Inter-Disciplinary Advantage, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 2007

349 N.L.R.B. 480 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 49
480
Inter-Disciplinary Advantage, Inc. and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America
(UAW), AFL–CIO. Case 7–CA–48706
March 15, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On August 8, 2006, Administrative Law Judge George
Alemàn issued the attached decision. The Respondent
filed exceptions and supporting argument, the General
Counsel filed cross-exceptions and an answering brief
opposing the Respondent’s exceptions, and the Respon-
dent filed an answer to the General Counsel’s cross-
exceptions and a reply to the answering brief.
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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.

1 The General Counsel’s cross-exceptions request the Board to cor-
rect several errors in the judge’s decision, such as misspellings, typo-
graphical errors, misnomers, and mistaken references. The Respondent
endorsed some of these changes, but opposed others, contending that
the judge’s meaning was unclear. We disagree. Based on the entire
record and the context of the portions of the decision in question, we
find that the judge’s intention was clear with regard to these and other
similar oversights. We find merit in the General Counsel’s cross-
exceptions and have corrected the judge’s decision accordingly. In
addition, we have corrected a second erroneous reference to
“Lashbrook” in the fifth paragraph of sec. II,A, to “Haack.”
No exceptions were filed with respect to the judge’s dismissal of
8(a)(3) and (1) allegations with respect to the discharge of Tammy
Bibbee.
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.
The Respondent also contends that some of the judge’s credibility
resolutions are the product of bias. On careful examination of the
judge’s decision and the entire record, we are satisfied that these con-
tentions are without merit.
3 In its answer to the complaint, the Respondent admitted the super-
visory and/or agency status of Deborah Pettyplace, Diane Davis, Kasie
Prevatt, and Mark Romain. The Respondent did not except to the
judge’s findings, based on credited testimony, that Romain violated
Sec. 8(a)(1) through various statements and questions to employees
during the early part of their organizing effort.
In adopting the judge’s determination that the Respondent unlaw-
fully discharged Marie Abrakian, we find it unnecessary to rely on his
characterization of the Respondent’s belated assertion that she breached
its confidentiality rule as evidence of a shifting defense. Although the
Respondent did not explicitly cite a breach of the confidentiality rule in
her discharge letter, its posthearing brief to the judge asserts that
Abrakian’s alleged theft of the budget document violated its confidenti-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Inter-Disciplinary Advan-
tage, Inc., Midland, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.4
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain or enforce a confidentiality rule
that restricts you from fully exercising the rights ac-
corded to you under Section 7 of Act.
WE WILL NOT create the impression that your union ac-
tivities are being kept under surveillance.
WE WILL NOT threaten you with discharge for engaging
in union activities.
WE WILL NOT coercively interrogate you about your un-
ion activities.
WE WILL NOT prohibit you from talking about the union
at the workplace while allowing other nonwork-related
discussions.
WE WILL NOT unlawfully solicit and impliedly promise
to remedy your grievances in order to discourage your
support for a union.

ality rule. Thus, the Respondent argued, in effect, that its confidential-
ity argument was not raised belatedly, but inferentially in the discharge
letter. We need not pass on the merits of this contention because we
find that the other evidence the judge relied on amply supports his
finding that the Respondent’s asserted reasons for Abrakian’s discharge
were pretextual.
Member Kirsanow finds it unnecessary to rely on the judge’s state-
ment that a discharge pursuant to an overbroad confidentiality rule is
necessarily unlawful.
4 The notice in the judge’s decision fails to include the requirement
that the Respondent rescind its overbroad confidentiality rule. We have
substituted the attached notice, which conforms to the Order.
INTER-DISCIPLINARY ADVANTAGE 481
WE WILL NOT coercively question you about discus-
sions you may have had with agents of the Board.
WE WILL NOT ask you to provide us with copies of affi-
davits you may have given to the Board.
WE WILL NOT discharge or otherwise discriminate
against employees Kelly Lashbrook, Linda Foran, Marie
Abrakian, or any of you for supporting International Un-
ion, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO, or
any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind and cease giving effect to the over-
broad confidentiality statement.
WE WILL, within 14 days from the date of this Order,
offer Kelly Lashbrook, Linda Foran, and Marie Abrakian
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Kelly Lashbrook, Linda Foran, and
Marie Abrakian whole for any loss of earnings and other
benefits resulting from their unlawful discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Kelly Lashbrook, Linda Foran, and Marie
Abrakian, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges will not be used against them in any way.
INTER-DISCIPLINARY ADVANTAGE, INC.
Linda Rabin Hammell, Esq. and Jennifer Y. Brazeal, Esq., for
the General Counsel.
Daniel A. Gwinn, Esq., for the Respondent.
