North Carolina Prisoner Legal Services

National Labor Relations Board - Board Decisions

Sep 29, 2007

351 N.L.R.B. 464 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 30
464
North Carolina Prisoner Legal Services, Inc. and
Linda Weisel. Case 11–CA–20238
September 29, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On December 16, 2004, Administrative Law Judge
Pargen Robertson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision in light of the
record and briefs and has decided to affirm the judge’s
rulings, findings,1 and conclusions2 as modified and to
adopt the recommended Order as modified and set forth
in full below.3
I. INTRODUCTION
The Respondent is a nonprofit law firm in North Caro-
lina. The complaint alleges, and the judge found, that the
Respondent committed various unfair labor practices in
retaliation for the employees’ protected activities sur-
rounding the Respondent’s decision to deny an em-

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 In his Conclusion of Law 2, the judge inadvertently concluded that
the Respondent’s termination of short-term disability benefits for its
employees took place on October 1, 2003. The judge repeated this date
in the remedy section of his decision. As the judge correctly found
elsewhere in his decision, however, the Respondent’s elimination of
short-term disability benefits began August 15, 2003, and ended in
December 2003. We modify Conclusion of Law 2 and amend the
remedy accordingly.
3 We shall modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language, and in
accordance with Indian Hills Care Center, 321 NLRB 144 (1996),
Excel Container, Inc., 325 NLRB 17 (1997), and Ferguson Electric
Co., 335 NLRB 142 (2001); and we shall substitute a new notice to
conform to the Order as modified.
We shall amend the judge’s remedy in one additional respect. The
judge’s remedy provides for the calculation of backpay under the quar-
terly formula prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Some of the unfair labor practice violations found herein, however, did
not involve cessation or denial of employment. Backpay necessary to
remedy such violations is properly calculated in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971). See, e.g., CAB Associates, 340 NLRB 1391, 1393 (2003). We
shall so provide.
ployee’s request for maternity benefits under the Re-
spondent’s short-term disability policy.
The Board unanimously adopts, for the reasons stated
by the judge, the judge’s findings that the Respondent
violated Section 8(a)(1) by: (1) threatening its employ-
ees with unspecified reprisals on August 13 and 22,
2003; (2) threatening to withhold a wage increase on
August 13, 2003; and (3) threatening to eliminate short-
term disability benefits on August 13, 2003.4
A majority of the Board5 adopts, for the reasons stated
below, the judge’s findings that the Respondent violated
Section 8(a)(1) by withholding a wage increase, eliminat-
ing short-term disability benefits between August 15 and
December 2003,6 threatening to eliminate reduced-hours
work schedules,7 eliminating reduced-hours work sched-
ules, and constructively discharging employee Linda
Weisel.8

4 Chairman Battista agrees with his colleagues as to the first threat.
He concurs in finding that threats (2) and (3), set forth above, violate
Sec. 8(a)(1). These threats consist of one statement by the Respon-
dent’s agent that he will recommend an unlawful action to the Respon-
dent’s decisionmaker and a second statement that the Respondent might
take unlawful action. As such, the Chairman finds that these threats
constitute violations separate and apart from implementation of the
actions that were threatened [in this case, withholding the wage in-
crease and eliminating short-term disability benefits]. In the Chair-
man’s view, this is distinguishable from situations where an employer
announces the unlawful conduct it is implementing. In the latter case,
the Chairman would find only a single violation: the unlawful action.
See Albertson’s, Inc., 344 NLRB 1172, 1173 fn. 3 (2005) (Battista,
dissenting in part).
5 Chairman Battista and Member Walsh.
6 To remedy this violation, the judge ordered the Respondent to re-
store its short-term disability benefits as they existed before August 15,
2003. The judge’s remedy, however, is not tailored to expunge the
effects of the violation, which consists essentially of depriving employ-
ees of short-term disability benefits during a period of approximately 4
months. We shall instead order the Respondent to make employees
whole for any losses suffered as a result of the August 15 plan termina-
tion—i.e., to make whole any employees who would have been entitled
to short-term disability benefits during the period between the unlawful
termination of the Respondent’s former plan and the lawful institution
of the new plan. Whether there were any such employees is a matter
we shall leave to compliance.
7 In finding that this threat to eliminate reduced-hours work sched-
ules violated Sec. 8(a)(1), Chairman Battista relies on the fact that
Executive Director Michael Hamden’s statement was a threat of future
action rather than an announcement of a contemporaneous decision (see
fn. 4, above). Indeed, the threat preceded the elimination of reduced-
hours schedules by 4 months. Under these circumstances, Chairman
Battista agrees that the threat and reduction are separate and
independent violations.
8 The judge also found that the Respondent violated Sec. 8(a)(1) by
forcing employee Susan Pollitt to take personal leave in order to avoid
a constructive discharge, and the Respondent excepts to that finding.
Chairman Battista and Member Walsh find it unnecessary to pass on
this finding. When the Respondent unlawfully eliminated reduced-
hours work schedules, Pollitt, who had been working a reduced-hours
schedule, continued working reduced hours and began using personal
NORTH CAROLINA PRISONER LEGAL SERVICES 465
II. FACTS
A. Background
The Respondent provides legal services to inmates in
the North Carolina prison system. Executive Director
Michael Hamden manages the Respondent’s operations.
He supervises the Respondent’s attorneys and has exclu-
sive hiring and firing authority over the Respondent’s
supervisors, attorneys, paralegals, and support staff. The
Respondent is governed by a board of directors that has
exclusive hiring and firing authority over Hamden.
The Respondent is primarily funded through a contract
with the North Carolina Department of Corrections (the
DOC). Under this contract, the DOC agrees to pay a set
hourly rate for a specified number of hours that the Re-
spondent’s attorneys and paralegals spend providing le-
gal services to inmates. At the time of the events under-
lying this case, the Respondent was operating under the
first year of a 3-year contract with the DOC that was
executed on May 16, 2003,9 and was retroactive to Octo-
ber 1, 2002. The Respondent routinely grants wage in-
creases when it enters into a new contract with the DOC.
In order for a wage increase to occur, however, Hamden
must first recommend the increase to the board of direc-
tors for its approval.
During the relevant time period, the Respondent em-
ployed approximately 16 attorneys. Four of these attor-
neys worked “reduced-hours schedules” of 30- to 32-
billable hours a week: Kari Hamel, Kristin Parks, Susan
Pollitt, and Linda Weisel. Attorneys working reduced-
hours schedules were considered full-time employees
and received benefits.
B. The Events Leading to the Employees’
August 8 Petition
In early 2003, employee Hamel requested maternity
leave and benefits under the Respondent’s short-term
disability policy. Although Hamden granted Hamel’s
request for maternity leave, he did not approve her re-

leave to make up the difference between that schedule and a full-time
schedule. The judge’s make-whole remedy for his 8(a)(1) finding
concerning Pollitt is to require the Respondent to reinstate her personal
leave time. This remedy is cumulative, however. Having violated the
Act by eliminating reduced-hours work schedules, the Respondent must
make its employees whole for any losses resulting from that violation—
including compensating Pollitt for the use of her personal leave. Cf.
Albar Industries, 322 NLRB 298 (1996) (ordering respondent to rein-
state vacation time it unlawfully required employees to use); Ceridian
Corp., 343 NLRB 571 (2004) (ordering respondent to restore personal
days off to remedy respondent’s refusal to grant employee-negotiators
unpaid leave to attend collective-bargaining sessions), enfd. 435 F.3d
352 (D.C. Cir. 2006). Accordingly, Chairman Battista and Member
Walsh do not pass on the judge’s 8(a)(1) finding concerning Pollitt
because it would not materially affect the remedy.
9 All dates are in 2003, unless stated otherwise.
quest for short-term disability benefits. Hamel appealed
the decision to the board of directors’ grievance commit-
tee to no avail.
That spring, Hamel corresponded, through her attor-
ney, with Barry Nakell, a member of the Respondent’s
board of directors. In her initial letter, Hamel alleged
that the Respondent’s refusal to apply its short-term dis-
ability policy to temporary disability arising from preg-
nancy was unlawful. In response, Nakell specifically
inquired whether Hamel was taking the position that the
Respondent’s policy was unlawful on its face. In a letter
dated June 10, Hamel answered that “[t]he question of a
violation of Title VII arises only in how the policies are
applied.”
On July 22, having received no indication that the
board of directors would reconsider its decision to deny
her claim for short-term disability benefits, Hamel filed a
charge with the Equal Employment Opportunity Com-
mission (EEOC) on behalf of herself and similarly situ-
ated employees.10 The charge alleged that the Respon-
dent had illegally denied her claim for short-term disabil-
ity benefits during her maternity leave.
Shortly thereafter, on August 8, the Respondent’s em-
ployees submitted a petition to the Respondent’s board of
directors. This petition, authored by Attorney Elizabeth
Hambourger and signed by 17 of the Respondent’s em-
ployees, expressed the employees’ hope that “short-term
disability insurance will remain a benefit to NCPLS em-
ployees and that it will apply to temporary disability aris-
ing from pregnancy and childbirth as it does to any other
short-term disability.”
C. The Events Leading up to the August 15
Withholding of the Wage Increase and the
Elimination of the Short-Term Disability Policy
The Respondent aggressively opposed the employees’
petition. During a staff meeting on August 12, a number
of the Respondent’s supervisors expressed hostility to-
ward the employees’ decision to circulate the petition.
Fiscal Officer Rick Lennon complained that it was wrong
for the employees to have gone to the board of directors
behind Hamden’s back, and that he (Lennon) felt be-
trayed by the employees’ action. At about the same time,
Hamden, in a conversation with the executive director of
Legal Aid of North Carolina, characterized the employ-
ees’ petition as an act of “mutiny.”
The day after the staff meeting, Hamden called Ham-
bourger to his office and told her that he had not realized
the extent of the factionalism in the office, that he had
been “too indulgent” with the staff, and that “things were

10 Before filing this EEOC charge, Hamel informed coworkers Pollitt
and Hambourger, and obtained their support for its filing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD466
going to change.” Hamden said that the employees
would be less likely to achieve their goals with the peti-
tion because they had gone to the Board. When Ham-
bourger asked Hamden what he meant, Hamden ex-
plained, “[B]ecause of this letter I cannot ask the Board
to give the staff raises,” and “[B]ecause of the letter you
are now less likely to get a parental leave policy in
place.” Hamden added that the board of directors would
be “angry” about the petition and would “want to show
the staff that they’re not entitled to these things by with-
holding things.” Hamden told Hambourger that she
could not have known, “but senior attorneys should have
known better” than to have petitioned the board of direc-
tors.
The Respondent had budgeted a 6-percent wage in-
crease for employees that was slated for approval at its
August 15 board meeting. A day or two before the board
meeting, however, Hamden decided not to recommend
the wage increase. Hamden discussed the matter with
Lennon, and Lennon agreed with Hamden’s decision.
During the board meeting, Lennon advised the board of
directors that management had decided not to recom-
mend the wage increase because of “employee com-
plaints and ongoing litigation.” The minutes of the Au-
gust 15 meeting reflect that the board of directors
adopted Hamden and Lennon’s recommendation and
their stated reasons for it: “The current budget includes a
6% staff salary increase, but in light of staff benefit con-
cerns and pending litigation, discussion of staff pay
raises was deferred.” The board of directors also re-
pealed the Respondent’s short-term disability policy at
this meeting.
D. The Elimination of Reduced-Hours
Work Schedules
On August 18, Hamden met with the Respondent’s
senior attorneys, including employees Hamel, Parks,
Pollitt, and Weisel and told them that he would be an-
nouncing a proposal the following day that they would
not support. On August 19, Hamden called a staff meet-
ing, which Board Member Barry Nakell briefly attended.
Nakell, who did not ordinarily attend such meetings, rep-
resented to the staff that Hamel’s request for short-term
disability benefits was still under consideration. Before
leaving, he added that Hamden had the board’s “full sup-
port.”
After Nakell left the meeting, Hamden informed the
staff that the board of directors had rescinded the Re-
spondent’s short-term disability policy. In addition,
Hamden announced a proposal that, beginning Septem-
ber 1, all employees would be required (1) to work 40
hours per week (i.e., 40-billable hours per week) to qual-
ify for benefits, and (2) to work 8 additional hours of
overtime per week, for a total of 48 hours per week, until
November 15, and possibly beyond that time. Hamden
explained that under this proposal, the reduced-hours
work schedule would be eliminated.
Hamden attributed the need for this change to a 48-
hour workweek to a number of challenges, including a
deficit in the number of hours owed under the DOC con-
tract,11 factionalism in the office, an impending office
move, and the implementation of a new computer soft-
ware program. Hamden gave the staff 1 week to provide
their input on the proposal and said that he would an-
nounce his final decision on August 26.
Following the meeting, employees Pollitt and Weisel
met with Nakell to express their concerns regarding
Hamden’s proposal. They also detailed their concerns in
a letter to Hamden, explaining that they had been work-
ing reduced hours since 1992 and their family obligations
had been structured around that schedule. The letter
pointed out that Hamden’s proposal would require a dis-
proportionate increase in workload for reduced-hours
employees, all of whom were women, and that a re-
quirement of additional work should be proportional to
employees’ regular work hours, as it had always been in
the past.
On August 23, employee Parks met with Hamden re-
garding his proposal. Hamden asked Parks if she knew
that some members of the staff had gone to the board of
directors “behind his back,” adding that this was “not the
way to get things done around here and I’m just not go-
ing to have that kind of thing anymore.” Hamden told
Parks that Pollitt and Weisel “continued to undermine”
his authority and “stir up trouble,” and that he could not
“put up with it anymore.”
On August 26, Hamden announced that he had decided
not to implement the 48-hour proposal. Later that day,
when Parks thanked Hamden for withdrawing the 48-
hour requirement, Hamden stated, “Well, you know, I
could still do 40 hours a week if that’s what I choose to
do.” On another occasion, Hamden told Parks, “It’s not
because of the contract hours and it’s not because of the
money for the benefits, but it’s because some people here
think it’s an entitlement to work part-time.”
On October 1, Hamden told Pollitt that he was going to
eliminate reduced-hours employment. Pollitt asked
Hamden why he was taking this action, and Hamden
stated that in addition to the deficit in hours owed to the
DOC, it was because of the hostility he had received in
response to his proposal in August. Hamden said that he
couldn’t take that kind of hostility, and that she and

11 The Respondent was approximately 1200 hours behind on the
hours owed under its contract with the DOC.
NORTH CAROLINA PRISONER LEGAL SERVICES 467
Weisel had “threatened gender litigation” in their letter
and thought working reduced hours was an “entitle-
ment.” That day, Hamden sent an e-mail to all employ-
ees announcing the elimination of reduced-hours em-
ployment for all NCPLS employees.
Following Hamden’s October 1 elimination of re-
duced-hours schedules, Hamel, Parks, and Weisel re-
signed from their employment with the Respondent.
Pollitt continued to work for the Respondent, supple-
menting the hours she worked with accrued leave to ful-
fill the 40-hour requirement.
III. THE WITHHOLDING OF THE WAGE INCREASE
AND THE ELIMINATION OF SHORT-TERM
DISABILITY BENEFITS
The judge found that the Respondent’s decisions to
withhold the planned wage increase and to repeal its
short-term disability policy were in retaliation for em-
ployees’ protected activities, and therefore violated Sec-
tion 8(a)(1) of the Act. We agree.
Under Wright Line,12 the General Counsel bears the
burden of proving by a preponderance of the evidence
that the employees’ protected conduct was a motivating
factor in the adverse employment actions. If the General
Counsel makes a showing of discriminatory motivation
by proving protected activity, the employer’s knowledge
of that activity, and animus against protected conduct,
then the burden of persuasion shifts to the employer to
prove that it would have taken the same actions even in
the absence of the protected conduct. See Donaldson
Bros. Ready Mix, 341 NLRB 958, 961 (2004).
It is undisputed that the Respondent’s employees en-
gaged in extensive protected activities and that the Re-
spondent was aware of those activities. Those protected
activities included Hamel’s filing of her July 22 charge
with the EEOC on behalf of herself and similarly situated
employees—after informing coworkers and obtaining
their support—and the employees’ August 8 petition to
the Respondent’s board of directors. The judge found
that the Respondent harbored animus against those pro-
tected activities. We agree.
The record contains direct evidence that the employ-
ees’ protected activity was a motivating factor in the Re-
spondent’s decision to withhold the planned wage in-
crease. The minutes of the August 15 board of directors’
meeting state that, “in light of staff benefit concerns and
pending litigation, discussion of staff pay raises was de-
ferred.”13 These minutes demonstrate that the board

