White Oak Manor

National Labor Relations Board - Board Decisions

Jan 30, 2009

353 N.L.R.B. 795 (N.L.R.B. 2009)

WHITE OAK MANOR
353 NLRB No. 83
795
White Oak Manor and Nichole Wright-Gore. Case
11–CA–21786
January 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On August 12, 2008, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. He issued
an erratum on August 19, 2008. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified.3

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.
The judge discredited the testimony of Andy Nelson, the Respon-
dent’s administrator, in part because Assistant Director of Nursing
Tammy Whisnant testified that Nelson and employee Nichole Wright-
Gore met on October 31, 2007, and discussed the Respondent’s alleged
disparate enforcement of its dress code. Nelson claimed not to remem-
ber this discussion. In adopting the judge’s credibility finding, we
clarify that Whisnant was not present at the October 31 meeting, but
that she attended a later meeting in which Nelson and Wright-Gore
referred to the October 31 meeting and to their discussion at that meet-
ing.
We correct the judge’s statement that the Board in Ogihara Amer-
ica Corp., 347 NLRB 110 (2006), held that “the use of photographs by
employees to illustrate their positions concerning alleged poor work
performed by a supervisor” was protected concerted activity. The
Board in that case merely assumed arguendo that this activity was
protected. Id. at 112 fn. 8.
2 In agreeing with the judge that Wright-Gore’s discharge violated
Sec. 8(a)(1), we rely on his finding that she did not lose the Act’s pro-
tection by photographing employee T.C. Brooks with her cell phone
and showing it to other employees. As found by the judge, Wright-Gore
engaged in protected concerted activity by seeking to initiate or induce
group action among the Respondent’s employees in an effort to compel
the Respondent to fairly enforce its dress code. Wright-Gore’s photo-
graphing, which led to her discharge, was part of the res gestae of these
protected concerted activities. In this context, the “pertinent question is
whether the conduct is sufficiently egregious to remove it from the
protection of the Act.” Hacienda Hotel, Inc., 348 NLRB 854 fn. 1
(2006), quoting Stanford Hotel, 344 NLRB 558, 558 (2005); see gener-
ally Atlantic Steel Co., 245 NLRB 814 (1979). Here, there is no such
showing. First, the Respondent failed to establish that it disseminated,
prior to Wright-Gore’s discharge, a rule prohibiting employees from
taking photographs of other employees without their permission. Sec-
ond, the Respondent did not enforce such a rule against other employ-
ees; employees freely took and posted photographs of each other with
the Respondent’s knowledge. Respondent’s attempt to distinguish the
photographs it permitted on the ground that they captured happy occa-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, White
Oak Manor, Shelby, North Carolina, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraphs 2(a) and (b).
“(a) Within 14 days from the date of this Order rescind
the unlawful discharge of Nichole Wright-Gore and offer
her full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent job, without
prejudice to her seniority or any other rights or privileges
previously enjoyed.
“ (b) Make Wright-Gore whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, with interest.”
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs accordingly.
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to Wright-Gore’s
unlawful discharge and, within 3 days thereafter, notify
her in writing that this has been done and that the dis-
charge will not be used against her in any way.”
Ronald C. Morgan, Esq., for the General Counsel.
Thomas H. Keim, Jr., Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Shelby, North Carolina, on March
24 and 25, 2008.1 The complaint is based on a charge filed by
Nichole Wright-Gore (Wright), an individual, against White
Oak Manor (White Oak or Respondent). The complaint alleges
violations of Section 8(a)(1) of the National Labor Relations
Act (the Act) and is joined by the answer filed by the Respon-

sions is unpersuasive. Most importantly, the judge credited Wright-
Gore’s testimony that the Respondent’s asserted basis for Wright-
Gore’s discharge, i.e., that she took a photograph of Brooks without his
permission, did not occur.
3 The judge inadvertently failed to include a separate expungement
remedy in his recommended Order. We shall modify the judge’s rec-
ommended Order to include such a provision.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
1 The record in this case was reopened on April 4, 2008, and closed
by me on May 8, 2008.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD796
dent wherein it denies the commission of any violations of the
Act.
After due consideration of the testimony and evidence re-
ceived at the hearing and the briefs filed by the parties, I make
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find that
White Oak is now and has been at all times material, a North
Carolina corporation with a facility located at Shelby, North
Carolina, where it is engaged in the operation of a long-term
care facility, that during the past 12 months, a representative
period, Respondent derived an annual volume of revenue in
excess of $100,000 in the operation of its facility at Shelby,
North Carolina, and received goods and services valued in ex-
cess of $50,000 directly from points outside the State of North
Carolina and that Respondent is now, and has been at all times
material, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES2
Respondent operates a long-term care facility in Shelby,
North Carolina. This facility is one of several nursing homes
owned and operated by Respondent through its headquarters in
Spartanburg, South Carolina. The Shelby, North Carolina long-
term care home is headed by its administrator, Andy Nelson, an
admitted 2(11) supervisor, who in turn reports to the Respon-
dent’s headquarters in Spartanburg. Peggy Panther is the per-
sonnel director. Terry Fowler is the director of nursing.
