Austin Professional Dental Corporation, PC

National Labor Relations Board - Administrative Judge Opinions

Feb 26, 2015

16-CA-111300 (N.L.R.B. Feb. 26, 2015)

JD(SF)–05–15
Austin, Texas
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AUSTIN PROFESSIONAL DENTAL
CORPORATION, P.C.,
Respondent
and Case 16–CA–111300
CHRISTINE FRAZIER -LOMAX
an Individual,
Art A. Laurel, Esq., for the General Counsel.
Mark J. Hanna, Esq. and Jon Michael Smith, Esq.,
for the Respondent.
Jonathan Sandstorm Hill, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried in Austin,
Texas on March 26–27, 2014. Ms. Christine Frazier-Lomax (Charging Party or Frazier) filed the
charge on August 14, 2013,1 and the General Counsel issued the complaint on December 30,
alleging that Respondent Austin Professional Dental Corporation, P.C., (Respondent or
Employer) violated Section 8(a)(1) of the National Labor Relations Act2 (the Act). Respondent
filed a timely answer on January 9, 2014, admitting and denying several of the allegations of the
complaint.
The General Counsel alleges that after Frazier complained repeatedly to other employees
and management about various terms and conditions of employment, she was discharged in
violation of 8(a)(1) of the Act. Respondent, on the other hand, claims it merely issued a written
warning because Frazier told management that it was illegal to require hygienists to clock out
between patients and because she was using the internet for personal use during business hours.
The General Counsel further alleges that Respondent maintained an unlawful rule prohibiting
discussion of wages, and interrogated and threatened employees about their cooperation with the
NLRB in investigating the underlying unfair labor practice charge and testifying at this hearing
in violation of Section 8(a)(1) of the Act. I do not find that Frazier was terminated or suspended

1 All dates are in 2013 unless otherwise indicated.
2 29 U.S.C. Secs. 157 and 158(a)(5) and (1).
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2
on May 10 but I do find that the Respondent violated Section 8(a)(1) by maintaining an unlawful
rule and by unlawfully interrogating and threatening its employees in September 2013, and
March 2014.
The parties have been afforded full opportunity to appear, to introduce relevant evidence, 5
to examine and cross-examine witnesses3, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having considered the posthearing briefs4 of
the parties, I make the following:
FINDINGS OF FACT10
I. JURISDICTION
Respondent is a Texas state corporate dental office with 5 separate locations in and about
Austin and Dallas, Texas, which provide or have provided dental services to the general public. 15
Respondent admitted in its answer to the complaint and I find that it satisfies the Board’s retail
and nonretail jurisdictional standards. Thus I find that Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. Accordingly, this dispute
affects commerce and the Board has jurisdiction of this case pursuant to Section 10(a) of the Act.
20
II. RESPONDENT’S GENERAL BUSINESS ORGANIZATION IN 2013
As stated above, Respondent operated 3 dental locations in Austin, Texas-Family
Dentistry of South Austin (South Office), Round Rock (North Office), and Cedar Park, as well as
2 other locations in Dallas, Texas. Respondent’s business consists of management—the dentists 25
and office managers—and employees consisting of hygienists, dental assistants, and front office
staff. Dental assistants help dentists in procedure with crowns, root canals, and making
impressions.
Jennifer Larned (Larned) is the district or general manager, custodian of records, and 30
chief office manager for all 3 of Respondent’s Austin dental offices. Larned takes care of
anything that pertains to the operations and personnel matters of the dental practice including
termination, transfers, suspensions, and other progressive discipline of Respondents employees.
(Tr. 139, 284, 517.)
35

3 There are many factual disputes in this case. To the extent necessary, credibility resolutions have
been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404,
408 (1962). As to those witnesses testifying in contradiction to the findings here, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence, or
because it was in and of itself incredible and untrustworthy.
4 The General Counsel and Respondent’s counsel filed posthearing briefs. Frazier’s counsel did not.
Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General Counsel’s
exhibit; “R Exh.” for Respondent’s exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for the
Respondent’s brief. Although I have included numerous citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited, but rather are based my review and consideration of the entire record.
JD(SF)–05–15
3
Valerie Tovar (Tovar) is the assistant office manager of the South Office and has worked
at Respondent since April 2011. Tovar reports directly to Larned and handles supervisory duties
delegated to her by Larned. Among other things, Tovar has the authority to discipline employees
and to recommend the hiring or termination of Respondent’s employees. (Tr. 270.) Tovar also
had authority to order employees to clock-out if there is a break in their patient schedule during 5
the workday to run errands. (Tr. 272–273.) In 2013, there was 10–12 people working in the
South Office including at least one dentist, Larned, and Tovar as management, 2 hygienists,
dental assistants, and front office staff. Larned and Tovar issue disciplinary warnings or other
actions to employees jointly in the South Office. (Tr. 282–283.)
10
Rank and file employees also working at the South Office during relevant times to this
proceeding, were Christopher Abeita (Abeita), Joshua Eric Martinez (Martinez) and Frazier.
Abeita has worked for Respondent as a dental assistant since June 30, 2011. Among his other
duties, Abeita was also responsible for ordering Cavitron tips for the South Office.5 A Cavitron
tip is an insert about 2 inches in length with a hook at the end. It is inserted to a pencil-lengthed 15
cylinder instrument used by hygienists to clean patients’ teeth or to perform a scaling root
cleaning and the tip insert is comprised of a hard steel surface that must be frequently disinfected
after every use and occasionally replaced when worn. The tip also has a little opening that allows
water to come out.
20
Martinez worked as a hygienist for over 2.5 years until a week or so before hearing in this
case. Frazier, a licensed hygienist for 16 years at the time of trial had been working at
Respondent for more than 2 years having started in the North Office on April 1, 2011, and
transferred to the South Office at the beginning of April 2013, before her last day of work on
May 10, 2013.6 Martinez and Frazier were the only 2 hygienists working at the South Office in 25
the Spring of 2013.
Abeita keeps track of what supplies are needed and places his monthly orders with
Larned. The supplies can include Cavitron tips as used by hygienists to clean teeth, heavy- and
light- body impression materials, paper towels, gloves, paper masks and safety goggles. 30
Among other things, Martinez and Frazier on at least two or more occasions informed
Abeita that the Cavitron tips they were using as hygienists were worn down and needed
replacement. In response, Abeita alerted both Larned and the Cavitron tips’ buyer, Katie at
Patterson, that Martinez and Frazier requested replacement Cavitron tips. Abeita told Katie to 35

5 Larned denies that Abeita would order Cavitron tips and testified that he does not order them and
that he has nothing to do with them other than maybe get them out to give to the dentist to use. Tr. 184–
185. As explained below, Abeita was a very convincing witness who had the most to lose by his
testimony as a current Respondent employee at the time of hearing and he was not evasive at all during
his testimony. While Larned may technically place the tips orders, Abeita certainly has “something to do”
with ordering tips as he is Respondent’s contact person with Katie, the Cavitron tips manufacturer’s
representative. Larned, on the other hand, was evasive when answering questions from the General
Counsel and there are a number of examples below where I reject Larned’s testimony as not credible and
this is another instance where the weight of the evidence supports Abeita’s version of testimony over
Larned’s.
6 Frazier and Abeita knew each other before Abeita joined Respondent as a dental assistant on June
30, 2011, as Frazier was Abeita’s instructor at Everest Institute. They were friends while both worked at
Respondent and remained friends through the date of hearing.
JD(SF)–05–15
4
talk with Larned and Dr. Caparas about getting new Cavitron tips or replacing the ones used by
hygienists at Respondent if they were still under warranty. Larned responded by telling Abeita
that she would look into it and take care of it. Abeita understood that when he made Larned
aware that Cavitron tips were needed, Larned would email Kellie Gurney, who also worked with
Dr. Caparas, and they would speak with Katie at Patterson to obtain more Cavitron tips. (Tr. 5
114.)
Abeita is supervised and reports to Larned and Tovar at the South Office. Tovar initially
was assistant manager with Larned as manager and district manager for Respondent. The
majority of time Larned either works in her office at the South Office or she does the same work 10
at the North Office.
Hygienists in the South Office use Respondent’s scheduling software on the computers at
work to determine which patients were slotted to them on any given day of work. In addition to
hygienists’ schedule, the software also had a treatment schedule or column for dentists and their 15
assistants to follow. The schedules are subject to change on any given day. Hygienists average
working with 8 to 12 patients a day for teeth cleaning and x-rays. The schedules of dentists and
hygienists are visible on everyone’s computer and the schedules are adjusted throughout each
day by management. (Tr. 483.) As stated above and while not in writing, Respondent’s
employees, including, Frazier, Martinez, and Abeita, and others, are required to clock in and out 20
throughout the workday using the computer at Tovar’s desk near the entrance of the South
Office. They input a personal login code and must clock in and out for lunch or any time.
Respondent, usually through Tovar, asks them to clock out such as when there is more than 30–
45 minutes time open due to patient cancellations most often at the beginning and end of
workdays and in the hour before and hour immediately after lunch. 25
Respondent’s South Office had a high cancellation rate of its patients scheduled for work
with hygienists and assistants. Hygienists arrive at work at 7:45 a.m. and the first patient
scheduled begins at 8 a.m. According to employees, the Respondent’s unwritten policy is that if
a patient cancels their appointment leaving a schedule opening of more than 30–45 minutes and 30
there is nothing productive for them to do at work, the hygienists and/or dental assistants are
required by Respondent to clock-out, be on standby or on-call, run errands, and not get paid until
later in the day when their next patient arrives, if there are more patients scheduled that day.
Respondent’s management says the policy is the same except that the patient gap must be 35
somewhere between 1–1.5 hours and there must not be anything else productive before an
employee is ordered to clock-out. (Tr. 272–280, 328.) Employees are expected to go home early
if their last patient(s) for the day cancel and there are no more patients to fill in a canceled slot.
Therefore, on any given day, Respondents employees did not know what their schedule was and
they might be required to travel 40 or more minutes through traffic into the South Office only to 40
find that a patient had canceled their appointment and the employee was not being paid for
traveling into the office until a new patient arrived, if any. If this occurred later in the day,
employees were sent home early due to patient cancellations. (Tr. 486–487.)
Generally none of the employees liked this uncertain scheduling and both Martinez and 45
Frazier voiced their opinions and complained to Larned and Tovar when Frazier was at the North
Office, when Martinez, Frazier and Abeita would go to lunch in April and early May while
working at the South Office, and during the April 3 lunch meeting discussed below. (Tr. 330–
JD(SF)–05–15
5
331.) Respondent’s hygienists expected to work and get paid from 8 a.m. to 5 p.m. and they also
believed that if there are patient cancellations, an employee should be entitled to do other work-
related productive tasks such as sterilizing or sharpening instruments, cleaning, or patient contact
calls rather than being required to clock-out and be on standby.
5
III. RESPONDENT’S POLICY REGARDING DISCUSSION ABOUT WAGES
Amended complaint paragraphs 6(d) and 7 allege that since about September 2013,
Respondent has maintained the following rule. “Salaries and wages are a private matter.
Conversations between employees regarding this are discouraged in order to prevent unnecessary 10
disputes. Cause for termination will arise if any employee discusses salaries or wages with
anyone other than their manager.” The General Counsel alleges that this rule is unlawful and
violates Section 8(a)(1) of the Act.7 Respondent does not dispute that it maintains this rule.
Employees are given Respondent’s office policies and procedures manual when they are 15
first hired to work at Respondent and they are asked to sign a receipt for the manual. (Tr. 95–97;
GC Exh. 12.) The manual contains information including what the Respondent expects from its
employees. Employees are provided copies of the manual and can ask Respondent’s office
managers, Larned or Tovar, if employees question the manual or want copies of parts of it
printed out at work.20
One specific rule or policy at Respondent since about September 2013, provides the
following rule: “Salaries and wages are a private matter. Conversations between employees
regarding this are discouraged in order to prevent unnecessary disputes. Cause for termination
will arise if any employee discusses salaries or wages with anyone other than their manager.” 25
(Tr. 86–87, 496–497; GC Exh. 12 at p. 5.)(Emphasis in original.)
Wage discussions among employees are considered to be the core of Section 7 rights.
Alternative Energy Applications, 361 NLRB No. 139 (2014); Parexel Int’l, LLC, 356 NLRB No.
82, slip op. at 3 (2011). An employer’s rule which prohibits employees from discussing their 30
compensation is unlawful on its face. Waco, Inc., 273 NLRB 746, 747–748 (1984); DaNite Sign
Co., 356 NLRB No. 124, slip op. at 1 fn. 1 and slip op. at 7 (2011), quoting Freund Baking Co.,
336 NLRB 847 (2001); Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Moreover,
Respondent admits to this Act violation. R. Br. at 15.
35
Based on the foregoing, I find that the Respondent has violated Section 8(a)(1) of the Act
by promulgating and maintaining a policy that explicitly prohibits employees from discussing
their compensation.
40

