors continued protection. The Board also considers
whether the comments were made in the presence of other em-
ployees and, if not, the location factor is favorable. Fresenius,
id.; Beverly Health & Rehabilitation Services, 346 NLRB 1319,
1322 fn. 20 (2006). The brief phone conversation in no way
interfered with the Respondent’s business, and no other em-
ployees heard it. Under both criteria, location favors protec-
tion.
2. Subject matter.
Van Leer talked to a coworker about employees backtrack-
ing on their support for the Union, with the election scheduled
to begin the following day. Thus, the subject was one going to
the heart of employees’ rights to organize and to vote for or
against representation in an NLRB election. Subject matter
favors protection.
3. Nature of the outburst.
Since Van Leer spoke to a coworker over the phone, “out-
burst” would not seem to be the best term, but the Respondent
argues that her “profane and abusive language” properly sub-
jected her to discipline under the prohibition against disruptive
behavior.
Therefore, the most important single element here is the na-
ture of Van Leer’s conduct as she engaged in protected activity,
more precisely, whether it was “sufficiently egregious” to re-
move her from the Act’s protection. See Coca Cola Puerto
Rico Bottlers, 358 NLRB 1233, 1235 fn. 12 (2012); Stanford
Hotel, 344 NLRB 558, 558 (2005).
The Board distinguishes between “cases where employees
engaged in concerted actions that exceeded the bounds of law-
ful conduct in a moment of animal exuberance or in a manner
not motivated by improper motives and those flagrant cases in
which the conduct is so violent or of such character to render
the employee unfit for further service.’” Kiewit Power Con-
structors Co., 355 NLRB 708, 711 (2010), enfd. 652 F.3d 22
(D.C. Cir. 2011), citing Prescott Industrial Products Co., 205
NLRB 51, 51–52 (1973). In Kiewit, the Board found protected
remarks that were “intemperate” but simple, brief, and sponta-
neous reactions, distinguishing them from premeditated, sus-
tained personal threats, or unambiguous or outright threats of
personal violence. Id.; see also Fresenius, above at slip op. 6–7;
Beverly Health, above at 1322–1323.
The use of profanities in and of itself does not ordinarily re-
move an employee from protection. Thus, in Winston-Salem
Journal, 341 NLRB 124, 126 (2004), the Board determined that
the conduct of an employee who cursed at a supervisor and
“angrily pointed his finger at him” was not “so inflammatory as
to lose the protection of the Act.” The Board emphasized that
the Act allows a certain degree of latitude to employees en-
gaged in otherwise protected activity even when they express
themselves intemperately.
And, in Stanford Hotel, above at 559, the Board found that
an employee calling a supervisor “a f—ing son of a bitch”
while angrily pointing a finger at him weighed against protec-
tion. Nevertheless, other factors weighed in favor of protec-
tion, and the Board concluded that the employee’s conduct was
protected.
Finally, in Plaza Auto Center, Inc., 355 NLRB 493, 497
(2010), the Board found, inter alia, that an employee’s standing
up and pushing aside a chair did not amount to a threatening
gesture, even though the employee engaged in cursing and
made a statement that if the owner fired him, he would regret it.
Based on the above precedent, I conclude that Van Leer’s
conduct was not sufficiently egregious to remove it from the
Act’s protection.
4. Whether the outburst was in any way provoked by the
employer’s ULP’s.
The last factor is provocation by the employer’s ULP’s. This
does not require that the employer’s conduct be explicitly al-
leged as a ULP so long as the conduct evinces an intent to inter-
fere with protected rights. Network Dynamics Cabling, Inc.,
351 NLRB 1423, 1429 (2007); Overnite Transportation Co.,
343 NLRB 1431, 1438 (2004).
This factor is inapplicable since nothing suggests that Van
Leer’s conduct was triggered by any actions of the Respondent,
and the “outburst” was made toward a coworker and not a man-
ager or supervisor.
In summary, I conclude that three of the four Atlantic Steel
Co. factors are applicable, that in the aggregate they weigh in
Van Leer’s favor, and that her behavior did not remove her
conduct on March 19, from the protection of the Act. There-
fore, under an Atlantic Steel analysis, the Respondent violated
Section 8(a)(3) and (1) of the Act by suspending Van Leer and
issuing her a level 3 discipline.