Tammy Whisnant is the assistant director of nursing. Veronica
Walker is the staff development coordinator. Janice Horn is the
housekeeping director. Tanesha Strong is the activities direc-
tor. Kathy Gunter is the business office manager. Debbie
Sanders is the Respondent’s consultant. All of the above-listed
individuals are 2(11) supervisors. Christie Ingle is the assistant
business office manager. She is not a supervisor.
The complaint alleges that on November 15 and 16, 2007,
Respondent, through its agent and supervisor, Andy Nelson,
threatened its employees with discharge because they engaged
in protected concerted activities and that Respondent also inter-
rogated its employees concerning their protected concerted
activities. The complaint further alleges that on November 16,
2007, Respondent discharged and thereafter failed and refused
to reinstate employee Nichole Wright-Gore because of her
engagement in concerted activities with other employees for the
purpose of collective bargaining or other mutual aid or protec-
tion and in order to discourage employees from engaging in
such concerted activities. The threats, interrogations, and dis-
charge are alleged to have violated Section 8(a)(1) of the Act.
Wright testified that on October 23, 2007, she returned from
a week’s vacation wearing a baseball hat and approached her
supervisor, Terry Fowler, and removed the hat and told Fowler
that she had received a terrible haircut. Fowler commented that
it did not look that bad and that it would grow out. Wright then

2 All dates in this case are in 2007 unless otherwise stated.
put her hat back on and proceeded to perform her duties.
Wright worked as a central supply clerk. She worked in a small
office and did invoicing on her computer. She also spent about
50 percent of her time opening boxes and checking in supplies
and other items that had been ordered and distributing them to
the nurse’s stations. Wright continued to wear the hat until
October 30, when there was a fire drill and Personnel Director
Peggy Panther observed her wearing the hat and tapped her on
the hat and told Wright that the hat was not the required dress
code. Wright said nothing, but declined to take off the hat and
walked away. Panther acknowledged at the hearing that she
had observed Wright wearing the hat prior to this incident but
had not taken any action. A few minutes, thereafter, Assistant
Director of nurses Tammy Whisnant told Wright to remove the
hat. Wright told her that the dress code did not prohibit the
wearing of hats. Whisnant again told her to remove the hat.
Wright said no and walked away. She was then called into a
meeting by Director of Nurses Terry Fowler with Panther and
Whisnant present. Fowler gave Wright a copy of the dress
code and asked Wright if she would remove the hat. Wright
said she would not remove the hat because it was unfair to re-
quire her to remove her hat as other employees were permitted
to wear hats. Fowler told her that if she walked out of her of-
fice without removing the hat she should clock out and leave by
the back door. She refused to remove the hat and left about
3:30 p.m. After arriving home, she spoke to Administrator
Nelson on the phone who told her to report to work the next
morning. Panther testified that during the period from October
23 to 30 Wright had been observed wearing the hat by Nelson,
Panther, Whisnant, and Fowler. In response to Wright’s asser-
tion on October 30, that there was nothing in the dress code that
prohibited the wearing of hats in the workplace, Nelson distrib-
uted to employees by the end of that workday, a memo that said
that only articles of clothing listed in the dress code could be
worn. Hats were not listed in the dress code. The next day
(October 31) was Halloween and Wright appeared in costume
as a race car driver including a baseball hat. Most of the other
employees wore costumes of varying kinds. When she arrived
at work, she was met shortly thereafter by Nelson who told her
it would be in her interest to remove the hat. She did so and did
not again wear a hat at work during the rest of her employment
by Respondent. Following the removal of her hat, Wright met
with Nelson and Fowler concerning the issue. She was given a
written warning for her refusal to remove the hat. Wright told
them that it was unfair that she could not wear a hat while other
employees were able to wear hats at the nursing home. She
also told them that employee David Layell was wearing a hat at
work that day. Nelson said he would look into this. As she
was dissatisfied with being prohibited from wearing a hat at
work and as she saw other employees who did not adhere to the
dress code, particularly men wearing hats and showing tattoos,
Wright sought to persuade female employees of this perceived
inequity. She began talking to other women employees and
telling them of the issuance of the written warning she had
received because of wearing a hat on the premises, and the
disparity of this discipline whereby, the dress code was not
enforced against other employees wearing hats and showing
tattoos. She discussed this with 10 or more female employees
WHITE OAK MANOR 797
and 3 members of management. She engaged in one-on-one
conversations and also spoke to groups of female employees in
the smoking and break areas as well as on the general premises.
Insofar as she was aware, the employees all expressed their
sympathy with her cause and some of them expressed their own
dissatisfaction with the way the dress code, with respect to
shoes, hats, tattoos, fingernails, and jewelry, applied to them.