Georgi-Ann Bargamian, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. Pursuant to a
charge filed on June 22, 2005, and amended on July 28, 2005,1
by the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO (the Union), the Regional Director for Region 7 of the
National Labor Relations Board (the Board), on August 12,
issued a complaint alleging that Inter-Disciplinary Advantage,
Inc. (the Respondent) had, in various manner, violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
Specifically, the complaint alleges that the Respondent vio-
lated Section 8(a)(1) by maintaining an overly broad confiden-

1 All dates are in 2005, unless otherwise indicated.
tiality rule;2 prohibiting employees from engaging in union talk
while allowing other nonwork-related discussions; threatening
to discharge employees who supported or discussed the Union
at the workplace; interrogating employees about their union
activities or sympathies; creating the impression that it was
keeping employee union activity under surveillance; by solicit-
ing employee complaints and grievances and implicitly promis-
ing to remedy them in order dissuade them from supporting the
Union; and questioning employees about discussions they had
with Board agents regarding this case, and asking employees to
provide it with copies of affidavits they may have given to the
Board.3 The complaint also alleges that the Respondent vio-
lated Section 8(a)(3) and (1) by discharging employees Linda
Foran, Kelly Lashbrook, Marie Abrakian, and Tammy Bibbee
because of their union activities, and to discourage employees
from engaging in such activities. By answer dated August 16,
the Respondent denied engaging in any unfair labor practices.
A hearing in this matter was held in Detroit, Michigan, on
separate dates between October 31 and December 15, at which
all parties were afforded a full and fair opportunity to be heard,
to present oral and written evidence, to examine and cross-
examine witnesses, and to argue orally on the record. Based on
the entire record in this proceeding, including my observation
of the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel, the Respondent, and the
Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporate entity with its main office in
Midland, Michigan, is in the business of providing licensed
adult foster care services in the State of Michigan. During the
fiscal year ending September 30, 2004, a representative period,
the Respondent had gross revenues in excess of $200,000, and
during the same period, purchased and received at its Michigan
facilities goods and materials valued in excess of $50,000 di-
rectly from points located outside the State of Michigan. The
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

2 The confidentiality rule, a copy of which was entered into evidence
as R. Exh. 22, states that “[a]ny and all information regarding business,
employees of Inter-Disciplinary Advantage, Inc., and/or individuals
served in IDA homes which is conducted in this office is strictly confi-
dential. Any breach of this confidentiality will result in disciplinary
action up to and including immediate dismissal.”
3 The complaint was amended at the hearing to include the allegation
regarding the questioning of employees about discussions they had with
Board agents, and its request for copies of employee affidavits. Com-
plaint par. 12, alleging that the Respondent, through agent Mark Ro-
main, threatened employees by stating that the discharge of three em-
ployees was related to their union activity, was withdrawn by the Gen-
eral Counsel on brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD482
II. THE RELEVANT FACTS
A. General Background
The Respondent operates four residential homes for adults
with disabilities and/or mental illnesses, including the
Morowske Home located in Shelby Township, Michigan, the
site of the alleged complaint violations. The Respondent is
managed and run by its executive director, Deborah Pettyplace.
Below Pettyplace in the managerial/supervisory chain of com-
mand is a program coordinator who has supervisory responsi-
bility over several homes. Each home is, in turn, managed and
directly supervised by a home supervisor. At all times relevant,
Diane Haack served as the home supervisor for the Morowske
Home, and answered to Diane Davis, the program coordinator
for the Morowske Home and Lillian House, another of Respon-
dent’s homes. Alleged discriminatees Lashbrook, Foran,
Abrakian, and Bibbee, all worked at the Morowske Home prior
to discharge. Employees Randi Schwark, Mariana Jenkins,
Kelly Hibbs, and Tracy Gevedon were also employed at the
Morowske Home at the time. The Respondent also has a medi-
cal coordinator at the Morowske Home. Foran was medical
coordinator until April 1, at which time she was replaced by
Lashbrook. (Tr. 61.) The medical coordinator’s duties include
recording medications prescribed by doctors to Morowske’s
consumers into the home’s medication records.
The Morowske Home houses approximately six consumers
or residents who are cared for and looked after on a 24-hour
basis by a direct care staff of 10 employees who work either a
morning shift (6 a.m.–2 p.m.), an evening shift (2–10 p.m.), or
a night shift (10 p.m.–6 a.m.). Employees are expected to re-
cord the time they begin and end their particular shift on a pay-
roll or log sheet prepared by the Morowske Home supervisor
twice a month.4 They are also required to sign the timesheet.
Pettyplace and Davis both testified that under established Com-
pany policy, employees are required to sign the payroll sheet at
the end of the pay period. (Tr. 888, 1611.) While the Com-
pany’s employee handbook does indeed state that employees
“must sign the timesheet,” it makes no mention of when the
signing was to occur, e.g., beginning or ending of the pay pe-
riod. Further, Haack testified that when she was first hired, she
was instructed by the former home manager, Stephanie Gore, to
sign the timesheet at the beginning of the pay period, that she
has always done it this way, and that, when she became home
manager, she and other employees adhered to this practice.