7 The amended complaint does not allege that any employee at Respondent was disciplined for
violating this unlawful rule. See i.e., Continental Group, Inc., 357 NLRB No. 39, slip op. at 4 (2011).
JD(SF)–05–15
6
IV. FRAZIER’S 3/31/13 TRANSFER TO RESPONDENT’S SOUTH OFFICE LOCATION
After receiving a verbal warning, a written warning, a second written warning8 while
working at the North Office, on or about March 31, Frazier was transferred by Larned from
Respondent’s North Office to its South Office to continue working as a hygienist.95
Occasionally, Respondent’s employees would share lunch together either out of the South
Office or in its break room. Abeita, Martinez, and Frazier would eat together once Frazier arrived
at the South Office. As stated above, occasionally these 3 employees would complain at lunch
about Respondent’s frequent lack of working Cavitron Tips and the clocking-in and clocking-out 10
policy at Respondent. Larned and Tovar were aware that these 3 employees were socializing
over lunch since Frazier came to the South Office and these office managers believed that
Frazier was negatively affecting the work morale of Martinez, Abeita and others.
Also within the first couple of weeks at the South Office, Frazier observed Larned telling 15
Abeita and others to clock-out and go home early. Larned also told Frazier to clock-out early and
run errands or clock-out and stay at work until another patient arrived. (Tr. 400–401.) Frazier
continued to disagree with Respondent’s clocking in-clocking out policy as she viewed herself as
an hourly employee entitled to work a set amount of hours and not free to clock-out and run
errands. Id. 20
V. THE APRIL 3, 2013 LUNCH MEETING BETWEEN RESPONDENT’S STAFF AND MANAGEMENT
From late 2012, though early April 2013, Martinez complained to Larned on multiple
occasions that the Cavitron tips were nonfunctional and needed replacement due to their high 25
volume use with patients. (Tr. 31–32, 177.) By April, there were approximately 5 Cavitron tips
in the South Office and only 2 or 3 were functional. (Tr. 36.) Martinez even recalled
conversations with the Cavitron tips’ buyer, Katie at Patterson, more than once where Katie took
a look at the Cavitron tips and opined to Larned that “these have been done for a long time” and
need to be replaced. (Tr. 36–37.)30
On April 3, a mandatory lunch meeting was called by Respondent’s managers, Larned
and Tovar. (Tr. 286.) Larned provided lunch for the employees attending the meeting. Attending
the meeting were employees, Frazier, Martinez, Abeita, Deanna Alvarado (Alvarado), and
Ashley Stokes (Stokes), with members of Respondent’s management, Larned and Tovar. 35
(Tr. 33.) Tovar demanded that the employees clock-out for the mandatory meeting.

8 Respondent’s progressive disciplinary policy begins with a verbal warning, two written warnings,
and may be followed by a last written warning, a suspension, a final warning and/or a termination.
9 Frazier was not credible when she denied responsibility for her own actions leading to disciplinary
warnings on a number of occasions in 2011-2013. Also in a number of instances, Frazier exaggerated
facts and changed her testimony on cross-examination or re-direct. Frazier did not produce a recorded
conversation of key events from May 10 despite her saying she recorded the same. Also, I further find
that Larned and Frazier had personality conflicts with each other that led to Larned disciplining Frazier
before her transfer to the South Office and later shouting matches on April 3 and May 10. Larned was
credible when she took credit for saving Frazier’s job and transferring Frazier to the South Office in late
March 2013 after incidents involving two other dentists Frazier did not get along with and a fellow
employee who she directed a derogatory term toward.
JD(SF)–05–15
7
(Tr. 32–33, 129.) Frazier and Martinez responded by opining that they should not be required to
clock-out to attend a mandatory office meeting. (Tr. 380.) Stokes responded to this by saying that
because Larned was providing lunch to Respondents’ employees, they should clock-out. Id.
The meeting was a typical monthly lunch meeting called by Larned where she went over 5
areas employees needed improvement and discussed the current state of the office. The meeting
lasted approximately 15–30 minutes and Larned did most of the talking at the office lunch
meeting.10 She spoke about what Respondent and the dentists expected from the staff regarding
professional work conduct, the clocking in and clocking out policy at Respondent, not using
vulgarities or speaking badly of others during worktime, and being productive when in the office. 10
Larned also instructed employees not to steal time from the Respondent or ride the clock
meaning that employees should clock-in soon after their 7:45 a.m. arrival unless they had patient
cancellations, clock-out for lunch, clock-in after lunch, and clock-out promptly after their last
patient of the day. Martinez heard Larned mention what changes she believed were needed to be
more efficient throughout the office. Larned also asked the staff if there were any issues they 15
wanted to raise at the meeting with regard to improving things at Respondent. At first no one
volunteered to add anything to what Larned was talking about.
At the end of the meeting, however, Martinez and Frazier both raised the need for new
Cavitron tips again with Martinez asking Larned first “What about the Cavitron tips we’ve been 20
asking you for?” (Tr. 72, 112, 129, 168, 285–286, 288.) Martinez believed that as a hygienist,
new functioning Cavitron tips were necessary to run an efficient dental office so to improve the
quality of dental work provided to Respondent’s patients.
Abeita and Larned testified that Martinez first raised the issue of needing Cavitron tips 25
when Larned asked if anyone had any questions at the April 3 lunch meeting. Martinez did not
recall this and Frazier at first testified that she was the only employee who spoke up at the
meeting but later said that Martinez mentioned at the meeting that the office did need Cavitron
tips after Larned asked if anyone had questions.
30
Because Abeita and Larned both testified that Martinez spoke first when complaining
about the need for more Cavitron tips and Frazier denies this, a credibility resolution is
warranted. I credit Abeita, who was a strong witness, with a solid recollection and demeanor.
I further credit the testimony of Abeita, as it is consistent with the testimony of Larned on this
point, over the initial testimony of Frazier. 35

10 Larned and Tovar described attendance at the April 3 mandatory lunch meeting as somewhat
haphazard in nature with employees floating in or trickling in and out of the meeting at their leisure which
I reject as untrue as none of the nonmanagement employees described it this way. In addition, I further
find that Tovar testified in a vague and evasive manner and was not credible when she said that
employees who attended the April 3 lunch meeting were not required to clock-out for the meeting where
lunch was served and she was not credible that there was no discussion about clocking in and out at the
meeting. Tovar also was not believable when she testified that Larned did not get as loud as Frazier at the
April 3 lunch meeting as this contradicts the weight of the evidence from Martinez, Frazier, and Abeita.
Also Tovar was the only witness to testify that Larned was in tears from crying due to her encounter with
Frazier at the April 3 lunch meet which I further find non-credible. Tovar on numerous occasions had
only slight recollection of many events during relevant times in 2012 and 2013 which was not credible.
JD(SF)–05–15
8
Frazier then added: “Jen [Larned], are you aware that we only have 5 Cavitron tips and 3
of them are broken, so me and Josh [Martinez] [sic.] are sharing 2 Cavitron tips?” . . . “we’ve
asked for those [Cavitron tips] quite a few times and we haven’t gotten them yet.” (Tr. 111–112,
376, 449.) Martinez believed that Frazier was speaking up to Larned for him and all other
employees who did not have the courage to speak up to Larned and that Frazier was questioning 5
Larned’s authority to improve working conditions for the benefit of patients. (Tr. 35–36, 71–72.)
He further recalled Frazier voicing her opinion to Larned on behalf of the other employees that
Cavitron Tips were needed.
Larned responded to the questions by shifting the conversation to Martinez and asking 10
him where the 10 Cavitron tips were that she had ordered in the past. (Tr. 168, 376.) Martinez
responded to Larned reminding her that she had recently hired a temporary hygienist for a month
and reasoned that maybe the temp broke them because that is the time they started disappearing.
(Tr. 168, 179, 376.) Larned then replied that she would go to the North Office for more Cavitron
tips. (Tr. 377.) 15
Frazier responded adding: “Jen [Larned], I don’t want you to go to the North office and
get that broken stuff and bring it down here.” (Tr. 377.) Next, Larned concluded the meeting, got
agitated and upset, and said to Frazier: “How dare you come here and embarrass me . . . you
have only been here for 3 days and you are starting trouble already.” (Tr. 180–181, 377, 449.) 20
Larned then stood up and said as she was walking out of the meeting in a raised voice that: “This
is not the only office I manage and my plate is pretty full between the 2 offices I take care of and
I am aware that the Cavitron tips are needed and I will try to get them in time.” (Tr. 112–113,
449, 452.)
25
While I find that both Frazier and Larned raised their voices and began arguing about the
request for Cavitron tips, Larned was the first to raise her voice and Abeita convincingly
observed that Larned was the only meeting attendee who got heated or visibly agitated in
response to the renewed request for new Cavitron tips. (Tr. 35–36, 129.)
30
Martinez also observed Assistant Manager Tovar actually rolling her eyes when the
meeting ended and heard her comment that she did not like Frazier because she was always
being outspoken and Tovar further stated that she wished Gina, Frazier’s predecessor as
hygienist, was back working at Respondent in place of Frazier. (Tr. 48.)
35
Larned claimed that the Cavitron tips had already been ordered when the April 3 lunch
meeting took place. (Tr. 168.) None of the other witnesses or documentary evidence, however,
confirm this so I reject this testimony.
Others besides Larned left the lunch meeting but Martinez, Frazier, Abeita and Deanna 40
stayed behind and Martinez asked why Larned was getting so upset as they were just asking for
the Cavitron tips.11