On November 12, in furtherance of her campaign to have Re-
spondent’s management and particularly Nelson and the head-
quarters representatives enforce the dress code fairly, Wright
began to use her cell phone camera to take pictures of other
employees who were not complying with the dress code. The
pictures showed them wearing hats and showing tattoos. She
intended to use these photographs to demonstrate the inequity
of the lack of uniform enforcement of the dress code. She took
cell phone pictures of Harold Hopper, David Layell, Deborah
Mitchell, and Shay Roberts. Mitchell and Roberts both wore
head coverings and Wright testified they gave their approval to
be photographed. A second picture was taken of Roberts to
show a tattoo on his arm. Wright took pictures with her cell
phone of Hopper and Layell wearing hats. Wright did not have
permission from these employees to take the pictures. She did
not have any of the pictures of these employees developed.
Wright also telephoned Respondent’s consultant, Debbie Sand-
ers, at the headquarters, and told her of the problem of the un-
even enforcement of the dress code and at Sander’s request
Wright mailed her a copy of the dress code and the October 30
memo distributed by Nelson.
The evidence presented at the hearing shows that what had
initially started as an individual complaint by Wright, that she
was being treated unfairly by being required to remove her hat,
evolved into a campaign by Wright to have the dress code en-
forced in a fair and equitable manner. Wright was not alone in
this campaign. According to Shay Roberts in his reports to
Respondent which were received by Nelson, employee Angela
Hawkins urged Roberts to permit Wright to take his pictures,
one showing him wearing a hat and a second picture showing a
tattoo on his arm. Nelson thus knew that Angela Hawkins so-
licited Roberts to pose for the picture. It is clear that the col-
laboration of Wright and Angela Hawkins in obtaining cell
phone pictures of employees who were not in compliance with
Respondent’s dress code constituted a joint effort of these two
employees in seeking to obtain a change in working conditions.
Wright showed other employees the pictures she had obtained
of employees Layell, Mitchell, Hopper, and Roberts who she
contended were in violation of the dress code. Specifically,
Wright showed employees Angela Hawkins, Susie Hawkins,
Christie Ingle, Crystal Henson, and Kim McArthur these cell
phone pictures. Wright testified, without rebuttal, that all em-
ployees to whom she showed the pictures agreed the dress code
was not being fairly enforced. In addition to Wright’s actions
in showing the cell phone pictures to other employees, Wright
showed the cell phone pictures to Manager Kathy Gunter and
Coordinator Veronica Walker, both management employees.
Gunter wrote in her account to Nelson dated November 16 that
Wright had, on several occasions, shown the cell phone pictures
to Gunter and had complained about the unfair enforcement of
the dress code. On one occasion, Wright showed the cell phone
pictures to Gunter and employee Ingle at the same time and
asserted that the dress code was not being fairly enforced. On
November 15, Gunter went to Nelson’s office and informed
him that Wright had shown her the cell phone pictures. On
another occasion, Wright showed the cell phone pictures to
Gunter in a group of employees in the smoking area concerning
the enforcement of the dress code. Nelson acknowledged that
he was informed of Wright’s activities the day prior to his ter-
mination of Wright. The evidence supports a finding that
Gunter told Nelson of the actions of Wright and the other em-
ployees in the smoking area on November 15. Wright testified
that on two occasions she showed the cell phone pictures to
Coordinator Veronica Walker. On one occasion they were
alone, and on a second occasion they were at the smoking area
in the presence of other employees. Wright testified she had
shown the pictures to Walker and Gunter to show them that the
Respondent was not enforcing the dress code fairly and to mo-
tivate them to go to Nelson to correct this inequity. I credit
Wright’s testimony in this regard, which was unrebutted.
Walker was not called to testify.
Receptionist Crystal Henson testified that “a couple of days”
prior to November 16 Angela Hawkins showed her a picture of
employee Shay Roberts wearing a hat and that Hawkins said,
“Look at what we got.” Wright was not present during this
incident. Henson testified that within “a couple of hours” of
this incident she told Nelson who was her immediate supervi-
sor. Nelson told Henson, “There was no need to say anything
to anybody else,” that he would “handle it.” I credit Henson’s
testimony which was unrebutted. Kathy Gunter also testified
that on November 15 she told Nelson that she and employee,
Christie Ingle were shown the cell phone pictures by Wright,
and that on the morning of November 16 Nelson directed
Gunter that both she and Ingle give him a written statement of
Wright’s conduct. They did so. However, the statements of
Gunter and Ingle differ concerning which employee’s pictures
were taken by Wright. Gunter testified that one of the cell
phone pictures she saw was that of employee T.C. Brooks.
Ingle testified she was not sure that she saw Brooks on the cell
phone picture. Wright testified she did not take any pictures of
Brooks. Gunter’s testimony did not appear as sure as that of
Wright. I credit the testimony of Wright in this regard as the
more reliable. Brooks was not called by Respondent to rebut
Wright’s testimony.
