Bethlehem Temple Learning Center

National Labor Relations Board - Board Decisions

Apr 11, 2000

330 N.L.R.B. 1177 (N.L.R.B. 2000)

BETHLEHEM TEMPLE LEARNING CENTER 1177
Bethlehem Temple Learning Center, Inc. and Cecelia
Rainey. Case 9–CA–35206
April 11, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On August 20, 1998, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a motion to
strike the judge’s decision, and a brief in support of its
motion to strike the judge’s decision. The General
Counsel filed an opposition to the Respondent’s motion
to strike.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order as modified and set
forth in full below. 3

1 We find no merit to the Respondent’s allegations of bias on the part
of the judge. On our full consideration of the record, we find no evi-
dence that the judge prejudged the case, made prejudicial rulings, or
demonstrated bias in his credibility resolutions, analysis, or discussion
of the evidence. We also deny the Respondent’s motion to strike the
judge’s decision, as there is no support for the Respondent’s contention
that the judge’s rulings deprived the Respondent of its right to a fair
and impartial trial.
With respect to the Respondent’s contention that it was unfairly de-
prived of the right to submit evidence of a criminal conviction admissi-
ble under Fed.R.Evid. 609 for the purpose of attacking the credibility of
Cecelia Rainey, we find that the judge did not abuse his discretion in
ruling that the Respondent made this proffer at a point too late in the
trial. See generally U.S. v. Mitan, 966 F.2d 1165, 1176 (7th Cir. 1992),
citing Fed.R.Evid. 611(a) (trial court has broad discretion to reject
rebuttal and surrebuttal testimony and does not abuse it where party had
an opportunity to introduce the evidence at an earlier point).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to include appro-
priate cease-and-desist language as well as the language set forth in
Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container,
325 NLRB 17 (1997).
In his decision, the judge stated that the Respondent’s consultant,
Rayford T. Blankenship, engaged in certain alleged misconduct at the
trial. The judge has recommended that the alleged misconduct be re-
ferred to the General Counsel for institution of appropriate disciplinary
action. Having duly considered the matter, we shall further modify the
judge’s recommended Order, in accordance with Sec. 102.177(e)(1) of
the Board’s Rules and Regulations, to include language referring the
alleged misconduct to the General Counsel for the purpose of conduct-
ing an investigation of the alleged misconduct and performing other
duties consistent with Sec. 102.177(e)(1) of the Board’s Rules.
We deny the Respondent’s request for oral argument, as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
We agree with the judge that the Respondent violated
Section 8(a)(1) of the Act by discharging the alleged
discriminatees for their protected concerted activity. The
credited testimony establishes that on Saturday, July 26,
1997, the alleged discriminatees attended a meeting at
which the Respondent asked its employees to sign a non-
competition agreement. At this meeting, several of the
discriminatees voiced their concern about the agreement.
Two of the Respondent’s officials, Vice President Mary
Jackson and Pastor Johnnie Johnson, indicated at the
meeting that they did not want employees asking ques-
tions about the agreement during the meeting, and that
employees would be terminated if they did not sign the
agreement. They told employees, however, that if they
did not want to sign the agreement they should return the
agreement unsigned with their reasons for not signing
written on the agreement. Jackson stated that if the em-
ployees had questions about or problems with the agree-
ment they should arrange to discuss their concerns with
Jackson in private.
The alleged discriminatees returned their agreements
unsigned. After the meeting, Jackson observed the al-
leged discriminatees gathered together in the parking lot
discussing the noncompetition agreement.
The following business day (Monday), the Respondent
informed the discriminatees that they were terminated for
failing to sign the noncompetition agreement.
At the hearing, the Respondent denied that any of the
alleged discriminatees were terminated for failing to sign
the agreement. Rather, the Respondent offered other
reasons for the terminations, such as tardiness, insubor-
dination and failing to report to work as scheduled,
which the judge found—and we agree—are pretextual.
In addition, the Respondent argued that it made alternate
staffing arrangements because it harbored concerns that
the alleged discriminatees would all not show up for
work that Monday.4
In agreement with the judge, we find that the General
Counsel established a prima facie case, under Wright
Line,5 that the alleged discriminatees’ protected con-
certed activity—most notably the concerns they raised
about the noncompetition agreement and the further dis-
4 In his decision, the judge notes that the Respondent contends that
under K-Bar-B Youth Ranch, 325 NLRB 409 (1998), an employer is
privileged to terminate employees who care for “at-risk” children when
those employees threaten not to work, even if such a threat was con-
certed. The judge found the Respondent’s contention inapplicable here
because, unlike the instant case, the employees in K-Bar-B Youth
Ranch had actually called in sick to protest their treatment by their
employer. We note, however, that in fn. 2 of the Board’s decision in
that case, the Board found it unnecessary to rely on the judge’s conten-
tion, that “even if the sick-out were found to be protected concerted
activity, the employees’ conduct was indefensible.” Thus, contrary to
the judge and the Respondent, that case does not establish an exception
to the rule that employees may not be terminated for engaging in pro-
tected concerted activity.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
330 NLRB No. 166
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
cussions held in the parking lot after the meeting—was a
motivating factor in the Respondent’s decision to termi-
nate them. We agree with the judge that the timing of
the terminations, the pretextual reasons given for the
terminations, the Respondent’s negative reaction to the
employees’ attempts to ask questions about the agree-
ment at the meeting, and the Respondent’s reliance on its
concern that the employees would engage in a work
stoppage, all suggest that the true motive for the dis-
charge was the discriminatees’ concerted opposition to
the Respondent’s noncompetition agreement. We further
note that the Respondent has denied that the discharges
were due to the alleged discriminatees’ failure to sign the
noncompetition agreements, and has failed to offer any
reason for the terminations apart from the reasons we
have rejected above. We thus find that the Respondent
has failed to sustain its burden under Wright Line of
showing that these employees would have been termi-
nated even in the absence of their protected activity.
Accordingly, we adopt the judge’s finding that the termi-
nations violated Section 8(a)(1) of the Act as alleged.
ORDER
The Respondent, Bethlehem Temple Learning Center,
Inc., Cincinnati, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Terminating employees for engaging in protected
concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days form the date of this Order, offer
Elaina Bohanon, Robert Echoes, Kevin Ellerbe, Nekia
Frye, Tiffany Johnson, Donna Mobley, Dwight Mobley,
Ursula Nelson, Cecelia Rainey, and Lashon Valentine
(Davis) full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Elaina Bohanon, Robert Echoes, Kevin El-
lerbe, Nekia Frye, Tiffany Johnson, Donna Mobley,
Dwight Mobley, Ursula Nelson, Cecelia Rainey, and
Lashon Valentine (Davis) whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy
section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful terminations,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Cincinnati, Ohio, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not 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 down the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since July 26, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the alleged misconduct by
the Respondent’s consultant, Rayford T. Blankenship, as
set forth in section III,C of the judge’s decision, is re-
ferred to the Investigating Officer, the Associate General
Counsel, Division of Operations-Management, pursuant
to Section 102.117(e) of the Board’s Rules.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BETHLEHEM TEMPLE LEARNING CENTER 1179