Haack’s testimony in this regard was corroborated by employ-
ees Lashbrook and Foran. (Tr. 66, 87, 335, 401.) Thus, while
employees were obviously required under the employee hand-
book to sign the payroll timesheet, I am not convinced, particu-
larly since the handbook is silent on the matter, that they were
expected or required to do so at the end of the pay period, as
claimed by Pettyplace and Davis. As more fully discussed
infra, neither Pettyplace nor Davis were particularly credible
witnesses. I find instead that, as testified to by Haack,
Lashbrook, and Foran, employees were told and expected to
sign their names on the payroll timesheets at the start, rather

4 The Respondent operates on a 2-week payroll period. Employees
are generally paid on the 10th and 25th day of the month.
than the end, of the pay period, and that this has been the ac-
cepted practice at the Morowske Home.
The direct care employees’ functions and duties include
bathing the Morowske Home residents, cooking for them, pro-
viding them with medication, occasionally scheduling medical
appointments for residents, and, when necessary, taking resi-
dents to medical appointments and other locations, including a
facility known as the clubhouse or friendship house, in a com-
pany owned van.5 Employees utilizing the company van are
required to record in a van log, kept inside the vehicle, their
destination, the amount of gas in the vehicle at the time, the
number of miles on the odometer before and after the trip, and
his or her initials.
In March, Foran was the medical coordinator at the
Morowske Home. Haack testified that sometime in March,
Pettyplace asked her to prepare a health care chronological for
Dugal showing his doctors’ appointments for the month. Pet-
typlace admits making such a request, explaining that she did
so “just to look at them, to scan them to see what was on
them, to see where the consumers had gone.” (Tr. 854.)
According to Pettyplace, the chronological form has been in
use at the Morowske Home for as long as she could remember.
She contends Haack seemed to know what form she was refer-
ring to when she made the request. Lashbrook, however, testi-
fied that she had not seen the health care chronological form
before April, when she became the medical coordinator.6
Haack nevertheless complied with Pettyplace’s directive and
instructed Foran, the Morowske Home medical coordinator at
the time, to complete the health care chronological for Dugal.
Foran testified that in late March, as instructed by Haack, she
filled out a health care chronological for Dugal showing doc-
tors’ appointments that had taken place or were scheduled to
occur from March through April. (See GC Exh. 4.) In com-
pleting the health care chronological, Foran obtained the infor-
mation regarding scheduled doctors’ appointments from a large
calendar that was generally used to record appointments and
other matters. Regarding General Counsel’s Exhibit 4, Foran
testified that the entry therein showing Dugal scheduled for a
physical examination with a Dr. Lovy was entered long before
the date of the appointment, and that the appointment itself, like
most other such appointments, are scheduled a month, some-
times 2 months, in advance.

5 The Respondent utilizes a health care chronological record to
document the medical appointments consumers are taken to, and the
medication received. (See GC Exh. 4.) Entries in the health care
chronological are generally made by the employee after the appoint-
ment. There is also a medication or “med” sheet used to record the
medications prescribed to a home consumer by the attending physician.
6 The Respondent offered into evidence as R. Exh. 28 health care
chronologicals of other residents covering March through April. It did
not, however, produce health care chronologicals for any period before
March. Pettyplace’s claim, therefore, that the health care chronological
form has been in use at the Morowske Home for as long as she could
remember, which contradicts Lashbrook’s claim that she was, prior to
April, unfamiliar with the health care chronological, lacks corrobora-
tion. It would have been an easy matter for the Respondent to refute
Lashbrook’s above claim by producing other health care chronologicals
for periods before March. It did not do so, leading me to doubt Petty-
place’s veracity on this matter.
INTER-DISCIPLINARY ADVANTAGE 483
In late February or early March, Abrakian, Lashbrook, and
Foran began discussing among themselves the benefits of hav-
ing, and the need for, a union to represent them. In late March,
Abrakian called several of the Union’s regional offices to get
information on how she and the others could organize them-
selves. As a result of those phone calls, Abrakian agreed to
meet on April 4, with a representative of the Union at the Un-
ion’s Local 155 office. On March 28 and 29, Abrakian con-
tacted all of her coworkers at the Morowske Home to advise
them of the meeting, and, with the exception of Jenkins who
did not return her call, received positive responses from all.
Abrakian testified that she also left a note in each employee’s
mailbox at Morowske Home notifying them of the time and
place of the union meeting. The meeting was to be held on
April 4, at the Union’s local hall situated some 22 miles round
trip by car from the Morowske Home. Lashbrook and Foran
corroborated Abrakian’s account of having had a discussion in
March about organizing themselves, and of being told by
Abrakian of the April 4 union meeting. Bibbee likewise admits
receiving a call from Abrakian advising her of the April 4 union
meeting.
