Bethany College

National Labor Relations Board - Administrative Judge Opinions

Oct 31, 2018

14-CA-201546 (N.L.R.B. Oct. 31, 2018)

JD–72–18
Lindsborg, KS

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
BETHANY COLLEGE
Respondent
and Case Nos. 14–CA–201546
14–CA–201584
THOMAS JORSCH, an Individual
and
LISA GUINN, an Individual
Rebecca Proctor, Esq.; Julie Covel, Esq.,
for the General Counsel.
Gregory P. Goheen, Esq.,
for the Respondent.
DECISION
I. Statement of the Case
CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried in Lindsborg,
Kansas, on December 6, 2017. Thomas Jorsch (Jorsch) filed the charge in case 14–CA–201546
on June 19, 2017.1 The first amended charge in case 14–CA–201546 was filed by Jorsch on
August 28. The charge in case 14–CA–201584 was filed by Lisa Guinn (Guinn) on June 29,
with an amended charge filed in the case on August 28. The Regional Director for Region 14,
(the Region) of the National Labor Relations Board (NLRB/the Board) issued an Order
Consolidating Cases, Consolidated Complaint and Notice of Hearing on August 30. On
September 13, Bethany College (the Respondent/the College) filed a timely answer and
affirmative defenses to the consolidated complaint denying all material allegations in the
complaint.
The consolidated complaint alleges that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (NLRA/the Act) when (1) since about December 29, 2016, the
Respondent has unlawfully maintained an overly broad confidentiality rule; (2) about May 19,
the Respondent, by William A. Jones (Jones), prohibited employees from engaging in concerted
activities with other employees for the purposes of mutual aid and protection by asking them to

1 All dates are in 2017, unless otherwise indicated.
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2
sign an agreement not to disclose a proposed tenure plan; (3) about June 23, the Respondent, by
Jones, through email prohibited employees from discussing terms and conditions of employment
with each other; and (4) about June 26, the Respondent, by Jones, through a letter informed
employees that they were being discharged for engaging in protected, concerted activities. The
consolidated complaint also alleges that on about June 27, the Respondent discharged its 5
employees Jorsch and Guinn in violation of Section 8(a)(1) and (3) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the posthearing brief filed by the General Counsel, I make the following
findings of fact and conclusions of law10
II. Pre and Post-Trial Motions
The General Counsel contends that because the Respondent refused to comply and
produce the subpoenaed documents and witnesses, I should issue sanctions. Moreover, the 15
General Counsel argues that as a result of the Respondent’s refusal to participate in the
administrative trial, the Respondent is unable to and has failed to establish lack of jurisdiction
based on its religious affiliation.
A. Respondent’s Motion to Dismiss or in the Alternative Motion for Summary Judgment20
On November 8, the Respondent filed with the Board a motion to dismiss the
consolidated complaint or in the alternative motion for summary judgment objecting to the
proceedings on the basis of jurisdiction.2 The Respondent’s filing with the Board included
attachments for its consideration. The General Counsel filed a response on November 13,25
opposing the motion to dismiss or in the alternative for summary judgment. Since the Board had
not ruled on the motion prior to the opening of the administrative trial, I heard oral arguments on
the Respondent’s motion.
Shortly after the administrative trial adjourned, on December 6, the Board issued an order 30
denying the Respondent’s motion. In its order, the Board ruled that the Respondent failed to
establish that there are no genuine issues of material fact warranting a hearing and that it is
entitled to judgment as a matter of law. Consequently, the need for me to rule on the
Respondent’s motion to dismiss, or in the alternative motion for summary judgment is moot.
35
B. Respondent’s Motion to Revoke the General Counsel’s Subpoenas
On November 13, the General Counsel served the Respondent with a subpoena duces
tecum. On the same date, the Respondent’s supervisors and/or agents, Jones, Robert Carlson
(Carlson), and Joyce Pigge (Pigge), were served with subpoenas ad testificandum. The 40
Respondent filed a petition to revoke the subpoenas on November 20. The Respondent claims
that the Board lacks jurisdiction over the Respondent because it is a higher education institution

2 The Respondent also filed a memorandum in support of its motion and a reply memorandum. (GC Exh. 1-T,
1-U, 1-V, and 1-W.)
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3
with religious affiliation; and thus the Board is unable to compel production of documents or the
appearance of witnesses Jones, Pigge, and Carlson. Moreover, the Respondent argues that the
Board lacks jurisdiction over Jorsch’s complaint because he was a faculty member with
managerial authority. Even assuming the Board properly has jurisdiction over the Respondent,
the Respondent contends that the subpoenas seek to compel the production of documents that are 5
overbroad, irrelevant as to subject matter and time, the requests are vague, some of the
documents are equally available to the General Counsel, unduly burdensome, and improperly
seeks attorney-client privileged records, attorney work product, and other confidential privileged
records.
10
On November 24, the General Counsel filed a response in opposition to the Respondent’s
petition to revoke. By written order dated December 1, I denied the Respondent’s petition. On
December 5, the Respondent filed a motion to reconsider. During the administrative trial, I
allowed the Respondent to present oral argument in support of the motion. The General Counsel
presented a rebuttal. Following careful consideration of the parties’ arguments, I denied the 15
Respondent’s motion. Nonetheless, despite my rulings ordering the Respondent to comply with
the subpoenas requests, the Respondent refused. Consequently, the counsel for the General
Counsel moved for evidentiary sanctions against the Respondent.
I reject the Respondent’s argument that because it is a higher education institution with 20
religious affiliation it is exempt from the Act, and therefore neither I nor the Board can compel it
to respond to the General Counsel’s subpoena requests. Similarly, the Respondent’s contention
that the Board does not have jurisdiction over Jorsch’s complaint because he was a faculty
member with managerial authority is equally unpersuasive.
25
The Respondent’s claims that it is exempt from the Act because of its religious
affiliation; and that Jorsch is not an employee within the meaning of the Act are not grounds for
revoking the subpoenas where Board jurisdiction is not plainly lacking. See NLRB v. Chapa De
Indian Health Program, Inc., 316 F.3d 995, 1002 (9th Cir. 2003). The Respondent has the
burden of proving that it is exempt from the Act because of its religious affiliation. Pacific 30
Lutheran, 361 NLRB 1404 (2014). The General Counsel is correct in noting that the
Respondent’s mere assertions contesting the Board’s jurisdiction is insufficient to meet the test
for determining the validity of its arguments. I agree with the General Counsel that the
Respondent’s arguments require “the presentation and analysis of evidence and subsequent
findings of fact.” (GC Br. 4.) Likewise, the Board, in denying the Respondent’s motion to 35
dismiss or in the alternative Motion for Summary Judgment, found that there are genuine issues
of material fact warranting a hearing on the issue of whether the Respondent’s religious
affiliation exempts it from the Act; and there are issues of material fact requiring a hearing on the
underlying merits of the consolidated complaints. Consequently, the Respondent’s refusal to, at
minimum, present evidence showing it is exempt from the Act because of its religious affiliation 40
leaves me with no choice but to find that the General Counsel has established jurisdiction, which
will be discussed in more detail below.
Second, Respondent’s argument that certain requests are irrelevant is not supported by
law or facts. It is well settled law that subpoenaed information should be produced if it relates to 45
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4
any matter in question, or if it can provide background information or lead to other evidence
potentially relevant to an allegation in the complaint. Board’s Rules, Section 102.31(b) and
Perdue Farms, 323 NLRB 345, 348 (1997). I find that the General Counsel’s subpoena duces
tecum meets this requirement.
5
Respondent also contends that the subpoena requests are unreasonably broad and unduly
burdensome. The party seeking to avoid compliance with a subpoena bears the burden of
demonstrating that it is unduly burdensome or oppressive. To satisfy that burden, a party must
show that the production of the subpoenaed information would seriously disrupt its normal
business operations. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir. 1986); Carolina Food 10
Processors, Inc., 81 F.3d 507, 513 (4th Cir 1996). . The Respondent has produced nothing more
than assertions that the requests are unreasonably broad and unduly burdensome; and therefore,
has not satisfied this burden. The Respondent also argues that paragraph 6 seeks confidential
information that is unreasonably broad and irrelevant and is an invasion of privacy. I find the
argument unpersuasive. The Respondent’s objections are nonspecific and do not provide a clear 15
explanation of the legal and factual bases for why the documents are confidential and legally
exempt from discovery. Likewise, there is no clear explanation about why the documents are not
relevant to the matters at issue.
Last, I again reject the Respondent’s contention that is should not be required to respond 20
to the General Counsel’s document requests because it would require the production of
privileged information. To the extent the subpoena requests may encompass documents the
Respondent believes are privileged, it retains the right to withhold such documents. However, in
that event, the Respondent, as the party asserting the privilege, must provide sufficient
information to evaluate the asserted privilege. This includes submitting a privilege index log 25
specifically identifying the documents it believes are covered by the privilege and supporting
affidavits, if necessary. See, e.g., In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001);
Holifield v. U.S., 901 F.2d 201, 204 (7th Cir. 1990); and Friends of Hope Valley v. Frederick
Co., 268 F.R.D. 643, 651–652 (E.D. Cal. 2010). If the Respondent fails to demonstrate
sufficient grounds for protection, the privilege may be found to have been waived. In re Grand 30
Jury Subpoena, above. As part of its petition to revoke, the Respondent has failed to provide the
required information. Consequently, the Respondent has not established an attorney-client
privilege or work product privilege, nor shown that compliance with the subpoena duces tecum
would force it to violate those privileges if they existed.
35
C. Respondent’s Motion to Re-Open the Hearing
As noted earlier in this decision, I heard oral arguments on the Respondent’s motion to
dismiss or, in the alternative, for summary judgment which was filed with the Board on
November 8. During its oral argument, the Respondent moved to include the attachments that it 40
filed with the Board as part of its November 8 motion. The Respondent marked the motion and
attachments as Respondent’s exhibit 1 (R. Exh. 1). (Tr. 95–96.) Since the Respondent’s motion
was pending before the Board, I agreed to rule on the motion and request to admit into evidence
R. Exh. 1, only if the Board had not made a ruling prior to the issuance of my decision on the
merits of the case. At the conclusion of the administrative trial, I informed the parties that I 45
JD–72–18