WE WILL NOT terminate employees because of their
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Elaina Bohanon, Robert Echoes, Kevin El-
lerbe, Nekia Frye, Tiffany Johnson, Donna Mobley,
Dwight Mobley, Ursula Nelson, Cecelia Rainey, and
Lashon Valentine (Davis) full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Elaina Bohanon, Robert Echoes, Kevin
Ellerbe, Nekia Frye, Tiffany Johnson, Donna Mobley,
Dwight Mobley, Ursula Nelson, Cecelia Rainey, and
Lashon Valentine (Davis) whole for any loss of earnings
and other interim benefits resulting from their termina-
tions, less any interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful terminations of Elaina Bohanon, Robert Echoes,
Kevin Ellerbe, Nekia Frye, Tiffany Johnson, Donna
Mobley, Dwight Mobley, Ursula Nelson, Cecelia Rainey,
and Lashon Valentine (Davis) and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
BETHLEHEM TEMPLE LEARNING CENTER, INC.
Mark G. Mehas, Esq., for the General Counsel.
Rayford T. Blankenship and John Sturgill, Consultants and
Todd Durham, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Cincinnati, Ohio, on March 3 and 4 and
May 11 and 12, 1998. Subsequent to an extension in the filing
date requested by the Respondent, briefs were filed by the Gen-
eral Counsel and the Respondent. The proceeding is based on a
charge filed on August 15, 1997,1 by Cecelia Rainey, an indi-
vidual. The Regional Director’s complaint dated November 5,
1997, alleges that Respondent Bethlehem Temple Learning
Center, Inc., violated Section 8(a)(1) of the National Labor
Relations Act by discharging employees Elaina Bohanon,
Robert Echoes, Kevin Ellerbe, Nekia Frye, Tiffany Johnson,
Donna Mobley, Dwight Mobley, Ursula Nelson, Cecelia
Rainey, and LaShon Valentine (Davis), because they engaged
in protected concerted activities and to discourage employees
from engaging in those activities.
On a review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing

1 All following dates will be in 1997 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the operation of a day care
center in Cincinnati, Ohio. During the past 12 months it de-
rived gross revenues in excess of $250,000 from its operations,
and it annually purchases and receives goods and materials
valued in excess of $3000 directly from points outside of Ohio.
It admits that at all times material is and has been an employer
engaged in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent’s center was started about 3 years ago to
provide a program for preschool children as well as an after
school program and summer program for children up to age 12,
and it operates in facilities under the sponsorship of Bethlehem
Temple Church.
Director Sharon Morgan runs the day-to-day operation of the
center with duties including, but not exclusively limited to,
payroll, staffing, educational curriculum, and personal relations
with parents of the children attending the center. Mary Jackson
is business administrator/vice president of Bethlehem Temple
Church and she hired Morgan as director. Johnnie L. Johnson
is pastor of Bethlehem Temple Church, chief executive officer,
and president of the Respondent, however, he has little to do
with the day-to-day operation of the center.
As part of her duties as business administrator of the Church,
Jackson began a review of the center after noticing an increase
in expenses and total employee salary, despite stagnant figures
in school enrollment. She discovered several apparent prob-
lems including what she perceived was the falsifying of time-
cards, personal time not being properly documented, unethical
behavior of employees, and excessive absences and tardiness of
employees. The latter problem could cause a “ratio” problem
which put the day care facility in violation of Ohio licensing
standards which required certified care givers for specific num-
bers of children. These concerns prompted her to meet with
Pastor Johnson and to call a staff meeting for July 26. Pastor
Johnson testified that he spoke with an attorney a day or so
before the meeting to find out whether a noncompetition
agreement would be legal. This was said to be a concern be-
cause two or three employees, including Patty Jones, had left
the center and taken children enrolled in the center into their
own home care centers.
Jackson works at an office separate from the center, hires the
director of the center but not the other employees, and she testi-
fied that she is “not interested in employees because they don’t
exactly work for me.” After looking at the employees’ time-
cards in her review of payroll expenses, she concluded that
employees were not clocking in and out properly. She started
an “investigation” and to prepare an audit of the information
showing (among other things), scheduled hours, tardiness, ab-
sences, and early clock outs approximately 2 weeks prior to the
July 26 staff meeting. The audit (dated February 23, 1998),
however, was not done or completed until late December 1997.
The audit was done by Jackson’s secretary who looked at the
timecard and any handwriting that was on them, according to
Jackson’s instructions, to audit their time and see what they
were not entitled to be paid for. In none of the instances were
the employees (or director Morgan) consulted, and Jackson’s
“investigation” and conclusion that the cards were tampered
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
with was based on her viewing of the cards prior to the staff
meeting and the secretary’s figures that were subsequently
prepared.
Based on her preliminary review, Jackson met with Pastor
Johnson on some undisclosed date and apparently brought her
package of concerns to his attention, and it was decided to have
a mandatory staff meeting on Saturday, July 26, and notices to
this effect were mailed to each employee.
Cecelia Rainey was employed as a lead “teacher”2 in the in-
fant room. She was late arriving on July 26, and Jackson who
was conducting the meeting spoke to her about the dress code.
A confidentiality agreement was discussed, passed around, and
collected as employees signed them. The employees then were
asked to sign a noncompetition agreement after being told gen-
erally that former employees had left and started day cares,
causing the Respondent to loose children. Rainey spoke up,
and said it seemed unfair as it would bind them for 3 years, and
asked what the 50-mile radius would include and learned that it
would not be just outside the city limits but also would include
Dayton and parts of Kentucky. She asked if that could be nego-
tiated and was told “no, it’s not negotiable.” She asked about
the 3-year period and testified that the response was “every-
thing was nonnegotiable.” She said Pastor Johnson spoke up
and said, “[I]f you want to work here, sign the paper.” Other
employees were also asking questions and Jackson got on the
microphone and let everyone know that if they wanted to keep
their employment they needed to sign. Rainey wrote, “will not
sign” on the agreement (which had her typed name on it), and
the agreements were collected by Jackson’s secretary.
When the meeting ended, a group congregated outside and
had an informal discussion in which they complained about the
noncompetition agreement. The group including Rainey and
Ursula Nelson, Kevin Ellerbe, Elaina Bohanon, Tiffany John-
son, Nakia Frye, Dwight Mobley, Robert Echols, and LaShon
Valentine. She specifically recalled LaShon Valentine saying,
“Well, they can’t fire us” and that she responded “They can’t
fire all of us for this. We’re all going to work Monday.”
Alleged discriminatee Robert Echoes did not appear as a
witness, however, several of the other witnesses described his
presence at the meeting and in the postmeeting group in the
parking lot. In addition to Rainey’s detailed testimony de-
scribed the background type information of the subjects dis-
cussed at the meeting, other witnesses agreed that a litany of
management complaints were covered, however, the main sub-
ject of controversy with several of the employees was the mat-
ter of signing the noncompetition agreement.
It was quickly established that a number of items relating to
staff conduct were discussed during a 2-hour meeting. Witness
Rainey reaffirmed the subject matters discussed during the
meeting during the Respondent’s cross-examination, most spe-
cifically by affirming the consultant’s questions about what she
had said in her affidavit to a Board agent. Successive witnesses
also affirmed the subject matter of the meeting both on their
direct examination and by reaffirming and corroborating their
testimony by agreeing to questions asked by the Respondent
consultant which inquired if they had made such statements in
their affidavits.