11 Frazier also testified that she did not raise her voice at the April 3 meeting and that after the
meeting concluded and management left, she “high-fived” with Abeita and did a “fist bump” with
Martinez to signify their agreement with Frazier stating at the meeting that the hygienists need Cavitron
tips. (Tr. 379.) I reject this line of testimony as being unsubstantiated by other witnesses and self-serving
to Frazier.
JD(SF)–05–15
9
As the meeting ended, Martinez saw Von Seht, the South Office resident dentist, walking
toward the employee lounge and as Larned left the meeting she made a gesture to Von Seht
putting her index finger and pulling it across her throat saying to him: “I’m done with Christine
[Frazier], I’m done with her.” (Tr. 37–38.) Larned did not recall making such a gesture though 5
she admitted that she usually used this type of gesture to tell somebody to stop doing something
or to have them turn something off like a vacuum cleaner. (Tr. 175–177, 258.)
Because Martinez and Frazier stated that Supervisor Larned made the finger gesture
across her throat to Von Seht saying that she was through with Frazier, and Larned denied or did 10
not recall this exchange, a credibility resolution is necessary. I credit Martinez and Frazier, who
both had a candid and straightforward demeanor over Larned, a less reliable witness, whose
testimony seemed rehearsed. I further credit Martinez and Frazier over Larned as one would
expect that, if true, Von Seht would have corroborated this point for Respondent by his own
testimony but he did not. Lastly, Larned’s demeanor was less than believable; specifically on this 15
point, while adept at cooperatively replying on cross, she sparred and frequently paused on direct
as a section 611 witness.
Respondent’s personnel files contain a 4/3/13 Disciplinary Warning for Insubordination
to Frazier representing a Second Written Warning to her this time for:20
“Christine [Frazier] openly and aggressively argued with me [Larned] in front of all
staff about Cavetron [siq] tips. Christine has been at this location for three days and this
will not be tolerated. There is a way to have a discussion and a way that is [siq.] [it]
becomes offensive not only to myself [Larned] but to the entire staff.” 25
GC Exh. 10. The document also references that Tovar witnessed the meeting where Larned
presented this discipline to Frazier with the next progressive discipline for Frazier being a Last
Written Warning and that Frazier refused to sign the document. Id.
30
Frazier denied ever seeing this disciplinary warning before the hearing. (Tr. 382–383.)
Similarly, Tovar did not talk to Larned about disciplining Frazier due to her conduct at the April
3 lunch meeting and Tovar also did not recall Frazier being disciplined by Respondent at hearing
for her April 3 lunch meeting conduct. (Tr. 292–293.) When Tovar first saw the disciplinary
write-up of Frazier, GC Exh. 10, she did not recall seeing it before. Id. Only after she saw her 35
signature at the bottom of the 4/3/13 Disciplinary Warning did she recognize the signature as
hers but still did not remember the discipline being issued. (Tr. 293.)
Larned testified that she met with Frazier one or 2 days after the April 3 lunch meeting to
present her the 4/3/13 Disciplinary Warning referenced above (GC Exh. 10) but Larned did not 40
recall exactly when the meeting occurred and Larned also did not exactly remember how Frazier
responded to the discipline. (Tr. 172–173.) Given Larned’s testimony along with Tovar
recognizing her signature on the document, I find that the weight of the evidence shows that
Respondent issued the 4/3/13 Disciplinary Warning to Frazier soon after the April 3 lunch
meeting as Frazier was not credible when she testified that she never saw the warning before. 45
On May 2, Frazier approached Larned about using leave for half a day to attend a
doctor’s appointment for a medical issue that had arisen in connection with a positive
JD(SF)–05–15
10
mammogram and Frazier’s need for a resulting ultrasound test. Larned responded to Frazier by
saying: “I’m not giving you any time off. You embarrassed me.” (Tr. 381–382, 452–458; R. Exh.
6.)
VI. LARNED’S WARNINGS LEADING UP TO MAY 10 SHOWDOWN WITH FRAZIER
5
From April 3, through May 10, Abeita, Martinez, and Frazier continued to go to lunch
together and Larned observed them leave the South Office for lunch. (Tr. 383–384.). Sometime
in early May 2013, Larned pulled Abeita to the side in her office and advised him that his
attitude had gone a little to the wayside meaning that Larned thought that his attitude towards
other coworkers and work in general had been lacking and that Larned did not like his attitude 10
and she told him she knew that his attitude could improve. Moreover, Larned warned that Abeita
would go down with Frazier. (Tr. 126, 183–186.)
Larned denies saying that Abeita would go down with Frazier. As before, I reject
Larned’s denial of this statement and credit Abeita’s version of facts from his attitude meeting 15
over Larned’s because he was a much more trustworthy witness than Larned, his demeanor was
persuasive and convincing showing nervousness one would expect from testifying at hearing
possibly saying things that could adversely affect his employment yet he did not hesitate, look at
a lawyer for answers, or be evasive as Larned had from time-to-time at hearing.
20
Tovar also complained that once Frazier arrived at the South Office, Abeita, and
Martinez, who would usually lunch with Tovar and the other front desk staff, stopped inviting
Tovar and the staff to lunch and Tovar and Respondent’s employees were no longer a “big
family” in her mind until Frazier stopped working at Respondent and things returned to the “big
family” way it was before Frazier arrived at the South Office. (Tr. 342–343.) Tovar also opined 25
that Abeita’s work attitude changed when Frazier arrived at the South Office and he stopped
being “goofy” with the staff and patients at work but that he returned to being “a big goofy
person” after Frazier stopped working at Respondent. Id.
Martinez also spoke with conviction of a similar conversation he had with Larned just 30
prior to going to lunch with Frazier in early May. Larned told Martinez: “I don’t like her
[Frazier] – you guys socializing, she’s changing your alls’ attitude and she’s [Frazier’s] a
cancer.” (Tr. 31.)
By May 10, Frazier and other employees had been requested on multiple occasions by 35
Respondent to clock-out when they had an open block between patients. (Tr. 442–443.)
At the end of the workday on Thursday, May 9, Frazier checked her schedule for the
following Friday and found it fully scheduled for the times 8 a.m. – noon and that she was
scheduled to work a half-day Friday. (Tr. 458–459.)40
VII. MAY 10 SHOWDOWN BETWEEN LARNED AND FRAZIER
A. Facts
Also in the morning of May 10, Von Seht testified that he walked by Frazier’s operatory 45
and noticed that she did not have a patient and that she was sitting at her computer with her
cellphone on her desk. (Tr. 509–510.) Von Seht wondered what Frazier was doing and looked
JD(SF)–05–15
11
into her schedule on his computer and noticed that she did not have her next patient for 2 hours.
(Tr. 510.) Von Seht says that one of his job duties is to police employees and make sure they are
working so he notified Tovar to see if she could find something for Frazier to do or force her to
clock-out and come back later. Id.
5
Tovar went into Frazier’s operatory and told her to clock-out but Frazier refused to do so.
(Tr. 511.) Tovar then reported this back to Von Seht. Id. Von Seht then asked Larned to take care
of things with Frazier and he says he knew what to expect next. (Tr. 511.) Von Seht said he
avoids confrontation and preferred that Larned diffuse the situation and address Frazier’s refusal
to clock-out when demanded by Tovar. Id. Von Seht does this so that personnel conflict does not 10
make his hands shake which would have a negative effect on his dental practice. (Tr. 511–512,
516–517.)
A second version of these same events was told by Tovar who testified that someone had
brought in breakfast tacos to work the morning of May 10, and that by 9 a.m., Von Seht had 15
noticed that Frazier had 2 or 3 cancellations to her schedule leaving her a gap of 1–1.5 hours
until her 11 a.m. appointment. (Tr. 293–294.) Von Seht asked Tovar to ask Frazier if she could
clock out to go run some errands. Id.
Tovar went to the back break room where Frazier was eating a breakfast taco. Tovar 20
approaches Frazier and says: “Dr. V[on Seht] wanted me to see if you could possibly clock out
and go run some errands since there is a big gap on your schedule.”12 (Tr. 294, 326–327, 331–
332.) Tovar said that Frazier replied: “I don’t clock out.” Id. Tovar proceeded to report this to
Von Seht who told Tovar that he would take it from there and Tovar returned to her front desk.
(Tr. 295, 327, 332.) Soon thereafter, Larned arrived at work and Tovar informed her as to what 25
had happened that morning between Tovar, Von Seht, and Frazier. (Tr. 188–189, 296.)
Frazier’s version of the same events that morning of May 10, involved Von Seht asking
Tovar to address Frazier when Frazier’s 9 am appointment canceled and she experienced a 22-
minute gap in her schedule before her next appointment at 10 a.m. as Frazier’s 8 o’clock patient 30
arrived late at 8:20 a.m. and her treatment spilled over past 9 a.m. to approximately 9:20 a.m.
Tovar approached Frazier and told her that she needed to get off the clock. (Tr. 388–461–462.)
Tovar did not offer to find some other office jobs for Frazier to do in the interim. At the time,
Frazier was on her way to the sterilization station or on her way out of it when Tovar approached
her in the hallway. Tovar asked Frazier to clock-out due to the 22-minute gap in her schedule and 35
Frazier responded and said:
"What are you talking about get off the clock?" Tovar answered: "You had a
cancellation at 9:00." And Frazier responded: "Yeah, but the first patient came late, so
I just finished. And I’m sterilizing -- I’m sterilizing instruments. I still have to clean my 40
room. I need to make notes and set up for the next patient." Tovar responded to this by
saying: “I don’t care. Get off the clock.” Frazier responded: “I’m working. And, by the
way, I think that’s illegal. You know, the Department of Labor has this rule and it states
that what I do is called Engaged to Wait or Waiting to Be Engaged. I have it on my