On November 15, at about 2:30 p.m., Nelson called Wright
to his office and, in the presence of Whisnant, asked Wright if
she still had a problem with the hat. Wright responded that she
did not have a problem with the hat but did with being treated
unfairly. Nelson told her he thought that the prior discussion
on October 31 would stay in his office. He asked her why she
had not come back to him if she still had a problem. She told
him she had not come back to him because she had no results
from the prior meeting and noted that she had told him of the
wearing of a hat by David Layell. Nelson acknowledged that
he had said he would look into this. Nelson then told her that
he had heard that she had been talking to employees and taking
pictures of them without permission. Wright shook her head no
and said she had permission. Nelson then called her a liar and
she denied that she was a liar. Nelson then asked her why she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD798
remained as an employee if she was unhappy there. She said
that she had three children to take care of. Nelson then said,
“So you’re going to let a hat come in between the food on your
kids’ table.” He then invited her to contact Respondent’s head-
quarters and she declined to do so. He then told her she could
give him her resignation then or she could think about it and
talk about it later. The meeting was then concluded and she
returned to work. I credit Wright’s testimony which was unre-
butted and find that this constituted unlawful interrogation and
threats issued to Wright.
Nelson testified that on the afternoon of November 16, he
approached employee T. C. Brooks and inquired of him
whether he knew of his picture being taken on the premises and
that Brooks said he was not aware of this. Nelson told Brooks
to inform him or Brook’s supervisor if he heard of anything.
Prior to Nelson’s inquiry, Brooks had not indicated any prob-
lem concerning the taking of pictures. However, on the same
date at about 2 p.m., Brooks filed an employee problem solving
form with Nelson in which Brooks asserted that he had reason
to believe that someone in the facility had taken his picture
without his knowledge and shown it to other employees. No
evidence was offered by the Respondent as to what had
prompted Brooks to file this complaint or where he obtained
the information concerning the details of the complaint. Al-
though Brooks is currently employed by Respondent, he was
not called as a witness by Respondent. Nelson testified that
following the receipt of the complaint from Brooks, he called
Respondent’s senior administrator, Amanda Pack in Charlotte,
North Carolina, and they decided to discharge Wright. The
termination report lists the reason for the termination as, “Steal-
ing or misappropriating (misusing) property belonging to the
facility, residents or other employees. Employee took a picture
of another employee without his/her permission and in turn,
showed it to other employees.” Nelson conceded at the hear-
ing that this referred to a single picture of a single employee
and contended that his sole reason for discharging Wright was,
“because she took a picture of a person named T. C. Brooks
and showed it to other employees.” However, Nelson conceded
that he had never seen the picture of Brooks and Wright testi-
fied that she had never taken a picture of Brooks. Gunter testi-
fied it was Brooks, Ingle testified she was not certain that the
picture shown to her was a picture of Brooks. About 3 p.m. on
November 16, Nelson called Wright into a meeting with him-
self and Terry Fowler and terminated Wright. Angela Hawkins
testified that on November 16 (the day Wright was discharged),
Administrator Nelson called her to his office and said, “Nikki
(Wright) no longer works here,” and “do I need to take your
keys?” She asked Nelson what he was talking about. He asked
her if she knew anything about pictures. She told him she had
taken pictures on Halloween. He asked if she knew anything
about Nikki taking pictures with her cell phone. She said,
“Yes” and told Nelson about the pictures that were taken of
Shay Roberts. Nelson then said, “So you do know something,”
and she said, “No, I don’t. I just know she took the pictures.”
Angela Hawkins testified she thought she was going to be dis-
charged because Respondent takes the employees’ keys when it
discharges employees. The foregoing testimony of Angela
Hawkins’ was unrebutted.
On November 19, Wright prepared an Equal Employment
Opportunity Commission (EEOC) questionnaire and filed it on
November 20. In her statement accompanying the EEOC com-
plaint Wright stated that she had taken pictures to prove that
she had been discriminated against and spoke to others con-
cerning the unfair enforcement of Respondent’s dress code
regulations. Wright filed the National Labor Relations Board
charge in this case on November 28.
I find that the General Counsel has established that the Re-
spondent violated Section 8(a)(1) of the Act, by threats of dis-
charge issued to employees Wright and Angela Hawkins by
Nelson and by his interrogation of these two employees be-
cause of their engagement in protected concerted activities. I
further find, that the General Counsel has established a prima
facie case of a violation of Section 8(a)(1) of the Act by the
termination of Wright because of her engagement in protected
concerted activities under the Act. With respect to the interro-
gation of Wright, I find the evidence as set out above, estab-
lishes that on November 15, Respondent, by Nelson, interro-
gated Wright concerning her engagement in protected con-
certed activities. With respect to the threats issued by Nelson
to Wright on November 15, I find the Respondent, by Nelson,
threatened Wright with discharge. I find that Respondent, by
Nelson, also interrogated and threatened Angela Hawkins with
discharge on November 16, because of her engagement in pro-
tected concerted activities following the discharge of Wright as
set out above.