12 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
13 The credited testimony of Elizabeth Hambourger establishes that
Rick Lennon told the board of directors that management was with-
members withheld the wage increase at least in part be-
cause the employees had filed an EEOC charge and peti-
tioned the board of directors, activity that was protected
by Section 7.
In finding that the Respondent harbored unlawful ani-
mus in withholding the wage increase, we also rely on
certain statements made by Fiscal Officer Rick Lennon.
At a staff meeting held on August 12, Lennon expressed
hostility toward employees’ protected activity when he
told them that it was wrong for them to have gone to the
board of directors behind Hamden’s back by circulating
the petition and that he felt betrayed by those actions.
Three days later, at the August 15 meeting, Lennon rec-
ommended to the board of directors that it defer discus-
sion of any wage increase (i.e., that it not then authorize
the granting of a wage increase). The board of directors
acted consistent with that recommendation, and, as stated
above, it expressly stated in its meeting minutes that it
was acting because of staff benefit concerns and pending
litigation.
We also rely on Lennon’s admission that management
decided to withdraw its plan to grant wage increases be-
cause of “employee complaints and ongoing litigation.”
That statement directly links the employees’ protected
conduct and the Respondent’s decision not to go forward
with the wage increase as planned.14
We also agree with the judge’s finding that the Re-
spondent’s purported justifications for withholding the
wage increase are pretextual. The Respondent claims in
its brief that it based its decision on its pending office
relocation, the deficit in the number of hours it owed to
the DOC, the implementation of a new computer soft-
ware program, and pending litigation. Even assuming
that the Respondent had legitimate concerns over the
costs associated with those issues, the evidence shows

holding the planned recommendation for staff pay increases, and not
merely deferring the discussion. Whether characterized as a “deferral”
or a “withholding,” the Respondent did not grant a wage increase on
August 15 because of protected activity, and hence its action was
unlawful.
14 Our colleague contends that we cannot rely on Lennon’s state-
ments to establish unlawful motivation because it was the board of
directors, not Lennon, who ultimately made the decision to withhold
the wage increase. Our colleague misses the point. The minutes of the
board of directors’ meeting show that, when the board of directors
exercised its authority to deny the wage increase, its reasons were iden-
tical to the unlawful reasons expressed by Hamden and Lennon in their
discussions leading up to the board of directors’ August 15 meeting.
Plainly, Lennon’s recommendation informed the board of directors’
decision, and Lennon’s animus is therefore relevant.
Member Walsh would also rely on Hamden’s unlawful threats that
(i) he could not ask the board of directors for a wage increase; (ii) the
board of directors would be “angry” and “want to withhold things”
from the staff; and (iii) the “senior attorneys should have known bet-
ter.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD468
that the Respondent was not motivated by those concerns
when it withdrew the planned wage increase.
First and foremost, as discussed above, the minutes of
the August 15 board meeting state that the wage increase
was not granted because of “staff benefit concerns and
pending litigation.” Significantly, the minutes do not
mention the office relocation, the deficit in hours owed to
the DOC, or the new computer software program as rea-
sons for foregoing the wage increase. The Respondent’s
subsequent reliance on additional explanations for its
decision supports an inference that these latter reasons
were not in fact relied upon. See, e.g., Hahner, Fore-
man, & Harness, Inc., 343 NLRB 1423, 1425 (2004);
Monroe Mfg., 323 NLRB 24, 27 (1997).
Moreover, it is clear from the record, as our dissenting
colleague acknowledges, that whatever concerns the Re-
spondent had, they did not deter the Respondent from
placing the wage increase on the agenda of the August 15
board meeting. Indeed, with respect to the office reloca-
tion, the Respondent had received notice as early as Feb-
ruary 11 that it would not be able to renew its lease. Yet
when it came time to prepare for the August 15 board
meeting—6 months after learning that it would have to
relocate—the Respondent placed the wage increase on
the agenda, as planned. Similarly, the Respondent was
fully aware of the deficit in hours owed to the DOC, the
pending implementation of a new software program, and
the pending EEOC charge when it included the wage
increase on the agenda for the August 15 board meeting.
In fact, it was not until a day or two before the board
meeting—and just after learning of the employees’ peti-
tion—that Hamden and Lennon suddenly decided that
the wage increase was no longer a good idea.
As shown, Hamden predicted that the board of direc-
tors would be “angry” and would want to “withhold
things” from the staff because of their protected activi-
ties. In the circumstances, we agree with the judge that
there is no evidence that anything happened shortly be-
fore the August 15 board meeting to cause the Respon-
dent to reconsider the wage increase other than the em-
ployees’ petition to the board of directors, which, as the
judge found, was the employees’ “most visible concerted
activity.”
Our finding that the Respondent’s purported justifica-
tions for withholding the wage increase are pretextual
defeats any attempt by the Respondent to show that it
would have withheld the wage increase absent the em-
ployees’ protected activities. Golden State Foods Corp.,
340 NLRB 382 (2003). This is because where “the evi-
dence establishes that the reasons given for the Respon-
dent’s action are pretextual—that is, false or not in fact
relied upon—the Respondent fails by definition to show
that it would have taken the same action for those rea-
sons, absent the protected conduct, and thus there is no
need for us to perform the second part of the Wright Line
analysis.” Id. at 385.
Turning now to the Respondent’s decision to repeal its
short-term disability policy, we find, in agreement with
the judge, that this decision too was an unlawful response
to the employees’ protected activities surrounding the
August 8 petition. We infer from the fact, found above,
that the board of directors withheld a planned wage in-
crease on August 15 because of its employees’ protected
activities that its contemporaneous decision to repeal the
disability policy was likewise unlawfully motivated.
See, e.g., Leiser Construction, LLC, 349 NLRB 413, 417
fn. 24 (2007); Wild Oats Markets, Inc., 344 NLRB 717
fn. 4 (2005).
That inference of unlawful motivation is strongly sup-
ported, as the judge found, by the timing of the board of
directors’ decision, which occurred less than a week after
the employees circulated their petition. Davey Roofing,
Inc., 341 NLRB 222, 223 (2004) (the timing of an em-
ployer’s action in relation to protected activity can pro-
vide reliable evidence of unlawful motivation); La Glo-
ria Oil & Gas Co., 337 NLRB 1120, 1124 (2002), enfd.
71 Fed. Appx. 441 (5th Cir. 2003) (decision occurred
“closely on the heels” of protected activity, illustrating
the employer’s “desire to cut any budding [protected]
activity”).15
Finally, we also agree with the judge’s finding that the
Respondent has not shown that it would have repealed its
short-term disability policy in the absence of the employ-
ees’ protected activities. The Respondent claims that the
board of directors repealed the short-term disability pol-
icy because the legality of the policy had been called into
question. However, the Respondent had been on notice
of the alleged unlawfulness of the policy since at least
early 2003, when Hamel first requested and was denied
benefits under the policy. Moreover, after Hamden de-
nied her request, Hamel appealed that decision to the
board of directors’ grievance committee. That spring,
Hamel’s attorney corresponded with Board Member
Nakell directly, alleging that the policy was unlawful as
applied. Despite all of this controversy surrounding the
Respondent’s short-term disability policy, the board of
directors took no action. Then, within weeks of Hamel’s
July 22 EEOC charge, and just 7 days after the employ-
ees’ August 8 petition, the board of directors repealed the

15 Member Walsh would also rely on Hamden’s threat that employ-
ees were “less likely to get a parental leave policy put in place” because
of the petition, as well as on Hamden’s characterization of the petition
as an act of “mutiny” over his decision to deny Hamel maternity bene-
fits under the Respondent’s policy.
NORTH CAROLINA PRISONER LEGAL SERVICES 469
policy altogether at the August 15 meeting. In these cir-
cumstances, we find that the Respondent has not shown
that it would have rescinded its short-term disability pol-
icy in the absence of the employees’ protected activities.
IV. THE ELIMINATION OF REDUCED-HOURS
WORK SCHEDULES
The judge found that Hamden unlawfully threatened to
eliminate reduced-hours work schedules during the Au-
gust 19 staff meeting, and again after employees pro-
tested Hamden’s proposed 48-hour workweek. Specifi-
cally, Hamden told the senior attorneys on August 18
that he would announce a proposal that they would not
like, and then proposed a mandatory 48-hour workweek
the following day. After rescinding his initial proposal,
Hamden told Kristin Parks that he could “still do a 40-
hour workweek” and that he could eliminate reduced-
hours work entirely, because, he told her, there were
some employees that “think it is an entitlement” to work
reduced hours. Given Hamden’s demonstrated animus
towards the employees’ protected activities, we agree
with the judge that those comments constitute threats to
eliminate reduced-hours work schedules in retaliation for
employees’ protected activities. The fact that Hamden
did not initially follow through on his threat does not, as
the dissent suggests, render his proposal any less coer-
cive. Indeed, Hamden chose to remind the staff that he
could still eliminate reduced-hours schedules if he chose
to do so.16
We also agree with the judge that the Respondent vio-
lated the Act when Hamden followed through on his
threat to eliminate reduced-hours employment. As dis-
cussed above, the General Counsel has met his Wright
Line burden of showing that the employees engaged in
protected activities, that the Respondent was aware of
those activities, and that the Respondent harbored animus
toward those activities. In addition to the employees’
filing of the petition, employees Pollit and Weisel also
engaged in protected conduct by meeting with Board
Member Nakell to discuss their concerns about
Hamden’s proposal and by expressing those concerns in
a letter to Hamden.
We find animus in Hamden’s statement to employees
that his initial proposal was in response, in part, to “fac-
tionalism” in the office. As the judge found, Hamden’s
frequent references to factionalism in the office were a
thinly veiled reference to the employees’ protected ac-
tivities. We also rely on Hamden’s unlawful threats to
Parks, after rescinding his proposal, that he could yet

16 The dissent makes much of the fact that Hamden had the authority
to make scheduling changes. Of course, if Hamden did not have this
authority, his statements might not have been threatening.
impose a 40-hour workweek, and that some employees
viewed reduced-hours work as “an entitlement.” Further,
we find animus in Hamden’s statements that Pollitt and
Weisel’s decision to go to the board of directors “behind
his back” was “not the way to get things done around
here,” that he would not “have that kind of thing any-
more,” and that he would not put up with Pollitt and
Weisel continuing to “undermine his authority.”
We also agree with the judge’s finding that the Re-
spondent’s asserted reason for eliminating reduced-hours
schedules is pretextual. The Respondent claims that
Hamden eliminated reduced-hours schedules because he
was concerned about the deficit in hours owed under the
DOC contract. Because only 4 of the Respondent’s 16
attorneys would be required to work additional hours as a
result of the elimination of reduced-hours schedules,
however, it is not plausible that Hamden’s action was
tailored to make up the 1200 hours that the Respondent
was behind under its contract with the DOC. Hamden
admitted, moreover, that when he had required attorneys
to bill additional hours in the past, the burden had been
equitably distributed among the attorneys. Hamden does
not explain his departure from this practice, but the obvi-
ous explanation is that Hamden’s real motivation was to
retaliate against those attorneys whom he felt were caus-
ing problems for him.
Finally, Hamden’s October 1 statements to Pollitt that
he was eliminating reduced-hours schedules because of
the “hostility” he had received in response to his pro-
posal in August, including the letter Pollitt and Weisel
had written, and because certain employees thought re-
duced-hours employment was an “entitlement,” belie the
Respondent’s claim that Hamden’s goal was to address
the deficit in hours owed to the DOC. Although we
agree with the dissent that the Respondent legitimately
could have eliminated reduced-hours schedules in order
to address the deficit in hours owed to the DOC, it is not
enough for the Respondent to advance a legitimate justi-
fication for its action—the Respondent must have actu-
ally relied on that reason.17 We find that the Respondent
did not do so.

17 See, e.g., Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1352
(3d Cir. 1969) (“the policy and protection provided by the National
Labor Relations Act does not allow the employer to substitute ‘good’
reasons for ‘real’ reasons when the purpose of the discharge is to retali-
ate for an employee’s concerted activities”); see also Hicks Oil &
Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942 F.2d 1140 (7th Cir.
1991)
(“Under Wright Line, an employer cannot carry its burden of persua-
sion by merely showing that it had a legitimate reason” for taking the
action in question; rather, it “must show by a preponderance of the
evidence that the action would have taken place even without the pro-
tected conduct.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
Once again, there is no need to perform the second part
of the Wright Line analysis. Having found that the Re-
spondent’s asserted justification for the elimination of
reduced-hours work schedules is pretextual, the Respon-
dent cannot establish that it would have eliminated re-
duced-hours schedules absent the employees’ protected
activities. Golden State Foods Corp., supra, 340 NLRB
at 385.
V. THE CONSTRUCTIVE DISCHARGE OF LINDA WEISEL
The judge found that the Respondent constructively
discharged Linda Weisel by eliminating reduced-hours
employment. We agree.
The Board requires two elements to be shown to estab-
lish a constructive discharge. First, the burdens imposed
on the employee must cause, and be intended to cause, a
change in working conditions so difficult or unpleasant
as to force the employee to resign. Second, the burdens
must have been imposed because of the employee’s pro-
tected activities. Crystal Princeton Refining Co., 222
NLRB 1068, 1069 (1976). Both elements have been
demonstrated here.
The Board has held that the intent element will be sat-
isfied so long as the employer “reasonably should have
foreseen” that its actions would cause an employee to
quit. American Licorice Co., 299 NLRB 145, 148
(1990). Here, Weisel’s August 22 letter to Hamden
clearly stated that she had been working reduced hours
for over 10 years and that her family obligations had
been structured around that schedule. In addition,
Hamden admitted that he considered the possibility that
some attorneys would resign as a result of eliminating
the reduced-hours schedule. It was reasonably foresee-
able, then, that the hardship caused to Weisel by the
elimination of that schedule would cause her to resign.118
See Yellow Ambulance Service, 342 NLRB 804, 807
(2004) (requiring an employee to choose between work
and family obligations is sufficiently burdensome to sup-
port a finding of constructive discharge). We find that
Hamden’s intent to target Weisel is also demonstrated by
Hamden’s statements that Weisel regarded the reduced-
hours schedule as “an entitlement,” and that he was not

18 The Respondent argues that Weisel’s constructive discharge claim
is foreclosed because the Respondent had three other employees, also
mothers, who had previously worked 35 hours a week and did not
resign because of the 40-hour requirement. However, because those
employees were not attorneys, the same burdens were not imposed on
them by the 40-hour requirement. For Weisel to bill 40 hours a week,
she would have to work significantly more than 40 hours. Indeed, two
of the employees who were similarly affected by the elimination of
reduced-hours schedules, Attorneys Parks and Hamel, did resign.
Although the remaining affected attorney, Pollitt, was able to comply
with the 40-hour requirement, it was only by using accrued leave to
supplement her hours worked.
going to put up with Weisel undermining his position
and causing trouble anymore.
Because we have already found that Hamden elimi-
nated reduced-hours schedules in retaliation for employ-
ees’ protected activities, including Weisel’s protected
activities, the second prong of Crystal Princeton Refining
Co., supra, has also been satisfied. Accordingly, we
adopt the judge’s finding that the Respondent construc-
tively discharged Weisel.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, North Carolina Prisoner Legal Services,
Inc., Raleigh, North Carolina, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening unspecified reprisals, the withholding
of a wage increase, the elimination of short-term disabil-
ity benefits, or the elimination of reduced-hours work
schedules because of its employees’ protected concerted
activity.
(b) Withholding wage increases, eliminating short-
term disability benefits, eliminating reduced-hours work
schedules, or constructively discharging its employees
because of their protected concerted activity.
(c) 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) Institute the 6-percent wage increase unlawfully
withheld on August 15, 2003, with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(b) Restore its reduced-hours work schedule practice
unlawfully eliminated on January 1, 2004.
(c) Within 14 days from the date of this Order, offer
Linda Weisel full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(d) Make Linda Weisel whole for any loss of earnings
and other benefits suffered as a result of the
discrimination against her. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, supra.
(e) Make its employees whole for any loss of earnings
and other benefits suffered as a result of its unlawful
withholding of a wage increase, elimination of short-term
disability benefits, and elimination of reduced-hours
NORTH CAROLINA PRISONER LEGAL SERVICES 471
work schedules. Backpay shall be computed in accor-
dance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, supra.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful constructive
discharge of Linda Weisel, and within 3 days thereafter,
notify her that this has been done and that her construc-
tive discharge will not be used against her in any way.
(g) 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 re-
cords 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.
(h) Within 14 days after service by the Region, post at
its Raleigh, North Carolina facility copies of the attached
notice marked “Appendix.”19 Copies of the notice, on
forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 August 13, 2003.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER SCHAUMBER, dissenting in part.
While I agree with my colleagues that the Respondent
violated Section 8(a)(1) when its Executive Director Mi-
chael Hamden made various threats on August 13 and
22, 2003, I do not agree with their decision to affirm the
judge’s additional findings that the Respondent violated

19 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.”
Section 8(a)(1) by: (1) withholding a wage increase; (2)
eliminating short-term disability benefits between Au-
gust 15 and December 2003; (3) threatening to eliminate
reduced-hours work schedules; (4) eliminating reduced-
hours work schedules; and (5) constructively discharging
employee Linda Weisel.
I. WITHHOLDING WAGE INCREASE AND
ELIMINATING BENEFITS
Unlike my colleagues, I would reverse the judge and
dismiss the complaint allegations that the Respondent
violated Section 8(a)(1) by withholding a wage increase
and by eliminating short-term disability benefits between
August 15 and December 2003. In my view, the General
Counsel has failed to meet his initial Wright Line1 burden
of proof. In particular, there is insufficient evidence that,
either individually or jointly, the members of the Re-
spondent’s board of directors, the body solely responsi-
ble for the decisions in issue, harbored animus toward the
concerted activities of the Respondent’s employees.
The Respondent is a nonprofit law firm with a facility
in Raleigh, North Carolina, where it is engaged in the
business of providing legal services to inmates for the
North Carolina prison system. The Respondent’s em-
ployees include management personnel headed by an
executive director with exclusive hire and discharge au-
thority over employees, supervisors, staff attorneys, para-
legals, and support staff. A board of directors governs
the Respondent and that board has exclusive hire and
discharge authority over the executive director.
The board of directors is composed of members who
are designated by law schools, civil liberties groups, and
other legal organizations in North Carolina. The mem-
bers are volunteers who are not compensated. Among
other duties, the board of directors oversees the work of
Respondent’s executive director, Michael Hamden, and
has the responsibility to set program policy, which in-
cludes governance of employee compensation, benefits,
and the overall financial well being of the Respondent.
In this latter capacity, the board of directors engages in
rigorous independent review of Hamden’s financial man-
agement of the program, including all recommendations
he may offer regarding employee raises.
That the Respondent’s employees engaged in con-
certed activity is not disputed. In the weeks preceding
the August 15 board meeting, at which the decisions in
issue were made, employee Kari Hamel, after consulting
two colleagues and obtaining their support, filed a charge
with the Equal Employment Opportunity Commission

1 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in Transportation
Management Corp. v. NLRB, 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
(EEOC) on her own behalf and that of all similarly situ-
ated employees, alleging that the Respondent had dis-
criminatorily denied her claim for short-term disability
benefits related to maternity leave. Shortly thereafter, 17
employees, including Hamel, signed a petition to the
board of directors stating their “hope” that “short-term
disability insurance will remain a benefit for [the Re-
spondent’s] employees and that it will apply to tempo-
rary disability arising from pregnancy and childbirth as it
does to any other short-term disability.”
The judge found that, after learning about the petition,
Hamden made several threats to the Respondent’s em-
ployees. Specifically, the judge found that Hamden told
employee Elizabeth Hambourger, who authored the peti-
tion, “that things were going to change and that he had
been too indulgent with the staff.” Hamden said that “as
a result of the employees having gone to the Board it
would probably mean that the employees would be less
likely to achieve what they had set out to achieve with
the petition.” He also told Hambourger that because of
the petition “he could not ask the Board to give the staff
raises” and that employees were “less likely to get a pa-
rental leave policy put in place.” According to the judge,
Hamden explained his statements to Hambourger by say-
ing: “[W]hen the Board gets the [petition] they will be
angry; they will think that the letter indicates that the
staff feels entitled to things and they will want to show
the staff that they’re not entitled to these things by with-
holding things.”
At the August 15, 2003 board meeting, the budget pro-
posed by the Respondent’s financial officer, Rick Len-
non, contained a 6-percent wage increase for staff. In the
days preceding the meeting, Lennon independently con-
cluded that the Respondent should not go forward with
recommending this wage increase to the board of direc-
tors.2 Thus, on August 15, Lennon told the board that he
was not recommending the proposed raise. At this meet-
ing, the board of directors decided to defer discussion of
staff pay raises, and also decided to repeal the employ-
ees’ short-term disability benefits.3 The board directed
Hamden to investigate the cost of short-term disability
insurance and to canvas the staff for their opinions on
short-term protection. There is no evidence that Hamden
made any recommendations to the board concerning the