12 On cross-examination by Respondent’s lawyer’s leading question, Tovar changed her testimony
and added that she gave Frazier the option of “doing other work” that morning rather than simply asking
Frazier to clock-out and run errands. Tr. 329–330. I find this new changed testimony to be fabricated and
noncredible and the inappropriate result of a leading question.
JD(SF)–05–15
12
computer. I can show you." Tovar responded: "I don’t know that and I don’t want to
see it. You need to clock out."
(Tr. 391–393; GC Exh. 13.) Tovar appeared irritated and annoyed by Frazier’s refusal to clock-
out and spoke in a rude tone of voice in response to Frazier. Tovar told Frazier that she would 5
report Frazier’s refusal to clock-out to Larned. (Tr. 391–394, 461–463.)
Sometime around 10 a.m., Larned approached Frazier in the hall after hearing from Tovar
that Frazier had been disrespectful to Tovar and had refused to clock-out and been idle eating
and surfing the internet for 30 minutes. (Tr. 189–191.) Larned instructed Frazier that whenever 10
she is asked to do something by a supervisor, either Von Seht or Tovar, Frazier needed to make
sure it got done. (Tr. 189.) Frazier responded to Larned by telling her that it was illegal to ask
employees to clock-out and took her to her operatory to show her on her computer the
Department of Labor Worksheet #22. (Tr. 191; GC Exh. 13.) Larned and Frazier also discussed
Respondent’s internet policy that prevents employees from using the internet while working on 15
the clock. (Tr. 191. ) Larned also told Frazier that she was getting her a patient and that she was
not going to look on Frazier’s computer. Id. Larned then returned to her office and looked up
Worksheet #22 on her own to determine the legality of forced clock-outs. (Tr. 191–194; GC Exh.
13.) Larned sent a patient to Frazier later that morning. (Tr. 200.) Because Larned sent over a
patient to keep Frazier busy around 10 am on May 10, I find that Von Seht’s and Tovar’s version 20
of Frazier time gap being 1.5–2 hours due to canceled appointments at 9 and 10 am is more
credible than Frazier saying her time gap was only 22 minutes that morning.
Later that same morning on May 10, Martinez was in his operatory when he overheard an
argument between Larned and Frazier outside Frazier’s operatory before Larned started arguing 25
with Martinez too. Larned was trying to tell Frazier things of some sorts such as: “If you don’t
like it [here], there’s always the door, you could always leave if you don’t like how things are
run here.” (Tr. 41–42.) Martinez opined that on multiple occasions dating back before April
2013, Larned would make this same response when he and Frazier complained about the
inefficient scheduling policy, the mandatory clocking-out policy, or other things about their work 30
conditions. (Tr. 82.)
Martinez, like Frazier, was also scheduled to work from 8 a.m. to noon on May 10. As it
turns out, Martinez had a gap in his schedule at Respondent due to his 10 a.m. patient Derrick
Choppa’s cancellation and, as a result, Martinez expected to clock out early that day at 10:30 35
based on Respondent’s requirement that employees clock out when they have gaps of 30–45
minutes or more and Choppa was not there by 10:30.
Instead of clocking out and leaving earlier than scheduled, Martinez learned that
Respondent management substituted patient Jessica Burke into the same 10:30 a.m. slot as
Choppa for treatment and Martinez then believed he would be done for the day after treating the 40
substituted Burke. As Martinez attempts to clock out after he finishes with Burke at 11:30,
Larned pulls him back to treat patient Leo Kaplan from 11:30 am to 1 p.m.
Martinez became upset about the sudden add-on of Kaplan to his schedule at 11:30 a.m.
when the day before his schedule showed he had no patients after 11 a.m. The inconsistent and
unreliable scheduling upset Martinez because schedules at Respondent are almost always 45
inconsistent and he questioned Larned and complained of the inconsistent scheduling work.
JD(SF)–05–15
13
Larned, in response, became upset with Martinez and said that if he did not like it, he could
always walk out the door and look for another job somewhere else. (Tr. 56–69, 80.)
Frazier recalled the afternoon events of May 10 beginning with her finishing treatment of
her last patient at approximately 1 p.m. She cleaned her operatory and proceeded toward
checking her Monday appointment schedule and clocking out when Larned approached her to 5
come into her office before clocking out. Frazier says she pressed voice record on her cellphone
so she could record the conversation with Larned because Frazier was “tired of the way she
[Larned] talks to me [Frazier], cursing, unprofessional, and then I [Frazier] never have any proof,
so I [Frazier] was going to make sure this one [conversation] gets to [Respondent’s] corporate
office.” 13(Tr. 403–404.) 10
The 15-minute meeting took place in Larned’s office behind closed doors with Larned
seated behind her desk, Frazier seated across from her by the window and Tovar standing next to
Larned’s desk near the door. Larned next asks Frazier why she is on her cellphone while still on
the clock? Frazier responds saying she is checking her emails. Tovar soon joins the meeting and
it is the three of them—Larned, Frazier, and Tovar. Tovar observes Frazier texting someone 15
while Larned is discussing why they were meeting in her office.
Larned began the meeting referencing Tovar’s report that Frazier had refused to clock-out
earlier that day when instructed to do so by Tovar. Larned went on to repeat that if Von Seht,
Tovar, or she ask Frazier to clock-out, she should do so without discussion or nasty or negative
attitude and further says that Frazier is not a team player, she is a poison and cancer at the office 20
and further told Frazier that Frazier’s behavior is affecting the rest of the staff at the South Office
and bringing the morale of the team down. (Tr. 186–187, 333, 404–405, 410.) Tovar confirmed
that Larned called Frazier “a poison” but could not remember if she also called Frazier a cancer.
(Tr. 303–304.)
Next at the meeting, Larned then says that she is writing Frazier up and presents Frazier a 25
written disciplinary warning notice dated May 10, 2013, for “Insubordinations and over all
attitude.” (GC Exh. 17.) Larned also tells Frazier that she wants Frazier to take the write-up and
“sign it right now.” (Tr. 410.) The document explains:
“When Dr. V or Valerie [Tovar] ask you [Frazier] to do something, it is not up for
discussion. You [Frazier] stated that it is illegal for us to ask you to get off the clock, it 30
is not illegal for us to ask you to get off the clock during down time. It is in the hb
[handbook] re internet use during business hours, [siq.] It is not appropriate to use the
internet for personal use during business hours. Your attitude toward your coworkers is
[siq.]”
GC Exh. 17. The document is unsigned and is also marked as a second written warning in 35
Respondent’s progressive discipline program with the proposed future action being termination.
There is no discussion portion written in nor is there a section dated 5/13/15 on the document
presented to Frazier as confirmed by Tovar. (Tr. 298–299, 306; compare GC Exh. 17 with
GC Exh. 11.)

13 Frazier did not offer any cellphone recording at hearing claiming she forgot to email a copy to
herself and that her cellphone broke down at some point approximately a month later in June 2013, and
she lost the recording along with her contacts, photos, etc. Tr. 420, 479. I find it unbelievable that such a
key piece of evidence would be lost or destroyed if it actually existed. As result, I do not find it credible
that Frazier actually recorded the May 10 conversation between Larned and Frazier with her cellphone.
JD(SF)–05–15
14
Frazier refused to sign the May 10 disciplinary warning referenced above because it was
incomplete and contained a fragmented sentence. In addition, Frazier refused to sign it because
she believed it was inaccurate as she was not surfing on the internet. Frazier also explained that
Larned believed that the Respondent’s handbook provided that an employee was suppose to
clock-out when directed by a supervisor and had no patient within 30–45 minutes away. Frazier 5
responded that it is illegal for Respondent to force her to clock-out at times and that the
Department of Labor has a regulation that says an employee is not required to clock-out and
remains getting paid on the clock if the employee is engaged to wait or waiting to engage at
work. (Tr. 209, 410–412; GC Exh. 13.) Larned had the worksheet on her computer screen in her
office and responded by trying to explain to Frazier the difference between “engaged to wait” 10
and “waiting to be engaged.” (Tr. 201; GC Exh. 13.)
Next, Larned responds to Frazier by saying that Larned was not going to accept any of
Frazier’s 3-page rebuttals to the discipline. At that point, Frazier tells Larned that she is going to
take the unsigned and incomplete disciplinary warning with her and that she is not obligated to
sign it at that very moment. (Tr. 412.) She concludes by telling Larned in front of Tovar that she 15
was going to consult with an attorney and started to walk toward the door in Larned’s office.
(Tr. 300, 412.)
When Frazier attempted to open the door to leave the office with the document, Tovar
briefly blocked Frazier’s attempt to leave. Frazier next grabbed the knob and said to Tovar:
“Excuse me” and proceeded to leave the office with Larned standing in the hallway and Frazier 20
repeated that she was taking the unsigned disciplinary warning with her and was going to consult
a lawyer and “see what they think about clocking in and out.” (Tr. 300, 412.)
Larned responded to this by calling Frazier an “idiot” and then backtracked when Frazier
asked her if she really did call her an idiot and Larned changed her response to: “It’s idiotic” and
the two argued back and forth several times whether Larned had used the term idiot or idiotic 25
addressed to Frazier taking the disciplinary warning to a lawyer to consult about Respondent’s
clocking in and out policy. (Tr. 204, 412–413.) Larned and Tovar confirmed that Larned
referred to Frazier’s attitude as “idiotic” but Tovar had no memory of Larned calling Frazier an
“idiot” or that her behavior was “idiotic.” (Tr. 304.)
Frazier continues to walk to the front desk to clock-out and tells Larned that she is 30
leaving. Larned responds as the two women are walking together toward the front desk by
screaming to Frazier that she is sick of her, “sick of this” and that “you’re fired.”14 (Tr. 413.)
Larned denied telling Frazier that she was fired or terminated. (Tr. 209–210, 230.) Larned
directed her response to Frazier in the presence of only Tovar as the 3 women walked in the
South Office hallway to the front desk. Id. Frazier thinks that others at the front desk must have 35
heard Larned screaming at this time despite the fact that the 3 were not in sight of the front desk
at the time as Von Seht’s office door was open and the front desk was just steps away. (Tr. 414,
473–475.)
When Larned and Frazier reached the front desk area, Larned was telling Frazier to “get
out of here, you get out.” (Tr. 415.) Larned admits that she told Frazier to leave that afternoon 40
but did not remember that she told Frazier also to “get out.” (Tr. 207.) Larned said that at the