2 The Respondent’s child care “teachers” were required to have a
high school diploma, but apparently were not actually certified as
teachers and did not hold a degree, although they were referred to as
teachers.
Elaina Bohanon worked for 2 years as a teacher’s assistant.
She attended the Saturday staff meeting and first signed the
noncompetition agreement, but they crossed her name out be-
fore turning it in because she wanted to have it looked over by a
lawyer. She understood from Jackson’s remarks that she had to
sign it or “don’t bother to come to work then Monday,” and she
confirmed that Rainey had asked questions at the meeting about
having the agreement looked at by a lawyer. Bohanon (who
worked various shifts), testified that she was scheduled to work
Monday, July 25, from 4 to 10 p.m., but that she received a call
from Director Morgan at 7:30 a.m. telling her not to bother
coming in, that she was fired for not signing the noncompeti-
tion contract.
Rainey was scheduled to work Monday July 28 at 7:30 p.m.
Rainey’s mother, Patricia Ann Hill, testified that earlier on
Monday she had spoken with her granddaughter, Elaina
Bohanon, who also was an employee at the Center who told her
that she had been fired and to tell Cecelia not to come because
she also had been fired. As Hill was partially dependent on
Rainey’s paycheck, she called the Center at about 10 a.m. and
spoke to Director Morgan about Rainey. Morgan confirmed to
Hill that Rainey was fired and told her to tell Rainey “don’t
come in.” Hill asked for a letter to that effect so she could no-
tify the gas and electric company. Morgan said she would con-
vey the request to Jackson, and subsequently, Hill learned that
the utility company had been notified that Rainey was no
longer employed.
Rainey also testified that at some time after the meeting she
went to Johnson and:

I told him—uh, basically after the meeting I said, “My parents
are going to move. And whenever they move, I want to open
a day care.” I said, “So if you hear, through the grapevine that
I opened a day care, it’s not in regards to me trying to be
against the church,” because they have this thing where if
you’re not totally for the church then you’re against the
church.
So I went to him, as my pastor, and I told him that was
my dream, that I am—was in CBA classes, that I want a
day care.