2 Hamden shared Lennon’s opinion, though he also arrived at it in-
dependently.
3 Notably, with respect to short-term disability benefits, the em-
ployee petition stated “we would like to suggest that future problems
could be prevented if, rather than allowing this benefit to be adminis-
trated by the Executive Director, [the Respondent] purchased short-
term disability insurance from a third party. Some employees may feel
uncomfortable with the office management reviewing their medical
certification.”
proposed wage increase or the short-term disability bene-
fits.
Relying on certain statements by Lennon and Hamden,
particularly Lennon’s “admission that management de-
cided to withdraw its plan to grant wage increases be-
cause of employee complaints and ongoing litigation,”
my colleagues find that the General Counsel proved that
the Respondent harbored animus toward its employees’
concerted activities. Because the board of directors fol-
lowed Lennon’s recommendation, my colleagues con-
clude that it, too, harbored animus against those activi-
ties. Accordingly, they find that the decision made by
the board of directors at the August 15 meeting violated
Section 8(a)(1).
I disagree with my colleagues’ reliance on this evi-
dence to establish animus in decisions in which Lennon
and Hamden were not ultimately involved. See Alexian
Bros. Medical Center, 307 NLRB 389 (1992); see also
Wild Oats Markets, 339 NLRB 81, 88 fn. 10 (2003)
(“Because Abbas [had] no involvement in the decision to
sell the store, his statements to the employees do not es-
tablish an unlawful motive”); Detroit Newspaper Agency
v. NLRB, 435 F.3d 302, 310 (D.C. Cir. 2006) (alleged
antiunion statements of supervisor did not support find-
ing of animus where the supervisor “was not directly
involved in the final decision to terminate [the em-
ployee], so any potential impact he had on that decision
was necessarily circumscribed”). The board of directors
alone made the decisions to not grant the wage increase
and to eliminate the short-term disability benefits. There
is no evidence suggesting that Lennon or Hamden was in
any way involved in the decision to eliminate the short-
term disability coverage. Further, despite the judge’s
assertions to the contrary, these men were not substan-
tially involved in the board’s decision to defer considera-
tion of the proposed wage increase. The record indicates
that the proposed budget presented to the board of direc-
tors on August 15 contained a 6-percent staff wage in-
crease, and that, for various reasons, Lennon independ-
ently decided not to recommend that increase. Further,
the board members testified that they exercise rigorous
independent judgment when considering management’s
financial recommendations, especially with regard to
raises. Indeed, on another occasion after the August 15
meeting, the board rejected Hamden’s recommendation
that it authorize staff raises. In my view, this establishes
that the decisions in issue were made by the board of
directors and not by Lennon or Hamden.
For the foregoing reasons, there is insufficient basis to
impute to the Board of Directors Lennon’s or Hamden’s
purported animus towards the employees’ concerted ac-
NORTH CAROLINA PRISONER LEGAL SERVICES 473
tivities.4 Further, there is no independent evidence estab-
lishing such animus held by the board members them-
selves.5 Because I find the evidence relied on by the
judge was insufficient to meet the General Counsel’s
initial burden of proof, it is unnecessary to pass on the
validity of the Respondent’s asserted defenses. John J.
Hudson, Inc., 275 NLRB 874, 875 (1985). Accordingly,
I would reverse the judge and dismiss the allegations that
the Respondent violated Section 8(a)(1) as discussed
above.
II. REDUCED-HOURS WORK SCHEDULES AND
CONSTRUCTIVE DISCHARGE
Similarly, I would reverse the judge and dismiss the
complaint allegations that the Respondent violated Sec-
tion 8(a)(1) by threatening to eliminate reduced-hours
work schedules, eliminating reduced-hours work sched-
ules, and constructively discharging employee Linda
Weisel. In my view, Hamden’s comments about work
schedules did not constitute a threat. Further, I would
find that the Respondent met its burden of establishing
that it would have temporarily eliminated reduced-hours
work schedules even in the absence of its employees’
concerted activity. Thus, the elimination of those sched-
ules was lawful, and did not unlawfully bring about
Weisel’s resignation.
1. Threats
On August 18, 2003, Hamden held a meeting with all
of the Respondent’s senior attorneys. He told them that
in view of a deficit existing in the contract hours owed to
the Department of Corrections (the DOC),6 factionalism
that had plagued the office, an impending move of the

4 With respect to my colleagues’ reliance on Lennon’s purported
animus, I note that, as the judge found, “the record . . . showed that
only Hamden was alleged to have acted because of animus against
protected concerted activity.”
5 In my view, the August 15 minutes do not reflect animus. The ref-
erence therein to “staff benefit concerns and pending litigation” is, in
my view, insufficient evidence upon which to base a finding of animus.
Even if this annotation refers to the employees’ concerted activities,
there is no indication that it was the employees’ actions in bringing
these concerns to the board’s attention, as opposed to the substance and
effects of those concerns, that led to the board’s decision. Further, I
disagree with my colleagues’ assertion that the timing of the decision to
eliminate short-term disability benefits demonstrates animus. As noted,
in taking this action and in asking Hamden to investigate available
alternatives, the board merely took the first necessary step in respond-
ing to the employees’ request that it obtain short-term disability cover-
age from a third-party carrier.
6 The Respondent is principally funded through a contract with the
Department of Corrections. That contract anticipates that the Respon-
dent’s employees will work a certain number of billable hours during
the term of the contract. At the time of this meeting, the Respondent
was approximately 1200 hours behind in its annual contract commit-
ment, with less than 2 months remaining in the first fiscal year of the
new contract.
office, and a planned new computer system, he would
announce the following day a proposal that “would not
be supported by the senior attorneys.” The following
day, he announced his proposal for measures to make up
the deficit in contract hours. The proposal was that, be-
tween September 1 and November 15, 2003, all employ-
ees would have to work 40-billable hours each week to
qualify for benefits and, additionally, everybody would
have to work 8 hours overtime each week. He told em-
ployees that he would like their input, and that he would
announce his decision regarding the proposal during the
August 26 staff meeting. At the meeting on August 26,
after several employees voiced their opposition to the
proposal, Hamden withdrew it. Instead, he established
“workload goals” that everybody would have to meet.
Later that day, after employee Kristin Parks thanked
Hamden for withdrawing his proposal, Hamden told her,
“I could still do 40 hours a week if that’s what I choose
to do.” On some other unspecified date, Hamden told
Parks that he could implement the schedule change be-
cause “some people here think it’s an entitlement to work
part-time.”
The judge found that Hamden’s comments of August
18, 19, and 26 “constitute[d] a threat to eliminate re-
duced hours work because of [the employees’] protected
concerted activity.” In my view, these comments could
not reasonably be construed as threats. It is undisputed
that, at the time Hamden first sought to implement the
schedule change, the Respondent was approximately
1200 hours behind on its contractual obligation to the
North Carolina Department of Corrections. Hamden
specifically referenced this deficit when he notified the
senior attorneys that there was an upcoming proposal that
they would not support, and again when he made the
proposal the following day. In these circumstances,
these comments did not constitute a threat. This is fur-
ther demonstrated by Hamden’s withdrawal of the pro-
posal after employees, many of whom engaged in the
concerted activity involved here, voiced their opposition
to the 48-hour week. Hamden’s subsequent comments
also did not constitute threats. Given that the hours defi-
cit remained after Hamden rescinded his proposal, his
comment that “I could still do a 40 hour work week if
that’s what I choose to do” was merely an assertion that
he had the authority to make whatever scheduling
changes were necessary to ensure that the Respondent
fulfilled its contractual obligation to the Department of
Corrections. No one disputes that he had that authority.
Finally, Hamden’s use of the word “entitlement” does
not convert what is a generalized statement of disagree-
ment over company policy into an unlawful threat of
retaliation. In my view, there is nothing in these com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD474
ments or in the context in which they were made that
could lead others reasonably to believe that the revised
work schedule was in any way related to the petition re-
garding maternity benefits. Accordingly, I would reverse
the judge and dismiss this 8(a)(1) allegation.
2. Retaliation
On October 1, 2003, Hamden sent an e-mail to em-
ployees stating that, effective January 1, 2004, 40 hours
would be required to qualify as a full-time employee. At
the hearing, Hamden explained that this e-mail an-
nounced a temporary change. Indeed, on December 11,
2003, he sent another e-mail to employees specifically
stating that the 40-hour minimum workweek was a tem-
porary measure. Nevertheless, the judge found that
Hamden made this change in retaliation for the Respon-
dent’s employees’ concerted activities, and also found
that the Respondent failed to demonstrate that it would
have eliminated reduced-hours work schedules in the
absence of that protected activity.
Even assuming that the General Counsel met his initial
burden of proof here, in my view, the Respondent effec-
tively demonstrated that it would have suspended re-
duced-hours schedules in the absence of its employees’
concerted activities. In July 2003, the Respondent first
calculated and became aware of the hours deficit. In the
weeks preceding the August 8 petition, Hamden fre-
quently lunched with colleagues Phil Griffin, Jimmy
Carter, and Billy Sanders. During these lunches,
Hamden repeatedly discussed his concerns about the
hours deficit and possible remedies for it, including the
elimination of reduced-hours schedules. Hamden made
an effort in August to remedy the situation, but in the
face of vocal opposition, he withdrew his proposal. By
late September 2003, however, it had become apparent
that voluntary efforts to meet the Respondent’s program
challenges had not produced significant progress.7
Hamden therefore decided to require all employees to
work 40 hours per week for a limited time.
Thus, Hamden’s decision on October 1, 2003, to tem-
porarily suspend reduced-hours work schedules was jus-
tified by compelling business needs. Hamden’s plan was
calculated to reduce the hours deficit. As originally con-
ceived, Hamden’s proposal would have affected every
employee and reduced the deficit by approximately 190
hours each week for nearly 10 weeks. After that pro-
posal was shot down by the employees, Hamden imple-
mented a less aggressive, though nevertheless effective,
schedule that would reduce the deficit over a longer pe-

7 At the end of September, the Respondent still had a deficit of ap-
proximately 1000-billable hours. By November 15, only 6 weeks later,
the deficit was back up to nearly 1400 hours.
riod of time. Further, in my view, Hamden’s decision to
undertake efforts to reduce the hours deficit during the
first year of the 3-year contract was prudent. If left un-
remedied, the deficit could continue to grow, leaving the
Respondent in a situation where it would be impossible
for it to meet its contractual obligations to the Depart-
ment of Corrections. Even if the deficit could be reme-
died by a late surge in productivity, it is likely that the
Department of Corrections would choose not to continue
a relationship with a firm that was content to fall behind
in its obligations and play “catch-up” for the remainder
of the contract term.8 In these circumstances, the Re-
spondent’s actions were not unlawful. See Munford, Inc.,
266 NLRB 1156, 1157 (1983) (where legitimate business
needs necessitate changes to employee schedules, em-
ployer may protect its interests even though employees
had previously been allowed to work lenient hours based
on “personal and family obligations”).9 Accordingly,
contrary to my colleagues, I would reverse the judge and
dismiss this 8(a)(1) allegation.
3. Constructive Discharge
Linda Weisel worked for the Respondent as a staff at-
torney. She worked from 1986 until the end of January
2004. She was one of the Respondent’s reduced-hours
employees. After the Respondent suspended reduced-
hours schedules in October 2003, Weisel provided notice
of resignation on or about December 3, 2003. My col-
leagues find that Weisel was constructively discharged
because the suspension of reduced-hours schedules re-
sulted in burdens on her so difficult and unpleasant that
she was forced to resign. As discussed above, they also
determine that the suspension of reduced-hours schedules
was discriminatorily motivated.
I disagree. Under Crystal Princeton Refining Co., 222
NLRB 1068, 1069 (1976), two elements must be proved
to establish a constructive discharge. First, the burdens
imposed upon the employee must cause, and be intended
to cause, a change in working conditions so difficult or
unpleasant as to force her to resign. Second, it must be
shown that those burdens were imposed because of the
employee’s protected concerted activities. There is no
need to address the first element here because, as previ-

8 For these reasons, I strongly disagree with my colleagues’ finding
that the Respondent’s concern about its contract hours deficiency was a
mere pretext, i.e., unworthy of belief.
9 Moreover, given that Hamden had contemplated the suspension of
reduced-hours schedules prior to the employees’ drafting of the petition
to the board of directors, the judge erred in finding that this action was
discriminatorily motivated. See Avecor, Inc., 296 NLRB 727, 744
(1989), enfd. in relevant part 931 F.2d 924 (D.C. Cir. 1991), cert. de-
nied 502 U.S. 1048 (1992) (where workplace changes are planned prior
to protected activity, there is no discriminatory intent).
NORTH CAROLINA PRISONER LEGAL SERVICES 475
ously discussed, I find that the suspension of reduced-
hour work schedules was not imposed in retaliation for
the employees’ concerted activities. Accordingly, there
can be no constructive discharge. Thus, I would also
dismiss this 8(a)(1) allegation.10
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 threaten our employees with unspecified
reprisals, the withholding of a wage increase, the elimi-
nation of short-term disability benefits, or the elimination
of reduced-hours work schedules because of your pro-
tected concerted activity.
WE WILL NOT withhold wage increases, eliminate
short-term disability benefits, eliminate reduced-hours
work schedules, or constructively discharge our employ-
ees because of your protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL institute the 6-percent wage increase we
unlawfully withheld on August 15, 2003, with interest.
WE WILL restore the reduced-hours work schedule
practice we unlawfully eliminated on January 1, 2004.
WE WILL, within 14 days from the date of the Board’s
Order, offer Linda Weisel full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Linda Weisel whole for any loss of
earnings and other benefits resulting from her construc-
tive discharge, less any net interim earnings, plus inter-
est.

10 For the same reason, I would dismiss the finding that the Respon-
dent violated Sec. 8(a)(1) by forcing employee Susan Pollitt to take
personal leave in order to avoid a constructive discharge.
WE WILL make our employees whole, with interest, for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful withholding of a wage increase,
elimination of short-term disability benefits, and elimina-
tion of reduced-hours work schedules.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful constructive discharge of Linda Weisel, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the constructive discharge will
not be used against her in any way.
NORTH CAROLINA PRISONER LEGAL SERVICES,
INC.
Ronald P. Morgan, Esq. and Shannon Renee Mecues, Esq., for
the General Counsel.
William P. Barrett, Esq. and Terrence D. Friedman, Esq., for
the Respondent.
DECISION
STATEMENT OF THE CASE
PARGEN ROBERTSON, Administrative Law Judge. A hearing
was held in Chapel Hill, North Carolina, on June 22, 23, and 24
and August 2–5, 2004. I have considered the entire record and
briefs filed by Respondent and the General Counsel in reaching
this decision.
I. JURISDICTION
At material times, Respondent has been a nonprofit North
Carolina corporation with a facility located in Raleigh, North
Carolina, where it is engaged in the business of providing legal
services for inmates of the North Carolina prison system. Dur-
ing the past 12 months, a representative period, Respondent in
the course of its business operations had a gross volume of
business in excess of $250,000 and it purchased and received at
its Raleigh facility goods and materials valued in excess of
$50,000 directly from points outside North Carolina. In view of
its admissions and the full record, I find that Respondent has
been an employer at all material times engaged in commerce
within the meaning of the National Labor Relations Act (the
Act).
II. PRELIMINARY MATTERS
Respondent is a law firm. Its clientele is limited to prisoners
in the North Carolina Department of Corrections (DOC) sys-
tem. Respondent’s employees include management personnel
headed by an executive director with exclusive hire and dis-
charge authority over employees, supervisors, staff attorneys,
paralegals, and support staff. A board of directors governs Re-
spondent and that board has exclusive hire and discharge au-
thority over Respondent’s executive director.
Respondent does not bill the prisoners it represents. Instead,
almost all it’s funding is provided under a contract with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
DOC.1 Under that contract, Respondent’s work product is
measured in billable hours. The record showed that attorneys
actually work in excess of hours that qualify as billable hours.
Until the events material to this litigation, each week some
attorneys routinely worked 40 billable hours and others worked
fewer than 40 billable hours.2 The attorneys that routinely
worked 40-billable hours received full fringe benefits. The
reduced hours3 attorneys4 that regularly worked 30 or more
billable hours each week also received benefits.
Evidence supporting the complaint allegations includes the
following:
A. Early 2003
Respondent Attorney Kari Hamel asked Executive Director
Michael Hamden for maternity benefits including benefits un-
der Respondent’s short-term disability practice. Respondent
routinely granted maternity leave and it did so for Hamil, but
Respondent did not agree to Hamil’s request for short-term
disability benefits. Subsequently, Hamel’s attorney wrote Re-
spondent’s board of directors that it was unlawful for it to deny
its employees short-term disability benefits. Hamel and other
employees discussed her claim for short-term disability benefits
at and away from Respondent’s office.
B. July 22, 2003
Kari Hamel filed an EEOC charge against Respondent on
behalf of herself and others similarly situated, alleging that
Respondent had illegally denied her claim for short-term dis-
ability benefits during maternity leave.
C. August 8, 2003
Seventeen employees signed a petition to the board of direc-
tors on and before August 8 that included among others, the
following paragraph:
We understand the Board will be discussing the NCPLS
short-term disability plan and how it applies to female em-
ployees after childbirth. As employees of this organization,
we want to let the Board know how important our benefits are
to us. We hope short-term disability insurance will remain a
benefit for NCPLS employees and that it will apply to tempo-

1 DOC was directed to provide legal services to prisoners by a case
referred to as the “Bounds” decision. Respondent cited that case as
Smith v. Bounds, 430 U.S. 817 (1977).
2 Five attorneys worked reduced hours. One, Eleanor Kinnaird, was
a part-time employee. The other four, Pollitt, Weisel, Parks, and Hamil,
were considered full-time employees on reduced-hours schedules.
Susan Pollitt and Linda Weisel worked reduced hours from 1992.
Kristin Parks started working reduced hours when she returned from
maternity leave in January 2002. Kari Hamel worked reduced hours
from after the birth of her first child in the summer of 2003.
3 For example, Susan Pollitt testified that her routine work schedule
in 2003 and for some 10 years before 2003 was to bill 32 hours a week.
In order to make up 32 billed hours she would customarily work be-
tween 37 and 40 hours. She received reduced pay and benefits includ-
ing vacation, contribution to 401(k), and life insurance while on that
reduced hours schedule. During that time, Pollitt was eligible for full
health benefits coverage.
4 There were also other nonattorney employees that worked reduced
hours.
rary disability arising from pregnancy and childbirth as it does
to any other short-term disability.
That petition was distributed to others including some super-
visors, on August 8, 2003.
D. August 12, 2003
Susan Pollitt and Kristin Parks5 testified about an August 12,
2003 staff meeting. During that meeting supervisors and em-
ployees engaged in a sometime heated discussion regarding the
employees’ petition supporting Kari Hamel’s request for short-
term disability benefits. Supervisor Brenda Richardson6 held up
a copy of the employees’ petition during the August 12 staff
meeting and asked what is this. Richardson said, we need to
talk about this and Phil Griffin slapped his hand on a table and
said, “This is beneath contempt.” Brenda Richardson ques-
tioned Kari Hamil about why she couldn’t arrange her leave to
cover her disability after birth of her child and Richardson
quizzed Kristin Parks about whether she felt she had been dis-
criminated against.
E. August 13, 2003
Elizabeth Hambourger7 testified that Michael Hamden asked
her to come into his office on August 13. Hamden said that he
felt it was his fault about the events in the August 12 staff meet-
ing and that he had not realized the extent of the factionalism in
the office. Hamden said that things were going to change and
that he had been too indulgent with the staff. He said it would
have been better for us to come to him about short-term disabil-
ity than to have gone to the Board. Hamden said that as a result
of the employees having gone to the Board it would probably
mean that the employees would be less likely to achieve what
they had set out to achieve with the petition. Hambourger asked
what he meant by that and Hamden answered that because of
this letter he could not ask the Board to give the staff raises. He
said that because of this letter we were now “less likely to get a
parental leave policy put in place.” Hambourger asked why was
that and Hamden answered that “when the Board gets the letter
they will be angry; they will think that the letter indicates that
the staff feels entitled to things and they will want to show the
staff that they’re not entitled to these things by withholding
things.” Hamden told Hambourger that she should not have
known how the Board would react but “senior attorneys should
have known better.”8 He said that he assumed that it was not
Hambourger’s idea to write the letter.
Michael Hamden did not deny that he called Hambourger in
on August 13. However, he testified that he called her in order