14 Later on cross-examination, Frazier changes her testimony and says that Larned screamed “You’re
fired” four or five times between her office and the end of the hallway. Tr. 473. I also find this newer
testimony noncredible and unsupported by any other evidence.
JD(SF)–05–15
15
time she intended to make sure that Frazier left the office because “she was bubbling over.” Id.
Frazier responded:
“you know, I’m just not going to deal with this anymore, your insults. I’m not going to
argue with you. You call me an idiot, I’m not an idiot. You’re [Larned is]
unprofessional, I’m not going to argue with you and I said to [LaTonya sitting at the 5
front desk near the clock out computer] will you excuse me so I can clock out?”
(Tr. 415.)
Frazier proceeded to clock-out and at that time Larned appeared to calm down and asked
Frazier if she could have the disciplinary warning document back from Frazier and that she
wanted to make a copy of it. Frazier responded: “Oh, you didn’t make a copy ? Too bad,” (Tr. 10
415, 204.) In response, Larned tried to snatch the paper from Frazier. (Tr. 415–416.)
At about the same time in early afternoon on May 10, Abeita overheard portions of the
argument between Frazier and Larned while he was working in the South Office with Frazier on
her last day of work at Respondent. In the operatory approximately 15–20 feet away, he
overheard, but could not actually see, Frazier and Larned arguing over a piece of paper of some 15
sorts. According to Abeita, Larned was asking Frazier to return the piece of paper to her and the
two women were speaking loudly and fighting over who should retain the paper. Abeita heard
them at the loudest parts of their disagreement with Larned saying to Frazier: “Give me the
paper;” “Stop talking to me that way;” and “If you are going to continue this way, get out or I’ll
suspend you.” (Tr. 120–121, 203–204, 476.) This statement once or twice was the last thing that 20
Abeita heard between the 2 women on May 10, 2013. Tovar also testified to both Larned and
Frazier elevating their voices and similar utterances attributed to Larned telling Frazier that if she
continued with her disrespectful attitude and did not leave the office, Larned would suspend
her.15 (Tr. 303, 305.)
Stokes, working at the front desk, testified that she heard when Frazier and Larned came 25
around the corner to her front desk in the early afternoon of May 10, and heard Larned warn
Frazier that if she did not calm down that she would have to suspend her. (Tr. 502.) Stokes
further testified that Larned was asking Frazier to wait to talk to her and Frazier was clocking out
and waved her finger at Larned and walked around her to leave the office. (Id.)
Stokes also testified that she was not given any indication that Frazier would not return to 30
work on Monday, May 13th, and that Stokes was aware that Frazier had patients scheduled to
treat on the following Monday morning, May 13, and that she did not become aware that Frazier
did not show up for work until she arrived at the office at 9 a.m. on Monday, the 13th. (Tr. 503,
505.)
Von Seht gave conflicting testimony about what he heard and observed the afternoon of 35
May 10, when he overheard Larned and Frazier arguing outside his open office door. (Tr. 511–
512, 515.) Von Seht describes both Larned and Frazier as having a “pretty heated exchange” and
raising their voices in argument as he listened. He heard Larned telling Frazier that she was
insubordinate and Frazier responding that Larned should quit calling her that. Von Seht said the
argument went back and forth and then Frazier just walked out. Id. Tovar described Von Seht as 40

15 Later on cross-examination by Respondent’s lawyer, Tovar could no longer remember anything
said between the 2 arguing women though somehow she was certain that Larned did not say to Frazier
that she was fired or terminated. Tr. 334–335. This changed testimony is not credible.
JD(SF)–05–15
16
having a “really funny” . . . “blank stare” look on his face, appearing confused as to what was
going on when the group of 3 walked past his office. (Tr. 334.)
Von Seht denied hearing Larned telling Frazier that she is terminated but immediately
after Frazier left the office on May 10, Von Seht was concerned whether Frazier would return to
work on Monday, May 13, and asked Larned: 5
“[I]s she [Frazier] going to come back on Monday? You know because – you know, it’s
also my [Von Seht’s] job to make sure that … I don’t want to have patients who are
unhappy…. So they come in expecting a -- you know, their teeth to be cleaned and if
there’s no one [Frazier, as hygienist,] there to do it [x-ray and clean teeth], you know, a
lot of times they’ll complain to me [Von Seht]. You know, they’ll – I’ll hear it.” 10
(Tr. 212, 511–512, 515.) Von Seht further explained that he has kind of a sixth sense about when
people might not show up for work based on Von Seht having worked with enough people to
know when a no-show employee is expected. Id.
According to Von Seht, Larned responded: “[O]h yea, she’ll [Frazier will] come back”
and Larned tried to assure Von Seht that Frazier would be back in the office on Monday, May 15
13. (Tr. 512.) Larned claims she responded by telling Von Seht that Frazier will be back on
Monday because she needs this job due to her having 2 young children and Larned also told him
that she did not fire Frazier. (Tr. 212.)
Who said what to whom the afternoon of May 10, remains unclear to me particularly
given the large number of noncredible statements attributed to Larned, Tovar, Frazier, and Von 20
Seht leading up to May 10. Frazier is the only witness who allegedly heard Larned tell her she
was fired. Frazier attempts to use her unemployment benefits claim and text messages from May
10, as further proof that she was terminated when they are simply self-serving and unsupported
by any independent evidence. Larned, Tovar, Abeita, and Stokes did not hesitate when recalling
that Larned told Frazier that if she did not calm down and get out, she would suspend Frazier for 25
her conduct on May 10.
In sum, I find that Larned and others heard Larned tell Frazier that if she did not leave the
office on May 10, (when Frazier was fully prepared to clock-out and leave as her day had ended
on its own with no more patients to see as she expected per the schedule) due to the argument
that had accelerated to louder talk between Larned and Frazier, Larned told Frazier she would 30
consider suspending Frazier. At no time did Larned say that Frazier was fired or terminated or
suspended. Because Frazier promptly left after Larned mentioned potential suspension if Frazier
stayed and continued the fight before patients and other staff at the office, Frazier could not
reasonably believe that she was suspended or fired on May 10. The General Counsel contends
Frazier’s testimony was inherently credible, while Larned, Abeita, Tovar and Stokes’ testimonies 35
were inherently less probable. As stated in other parts of this decision, I credit Abeita, who was
actually present on May 10, and testified consistently with other Respondent employees and
management, had a candid and straightforward demeanor over Frazier, a less reliable witness,
whose testimony seemed much less believable. Thus I find that Frazier was not terminated or
suspended on May 10. 40
After leaving the South Office on May 10, Frazier texted one person and then called the
Texas Workforce Commission at 1:06 p.m. to ask if it was legal for an employer to ask
employees to clock-in and clock-out. (Tr. 416–417, 478; GC Exh. 18; R. Exh. 7 at p. 1.) At the
same time while on the telephone and questioning Frazier about her situation, Frazier filed a
JD(SF)–05–15
17
claim with the commission for unemployment benefits based on her firing on May 10, almost
directly after leaving the South Office that day.16 (Tr. 416.) Sometime after May 10, Frazier
spoke to someone at the Workforce Commission and they read to Frazier a statement they took
as to what Larned had told them about events on May 10, and Frazier was allowed to respond to
Larned’s statement denying most of her statements. (Tr. 483; R. Exh. 7 at p. 4.) 5
Approximately an hour after Frazier left the South Office on May 10, at 2 p.m., she
texted Martinez who had worked earlier that day but had already left the office. Martinez
immediately called Frazier and the two spoke for about an hour over the telephone. Frazier told
Martinez that Larned had fired her. Martinez opined that Frazier sounded sad when she
recounted to him being terminated by Larned earlier in the afternoon. (Tr. 73.) She also told him 10
about the meeting between the two in Larned’s office where Larned was trying to write-up
Frazier and Frazier told Martinez that she did not agree with a number of things contained in
Larned’s written write-up. Frazier told Martinez that, as a result, she did not sign Larned’s write-
up and that the two went back and forth in their conversation until Larned told Frazier that she
was terminated from Respondent. (Tr. 38–39.) 15
On Monday, May 13, Larned telephoned Frazier after 8 a.m. when she was not at work
and according to Frazier said: “Hi darling, how are you, are you coming to work?” (Tr. 418–
419.) Frazier responded: “What are you bipolar, you fired me on Friday.” (Tr. 419.) Larned then
responded that she did not fire Frazier on Friday and asked again if Frazier was coming into the
office to work. Frazier responded that she was going to a doctor’s appointment and repeated that 20
Larned had already fired her on Friday. Id. Once again, Larned in response denied firing Frazier
on May 10, but added that: “But now you’re really fired because you did a ‘no call no show’ so
now you’re really fired.” Id. Frazier concluded the call by saying ok, “I’m fired” and she hung
up the telephone. Id. Larned admitted that she eventually characterized Frazier’s conduct of not
coming into work on May 13 as Frazier being a “no call no show.” (Tr. 229.)25
Larned testified that she called Frazier on May 13, a little after 8 a.m. and asked her
where she was at and whether she was coming into the office. Frazier responded to Larned, “you
fired me on Friday.” Larned responded: “No Christine, I did not fire you on Friday” and asked
whether she was coming in. Frazier responded: “No,” (Tr. 219–222.) Larned further testified that
2 seconds later, Frazier texted her: “What I [Frazier] was doing with my [cell]phone on Friday 30
was recording you [Larned] firing me[Frazier].” (Tr. 223.) Larned responded: “Okay.” Id.
Once again there is conflicted testimony from Frazier and Larned as to who said what in
their telephone conversation the morning of May 13. For the reasons set forth above, I credit
Larned’s version of what was said as being true and accurate over Frazier’s version based on
Frazier’s history of exaggerating facts for her own benefit.17 35