In late March, Haack received from Davis a copy of the
Morowske Home budget, something she had been requesting
from Davis for some time. Haack claims that she, and
Lashbrook, who preceded her as Morowske Home supervisor,
had been asking to see the budget because of concerns they had
that things were not being taken care of the way they should
have been. (Tr. 634; see GC Exh. 5.) Haack recalls Davis
handing her the budget, along with several other documents,
and stating, “I finally got the budget for you.” Other than ask-
ing Haack to look over the budget and to tell her what she
thought about it, Davis did not instruct Haack on how or where
it should be retained. As she was preparing to leave the Home
for the day when she received the budget and other documents,
and had consequently locked her office, Haack took the items
given to her by Davis that were labeled “confidential” in red
and slid them under her office door. As to the budget, which
was not marked confidential, Haack simply placed it on a
counter situated between the kitchen and a sitting room, an area
generally open to all other employees, as well as consumers and
visitors, and where items such as a stapler, fax machine, stamp
pads, etc., are kept. The next day, she reviewed the budget with
Lashbrook and made some notations on it.
Abrakian testified that, while working her shift, she came
across the budget on the counter where Haack had left it. She
reviewed it and found it of some interest because of suspicions
she had that funds were being misappropriated at the Morowske
Home. Abrakian believed that the budget was a public docu-
ment because, in her view, the Respondent was a nonprofit
organization. Abrakian photocopied the budget and took the
copy home with her, leaving the original on the counter.
Abrakian denied sharing or showing the budget with anyone
else. She did admit that when first hired, she signed a confi-
dentiality statement. She also recalls seeing a copy of the em-
ployee handbook containing Respondent’s policies but claims
she never actually received a copy. One policy in the handbook
prohibits the removal by Employees of property, equipment, or
supplies belonging to the Respondent without express permis-
sion from the employer or supervisor. Because of her belief
that the Respondent was a nonprofit organization and that in-
formation pertaining to the home was a matter of public record,
Abrakian did not believe her taking the budget amounted to a
violation of the above policy.
The April 4 union meeting was scheduled for 11 a.m.
Lashbrook, Foran, and Home Supervisor Haack reported for
their morning work shift that day at 7 a.m. Both Lashbrook and
Foran asked and received permission from Haack to leave early
that day as both planned on attending the 11 a.m. union meet-
ing. Lashbrook told Haack her reason for leaving early was to
attend to some banking problems, while Foran did not cite any
specific reason for wanting to do so. The record reflects that
Abrakian, on Saturday, April 2, left a note for Haack in the staff
log stating that resident Daniel Dugal seemed ill that day and
had complained of having an earache and that she or someone
else would check on Dugal again the following day. (R. Exh.
6.)7 Haack corroborated Lashbrook’s and Foran’s account that
they requested and were granted permission to leave work early
on April 4. (Tr. 587–588.)
On arriving to work on Monday, April 4, and learning of
Dugal’s earache complaint, Haack advised Lashbrook and
Foran that, when Dugal woke up, they should question him to
see if anything was wrong, and try to schedule him to be seen
by his doctor. Lashbrook testified that because Dugal already
had a doctor’s visit scheduled for April 7, for a physical exam,
she called the doctor’s office between 8:30–9 a.m. on April 4,
to see if Dugal’s April 7 appointment could be moved up to
April 4, so that Dugal could be seen that day.8 The doctor’s
receptionist, however, told Lashbrook that if she could get
Dugal into the office between 10–10:30 a.m., she might be able
to get Dugal seen by a different doctor, but that any such visit
could not be combined with Dugal’s April 7 scheduled physical
exam. (Tr. 72.) Around 8:30 a.m. that morning, Haack was
told by Foran that Lashbrook had been unable to secure an
appointment for Dugal with his physician that morning. Foran
recalls Lashbrook passing on this information to her around 8
a.m. Lashbrook admitted conveying this information to Foran
but not to Haack.
Both Lashbrook and Foran testified that between 9:30 and 10
a.m. that morning, they used the company van to drive Dugal
and three other residents to the clubhouse.9 They testified that
they went directly to the clubhouse and nowhere else.
Lashbrook could not recall filling out the van log, but believes
she may have done so on April 4. She explained, without con-
tradiction, that employees do not always record every stop they
may make in the company van. By way of example, Lashbrook
pointed out that employees may, at times, take residents to a K-
Mart to cash their checks, or to get cigarettes and not record
these stops in the van log. She could not recall, however, any

7 The staff log is used by staff members to let others know what’s
going on in the Home with patients and other matters.
8 An appointment for Dugal to receive a physical examination from
his physician, Dr. Lovy, on April 7, had been scheduled and arranged
several months earlier, on February 22, 2005. (See GC Exh. 39.)
9 Foran had not been permitted to drive the company van since Janu-
ary 24, due to a DUI violation. (Tr. 278.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD484
employee ever being disciplined for recording inaccuracies in
the van log.