5
would hold the record open for the limited purpose of deciding whether to accept into the record
R. Exh. 1.
Following the close of the administrative trial, on January 10, 2018, the Respondent filed
its post-hearing brief and Motion to Re-Open the Hearing. The General Counsel filed a timely 5
response in opposition to the motion. Further, the General Counsel requests that the preclusion
rule be implemented because the Respondent’s refusal to produce the subpoenaed documents and
witnesses and attempt to preserve the right to supplement the record at a later date “constitute[]
abuse of the Board subpoena process and is an attempt to disadvantage Counsel for the General
Counsel.” (GC Br. 10.) 10
After a careful review of the motion, response, and Board law, I find that the Respondent
has failed to establish that the administrative trial should be re-opened. In addition, I find that
the preclusion rule should be applied in this instance. Perdue Farms Inc. v. NLRB, 144 F.3d 830,
834 (D.C. Cir. 1998) (“A party refusing to comply with a subpoena risks application of the 15
preclusion rule.”).
Under the Board’s Rules and Regulations, a party may file a motion with the
administrative law judge (ALJ) to reopen the record on the basis of “newly discovered”
evidence. The motion to reopen must be filed after the trial closes but prior to the issuance of the 20
ALJ’s decision. Section 102.35(a)(8), 102.48(d)(1). Consequently, a motion to reopen the trial
will only be granted if the moving party can show (1) the evidence is truly “newly discovered”;
and (2) “demonstrated that the introduction of the [evidence in question] would require a
different result than that reached by the judge.” Fitel/Lucent Technologies, 326 NLRB 46, 46 fn.
1 (1998); Planned Building Services, Inc., 347 NLRB 670, 670 fn. 4 (2006). None of the 25
documents contained in R. Ehx. 1 is newly discovered evidence. R. Exh. 1 consists of the
College’s student, employee, and faulty handbook (which has been admitted into evidence as GC
Exh. 12), information about the College from its website, minutes from a few faulty and HLC
meetings held in 2015 and 2017, and emails from 2015. All of this information was available
before the opening of the administrative trial and several of the documents were part of the 30
General Counsel’s subpoena requests. Again, I must emphasize that the Respondent refused to
comply with my orders to produce the information and witnesses requested in the General
Counsel’s subpoena duces tecum and subpoena testificandum. Moreover, there is nothing in the
record or the Respondent’s filings which demonstrate that I would reach a different result if I
were to allow the reopening of the trial. 35
Although the Respondent refused to participate in any part of the NLRB process,
including the administrative trial, the Respondent argues that it expressly reserved the right to
present any evidence to challenge any witness, or otherwise argue the merits of its case if “a
court of competent jurisdiction” decides that the Board has jurisdiction over this matter. The 40
Board has consistently held that the Respondent has the burden of showing that it is exempt from
the Board’s jurisdiction because of its religious affiliation. See Pacific Lutheran, at 1404.
Moreover, there is no case law which supports the Respondent’s argument that it can ignore the
administrative law judge’s pretrial rulings on compliance with subpoenas, refuse to create an
evidentiary record on jurisdiction, and not participate in the administrative trial in any manner, 45
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6
“until, and if such time, as a Court of competent jurisdiction determines that the NLRA applies to
the College, and that the NLRB has jurisdiction over the College.” (Tr. 28.) The General
Counsel correctly notes that if the Respondent is allowed to proceed without sanction it
“incentivizes employers to simply ignore Board subpoenas.” (GC Br. 10.) I will not re-open the
trial to allow the Respondent to flood the record with evidence that should have been produced at 5
the trial to establish that it is exempt from the reach of the Act or in the alternative that it had
legitimate nondiscriminatory bases for its actions. Again, as the party contesting jurisdiction, the
Respondent had the burden of proof which it failed to establish. Pacific Lutheran, at 1404. The
Respondent had ample opportunity to submit its evidence at the administrative trial but chose not
to participate. The Respondent’s decision to ignore my pretrial rulings and not create an 10
evidentiary record on jurisdiction for fear of waiving its argument that as a religiously affiliated
institution it is exempt from the Board’s jurisdiction is specious reasoning. Participating in the
administrative trial would not have waived that argument; and the Respondent failed to take part
in the administrative trial at its peril.
15
III. Jurisdiction
The Respondent, a corporation with an office and place of business in Lindsborg, Kansas,
has been engaged in the operation of a private non-profit college. During the fiscal year ending
June 30, the Respondent admits and I find that in conducting its business operations derived 20
gross revenues available for operating expenses in excess of $1 million. During this same
period, the Respondent admits and I find that it purchased and received at its Lindsborg, Kansas
facility products, goods, and materials valued in excess of $5000 directly from points outside of
the State of Kansas. (GC Exhs. 1-S, 4A, 4B.)3
25
The Respondent denies that at all material times it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act; and contests the Board’s
jurisdiction. The Respondent argues that because it is a “higher educational institution with
religious affiliation, it is not subject” to the NLRA and, therefore, the Board lacks jurisdiction
over this matter. (GC Exh. 1-U.) The Respondent did not participate in the Board proceedings 30
and instead rested on its claim that the Board lacks jurisdiction over it. Consequently, the
Respondent refused to comply with my order requiring the Respondent to produce subpoenaed
documents and subpoenaed witnesses; and the Respondent refused to participate at the
administrative trial. After making an appearance to argue a motion for reconsideration of my
order denying the Respondent’s petition to revoke; and arguing for a motion to dismiss or in the 35
alternative for summary judgment, the Respondent’s counsel became a mere observer for the
remainder of the administrative trial. Moreover, subpoenaed witnesses Joyce Pigge (Pigge) and
Robert Carlson (Carlson) appeared at the administrative trial, but the Respondent refused to
allow them to testify in contravention of my order.
40