16 Frazier lost her unemployment benefits case and appeal claiming that Larned, Tovar, and Stokes
lied about the May 10, facts and because she was evicted from her residence, she did not receive the
appeal package from the commission in a timely manner and did not attend the subsequent telephone
appeal hearing. (Tr. 420–421.) Frazier, however, did not deny making any of the statements attributed to
her in communications with the Texas Workforce Commission nor did she directly dispute statements
attributed to Larned with the commission other than maintain that she was terminated on May 10.
R. Exh. 7.
17 As I indicate in this decision, there are other portions of Larned’s testimony which I do not find to
be credible. It is well recognized that it is not unusual for a judge to believe some, but not all, of the
testimony of a witness.
JD(SF)–05–15
18
The additional 2 sections were added to the May 10, 2013 disciplinary notice warning to
Frazier on or after May 13, 2013, by Larned and Tovar thinks that she reviewed the entire
warning with all 3 sections but Tovar could not recall the purpose of seeing it. (Tr. 208, 306–
307; GC Exh. 11.) The middle section says that on May 10 Larned “demanded her [Frazier] to
leave the office due to her behavior” because Larned believed that both she and Frazier needed to 5
cool down as Larned admitted she was very upset at the time. (Tr. 208, GC Exh. 11.)
Sometime after Frazier’s last day working at Respondent, Larned called Martinez into her
office and Larned appeared to Martinez to boast about the fact that Frazier was gone from the
office. (Tr. 48–49.) Larned further admitted to Martinez that she was glad that Frazier was gone
from the office because Frazier was a cancer around the office and Martinez and Abeita’s 10
attitudes had started to change with their acquaintance with Frazier when she transferred to the
South Office and this attitude change was beginning to negatively change the entire office
according to Larned. (Tr. 48–49, 79.)
On May 17, Frazier had a Facebook conversation with a former employee at Respondent,
Jill Wharam, and Frazier wrote: “Jennifer [Larned] fired me last Friday because I wouldn’t 15
clockout in between patients, then called on Monday and was like come to work I didn’t fire
you.. that bitch is bi-polar. I’m surprised I lasted this long .. I went and filed with unemployment
that same day and you know what that bitch is trying to dispute it! …..Karazee!!!” (Tr. 423;
GC Exh. 14.)
In July, Abeita contacted Frazier to inquire how things were going and in July Frazier 20
communicated to Abeita through a text that she was doing fine and had gotten another job but he
also understood the text to say that she had been fired by Respondent and that Frazier did not
quit. (Tr. 118–119, 122–123, 422; GC Exh. 15.) The text from Frazier to Abeita specifically
says: “… you know I [Frazier] had a telephone hearing yesterday with unemployment and Jen
[Larned], Ashley [Stokes], and Valerie [Tovar] lied [under] oath [and] said I quit”. (GC Exh. 15.) 25
Larned and Tovar issued Abeita a first step disciplinary warning in the summer 2013, for
his untimely work assignments apparently connected with processing crowns, bridges, and other
things needing to go to the lab with dentist signed lab slips. (Tr. 350–352.)
Also some time after May 10, Martinez texted Frazier to thank her for standing up for the
South Office employees to Larned before Frazier left the South Office. (Tr. 39–40; GC Exh. 19.) 30
Frazier responds to Martinez saying that she was tired of Larned and her bullshit. Id.
In August 2013, Frazier sent a Facebook text to Stephanie Castelo, a receptionist for
Respondent at its North Office with Frazier writing in response as to whether she was still
working at Respondent: “No Jennifer [Larned] fired me then lied and told corporate
[Respondent] I quit.” (Tr. 424–415; GC Exh. 16.) 35
Larned asked Respondent employees to be witnesses for Respondent in the Texas
Workforce Commission proceedings before September 2013, and Tovar, Stokes, and Larned all
testified against Frazier at the proceeding won by the Respondent as the commission determined
that Frazier quit her job with Respondent rather than having been fired or terminated. (Tr. 321–
325; R. Exh.7.)40
Larned admitted that Martinez had given her notice in August 2013, that he had been
contacted by the NLRB about an investigation they were conducting of Respondent in relation to
a charge filed by Frazier. Martinez also told Larned that the NLRB was contacting Abeita too
JD(SF)–05–15
19
and Martinez also told Larned that he did not want to get involved in the investigation. (Tr. 230–
233.)
B. Analysis
In the matter before me, I find that the General Counsel has not made a prima facie
showing that Frazier was terminated by Respondent on or about May 10, 2013. Thus I find that 5
the General Counsel has failed to make a prima facie case of discharge. The amended complaint
paragraphs 6(a)–(c), and paragraphs 7–9, allege that on about May 10, 2013, Respondent
terminated Frazier because Frazier engaged in protected concerted activities regarding wages,
hours and working conditions of Respondent’s employees through Frazier’s specific complaints
and this conduct violates Section 8(a)(1) of the Act. There is no dispute that Frazier concertedly 10
complained to management and others about Respondent’s policy of requiring hygienists to
clock-out between patients. Similarly, Frazier and other employees complained about needing
more Cavitron tips and there is no doubt about management’s animus to this complaint.
Here, as stated above, I find that the alleged adverse employment action, Frazier’s
purported May 10 employment termination by the Respondent, has not been proven by a 15
preponderance of the evidence. I find that Larned told Frazier to “get out” of Respondent’s South
Office in the early afternoon of May 10, or Larned “would suspend her” as the personality
conflict between Larned and Frazier had, once again, become elevated to a shouting match as
Frazier proceeded to clock-out at the end of her workday. I further find that Frazier voluntarily
decided not to show up for work at Respondent on May 13, 2013. The General Counsel bears the 20
burden to prove that Frazier’s termination occurred by preponderant evidence. As the only
evidence to support this allegation is testimony riddled with credibility problems, I find this
burden has not been met. Accordingly, I recommend dismissal of this complaint allegation.18