On arriving at the clubhouse, Lashbrook and Foran helped
the residents off the van, and handed them their lunches and
cigarettes. The whole process, according to Lashbrook and
Foran, took only a few minutes. They then drove back to
Morowske Home, arriving around 10:30 a.m. When they re-
turned to Morowske Home, Lashbrook gave Haack her set of
company keys. Both Lashbrook and Foran testified, without
contradiction, that, shortly thereafter, they got into Lashbrook’s
car and drove to the union meeting. Although she and Foran
signed the logsheet when they first reported for work that
morning, neither signed out for the day on April 4. Haack testi-
fied that she, in fact, filled in Foran’s exit time for April 4, on
April 15, the end of the payroll period because Foran, at the
time, was out of town and could not be reached. She explained
that, when she did so, she did not pay attention to the fact that
Foran had left early on April 4.
Lashbrook and Foran arrived at the union meeting some 15
minutes late, e.g., around 11:15 a.m. Lashbrook observed that
employees Abrakian, Bibbee, and Schwark, were already there,
as were the union representatives. Abrakian gave employee
Schwark a ride to the union meeting in her car. Abrakian ad-
mits taking the copy of the budget with her to the meeting
along with some other documents, and claims that, when she
arrived at the meeting, she placed the additional papers she
carried with her on top of the budget and that the budget re-
mained hidden from view during the entire meeting.
At the meeting, employees discussed the need for a union
and the changes they would like to see regarding wages, bene-
fits, etc. Abrakian does recall telling one of the union represen-
tatives at the meeting, Tanya Mahn, that she had a copy of the
Respondent’s budget with her and expressing her belief that
funds were being misappropriated, but that Mahn said she did
not want to see it. (Tr. 466–471.) At some point during the
meeting, Lashbrook and most of the employees signed authori-
zation cards for the Union. (GC Exh. 6.) She and other em-
ployees also picked up some union stickers which they placed
on their vehicles following the meeting which ended around 1
p.m.
Lashbrook and Foran both testified, without contradiction,
that, after the union meeting, they drove back to Morowske
Home in Lashbrook’s car where Lashbrook’s mother was wait-
ing to accompany Lashbrook to the bank. Lashbrook and her
mother drove to the bank in the latter’s car and, after taking
care of the banking business, drove back to Morowske Home so
Lashbrook could retrieve her car.
Following the meeting, Abrakian drove Schwark to work.
Abrakian worked the afternoon shift on April 4, and was the
one who picked up and returned Dugal and the other residents
from the clubhouse to the Morowske Home later that afternoon.
She testified that she and Romain were the ones who prepared
lunch for the residents that day. She further recalls that after
returning to Morowske Home, she worked the afternoon shift
with Romain and that, at one point as they were preparing
meals, Romain asked her how the union meeting had gone, and
that she answered it had gone fine. Abrakian had not previ-
ously told Romain about the meeting. (Tr. 475.) Romain was
not asked about, and consequently did not deny, Abrakian’s
testimony in this regard. Accordingly, I credit Abrakian’s
above testimony.
Lashbrook testified that on arriving at the Morowske Home,
she had a conversation with Romain initiated by the latter. She
claims that after asking her about her banking problems, Ro-
main asked Lashbrook if she had attended the union meeting
earlier that day. Lashbrook did not recall having previously
told Romain about the meeting. When Lashbrook replied that
she had, Romain stated that he did not think the Union was a
good idea. Lashbrook, who characterized her relationship with
Romain as somewhat friendly, commented that she was all for
the Union. Romain then told Lashbrook that his father or uncle
hated the union, that despite paying money the union was not
doing anything for them, and that they wanted to get rid of the
union but were having trouble doing so. Lashbrook remarked
that she had no problem with that. Romain went on to say that
he was telling her this so that she would understand that she
was not going to get anything from the Union, and that she
should not expect a raise simply because the Union was around.
Lashbrook replied that it can’t get any worse than what it al-
ready was, and that Romain was alone in his views because
everyone wanted the Union. Romain responded that employee
Randi Schwark was not sure about it. Romain then told
Lashbrook that he was worried, and that she should be careful.
(Tr. 105.)
Romain recalled having a conversation with Lashbrook
about the Union sometime in April. He testified, however, that
it occurred while they were both on break on the porch of the
Morowske Home, and that it was Lashbrook, not he, who initi-
ated the discussion. According to Romain, Lashbrook began
the conversation by asking him what he thought of the Union
and how it worked, and whether he thought it would be good
for the Company. Romain purportedly told Lashbrook that he
had discussed the Union with his father, that his father ex-
plained he had not had good experiences with the Union, and
that there were pros and cons to having a union. The conversa-
tion, he contends, ended at that point. Romain denied knowing
what precipitated this particular conversation with Lashbrook,
and denies having any further conversations with her about the
Union, including presumably the April 10 or 11 phone conver-
sation Lashbrook claims she had with Romain about telling
employees they could be fired for supporting the Union. (Tr.