I find that the above cited testimony of Wright establishes
that she was interrogated concerning her engagement in pro-
tected concerted activities when she was called into Nelson’s
office on November 15, and that Respondent, thereby, violated
Section 8(a)(1) of the Act. I find that Nelson’s inquiry con-
cerning why she was continuing to work there since she was
dissatisfied and the statement that she was coming between her
children’s’ food for a hat, were unlawful threats of discharge
because of her engagement in protected concerted activities and
that Respondent thereby, violated Section 8(a)(1) of the Act. I
further find that the above unrebutted testimony of Angela
Hawkins establishes that she was unlawfully interrogated con-
cerning the taking of the cell phone pictures. Nelson’s inquiry
of Angela Hawkins as to whether he needed to take her keys
was an unlawful threat of discharge as this was the usual proce-
dure followed when someone is terminated according to the
unrebutted testimony of Angela Hawkins. The interrogation
and threat of discharge were in violation of Section 8(a)(1) of
the Act.
I find that Wright was engaged in concerted activities when
she spoke with other employees concerning the disparate en-
forcement of the dress code and when she took pictures, with
the assistance of employee Angela Hawkins, of employees who
were wearing head coverings and who were showing tattoos. I
credit the testimony of Wright that she was raising the issue of
the unfair enforcement of the dress code with her fellow em-
ployees and with three of the managers with the goal of obtain-
ing a united approach to Respondent’s management and par-
ticularly to Nelson who was the highest ranking official at the
nursing home. It may be that Wright’s initial refusal to remove
the hat and her dissatisfaction with the warning given to her for
WHITE OAK MANOR 799
her refusal to remove the hat was an individual gripe. How-
ever, I find that this evolved into a joint action wherein Wright
was protesting the unfair enforcement of the dress code rather
than an individual gripe. Wright told Nelson in the meeting of
October 31 that her complaint was not about the wearing of the
hat but rather was concerned with the unfair enforcement of the
dress code. Moreover, in addition to Wright’s discussion of the
unfairness of the dress code, with other employees she enlisted
Angela Hawkins to join together with her and assist in convinc-
ing employee Shay Roberts to permit Wright to take his pic-
tures showing that he was wearing a hat and showing a tattoo
on his arm. On November 12, Wright returned to work after a
2-½-day absence as a result of a medical problem. The incident
involving Roberts on November 12, occurred after the issuance
of a memorandum on October 30, by Nelson prohibiting the
wearing of any items not listed in the dress code. The dress
code did not permit the wearing of a hat or the showing of tat-
toos. I find that Wright was engaged in concerted activities for
the purpose of mutual aid and protection, when she appealed to
the female employees concerning the unfair enforcement of the
dress code. It is clear that Wright was addressing the perceived
unfair enforcement of the dress code and was seeking to obtain
the support of the female employees to come together and make
their positions known to Respondent’s management and par-
ticularly Nelson, that these employees wanted the Respondent
to remedy the unfair enforcement of the dress code. This con-
stituted a joining together of the employees for their mutual aid
and protection as the wearing of hats and other items outlined
in the dress code would affect terms and conditions of em-
ployment. Eastex Inc. v. NLRB, 437 U.S. 556, 563–568 fn. 17
(1978). These concerted activities of the employees which
Wright sought to promote among the Respondent’s female
employees were protected by Section 7 of the Act. Brown &
Root, Inc. v. NLRB, 634 F.2d 816, 818 (5th Cir. 1981). The
broad protection of Section 7, particularly applies to unorgan-
ized employees (as are involved in the instant case before me)
as these employees do not have any designated bargaining rep-
resentative to speak for them. Washington Aluminum Co., 370
U.S. 9, 14 (1962). I find that Wright’s engagement in con-
certed activities was on behalf of other female employees who
she believed were being adversely affected in their terms and
conditions of employment. Moreover, as noted above, Wright
was joined in her concerted activities by employee Angela
Hawkins who urged employee Shay Roberts to permit Wright
to take his picture and who showed Roberts’ picture to em-
ployee Henson. Meyers Industries, 268 NLRB 493, 497
(1984), remanded sub nom. Prill v. NLRB, 735 F.2d 941 (D.C.
Cir. 1985), on remand Meyers Industries, 281 NLRB 882
(1986), enfd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988). In Holling
Press, Inc., 343 NLRB 301, 302 (2004), the Board held that:
In order for employee conduct to fall within the ambit of Sec-
tion 7, it must be both concerted and engaged in for the pur-
pose of ‘mutual aid or protection.’ These are related but sepa-
rate elements that the General Counsel must establish in order
to show a violation of Section 8(a)(1).
I find that the evidence supports a finding that, Wright was
engaged in concerted activities when she attempted to obtain
support among her fellow employees in order to attain fair en-
forcement of the dress code. I find that she was engaged in a
joint discussion of the unfairness of the dress code, and that it
was implicit, therein, that she was seeking a change in the en-
forcement of the dress code. Angela Hawkins joined together
with Wright to seek change in their working conditions to deter
the unfair enforcement of the dress code. The engagement of
Wright and her fellow employees in the discussions of the dress
code issue and in the taking of pictures of employees deemed in
violation of the dress code was for the employees’ mutual aid
and protection. At the hearing several of the other employees,
such as Wanda Goins, Nancy McKee, Susie Hawkins, and
Crystal Henson, testified that they supported Wright’s position
that the unequal enforcement of the dress code was unfair.