5 Kristin Parks as well as Kari Hamel took maternity leave in 2003.
6 Richardson testified that she supervised the work of three support
staff employees. Support staff employees answer the phones, open
mail, copy documents; maintain the file room, close files, and other of
those sorts of duties. Richardson evaluates and makes recommenda-
tions on support staff to higher supervision. She has worked for Re-
spondent for about 6 years. [See GC Exh. 2.]
7 Hambourger was the field attorney that drafted the employees’ pe-
tition to the Board.
8 Susan Pollitt and Linda Weisel were Respondent’s most senior
field attorneys.
NORTH CAROLINA PRISONER LEGAL SERVICES 477
to express his appreciation for her leadership in taking heat
over the petition. Hamden also testified:
I—you know I might have discussed with her that the—my
idea that this was not a good strategy. The Board has always
been very supportive of our Program and all of our staff. They
have always done the very best they could for us in terms of
salaries and benefits. And I don’t think it is a productive exer-
cise to attack or implicitly attack the Board when your objec-
tive is for enhanced benefits. I think a better approach would
be to recognize the history of the Board and to commend
them for that and to ask them for additional benefits. I think
we discussed that.
Hamden denied telling Hambourger that he would not ask
for staff pay increases because of the petition. He admitted that
he may have told her the Board would not be receptive to an
attack. Michael Hamden denied that he told Hambourger that
he would retaliate against the employees because of the peti-
tion.
F. August 15, 2003
Michael Hamden, Brenda Richardson, Rick Lennon, and
Jimmy Carter were present on behalf of management for the
August 15 board of directors’ meeting. Elizabeth Hambourger
was also there. Rick Lennon told the Board they had been plan-
ning to grant wage increases but because of employee com-
plaints and ongoing litigation, they were not going to recom-
mend raises.
Michael Hamden testified that before the August 15 board
meeting, he asked Rick Lennon his opinion of whether they
should go forward with their recommendation to the board for a
staff salary increase. Hamden believed that meeting with Len-
non was on the day before August 15. He had independently
concluded that they should not go forward with the recommen-
dation for a salary increase and Lennon said that he had con-
cluded they should not recommend a pay raise to the Board.
Hamden said that the employees’ petition was not a considera-
tion in determining not to recommend a pay increase. When
asked the basis for the recommendation to not go forward with
the pay increase, Hamden testified:
Well, there were a number of factors, significant ones in-
cluded the fact that our employees, two of our—one of our
employees had asserted a claim of entitlement to paid leave,
which we had not budgeted or planned on. We had a second
employee in virtually the same circumstance. There was
pending an EEOC complaint. We didn’t know what would be
involved in the defense of that. We were 1200 hours behind
on our contract. We had some uncertainties to deal with re-
spect to the file management software. And we did not have
an idea of what the cost of relocating the office would be. So
all of these things were factors. There was a great deal of un-
certainty.9
Michael Hamden admitted Respondent has generally in-
creased salaries once they had a contract with DOC.

9 The claim for entitlement to paid leave and the EEOC complaint
involved Kari Hamel’s request for short-term disability benefits.
Hamden testified that on August 15, the board repealed the
employees’ extended (short-term) illness policy. He did not
recall making a recommendation in that regard. The board di-
rected Hamden to investigate the cost of short-term disability
insurance and to canvas the staff for their opinions on short-
term protection. Hamden did recommend a short-term policy
during the November 2003 board meeting. That recommenda-
tion was approved. A short-term insurance policy was pur-
chased and became effective in December 2003.
Brenda Richardson called Hambourger into Richardson’s of-
fice on the afternoon of August 15. Richardson told Hambour-
ger that she apologized for her conduct in the August 12 staff
meeting and that she knew that what had happened was not
Hambourger’s fault because it was not her idea to write the
letter. She said that the only reason Hambourger had written the
letter was because she was a good friend of Kari. Hambourger
agreed that she was motivated by her friendship with Kari
Hamel and wanted to support the lawsuit but also because she
supported what was contained in the letter. Richardson cau-
tioned Hambourger that just because others in the office were
nice to her10 did not mean they are her friends and that she felt
they had convinced Hambourger to write the letter for their
own purposes. Hambourger replied that was insulting but she
accepted Richardson’s apology.
G. August 18, 2003
There was a meeting between Michael Hamden and all sen-
ior attorneys at 1:30 p.m. on August 18, 2003. Present at that
meeting were Richard Giroux, Linda Weisel, Phillip Griffin,
Susan Pollitt, Latisha Eckels, Ken Butler, Kristin Parks, Kari
Hamel, and Michael Hamden. Hamden spoke and said that in
view of a deficit existing in the contract hours owed to the De-
partment of Corrections,11 factionalism that had plagued the
office, an impending move of the office and a planned new
computer system; he would announce a proposal the following
day which would not be supported by the senior attorneys.
H. August 19, 2003
Board of directors member Barry Nakell visited the office
during the August 19 staff meeting. He told the staff that the
matter of Kari Hamel’s request12 had been hotly debated among
the directors but had not been resolved as of that time. Nakell
told the staff that the Board fully supported Director Michael
Hamden. Nakell left before the staff meeting concluded.
When the meeting continued Michael Hamden told the staff
that on August 15 the board rescinded Respondent’s extended
illness policy.13 Hamden stated that Respondent had out-

10 At that time, Hambourger generally associated with Kari Hamel,
Kristin Parks, Susie Pollitt, Linda Weisel, and Tracy Wilkinson.
11 Respondent is principally funded through a contract with DOC.
That contract anticipated Respondent’s employees would work a cer-
tain amount of hours during the term of the contract. Not all worktime
was counted. Instead, hours that qualified as work under the DOC
contract were called “billable hours.”
12 Nakell was referring to Hamel’s request for short-time disability
benefits during her maternity leave.
13 The term “extended illness policy” refers to Respondent’s short-
term disability benefits.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD478
standing problems including a contract hours deficit, factional-
ism in the office,14 a pending office move and a planned new
computer system. He then announced a proposal that starting
September 1, 2003, all employees15 would have to work 40-
billable hours each week to qualify for benefits and, addition-
ally, everybody would have to work 8 hours overtime for a total
of 48 hours per week. That practice would continue from Sep-
tember 1 until November 15, 2003. The staff would then break
from that practice for the holidays but if they had not achieved
some goals, the 48-hour-per-week practice would resume on
January 16, 2004. Michael Hamden said that was his proposal
and he was giving the staff 1 week for its input. Hamden said
he would announce his decision during the August 26 staff
meeting. In response to questions, Hamden explained that un-
der his proposal there would no longer be reduced hour with
benefits employment.16
Hamden admitted that he met with the staff on August 19.
I. August 22, 2003
Michael Hamden and Rick Lennon meet with the staff on
August 22 and explained employee benefits. Linda Weisel and
Susan Pollitt presented Hamden with a response to his August
19 proposal.17
J. August 23, 2003
Michael Hamden met with Kristin Parks on August 23.18 He
asked Parks if she knew that some members of the staff had
gone to the board behind his back. Hamden said that was not
the way to get things done around here. He told Parks, “I’m not
going to have that kind of thing anymore.” Parks told Hamden
that she wanted to talk about the 48-hour a week issue and how
badly it would impact on people with families. Hamden men-
tioned Susan Pollitt and Linda Weisel as causing the problems
for him and that they continued to undermine his authority and
stir up trouble. Hamden said that he just couldn’t put up with it
anymore. Parks asked why did Hamden always take things out
on Susie and Linda when it was Phil Griffin that was causing
problems in the office. Hamden replied that Phil did not matter

14 Michael Hamden testified that factionalism had been a problem
since at least the day he was hired as executive director and that it has
probably been a problem since 1990.
15 Hamden referred to full-time employees. That term included re-
duced-hours employees that worked a minimum of 30-billable hours
each week as well as attorneys that worked 40-billable hours each
week. Employees that normally worked less than 30-billable hours per
week were not entitled to benefits and were sometimes referred to as
part-time employees.
16 Susan Pollitt testified that Hamden’s August 19 proposal would
eliminate reduced hours for five women attorneys. Before August 19,
five attorneys routinely worked fewer than 40-billable hours each week.
Those five were Eleanor Kinnaird, Linda Weisel, Kari Hamel, Kristin
Parks, and Susan Pollitt. Eleanor Kinnaird routinely worked 10- to 20-
billable hours a week and was considered a part-time employee. Linda
Weisel, Kristin Parks, and Kari Hamel routinely worked 30-billable
hours and Susan Pollitt routinely worked 32-billable hours, each week.
17 GC Exh. 10.
18 Kristin Parks phoned Michael Hamden on August 22, 2003, and
asked to meet with him after learning he had proposed that all employ-
ees work 48-hour weeks. She and Hamden met on August 23.
because no one looks up to him and no one follows him so it
doesn’t matter what Phil does. The difference is that people
respect Linda and Susie and follow them.
Hamden admitted that he met with Kristin Parks. He denied
that he told her “that Linda’s and Susie’s visit to Barry or their
meeting with Barry was ‘not the way things are done around
here and that (he wasn’t) going to accept it.”19 Hamden testified
that he did not recall discussing with Parks, Linda, and Susie’s
meeting with Barry. He did not recall any discussion about
undermining his authority. Hamden did not recall telling Parks
that he could still require employees to work 40 hours a week
but he admitted that he never had any question but that he could
require employees to work 40 hours a week. He denied telling
Parks that any change in schedules would be because employ-
ees think that a reduced hours schedule is an entitlement.
Hamden admitted that maybe a month later he made a comment
that he was not concerned with making up the contract hours
and that he was confident Respondent would make up the con-
tract hours deficit. Michael Hamden then testified:
What concerns me is the unending contention, in the office,
the unending factionalism, that’s a concern. How are we go-
ing to deal with that.
K. August 26, 2003
On August 26, Hamden told the staff that no one had fully
supported his August 22 proposal and he had decided not to
require 48 hours work each week. Hamden said that there
would be workload goals that everybody would have to meet.
Each attorney would have to get his or her files down to 120
and the attorneys would communicate with their clients in ac-
cord with an office memorandum. Additionally, there would be
a complete restructuring of the office.
Kristin Parks testified that she went to Hamden’s office on
August 26 and thanked him for discarding the 48-hour week.
Hamden said, “Well, you know, I could still do 40 hours a
week if that’s what I choose to do.” Parks replied that he should
understand that she could not work 40 hours a week. Kristin
Parks testified that she had several conversations with Michael
Hamden regarding reduced hours workweeks. During one of
those conversations, Hamden said, “[I]t’s not because of the
contract hours and it’s not because of the money for the bene-
fits, but it’s because some people here think it’s an entitlement
to work part-time.”
L. October 1, 2003
Kari Hamel went into Hamden office on October 1, 2003.
She told him she appreciated the work schedule. Michael
Hamden replied that people in the office believed the work
schedule was an entitlement and people were not grateful.
Also on October 1, 2003, Michael Hamden came to Susan
Pollitt’s office. Hamden said that he was going to change the
rule so there would no longer be reduced hours employment.
Everybody would have to bill 40 hours a week in order to be
full time. Pollitt asked why he was taking that action. Hamden

19 Susan Pollitt, Linda Weisel, and others had met with Board Mem-
ber Barry Nakell to discuss the short-term disability policy issue.
NORTH CAROLINA PRISONER LEGAL SERVICES 479
replied there was the matter of deficit in the Bounds20 hours
owed under the Department of Corrections contract21 but it
wasn’t just that. He said that his action was also due to the hos-
tility that he had received in August in response to his proposal.
Hamden said that he could not lead an organization unless eve-
ryone was on the same footing. He couldn’t take that kind of
hostility that he had in August and Hamden said that, “Linda
Weisel and (Pollitt) had threatened gender litigation in (their)
letter.”22 Hamden said that Weisel and Pollitt had claimed
working reduced hours was an entitlement and he was going to
require 40 hours a week. Pollitt testified that Hamden said noth-
ing in that conversation to the effect that requiring 40 hours per
week was a temporary measure.
Later on October 1, 2003, Hamden e-mailed employees that
effective January 1, 2004, 40 hours would be required to qual-
ify as a full-time employee (GC Exh. 17).23 Kristin Hamel went
to Michael Hamden on October 1 and asked if she relinquished
her benefits and worked less than 40 hours a week would she
still have a job. Michael Hamden told her he would consider
her request and get back to her. Hamden did not get back to
Hamel on that question and Hamel decided she would quit her
job because she was unable to work 40-billable hours a week.
In regard to the October 1 e-mail, Hamden did not dispute
that he sent employees General Counsel’s Exhibit 17. What he
did dispute was the permanent nature of that message. He testi-
fied that General Counsel’s Exhibit 17 announced a temporary
change.24 Hamden also testified that he met with Kari Hamel,
Kristin Parks, and Susan Pollitt individually before he sent
General Counsel’s Exhibit 17 and told each of them of the up-
coming change. He testified that he had also planned to meet
with Linda Weisel but she was out of the office. Hamden re-
called that of his conversations with Hamel, Parks, and Pollitt,
only in the conversation with Pollitt did the question come up
of whether the change was temporary. He testified that he told
Pollitt the change was temporary.
Several employees including Kristin Parks,25 Eleanor Kin-
naird,26 Linda Weisel,27 and Kari Hamel28 resigned after Re-

20 “Bounds” is sometime used in referring to a lawsuit that resulted
in the creation of North Carolina Prisoners Legal Service. “Bounds” is
also used in referring to Respondent’s funding contract with DOC.
Respondent has been party to several contracts with DOC. The current
contract is for 3 years and expires on September 30, 2005.
21 In the event of Respondent’s failure by the termination date of the
contract, to provide billed hours as required by the bounds contract,
DOC had the contractual authority to seek return of unaccounted funds.
22 See GC Exh. 10.
23 Before that time reduced hours employment in excess of 30-
billable hours per week was considered full time even though reduced
hours employees received only a portion of some fringe benefits.
24 Hamden subsequently e-mailed the employees on December 11,
2003, stating, among other things, that the 40-hour minimum workweek
was a temporary measure. He admitted that Linda Weisel had told him
of her plan to resign a couple days into December like on December 3
or 5, 2003.
25 Parks resigned in November 2003.
26 Kinnaird resigned in December 2003.
27 Weisel resigned in December but continued to work until late
January 2004.
28 Hamel resigned on December 31, 2003.
spondent’s October 1, 2003 announcement that effective Janu-
ary 1, 2004, all employees were required to bill a minimum of
40 hours.29
M. November 14, 2003
The Board approved the purchase of a short-term disability
policy carried by an insurance company.30 That policy which
was effective on December 1, 2003, specifically included short-
term benefits during maternity. The Board also approved pay-
ment of short-term disability benefits for Kari Hamel and Kris-
tin Parks resulting from each one’s 2003 maternity leave.
N. December 2003
Linda Weisel gave notice of her resignation in December
2003. Michael Hamden recalled that around December 3 or 5,
2003, Weisel told him she was resigning.
III. THE UNFAIR LABOR PRACTICES
The General Counsel alleged that Respondent threatened
employees and retaliated against employees because of their
protected concerted activities. In consideration of those allega-
tions I shall initially consider whether the employees engaged
in concerted activity, which falls within the scope of the Act’s
protection. Secondly, I shall consider whether the evidence
supports a finding that Respondent demonstrated animus to-
ward those concerted activities and whether there was a nexus
between the concerted activity and Respondent’s alleged
unlawful acts.
A. The Record Regarding Protected Concerted Activities
As shown above the complaint included allegations among
others, that Respondent retaliated because of various protected
concerted activities by its employees. The alleged protected
concerted activities include an EEOC change31 filed by one
employee and discussed among several employees; employees’
discussions about, preparations of, and distribution of, a peti-
tion to Respondent’s board of directors supporting a request for
short-term disability benefits during maternity leave; and con-
certed opposition to an announced proposal to require 48-hour
workweeks.
In early 2003, employee Kari Hamel requested benefits for
maternity leave. In addition to leave, Hamel asked for short-
term disability benefits. Hamel discussed her claim for short-
term benefits with other employees and she filed an EEOC
claim on July 22, 2003, against Respondent for denying her
those benefits. Subsequently, in early August 2003 several
employees discussed, prepared, signed and distributed a peti-
tion to Respondent’s board of directors supporting Hamel’s
claim for short-term benefits.
Before giving birth on March 6, 2003, Hamel spoke to Mi-
chael Hamden, James Carter, Gary Presnell, Barry Nakell, and

29 Hamden testified that the 40-minimum hours requirement affected
members of the support staff as well as Rick Lennon and Brenda
Richardson, in addition to the four reduced hours attorneys.
30 The earlier short-term benefits were self-funded.
31 The EEOC charge alleged that Respondent discriminated against
its employee and other employees by denying short-term disability
benefits to employees on maternity leave.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD480
Rick Lennon regarding her eligibility for benefits. Hamden was
Respondent’s executive director. Carter was the assistant ex-
ecutive director and Lennon was the financial officer. Both
Presnell and Nakell were members of the board of directors.
Presnell was president of the Board and Nakell was a member
of the board’s disciplinary committee.
The parties stipulated that Hamel claimed short-term disabil-
ity coverage for maternity and that she filed an EEOC charge.32
From February 2003 Hamel discussed her claim with other
employees. Those other employees included Kristin Parks,
Elizabeth Hambourger, Susan Pollitt, and Linda Weisel. Kristin
Parks was also pregnant at the time of those discussions. Hamel
testified that she phoned Susan Pollitt and Elizabeth Hambour-
ger and asked for their approval for her filing EEOC charges.
Pollitt and Hambourger told Hamel she had their approval and
support in filing with EEOC.
Elizabeth Hambourger learned of the dispute between Kari
Hamel and management in mid-March 2003. She discussed the
matter with others including Susan Pollitt, Linda Weisel, Kris-
tin Parks, Tracy Wilkinson, and Eleanor Kinnaird. After Hamel
filed her EEOC charge, Kristin Parks discussed the EEOC
charge with other employees. In August 2003, Hambourger
took some writing from Ellie Kinnaird and completed a peti-
tion33 to the board of directors. She received input from Pollitt,
Billy Sanders, Ellie Kinnaird, and others. Hambourger and
Susan Pollitt then solicited other employees to sign that peti-
tion. She also spoke to Respondent’s assistant director, Jimmy
Carter, about the petition.
Kristin Parks, who as shown above, was also pregnant in
2003, testified that she talked with Michael Hamden around
February 27, 2003. Parks told Hamden she had talked with Kari
Hamel the day before and Kari had said that she was having
ongoing discussions with Hamden and Jimmy Carter about
short-term disability benefits for pregnancy. Parks told Hamden
that she was confused about the situation and had called a
friend that is an employment defense attorney. The friend told
her that if a small office chooses to have short-term disability it
could not exclude pregnancy. Hamden asked Parks if she had
shown the attorney Respondent’s policy and procedural manual
and Parks replied that she had told the attorney about the pol-
icy. Hamden told Parks that he would not be threatened by her
or by anyone else. During her pregnancy leave and after she
returned to work in June, Parks talked to other attorneys includ-
ing Kari Hamel about whether employees should receive short-
term disability benefits for pregnancy. She also spoke with
Supervisors Ken Butler and Jimmy Carter about short-term
disability benefits during maternity leave. After Parks returned
to work she talked with Karen Hamel about Hamel’s EEOC
charge. She learned that her name had been signed to the peti-
tion for short-term disability during pregnancy leave. Parks
testified that she agreed with the position expressed in that
petition.
Susan Pollitt testified that she learned that Hamel was seek-
ing short-term disability benefits in conjunction with Hamel’s