3 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
Respondent’s brief. Specific citations to the transcript, exhibits, and briefs are included where appropriate to aid in
review, and are not necessarily exhaustive or exclusive.
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A. Test to Determine if the Respondent is Exempt from the Act based on its Religious Affiliation
(1) Facts
According to the College’s Amended and Restated Bylaws (bylaws), Bethany College is5
a ministry of the Evangelical Lutheran Church in America (ELCA), owned and operated by the
Central States Synod and the Arkansas/Oklahoma Synod of the ELCA. The Respondent’s
employee handbook (handbook) states that the object and purpose of “this Corporation shall be
to establish and maintain a Christian institution of higher education to be known as ‘Bethany
College’; to serve Jesus Christ and His church by training men and women who seek a liberal 10
arts education under Christian auspices…” (GC Exh. 12.)
According to the handbook, members of the faculty are “expected to share the sacred
trust of safeguarding the defined objectives of the College . . .” and each faculty member “shall
promote the purpose of the College and its ideals of scholarship, and assist in the realization of 15
the Christian objectives of the College,” and each faculty member “shall be expected to conduct
himself or herself at all times in a manner consistent with the standards of Christina men and
women.” (GC Exh. 12 at p. 28.) Under the Faculty Code of Conduct and Ethics of the
handbook, the faculty is bound, among other things, to advance the mission of the College. Id. at
p. 52.20
According to the handbook, the Respondent, in order to accomplish its mission, commits
to the task of educating its students by striving to be a community of faith which fosters
Christian faith, witness and worship by seeking to “stimulate the student’s desire to know and to
understand personal relationships and relationships with God in light of the Gospel of Christ; 25
provides a setting where regular worship is encouraged and where students, faculty and staff
members may offer Christian witness through their lives and teaching.” (GC Exh. 12, p. 56.)
The handbook continues by noting that the Respondent, through its faculty, offers a “total
campus experience within which the student can grow into a philosophy of life that recognizes in
selfless service to God and humanity . . . educates students who will contribute significantly 30
toward the development of constructive Christian thought and expression in human life and
society” and “assists the student in incorporating Christian values and service into chosen
careers.” Id. In addition, the handbook contains a statement that the College faculty supports the
church and “provides for the Church of Christ on earth dedicated and informed leadership to
assist in the determination and implementation of its future goals; serves the Church through 35
continuing education programs for laity and clergy and as a resource for congregations and the
Church in the modern world.” Id.
Jorsch, who was employed with the Respondent from August 2014 to June 2017, applied
for employment with the College through a job posting on the website HigherEdJobs.com 40
showing that there was an opening for an assistant professor of history. The job description
identified some of the duties for the position as teach history classes, participate in creative
course development, and advise students. (GC Exh. 8; Tr. 54–55.) Identifying the school as an
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8
affiliate of the Evangelical church in America is the only mention of religion in the posting.4
Once Jorsch submitted his application for employment, he was interviewed via Skype.
Subsequently, he was invited to the College’s campus for a day-long interview with the search
committee members: Pigge, Dr. Bruce Taylor (Taylor), Dr. Holly Crutch Thomas (Thomas), and
two student representatives. At no time during his interviews, nor at any point in the hiring 5
process was Jorsch told that: he would be responsible for maintaining the College’s religious
environment; he would have to incorporate religious doctrine into his teachings; his position
would have a religious requirement; or he would have to maintain a Christian lifestyle. Although
Jorsch attended a chapel service on the day of his on-campus interview, he was never informed
that attending chapel services would be a requirement for his position. Following his interviews, 10
Jorsch was offered and accepted an appointment as an assistant professor of history with
eligibility for tenure in fall 2017. Jorsch initial term of appointment ran from August 10, 2014 to
May 19, 2015.5 He was given a copy of the “Bethany College Handbook” soon after he was
hired. Pigge was Jorsch’s direct supervisor and in that capacity she led departmental meetings
and observed his classroom instruction. 15
Although Jorsch attended the Faculty Senate meetings as a requirement for faculty
members, he was not an eligible member of the Faculty Senate because he was not tenured.
Decisional or policymaking authority is vested in the Faculty Senate. The Faculty Senate has
primary authority over evaluations, promotions, tenure, appointment, reappointment, and the 20
welfare of the faculty. (GC Exh. 12.)
(2) Analysis
In Catholic Bishop,6 the Supreme Court stated that the Board’s jurisdiction over labor 25
disputes between church-operated schools and their teaching employees would present “a
significant risk that the First Amendment will be infringed” because the “substantial religious
character of these church-related schools gives rise to entangling church-state relationships of the
kind the religious clauses sought to avoid.” Id. at 1320 (citing Lemon v. Kurtzman, 403 U.S. 602,
616 (1971), 91 S.Ct. 2105, 2113 (1971)). Therefore, the Supreme Court concluded that the 30
Board should not exercise jurisdiction over schools with “substantial religious character.”
Following the Supreme Court’s decision in Catholic Bishop, the Board in University of Great
Falls, 331 NLRB 1663 (2000), set out several factors to consider on a case-by-case basis
whether a school met the substantial religious character test set forth in Catholic Bishop.
However, on appeal, the D.C. Circuit rejected the Board’s analysis and developed a different35
three-part test for when the Board may assert jurisdiction over a religious college or university.
University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (hereinafter Great Falls).
Under the test set forth in Great Falls, the Board may not assert jurisdiction where a university:

4 Moreover, none of the current available positions at the College include a requirement that
the successful candidate assist in maintaining the College’s religious environment or Christian
lifestyle. (GC Exh. 9.)
5 Jorsch received extensions of his appointment until his termination on about June 26, 2017. None of his
faculty appointment letters contained requirements that he maintain a religious lifestyle or perform a religious role
while employed by the Respondent.
6 NLRB v. Catholic Bishop of Chicago, 99 S.Ct. 1313 (1979).
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(1) holds itself out to students, faculty, and the community as providing a religious environment;
(2) is an organized non-profit; and (3) is affiliated with, or owned, operated, or controlled,
directly or indirectly, by a recognized religious organization, or with an entity whose
membership is determined at least in part based on religion. Id. at 1343.
5
In Pacific Lutheran, the Board reexamined its standard for exercising jurisdiction over
faculty members at self-identified religious colleges and universities in accordance with Catholic
Bishop. The Board opined that the Great Falls test “overreaches because it focuses solely on the
nature of the institution, without considering whether the petitioned-for faculty members act in
support of the school’s religious mission.” Id. at 1409. The exclusive reliance on the religious 10
nature of an educational institution, without considering the petitioned-for employees’ role in
supporting the institution’s religious mission, “could deny the protections of the Act to faculty
members who teach in completely nonreligious educational environments if the college or
university is able to point to any statement suggesting the school’s . . . connection to religion, no
matter how tenuous that connection may be.” Saint Xavier University, , 365 NLRB No. 54 15
(2017), citing 361 NLRB 1404, 1409. In Pacific Lutheran, the Board noted that it had
endeavored to “be faithful to the holding of Catholic Bishop” and “avoid the potential for
unconstitutional entanglement while, to the extent constitutionally permissible, vindicating the
rights of employees to engage in collective bargaining.” Id.
20
Consequently, in Pacific Lutheran the Board declined to follow the test established by the
D.C. Circuit in Great Falls, and instead adopted a new two-part test to determine whether the
Board has jurisdiction over a religiously affiliated college or university. Pacific Lutheran, 1409.
Under the test, a college or university contesting jurisdiction on the basis of religious affiliation
must first show that “it holds itself out as providing a religious educational environment.” Id. In 25
deciding whether the Respondent satisfies this requirement, relevant evidence to consider would
include, but not limited to, “handbooks, mission statements, corporate documents, course
catalogs, and documents published on a school’s website” and possibly “[p]ress releases or other
public statements by university officials.” Id. Once that threshold requirement is met, the college
or university “must then show that it holds out the petitioned-for faculty members themselves as 30
performing a specific role in creating or maintaining the college or university’s religious
educational environment.” Id. The college or university contesting jurisdiction on the grounds
that it is religiously affiliated educational institution of higher learning has the burden of proof.
Under the Board’s current test, I find that the threshold requirement has been met in this 35
case.7 Since the Respondent refused to participate in the administrative trial, there is miniscule
amount of evidence showing that the Respondent holds itself out as providing a religious
educational environment. Nonetheless, the Board requires only a minimal showing to meet the
initial threshold requirement. In this case, the lone piece of evidence is the College’s handbook
which states its object and purpose is to “establish and maintain a Christian institution of higher 40
education . . . to serve Jesus Christ and His church by training men and women who seek a