Goins testified that the warning given to Wright was “bull-
crap.” McKee testified that the issuance of the warning to
Wright was unfair as other employees were allowed to show
their tattoos. Susie Hawkins testified she agreed with Wright’s
position that Respondent was not fairly enforcing the dress
code concerning the showing of tattoos, body piercing, long
dangling earrings, and the wearing of hats. Employee Crystal
Henson testified she was with a group of four to five employees
who all agreed with Wright’s position concerning the unfair
enforcement of the dress code, although some disagreed after
Wright left the group.
On November 12, Wright began taking pictures of her fellow
employees with her cell phone in order to demonstrate that a
number of employees were not complying with the dress code
and were wearing items which were prohibited by the revised
dress code of October 30, wherein employees were prohibited
from wearing items that were not listed in the preexisting dress
code. Wright took pictures of her fellow employees to use a
modern technique available to her, by the use of the cell phone,
to document the noncompliance with the dress code by certain
employees. The use of the cell phone pictures were part of
Wright’s overall concerted protected activities as were Wright’s
verbal comments and discussions concerning the dress code,
and were the use of the visual aid by the pictures to demon-
strate the unequal enforcement of the dress code. In Ogihara
America Corp., 347 NLRB 110 (2006), the Board held that the
use of photographs by employees to illustrate their positions
concerning alleged poor work performed by a supervisor were
protected concerted activities of the employees. By the solici-
tation of other employees in conversations about the unfair
enforcement by Respondent of the dress code, Wright was mu-
tually protesting with other employees regarding working con-
ditions and, therefore, she was engaging in protected concerted
activities. Roberts reported to Nelson both verbally on No-
vember 15, and twice in writing that the taking of the two pic-
tures of Roberts on November 12, was a joint effort between
Wright and Angela Hawkins. Nelson admitted that Roberts
told him that Angela Hawkins encouraged him to let Wright
take his picture. It is clear that Wright and Angela Hawkins
were acting in concert to obtain cell phone pictures of Roberts
showing him in violation of the dress code. Angela Hawkins
testified she thought Wright was taking the pictures to show
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD800
Nelson that Respondent’s enforcement of the dress code was
unfair.
Nelson testified that during the afternoon of November 16 he
went to T.C. Brooks and asked if he had posed for any pictures
or heard anything about his pictures being taken in the facility.
Brooks said he did not know anything about his picture being
taken. Nelson then told Brooks that if he heard anything to tell
his supervisor, Maintenance Director Scott, or himself. Nelson
admitted that prior to his inquiring of Brooks, Brooks had no
problem concerning a picture. Nelson testified he then received
an employee solving form from Brooks showing it had been
filled out at 2 p.m. on November 16, and showed the “com-
plaint” had been previously discussed by Brooks with Nelson.
In the section entitled “Nature of Complaint,” Brooks wrote
that he had “reason to believe that someone in the facility has
taken my picture without my knowledge and showing to other
staff in the facility. I feel like that is against my right, and
would like some one to take action about this problems.” The
record in this case is devoid of any information as to where or
how Brooks had allegedly obtained knowledge of his picture
being taken or any details concerning it as Respondent failed to
develop this through its witnesses and Respondent failed to call
Brooks, a current employee, as a witness. Thus, Respondent
has failed to explain why Nelson had approached Brooks about
this matter in the first place and Respondent failed to demon-
strate what the source of Brooks’ knowledge of the details out-
lined in his written statement was. Moreover, it is significant
that immediately after receiving the complaint from Brooks that
Nelson called Senior Administrator Amanda Pack and a deci-
sion was made to terminate Wright, without giving Wright any
opportunity to defend herself, and Nelson then prepared a ter-
mination report for Wright which lists the sole “reason for ter-
mination” as set out in the employee handbook as follows:3
Page 41 #4 Stealing or misappropriating (misusing) prop-
erty belonging to the facility, residents or other employees.
Employee took a picture of another employee without his/her
permission and in turn, showed it to other employees.”
Nelson agreed at the hearing that the sole reason he dis-
charged Wright was “because she took a picture of T. C.
Brooks and showed it to other employees.” Nelson admitted he
never saw the purported picture of Brooks and Wright consis-
tently denied that she ever took a picture of Brooks. As noted
above, Gunter was the only person who identified the picture as
one of Brooks. Ingle, who initially stated that Wright had
shown her a picture of Brooks, conceded in her testimony that
she was not certain that she had seen a picture of Brooks. I
credit Wright’s testimony that she did not take a picture of
Brooks as the more reliable testimony. Nelson filled out the
termination report on November 16, and called Wright to a
meeting with himself and director of nursing Fowler about 3
p.m. which was an hour or less after Brooks had submitted the
employee problem solving form. Nelson told Wright an allega-

3 I find the evidence was not conclusive to establish whether a new
rule entitled “Misuse of Company Property and Internet Postings” had
been disseminated among the employees on or before the date of the
termination of Wright.
tion of her taking pictures of people without their permission
was true and that he and the home office had decided to termi-
nate her. Following this, Nelson proceeded to interrogate An-
gela Hawkins concerning her protected concerted activities and
threatened her with termination because of her protected con-
certed activities.