1404–1405.)
Prior to this April 4 conversation with Lashbrook, Romain,
in late March or the beginning of April, had union-related dis-
cussions with other employees. Foran, for example, testified
that in late March, before employees began expressing any
interest in a union, Romain approached her and remarked that
he didn’t know why Foran wanted to have a union come in
because it wouldn’t do the employees any good. (Tr. 266.)
Foran admitted to having previously told Romain, about a year
earlier, of her interest in having a union. In response to Ro-
main’s query, Foran stated that a union would be good for the
INTER-DISCIPLINARY ADVANTAGE 485
employees working there, and would be good for employees
even if she were no longer employed at the facility.10
Romain recalled having a conversation with Foran about the
Union, but claims it occurred sometime in April, and was initi-
ated by Foran as they drove together in the Morowske van. He
testified that Foran commented that she wanted to make a
better place at Morowske for the next people that came to
work there. Romain claims he simply told Foran that that
was a nice way to look at it, and that the conversation
ended at that point. (Tr. 1401.) Romain’s version makes
little sense. From his limited version of what Foran purportedly
said to him, it is difficult to see how Romain would have under-
stood what Foran was referring to. One might reasonably have
expected Romain to ask Foran what she meant by her remark or
seek some clarification as to its meaning, for while Romain
testified that Foran was referring to a union, I fail to see how he
could have gleaned as much from his description of what Foran
said to him. His alleged response to Foran, that what the latter
had said was a “nice way to look at it,” makes even less sense.
I found Romain’s version of his conversation with Foran un-
convincing and credit Foran over Romain.
Bibbee testified that, in late March, while she, Hibbs, Geve-
don, and Romain were engaged in casual conversation either in
the sitting room or the med room at Morowske Home, Romain
remarked that if the Company found out they were for a union,
they could be terminated. (Tr. 411.) Bibbee did not respond to
Romain’s comment. Hibbs similarly testified to being in the
Morowske kitchen late one evening in March while Bibbee,
Gevedon, and Romain were present, and commenting that it
was not a good idea that employees didn’t get raises or any
holiday pay or other perks. Romain, she recalls, responded that
the Company would try to mess with, or fire them. Hibbs also
claims to have had another conversation with Romain about the
Union a few days later on the back patio of the Morowske
Home. She testified that Romain initiated this conversation by
asking how she felt about the Union, and that she replied that it
was a good idea. Romain then told her that he and his father
had discussed the Union, and that his father expressed the view
that the Union would not be able to help the employees because
the Respondent was not a big organization. (Tr. 527–528.)
Romain denied having any discussion with Bibbee about the
Union, but claims to have heard Bibbee say that “everybody
better be careful with their jobs so they don’t get fired due to
the Union.” Bibbee made this comment, he contends, some-
time in April in the Morowske kitchen. He claimed at the hear-
ing that he did not respond to Bibbee’s comment and simply
walked away. However, in an affidavit he gave to the Board
prior to the hearing, and shown to him during cross-
examination, Romain admitted he responded to Bibbee’s com-
ment by stating that his father had said the Union would not be
a good idea. Romain denied ever asking Hibbs how she felt
about the Union, saying that she could be fired for joining a
union, or stating that the Company would “mess with them” if
it found out employees were interested in a union. (Tr. 1403,
1416, 1431.) I credit Bibbee and Hibbs over Romain. From a

10 Romain’s March inquiry into Foran’s interest in a union is not al-
leged as a violation in the complaint.
demeanor standpoint, Romain came across as insincere and as
less than candid in his description of events. His long pauses
before responding to questions, particularly during cross-
examination, reflected a certain insecurity and unwillingness on
his part to give the answer required to the questions posed to
him. In sum, I found Romain not to be particularly credible.
Following their conversations with Romain, Bibbee and
Hibbs each separately called and asked Haack if they could be
fired for supporting the Union. Bibbee recalls Haack saying
that she did not know but did not think so, while Hibbs recalls
Haack assuring her she could not be fired. According to Hibbs,
Haack then posted a short note on the company bulletin board
stating that no one could be fired for supporting the Union. (Tr.
529.)
Bibbee’s and Hibbs’ above accounts that they called Haack
for advice were corroborated by Haack. Thus, Haack testified
that both called her on separate occasions on April 8, to ask if
they could be fired for joining a union, mentioning that Romain
had conveyed this to them. Haack recalls telling Bibbee that
she did not know and that Bibbee should ask Lashbrook about
it. Haack, however, told Hibbs that she was not going to lose
her job. Haack contends that following her phone conversa-
tions with Bibbee and Hibbs, she called Romain and told him
that he should not be telling people that they could be fired for
joining a union, that what employees did was really “none of
our business,” and that “we needed to just stay out of it and let
them do what they needed to do.” Romain, she further con-
tends, denied making such comments to Bibbee or Hibbs. (Tr.