18 I note that there was no motion to add as additional facts Respondent’s issuance of the April 3 and
May 10 written warnings to Frazier being unlawful under the Act and the newly amended complaint does
not allege that any of these written warnings were issued unlawfully in response to Frazier’s protected
concerted activities and, accordingly, I will not make any findings that such unfair labor practices
occurred by virtue of Respondent’s adverse actions against Frazier. If these two alleged unlawful written
warning facts were part of the amended complaint allegations, I would find them to be unlawful under a
Wright Line analysis. See i.e., Mt. Healthy City School District Board of Education v. Doyle, 429 U.S.
274 (1977). Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Thus, as the Board stated in Naomi Knitting Plant, 328 NLRB 1279,
1281 (1999), to sustain the initial burden of persuasion the General Counsel must show (1) that the
employee was engaged in protected activity, (2) that the employer was aware of the activity, and (3) that
the activity was a substantial or motivating reason for the employer’s action. Motive may be demonstrated
by circumstantial evidence as well as direct evidence and is a factual issue which the expertise of the
Board is peculiarly suited to determine. Once the General Counsel satisfies this initial showing which I
would find here because I find that the Respondent was motivated to issue each of the written warnings
by Frazier’s protected concerted activities on April 3 and May 10. As a result, the burden of persuasion
shifts to the employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct. Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). Here, the
Respondent would be required to show that it actually would have issued Frazier a written warning
around April 3, absent its belief that Frazier complained about the need to improve employees’ work
conditions by Respondent ordering more Cavitron tips and that it would have issued the May 10 written
warning absent its belief that Frazier complained about clocking out terms and conditions of her
employment. Because Respondent failed to prove this, I would find that each of the April 3 and May 10
written warnings were unlawful.
JD(SF)–05–15
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VIII. THE GENERAL COUNSEL’S MOTION TO AMEND COMPLAINT IS GRANTED BASED ON CLOSELY
CONNECTED NEW EVIDENCE PRODUCED AT OR NEAR HEARING AND RESPONDENT’S FULL AND
FAIR OPPORTUNITY TO LITIGATE THE NEW LEGAL THEORIES
Both at the start of hearing and at the end of the General Counsel’s case-in-chief, the 5
General Counsel moved to amend the complaint to add new paragraphs 6(d)-6(h) to include: (1)
paragraph 6(d) - an alleged unlawful rule/policy with regard to employees being precluded from
discussing salaries and wages contained in the Employee Handbook that was submitted
approximately 1 week before hearing in response to a subpoena request (see Section III above).
(Tr. 496–497; GC Exh. 12 at p.5.); (2) paragraph 6(e)—alleging that in about September 2013, 10
specific date unknown, Respondent by Larned at Respondent’s Austin, Texas facility
interrogated its employees about their participation in Board activities and sympathies toward
protected concerted activities of other employees; (3) paragraph 6(f)—alleging that in September
2013, specific date unknown, Respondent by Larned at Respondent’s Austin, Texas facility
threatened its employees with unspecified reprisals if they participated in the National Labor 15
Relations Board proceedings; (4) paragraph 6(g)—alleging that in about March 2014, specific
date unknown, Respondent by Larned at Respondent’s Austin, Texas facility threatened its
employees with unspecified reprisals if they engaged in protected concerted activities by
testifying at Board proceedings; and (5) paragraph 6(h)—alleging that in about March 2014,
specific date unknown, Respondent by Larned at Respondent’s Austin, Texas facility 20
interrogated its employees about their future testimony at Board proceedings. (Tr. 496–500.)
In support of amending the complaint, the General Counsel cites to Johnnie’s Poultry,
146 NLRB 770, 775 (1964), holding that when the employee is approached and asked questions
about his participation in a Board proceeding, whether it is in the investigation or coming to trial,
that the employer’s representative questioning the employee gives that employee certain 25
assurances there will be no reprisals and that his cooperation with the employer’s agent is
voluntary; and there was no such thing given to the employee. The General Counsel argues here
that this is why they had such a hard time getting participation in this case. They were concerned
that they would be fired and so that should be addressed and so that’s why the General Counsel
seeks to amend the complaint to include that, at least for witness Martinez. (Tr. 84–85.)30
I find that these amendments are closely connected to the subject matter of the complaint
and they were not pursued by the Region any earlier because witnesses were fearful of
participating in the General Counsel hearing because of Respondent’s interrogations and threats
without providing them any assurances that there would be no reprisals. See Board’s Rules and
Regulations, Section 102.17; NLRB Division of Judges Bench Book (August 2010), Section 35
3.320. I further find that the proposed amendments are just and they have been fully litigated.
Also, I find that Respondent had a full and fair opportunity to respond to all these amendments
through cross-examination of the General Counsel’s witnesses and by presenting its own
witnesses and relevant evidence in defense of the newly added charges. Pergament United Sales,
296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); see also Sheet Metal Workers 40
Local 91, 294 NLRB 766 (1989); Payless Drug Stores, 313 NLRB 1220 (1994); Redd-I
Incorporated, 290 NLRB 1115 (1988); and Old Dominion Freight Line, 331 NLRB251, 251–
252 (2000).
JD(SF)–05–15
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IX. ALLEGED INTERROGATION: RESPONDENT’S ACTIONS THROUGH LARNED REGARDING BOARD
INVESTIGATIONS
A. 2013 Interrogations
1. Facts
5
Larned admitted that Martinez had given her notice in August 2013, that he had been
contacted by the NLRB about an investigation they were conducting of Respondent in relation to
a charge filed by Frazier. Martinez also told Larned that the NLRB was contacting Abeita too
and Martinez also told Larned that he did not want to get involved in the investigation. (Tr. 230–
233.) 10
Martinez’ more credible testimony was that after Frazier filed her charge with the Board
in August, Larned frequently contacted Respondent’s employees to inquire if the Board had
contacted them for their statements about Frazier’s charge or what they would say if the Board
investigator asked them questions about the Charging Party. This occurred from 8 to 10 times to 15
Martinez. At no time when Larned approached Martinez with her inquiries about potential
disclosures to the Board did she tell him that any discussions with her about this subject were
voluntary or that there would be no reprisals to any employee speaking to the Board.
Abeita submitted his sworn affidavit to the General Counsel of the National Labor 20
Relations Board (the Board) in September 2013, concerning facts known to him in this case.
Soon thereafter, Larned asked Abeita whether or not he had given a statement to the Board. He
responded that he did give the Board a statement. Larned then started to ask Abeita what he said
to the NLRB but before he responded she backtracked and told him that she did not want to
know what he said. (Tr. 236, 238.) 25
About the same time that Martinez first knew that a Board representative was trying to
get in touch with him and later when the Board representative went to the South Office and
spoke to Respondent’s employees, Larned asked Martinez if the Board had contacted him, if he
was going to talk to the Board, and Larned asked Martinez not to speak to any Board 30
representative. (Tr. 43.)
At some point in time from August–February 2013, Martinez provided his affidavit to the
Board in connection with this proceeding. Larned asked Martinez to meet with her in her office
and again asked Martinez if he had given his affidavit and not to speak to the Board. Martinez 35
denied to Larned giving his affidavit to the Board and told her he did not want to get involved in
this proceeding because he did not want Larned to harass him or give him a hard time at work
that he explained as assigning him extra chores, duties, or adding extra responsibilities to his
regular workday duties. (Tr. 43–44.)
40
Sometime after the NLRB investigation in September but before the March 2014 hearing,
Abeita approached Larned again to tell her exactly what he had said to the NLRB in his affidavit.
Larned, the second highest ranking member of Respondent’s management at the South Office,
told him that she would not discuss this with him without having a witness present. Tovar was
contacted by Larned and Abeita, Larned, and Tovar met in Larned’s office at Respondent. 45
Larned did not tell Abeita that he was there voluntarily. She also did not tell Abeita that there
would be no reprisals against him for anything he might have told the NLRB. (Tr. 239–241.)
JD(SF)–05–15
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2. Analysis
Amended complaint paragraphs 6(e) and 7 allege that the Respondent interrogated
employees in September 2013, when Respondent by Larned at Respondent’s Austin, Texas 5
facility interrogated its employees about their participation in Board activities and sympathies
toward protected concerted activities of other employees in violation of Section 8(a)(1) of the
Act. Under Section 8(a)(1), it is an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Rights
guaranteed by Section 7 include the right to engage in union activities and “concerted activities 10
for the purpose . . . of mutual aid or protection.”
In Rossmore House, 269 NLRB 1176, 1177–1178 (1984), enfd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), the Board ruled that the
appropriate means to decide whether the questioning of an employee amounted to unlawful 15
interrogation was to consider the totality of the circumstances of each situation. As guiding
principles for the analysis, the Board suggested—though did not mandate—the application of the
factors used in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Rossmore House at 1178 fn. 20.
These factors include (1) the background of the employer, (2) the nature of the information
sought, (3) the identity of the questioner, (4) the place and method of interrogation, and (5) the 20
truthfulness of the reply. Bourne at 48. While these factors provide insightful assistance, they
“are not to be mechanically applied in each case.” Instead, the Board has found that the task is
ultimately “to determine whether, under all the circumstances, the interrogation reasonably
tended to restrain or interfere with the questioned employee’s exercise of Section 7 rights. The
Rossmore House test is an objective one and does not rely on the subjective aspect of whether 25
the employee was in fact intimidated. Multi-Ad Services, 331 NLRB 1226, 1227–1228 (2000),
enfd. 255 F.3d 363 (7th Cir. 2001).
Furthermore, the purposes which the Board and courts have held legitimate privilege is
the investigation of facts concerning issues raised in a complaint where such interrogation is 30
necessary in preparing the employer’s defense for trial of the case. In allowing an employer the
privilege of ascertaining the necessary facts from employees in these given circumstances,
however, the Board and courts have established specific safeguards designed to minimize the
coercive impact of such employer interrogation. Thus, the employer must communicate to the
employee the purpose of the questioning, assure him that no reprisal will take place, and obtain 35
his participation on a voluntary basis; the questioning must occur in a context free from
employer hostility and must not be itself coercive in nature; and the questions must not exceed
the necessities of the legitimate purpose by eliciting information concerning an employee’s
subjective state of mind, or otherwise interfering with the statutory rights of employees. When an
employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. 40
Johnnie’s Poultry Co., 146 NLRB 770, 775–776 (1964), enfcmt. denied on other grounds, 344
F.2d 617 (8th Cir. 1965).
In this case, Larned admitted that Martinez had given her notice in August 2013, that he
had been contacted by the NLRB about an investigation they were conducting of Respondent in 45
relation to a charge filed by Frazier. Martinez also told Larned that the NLRB was contacting
Abeita too and Martinez also told Larned that he did not want to get involved in the
investigation. (Tr. 230–233.) Martinez’ convincing testimony was that after Frazier filed her
JD(SF)–05–15
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charge with the Board in August, Larned frequently contacted Respondent’s employees to
inquire if the Board had contacted them for their statements about Frazier’s charge or what they
would say if the Board investigator asked them questions about the Charging Party. This
occurred from 8 to 10 times to Martinez. At no time when Larned approached Martinez with her
inquiries about potential disclosures to the Board did she tell him that any discussions with her 5
about this subject were voluntary or that there would be no reprisals to any employee speaking to
the Board.
About the same time that Martinez first knew that a Board representative was trying to
get in touch with him and later when the Board representative went to the South Office and 10
spoke to Respondent’s employees, Larned asked Martinez again if the Board had contacted him,
if he was going to talk to the Board, and Larned asked Martinez not to speak to any Board
representative. (Tr. 43.)
At some point in time from September to February 2013, Martinez provided his affidavit 15
to the Board in connection with this proceeding. Larned asked Martinez to meet with her in her
office and again asked Martinez if he had given his affidavit and not to speak to the Board.
Martinez denied to Larned giving his affidavit to the Board and told her he did not want to get
involved in this proceeding. (Tr. 43–44.)
20
Sometime after the NLRB investigation in September but before the March 2014 hearing,
Abeita approached Larned again to tell her exactly what he had said to the NLRB in his affidavit.
Larned, the second highest ranking member of Respondent’s management at the South Office,
told him that she would not discuss this with him without having a witness present. Tovar,
Respondent’s assistant manager, was contacted by Larned and Abeita, Larned, and Tovar met in 25
Larned’s office at Respondent. Larned did not tell Abeita that he was there voluntarily. She also
did not tell Abeita that there would be no reprisals against him for anything he might have told
the NLRB. (Tr. 239–241.)
Upon considering the totality of the circumstances, including the Bourne factors, 30
I conclude that Respondent, through its District Manager Supervisor Larned, unlawfully
interrogated Martinez and Abeita in violation of Section 8(a)(1) of the Act. The evidence shows
that at the time of the conversations in September 2013, Respondent had been charged by Frazier
with an unfair labor practice and the Board was investigating the charge. As a result, the
Respondent was attempting to gather information from its employees about the case. Larned 35
frequently contacted Respondent’s employees to inquire if the Board had contacted them for
their statements about Frazier’s charge and what they would say if the Board investigator asked
them questions about the Charging Party. This occurred from 8 to 10 times to Martinez. At no
time when Larned approached Martinez with her inquiries about potential disclosures to the
Board did she tell him that any discussions with her about this subject were voluntary or that 40
there would be no reprisals to any employee speaking to the Board. Larned, moreover, offered no
justification for her questioning or assurances against reprisal. See Norton Audubon Hospital,
338 NLRB 320, 321 fn. 6 (2002); Johnnie’s Poultry Co., supra at 775–776 (Privilege to seek
information from employees to defend case comes with specific safeguards.). As a result, I find
that Respondent violated Section 8(a)(1) when it unlawfully interrogated Martinez in September 45
2013, when Larned asked him questions about information he might have provided to the Board
without providing Martinez with the safeguards required to avoid coercive interrogation.
JD(SF)–05–15
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Similarly, when Larned and Tovar met in Larned’s office to discuss what Abeita had said
in his affidavit to the Board, neither manager told Abeita that the closed-door meeting was
voluntary or that there would be no reprisals against Abeita for anything he told Larned in the
meeting or to the Board in his affidavit. More importantly, as stated above, asking an employee
about their statement or affidavit to the Board is beyond the legitimate privilege and is a per se5
violation of the Act and Section 8(a)(1) under these circumstances. See Johnnie’s Poultry Co.,
supra at 775–776 (By interrogating employees concerning statements or affidavits given to a
Board agent, Respondent engaged in interference, restraint, and coercion in violation of Section
8(a) (1) of the Act.).
B. Alleged Interrogation: March 201410
1. Facts
The amended complaint paragraph 6(h) alleges that in March 2014, Respondent by
Larned at Respondent’s Austin, Texas facility unlawfully interrogated its employees about their
future testimony at Board proceedings in violation of Section 8(a)(1) of the Act. 15
Larned approached Martinez again on March 17, 2014, when various other Respondent
employees received subpoenas from the General Counsel to appear at hearing. Martinez assumed
that Larned thought that he too had received a subpoena to trial in this case though he never
admitted to providing the Board an affidavit beforehand and he denied to Larned that he was 20
involved in the Board’s investigation or upcoming trial in this matter. At that time, Martinez had
not received any subpoena.
Larned responded to Martinez telling him that she believed that he had something to do
with this proceeding as she added that everyone at Respondent “was acting funny” and that she 25
thought that Martinez would show up for the trial as a witness. (Tr. 45.) Larned admitted asking
Martinez if he had been subpoenaed and whether he planned to testify and she says Martinez
asked her whether she had anything to hide. (Tr. 234.) Larned responded that “we [Respondent
and its employees] have nothing to hide” and mentioned to Martinez that she was a little
confused why he would only give a week’s notice before leaving Respondent. Id. Martinez 30
explained that he continued his low profile with Larned and did not openly disclose or show her
that he had been subpoenaed to trial by the General Counsel. Martinez also told Larned on
March 17, that he thought the whole thing about talking with Larned behind closed doors or
anyone else is called snitching at work. He further commented to Larned that he was not going to
snitch. Larned’s response to this was that he should not testify at hearing and also said: “[G]ood, 35
because snitches get stitches.” (Tr. 45.)
2. Analysis
For the same reasons referenced above in connection with Respondent’s unlawful
interrogation of Martinez in September 2013, I find that Respondent through Larned again 40
unlawfully interrogated Martinez in March 2014, when she asked him whether he had been
subpoenaed to attend the trial in this case and instructed Martinez not to testify because “snitches
get stitches.” Not only did Larned interrogate Martinez without the requisite Johnnie’s Poultry
safeguards but Larned’s statements to Martinez were particularly coercive as she told him not to
testify at trial and suggested that if he did testify, bad things would happen to him. As a result, I 45
further find that in March 2014, Respondent by Larned at Respondent’s Austin, Texas facility
JD(SF)–05–15
25
unlawfully interrogated its employees about their future testimony at Board proceedings in
violation of Section 8(a)(1) of the Act.
X. ALLEGED THREAT: RESPONDENT’S ACTIONS THROUGH LARNED
A. 2013 Threat5
1. Facts
The amended complaint paragraphs 6(f) and 7 allege that about September 2013,
Respondent, by Larned, at Respondent’s Austin, Texas facility, threatened its employees with
unspecified reprisals if they participated in the National Labor Relations Board proceedings. 10
At some point in time from September 2013–February 2014, Martinez provided his
affidavit to the Board in connection with this proceeding. Larned asked Martinez to meet with
her in her office and again asked Martinez if he had given his affidavit and not to speak to the
Board. Martinez denied to Larned giving his affidavit to the Board and told her he did not want 15
to get involved in this proceeding. (Tr. 43–44.)
2. Analysis
I credit Martinez’s testimony over that of Larned. Martinez’s testimony was specific and 20
detailed and his demeanor reflected certainty with respect to this conversation. In addition, his
testimony is consistent with Abeita’s testimony that Larned also approached him about any
contact or cooperation he had with the Board investigation. I find Martinez’s testimony to be
more reliable than Larned’s somewhat perfunctory denials.
To assess whether an interrogation is coercive, the Board considers such factors as 25
whether proper assurances were given during the questioning, the background and timing of the
interrogation, the nature of the information sought, the identity the questioner, the place and
method of the interrogation, and the truthfulness of the reply. Metro One Loss Prevention
Services, 356 NLRB No. 20 (2010); Stabilus, Inc., 355 NLRB 836, 850 (2010). In this case,
employee Martinez testified that Respondent’s district manager and supervisor, Larned, 30
questioned him and other employees about being contacted by the Board as part of its
investigation of Charging Parties’ complaint. The questioning was by one of Respondent’s
highest officials, the one who issued adverse actions against employees, without proper
assurances and sought to discover the employee’s anticipated involvement with the Board
investigation. I find that under all the circumstances the questioning at issue would reasonably 35
tend to coerce the Martinez so that he would be restrained from exercising rights protected by
Section 7 of the Act.” See Medcare Associates, Inc., 330 NLRB 935, 940 (2000). In addition,
Martinez convincingly testified that he was worried about being assigned harder tasks such as
cleaning toilets and being harassed at work by Respondent if he provided information to the
Board and cooperated with their investigation. Under these circumstances, I find that Larned’s 40
questions to Martinez unlawfully threatened him and violated Section 8(a)(1) of the Act.
JD(SF)–05–15
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B. 2014 Threat
1. Facts
The amended complaint paragraphs 6(g) and 7 allege that about March 2014, Respondent
by Larned and Respondent’s Austin, Texas facility threatened its employees with unspecified
reprisals if they engaged in protected concerted activities by testifying at Board proceedings. 5
Martinez explained that he continued his low profile with Larned and did not openly
disclose or show her that he had been subpoenaed to trial by the General Counsel. Martinez also
told Larned on March 17, that he thought the whole thing about talking with Larned behind
closed doors or anyone else is called snitching at work. He further commented to Larned that he 10
was not going to snitch. Larned’s response to this was: “[G]ood, because snitches get stitches.”
(Tr. 45.)
2. Analysis
The Board has found that “be careful” warnings to an employee convey the threatening 15
message that union activities would place an employee in jeopardy. Gaetano & Associates Inc.,
344 NLRB 531, 534 (2005) (finding that telling an employee to “be careful” was an unlawful
threat). See also, e.g., St. Francis Medical Center, 340 NLRB 1370, 1383–1384 (2003) (“be
careful” statement by supervisor in context of union activity held unlawful); Jordan Marsh
Stores Corp., 317 NLRB 460, 462 (1995) (supervisor’s statements such as “watch out” are 20
unlawful implied threats).
Further, the Board in Hall Construction, 297 NLRB 816, 818 (1990), adopted a finding
of an unlawful threat of blacklisting where employees were told that unionizing would mean “all
of us guys would be blackballed from any work in the [the respective employers’ field]”
Flamingo Hilton-Laughlin, 324 NLRB 72, 116 (1997). Here, District Manager and Respondent 25
Agent Larned gave Martinez a warning that if he testified at the unfair labor practice hearing in
this case or “snitched,” he would receive something bad from Respondent or a threat of
“stitches” which could have included termination of his employment before his last day or a bad
future job reference. Larned stated that testifying at trail could lead to “stitches” and she advised
Martinez not to testify at hearing. These statements are unlawful for the same reasons that the 30
“be careful” warnings were unlawful in Gaetano & Associates. As a result, I further find that
these threats made by Respondent violated Section 8(a)(1) of the Act.
I credit Martinez’ testimony over that of Larned for the March 2014 conversation above.
Martinez’ testimony was specific and detailed and his demeanor reflected certainty with respect
to this conversation. I find Martinez’ testimony to be more reliable than Larned’s somewhat 35
perfunctory denials. Accordingly, I find that on or about March 17, 2014, the Respondent,
through Larned, unlawfully threatened Martinez in violation of Section 8(a)(1) by saying to him:
“[G]ood, because snitches get stitches.” (Tr. 45.) As noted above, Martinez believed that this
response from Larned meant that if he testified to the Board at trial, something bad would
happen to him. I find that Larned’s statement to Martinez is sufficient to constitute a threat of 40
discharge or a negative job reference for testifying at a Board hearing and, accordingly, I find
that Respondent has violated Section 8(a)(1) of the Act by illegally threatening Martinez while
he was still employed at Respondent with an unspecified reprisal.
JD(SF)–05–15
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CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent engaged in conduct in violation of Section 8(a)(1) of the Act: 5
(a) By maintaining in its Employee Handbook provisions that preclude employees
from discussing their salaries and wages.
(b) By interrogating employees in September 2013, at the Respondent’s facilities, for
cooperating with Board investigations.
(c) By interrogating employees in March 2014, for preparing to testify at a Board 10
proceeding.
(d) By threatening employees in September 2013, at the Respondent’s facilities, for
cooperating with Board investigations.
(e) By threatening employees in March 2014, at the Respondent’s facilities , for
preparing to testify at a Board proceeding.15
3. These unfair labor practices affect commerce within the meaning of Section 2(6) and
(7) of the Act.
4. The above violations are unfair labor practices within the meaning of the Act.
5. The Respondent did not also violate the Act as further alleged in the complaint.
20
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist from engaging in such conduct in the future and to
take certain affirmative action designed to effectuate the policies of the Act. To remedy the 25
Respondent’s violations of Section 8(a)(1) of the Act, I shall recommend that the Respondent
post and abide by the attached notice to employees.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.1930
ORDER
The Respondent, Austin Professional Dental Corporation, P.C., Austin and Dallas, Texas,
its officers, agents, successors, and assigns, shall35
1. Cease and desist from