The unrebutted testimony of the employees and the photo-
graphs introduced at the hearing show that the employees freely
took photographs of other employees engaged in activities to
celebrate various special days and to exhibit photographs of
members of the employees’ families without asking permission
of management to do so. In fact, some of these photographs
were placed on bulletin boards. It appears that the only restric-
tion was that pictures of residents were not to be shown to oth-
ers. Under these circumstances, I find that the showing of cell
phone pictures was not so egregious as to cause Wright and/or
Angela Hawkins to lose the protection of the Act.
Nelson’s receptionist, Chrystal Henson, testified and Nelson
did not deny that no later than November 15 Henson told Nel-
son that Angela Hawkins had shown her a cell phone picture of
Roberts. Nelson’s direction to Henson to let him handle the
matter with respect to Angela Hawkins showing Henson pic-
tures of Roberts and Nelson’s testimony concerning this matter
was designed to prevent the need to discipline Angela Hawkins.
This would have shown evidence of disparate treatment by
which Wright was disciplined but Angela Hawkins was not.
Although Peggy Panther and Terry Fowler testified at the hear-
ing that in the October 30 meeting, Wright did not assert the
unfairness of the dress code and did not make any statement,
this testimony was contradicted by the testimony of Whisnant.
Whisnant testified that at this meeting Wright said it was unfair
that she was required to remove her hat while other employees
were allowed to wear their hats and that Wright told Fowler
that there was nothing in the dress code prohibiting the wearing
of a hat. Whisnant also testified that immediately after Wright
was sent home on October 30, the dress code was revised to say
that if, the wearing of hats or other items was not in the dress
code then it was not to be included. I credit Whisnant’s testi-
mony over that of Nelson, Fowler, and Panther regarding the
above as she is a current employee and she testified in convinc-
ing and unwavering terms notwithstanding her position as a
management employee. I further note that Manager Kathy
Gunter’s initial testimony at the hearing was that she did not
remember what Wright had said when she showed Gunter and
Christie Ingle the cell phone pictures. However, when con-
fronted with her prior testimony in a state unemployment hear-
ing, Gunter testified that Wright was making a statement that
other employees were wearing caps and she could not wear one
and did not understand why. I credit this second version of
Gunter’s testimony.
The employee witnesses presented in the General Counsel’s
case were all current employees with the exception of Wright.
I found the testimony of these witnesses was credible, straight-
forward, and mutually corroborative and consistent with the
documentary evidence. I, likewise, find that the testimony of
Wright was credible with the exception of her testimony that
she had permission to take all of the cell phone pictures that she
took. It is a common occurrence wherein some but not all the
WHITE OAK MANOR 801
testimony of a witness may be credited. I found much of the
testimony of Nelson concerning the reasons for the discharge of
Wright and Nelson’s professed loss of memory as to what had
occurred in his meeting with Wright was not credible. He
claimed not to remember if Wright told him at the time when
he gave her the warning on October 31 that it was not fair that
other employees were allowed to wear hats while she was not
permitted to do so. Nelson’s testimony was contradicted by the
testimony of Assistant Director of Nurses Whisnant who testi-
fied that at this meeting Nelson asked Wright if she still had an
issue with the hat and that Wright told him that he was allowing
other employees to wear hats. Whisnant further testified that
Nelson acknowledged that Wright had told him about this prob-
lem before. Whisnant further testified that Nelson told Wright,
“this is grounds for termination,” and asked Wright that if she
was so unhappy, why she was still working there and that Nel-
son further asked, if she was going to let a hat come between
the food on her children’s table. Furthermore, Nelson wrote on
a problem solving form of Shay Roberts’ that the investigation
did not reveal that pictures of Roberts were shown to other
employees. Nelson affirmed in his testimony that Roberts’
picture was never shown to any employee as far as he knew.