32 Hamel testified that she filed the EEOC charge on behalf of her-
self, and any persons in the past, present, or future.
33 GC Exh. 5.
maternity leave, in early 2003. Pollitt discussed Hamel’s re-
quest for extended illness34 coverage with other employees and
in July 2003, with Supervisor Jimmy Carter. She told Carter
that Respondent needed to stop fighting Kari Hamel’s claim for
benefits under the extended illness policy. Pollitt also discussed
Hamel’s extended illness request with employees Linda Weisel,
Kristin Parks, Kari Hamel, Elizabeth Hambourger, Richard
Giroux, Latish Eckels, Eleanor Kinnaird, Katie McDonald, and
others. Those discussions occurred in February, March, June,
and July 2003, and on a frequency of at least two discussions
each week. Pollitt, Elizabeth Hambourger, and Kristin Parks
discussed Hamel’s plan to file the EEOC complaint with Hamel
before July 22.
Some of the attorneys decided to write Respondent’s board
of directors before the directors’ August 15, 2003 meeting. That
letter was signed by several employees and dated August 8,
2003. Employees Elizabeth Hambourger, Patricia Sanders,
Elizabeth Raghunanan Nana, Kimbra Bratton, Tasha Swiney,
Billy Sanders, Richard Giroux, Elizabeth Coleman Gray, Leslie
Templeton, Bruce Creasey, Eleanor Kinnaird, Katie McDonald,
Tracy Wilkinson, Susan Pollitt, Linda Weisel,35 Kristin Parks,36
and Laura Smith signed that letter. Employees were solicited to
sign the petition by at least two employees. Susan Pollitt asked
Richard Giroux to sign the letter. Most of the signatures were
obtained by solicitation of Elizabeth Hambourger. The letter
was mailed to members of the board of directors and copies
were left in the in-office mail for several employees including
management employees and supervisors.
Moreover, Linda Weisel, Susan Pollitt, and others met with
Board Member Barry Nakell and discussed their efforts to in-
clude short-term disability benefits for people out on maternity
leave.
Then, two attorneys, Linda Weisel and Susan Pollitt, joined
in writing Michael Hamden on August 22 in opposition to
Hamden’s proposal to require 48-hour workweeks. That letter
included the following:
On August 19, 2003, you proposed a plan including
the following components: effective September 1, 2003,
through November 15, 2003, the definition of full time
employment will be changed from 30 hours/week to 40
hours/week. All full time employees will be required to
work 48 hours a week. Any employee working less than
48 hours a week will no longer be entitled to benefits.
These terms of employment may be recommenced on
January 15, 2003 [sic], unless certain goals you have iden-
tified are met.
The stated reasons for this action include that we are
1200 hours behind in our DOC contract, and that attorney
caseloads are too large.
We think the proposed plan is not called for by the cur-
rent circumstances and is unfair, particularly to employees
who are paid to work between 30–32 hours/week. The
proposed plan will require a disproportionate increase in

34 The terms extended leave and short-term disability leave are often-
times used interchangeably.
35 Susan Pollitt signed the petition on behalf of Linda Weisel.
36 Susan Pollitt signed the petition on behalf of Kristin Parks.
NORTH CAROLINA PRISONER LEGAL SERVICES 481
hours for this group of employees—all of whom are fe-
male—compared to employees now working 40 hours.
Thus your proposed plan places a disproportionate burden
on female members of the legal staff. Any plan for manda-
tory additional work should be proportional to the em-
ployees’ regular work hours, as it has always been in the
past.
Between us we have worked at NCPLS for 30 years.
We have successfully handled major impact litigation as
well as individual cases on behalf of North Carolina pris-
oners throughout our careers here. We have always been,
and continue to be, willing to work longer work weeks
when required to serve our clients or the organization.
The proposed plan is to take effect 8 days after your
announced it. Your proposed plan forces a particular group
of employees, all women, to choose between working 16
or 18 additional hours a week or lose their benefits, which
include health benefits for the employees and their chil-
dren. For those who have access to alternative health in-
surance, we have learned that 8 days is not a sufficient
amount of time to switch health insurance. This proposed
plan also places a disproportionate burden on the working
spouses and children of employees who work 30–32
hours/week. We have both worked 30–32 hours/week
since 1992, and our family obligations have been struc-
tured on this work schedule. We strongly believe that em-
ployees who work reduced schedules for reduced pay pro-
vide a significant contribution to the program and our cli-
ents. This type of employment status is important for em-
ployee retention and helps to make this a family-friendly
workplace. Bar Associations across the country endorse
flexible employment options and NCPLS should continue
its tradition of being a family friendly workplace.
The justification for the proposed plan does not sup-
port this draconian action. Staff have been told we will
have until 2005, to make up any contract hours. There are
many causes for the current workload situation including:
absorbing the caseloads of departing attorneys and attor-
neys on leave due to childbirth; increased individual
caseloads (intake) because those attorneys are not re-
placed; and increased prison population without an in-
crease in NCPLS attorney staff. In the near future, the
workloads should be reduced by the upcoming hiring of
two attorneys and the return of the attorneys from leave.
[GC Exh. 10.]
B. Conclusions
1. Credibility
I credit the record showing that field attorneys engaged in
protected concerted activities by, among other things: the filing
of and discussions regarding Kari Hamel’s EEOC charge; the
employees’ petition, along with discussions, writing, and distri-
bution of and about the petition; a joint letter to Michael
Hamden from Linda Weisel and Susan Pollitt in opposition to
Michael Hamden’s 48-hour week proposal; and Weisel and
Pollitt and others meeting with Board Member Barry Nakell
regarding the employees’ efforts to include short-term disability
benefits with other maternity leave benefits. As shown herein
there was no direct evidence disputing that the employees en-
gaged in the above referenced protected concerted activities.
Additionally, the evidence established without dispute that the
employees engaged in additional concerted activity regarding
(1) the possible inclusion of short-term benefits for employees
on maternity leave and (2) in opposition or agreement to vari-
ous proposals and acts by Michael Hamden and the board of
directors which are shown herein constituted unfair labor prac-
tice threats and acts.
2. Findings
The most visible concerted activity by the employees was the
August petition to Respondent’s board of directors. That peti-
tion was signed by employees Elizabeth Hambourger, Patricia
Sanders, Elizabeth Raghunanan Nana, Kimbra Bratton, Tasha
Swiney, Billy Sanders, Richard Giroux, Elizabeth Coleman
Gray, Leslie Templeton, Bruce Creasey, Eleanor Kinnaird,
Katie McDonald, Tracy Wilkinson, Susan Pollitt,37 and Laura
Smith. The petition was mailed to members of the board of
directors and copies were left in the in-office mail for several
employees including management employees and supervisors.
In addition to the petition, there were numerous employee
discussions with other employees regarding the petition and
there were meetings involving employees and sometimes, oth-
ers as well, in which the petition was discussed. Additionally,
the evidence shows that several employees engaged in con-
certed activity included discussions among employees in sup-
port of Kari Hamel’s claim to Respondent for short-term dis-
ability benefits and several employees’ discussions about
Hamel’s EEOC charge.38
Additionally at least two of the attorneys met with Board
Member Barry Nakell to discuss short-term disability for em-
ployees on maternity leave.
Then, on August 22, two employees, Weisel and Pollitt,
wrote Michael Hamden in opposition to his proposed 48-hour
workweeks.
I find that the full record including especially that noted
above proved that employees engaged in concerted activities,
which fall within the scope of the Act’s protection.
C. Did Respondent take Action or Actions that
were Directed Against its Employees’ Protected
Concerted Activities?
1. Was Respondent motivated by its employees’
concerted activities?
I shall consider what the record shows, if anything, that may
tend to connect Respondent’s acts with its employees’ con-
certed activities [Wright Line, 251 NLRB 1083 (1980)]. I shall
consider whether Respondent was motivated by animus regard-

37 As shown herein, Pollitt also signed for employees Linda Weisel
and Kristin Parks.
38 There would be a question of whether Hamel’s EEOC charge con-
stituted protected concerted activity especially where, as here, the evi-
dence showed that Hamel consulted other employees before filing the
EEOC charge. However, in view of the total evidence it is apparent that
the question of did employees engage in protected concerted activity
need not rely on the question of whether the EEOC charge would alone
constitute protected concerted activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD482
ing employees’ protected concerted activities and whether there
was evidence showing a nexus between Respondent’s allegedly
unlawful activity and any animus.
As shown above Elizabeth Hambourger testified that Mi-
chael Hamden called her into his office on August 13, 2003.
Hamden said that he had not realized the extent of the factional-
ism in the office and that things were going to change. He said
that he had been too indulgent with the staff. Hamden also told
Hambourger that as a result of the employees going to the
Board, employees would probably be less likely to achieve
what they set out to achieve through the petition and that em-
ployees were less likely to get a parental leave policy in place;
that he could not now ask the Board to give staff pay raises;
that the Board will be angry when it receives the employees’
petition; that Respondent will show the staff that they are not
entitled to current benefits; and that Respondent will withhold
things from the employees. Hamden told Hambourger that sen-
ior attorneys should have known better than go to the board of
directors.
Hambourger testified that Rick Lennon told the board of di-
rectors on August 15 that management was withholding a
planned recommendation for staff pay increases because of
employee complaints and ongoing litigation. Hambourger also
testified about an August 18 meeting Hamden held with senior
attorneys. Hamden spoke and said that in view of a deficit ex-
isting in the contract hours owed to the Department of Correc-
tions, factionalism that had plagued the office, an impending
move of the office and a planned new computer system; he
would announce a proposal the following day which would not
be supported by the senior attorneys.
At a staff meeting on August 19, according to Elizabeth
Hambourger, Board Member Barry Nakell said the matter of
Kari Hamel’s complaint had not been resolved and that the
Board fully supported Michael Hamden. Michael Hamden told
the staff that the board at its August 15 meeting had rescinded
the short-term disability practice. Hamden pointed to four items
of concern including a contract hours deficit, factionalism in
the office, a pending office move, and a new computer system.
Hamden announced a proposal that starting September 1, 2003,
all employees would have to work 40-billable hours to qualify
for benefits and, additionally, everybody would have to work
eight hours overtime each week for a total of 48 hours. That
practice would continue from September 1 until November 15,
2003. The staff would then break from that practice for the
holidays but if they had not achieved some goals, the 48-hour-
per-week practice would resume on January 16, 2004. Michael
Hamden said that was his proposal and he was giving the staff
one week for its input. Hamden explained that under his pro-
posal there would no longer be reduced hours with benefits
employment.
Kristin Parks talked with Hamden on August 23. Michael
Hamden asked Parks if she knew that some members of the
staff had gone to the Board behind his back.39 Hamden said that
was not the way to get things done around here. He told Parks,
“I’m not going to have that kind of thing anymore.” Hamden

39 As shown herein, Linda Weisel, Susan Pollitt, and others met with
Board Member Barry Nakell.
said that Susan Pollitt and Linda Weisel were causing the prob-
lems for him and that they continued to undermine his authority
and stir up trouble. Hamden said that he just couldn’t put up
with it anymore. Parks asked why did Hamden always take
things out on Susie and Linda when it was Phil Griffin that was
causing problems in the office. Hamden replied that Phil did
not matter because no one looks up to him and no one follows
him so it doesn’t matter what Phil does. The difference is that
people respect Linda and Susie and follow them.
At an August 26 staff meeting, Hamden said that no one had
fully supported his August 19 proposal and he had decided not
to require 48 hours work each week. Hamden announced that
there would be workload goals that everybody would have to
meet. That afternoon Kristin Parks went to Hamden’s office
and thanked him for discarding the 48-hour week. Hamden
said, “Well, you know, I could still do 40 hours a week if that’s
what I choose to do.” Parks replied that he should understand
that she could not work 40 hours a week. Parks testified that
she had several conversations with Michael Hamden regarding
reduced hours workweeks. During one of those conversations
Hamden said, “[I]t’s not because of the contract hours and it’s
not because of the money for the benefits, but it’s because some
people here think it’s an entitlement to work part-time.”
Kari Hamel went into Hamden office on October 1, 2003.
She told him she appreciated the work schedule. Michael
Hamden replied that people in the office believed the work
schedule was an entitlement and people were not grateful.
Hamden went to Susan Pollitt’s office that same day. Hamden
said that he was going to change the rule so there would no
longer be reduced hours employment. Everybody would have
to bill 40 hours a week in order to be full time. Pollitt asked
why he was taking that action. Hamden replied there was the
matter of deficit in the Bounds hours owed under the Depart-
ment of Corrections contract but it wasn’t just that. His action
was also due to the hostility that he had received in August in
response to his proposal. Hamden said that he could not lead an
organization unless everyone was on the same footing. He
couldn’t take that kind of hostility that he had in August and
Hamden said that, “Linda Weisel and (Pollitt) had threatened
gender litigation in (their) letter.”40—Hamden said that Weisel
and Pollitt had claimed working reduced hours was an entitle-
ment and he was going to require 40 hours a week. Pollitt testi-
fied that Hamden said nothing in that conversation to the effect
that requiring 40 hours per week was a temporary measure.
Later on October 1, 2003, Hamden e-mailed employees that
effective January 1, 2004, 40 hours would be required to qual-
ify as full time.
2. Findings
Credibility
It was not disputed but that Respondent withheld considera-
tion of a staff pay increase from August 15, 2003; or that Re-
spondent rescinded its short-term disability benefits practice on
August 15; or that Respondent threatened on August 19 to re-
quire all employees to work 48-hour weeks; or that Respondent

40 See GC Exh. 10 and my finding herein that that document evi-
denced protected concerted activity by Linda Weisel and Susan Pollitt.
NORTH CAROLINA PRISONER LEGAL SERVICES 483
announced on October 1 that it would eliminate reduced hours
work and require a minimum of 40-billable hours each week
beginning on January 1, 2004. Evidence was in dispute as to
Respondent’s motive for taking those actions. Witnesses for
Respondent including especially Executive Director Michael
Hamden testified to the effect that none of the adverse actions
taken after August 8, was motivated by animus against the em-
ployees’ protected concerted activities.
Michael Hamden41 testified that he harbored no ill will
against employees for their protected concerted activities and
that he was not angry because of those acts by the employees.
That testimony was in dispute with substantial testimony during
the General Counsel’s case in chief including especially testi-
mony by Kristin Parks, Kari Hamel, Elizabeth Hambourger,
and Susan Pollitt. Moreover, there was a direct conflict between
Hamden’s testimony and testimony brought out during rebuttal
testimony. For example, George Hausen, the executive director
of Legal Aid of North Carolina, testified that he was with Mi-
chael Hamden in August 2003 at a conference at the McKim-
mon Center in Raleigh. After Hamden finished a phone conver-
sation, Hamden appeared a little agitated and urgent and he told
Hausen that he was having some problems back at the office.
Hamden told Hausen that he seemed to have a mutiny on his
hands in that there was a petition being passed to overturn a
decision he had made about employee Kari Hamel. On cross
examination, Hausen recalled Hamden saying that he had made
a decision about an employee who was out on maternity leave
and short term disability and that the other employees were
trying to overturn his position with a petition.
Additionally, there was other evidence that directly disputed
testimony by Hamden. Kristin Parks testified in rebuttal to
testimony by Hamden, that Michael Hamden did not contact
her prior to issuing his October 1 e-mail, to tell her that he in-
tended to make a 40-billable hour rule. In fact, according to
Parks, she talked to Hamden on the morning of October 1 be-
fore he sent the email announcing that rule and she asked him
to tell her first if he ever decided to go to the 40-hour plan so
that she could suggest an alternative plan. Hamden agreed that
he would do as Parks had requested. Nevertheless, according to
Parks, Hamden did not notify her before publishing his October
1 e-mail.
Kari Hamel testified in rebuttal to testimony by Hamden that
Hamden did not tell her he was changing to a 40 hours week,
before he issued his October 1 e-mail. She also testified that
before October 11 Hamden never said that the 40-hour week
would be a temporary measure.
I have considered demeanor of the witnesses and the full re-
cord and I find that Michael Hamden was not a credible wit-
ness. Some of the witnesses impressed me with their credibility
including especially Susan Pollitt, Kristin Parks, Kari Hamel,
and Elizabeth Hambourger.