It also was brought out that after Rainey’s sister, Patty Jones,
had been terminated by the Respondent, well before the meet-
ing was held, she obtained a county certification to watch chil-
dren in her home.
Ellerbe testified that he recalls going to work promptly at his
usual starting time at 8:30 a.m. on July 28, and that Morgan
called him into her office as he entered, told him that because
he had refused to sign the noncompetition agreement they
chose to fire him. When he said he wasn’t the only one, Mor-
gan showed him a handful of timecards of other employees, and
told him they were all terminated for the same reason. Ellerbe
testified that at some point in the Saturday meeting Jackson
said if you have a question about the agreement, don’t sign,
bring it to me and we’ll meet privately and discuss it, and that
Jackson and Johnson said that if they did not want to sign it to
write the reasons why on the agreement. He said he was fired
before he could speak to anyone but called Jackson that after-
noon and was connected to Pastor Johnson. Ellerbe told John-
son he had been discharged and spoke about the noncompeti-
tion agreement and asked if it could be limited to people who
start their own business and Johnson responded, “[T]hat that
was how it is and how its going to be.”
BETHLEHEM TEMPLE LEARNING CENTER 1181
Donna Mobley was a teacher assistant in the infant room.
When she questioned Jackson at the meeting and then under-
stood that the agreement prohibited competition within 50-
miles of the center, she wrote “need more information” and
“refuse to sign” on the agreement before returning it. Immedi-
ately after the meeting she attempted to discuss the matter with
Jackson, Jackson told her she wasn’t going to discuss anything,
the matter was over and to call for an appointment. Mobley
arrived at work on Monday shortly before 8 a.m. and saw Tif-
fany Johnson who told her there was no reason to go in because
the people who didn’t sign the contract no longer worked there.
Mobley went inside and spoke directly with Morgan and asked
her if she was working, and Morgan replied that “Mary Jackson
has stated that the people that did not sign the noncompetition
contract was not working at Bethlehem Temple any more.”
Mobley said, “That’s crazy.” And then Morgan said, “Well
you can talk to Bishop Johnson. He should be in, in about 5 or
10 minutes.’’ Mobley (who was then with Tiffany Johnson),
testified that, “I told him that I—we did not know we wasn’t
gonna have no job coming Monday morning. And he said—we
asked to discuss it with him. And he said, “[E]verything was
discussed at the meeting,” and if—and if we don’t get off his
property he will call the police.”
Mobley returned on July 29 and asked the secretary for the
noncompetition agreement or some statement or reason why
she was no longer working there. She was told to come back in
an hour and then was told that Jackson would send her a paper
in the mail giving the cause why she was fired, however, noth-
ing was ever received.
Nakia Frye was an assistant teacher. She wrote, “refuse to
sign” on her noncompetition agreement and turned it in. Frye
understood that Jackson said, “[I]f we did not sign we would be
terminated” and that she spoke with the group in the parking lot
about the noncompetition agreement and whether they were
fired because they didn’t sign. At the time Frye was pregnant,
“very sick,” and on leave of absence since Wednesday the 23rd.
She was scheduled to return on August 6 and her doctor had
faxed an excuse to the center on July 24 (the fax document was
found in Respondent’s personnel files). Because of the con-
cerns raised about the noncompetition agreement, and after
hearing that others had been fired, Frye called the center on
Monday the 28th and spoke with Morgan who told her that as
she had not signed the noncompetition agreement, she was
terminated.
Lashon Valentine was a lead teacher in the school age class-
room. She testified that during the July 26 meeting when she
asked a question about the 50-mile radius in the noncompetition
agreement, Pastor Johnson grabbed the mike and said, if she
refused to sign, she would no longer be working there. She
thereafter left the meeting early but asserts that she did not tell
anyone that she was quitting. She reported for work about 4:45
p.m. on July 28 for her normal 5 p.m. shift, and was met at the
front desk by Jackson’s secretary who asked what she was do-
ing there. When Valentine said she was there to clock in, the
secretary told her she no longer worked there as she had refused
to sign the noncompetition agreement. She then saw Jackson
and Pastor Johnson in Morgan’s office, knocked on the door
and was invited to come in. She asked under what grounds was
she terminated and what would show on her record, and they
said it would go under “dismissed.” Jackson asked her, “[D]id
you sign the paper?” and when Valentine said “no,” Jackson
said since she did not sign, she “no longer worked there.” Val-
entine inquired about the enrollment of her child and Johnson
said she had 2 weeks to find another placement, and she left.
Before the 2 weeks had passed, Jackson again told her she
would have to find another placement as Pastor Johnson would
not accept anyone’s children who did not want to sign the non-
competition agreement.
Ursula Nelson was a lead teacher. She recalled that at the
staff meeting, Jackson indicated that she didn’t want questions
and that if you were asking questions that meant that you didn’t
want your job. Nelson signed the noncompetition agreement
but did not date it. She testified that when Jackson’s secretary
started to collect them, Nelson told her she had changed her
mind, didn’t want to sign, and wanted to scratch it out. The
secretary said no that she had to collect it but she could get it
back at a later time. After the meeting Director Morgan asked
Nelson if she had signed and Nelson told her “no” and that she
wanted to see if they could legally do it because she had not
heard of that type of agreement before. She then sat in the
parking lot with Morgan (who drove her to and from the meet-
ing) where she observed some of the other alleged discrimina-
tees. She was scheduled to report at 9:30 a.m. on Monday but
called Morgan to tell her she was going to be late. Nelson testi-
fied that Morgan said, “[D]id you hear?” that she didn’t have to
come to work because she was terminated, because Johnson
had decided Sunday that if she didn’t sign the contract that she
didn’t have a job.
Dwight Mobley was an assistant teacher. At the meeting he
was given a noncompetition agreement with someone else’s
name on it. He scratched out that name, initialed it, then
printed his name, but he did not sign the agreement as he didn’t
agree to its terms. Mobley recalled that Jackson made some
comment that “if you did not sign it, you could look elsewhere
for work or you can make an appointment to see me, regarding
why you did not sign it.” Mobley testified that he arrived at
work on Monday 5 minutes before his 9 a.m. starting time. His
timecard was not in its normal location, he went and asked
Director Morgan where it was, and she told him that since he
did not sign the agreement he was terminated. He returned to
the center 2 days later seeking to retrieve his school diploma.
A secretary conveyed his request to Jackson and he heard her
tell the secretary that “no, he cannot get it.”
Tiffany Johnson was a teacher’s aid. She attended the meet-
ing but did not sign the noncompetition agreement and wrote
“Refused” on the document before turning it in. After the
meeting she joined the several other alleged discriminatees in
the parking lot. She testified that she was unsure of her sched-
uled reporting time for Monday because she had been doing a
lot of coming in for other people but believed that she came in
at 7:30 a.m. She had worked for one-half hour in the infant
room when Morgan came in and informed her that Johnson had
“said that anyone that hadn’t signed the agreement on Saturday
at the meeting was terminated on Monday.” She asked to wait
for Johnson and spoke to him about half an hour later. She
asked if she could speak with him to get in writing why it was
that she was terminated and he told her that as she no longer
worked there, he had nothing to say to me and that she would
receive something in the mail, however, nothing was ever re-
ceived.
Director Sharon Morgan testified that her duties include
staffing and payroll matters and that she had been employed
with the Respondent since September 1994. She testified that
she did not talk to Rainey on Monday and that Rainey did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
come in at 6 p.m. when her shift was to start. She said that
Kevin Ellerbe came in late and she terminated him because he
had been warned on several occasions. She said that Ursula
Nelson called about 10 a.m. to say she would be late for her
9:30 a.m. shift, and she told Nelson she was terminated because
she had been warned on several occasions about being late and
absent.
Morgan testified that after the Saturday meeting she was told
to come to work early on Monday because “we had heard that
some of them wasn’t coming” and she had to make sure she
had adequate staffing. She also asserted that she was not in-
structed to terminate any individuals that morning. She said
that Tiffany Johnson was already at work when she arrived.
Morgan was told that Johnson was being loud and saying stuff
and that she called a local radio station to complain about the
noncompetition agreement, so Morgan said, “I terminated her
for insubordination.” She said Elaina Bohanon was due at 11
a.m. but called earlier and said she didn’t know what she was
going to do, and then never showed up. Morgan said Johnson
went to the parking lot after being terminated and was seen
talking to parents and to Donna Mobley. Morgan asserts that
Mobley then came in late, and was fired for insubordination as
she had previously been warned about the dress code and being
late. Morgan said that Nakia Frye was due to come back to
work on Wednesday, but didn’t call until Thursday, so Morgan
classified her as a no call, no show, job abandoned. She also
said Robert Echoes did not call or show up on Monday so she
decided she needed to replace him. Morgan know that Valen-
tine dropped her son at the center prior to 11 a.m. (and went to
her day job), but said that Valentine said nothing about coming
to work her 5 to 8 p.m. shift later that day. She said Dwight
Mobley called her at 9:55 a.m. to say his car had broken down
and asked if someone could get him, but she told him no, he
was terminated because he had been given verbal warnings
about being late.
Morgan testified that she used a progressive discipline sys-
tem embracing a verbal warning, a write up, after a second
writeup a 3-day suspension, and after a third writeup, then ter-
mination. None of the alleged discriminatees had ever been
suspended except Ellerbe who was suspended for falling asleep
in the classroom, at a time Morgan could not remember. She
also said that at the July 26 meeting, employees were told that
there would be a new personnel handbook, that a lot of rules
were going to be changed, that the policies discussed would be
implemented and enforced, and that this was their final and last
warning. She said the new rules were issued in writing on
Tuesday, July 29.
III. DISCUSSION
The issues in this case arose when the Respondent suddenly
terminated 10 employees. These discharges occurred on Mon-
day, July 28, following a mandatory Saturday staff meeting in
which the employees were asked or told to sign a noncompeti-
tion agreement and those discharged were among those who
opposed and did not agree to sign the agreement at the point in
the meeting when the documents were collected from the em-
ployees. Most of these same employees were observed by
management together in a parking lot discussion after the meet-
ing and, at the time of their discharges and thereafter they were
not told that their discharges were for attendance or tardiness
problems, or because they had threatened not to work, and they
were not given written notice of the reasons for discharge.
Otherwise, nine of these employees gave credible testimony
that various members of management told them that their dis-
charges were because of their failure to sign the noncompetition
agreement.
The basic issues are clear and direct. First, were the dis-
charged employees engaged in a protected, concerted activity,
and second, did the Respondent terminate them because it was
motivated to do so by their participation in that activity.
A. Procedural Matters and Credibility
During the course of the hearing, the Respondent’s consult-
ant made numerous and repetitive procedural objections, in-
cluding a motion that I disqualify myself. The latter request
was the subject of motion and appeal during the 65-day recess
in the trial between March 6 and May 11, 1998. None of these
matters were pursued on brief and I reaffirmed my rulings
made at the hearing and in the Order issued on the disqualifica-
tion matter. Although the Respondent has waived its opposi-
tion to these matters because the nature of many of these objec-
tions tended to interfere with my authority to regulate the
course of the hearing and because they also bear some relation-
ship to my credibility findings, I find it necessary and desirable
to briefly review some of those rulings.
(1) Evidentiary Rulings and Disqualification. This subject
was addressed in the Order dated April 30, 1998, which rules as
follows:

A hearing in this matter was adjourned on March 27,
1997, and set to continue on May 11. A motion to con-
tinue the hearing and a request for special permission to
take interlocutory appeal were filed by the Respondent on
April 28, 1997, and referred to me the next day by the
Deputy Chief Administrative Law Judge. As noted in the
referral letter, the Respondent’s oral motion that I recluse
myself was not properly filed in accordance with the re-
quirements of Rule 102.37 inasmuch as the motion was
not accompanied by a “timely affidavit setting forth in de-
tail the matters alleged to constitute grounds for disqualifi-
cation.”

Under these circumstances, the request, which now is ac-
companied by an affidavit, will be treated as a motion to dis-
qualify.
On review of the request and affidavit, I find that it is insuf-
ficient on its face to show personal bias that would require dis-
qualification.
First, based on the objection of the General Counsel and be-
cause the material had already been read into the record, I re-
jected the Respondent’s offer as an exhibit of witnesses’ affida-
vits to the Board, and for the same reasons, I found it to be
unnecessary to have them placed in a rejected exhibit file.
Although a party normally has the right to have a rejected ex-
hibit placed in a rejected exhibit file, the Board in Manbeck
Baking Co., 130 NLRB 1186, 1189–1190 (1961), found that the
trial examiners refusal to permit a respondent to copy so called
Jencks statements (not received as part of the record), was not
an abuse of discretion and was not prejudicial. Here, the re-
jected exhibits are duplicative inasmuch as portion assertedly
bearing on the witness’ credibility had been read into the re-
cord, accordingly, it was not a disqualifying abuse of discretion
to attempt to avoid delays and impediment to the hearing proc-
ess by rejecting the Respondent’s request.
BETHLEHEM TEMPLE LEARNING CENTER 1183
Otherwise, my rulings on evidentiary matters were not uni-
lateral but were made in response to objections by the General
Counsel and were made in a manner consistent with Board
precedent and the duties of a judge expressed in Manor West
Inc., 311 NLRB 655, 669 (1993), which accepted the judge’s:

[I]ntention, aggressively, to preserve and protect the record
from the clutter and distraction of incompetent and nonpro-
bative proffers—always inimical to timely decision and effec-
tive review—and to provide guidance to counsel as to what
was expected of them by communicating on the record and in
straightforward terms my reasons for acting for or against
their wishes.

This decision also notes that subsection 102.35(f) of the
Board’s Rules authorize the administrative law judge to regu-
late the course of the hearing, and that:

The exercise of this authority is by no means contingent on
the wisdom, good sense, qualifications, disinterest, or percep-
tions of others. The procedural scheme assumes that the in-
dependence, objectivity, and expertise of the administrative
law judge would lead to a fair, orderly hearing, and that
should unruly, impertinent, and ponderous behavior threaten
the process, the judge, not opposing counsel, should intervene
to control that which by definition impinges on that endeavor.
Simply put, the judge does not sit as a marmoreal witness to
endless maneuvering that tends to obscure truth, to cause de-
lay, or in the end, to prevent a just result.

The hearing was adjourned at the request of the Respondent
after the General Counsel rested. The Respondent will have the
opportunity to present relevant and material evidence in its case
in chief and will thereafter be able to file a brief addressing the
proper application of Board law to the overall record and any
perceived errors in trial rulings.
Under these circumstances, the rulings and the accompany-
ing statements made during the first stage of the trial do not
show the conditions necessary for a bias or prejudice recusal,
see Liteky v. U.S., 114 S.Ct. 1147, 1157 (1994), and accord-
ingly, I find that good cause had not been shown that would
warrant a grant of the relief requested (footnote omitted).
As required by Rule 102.37, the hearing must now proceed
and, inasmuch as a further delay in the timely conclusion of the
hearing in this proceeding would unduly prolong the conclusion
of the trial stage and ultimate disposition of the matter, the
Respondent’s motion for a continuance is denied, and the hear-
ing will resume as scheduled at 9:30 a.m. on May 11, 1997.
(2) Objections to Alleged Hearsay Testimony. During the
witnesses’ testimony, several employees noted what was said
by declarants who were other alleged discriminatees at both the
Respondent’s staff meeting and in the employee gatherings
after the meeting and the Respondent made repeated objections.
First, it is noted that the declarant’s would be (or had been)
under oath and subject to confrontation and cross-examination.
More specifically, it was noted in my rulings that in many in-
stances the statements were “verbal actions” that tend to estab-
lish an effect on the hearer that might lead him or her to take
some further action and were not necessarily for the truth of the
matter and therefore were non hearsay statements. As stated in
the summary of standard procedures attached to the Regional
Director’s complaint in this proceeding:

Statements of reasons in support of motions and objec-
tions should be specific and concise. The administrative
law judge will allow an automatic exception to all adverse
rulings and, upon appropriate order, an objection and ex-
ception will be permitted to stand to an entire line of ques-
tioning.