19 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 purposes.
JD(SF)–05–15
28
(a) Maintaining in its Employee Handbook rules that preclude employees from
discussing their salaries and wages.
(b) Interrogating employees for cooperating with Board investigations at the
Respondent’s facilities.
(c) Interrogating employees for preparing to testify at a Board proceeding.5
(d) Threatening employees to prevent them from assisting in a Board investigation.
(e) Threatening employees to prevent them from testifying at a Board hearing.
(f) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
10
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, to the extent it has not already done so,
rescind any rules in its Employee Handbook that preclude employees from discussing their
salaries and wages and notify its employees in writing that it has done so. 15
(b) Within 14 days after service by the Region, post copies of the attached notice
marked “Appendix A at its Austin and Dallas, Texas facilities.20 Copies of the notices, on forms
provided by the Regional Director for Region 16, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 20
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
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 25
proceedings, the Respondent has gone out of business or closed the facilities where posting is
required, the Respondent shall duplicate and mail, at its own expense, a copy of the notices to all
current employees and former employees employed at those facilities at any time since
May 10, 2013.
(c) Within 21 days after service by the Region, file with the Regional Director a 30
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. February 26, 2015
35
Gerald E. Etchingham
Administrative Law Judge

20 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–05–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain in our Employee Handbook rules that preclude employees from
discussing their salaries and wages.
WE WILL NOT discourage you from talking to each other about salaries and wages.
WE WILL NOT interrogate employees for cooperating with Board investigations at the
Respondent’s facilities.
WE WILL NOT interrogate employees for preparing to testify at a Board proceeding.
WE WILL NOT threaten employees to prevent them from assisting in a Board investigation.
WE WILL NOT threaten employees to prevent them from testifying at a Board hearing.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind any rules in our Employee Handbook that precludes employees from
discussing their salaries and wages and notify employees in writing that we have done so.
AUSTIN PROFESSIONAL DENTAL
CORPORATION, P.C.
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
JD(SF)–05–15
819 Taylor St., Room 8A24, Federal Office Building, Fort Worth, Texas 76102
(817) 978-2930, Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-111300 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER,
(817) 978-2930.