7 Regardless of conflicting court of appeals’ decisions, the administrative law judge must follow established
Board precedent which neither the Board nor the Supreme Court has reversed. Pathmark Stores, Inc., 342 NLRB
378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984).
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10
liberal arts education under Christian auspices; and to acquaint these students with the cultural,
intellectual, and religious forces in the field of higher education.” (GC Exh. 12 at 13.) The
handbook also describes the College as a college of the ELCA, “approved by the Central States
and Arkansas-Oklahoma Synods of the ELCA.” Moreover, a not-for-profit corporation, such as
the College, could also be a relevant factor in concluding it is providing of religious education5
environment. Pacific Lutheran at 1410; Great Falls at 1344.
Accordingly, I find that the Respondent has satisfied the test that it holds itself out to
students, faculty, and the community as providing a religious environment.
10
Next I turn to the question of whether the Respondent holds out its petitioned-for faculty
members as performing a specific role in creating and maintaining that environment. The Board
found that “the focus of our inquiry into whether there is a ‘significant risk’ of infringement
under Catholic Bishop, 440 U.S. at 502, must be on the faculty members themselves, rather than
on the nature of the university as a whole.” 361 NLRB 1404. According to the Supreme Court, 15
if teachers play a “critical and unique role” in creating and sustaining a religious environment,
the Board’s assertion of jurisdiction over them could result in interference in management
prerogatives and “open the door to conflicts between clergy-administrators and the Board.” Id.
“By contrast, where faculty members are not expected to play such a role in effectuating the
university’s religious mission and are not under religious control or discipline, the same sensitive 20
First Amendment concerns of excessive entanglement raised by the Court are not implicated.”
Id.
In the case at hand, the evidence is nonexistent that the faculty member(s) at issue
perform a “specific role in creating or maintaining the university’s religious educational 25
environment.” Pacific Lutheran, 1410–1411. Here, no specific duties relating to religion were
stated in the faculty appointment letters that are in evidence for both faculty eligible for tenure
and part-time faculties (not eligible for tenure). Jorsch and Guinn provided undisputed testimony
that they were never told they were expected to perform a religious role or maintain the
university’s religious environment. Likewise, there is no evidence that any faculty was tasked 30
with meeting this requirement. Moreover, mere generalizations, such as those cited in the
College’s handbook, are insufficient to meet the second prong of the test established in Pacific
Lutheran. Pacific Lutheran, at 1413.
Although the Respondent has established that the Bethany College “holds itself out to 35
students, faculty, and the community as providing a religious environment,” it fails to establish
that “it holds out the petitioned-for faculty members themselves as a performing a specific role in
creating or maintaining the college or university’s religious educational environment, as
demonstrated by its representation to current or potential students and faculty members, and the
community at large.” Id. 40
Accordingly, I find, that at all material times the Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
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Further, the General Counsel presented un-rebutted evidence that the American
Association of University Professors – Collective Bargaining Congress (the Union/AAUP), at all
material times, has been a labor organization within the meaning of Section 2(5) of the Act. (Tr.
40–54; GC Exhs. 6, 7.)
5
B. Whether Jorsch is a Supervisor and, or Agent as Defined by the Act
The General Counsel alleges that Jorsch is an employee of the Respondent. The
Respondent, however, contests that designation and argues that Jorsch was employed in a 10
managerial capacity; and therefore, he is excluded from the protections of the Act.
The burden of establishing supervisory status is with the party alleging that status. The
party asserting supervisory status must set forth specific facts which prove the existence of
supervisory authority. Commercial Movers, Inc., 240 NLRB 288, 290 (1979); Under Section 15
2(11) of the Act, the status of supervisor is determined by the duties performed and not the title
or job classification. Section 2(11) defines a supervisor as any person
having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or responsibly to 20
direct them, or to adjust their grievances, or effectively to recommend such action, if …
such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.
Based on the statutory language, an individual is a supervisor if: the individual has 25
authority to take one of the actions listed in Section 2(11) or to effectively recommend such
action; the individual exercises this authority in the interest of the employer; and the exercise of
this authority is not merely routine or clerical in nature, but instead requires the individual to use
independent judgment. NLRB v. Kentucky River Community Care, Inc., 121 S.Ct. 1861, 1864
(2001); NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 573–574 (1994). Moreover, 30
the Board has consistently held that the evidence must show that a presumed supervisor is
accountable for a subordinate’s work performance. In re Oakwood Healthcare, Inc., 348 NLRB
686, 691–692 (2006).
In Yeshiva University, the Supreme Court found that the university faculties were35
managerial employees excluded from the right to collective bargaining under the NLRA. NLRB
v. Yeshiva, 444 U.S. at 674, 679 (1980). The Court defined managerial faculty as those who
“formulate and effectuate management policies by expressing and making operative the
decisions of their employer.” Id. at 682. Such managerial faculty “must exercise discretion
within, or even independently of, established employer policy and must be aligned with 40
management.” Id. at 683. However, if faculty members’ decision-making is “limited to the
routine discharge of professional duties in projects to which they have been assigned,” they
would be covered by the NLRA, even if union membership “arguably may involve some divided
loyalty.” Id. at 690.
45
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After Yeshiva University, the Board issued nearly two dozen decisions applying a
“sweeping” breadth of factors to analyze the managerial status of faculty at universities, such as,
academic programs, enrollment management policies, finances, academic policies, and personnel
policies and decisions, and giving greater weight to the first three areas than the last two. 361
NLRB 1404, 1418. Since the Yeshiva University Court did not give a precise analytical 5
framework to determine the managerial status of university faculty and left the Board to proceed
on a case-by-case basis, the Board in Pacific Lutheran stated that it would now apply Yeshiva
University to develop a “new approach” that is more “workable” and “predictable” to help guide
employers, unions, and employees. Id., slip op. at 16. Under the new approach, the Board will
examine “both the breadth and depth of the faculty’s authority at the university,” giving more 10
weight to those areas of policy-making that affect the university as a whole, and seeking to
determine whether the faculty actually exercise control or make effective recommendations over
those policy areas. Id., at 1419–1421. Specifically, the Board will examine the faculty’s
participation in decision-making concerning: academic programs, enrollment management
policies, finances, academic policies, and personnel policies and decisions. Id., at 1418. The 15
Board will put greater weight on the first three areas. Id.
In applying the new standard, the Pacific Lutheran Board concluded that the employer
failed to prove that its full-time contingent faculty exercised sufficient managerial authority to
justify their exclusion from the petitioned-for unit of contingent faculty because there was 20
insufficient evidence that the faculty were substantially involved in decision-making affecting
the key primary decision-making areas of academic programs, enrollment management policies,
and finances. Id. Even in the secondary areas of academic policies and personnel policies, the
Board majority found that the full-time contingent faculty members’ authority was limited to
their own classrooms or departments. Id. The Board concluded that their involvement in 25
decision-making areas fell well short of actual control or effective recommendation, given the
University’s decisionmaking structure. Id.
The Act also provides that an individual who is an agent of the employer is, in effect, the
employer for purposes of assessing responsibility in matters over which the Board has 30
jurisdiction. The Board applies common-law principles to determine if an individual possesses
apparent authority to act for an employer. In Comau, Inc., 358 NLRB 593, 595 (2012), the
Board lists the principles as (1) an indication by the principal to a third party that creates a
reasonable belief that the alleged agent has been authorized by the principal to act; and (2) the
principal intended or should have realized that its conduct is likely to create the third party to 35
believe the agent is authorized to act for the principal. See Pan-Oston Co., 336 NLRB 305, 305–
306 (2001).
I again emphasize that because the Respondent is alleging supervisory status, it has the
burden of proving it. Since the Respondent objected to and refused to participate in the 40
proceedings, the record is devoid of evidence from the Respondent establishing that Jorsch was a
supervisor and, or agent of the Respondent. There is nothing, therefore, to rebut the General
Counsel’s credible evidence showing that he was not a supervisor and, or agent. (GC Exhs. 9-9,
10–1, 10–2, 12, 15; Tr. 53–88.) I find, therefore, that the Respondent has failed to establish its
burden of proof.45
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13
Accordingly, I find that Jorsch does not meet the statutory definition of supervisor and, or
agent as defined by Section 2(11) and (13) of the Act.
IV. Sanctions5
Based on the above and the entire record, I find that sanctions against the Respondent are
appropriate. The General Counsel requests that I: (1) draw an adverse inference against the
Respondent; (2) allow the General Counsel to present secondary evidence; and (3) strike portions
of the pleadings. The General Counsel argues that an adverse inference should be drawn that the 10
subpoenaed documents and subpoenaed witnesses “would have provided evidence damaging to
Respondent’s case” because “[a]ll witnesses and documents were within Respondent’s control,
and should have been easily produced.” (GC Br. 9.) In addition, the General Counsel contends
that allowing the General Counsel to present secondary evidence is appropriate because in many
instances the relevant documents can only be accessed by the Respondent; and moreover, the 15
subpoenaed witnesses engaged in conversations with the Charging Parties that are important to
the General Counsel’s case. Last, the General Counsel asserts that multiple paragraphs from the
Respondent’s answer should be stricken because “Respondent did not comply with the
subpoenas, and did not participate at all during hearing” and therefore, the “Respondent should
not be allowed to use these unsupported statements and allegations as grounds for any future 20
arguments.” (GC Br. 12.) See McAllister Towing & Transportation, 341 NLRB 394, 396–397
(2004), enfd. 156 Fed.Appx. 386 (2d Cir. 2005); San Luis Trucking, 352 NLRB 211, 212–214
(2008); Equipment Trucking Co., 336 NLRB 277, 277 fn. 1 (2001); Lenscraft Optical Corp., 128
NLRB 807, 817 (1960).
25
After a careful consideration of procedural history, the parties’ arguments and case law, I
make the following rulings regarding the General Counsel’s request for sanctions
I decline to strike any portion of the Respondent’s answer. Instead, I find it sufficient to
weigh the strength of the Respondent’s answer based on the record of evidence. Likewise, I find 30
it unnecessary to rule on allowing the General Counsel to present secondary evidence. As I
discuss later in the decision, the evidence the General Counsel produced is more than sufficient
to prove its case.
As discussed earlier in this decision, I repeatedly rejected the Respondent’s arguments 35
that the subpoenaed documents and witness testimonies were overbroad, irrelevant, and
improperly sought privileged records. I ordered the Respondent to comply with the subpoena
requests but it refused. Consequently, I find that the circumstances support me taking an adverse
inference that the subpoenaed documents and subpoenaed witnesses “would have provided
evidence damaging to Respondent’s case.” Id. Accordingly, I will apply this sanction where 40
appropriate in this decision. Metro-West Ambulance Service, 360 NLRB 1029, 1030–1031
(2014) (adverse inference appropriate where respondent failed to produce accident reports);
Zapex Corp., 235 NLRB 1239–1240 (1978), enfd. 621 F.2d 328 (9th Cir. 1980) (ALJ should
have drawn an adverse inference that respondent did not establish its burden of proof where
respondent failed to produce subpoenaed documents relevant to the issue).45
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V. Alleged Unfair Labor Practices
Facts
5
A. Overview of Respondent’s Operation
The Respondent is a 501(c)(3) institution of higher learning in Lindsborg, Kansas.
During the period at issue, the College had a student body totaling about 643 students. Two
hundred and ninety-four (294) of the students had no religious affiliation, about 341 were from 10
the various denominations of Christianity, and a small number were of a non-Christian faith. (GC
Exh. 11.) Robert Carlson (Carlson) is the provost and academic dean of the College; and Jones
is its president.
15
B. Jorsch Denied Tenure and Terminated
The Respondent’s policy on the tenure review process is set forth in its handbook. The
Respondent’s tenure process uses “a portfolio approach that enables development of goals and an
assessment of the progress achieved” by the tenure candidate. (GC Exh. 12.) A faculty review 20