It therefore was unnecessary for Respondent’s consultant to
repeatedly advance its objections. Moreover, it is well estab-
lished that the Board can admit hearsay evidence “if rationally
probative in force and if corroborated by something more than
the slightest amount of other evidence.” RJR Communications,
248 NLRB 920, 921 (1980); Livermore Joe’s Inc., 285 NLRB
169 fn. 3 (1987), and I find that the Respondent had no valid
basis for failing to understand or comply with the trial rulings
in this regard.
(3) Affidavits. Although it is clear that a Respondent has the
right to review the General Counsel’s witnesses’ affidavit on
appropriate request, that right does not convey an unfettered
privilege to endlessly pursue any and all subjects noted in an
affidavit. Here, the Respondent’s consultant reviewed the affi-
davits and then proceeded to conduct his cross-examination by
asking witnesses if they had made the statements reflected in
the affidavits. The witnesses generally agreed that they had,
and, in substantial part, these statements reaffirmed what the
witnesses had stated on the direct examination by the General
Counsel. On some occasions the consultant pursued question
regarding subjects that were not in the affidavit. It is well set-
tled that omissions in an affidavit hardly amount to impeach-
ment, see Redway Carriers, 274 NLRB 1359, 1371 (1985),
and, otherwise, the style of examination (on the affidavits),
utilized by the consultant consistently failed to generate any
new or material evidence that in any manner added to the de-
velopment of a meaningful record. It is appropriate to compare
a witnesses’ original sworn statement with their accounts of the
same events given during the direct testimony, however, if
there are no material discrepancies or shifts in the witnesses’
testimony, then it is absolutely pointless for a Respondent’s
representative to assertedly “cross examine” a witness by hav-
ing him/her reaffirm the corroboration statements in their sworn
affidavits. Accordingly, I find that the consultant’s continued
insistence on his singular course of examination was inappro-
priate.
(4) Custody of Affidavits and Subpoenaed Documents. Dur-
ing the course of having several prolonged disputes arose in
which the Respondent’s consultant resisted the General Coun-
sel’s request that a witness’ affidavit be returned to the General
Counsel on the conclusion of the witness’ testimony and other-
wise, he repeatedly contested the General Counsel’s possession
of subpoenaed employer’s personnel records.
While it is customary and desirable that the witness’ affidavit
be returned in a timely manner when the witness is excused, the
trial judge has the discretion to allow the Respondent to re-
examine the statement or to allow it to be retained for legiti-
mate trial purposes, see Manbeck Baking, supra. Here, no spe-
cific or persuasive purpose was shown for retention of the
document and the prompt return of the material was not preju-
dicial to the Respondent.
Conversely, the General Counsel objected to the Respon-
dent’s demands that he return the subpoenaed personnel re-
cords. It appears that in most proceedings, the parties’ repre-
sentative cooperatively make mutually agreeable accommoda-
tions concerning the custody and availability of subpoenaed
documents. Where such accommodations cannot be agreed on,
the trial judge has basic discretion to rule on these matters and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
to dictate accommodation that recognize special needs of a
respondent, however, the General Counsel is empowered to
inspect and copy subpoenaed evidence of any person being
proceeded against, see NLRB v. Wilson, 335 F.2d 449 (5th Cir.
1964). The entitlement of the General Counsel carries with it
the right to make relevant inquiries about the documents or to
have them relevant documents entered into evidence and thus
the General Counsel must have reasonable access to the mate-
rial at any time during the trial, including rebuttal. In a similar
vein, a Respondent can be allowed access to the material inso-
far as it is necessary for relevant cross-examination or for the
presentation of its direct case, however, except for these rea-
sons, or for the discretionary accommodations discussed, it is
not error to allow the General Counsel to retain primary cus-
tody of the subpoenaed documents during the entire course of
the trial.
While it is desirable in the ordinary case for any subpoenaed
material to be returned in a timely manner, the instant case
presented a situation where the Respondent’s consultant consis-
tent was unwilling to enter into stipulations and, on cross-
examination, he persisted in pursing a tangential line of defense
in which he attacked the work habits and histories of the al-
leged discriminatees and, accordingly, his own actions man-
dated the need for the General Counsel to protect his interest by
seeking to retain custody of the personnel records during the
course of the trial.
(5) Cross-examinations of Witnesses and Credibility. Due
process requires procedures and rulings that protect both the
interest of the charging party and the Respondent to the maxi-
mum extent possible without impingement of one on the other.
See Machinists v. Street, 367 U.S. 740, 761–764 (1961). Here,
the consultant’s dissatisfaction with the answers he obtained
when he examined the General Counsel’s witnesses or his in-
ability to elicit from them responses he would have preferred,
does not convey some license to endlessly pursue tangential
matters and it can hardly be twisted into some concept of denial
of due process (or bias by the trial court), when efforts are
made to control the development of a proper record.
Here, the consultant initially was given a broad range of lati-
tude with the first five witnesses. Thereafter, it was the view of
the trial court (as also reflected in objections by the General
Counsel), that the Respondent was going beyond the bounds of
proper cross-examination, was pursing cumulative and irrele-
vant matters, and was going beyond the scope of direct exami-
nation. While cross-examination can aid in the development of
a complete record, it is not properly a vehicle for “a fishing
expedition,” argument, or the presentation of a Respondent’s
direct case. Cross-examination is not a game that must be
played in order to impress a client and a client often may be
served best when no questions are asked. While it certainly is
proper and often necessary to clarify or elaborate on certain
matters or to challenge the memory or credibility of certain
witnesses, it is not proper cross-examination to merely repeat
matters addressed on direct, to reaffirm noncontradictory mat-
ters mentioned in affidavits, or to seek to present one’s own
direct case by indirectly asking employees about the actions of
supervisors and agents or about matters that are principally
within the knowledge of management.
Continued cross-examination may be ended at the discretion
of the trial judge when it degenerates into a fishing expedition,
when it becomes coercive, when there is no development of
material or relevant evidence or of contradictions, where there
is no reason to believe there are inconsistent declaration or
matters that would impeach the witnesses credibility, and where
no foundation is laid that further inquiry would reasonably
disclose some relevant new evidence, see Classic Coach, 319
NLRB 701, 717 (1995). Here, the consultants’ examination
basically degenerated into a pursuit of tangential matters that
merely detracted from the development of the record necessary
and useful for evaluation and resolution of the issues involved.
Moreover, the consultant’s attempts to probe the credibility of
the witnesses also degenerated into attempts to undermine by
innuendo and misdirection into collateral matters. While cer-
tain situations may favor latitude in the scope of cross-
examination in order to expedite the hearing, it is clear that the
consultant’s approach in this proceed was a clear hindrance of
the trial judge’s attempts to regulate and expedite the course of
the hearing as well as an impediment of the rights of the Gen-