Wright Line analysis
Without question, Van Leer called Fulton concerning em-
ployees voting for or against the Union in the upcoming elec-
tion, and the Respondent was aware from the start of the pur-
pose of the call—both Murphy’s and Schmid’s emails to Fabiyi
expressly referred to the call pertaining to how employees
would vote in the election. Thus, the elements of protected
activity and employer knowledge are established.
As to animus, in the March 28 meeting, Fabiyi told Van Leer
not to discuss her suspension with anyone else, or “it will be
trouble for you,” and in the April 8 meeting, he unlawfully told
her not to discuss her level 3 discipline with coworkers, or “it
could be trouble for you.”
NC-DSH, LLP 15
Several factors also support a finding of inferred animus.
First, the Respondent gave Van Leer a level 3 discipline, rather
than imposing lesser penalties as per the Respondent’s progres-
sive discipline system, which provides that such factors as the
severity of the incident, frequency of the incident, and previous
overall performance/behavior are among the factors considered
in determining what level should be imposed. Van Leer had no
prior disciplines of any kind, and the evaluation that she re-
ceived after April 8 reflects that her supervisors considered her
a good employee. An employer’s failure to follow its own
progressive discipline policies frequently indicates a hidden
motive for the imposition of more severe discipline. Fayette
Cotton Mill, 245 NLRB 428 (1979); Keller Mfg. Co., 237
NLRB 712, 713–714 (1978).
Moreover, this was the first instance in which Van Leer was
found to have engaged in disruptive behavior or any other kind
of misconduct. The only evidence of any other employee re-
ceiving a level 3 discipline for disruptive behavior concerned
an employee who had a previous discipline for bad behavior
and had been put on a corrective action procedure, and her
misconduct was at the workplace in the presence of other
coworkers. Here, the conduct was in the nature of a phone call
that Van Leer made when she was off duty and away from the
Hospital, and there is no evidence that the call was disruptive.
Indeed, Murphy did not stop when she passed by Fulton’s desk
during the call and, even according to her own written version
of the event, an employee other than Fulton first came to see
her afterward. Thus, I conclude that the discipline imposed in
proportion to the offense raises another inference of improper
motive. See Detroit Paneling Systems, Inc., 330 NLRB 1170,
1170 (2000); KNTV, Inc., 319 NLRB 447, 452 (1995).
Fabiye did not attempt to obtain complete written statements
from either Fulton or Van Leer concerning the contents of their
telephone conversation, contrary to what he testified was his
normal policy of asking for written statements, and below the
level of professionalism that I would expect of an HR specialist
employed by a hospital that is part of a chain of facilities. I
have to presume that he would appreciate the importance of full
documentation in this day and age. This might not amount to a
failure to conduct a full and fair investigation (see Hewlett
Packard Co., 341 NLRB 492, 492 fn. 2 (2004); Firestone Tex-
tile Co., 203 NLRB 89, 95 (1973)), but it does suggest that the
Respondent did not have a genuine interest in obtaining from
either Fulton or Van Leer a full written account of the contents
of their conversation. One has to wonder why.
Finally, animus can be inferred from the Respondent’s shift-
ing rationales for suspending and then disciplining Van Leer.
In the March 28 meeting, Fabiye stated and then confirmed that
she was being investigated for calling several employees and
telling them that she would “kick their asses;” if she had not,
then she would be paid for the time for which she was being
suspended. However, he admittedly engaged in no further in-
vestigation following the meeting, and at the April 8 meeting,
mentioned nothing about that allegation. Instead, he limited his
description of her misconduct to the telephone call, for which
she was receiving a level 3 discipline and no pay for the period
of her suspension. And, Cassard testified that Van Leer’s
communication with Fulton on March 20 played a role in de-
ciding to issue her a level 3 discipline, but that communication
is not mentioned as a reason either by Fabiye or in the written
discipline itself. Such shifting of rationales is evidence that the
Respondent’s proffered reasons for disciplining Van Leer are
pretextual. See Approved Electric Corp., 356 NLRB 238
(2010) (citing City Stationery, Inc., 340 NLRB 523, 524
(2003); GATX Logistics, Inc., 323 NLRB 328, 335 (1997)
(“Where . . . an employer provides inconsistent or shifting rea-
sons for its actions, a reasonable inference can be drawn that
the reasons proffered are mere pretexts designed to mask an
unlawful motive.”).