committee is established to review the tenure candidate’s portfolio “detailing teaching,
scholarship, and service activities”, and meet with the candidate if clarification of the candidate’s
portfolio is needed. Thereafter, the faculty review committee forwards a recommendation on
tenure to the president of the College. If the College president concurs with the
recommendation, the president will submit it to the board of director. However, in those 25
instances where the president disagrees with the faculty review committee’s decision, the
College president will meet with the committee to discuss the recommendation. “The president
may elect, after meeting with the committee, to concur with the committee’s recommendation, in
which event the recommendation will be submitted to the Board, or the president may elect to
disagree with the recommendation, in which event the recommendation will be reported to the 30
Board.” (GC Exh. 12 at 110.) If a tenure candidate disagrees with the recommendation, the
candidate may request a review of the decision through the faculty grievance procedure. Id.
In late November or early December, Jorsch was reviewed for tenure by the faculty
review committee. Professors Laurenelle Lockyear (Lockyear), Dan Masterson (Masterson), and 35
Gail Konzem (Konzem) served on his committee. After reviewing the required materials, the
faculty review committee prepared a summary report, which was provided to Jorsch,
recommending him for tenure. (GC Exh. 13.) The Provost Carlson also recommended Jorsch for
tenure. The recommendation was forwarded to Jones with a request that he submit it the board
of directors for final approval. On April 20, Jorsch met with Jones who told him that he was 40
tabling his tenure pending completion of a “plan” that he would receive at a later date. Jorsch
was surprised at this development because it was his understanding that the tenure review
process did not require him to complete any type of plan before being granted tenure. His
faculty appointment letter for the 2017–2018 academic year, which was signed and authorized by
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15
Carlson and Jones, notes that he is eligible for tenure promotion. Moreover, by letter dated
February 28, he was informed that,
As you know you are eligible for Tenure and Promotion pending Board Approval.
The Faculty Review Committee and the Provost continue to support their positive 5
recommendation for you. The Board has elected to make these decisions at their
May 2017 meeting … Based on Board action in May, your contract for 2017 –
2018 will be revised accordingly.
(GC Exh. 15.) There was no mention in the cover letter or faculty appointment letter that10
Jorsch’s ongoing employment with the Respondent was contingent on his signing or successfully
completing a “plan”.
Immediately after his April 20 meeting with Jones, Jorsch met with Faculty Chair and
Associate Professor of English Dr. Kristin Van Tassel (Van Tassel) to tell her and express his 15
“surprise” about what happened in his meeting with Jones. Subsequently, Van Tassel met with
Jones for about an hour in an attempt to understand why he refused to submit to the board of
directors the faculty review committee’s recommendation of Jorsch for tenure. She also tried to
change his mind about his decision. In addition, on April 20, Jorsch telephoned Pigge to tell her
about the events surrounding his tenure review and Jones’ action blocking the committee’s 20
recommendation that he be given tenure. She expressed shock. Later, Jorsch had another
conversation with Pigge where she told him that she had spoken about his situation with a
colleague, Athletic Director and Dean of Students Dane Pavlovich (Pavlovich). Pavlovich, in
turn, told Jones about their conversation. Consequently, Jones called Pigge into his office and
berated her for discussing Jorsch’s situation, and further warned Pigge that any attempt by her or25
Jorsch to rally the College faculty in support of Jorsch would “meet with consequences”. I am
taking an adverse inference that if the Respondent had complied with my order to compel Pigge
to testify she would have corroborated Jorsch’s version of their interactions and conversations.
On May 19, Jorsch and Jones met for Jones to give him a “Plan to Achieve Positive 30
Tenure Recommendation” (the plan). (GC Exh. 14.) According to the plan, it was being issued
because of concerns relating to Jorsch’s alleged “anger/temper issues and collegiality issues . . .”
(GC Ehx. 14.) Williams and Carlson were the officials responsible for deciding whether Jorsch
successfully completed the plan. The plan contained a confidentiality provision which prevented
him from discussing the plan with anyone other than, presumably, Jones and Carlson. The plan 35
stated in part,
Additionally, by signing below, you are agreeing, committing, and contracting
with Bethany College to keeping the contents of this plan confidential and not to
discuss or to share any part of it with others. If any part of the agreement is shared 40
on campus, with the public, or with others, you can face legal action.
(GC Exh. 14.)
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Jorsch was concerned that the plan was too vague and ambiguous. He felt it did not contain
standards or a specific set of criteria for him to meet, nor clearly explain why he was not
considered “collegial”. Jorsch was worried that the manner in which his tenure process was
handled would become precedent for other tenure and promotion matters for faculty.
Consequently, at the AAUP’s annual meeting, he met with Professor Ronald Barrett (Barrett), 5
AAUP president and co-committee chair for the State of Kansas Conference of the AAUP, about
his concerns and to ask for the AAUP’s assistance regarding the tenure and promotion process at
the College. Jorsch expressed to Barrett that he was concerned not only with his personal
situation but also the integrity of the entire tenure and promotion process at the College and its
impact on current and future faculty.10
AAUP conducted an investigation into Jorsch’s complaints, and found that he had been
denied tenure in violation of AAUP’s national, state, and local standards. As part of its
investigation, AAUP interviewed at least five people at the College who confirmed Jorsch’s
version of events surrounding his tenure process. In addition, AAUP found fault with the tenure15
decision because of the reliance on “collegiality” as a basis for the denial. The AAUP agreed
with Jorsch that determining “collegiality” is too subjective; and therefore, the College’s reliance
on it to deny Jorsch tenure and its handling of the tenure process was in opposition to the shared
governance model followed by the AAUP and its members. Consequently, the AAUP met as a
committee comprised of eight people from institutions across the state; and the committee 20
decided to issue a letter, on behalf of Jorsch, to the Higher Learning Commission (HLC), which
oversees accreditation of various institutions in their region. (GC Exh. 7.) In a letter addressed to
the HLC’s vice president for accreditation relations, Dr. Anthea Sweeney, the AAUP expressed
its concern that “some extremely troubling dynamics have come to our attention involving the
tenure process at Bethany that seem counter to national AAUP norms. We are concerned about 25
what appears to be a fundamental lack of institutional integrity in the promotion and tenure
process. Many faculty members at Bethany expressed fear of being capriciously dismissed …”
Id. Subsequent to its investigation, AAUP provided Jorsch with a list of attorneys to consult.
On June 22, a day prior to the AAUP’s letter to the HLC, Jorsch sent an open-letter to 30
Jones via email, and copied the entire college faculty and the chair of the board of directors,
because he felt that the manner in which his tenure process was handled had negative
implications for all faculty members, particularly those in line for tenure. The letter stated in
part,
35
It is my wish that this letter opens a dialog on campus that helps define the
relationship between faculty and administration, the importance of a fair and open
tenure process…While I am hopeful you will change your mind, support my
tenure and promotion, and send it to the Board of Directors for their approval, I
am more concerned about the fair treatment of current and future faculty.40
(GC Exh. 16.) Jones responded to Jorsch’s email with his own email to the entire faculty. (GC
Exh. 17.) He did not directly address Jorsch’s concerns but instead noted that he did not want to
discuss, through a “community-wide email conversation”, the College’s mission and core values
as they relate to tenure. Approximately an hour after Jorsch sent the faculty-wide email, his 45
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email account at the College was terminated. Guinn, Jorsch’s wife and adjunct history professor,
also had her email account terminated later in the afternoon on June 22 by the Respondent.
By letter dated June 26, Jones issued Jorsch a letter of termination. (GC Exh. 18.) Jones
wrote that Jorsch was being discharged because his open letter “was [a] blatant act of 5
insubordination and was exacerbated by your choice to publicize the issues by sending copies of
the letter to the Bethany College faculty and others. For that reason, I have determined that your
employment with Bethany College is terminated immediately.” Id. After receiving notification
of his termination, Jorsch spoke briefly with Pigge about getting another faculty member to teach
his classes. Although Guinn had not been terminated at this point, Pigge told Jorsch that the 10
administration informed him Guinn would not be considered to cover his classes. I am taking an
adverse inference that if the Respondent had complied with my order to compel Pigge to testify
she would have corroborated Jorsch’s version of their conversation.
C. Guinn’s Tenure with the Respondent15
Guinn and Jorsch negotiated a part-time assistant professorship for her when Jorsch was
hired as a full-time tenure track professor. She was employed by the Respondent from August
2014 to May 2017 to teach history. As part of the hiring process, Guinn spoke with the provost
by telephone a couple of times. She was never told by anyone at the College that she was 20
responsible for maintaining the College’s religious environment; the College’s religious
affiliation and environment were never mentioned; and she was never told that she had to
incorporate religious doctrine into her teaching nor told she was required to perform a religious
role. Moreover, none of the aforementioned was ever mentioned or required of her after she was
hired. Likewise, Guinn’s employment contracts for 2014–2015 and 2016–2017 contained 25
nothing about her having a responsibility to maintain a Christian lifestyle or perform a religious
role.
Pigge was Guinn’s immediate supervisor. Pigge was also responsible for obtaining
approval for renewing all adjunct professors’ employment contracts each year. In early or mid-30
April, Guinn passed Pigge in the hallway on campus and Pigge mentioned to her that she had
submitted the requests for adjunct professor approvals for the fall semester. A few weeks after
that encounter, Guinn received an email from Pigge asking her to pick the books for the history
classes Guinn was teaching in the fall so that Pigge could order the books. In early May, Guinn
received an email from Assistant Dean of Academic Affairs Professor Melody Steed (Steed)35
asking her to teach two freshman courses. Despite, however, it being implied by Pigge that the
renewal of Guinn’s employment contract had been submitted for approval, being asked to teach
two classes in the fall, and asked to choose books to order for the history classes she was
scheduled to teach, Pigge’s teaching contract was not renewed. Jorsch told Guinn that Pigge
stated Guinn would no longer be teaching history courses. Guinn believes she was terminated 40
because of the email her husband sent to Jones and copied faculty-wide.
45
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D. Respondent’s Confidentiality Rule
Since about December 29, 2016, the Respondent has maintained the following rule:
Bethany’s policy is to ensure that its operations, activities, business affairs, and 5
the files of alumni, faculty, employees, and students are kept confidential to the
greatest possible extent. During the course of their employment, employees will
acquire confidential or proprietary information about Bethany, employees and its
students. Such information shall be kept in strict confidence and not discussed
with anyone other than the appropriate Bethany employees. Employees also are 10
responsible for the internal security of such information. Violation of this policy
shall subject the employee to disciplinary action up to and including termination
of employment.
(GC Exh. 12 at p. 125.)15
VI. Discussion and Analysis
A. Confidentiality Rule
20
The General Counsel argues that the Respondent’s confidentiality rule is overly broad
and, therefore, the Respondent has been interfering with, restraining, and coercing employees in
the exercise of their Section 7 rights. Since the Respondent refused to participate in the
proceedings, there was no counterargument presented.
25
Under Boeing Co.,8 the Board has held that it will “no longer find unlawful the mere
maintenance of facially neutral employment policies, work rules and handbook provisions based
on a single inquiry, which made legality turn on whether an employee ‘would reasonably
construe’ a rule to prohibit some type of potential Section 7 activity that might (or might not)
occur in the future.”9 Consequently, the Board established the following analytic framework:30
[W]hen evaluating a facially neutral policy, rule or handbook provision that, when
reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the
Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA
rights, and (ii) legitimate justifications associated with the rule. We emphasize that the 35
Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper
balance between . . . asserted business justifications and the invasion of employee rights
in light of the Act and its policy,” . . . focusing on the perspective of employees, which is
consistent with Section 8(a)(1). . . . As the result of this balancing, . . . the Board will
delineate three categories of employment policies, rules and handbook provisions40
(hereinafter referred to as “rules”):