41 Hamden was the only competent witness for Respondent regard-
ing motivation in view of the complaint allegations and the record,
which showed that only Hamden was alleged to have acted because of
animus against protected concerted activity.
3. Conclusions
After distribution of the employees’ petition to the board of
directors on August 8, 2003, Respondent made a number of
changes to its employees working conditions. Michael Hamden
frequently introduced those changes after threats to employees.
For example, on August 13, Hamden told Elizabeth Hambour-
ger that he had not realized the extent of factionalism in the
office and that things were going to change. He threatened that
because employees had petitioned the Board the employees
were less likely to get pregnancy leave benefits; or receive a
pay raise; or to continue to receive current benefits and that the
Board will withhold things from the employees. On August 19,
Hamden told the staff that the board had rescinded short-term
disability benefits and he threatened to force all employees to
work 48 hours each week.
On August 22 Susan Pollitt and Linda Weisel wrote an op-
position to Hamden’s 48-hour plan. After that, Hamden threat-
ened Kristin Parks to the effect that Pollitt and Weisel had gone
to the Board behind his back,42 that Pollitt and Weisel were
stirring up trouble and that he was not going to have that any-
more. On October 1, Hamden announced the elimination of
reduced hours work.
In view of the above and the full record, I find that Respon-
dent was motivated by its employees’ protected concerted ac-
tivities. I base my findings on credited evidence showing that
Hamden threatened employees because of the employees’ pro-
tected concerted activities and that Hamden made changes in
working conditions which he had included in threats because of
the employees’ protected concerted activities. Hamden’s threats
and subsequent acts were not subtle. With the exception of his
references to “factionalism” in the office, all his threats were
unequivocally directed against employees’ protected concerted
activities. Those protected activities were mentioned by
Hamden as the employees letter to the board; employees going
to the board behind his back; employees Weisel and Pollitt
were stirring up trouble and undermining his authority; no em-
ployees had supported his 48-hour plan; and employees thought
reduced hours was an entitlement. The letter to the board was
the employees’ August 8 petition to the board and that action
by the signers of that petition constituted protected concerted
activity.
The employees going to the board behind Hamden’s back re-
ferred to employees Weisel and Pollitt’s visit to Board Member
Nakell to discuss Respondent’s short-term disability benefits
and their hope those benefits would be available to employees
on maternity leave. As shown above that was also found to be
protected concerted activity. Employees Weisel and Pollitt
were stirring up trouble and undermining Hamden in his opin-
ion by, as he expressed to Kristin Parks on August 23, influenc-
ing younger employees. At that time Weisel and Pollitt had
engaged in extensive protected concerted activity including
among other things, participating in the August 8 petition to the
Board and their August 22 letter to Hamden. That letter from
Weisel and Pollitt to Hamden opposed his 48-hour plan. Then,

42 As shown herein Pollitt, Weisel, and others had met with Board
Member Barry Nakell and discussed extending short-term disability
benefits in cases of maternity leave.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD484
on October 1, Hamden told Susan Pollitt that he was making
changes due in part; to hostility he had received in August in
response to his 48-hour proposal. Hamden also told Pollitt that
she and Weisel had threatened gender litigation in their August
22 letter.
As to employees feeling entitled to reduced hours. There
were only four full-time employees on reduced hours. Those
four were Linda Weisel, Susan Pollitt, Kristin Parks, and Kari
Hamil. All four had participated in extensive protected con-
certed activities extending from Hamil’s request for short-term
disability benefits, her EEOC charge, the petition supporting
Hamil’s claim and employees Weisel and Pollitt’s visit to
Board Member Nakell and Weisel and Pollitt’s August 22 letter
to Michael Hamden. Therefore, all those threats and subsequent
action directly involved protected concerted activity.
As to Hamden’s frequent mention of factionalism in the of-
fice as a cause of his displeasure and action, the record shows
that factionalism did arise immediately before Hamden’s first
alleged illegal threats on August 13. That was the factionalism
that appeared in the August 12 staff meeting. The underlying
cause of that factionalism was the employees’ petition to the
Board. As shown above, an angry exchange occurred during
that staff meeting between some of the attorneys and others
including Supervisors Brenda Richardson and Phil Griffin, over
the petition supporting Kari Hamel’s claim for short-term dis-
ability benefits. It was only from that time that Hamden actu-
ally moved to correct what he viewed as office factionalism
even though, by his own testimony, factionalism was shown to
have existed from around 1990. I am convinced that Hamden’s
reference to factionalism was a thinly veiled reference to the
employees’ protected concerted activity.
Respondent argued in its brief, among other things, that
some nexus must be shown to connect motive of the active
decisionmaker and that the actual decisionmaker was the board
of directors. However, the record evidence did not support Re-
spondent contention that the board of directors was the sole
decisionmaker. The record clearly established that the execu-
tive director handled day to day running of Respondent without
input from the board of directors.43 Moreover, the record
proved that the board routinely considered only those matters
placed on meeting agendum by the executive director.44 For

43 In fact the record illustrated that the normal practice was that the
executive director and not the board of directors made decisions. For
example, it was Michael Hamden and not the board that denied Kari
Hamel’s claim for short-term disability benefits. It was Hamden that
announced a proposal to go to a 48-hour workweek. It was Hamden
that decided to eliminate reduced hours employment. And it was
Hamden that decided to go to a 40-billable hour workweek. Therefore,
I find that Hamden was Respondent’s decision maker except in those
instances where it was shown through credited evidence that the rele-
vant decision was made by the board.
44 Respondent pointed to testimony of Board of Directors President
Gary Presnell and Board Members James Crouch, Fred Williams, and
Barry Nakell to show that the board did fully consider the pay increase
question during the August 15 meeting. I find that testimony conflicts
with Respondent’s actual record of that meeting. The minutes (GC Exh.
5) show, “The current budget includes a 6% staff salary increase, but in
light of staff benefit concerns and pending litigation, discussion of staff
pay raises was deferred.” In light of the minutes, I do not credit the
example, the record showed that the decision to eliminate a
wage increase from the board’s August 15 agenda was made by
Michael Hamden in consultation with Rick Lennon. Neither
Hamden nor Lennon was on the board. Nevertheless, the board
accepted the recommendation to forego consideration of a staff
pay increase.
Respondent also argued that the General Counsel was at-
tempting to substitute its business reasoning in place of Re-
spondent’s. However, that is not the question in my view. The
issue herein is whether Respondent was motivated to take the
allegedly unfair labor practice action because of its employees
protected activities. As shown above, I find that Respondent
was motivated by its employees’ protected activities. In consid-
eration of the issue of whether Respondent would have taken
those alleged unlawful actions in the absence of protected activ-
ity, I have considered among other things, Respondent’s al-
leged business justification for taking those actions. I made that
consideration not from a standpoint of substituting someone
else’s business judgment for that of Respondent, but from the
standpoint of determining among other things, whether Re-
spondent was truthful in its contention that it was motivated by
business considerations or instead, whether Respondent used an
alleged business motivation as a pretext to cover up illegal
motivation.
In that regard, Respondent argued that Respondent was sim-
ply exercising its business judgment regarding its Bounds hours
deficit. It argued that its actions after August 8, 2003, were
justified by business concerns and that argument was arguably
supported by a concern that the DOC could audit Respondent’s
billable hours at any time. Moreover, Respondent argued DOC
would have knowledge of the deficit in billable hours at any
time during the existence of the contract because of reports
regularly made to DOC by Respondent.
Nevertheless, there was no evidence showing that DOC had
authority to take any action because of billable hours deficits
before the end of the contact in 2005. Regardless of any knowl-
edge gained from reports from Respondent or from audits it
conducted on Respondent’s records, DOC could not have pe-
nalized Respondent during the term of the contract. Moreover,
as shown above the record shows that Respondent’s billable
hours deficit was a pretextual reason for its decision to increase
attorney’s workloads. Among other things, the billable hours
deficit was not a new matter and no event occurred proximate
to August 15 or thereafter, to justify severe remedial action
other than the employees’ protected concerted activity. Also,
the hours deficit posed no imminent problem for Respondent.
The record proved that DOC could not take any detrimental
action against Respondent because of a billable hours deficit
before the end of the contract in 2005. Moreover, the record
shows that Respondent’s actions to allegedly correct its billable
hours deficit was discriminatorily applied. The reduced hours
attorneys would have been required to work an additional 16-
to 18-billable hours each week under Hamden’s original pro-
posal of 48-hour weeks as opposed to an additional 8-billable

testimony of Presnell, Crouch, Williams, and Nakell to the extent their
testimony tends to show that the pay raise issue was not deferred but
was in fact, discussed at the meeting.
NORTH CAROLINA PRISONER LEGAL SERVICES 485
hours each week for all other full-time attorneys. Under
Hamden’s October 1 plan, the reduced hours attorneys were
required to work an additional 8- to 10-billable hours each
week as opposed to the full-time attorneys who would not work
any additional billable hours.
Respondent also argued that because there were already
some attorneys working well in excess of 40 hours in 2003,
Hamden wanted the allocation of work to be more equitable. As
shown above, I do not credit the testimony of Michael Hamden.
In addition to what I have shown in my credibility resolutions, I
find it incredible that Hamden would suddenly decide to equi-
tably even out the workload. Before August and September
2003, two attorneys had worked reduced hours schedules for
over 10 years. Two more, Hamel and Parks, had worked re-
duced hours for shorter periods but no one including Michael
Hamden, testified of concern with equitable division of the
work before employees engaged in protected concerted activi-
ties in August and September 2003.
Respondent also argued that upon learning of a billable hours
deficit DOC could have awarded the contract to a competing
law firm. However, there was no record evidence showing the
DOC would have been so influenced. Respondent also argued
that an unprecedented surge in billable hours in the latter part of
the contract might cause DOC to question the validity of such a
sudden increase in billable hours. Again, there was no record
evidence supporting that assertion.
Respondent argued that the General Counsel contended that
it could have hired additional attorneys to help reduce its bill-
able hours deficit. I find that neither the General Counsel nor
Respondent’s arguments regarding the possible hiring of addi-
tional attorneys is material to the issues herein. If, as Respon-
dent argued, it had a business problem that necessitated reduc-
ing a billable hours deficit, it could have taken whatever steps it
deemed appropriate to satisfy that objective provided it did not
engage in unlawful activity. The entire record has convinced
me that Respondent engaged in unlawful activity and Respon-
dent failed to prove it would have taken the same action in the
absence of its employees’ protected activities. Whether Re-
spondent could have corrected its allegedly business problems
by lawful means including possibly, hiring additional attorneys,
is neither material in considering the General Counsel’s case
nor in considering Respondent’s defense.
As shown herein, the evidence was conclusive that Respon-
dent was motivated because of its employees’ protected activi-
ties and that Respondent would not have taken the alleged
unlawful action in the absence of the employees’ protected
activities.
I shall also consider the record in light of the specific unfair
labor practice allegations. The complaint included the follow-
ing allegations:
Respondent threatened its employees with unspecified
reprisals:
Respondent threatened its employees that it would
withhold a wage increase and Respondent actually with-
held a wage increase:
Respondent announced the termination of its extended
illness benefit and Respondent actually terminated its ex-
tended illness benefit:
Respondent threatened its employees with a change in
required work schedules and Respondent actually changed
work schedules for reduced hours employees:
Respondent constructively discharged Linda Weisel:
Respondent constructively required Susan Pollitt to
use personal leave in an attempt to constructively dis-
charge her:
As to the specific allegations the credited evidence showed
as follows:
D. Respondent Threatened its employees with
Unspecified Reprisals?
On August 12, Hamden threatened Elizabeth Hambourger
that things were going to change and he had been too indulgent
with the staff. Then, on August 22, Hamden threatened Kristin
Parks that he was not going to have that kind of thing anymore
in reference to employees going to the board behind his back.
He then said that Susan Pollitt and Linda Weisel continued to
cause problems for him, undermine his authority and stir up
trouble.
1. Findings
Credibility
As shown above I do not credit the testimony of Michael
Hamden to the extent it conflicted with credited evidence. I do
credit the testimony of Elizabeth Hambourger and Kristin
Parks.
2. Conclusions
The credited testimony of Hambourger proved that Michael
Hamden threatened her that things were going to change be-
cause of what he observed in the August 12 meeting. Hamden
asked Kristin Parks if she knew that employees had gone be-
hind his back45 and he threatened Parks that he was not going to
have that kind of thing anymore and that Susan Pollitt and
Linda Weisel continued to undermine his authority and stir up
trouble.
Hambourger was involved in defending the employees’ peti-
tion during the August 12 meeting. In view of the fact that the
petition involved concerted activity, Hambourger’s defense of
that action also constituted protected concerted activity. Pollitt
and Weisel’s activity that Hamden complained about also in-
volved in the employees petition to Respondent’s board. That
too constituted protected concerted activity.
Therefore, I find Hamden’s threats of unspecified reprisals
against employees because of their protected concerted activi-
ties constitutes unfair labor practices in violation of Section
8(a)(1) of the Act.

45 As shown herein, several people including Susan Pollitt and Linda
Weisel, met with Board Member Barry Nakell regarding the employ-
ees’ efforts to extend short-term disability benefits to employees on
maternity leave.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD486
E. Respondent Threatened its Employees that it Would
Withhold a Wage Increase and Respondent Actually
Withheld a Wage Increase?
As shown above, Elizabeth Hambourger testified that she
was asked to come to Michael Hamden’s office on August 13,
2003, and, among other things, Hamden threatened her that
because of the employees’ petition to the board he could not
ask the board to give the staff a pay raise.
The current contract between Respondent and the DOC was
signed on May 16, 2004.46 Routinely, before August 8, 2003,
employees received merit pay increases at the time of a new
contract with DOC.47 The undisputed record showed the prac-
tice was for the executive director to recommend and the board
of directors to approve staff pay increases. Before August 8,
2003, Rick Lennon and Michael Hamden planned to recom-
mend a pay increase during the August 15 board meeting. A
day of so before August 15, Michael Hamden decided in con-
sultation with Richard Lennon, to not recommend a staff pay
increase to the board of directors during the August 15 meeting.
Richard Lennon48 told the board Respondent would not rec-
ommend staff pay increases during its August 15 meeting. The
minutes of that meetings show:
Financial Matters
Budget Report
Rick Lennon gave a projected budget report . . . . The
current budget includes a 6% staff salary increase, but in
light of staff benefit concerns and pending litigation, dis-
cussion of staff pay raises was deferred. [GC Exh. 6.]49
1. Findings
Credibility
Michael Hamden denied telling Elizabeth Hambourger that
he could not ask the board to give staff raises because of the
employees’ petition to the board.50 As shown throughout my
credibility findings, I do not credit the testimony of Michael
Hamden to the extent it conflicts with credited evidence.
Hamden’s overall testimony to the effect that he praised Ham-
bourger for her role in the employees’ petition and that he did
not blame employees for contacting the Board, was rebutted by
credited testimony. Testimony of George Hausen showed that

46 See GC Exh. 48. The contract was retroactive to October 1, 2002.
47 Respondent granted pay increases to its staff on May 1, 2001, May
1, 2002 (GC Exh. 42), and on May 1, 2004 (GC Exhs. 51, 52). Negotia-
tions between DOC and Respondent were ongoing on May 1, 2003, and
raises were not considered at that time. Instead, as shown herein, Re-
spondent first considered staff pay increases after Respondent and DOC
agreed to a contract in May 2003. The first Board meeting after signing
of the contract occurred on August 15, 2003.
48 As shown herein, Lennon had met with Michael Hamden one or
two days before August 15 where Hamden decided with Lennon’s
agreement, to not recommend the staff pay raise.
49 Elizabeth Hambourger testified that Rick Lennon told the board of
directors on August 15, 2003, that management was withholding a
planned recommendation for staff pay increases because of employee
complaints and ongoing litigation.
50 Hambourger testified that Hamden referred to the petition as “this
letter.”
Hamden was agitated after learning of the employees’ petition
and that he termed the employees’ action in that regard a mu-
tiny. Moreover, Respondent’s minutes of the August 15 board
meeting show that Hamden directed deferral of the pay raise
issue because of “staff benefit concerns” and “pending litiga-
tion.” That evidence and my observation of her demeanor, sup-
ports the testimony of Elizabeth Hambourger and tends to con-
tradict the testimony of Hamden. In view of my observation of
demeanor and the credited testimony of Hambourger and
events shown in Respondents August 15 minutes regarding this
issue, I do not credit the relevant testimony by Michael
Hamden.
2. Conclusions
During a conversation with Elizabeth Hambourger in his of-
fice on August 13, Michael Hamden told Hambourger, among
other things, that as a result of the employees petition to the
Board he could not ask the Board to give the staff raises. I find
that comment constitutes a threat to deny staff pay increases
because of the employees’ protected concerted activity.
I shall apply the standards set forth in Wright Line, 251
NLRB 1083 (1980), in regard to the allegation that Respondent
recommended against granting a staff pay increase. I shall first
consider whether the General Counsel proved that Respondent
was motivated to withhold a pay increase because of its animus
regarding the employees’ protected concerted activities.
I have found herein that Respondent was motivated to retali-
ate against various employees by refusing to consider a staff
pay increase. As shown throughout this record Respondent was
not subtle in its acts. It’s adverse actions were most often di-
rected against the very activities that employees sought through
protected concerted activities or against activities that directly
affected those employees that Respondent viewed as most ob-
viously involved in protected activity. Here, unlike many of the
matters considered below, Respondent took action against its
entire staff. Nevertheless, the record did show that action was
taken in retaliation to the employees’ petition to the board. The
petition was distributed on August 8, 2003. Michael Hamden
testified that it was not until a day or so before the board’s Au-
gust 15, 2003 meeting that he in agreement with Rick Lennon,
decided to recommend against consideration of the pay in-
crease. There was no showing that anything happened shortly
before August 14, which justified Hamden rethinking whether
to recommend a pay increase on August 15 other than the em-
ployees’ petition. Therefore, I am convinced from the credited
record that Respondent was motivated to withhold considera-
tion of a 6-percent pay increase because of the employees’
protected concerted activities.
In further adherence to the Wright Line standard, I shall con-
sider whether Respondent proved that it would have recom-
mend against consideration of a 6-percent pay increase in the
absence of the employees’ protected concerted activities. As
shown above I find that Respondent’s defense to that action
was a pretext. Michael Hamden and Rick Lennon claimed that
they decided against recommending a pay increase on August
15 because of (1) a deficit in the Bounds hours; (2) factionalism
in the office; (3) a planned office move; and (4) a planned im-
proved computer program. As shown above, as to (1), the
NORTH CAROLINA PRISONER LEGAL SERVICES 487
Bounds deficit was known well before Michael Hamden de-
cided to not recommend a pay increase and the hours deficit
posed no imminent problem for Respondent.51 As to (2),
Hamden admitted that factionalism had existed in the office
since 1990. Nothing was shown to have occurred proximate to
August 13 or 14, which would have caused imminent alarm
over factionalism except for the employees’ petition to the
Board and the factionalism over that petition during the August
12 staff meeting. The petition and the factionalism demon-
strated in that staff meeting stemmed from employees’ pro-
tected concerted activities. As to (3) and (4), the evidence
proved that Respondent including Michael Hamden, was fully
aware of those problems from before the time when the last
budget was planned and there was no showing of anything
proximate to August 15, which would cause Respondent to
lawfully change its budgetary plan. Therefore, I find that the
evidence failed to show that Respondent would have canceled a
staff pay increase in the absence of its employees’ protected
activities.
I find that Respondent was motivated to recommend against
consideration of a 6-percent pay increase on August 15, 2003,
because of its employees’ protected concerted activities and the
record failed to show that Respondent would have recom-
mended against consideration of that pay increase in the ab-
sence of the employees’ protected concerted activities. By that
act Respondent engaged in activity in violation of Section
8(a)(1) of the Act.
F. Respondent Threatened and Implemented Termination
of its Extended Illness Benefits
Among other things Michael Hamden talked about short-
term disability benefits after calling Elizabeth Hambourger into
his office on August 13. He said it would have been better for
the employees to come to him about short-term disability than
to have gone to the board. Hamden said that as a result of the
employees having gone to the board it would probably mean
that the employees would be less likely to achieve what they
had set out to achieve with the petition.
As shown above, the Kari Hamil complaint concerned Re-
spondent’s refusal to provide her with short-term (or extended
illness) benefits during her maternity leave. On July 22, 2003,
Hamel filed an EEOC complaint alleging Respondent had ille-
gally denied her benefits under its extended illness policy. On
August 8, employees distributed copies of a petition to the
Board signed by employees supporting Hamel’s claim for ex-
tended illness benefits.
The board of directors met on August 15, 2003. The minutes
of that meeting show:
Executive Session
The board met in Executive Session. The Board di-
rected Michael to advise staff of the repeal of the Ex-
tended Illness benefit. Michael was instructed to obtain in-
put from staff regarding desired benefits in light of budg-