Considering all of the above factors, I conclude that the Gen-
eral Counsel has established the last elements, of animus and of
actions based thereon and thus met his initial burden of persua-
sion under Wright Line.
The next step in the analysis is determining whether the Re-
spondent has met its burden of persuasion to show that it would
have taken the same adverse action even in absence of the pro-
tected activity. Since this is not a dual-motive case, the sole
focus of inquiry is determining whether the Respondent would
have suspended Van Leer without pay and issued her a level 3
discipline had the phone call not constituted protected activity.
For a number of reasons, I conclude that the Respondent has
failed to meet that burden. First, I again note the adverse infer-
ences that I have drawn from the Respondent’s failure to call
Fulton as a witness or to show that it made reasonable efforts to
secure her presence at trial, and its failure to call admitted agent
Dugan. Secondly, as I previously explained, Cassard and
Fabiye were not credible witnesses on many key points con-
cerning the suspension and discipline. Perhaps the most glaring
examples of this are Cassard’s initial testimony that he could
not recall if Fabiyi informed him that the phone conversation
dealt with the Union, and Fabiye’s testimony that the subject of
the Union never came up in his March 28 meeting with Van
Leer—testimony directly contradicted by his own notes of the
meeting.
Finally, factors that I have considered as leading to infer-
ences of animus also undermine the Respondent’s ability to
rebut the General Counsel’s prima facie case of unlawful sus-
pension and discipline: (1) The Respondent’s shifting ration-
ales for the suspension and discipline; (2) Fabiye’s failure to
ask Fulton or Van Leer to provide written statements, despite
his testimony that it is his normal policy to ask for them; (3) the
Respondent’s failure to follow its progressive discipline poli-
cies; and (4) the severity of the penalty levied in proportion to
the seriousness of the offense.
Accordingly, I conclude that under a Wright Line analysis,
the Respondent violated Section 8(a)(3) and (1) by suspending
Van Leer and issuing her a level 3 warning.
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)(3)
and (1) of the Act.
(a) Suspended Theresa Van Leer on March 28, 2014.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Issued Van Leer a level 3 discipline on April 8, 2014.
3. 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: Told an employee not to discuss her pending inves-
tigation, suspension, or discipline with other employees.
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.
Specifically, the Respondent shall make Van Leer whole for
any losses, earnings, and other benefits that she suffered as a
result of the unlawful suspension imposed on her. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, NC-DSH, LLP d/b/a Desert Springs Hospi-
tal Medical Center, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Suspending, issuing warnings to, or otherwise discrimi-
nating against employees for engaging in activities on behalf of
Service Employees International Union, Local 1107 or any
other labor organization.
(b) Telling employees not to discuss their pending investiga-
tions, suspensions, or disciplines with other employees.
(c) 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) Make Theresa Van Leer whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the
decision.
(b) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful suspension
and level 3 discipline of Theresa Van Leer, and within 3 days
thereafter notify her in writing that this has been done and that
the suspension and level 3 discipline will not be used against
her in any way.
(c) 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-

30 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.
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.
(d) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”31 Copies of the notice, on forms provided
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 March 28, 2014.
(e) 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. March 13, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT suspend, discipline, or otherwise discriminate
against you because you engage in activities in support of Ser

31 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NC-DSH, LLP 17
vice Employees International Union, Local 1107 or any other
labor organization.
WE WILL NOT tell employees not to discuss their pending in-
vestigations, suspensions, or disciplines with other employees.
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 make Theresa Van Leer whole for any loss of earn-
ings and other benefits suffered as a result of our discrimination
against her, in the manner set forth in the remedy section of the
decision.
WE WILL remove from our files any reference to the suspen-
sion and level 3 discipline of Theresa Van Leer, and we will,
within 3 days thereafter notify her in writing that this has been
done and that the suspension and level 3 discipline will not be
used against her in any way.
NC-DSH, LLP D/B/A DESERT SPRINGS HOSPITAL
MEDICAL CENTER
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28–CA–127971 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.