8 365 NLRB No. 154 (2017).
9 365 NLRB No. 154, slip op. at 2.
JD–72–18

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● Category 1 will include rules that the Board designates as lawful to maintain,
either because (i) the rule, when reasonably interpreted, does not prohibit or
interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on
protected rights is outweighed by justifications associated with the rule. Examples
of Category 1 rules are … the “harmonious interactions and 15 relationships” rule 5
that was at issue in William Beaumont Hospital, and other rules requiring
employees to abide by basic standards of civility . . ..
● Category 2 will include rules that warrant individualized scrutiny in each case as
to whether the rule would prohibit or interfere with NLRA rights, and if so,10
whether any adverse impact on NLRA-protected conduct is outweighed by
legitimate justifications.
● Category 3 will include rules that the Board will designate as unlawful to
maintain because they would prohibit or limit NLRA-protected conduct, and the 15
adverse impact on NLRA rights is not outweighed by justifications associated
with the rule. An example of a Category 3 rule would be a rule that prohibits
employees from discussing wages or benefits with one another.
Boeing at slip op. 3–4. Analyzing the Respondent’s confidentiality rule under category 1 of the 20
Boeing test yields a finding that the Respondent’s rule violates the Act. While I acknowledge
that employers have a legitimate interest in safeguarding their confidential and proprietary
information, read in context, this rule also encompasses the disclosure and discussion of
employee wages, disciplinary actions, performance appraisals, personnel documents, and other
terms and conditions of employment. The Board has consistently held that this type of broadly 25
worded rule is inconsistent with the Act. Hyundai America Shipping Agency, 357 NLRB 860,
(2011) (work rule unlawful that prohibited “[a]ny unauthorized disclosure from any employee’s
personnel file”); Battle’s Transportation, Inc., 362 NLRB 125 (2015) (Board held unlawful
employer’s confidentiality agreement prohibiting employees from divulging “human resources
related information” and “investigations by outside agencies”); Flex Frac Logistics, LLC, 358 30
NLRB 1131, slip op. at 1 (finding unlawful employer’s rule prohibiting employees from
disclosing “personnel information and documents” to nonemployees with the threat of
“termination” or “legal action” for violating the rule). The provision is overbroad because its
wording encompasses and precludes employees from revealing employee contact information
without distinguishing “between information obtained in the normal course of work or 35
information obtained from Respondent’s files or even between information obtained by
employees from contact with or discussion with other employees.” Costco Wholesale Club, 358
NLRB 1100, 1116. See also Anserphone of Michigan, Inc., 184 NLRB 305, 306 (1970)
(employee obtained names and contact information of employees from office manager, who was
lawfully in possession of the information). It is not only overly broad but also ambiguous 40
because it leaves employees to guess what information is “confidential.” Moreover, employees
could interpret this provision as a prohibition against disclosing or discussing wages and salary,
employee contact information, and other terms and conditions of employment.
JD–72–18

20
Regardless whether the Respondent’s confidentiality rule is analyzed under category 1, 2,
or 3, the Respondent produced no evidence to show that there are justifications associated with
the rule that outweigh the potential adverse impact on protected rights.
Accordingly, I find that the Respondent’s rule is so broad as to restrict employees’ right 5
to engage in concerted protected activity and thus violates Section 8(a)(1) of the Act.
B. May 19, Employee Prohibited from Disclosing Terms of a Tenure Plan
The General Counsel argues that the provision in the tenure plan threatening Jorsch with 10
legal action if he discloses its contents “on campus, with the public, or with others” is “an
attempt to coerce, interfere, or restrain his exercise of those Section 7 rights and violates Section
8(a)(1) of the Act.” (GC Br. 27.) Since the Respondent refused to participate in the
administrative trial, it did not present an argument or evidence to refute this allegation.
15
Section 8(a)(1) of the Act provides that 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
of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid 20
or protection.” See Brighton Retail, Inc., 354 NLRB 441, 441 (2009). The Board has
established an objective test for determining if “the employer engaged in conduct which would
reasonably have a tendency to interfere with the free exercise of employee rights under the Act.”
Santa Barbara New-Press, 357 NLRB No. 51, slip op. at 25 (2011). This objective standard
does not depend on whether the “employee in question was actually intimidated.” Multi-Ad 25
Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). The mere threat of
an unspecified reprisal is sufficient to support a finding that the employer has violated Section 8
(a)(1) of the Act. Metro One Loss Prevention Services Group, 356 NLRB No. 20, slip op. at 1
(2010).
30
I find that the Respondent, through Jones, unlawfully precluded an employee from
discussing his concerns about the College’s tenure plan and his perception of its unfair and
subjective nature with other employees. The facts establish that Jones met with Jorsch on May
19, to inform him that he would not concur with the Faculty Review Committee’s
recommendation of him for counsel until he successfully completed the plan. It is also 35
undisputed that the plan contained a provision precluding Jorsch from discussing or sharing it
with others or he could face legal action. See Flex Frac Logistics, LLC, 358 NLRB 1131, 1131
(finding unlawful employer’s rule prohibiting employees from disclosing “personal information
and documents” to nonemployees with the threat of “termination” or “legal action” for violating
the rule); Taylor Made Transportation Services, Inc., 358 NLRB 427, 434–435 (2012) (finding 40
unlawful employer’s issuance of a memorandum reminding employees of its unlawful policy
prohibiting discussions about wages with threat of discipline up to and including termination).
See Kinder-Care Learning Centers, supra. (employer rule prohibiting employees from discussing
their terms and conditions of employment with parents of children enrolled in the school violates
the Act); Verizon Wireless, 349 NLRB 640 (2007) (banning employees from discussing 45
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21
workplace concerns about discipline violates the Act). The Respondent produced no evidence to
show why its action did not violate Section 7 of the Act; and I draw an adverse inference that if
the Respondent had complied with my order to respond to the General Counsel’s subpoena duces
tecum and subpoena ad testificandum the evidence would have shown the Respondent could not
prove that its action did not violate the Act. 5
Accordingly, I find that Respondent violated Section 8(a)(1) of the Act when the
Respondent threatened Jorsch with legal action for discussing terms and conditions of
employment with “others”, which would include coworkers.
10
C. June 23, Respondent Prohibited Employees from Discussing Terms and Conditions of
Employment with Fellow Workers
The General Counsel argues that Jones’ June 23 email response to Jorsch’s open letter
explicitly “expressly discourages any continued discussion of the issues raised in Dr. Jorsch’s 15
open letter” in “an attempt to coerce, interfere, or restrain his exercise of those Section 7 rights
and violates Section 8(a)(1) of the Act.” (GC Br. 27.) Since the Respondent refused to
participate in the administrative trial, it did not present an argument or evidence to refute this
allegation.
20
Employers cannot interfere with, restrain, or coerce employees in the exercise of rights
guaranteed to them in Section 7 of the Act. Yoshi’s Japanese Restaurant & Jazz House, 330
NLRB 1339, 1339 fn. 3 (2000). The evidence is irrefutable that in his response to Jorsch’s open
letter, Jones referred to the plan as “confidential” and noted he would not share any information
from the plan. In addition, Jones specifically wrote he did not want the College faculty to 25
discuss the issues raised in Jorsch’s open letter, nor discuss those issues related to the College’s
mission and core values and their relationship to tenure. (GC Exh. 17.) I find that Jones’
statements coupled with the terminations of Jorsch because of his open-letter and Guinn because
of her relationship to Jorsch are strong evidence of the Respondent’s attempt to coerce, interfere
or restrain employees in the exercise of their Section 7 rights.30
Accordingly, I find that the Respondent, through Jones’ June 23 email, prohibited
employees from discussing terms and conditions of employment with each other in violation of
Section 8(a)(1) of the Act.
35
D. June 26, Respondent Notified Employees of Termination for Engaging in Protected
Concerted Activity
The General Counsel argues that the letter of termination Jones issued to Jorsch on June
26, violated the Act because it expressly informed Jorsch that he would be discharged because of 40
his communication with other faculty about terms and conditions of their employment. Since the
Respondent refused to participate in the administrative trial, it did not present an argument or
evidence to refute this allegation.
JD–72–18