eral Counsel and the rights of the alleged discriminatees.
Here, for example, the consultant asserted “hearsay” when a
witness spoke of what others had said in the parking lot, yet
when the other declarant was called, the consultant basically
attempted to impeach by challenging the statements in the wit-
ness’ affidavits rather than asking questions about what the
declarant said or about what was said on direct testimony. My
evaluation of the witness’ demeanor under these trying circum-
stance, leads to the conclusion that they were truthful and be-
lievable and gave honest answers to the best of their ability.
Not everyone who witnesses an accident or a crime or who
attends a meeting will remember the event in precisely the
same way, however, the difference in detail does not make the
witness’ testimony any less honest. Here, there was some ob-
vious confusion or misunderstanding about what actually was
said by Administrator Jackson and Pastor Johnson but it is clear
that certain employees made comments, attempted to ask ques-
tions and, after the meeting, generally congregated in a small
group or groups in the parking lot to discuss the events of the
meeting, most particularly the noncompetition agreement.
These witnesses also gave highly credible testimony about their
attempts to return on their next scheduled work days. Although
Director Morgan and others were called as witnesses by the
Respondent, their testimony often failed to address any specific
discussion of the actual occurrences described by the alleged
discriminatee as they were discharged and, in the relevant in-
stances where it conflicts with the testimony of the alleged
discriminatees, I find the latter testimony to be more credible.
The Respondent’s management testimony regarding asserted
disciplinary related reasons for their discharges is not supported
by any showing of contemporaneous knowledge or documenta-
tion (for example, no staffing schedule for July 28 was pre-
sented that might have supported Morgan’s testimony about the
employees’ starting times) and, as found below, it appears to be
pretextual. Otherwise, the testimony by the alleged discrimina-
tees that they were told that they were being discharged be-
cause they failed to sign the noncompetition agreement is found
to be highly credible and I find that such statement were made
not only at the time of the discharges but also that threatening
statements of a similar nature were made by management offi-
cials during the course of the staff meeting.
BETHLEHEM TEMPLE LEARNING CENTER 1185
B. The Mass Discharge
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
evidence to support an inference that the employees’ union or
other protected, concerted activities were a motivating factor in
the employer’s decision to terminate them. Here, the record
shows that Respondent’s management was aware that the al-
leged discriminatees had spoken up at the meeting to voice
their concern about signing the noncompetition agreement, that
they gathered together in the parking lot after the meeting and
that they refused to sign the agreement at the meeting. Here,
the concerns of the employees were being presented to man-
agement in concert as they attempted to question Administrator
Jackson and Pastor Johnson and as they stated their opposition
to management’s new limitation on the terms of their employ-
ment. It is clear that several persons spoke up on this matter,
including several of the alleged discriminatees and that those
who spoke had the support of those who gathered with them in
the parking lot after the meeting and the support of those who,
contemporaneously refused to sign that agreement. The fact
that the individuals initially may have acting alone or in re-
sponse to their own immediate interest does not make their
contemporaneous actions any less concerted, and I find that
their actions were concerted and for their mutual aid and pro-
tection. See Circle K Corp., 305 NLRB 932 (1991), enfd. 989
F.2d 498 (1993); Monongahela Power Co., 314 NLRB 65
(1994); Compuware Corp., 320 NLRB 101 (1995); and Rogers
Environmental Contracting, 325 NLRB 144 (1997).
The Respondent clearly was annoyed by the repetitive nature
of some of the questions and the apparent fact that some em-
ployees were challenging what its managers thought was a
necessary change in its terms of employment for its teachers
and aids in order to stem a perceived loss of enrollment. Here,
there is direct evidence that several specific employees at-
tempted to voice their concerns at the meeting, and thereafter,
and Jackson admits that she was aware of many of those who
were together in the parking lot. Moreover, the Respondent’s
management even asserts that they knew or believed that these
same employees, (especially Nelson), had discussed not coming
to work on Monday and that it was for this reason that they
made alternate staffing arrangements (the Respondent’s own
witness, Vanessa Miller, also testified to this effect). Thus, it
cannot now assert that it did not know of the protected activity
or know that they were acting together. Of course, if they had
collectively decided to engage in a work stoppage for the same
reasons of their concerns, it also would have been a protected
concerted activity and it would be a violation of the Act for the
Respondent to discharge them for that activity, see Eaton
Warehousing Co., 297 NLRB 958 (1990), and Consel Security,
325 NLRB 138 (1998). The timing of the terminations, imme-
diately after they had complained at the meeting, helps to show
that the General Counsel has met the threshold requirements for
showing protected concerted activity and motivation and, under
these circumstances, I find that the General Counsel has met his
initial burden by presenting a showing sufficient to support an
inference that the employees’ concerted activities were a moti-
vating factor in Respondent’s subsequent decision to terminate
them. Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in Wright
Line, 251 NLRB 1083 (1980), see NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), to consider Respon-
dent’s defense and whether the General Counsel has carried his
overall burden.
As pointed out by the Court, in Transportation Management
Corp., supra, an employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place even
in the absence of the protected concerted activity.
On brief the Respondent’s defense notes the legitimacy of its
concerns about adequately staffing employee attendance, and
state regulations and then list the asserted reasons, principally
for assertedly showing up late or not at all, why Director Mor-
gan terminates the alleged discriminatees. Its principal argu-
ments, however, are based on the citation of cases, finding, or
stating that an employer can have a reasonable ground to dis-
charge employees who threaten not to work. Here, there is no
showing the individuals at the Center were “at risk” children
such as those in K-Bar-B Youth Ranch, 325 NLRB 409 (1998),
cited by the Respondent. Moreover, the employees in K-Bar-B
Youth Ranch actually had called in “sick” where as in the in-
stant case Respondent’s knowledge was of the purported that
Jackson’s encounter in the parking lot after the meeting with
Nelson and her belief that about employees would not show up
on Monday because Nelson had commented that “you need us
more than we need you” (comments not admitted to by Nel-
son).
The question here is not whether or not the Respondent had
the right under Ohio law to discharge an employee for refusing
to sign a noncompetition agreement or whether that agreement
might be considered to be on unenforceable and unreasonable
restrictive covenant. Here, the alleged discriminatee are shown
to have been terminated because they engaged in conduct in
which they complained or voiced their concerns about the
agreement and because they grouped together after the staff
meeting to jointly discuss their concerns on this matter.
The Respondent, in the wake of its failure to have all of its
childcare/teacher employees immediately agree to sign the
agreement, took steps to have alternative coverage of it staffing