51 As shown herein, Respondent would not suffer any penalty for a
shortage of Bounds hours, if ever, before the expiration of the contract
in the fall of 2005.
etary constraints for the Board’s consideration. [GC Exh.
6.]
Michael Hamden told the employees that the board had re-
scinded the extended illness policy at its August 15 meeting.
1. Findings
Credibility
As shown throughout this decision, I do not credit the testi-
mony of Michael Hamden to the extent it conflicts with cred-
ited evidence. The evidence proved that Respondent acted to
repeal the short-term disability benefits immediately upon re-
ceiving the employees’ petition. Hamden’s testimony that Re-
spondent did not retaliate against its employees is not credited
and I find the evidence shows that Respondent’s repeal of the
short-term disability benefit was motivated by the employees’
protected concerted activity.
2. Conclusions
During his conversation with Elizabeth Hambourger in his
office on August 13, Michael Hamden told Hambourger,
among other things, it would have been better for the employ-
ees to have come to him about short-term disability benefits
than to have gone to the board. I find that comment constitutes
a threat to deny improved short-term disability benefits because
of the employees’ protected concerted activity.
I shall apply the standards set forth in Wright Line, 251
NLRB 1083 (1980), in determining whether Respondent
unlawfully eliminated its short-term disability benefits. In that
regard I shall first consider whether the General Counsel
proved that Respondent was motivated to eliminate short-term
disability benefits because of its animus regarding the employ-
ees’ protected concerted activities.
I have found herein that Respondent was motivated to retali-
ate against various employees by eliminating its short-term or
extended illness benefits. As shown throughout this record,
Respondent failed to exercise subtlety in its actions. It’s ad-
verse actions were most often directed against the very activi-
ties that employees sought through protected concerted activi-
ties or against activities that directly affected those employees
that Respondent viewed as most obviously involved in pro-
tected activity. Here, the entire thrust of the protected concerted
activities was to extend Respondent’s short-term disability
policy and that was the precise policy that Respondent elimi-
nated. On August 15, Respondent’s board of directors voted to
entirely rescind the employees’ short-term disability benefits.
The evidence showed that Michael Hamden expressed hostil-
ity especially in regard to the protected activities and employee
leadership in those activities. By eliminating its short-term
disability policy Respondent illustrated what it could do in the
event of a “mutiny.” The record shows that Respondent an-
nounced only that the board at its August 15 meeting had re-
scinded the policy. In view of the full record including espe-
cially Respondent’s threat that the employees should have ap-
proached Michael Hamden rather than the board about short-
term disability benefits; the timing of Respondent’s action; and
its previous showing of animus, I find that the record proved
that Respondent rescinded its short-term disability policy be-
cause of its employees’ protected activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD488
I shall consider whether Respondent proved that it would
have rescinded the short-term disability benefits in the absence
of the employees’ protected concerted activities. Respondent
argued that the short-term disability policy was eliminated be-
cause their attorney had advised that the policy may be in viola-
tion of appropriate sex discrimination laws and because that is
what the employees requested in their petition to the board.
Actually, the issue in the petition was not whether Respon-
dent’s policy was illegal but whether Respondent’s practice of
not applying that policy to cases of maternity leave was illegal.
That was the thrust of both the attorney’s advice to the board
and the request contained in the employees’ petition. The peti-
tion did include a request for coverage under an independent
insurance policy but there was no request that the policy be
rescinded pending conversation to a private insurance policy. I
find the record failed to prove that Respondent would have
rescinded its short-term disability policy in the absence of its
employees’ protected activities.
G. Respondent Threatened its Employees with a Change
and Actually Changed its Required Work Schedules for
Reduced Hours Employees
Elizabeth Hambourger was identified as the draftsperson of
the employees’ petition during the August 12 staff meeting.
Afterward Michael Hamden told Hambourger that senior attor-
neys should have known better than submit the petition. He
referred to those senior attorneys that were on the staff at a time
when Hamden was a staff attorney. The record showed the
senior attorneys that had been on the staff since the time when
Hamden was a staff attorney, were limited to Linda Weisel and
Susan Pollitt.
During the August 19 staff meeting, according to Hambour-
ger, Michael Hamden told the staff, among other things, that
because of a contract hours deficit, factionalism in the office,
the pending office move and the new computer system, he was
proposing that beginning on September 1, 2003, all employees
would have to work 40-billable hours to qualify for benefits
and, additionally, everybody would have to work 8 hours over-
time each week for a total of 48 hours. That practice would
continue from September 1 until November 15, 2003. The staff
would then break from that practice for the holidays but if they
had not achieved some goals, the 48-hour per week practice
would resume on January 16, 2004. Michael Hamden said he
was giving the staff one week for its input. Hamden explained
that under his proposal there would no longer be reduced hour
with benefits employment.
Kristin Parks52 met with Michael Hamden on August 23.
Hamden asked Parks if she knew that some members of the
staff had gone to the Board behind his back. Hamden said that
was not the way to get things done around here. He told Parks,
“I’m not going to have that kind of thing anymore.” Parks told
Hamden that she wanted to talk about the 48-hour a week issue
and how badly it would impact on people with families.
Hamden said that Susan Pollitt and Linda Weisel were causing
the problems for him and that they continued to undermine his
authority and stir up trouble. Hamden said that he just couldn’t

52 At that time Parks was off on maternity leave.
put up with it anymore. Parks asked why did Hamden always
took things out on Susie and Linda when it was Phil Griffin that
was causing problems in the office. Hamden replied that Phil
did not matter because no one looks up to him and no one fol-
lows him so it doesn’t matter what Phil does. The difference is
that people respect Linda and Susie and follow them.
At the August 26 staff meeting, Hamden said that no one had
fully supported his August 23 proposal and he had decided not
to require 48 hours work each week. Hamden announced that
there would be workload goals that everybody would have to
meet. That afternoon Kristin Parks went to Hamden’s office
and thanked him for discarding the 48-hour week. Hamden
said, “Well, you know, I could still do 40 hours a week if that’s
what I choose to do.” Parks replied that he should understand
that she could not work 40 hours a week. Parks testified that
she had several conversations with Michael Hamden regarding
reduced hours workweeks. During one of those conversations
Hamden said, “[I]t’s not because of the contract hours and it’s
not because of the money for the benefits, but it’s because some
people here think it’s an entitlement to work part-time.”
On October 1, Michael Hamden told Kari Hamel that people
in the office believed the work schedule was an entitlement and
people were not grateful. Hamden also talked with Susan Pollitt
that same day. He said that he was going to change the rule so
there would no longer be reduced hours employment. Every-
body would have to bill 40 hours a week in order to be full
time. Pollitt asked why he was taking that action. Hamden re-
plied there was the matter of deficit in the Bounds hours owed
under the Department of Corrections contract but it wasn’t just
that. His action was also due to the hostility that he had re-
ceived in August in response to his proposal. Hamden said that
he could not lead an organization unless everyone was on the
same footing. He couldn’t take that kind of hostility that he had
in August and Hamden said that, “Linda Weisel and (Pollitt)
had threatened gender litigation in (their) letter.” Hamden said
that Weisel and Pollitt had claimed working reduced hours was
an entitlement and he was going to require 40 hours a week.
Later that day, October 1, 2003, Hamden emailed the employ-
ees that effective January 1, 2004, 40 hours would be required
to qualify as full time. The October 1 e-mail included the fol-
lowing:
So everyone will have enough notice (three months) to make
the necessary arrangements, I want to let your know that be-
ginning on January 1st, full-time employment with NCPLS
will require a 40-hour work week. This change will affect
Support staff, intake staff, and all people who are presently
considered full-time employees who are working fewer than
40 hours per week. Of course, salaries and other compensa-
tion will be adjusted upward to reflect the increase time-
commitment.
1. Findings
Credibility
As shown herein, I do not credit Hamden and I do credit
Hambourger, Parks and Hamel.
NORTH CAROLINA PRISONER LEGAL SERVICES 489
2. Conclusions
On August 18, 2003, Michael Hamden threatened the staff
with a proposal to be announced the following day, that senior
attorneys would not like. On August 19, Hamden proposed that
all attorneys would have to work 40 hours plus 8 hours over-
time each week to receive benefits. After employees protested
against the proposed 48 hours week [including Linda Weisel
and Susan Pollitt’s join letter (GC Exh. 10)], Hamden an-
nounced that he had decided not to impose 48-hour workweeks.
However, on August 26, 2003, Hamden threatened employee
Kristin Parks that he could still do a 40-hour work week. At one
time Hamden told Parks that he could eliminate reduced hours
work because there are some employees that “think it is an
entitlement to work (reduced hours).” I find those comments
constitute a threat to eliminate reduced hours work because of
their protected concerted activity.
In regard to the allegation that Respondent unlawfully elimi-
nated its reduced hours practice, I shall first consider whether
the General Counsel proved that Respondent was motivated to
require 40-billable hours each week because of its animus re-
garding the employees’ protected concerted activities [Wright
Line, 251 NLRB 1083 (1980)]. As shown above, I have found
herein that Respondent was motivated to retaliate against vari-
ous employees by changing their working conditions. Those
changes included the elimination of the reduced hours schedule
because of the employees’ protected activities.
The evidence showed that Michael Hamden expressed hostil-
ity specifically in regard to the protected activities and em-
ployee leadership in those activities. Moreover, a reduced hours
employee, Attorney Kari Hamel, initiated the concerted activ-
ity, which led to Hamden and Respondent’s hostility. Kristin
Parks, another reduced hours attorney was in the same position
as Hamel as regards short-term disability benefits during ma-
ternity leave. By eliminating reduced hours Respondent struck
directly at those two employees as well as at the two remaining
reduced hours employees. Those two, Linda Weisel and Susan
Pollitt, were credited by Hamden with being the leaders in the
August 2003 efforts to undermine his authority. By eliminating
reduced hours Michael Hamden moved directly against the four
attorneys53 that would most directly benefit if the employees’
protected concerted activities had been successful.
In further consideration of the Wright Line standard, I shall
consider whether Respondent proved that it would have elimi-
nated the reduced hours week schedule in the absence of the
employees’ protected concerted activities. As shown above, I
find that Respondent’s defense to that action was a pretext.
Respondent claimed that it eliminated reduced hours schedules
because of (1) a deficit in the Bounds hours; (2) factionalism in
the office; (3) a planned office move; and (4) a planned im-
proved computer program. As shown herein, as to (1) the
Bounds deficit was known well before Michael Hamden de-
cided to eliminate reduced hours and the deficit posed no im-
minent problem for Respondent. As to (2), Hamden admitted
that factionalism in the office had existed since 1990. However,

53 Attorney Eleanor Kinnaird also worked reduced hours. However,
Kinnaird regularly worked less than 30 hours each week and was not
entitled to receive benefits. She was considered a part-time employee.
it was immediately after the August 12 staff meeting that
Hamden, in consultation with Rick Lennon, decided to start
actions including delaying a pay increase, that were in retalia-
tion of the employees’ petition and associated activity. Before
that time there was no showing that Respondent was concerned
with factionalism and there was not showing of any other event
proximate to October 1 which caused Respondent to show in-
creased concern with factionalism. As to (3) and (4), the evi-
dence proved that Respondent including Michael Hamden, was
fully aware of those problems from before the time when the
last budget was planned and there was no showing of anything
proximate to October 1, which would cause Respondent to
change its budgetary plan. Therefore, I find that the evidence
failed to show that Respondent would have eliminated the re-
duced hours schedule in the absence of its employees’ protected
activities.
Respondent also argued that even if believed, statements by
Hamden allegedly made to Kristin Parks and Susan Pollitt to
the effect that some attorneys believed reduced hours was an
entitlement or that some were not grateful for reduced hours
schedules, shows that it was not the employees’ petition that
motivated action by Hamden. However, as shown above, it was
those same reduced hours attorneys that Hamden associated
most directly with the petition and other protected concerted
activity. As shown above, Hamden stated that it was the senior
attorneys and that it was Pollitt and Weisel that were causing
trouble. Pollitt and Weisel were shown to be the “senior attor-
neys,” that had been on the staff from the time when Michael
Hamden was also a staff attorney. The two remaining reduced
hours attorneys were Kari Hamel and Kristin Parks and those
two were the only attorneys directly involved the 2003 mater-
nity leave issue. Both Hamel and Parks gave birth in 2003 and
Hamel was the attorney that specifically requested short-term
benefits during her maternity leave. It was against that back-
ground that Hamden started talking about attorneys or employ-
ees believing that reduced hours was an entitlement. I find a
strong connection between the two and I am convinced that
Hamden’s reference to “entitlement” would not have come up
but for the protected concerted activities. I find that Respondent
engaged in unfair labor practices by threatening to and actually
eliminating the reduced hours practice and Respondent failed to
prove it would have eliminated reduced hours in the absence of
the employees’ protected concerted activity.
H. Respondent Constructively Discharged Linda Weisel
Linda Weisel worked as for Respondent as a staff attorney.
She worked from 1986 until the end of January 2004. Weisel
was one of Respondent’s reduced hours employees. From 1992
she regularly worked 30-billable hours a week. On that reduced
hours schedule her pay and benefits with the exception of
health insurance, were proportionally reduced. She was consid-
ered a full-time employee and, as such, received full health
insurance benefits.
Weisel learned of the dispute between Kari Hamel and Re-
spondent over short-term disability leave in late March or early
April 2003. Around that time she talked to Jimmy Carter about
that dispute. Weisel told Carter that she thought law on the
subject supported Hamel’s position. From that time until her
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
employment ended Weisel supported Kari Hamel’s claim for
short-term benefits. Among other things, she talked with other
employees about Hamil’s claim and she gave her proxy to
Susan Pollitt to sign the employees’ petition supporting Hamil
(GC Exh. 5) while she was absent on vacation. She along with
Susan Pollitt wrote Michael Hamden on August 22, 2003, in
opposition to Hamden’s 48-hour a week proposal.
1. Findings
Credibility
As shown herein, I do not credit the testimony of Michael
Hamden to the extent it conflicts with credited evidence. I
credit the undisputed evidence showing that Linda Weisel was
extensively involved in the employees’ protected concerted
activities in the summer and fall of 2003 and that Michael
Hamden identified Weisel and Susan Pollitt as the two senior
attorneys that were undermining his position and causing trou-
ble. I also credit the evidence some of which was admitted by
Michael Hamden that Billy Sanders, Phil Griffin, and Kristin
Parks cautioned him in the summer and fall of 2003 that re-
duced hours employees would quit if Hamden forced them to
work 40-billable hours weeks.
2. Conclusions
The Board has applied a two-part test in cases involving con-
structive discharge allegations:
There are two elements which must be proved to establish a
“constructive discharge.” First, the burdens imposed upon the
employee must cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant as to force
him to resign. Second, it must be shown that those burdens
were imposed because of the employee’s (protected con-
certed) activities. [Crystal Princeton Refining Co., 222 NLRB
1068, 1069 (1976).]
In this instance, in order to fully consider “the burdens im-
posed upon the employee must cause,” one need not rest on
projections as to what may happen following Respondent’s
allegedly unlawful action. Here, the changes occurred well
before the hearing in this matter. As shown above Respondent
announced elimination of reduced hours with benefits on Octo-
ber 1, 2003. At that time there was one part-time employee
working less than 30 hours a week. That was Eleanor Kinnaird.
There were four reduced hours with benefits attorneys. Those
four were Linda Weisel, Susan Pollitt, Kristin Parks, and Kari
Hamel. None of those five attorneys continued working under
the terms announced on October 1. Four, Eleanor Kinnaird,
Linda Weisel, Kristin Parks, and Kari Hamel, resigned and all
four testified they resigned because of Respondent’s elimina-
tion of reduced hours schedules. One of those four, Eleanor
Kinnaird resigned out of protest over Respondent’s action.54
The remaining three resigned because of the burdens imposed
by elimination of reduced hours schedules. The sole remaining
reduced hours attorney was Susan Pollitt. Pollitt was also un-
able to work 40-billable hours a week and she continued to

54 Kinnaird did not receive benefits because she regularly worked
less than 30 hours each week. Therefore, she was not directly affected
by elimination of reduced hours with benefits.
work a reduced hours schedule. As shown below, Pollitt was
able to continue her employment with Respondent by use of her
personal leave time to make up the difference each week after
January 1, 2004, in the number of hours she was able to work
and 40-billable hours.
As shown above Respondent took actions against its em-
ployees because its employees signed the August 8 petition
supporting Hamil. All those adverse actions affected Linda
Weisel. Those actions included Respondent withholding a wage
increase for all employees from August 15 and Respondent
eliminating its short-term benefits practice. The most dramatic
change in working conditions in regard to its affect on Weisel
appeared to be Respondent’s elimination of reduced hours
work.
Weisel along with Pollitt also engaged in protected concerted
activity by writing Hamden that they opposed his proposal to
require 48-hour workweeks. As shown herein Respondent took
detrimental action against Weisel after her specific protected
concerted activity on August 8 and 22, 2003.
The record showed that Respondent was aware that its Octo-
ber 1 announcement of the elimination of reduced hours em-
ployment was likely to result in the resignation of reduced
hours employees. As shown herein, from August 19 the em-
ployees including Kristin Parks, repeatedly told Hamden they
would not be able to continue working if required to work 40-
billable hours each week. Billy Sanders, who was called by
Respondent, admittedly told Hamden during the week before
October 1 that elimination of reduced hours may cause all four
reduced hours attorneys to resign. Another of Respondent’s
witnesses, Team Leader Phil Griffin testified that elimination of
reduced hours would cause Eleanor Kinnaird to quit.55 Michael
Hamden was vague but he appeared to testify that only Kristin
Parks told him that she would resign if forced to work a 40
hours a week schedule. He testified that he did not believe
Linda Weisel would resign. As to Billy Sanders, Hamden ad-
mitted that he did have discussions with Sanders and that he
(Hamden) “certainly considered the possibility that we might
lose some members of the staff.”
Respondent argued there is no evidence showing that Mi-
chael Hamden intended his change to a minimum 40-billable
hours per week schedule to cause Linda Weisel to resign. As
shown above I do not credit Michael Hamden’s testimony. I
specifically discredit his testimony that he did not intend for
any of the reduced hours attorneys including Weisel, Hamel
and Parks, to resign. As shown herein the credited record
showed that Hamden believed Weisel and Pollitt to be trouble-
makers that undermined his authority. He believed Weisel and
Pollitt had led the concerted action in petitioning the board of
directors. Moreover, management officials including Billy
Sanders told Hamden he believed the 40-minimum hours re-
quirement might cause reduced hours attorneys to resign. I find
that Hamden specifically intended to force reduced hours attor-