22
The evidence is undisputed that in the June 22 email Jorsch sent to Jones and the entire
College faculty, Jorsch raised concerns about the tenure process as it related to him and current
and future faculty. The tenure process affects faculty members’ terms and conditions of
employment, and therefore, their discussions among themselves or with others about it is
protected under the Act. The evidence establishes that in the termination letter issued to Jorsch, 5
Jones wrote that the action was being taken specifically because of Jorsch’s open letter to him
and the College faculty in which he raised concerns about the tenure process. Jones wrote,
“Your letter to me was [a] blatant act of insubordination and was exacerbated by your choice to
publicize the issues by sending copies of the letter to the Bethany College faculty and others. For
that reason, I have determined that your employment with Bethany College is terminated 10
immediately.” (GC Exh. 18.) Jones’ letter can be no clearer evidence that the Respondent
notified employees that they would be terminated for engaging in protected concerted activity.
Accordingly, I find that the Respondent, through Jones’ June 26 letter of termination to
Jorsch, informed employees that they were being terminated for engaging in protected, concerted 15
activities in violation of Section 8(a)(1) of the Act.
E. Jorsch’s Termination
The General Counsel argues that under a Wright Line10 analysis the Respondent 20
unlawfully discharged Jorsch because he engaged in protected concerted activity. In its answer to
the complaint, the Respondent admits to discharging Jorsch but denies that it was done for
unlawful reasons. (GC Exh. I-S.)
An employer violates Section 8(a)(1) of the Act if it disciplines or discharges an 25
employee for engaging in activity that is “concerted” within the meaning of Section 7 of the Act.
If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the
employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action was motivated by the employee’s
protected, concerted activity. Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. 30
Prill v. NLRB 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented
281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988). Once the General Counsel establishes such an initial showing of
discrimination, the employer may present evidence, as an affirmative defense, showing it would
have taken the same action even in the absence of the protected activity. The General Counsel 35
may offer evidence that the employer’s articulated reasons are pretext or false. Id.
As with 8(a)(3) discrimination cases, the Board applies the Wright Line11 analysis to
8(a)(1) concerted activity cases that involve disputes about an employer’s motivation for taking
an adverse employment action against employees. The burden is on the General Counsel to 40
initially establish that a substantial or motivating factor in the employer’s decision to take
adverse employment action against an employee was the employee’s union or other protected

10 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).
11 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).
JD–72–18

23
activity. Under the Wright Line framework, as developed by the Board, the elements required
for the General Counsel to show that protected activity was a motivating factor in an employer’s
adverse action are: (1) union or protected activity; (2) an employer’s knowledge of that activity;
and (3) discriminatory animus on the part of the employer. Adams & Associates, Inc., 363 NLRB
No. 193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB 1298, 1301 (2014); enf. 801 F.3d 5
767 (7th Cir. 2015). Once the General Counsel has met its initial showing that the protected
conduct was a motivating or substantial reason in employer’s decision to take the adverse action,
the employer has the burden of production by presenting evidence the action would have
occurred even absent the protected concerted activity. The General Counsel may offer proof that
the employer’s articulated reason is false or pretextual. Iron Mountain Forge Corp., 278 NLRB 10
255, 263 (1986). Ultimately, the General Counsel retains the ultimate burden of proving
discrimination. Wright Line, id. However, where “the evidence establishes that the reasons
given for the Respondent’s action are pretextual—that is, either false or not in fact relied upon—
the Respondent fails by definition to show that it would have taken the same action for those
reasons, absent the protected conduct, and thus there is no need to perform the second part of the 15
Wright Line analysis.” Golden State Foods Corp., 340 NLRB 382, 385 (2003) (citing Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)). The Wright Line
analysis is not applicable when there is no dispute that the employer took action against the
employee because the employee engaged in protected concerted activity. Phoenix Transit
System, 337 NLRB 510, 510 (2002), enfd. 63 Fed.Appx. 524 (D.C. Cir. 2003).20
i. Jorsch’s Actions Constitute Protected Concerted and Union Activity and
Respondent was aware of the protected concerted nature of his activities
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and Meyers Industries (Meyers 25
II), 281 NLRB 882 (1986), the Board held that “concerted activities” protected by Section 7 are
those “engaged in with or on the authority of other employees, and not solely by and on behalf of
the employee himself.” However, the activities of a single employee in enlisting the support of
fellow employees in mutual aid and protection is as much concerted activity as is ordinary group
activity. Individual action is concerted if it is engaged in with the object of initiating or inducing 30
group action. Whittaker Corp., 289 NLRB 933 (1988); MCPC, Inc., 360 NLRB 216 (2016).
Jorsch engaged in protected concerted and union activity when (1) he contacted AAUP
with his concerns about the Respondent’s actions involving his tenure review and its possible
impact on current and future faculty; and (2) he wrote the email to Jones and copied the faculty 35
detailing his fears that Jones had degraded the integrity of the tenure process for himself and
current and future faculty. Jorsch specifically noted in his faculty-wide email to Jones that he
wrote it to start an open dialogue among the faculty and management about the “breakdown” in
the College’s tenure process and restore integrity to the system for current and future tenure
candidates. (GC Exh. 16.) Likewise, he sought assistance from AAUP in reaching out to the 40
College to fix its tenure process so that it comports with the standards and criteria AAUP and
HLC member institutions have committed to using in making decisions on tenure. See, Fresh &
Easy Neighborhood Market, Inc., 361 NLRB 151, 153 (2014) (explaining the “mutual aid or
protection” analysis focuses on whether there is a connection between the activity “and matters
JD–72–18