needs for Monday, including the hiring of one new employee,
and it then summarily fired 10 employees who had spoken up
against the agreement, had not signed the agreement, or had (it
suspected) joined in a group discussion about what the employ-
ees could or might do about the restrictive agreement.
Respondent’s argument to the contrary, there simply is no
persuasive or credible evidence that would show that Jackson
or anyone in management had any real belief that the 10 subse-
quently terminated employees were threatening to refuse to
work. At most, its asserted belief appears to be self-serving
speculation that is at odds with its statement and conduct at the
meeting and on Monday when various members of manage-
ment interacted with the terminated employees. In no instance
were the terminated employees ever told they were being ter-
minated for threatening not to work and, significantly, none
were ever given written documentation or reasons of any sort
for their discharges.
As noted above, I have found the testimony of the alleged
discriminatees (and Rainey’s mother) to be credible and I find
that they truthfully described how they were told that the reason
that employees were terminated was their failure or refusal to
sign the noncompetition agreement.
The Respondent’s termination reasons, such as tardiness,
etc., stated at the hearing, were not communicated to most of
the employees (except Ellerbe), and it is apparent that the rea-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
sons (and the attendance reports on which the reasons were
based), were developed after the individuals were terminated.
As of Monday, when they were terminated, the alleged reasons
were not founded on any meaningful investigation and, other-
wise, I find it highly unlikely (especially in regard to the Re-
spondent’s great concern with being staffed in compliance with
state ratio guidelines), that Director Morgan spontaneously took
it upon herself to immediately terminate 10 employees for al-
leged transgressions, without resort to the progressive discipli-
nary system and without resorts to the advice of more senior
management and I do not credit Morgan’s testimony that vari-
ous employees were in fact late that day or were fired in the
manner she described, or that she “was not instructed to termi-
nate any individuals that morning.” Here, the individuals were
not allowed to explain or defined themselves, they were not
told the reasons latter asserted by the Respondent but instead
actually were told that it was because of their refusal to sign the
agreement and they were not accorded the expected due process
of the Respondent’s progressive disciplinary system. Under
these circumstances, the false and pretextual reasons and justi-
fications advanced by the Respondent warrant the conclusion
that the true motive was the unlawful motive demonstrated by
the General Counsel. Correspondingly, the Respondent’s rea-
sons completely fail to contribute to its burden to persuasively
show that this mass firing would have occurred even in the
absence of their protected concerted activity. The mere fact
that it chose, for some reason, not to immediately terminate
employees’ Selina McClure and Laconya Beach who appar-
ently also did not sign the agreement, does not excuse the fact
that it did take retaliatory action against the alleged discrimina-
tees.
The total record shows that the Respondent’s reasons for its
action are pretextual, inconsistent, and otherwise so unpersua-
sive that the Respondent cannot be found to have shown that it
would have discharged these employees even in the absence of
their protected concerted activity. Accordingly, I conclude that
the General Counsel has met his overall burden and shown that
the Respondent’s mass discharge of employees who had pro-
tested their being required to sign a noncompetition agreement
violated Section 8(a)(1) of the Act.
C. Misconduct
During the course of the hearing Consultant Blankenship en-
gaged in an intermittent yet persistent pattern of conduct that
repeatedly interfered with the trial judge’s attempts to regulate
and expedite the hearing. This conduct included attempts to
argue and debate rulings, speech making and asides, and lack of
cooperation in dealing with documentation and stipulation of
essentially uncontested matters. The consultant’s apparent
misdirection into tangential areas appeared to be a possible
calculated attempt to generate a basis for a claim of bias, a
claim which was made on the second day of hearing, and a
claim that was pursued during the 65-day recess before the
hearing resumed. This claim was found to be unjustified for
the reasons noted in the Order set forth above in part A(1) of
this section.
On resumption of the hearing Consultant Blankenship again
engaged in conduct that was inherently disruptive and he again
seem unwilling to listen to, accept or understand rulings, or to
comport with nondisruptive standards of behavior. I find that
his representation went well beyond an allowable level of ag-
gressive avocation and to the point of being clearly obstreper-
ous. My review of the record and my evaluation of his overall
demeanor and conduct during this matter compels the conclu-
sion that Consultant Blankenship is either unwilling or unable
to conduct himself in a manner consistent with the level of
acceptable behavior and decorum that should exist in proceed-
ing before the Board and under the Administrative Procedures
Act. Under these circumstances I find it necessary to recom-
mend that the Board refer this matter to the General Counsel for
institution of appropriate disciplinary action.
IV. CONCLUSIONS OF LAW
1. The Respondent is an Employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging employees Elaina Bohanon, Robert Ech-
oes, Kevin Ellerbe, Nekia Frye, Tiffany Johnson, Donna
Mobley, Dwight Mobley, Ursula Nelson, Cecelia Rainey, and
LaShon Valentine (Davis), Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
3. The actions of Consultant Rayford T. Blankenship during
the proceeding were inherently disruptive and displayed an
unwillingness or inability to conform and comply with accept-
able standards of behavior and constitute misconduct.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With respect to the necessary action, it is recommended that
Respondent be ordered to reinstate employees Elaina Bohanon,
Robert Echoes, Kevin Ellerbe, Nekia Frye, Tiffany Johnson,
Donna Mobley, Dwight Mobley, Ursula Nelson, Cecelia
Rainey, and LaShon Valentine (Davis), to their former jobs or
substantially equivalent positions, dismissing, if necessary, any
temporary employees or employees hired subsequently, without
prejudice to their seniority or other rights and privileges previ-
ously enjoyed, and make them whole for any loss of earnings
they may have suffered because of the discrimination practiced
against them by payment to them of a sum of money equal to
that which they normally would have earned during their sus-
pension or from the date of the discrimination to the date or
reinstatement in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).3
The Respondent also shall be ordered to remove from its
files any reference to the discharges and notify all these em-
ployees in writing that this has been done and that evidence of
the unlawful discharges will not be used as basis for future
personnel action against them. Otherwise, it is not considered
necessary that a broad order be issued.
In accordance with the Board’s Rules governing misconduct
by party representatives during a hearing, see Section
102.177(b), due notice is hereby given that a review of the re-
cord in this proceeding demonstrates the presence of good
cause that would support a finding by the Board that the Re-
spondent’s representative should be admonished or repri-

3 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the
effective date of the amendment) shall be computed as in Florida Steel
Corp., 231 NLRB 651 (1977).
BETHLEHEM TEMPLE LEARNING CENTER 1187
manded. Accordingly, it is further recommended that the
Board refer this matter to the General Counsel for appropriate
disciplinary action.
[Recommended Order omitted from publication.]