55 Although Kinnaird was not a full-time employee because she rou-
tinely worked less than 30-billable hours each week, the testimony
shows that supervision anticipated that elimination of the reduced hours
practice would cause her to resign.
NORTH CAROLINA PRISONER LEGAL SERVICES 491
neys to resign. American Licorice Co., 299 NLRB 145, 148
(1990).
Respondent also argued the evidence failed to show that Re-
spondent should have reasonably foreseen that reduced hours
attorneys would resign. However, the record illustrated that
Michael Hamden was repeatedly told that reduced hours attor-
neys would resign if he eliminated the reduced hours privilege.
As shown above Billy Sanders told Hamden the reduced hours
attorneys may resign. Kristin Parks, Susan Pollitt, and Linda
Weisel told Hamden on several occasions that they could not
work 40-billable hours each week.
Respondent argued that neither Weisel nor Susan Pollitt had
home responsibilities great enough to justify a constructive
discharge determination. However, as was the case in determin-
ing whether certain action was justified business judgments by
Respondent, I shall not substitute my judgment for the judg-
ments of the alleged discriminatees in determining the extent of
their family obligations. The record clearly established that
both Weisel and Pollitt are the primary caregivers of their re-
spective child or children and the record established each has
substantial responsibilities which justified the desire to only
work reduced hours. Moreover, even though Michael Hamden
was aware that all the reduced hours attorneys as well as some
of the other reduced hours employees, desired to work reduced
hours at reduced salaries, he was content to accept their respec-
tive judgment behind those desires without inquiring further as
to the merits of their needs. I find that both Weisel and Pollitt
showed through credited and uncontested testimony that their
reduced hours work were personal necessities. Moreover,
Hamden was fully aware that loss of reduced hours privileges
might cause some or all the reduced hour attorneys to resign. I
find that Hamden reasonably foresaw that his action would
result in resignation by reduced hours attorneys.
The evidence showed that Michael Hamden expressed hostil-
ity especially in regard to the protected activities and leadership
in those activities by Weisel and Pollitt. Moreover, another
reduced hours employee, attorney Kari Hamel, initiated the
activity which led to Hamden’s hostility. Kristin Parks, the sole
remaining reduced hours attorney was in the same position as
Hamel as regards her right to short-term disability benefits
during maternity leave.
All the above factors and the full record proved that Respon-
dent was motivated to require Weisel to work a full 40-billable
hour week because of its employees’ protected concerted ac-
tivities.
I shall also apply the standards set forth in Wright Line, 251
NLRB 1083 (1980). Of course, the initial Wright Line consid-
eration is similar to the question considered above under Crys-
tal Princeton. In that regard, as shown above, I find that Re-
spondent was motivated to change the working conditions of its
employees including especially Linda Weisel because of its
animus regarding the employees’ protected concerted activities.
The evidence included unrebutted testimony from Linda
Weisel showing that she is the primary caregiver56 for her child
and demands resulting from her time with her family and her

56 Weisel’s husband is an attorney that works approximately 60
hours a week.
time involved in family duties,57 proved that Respondent’s
elimination of reduced hours work resulted in a change in
Weisel’s “working conditions so difficult or unpleasant as to
force (her) to resign.” Moreover, the credited testimony of
Weisel proved that she told Michael Hamden “[M]y family
obligations will not allow me to (work 40 hours a week).”
In further consideration of the Wright Line standard, I shall
also consider whether Respondent proved that it would have
eliminated the reduced hours week schedule for Linda Weisel
in the absence of the employees’ protected concerted activities.
As shown above, I find that Respondent’s defense to that action
was a pretext. Respondent claimed that it eliminated reduced
hours schedules because of (1) a deficit in the Bounds hours;
(2) factionalism in the office; (3) a planned office move; and
(4) a planned improved computer program. As shown above, as
to (1), the Bounds deficit was known well before Michael
Hamden decided to eliminate reduced hours and the deficit
posed no imminent problem for Respondent. As to (2), Hamden
admitted that factionalism in the office had existed since 1990.
There was nothing to show that action was required to elimi-
nate factionalism on October 1, 2003, other than factionalism
caused by the employees’ protected concerted activity. As to
(3) and (4), the evidence proved that Respondent including
Michael Hamden, was fully aware of those problems from be-
fore the time when the last budget was planned and there was
no showing of anything proximate to October 1, which would
cause Respondent to change its budgetary plan. Therefore, I
find that the evidence failed to show that Respondent would
have eliminated the reduced hours schedule in the absence of
its employees’ protected activities.
Despite Respondent’s claim that reduced hours was a privi-
lege and not a right as well as its argument that Weisel did not
have child care responsibilities sufficiently grave in magnitude
to justify a constructive discharge finding, the record showed
that shortly after Respondent expressed its animus toward it’s
employees’ protected activities, it eliminated a longstanding
working condition because of its animus against it’s employ-
ees’ protected activities. Regardless of whether reduced hours
was a privilege or a right, Respondent could not lawfully elimi-
nate that privilege or right because of its animus against pro-
tected concerted activities. Moreover, there is no authority for
the argument that discriminatees must illustrate a certain level
of need to justify a constructive discharge allegation. The Gen-
eral Counsel did illustrate that Weisel had serious child care
responsibilities and that she met those responsibilities through
among other things, use of time she would not have had but for
her reduced hours schedule. Moreover, the General Counsel
proved that Weisel took her responsibilities seriously and that
Respondent was fully aware that Weisel took her family re-
sponsibilities seriously.
In summary, I find that the General Counsel proved that Re-
spondent’s changed working conditions for its reduced hours

57 Weisel’s son is now 12 years old. Linda Weisel testified to the ef-
fect that she has always been responsible for picking up her son after
school and escorting him to school, sports practices, music lessons,
camps, medical appointments, religious studies and school events. She
assists her son in his work on school assignments including homework.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
attorneys as found herein, including especially its elimination
of reduced hours work, because of the employees protected
concerted activities. Those changes resulted in burdens on the
employees so difficult and unpleasant that they did cause re-
duced hours attorneys to either resign or use personal leave
time to avoid resigning. The record evidence proved that Re-
spondent intended to cause its reduced hours attorneys to re-
sign. Crystal Princeton Refining Co., 222 NLRB 1068, 1069
(1976). Respondent imposed those changes in working condi-
tions because of Weisel’s and other employees’ protected con-
certed activities. Crystal Princeton Refining Co., supra; Wright
Line, supra. I find that Respondent constructively discharged
Linda Weisel in violation of Section 8(a)(1) of the Act. Ameri-
can Licorice Co., 299 NLRB 145 (1990); Bennett Packing Co.
of Kentucky, 285 NLRB 602 (1987). The evidence did not
prove that Respondent would have constructively discharged
Weisel in the absence of the protected concerted activity.
I. Respondent Constructively Required Susan Pollitt
to use Personal Leave in an Attempt to Constructively
Discharge Her
Susan Pollitt, like Linda Weisel, worked for Respondent as a
staff attorney on a reduced hours schedule. Pollitt started work-
ing for Respondent as an attorney in June 1989. From 1992
until 2004 she worked reduced hours of 32-billable hours per
week. Like Weisel and the other reduced hours attorneys, Pol-
litt received reduced pay and benefits with the exception of
health insurance, in proportion 32 hours versus full pay and
benefits at 40-billable hours a week. She and all the reduced
hours attorneys were entitled to full health insurance benefits.
As shown above, Pollitt was extensively involved in the pro-
tected concerted activities in support of Kari Hamel’s claim for
short-term benefits during maternity leave. Respondent was
aware of Pollitt’s activities and Michael Hamden told Kristin
Parks and Pollitt, that Pollitt, as well as Linda Weisel, under-
mined his leadership role and posed a danger to him. Pollitt,
like Weisel, also engaged concerted activity by jointly writing
Hamden on August 22 in opposition to his 48-hour week pro-
posal.
Susan Pollitt did not resign after Respondent announced
elimination of reduced hours schedules. Instead Pollitt has used
and she continues to use, a built up reserve of accrued leave to
continue working reduced hours each week. Thereby Pollitt has
been able to meet her family obligations to the same extent as
before elimination of reduced hours work.
1. Findings
Credibility
As shown herein, I do not credit the testimony of Michael
Hamden to the extent it conflicts with credited evidence. I
credit the undisputed evidence showing that Susan Pollitt was
one of the employees that was extensively involved in the em-
ployees’ protected concerted activities in the summer and fall
of 2003 and that Michael Hamden identified Pollitt as well as
Linda Weisel, as the senior attorneys that were undermining his
position and causing trouble.
2. Conclusions
As shown above, the Board has applied a two-part test in
cases involving constructive discharge allegations:
There are two elements which must be proved to establish a
“constructive discharge.” First, the burdens imposed upon the
employee must cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant as to force
him to resign. Second, it must be shown that those burdens
were imposed because of the employee’s (protected con-
certed) activities. [Crystal Princeton Refining Co., 222 NLRB
at 1069.]
In this instance as in the case with Linda Weisel, in order to
fully consider “the burdens imposed upon the employee must
cause,” one need not rest on projections as to what may happen
following Respondent’s allegedly unlawful action. Here, the
unlawful changes occurred well before the hearing in this mat-
ter. As shown above, Respondent started its unfair labor prac-
tices on August 15 and it subsequently announced elimination
of reduced hours on October 1, 2003. Since then all the attor-
neys that worked less than 40-billable hours a week including
part-time employee Eleanor Kinnaird, and full-time but reduced
hours Attorneys Weisel, Parks, and Hamel, have resigned. The
sole remaining reduced hours attorney is Susan Pollitt. Pollitt
was also unable to work 40-billable hours a week and she con-
tinued to work a reduced hours schedule. As shown below,
Pollitt was able to continue her employment with Respondent
by use of her personal leave time to make up the difference
each week after January 1, 2004, in the number of hours she
was able to work and 40-billable hours.
As shown above, Respondent took actions against its em-
ployees because its employees engaged in protected concerted
activity including signing the August 8 petition supporting Kari
Hamil. All those adverse actions affected Susan Pollitt. Those
actions included Respondent withholding a wage increase and
eliminating its short-term benefits practice for all employees
from August 15. Pollitt and Weisel engaged in another pro-
tected concerted activity on August 22 when they wrote
Hamden that they opposed his 48-hour week proposal. Subse-
quently, Respondent engaged in further unfair labor practices
by, among other things, eliminating reduced hours workweeks.
That elimination of reduced hours appears to be the most dra-
matic change in working conditions in regard to its affect on
Pollitt.
The record showed that Respondent was aware that its Octo-
ber 1 announcement of the elimination of reduced hours em-
ployment was likely to result in the resignation of reduced
hours employees. As shown herein, from August 19 the em-
ployees including Kristin Parks, repeatedly told Hamden they
would not be able to continue working if required to work 40-
billable hours each week. Billy Sanders, who was called by
Respondent, admittedly told Hamden during the week before
October 1 that elimination of reduced hours may cause all four
reduced hours attorneys to resign. Another of Respondent’s
witnesses, Team Leader Phil Griffin, testified that elimination
NORTH CAROLINA PRISONER LEGAL SERVICES 493
of reduced hours would cause Eleanor Kinnaird to quit.58 Mi-
chael Hamden appeared to testify that only Kristin Parks told
him that she would resign if forced to work a 40 hours a week
schedule. He testified that he did not believe Linda Weisel
would resign. As to Billy Sanders, Hamden admitted that he did
have discussions with Sanders and that he (Hamden) “certainly
considered the possibility that we might lose some members of
the staff.”
The evidence showed that Michael Hamden expressed hostil-
ity specifically in regard to the protected activities, and leader-
ship in those activities, by Weisel and Pollitt. Moreover, an-
other reduced hours employee, attorney Kari Hamel, initiated
the protected concerted activity, which led to Hamden’s ani-
mus. Kristin Parks, the sole remaining reduced hours attorney
was in the same position as Hamel as regards her right to short-
term disability benefits during maternity leave.
All the above factors and the full record proved that Respon-
dent was motivated to require Pollitt to work a full 40-billable
hour week because of its employees’ protected concerted ac-
tivities [Wright Line, 251 NLRB 1083 (1980)]. The record
proved that Respondent intended by its unlawful action to cause
Pollitt to resign and especially by eliminating reduced hours
work. Respondent engaged in those unfair labor practices be-
cause of its employees’ protected concerted activities. Crystal
Princeton Refining Co., supra.
I shall also consider under Wright Line whether Respondent
proved that it would have intentionally forced Pollitt to use
personal leave to avoid constructive discharge in the absence of
the employees’ protected concerted activities. As shown above,
I find that Respondent’s defense to that action was a pretext.
Respondent claimed that it eliminated reduced hours schedules
because of (1) a deficit in the Bounds hours; (2) factionalism in
the office; (3) a planned office move; and (4) a planned im-
proved computer program. As shown above, as to (1), the
Bounds deficit was known well before Michael Hamden de-
cided to eliminate reduced hours and the deficit posed no im-
minent problem for Respondent. As to (2), Hamden admitted
that factionalism in the office had existed since 1990. There-
fore, there was nothing to show that action was required to
eliminate factionalism on October 1, 2003. As to (3) and (4) the
evidence proved that Respondent including Michael Hamden,
was fully aware of those problems from before the time when
the last budget was planned and there was no showing of any-
thing proximate to October 1, which would cause Respondent
to change its budgetary plan. Therefore, I find that the evidence
failed to show that Respondent would have eliminated the re-
duced hours schedule in the absence of its employees’ protected
activities.
Susan Pollitt credibly testified that she is the primary care-
giver59 for her children. Under the circumstances in her case, I
find that Respondent’s elimination of reduced hours work re-

58 Although Kinnaird was not a full-time employee because she rou-
tinely worked less than 30-billable hours each week, the testimony
shows that supervision anticipated that elimination of the reduced hours
practice would cause her to resign.
59 Weisel’s husband is an attorney that works approximately 60
hours a week.
sulted in a change in Pollitt’s “working conditions so difficult
or unpleasant as to force (her) to resign.” Of course, Pollitt had
not resigned at the time of the hearing. However, she continued
to work only by use of her personal leave to make up the differ-
ence between what she was able to work and what she would
have worked to fulfill Respondent’s requirement that all full-
time employees work 40-billable hours each week.
Despite Respondent’s claim that reduced hours was a privi-
lege and not a right as well as its argument that Pollitt did not
have child care responsibilities sufficiently grave in magnitude
to justify a constructive discharge finding, the credited evidence
proved that Respondent eliminated reduced hours because of its
animus against its employees’ protected concerted activities.
Regardless of whether reduced hours was a privilege or a right,
Respondent could not lawfully eliminate that privilege or right
because of its animus against protected concerted activities.
The General Counsel proved that Pollitt had serious child-care
responsibilities and that she met those responsibilities through
among other things, use of time she would not have had but for
her reduced hours schedule. In Pollitt’s case she was forced to
use accumulated personal leave time in order to continue work-
ing a reduced hours schedule. The General Counsel proved that
Pollitt took her responsibilities seriously and that Respondent
was fully aware that Weisel took her family responsibilities
seriously.
As to the second element in the Crystal Princeton standard,
both employees and supervision repeatedly told Michael
Hamden that elimination of reduced hours would probably
result in reduced hours attorneys’ resignations. Moreover, as
shown above, credited evidence proved that Michael Hamden
was motivated by animus against the employees’ protected
concerted activities and it was shown that Hamden knew of
Pollitt’s involvement in those activities and that Hamden
blamed Pollitt and Weisel with leading other employees in
those activities.
The General Counsel proved that Respondent’s unlawfully
changed working conditions, including especially its elimina-
tion of reduced hours work, because of the employees’ pro-
tected concerted activities. Those changes resulted in burdens
on the employees so difficult and unpleasant that they did cause
reduced hours attorneys to either resign or use personal leave
time to avoid resigning. The record evidence proved that Re-
spondent intended to cause its reduced hours attorneys to re-
sign. Crystal Princeton Refining Co., 222 NLRB at 1069. Re-
spondent imposed those changes in working conditions because
of Pollitt’s and other employees’ protected concerted activities.
Crystal Princeton Refining Co., supra; Wright Line, supra. I
find that Respondent intended to constructively discharged
Susan Pollitt and by its actions in that regard including espe-
cially its unlawful elimination of reduced hours privileges,
forced Pollitt to use her personal leave to avoid resigning, in
violation of Section 8(a)(1) of the Act. American Licorice Co.,
supra; Bennett Packing Co. of Kentucky, supra.
Respondent also argued the evidence failed to show that Re-
spondent should have reasonably foreseen that reduced hours
attorneys would resign. However, the record illustrated that
Michael Hamden was repeatedly told that reduced hours attor-
neys would resign if he eliminated the reduced hours privilege.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD494
As shown above, Billy Sanders told Hamden the reduced hours
attorneys may resign. Kristin Parks, Susan Pollitt, and Linda
Weisel told Hamden on several occasions that they could not
work 40-billable hours each week. Respondent argued that
neither Weisel nor Pollitt had home responsibilities great
enough to justify a constructive discharge determination. How-
ever, as was the case in determining whether certain action was
justified business judgments by Respondent, I shall not substi-
tute my judgment for the judgments of the alleged discrimina-
tees in determining the extent of their family obligations. The
record clearly established that both Weisel and Pollitt are the
primary caregivers of their families and the record established
each has substantial responsibilities, which justified their desire
to only work reduced hours. Moreover, even though Michael
Hamden was aware that all the reduced hours attorneys as well
as some of the other reduced hours employees, desired to work
reduced hours at reduced salaries, he was content to accept their
respective judgment without inquiring further as to the merits
of their needs. I find that both Weisel and Pollitt showed
through credited and uncontested testimony that reduced hours
work were personal necessities. Moreover, Hamden was fully
aware that loss of reduced hours privileges might cause some or
all the reduced hour attorneys to resign.
CONCLUSIONS OF LAW
1. By threatening its employees with unspecified reprisals;
by threatening its employees that it would withhold a wage
increase; by announcing the termination of its extended illness
benefit; and by threatening its employees with the elimination
of reduced hours work schedules; the Respondent has engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) of the Act.
2. By withholding a 6-percent wage increase for its employ-
ees on August 15, 2003; by terminating its extended illness
(i.e., short-term) benefit for its employees on October 1, 2003;
by eliminating the practice of employees’ working reduced
hours each week on January 1, 2004; by its constructive dis-
charge of Linda Weisel and by forcing Susan Pollitt to use per-
sonal leave to avoid constructive discharge; because of em-
ployees’ protected concerted activity, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having unlawfully withheld a 6-percent staff
pay increase on August 15, 2003; having terminated its ex-
tended illness benefits on October 1, 2003; having eliminated
the practice of employees’ working reduced hours on January
1, 2004; having constructively discharged Linda Weisel; and
having constructively required Susan Pollitt to use personal
leave time, it must immediately reinstate its extended illness
benefits as those benefits existed before October 1; it must
immediately reinstate its reduced hours practice as that practice
existed before October 1; and it must offer Weisel and Pollitt
immediate reinstatement to their former reduced hours jobs.
Additionally Respondent must immediately make whole mem-
bers of its staff that were employed at any time on and after
August 15, 2003, for earnings lost because of Respondent’s
unlawful denial of the 6-percent staff pay increase; Respondent
must make whole all employees injured by its elimination of its
extended illness policy on October 1, 2003; Respondent must
make whole all employees injured by its elimination of its re-
duced hours practice on January 1, 2004; and Respondent must
make whole Linda Weisel and Susan Pollitt for all loss of earn-
ings and other benefits. As to Pollitt, that make whole remedy
shall include making her whole for loss of personal leave in
order to avoid constructive discharge. Backpay shall be com-
puted on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]