24
concerning the workplace or employees’ interests as employees.”); Caesar’s Palace, 336 NLRB
271 (2001); Verizon Wireless, 349 NLRB 640, 658–659 (2007).
It is undisputed that the Respondent was aware of Jorsch’s protected concerted activity
because the day after Jorsch wrote the open letter Jones responded to it. Likewise, the evidence 5
is undisputed the Respondent was that Jorsch contacted AAUP to advocate on behalf of him and
current and future faculty members who are or will go through the tenure process.
ii. The Respondent’s Motivation for Discharging Jorsch
10
In KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe, 366 NLRB No. 22
(2018), the Board wrote that “[w]hen, . . ., an employer defends a discharge based on employee
misconduct that is a part of the res gestae of the employee’s protected concerted activity, the
employer’s motive is not at issue. Instead, such discharges are considered unlawful unless the
misconduct at issue was so egregious as to lose the protection of the Act. See, e.g., Consumers 15
Power Co., 282 NLRB 130, 132 (1986) (“[W]hen an employee is discharged for conduct that is
part of the res gestae of protected concerted activities, the relevant question is whether the
conduct is so egregious as to take it outside the protection of the Act . . .”) (footnote omitted). To
answer this question, the Board balances employees’ right to engage in concerted activity,
allowing some leeway for impulsive behavior, against employers’ right to maintain order and 20
respect. Piper Realty Co., 313 NLRB 1289, 1290 (1994); NLRB v. Thor Power Tool Co., 351
F.2d 584, 587 (7th Cir. 1965), enfg. 148 NLRB 1379 (1964). KHRG at slip op. at 2.
Based on the evidence, I find that the Respondent’s motive for terminating Jorsch is not
at issue because the Respondent admits that it discharged Jorsch solely because he sent Jones a 25
letter complaining about Jones’ deviation from the College’s established tenure process and its
effect on him and current and future tenure candidates. In the termination letter issued to Jorsch,
Jones wrote that Jorsch’s open letter “crossed a professional line” and it was the sole reason for
his termination. Moreover, there is nothing in Jorsch’s email to Jones and the faculty to show
that the email violates any of the Respondent’s lawful rules, regulations, or guidelines. Despite 30
Jones’ contention to the contrary, I also find nothing in the record to indicate that Jorsch’s action
“crossed a professional line.” Consequently, I find that the Respondent did not established its
burden of showing that Jorsch lost protection of the Act because of his action.
Accordingly, I find that the Respondent discharged Jorsch in violation of Section 8(a)(1) 35
and (3) of the Act.
F. Guinn’s Termination
The General Counsel argues that Guinn was discharged because of her husband’s 40
protected activity; and points to the timing of her termination as evidence of the Respondent’s
unlawful motivation. The Respondent outright denies discharging Guinn. Id.
The Board considers several factors in determining whether an inference of
discriminatory animus can be sustained. The factors to consider are proffering false reasons in 45
JD–72–18

25
defense of taking the adverse action, disparate treatment of certain employees with similar work
records or offenses, deviation from past practice, and the proximity in time of the discipline to
the protected activity. Embassy Vacation Resorts, 340 NLRB 846, 847 (2003); Austal USA, LLC,
356 NLRB 363, 363 (2010); Lucky Club Co, 360 NLRB 271 (2014).
5
I find that the timing of the Respondent’s decision to not to renew Guinn’s appointment
almost simultaneously to Jorsch’s protected activity is strong evidence that the action was taken
because of the Respondent’s animus towards Jorsch’s exercising his Section 7 rights. In early or
mid-April, Guinn passed Pigge in the hallway on campus and Pigge mentioned to her that she
had submitted the requests for adjunct professor approvals for the fall semester. A few weeks 10
after that encounter, Guinn received an email from Pigge asking her to pick the books for the
history classes Guinn was teaching in the fall so that Pigge could order the books. I am taking an
adverse inference that if the Respondent had complied with my order to compel Pigge to testify
she would have corroborated Guinn’s version of their interactions and conversations. It is
undisputed that in early May, Guinn received an email from Assistant Dean of Academic Affairs 15
Professor Melody Steed (Steed) asking her to teach two freshman courses.
There is no evidence that from May until Jorsch sent his faculty-wide email on June 22
that the Respondent had changed its plan to renew Guinn’s contract. However, the same day that
Jorsch sent his open-letter, Guinn’s College email account was terminated, Pigge informed 20
Jorsch that Guinn would not be allowed to take over his classes, and Pigge told Jorsch that Guinn
would no longer be allowed to teach history courses. Since she was appointed to teach history, it
is obvious that Pigge was conveying to Jorsch that Guinn’s contract would not be renewed. The
Respondent proffered no reason for its decision to cancel Guinn’s email account, preclude her
from teaching Jorsch’s classes after his termination, and not renew her teaching contract. 25
Likewise, there is no documentary evidence to support a legitimate non-discriminatory reason
for the Respondent’s refusal to renew Guinn’s contract. The absence of evidence to show the
Respondent had a legitimate non-discriminatory reason for its action which was not pretext for
discrimination coupled with the timing of the Respondent’s failure to renew Guinn’s contract,
leads me to a finding that the Respondent’s action was taken because of discriminatory animus.30
Accordingly, I find that the Respondent violated Section 8(a)(1) and (3) of the Act when
it discharged (or failed to renew the teaching appointment) Guinn.
Conclusions of Law35
1. The Respondent, Bethany College, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated the Act by the following conduct:40
a. Discharging Thomas Jorsch and Lisa Guinn on June 27, 2017
b. Since about December 29, 2016, promulgating and maintaining a rule prohibiting
its employees from speaking about terms and conditions of employment with each
other or others45
JD–72–18

26
c. On about May 19, 2017, asked employees to sign an agreement not to disclose a
proposed Tenure Plan
d. On about June 23, 2017, prohibited employees from discussing terms and
conditions of employment with each other or others
e. On about June 26, 2017, informed employees that they were being discharged for 5
engaging in protected concerted activities
3. The above violations are unfair labor practices that affects commerce within the
meaning of Section 2(6) and (7) of the Act.
10
4. The Respondent has not violated the Act except as set forth above.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall 15
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent having discriminatorily discharged its employees, Thomas Jorsch and
Lisa Guinn, must offer Thomas Jorsch and Lisa Guinn reinstatement and make them whole for 20
any loss of earnings and other benefits they suffered as a result of the discrimination against
them from the date of the discrimination to the date of their reinstatement. Further, the
Respondent must remove from its files (both official and unofficial) all references to the
discharges of Thomas Jorsch and Lisa Guinn.
25
Backpay because of the discriminatory discharge shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). The Respondent shall file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters. The Respondent shall also compensate 30
Thomas Jorsch and Lisa Guinn for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year, Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101 (2014).
As I concluded that the Respondent’s confidentiality provision is unlawful, the 35
recommended order requires that the Respondent revise or rescind the unlawful rule, and advise
its employees in writing that the said rule has been so revised and rescinded.
Further, the Respondent will be required to post and communicate by electronic post to
employees the attached Appendix and notice that assures its employees that it will respect their 40
rights under the Act.
JD–72–18

27
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
5
The Respondent, Bethany College, Lindsborg, Kansas, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
10
(a) Discharging or otherwise discriminating against its employees in retaliation for their
protected concerted activities.
(b) Promulgating and maintaining a confidentiality policy that requires its employees to
refrain from discussing their terms and conditions of employment with each other or others.15
(c) Asking employees to sign an agreement not to disclose the details of a proposed
Tenure Plan
(d) Prohibiting employees from discussing the terms and conditions of their employment 20
with each other or others
(e) Informing employees that they are being discharged for engaging in protected
concerted activities
25
(f) In any like or related manner, interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.30
(a) Within 14 days from the date of the Board’s Order, offer Thomas Jorsch and Lisa
Guinn full reinstatement to their former positions or, if those positions no longer exists, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.35
(b) Within 14 days from the date of the Board’s Order, make Thomas Jorsch and Lisa
Guinn whole for any loss of earnings and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of the decision.
40

12 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–72–18

28
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges of Thomas Jorsch and Lisa Guinn, and within 3 days
thereafter notify Thomas Jorsch and Lisa Guinn in writing that this has been completed and that
the discharges will not be used against them in any way.
5
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.10
(e) Within 14 days after service by the Region, post at its facility in Lindsborg, Kansas,
copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by
the Regional Director for Region 14 (Sub-Region 17), after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 15
days in conspicuous places including all places where notices to employees and members are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 20
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since December 29, 2016.25
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
30
Dated: Washington, D.C. October 31, 2018

Christine E. Dibble (CED)35
Administrative Law Judge

13 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.”
cL±~ ~~,
JD–72–18

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 do anything to prevent you from exercising the above rights.
WE WILL NOT ask you about your discussions with employees.
YOU HAVE THE RIGHT to terms and conditions of employment with other employees and
WE WILL NOT do anything to interfere with your exercise of that right.
WE WILL NOT instruct you not to speak to each other about terms and conditions of
employment.
WE WILL NOT threaten you with prosecution or legal action for talking to other employees,
customers or the general public regarding your working conditions.
WE WILL NOT fire employees because they exercise their right to discuss terms and
conditions of employment with other employees.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL offer Thomas Jorsch and Lisa Guinn their jobs back along with their seniority and all
other rights or privileges.
WE WILL pay with interest Thomas Jorsch and Lisa Guinn for the wages and other benefits
they lost because we fired them.
WE WILL compensate Thomas Jorsch and Lisa Guinn for the adverse tax consequences, if any,
of receiving a lump-sum backpay award.
JD–72–18

WE WILL file a report with the Social Security Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL remove from our files all references to the discharges of Thomas Jorsch and Lisa
Guinn and WE WILL notify them in writing that this has been done and that the discharge will
not be used against them in any way.
BETHANY COLLEGE
(Employer)
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.
1222 Spruce Street – Room 8.302
St. Louis, Missouri 63103-2829
Telephone: 314-539-7770
Hours: 8:00 a.m. to 4:30 p.m. CT
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/14-CA-
201546 or by using the QR code below. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
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 (314) 449-7493.