116.) Romain was not asked about, and consequently did not
deny, being told by Haack to refrain from telling employees
they could be fired for joining a union, and not to get involved
in the employees’ organizational activities.
In response to Bibbee’s and Hibb’s concerns, Haack, on
April 9, posted a notice on the Morowske Home bulletin board
notifying employees that they could not be fired for trying to
start a union. (Tr. 613.) She contends the posting remained for
1 or 2 days after which it was taken down. She denied remov-
ing the posting or knowing who might have done so.
B. The Alleged Employee Complaints
Davis testified that for weeks prior to April 14, employees
had been expressing concerns and complaining to her about
policies and procedures not being followed at the Morowske
Home. As more fully discussed below, an employee meeting to
address these concerns was held on April 14. According to
Davis, these complaints came in the form of phone calls to her,
and in written form, and included allegations that Haack was
not at the Home during various times of the day, that she
showed favoritism to certain staff members, that a staff member
was babysitting for the supervisor and receiving favors in re-
turn, that Haack was fudging the timesheet and signing people
in and out, that staff members were getting paid for not being in
attendance at the Home, and that the Morowske van was being
used for personal business. Regarding the personal use of the
van, Davis testified to receiving phone calls stating that the van
was seen at a Wal-Mart, and that the Morowske consumers
were all standing outside the Wal-Mart with no staff around,
and that the van had been seen at another location when con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD486
sumers were supposed to be at a doctor’s appointment. (Tr.
1462–1463.) Davis, however, could not recall who reported
these two incidents to her, or when she purportedly received
these reports.
Davis also testified to receiving a phone call from Schwark
reporting that she had seen the Morowske van at the April 4
union meeting, and that Romain reported to her that Schwark
told him she had seen the van at that meeting. Davis had no
recollection of when she actually received these reports from
Schwark and Romain. However, if these reports to Davis by
Schwark and Romain were in fact made, presumably they
would have occurred on or after the April 4 union meeting, and
no later than April 8, since both Davis and Pettyplace claimed
to have discussed this alleged incident at a meeting held be-
tween them on April 8. Davis testified that on receipt of
Schwark’s phone call, she notified Pettyplace about the van
being seen at a union meeting. Davis could not recall when she
may have notified Pettyplace, and stated only that it would have
occurred “promptly” after her conversation with Schwark.11
She contends that what concerned her about Schwark’s report
was not that the van was at a union meeting, but rather “that
there were no consumers in the van.” (Tr. 1475; 1557.) Davis
claims that she asked Schwark to prepare a written statement
setting forth her concerns and observations, and that Schwark
did so. The written statement allegedly prepared by Schwark
was received into evidence as General Counsel Exhibit’s 33.12

11 Pettyplace claims she first learned of the employees’ interest in the
Union when Davis told her about the van being spotted at a union meet-
ing. (Tr. 800.) Although it is clear from Pettyplace’s above assertion,
and from her own testimony, that Davis must have known or purport-
edly been made aware of by Schwark of the employees’ organizational
activity at some point prior to her April 8 meeting with Pettyplace, in a
sworn affidavit she gave to the Board prior to the hearing, Davis, un-
truthfully in my view, averred that she first learned of such activity on
April 14.
12 GC Exh. 33 is a 3-page handwritten statement dated “April 11,
2005,” presumably the date it was prepared, with a signature at the
bottom of the third page purporting to be that of Randi Schwark. Al-
though Davis claims to have received it from Schwark, she could not
recall if she received GC Exh. 33 before or after April 14, the date
employees were subjected to individual interviews. Even when shown
the letter by Respondent’s counsel, Davis was unable to say when, or
for that matter how, she received it, e.g., by fax, mail, in person, etc.
Indeed, she had no recollection of having shared it with anyone, or
shown it to any other management official. While she adhered to this
“unable to recall” position regarding GC Exh. 33 on cross-examination
by the General Counsel, on direct examination, in somewhat of an
epiphanic moment, Davis finally claimed to have received GC Exh. 33
before the April 14, interviews. Her testimony regarding GC Exh. 33
was ambiguous, vague, and not at all credible. Thus, her claim on
redirect examination of having received GC Exh. 33 from Schwark
before the April 14 interviews is not worthy of belief, and was, in my
view, nothing more than a fabrication designed to bolster the Respon-
dent’s subsequent explanations for discharging Lashbrook and Foran.
The one person who could have authenticated GC Exh. 33 and ex-
plained the circumstances surrounding its preparation, and how and
when it was given to Davis, was Schwark herself. Schwark, however,
was not called as a witness, despite assurances by Respondent’s coun-
sel during his opening remarks that he would be calling her to testify.