Nelson testified that the sole reason that he discharged
Wright was because she showed a picture of T. C. Brooks
wearing a hat. The taking of cell phone pictures of employees
and the showing of them to others was a protected concerted
activity under the Act and Respondent’s admission at the hear-
ing that it discharged Wright solely because she took and
showed the pictures of T. C. Brooks to other employees, estab-
lishes a violation of Section 8(a)(1) of the Act. Under these
circumstances, General Counsel contends that a dual motive
analysis under Wright Line, 251 NLRB, 1083 (1980), enf. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), is
unnecessary. I find, the General Counsel’s contention in this
regard is correct. However, assuming arguendo that such an
analysis is necessary, I will apply the Wright Line analysis. I
find that the General Counsel has established a prima facie
case. As discussed above, I have found that Wright was en-
gaged in protected concerted activities in the taking of the cell
phone pictures showing disparate enforcement of the dress
code. It is undisputed that the Respondent had knowledge of
Wright’s protected concerted activities in support of her cam-
paign to obtain fair enforcement of the dress code. I find it has
been established that Respondent, through its administra-
tor,Nelson, had animus against Wright because of her engage-
ment in protected concerted activities and took action by dis-
charging Wright. I find a nexus has been established between
the protected activities and the adverse action of discharge un-
derlying motive. The evidence in this case establishes disparate
treatment not only in the enforcement of the dress code but it is
also established by Respondent’s withholding any disciplinary
action against Angela Hawkins’ who showed the picture of
employee Roberts to employee Crystal Henson. I find that the
Respondent has failed to rebut the prima facie case by the pre-
ponderance of the evidence. Winston-Salem Journal, 341
NLRB 124, 133 (2004), enf. denied 394 F.3d 207 (4th Cir.
2005). Under Wright Line if the General Counsel proves by a
preponderance of the evidence that protected concerted activity
was even a partial, motivating factor for the discharge, the bur-
den of proof shifts to Respondent to prove by the preponder-
ance of the evidence that Respondent would have discharged
the employee in the absence of the unlawful motivation.
Guardian Industries Corp., 319 NLRB 542, 549 (1995), apply-
ing Healthcare & Retirement Corp., 306 NLRB 65, 66 (1992).
See Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065
(2007), where the Board stated that under the Wright Line test,
“the General Counsel must prove by a preponderance of the
evidence that union animus was a substantial or motivating
factor in the adverse employment action. The elements com-
monly required to support such a showing are union or pro-
tected activity by the employee, employer knowledge of that
activity, and union animus on the part of the employer.” If the
General Counsel makes the required initial showings, the bur-
den then shifts to the employer, to prove, as an affirmative de-
fense, that it would have taken the same action even in the
absence of the employee’s union activity, citing Manno Elec-
tric, 321 NLRB 278, 280 fn. 12 (1996).
CONCLUSIONS OF LAW
1. Respondent White Oak Manor is an employer within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by the is-
suance of unlawful threats against employees Nichole Wright-
Gore and Angela Hawkins.
3. Respondent violated Section 8(a)(1) of the Act by interro-
gating employees Nichole Wright-Gore and Angela Hawkins.
4. Respondent violated Section 8(a) (1) of the Act by dis-
charging Nichole Wright-Gore because of her engagement in
protected concerted activities under the Act.
5. The aforesaid violations of the Act, in conjunction with
Respondent’s status as an employer, affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in the above
violations of the Act, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative actions
designed to effectuate the policies and purposes of the Act and
post the appropriate notice. It is recommended that Respondent
rescind and expunge from its files the discharge issued to
Nichole Wright-Gore and offer her immediate reinstatement to
her former position or to a substantially equivalent one if her
former position no longer exists. She shall be made whole for
any loss of backpay and benefits sustained as a result of the
Respondent’s unfair labor practices. The backpay amount shall
be computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended4

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD802
ORDER
The Respondent, White Oak Manor, Shelby, North Carolina,
ts officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge because of
their engagement in protected concerted activities for their
mutual aid or protection.
(b) Interrogating its employees concerning their engagement
in protected concerted activities for their mutual aid or protec-
tion.
(c) Discharging its employees because of their engagement
in protected concerted activities for their mutual aid or protec-
tion.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights under
Section 7 of the National Labor Relations Act.
2. Take the following affirmative actions to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order rescind the
discharge of Nichole Wright-Gore and offer her full reinstate-
ment to her former job or, if that job no longer exists, to a sub-
stantially equivalent job without prejudice to her seniority or
any other rights or privileges previously enjoyed, and expunge
from its files the unlawful discharge and inform her in writing
that this has been done.
(b) Make whole Wright for any loss of earnings and other
benefits suffered as a result of the discrimination against her,
with interest.
(c) Preserve and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix”5 at its facility in
Shelby, North Carolina. Copies of the notice, on forms pro-
vided by the Regional Director for Region 11, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 2007.

5 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE 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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten our employees with discharge because
of their engagement in protected concerted activities.
WE WILL NOT interrogate our employees concerning their en-
gagement in protected concerted activities.
WE WILL NOT discharge our employees because of their en-
gagement in protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
under Section 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of the Board’s Order,
rescind the unlawful discharge of Nichole Wright-Gore and
offer her reinstatement to her former job, or, if that job no
longer exists, to a substantially equivalent job, without preju-
dice to her seniority or any other rights or privileges previously
enjoyed.
WE WILL make her whole for any loss of earnings and other
benefits as a result of the discrimination against her, with inter-
est.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
and WE WILL, within 3 days thereafter, notify her in writing that
this has been done and that the unlawful actions will not be
used against her in any way.
WHITE OAK MANOR