The Respondent’s failure to call Schwark to authenticate GC Exh. 33,
particularly in light of Davis’ poor testimony regarding the exhibit,
Not only was Davis unable to say when she purportedly re-
ceived General Counsel’s Exhibit 33, she was likewise unable
to recall when she allegedly received written reports from Ro-
main and Hibbs, stating, as she initially did regarding General
Counsel’sExhibit 33, that she did not recall if they were given
to her before or after the April 14 employee meeting. (Tr.
1461; 1554–1557; 1572; 1596.)
Davis testified that she began looking into these complaints
and kept Pettyplace abreast of her investigation. She claimed
that, during her investigation, she learned from Haack, pre-
sumably sometime after April 4, that Dugal was taken to the
doctor on April 4, by Lashbrook and Foran for an earache and
stomach ailment. Davis, however, had no recollection when
she might have been told this by Haack, that is, whether Haack
told her before or after the April 14 employee interviews. It is
not clear, therefore, if Haack’s information about this alleged
April 4 doctor’s visit was what prompted Davis to look into the
visit itself. Obviously, if she obtained the information from
Haack after the April 14 interviews, then that information from
Haack could not have been what prompted Davis to look into
the April 4 doctor’s visit. Davis does contend that on April 6,
she asked Lashbrook about the doctor’s visit, and that
Lashbrook told her she and Foran had taken Dugal to the doctor
on April 4, and that Dugal had been prescribed some Senokot
for his bowel problem. Lashbrook, however, denied saying any
such thing to Davis. The parties stipulated at the hearing that
Dugal was, in fact, not taken to the doctor on April 4.
Davis nevertheless claims that based on the above informa-
tion, she reviewed the documents that would normally be asso-
ciated with a doctor’s visit, and became suspicious about the
alleged April 4 doctor’s visit. Thus, on reviewing the health
care chronological where doctors’ visit were generally re-
corded, she found a notation for an April 4 doctor’s visit, but
noticed that the date “April 4,” appeared to have been squeezed
in between other dates as if it had been inserted after the fact to
reflect that such a visit occurred. (See GC Exh. 4.) The man-
ner in which the date entry was made, according to Davis,
seemed out of place and not consistent with the other entries.
She claims she also looked for a physician’s order or script to
see if Dugal had been prescribed some medication as a result of
the April 4 visit, but found none. She likewise found no entry
on the “med” sheet for April 4, but did find that an entry for
“Senokot” had been made pursuant to another visit by Dugal to
the doctor on April 7. Davis purportedly also reviewed the van
log to see if a trip to the doctor had been made on April 4. The
van log did contain an entry showing a purported trip to the
doctor that day. (See GC Exh. 3.) She claims, however, that
when she reviewed the communications and staff logs (R. Exh.

casts doubt on the reliability and trustworthiness of GC Exh. 33, and
further supports an adverse inference that if called to testify, Schwark
would not have authenticated GC Exh. 33 as her work product or given
testimony supportive of the Respondent’s case. The reliability of GC
Exh. 33 as a document prepared by Schwark is further undermined by
the fact that the signature on GC Exh. 33, purporting to be Schwark’s,
differs substantially from Schwark’s actual signature found on other
Company documents. (See, for example, Schwark’s signature on GC
Exhs. 2, 19, and R. Exh. 4.)
INTER-DISCIPLINARY ADVANTAGE 487
26), which would normally show that a doctor’s visit had been
scheduled for April 4, she found they contained no such entries.
According to Davis, if, as she purportedly was told by
Lashbrook, Dugal received the medication Senokot during the
alleged April 4 visit, then an entry for the Senokot medication
should have been recorded in the medical log, and there should
have been a doctor’s script showing that Dugal was prescribed
Senokot during the April 4 visit. She claims that following her
discussion with Lashbrook, she searched the medicine cabinet
for the Senokot and, on not finding any, discussed it with
Haack and recommended that Lashbrook be written up for not
following proper procedure. Lashbrook was indeed issued a
write-up by Haack on April 7, which Lashbrook signed on
April 8, for failing to record the Senokot medication in the
medication book which, according to the writeup, Dugal alleg-
edly received on April 4. (See R. Exh. 30.)13
As to the writeup she received from Haack on Davis’ in-
structions, Lashbrook testified that she was not at work on
April 7, but did sign it the following day, April 8, because, as
medical coordinator, she was the one responsible for ensuring
that such entries are made. She claimed that Haack was simply
following Davis’ directive to issue her a writeup and did not
know why she was asked to do so. She further contends that on
learning that Lashbrook had not worked on April 7, Haack
unsuccessfully sought to contact Davis for explanation.
Lashbrook contends that she did not pursue the matter because
the writeup was never actually placed in her personnel file. (Tr.
245, 248.)
Davis contends that as part of her investigation into the April
4 doctor’s visit, she called the doctor’s office and was told by
the receptionist that the doctor was not in on that date and that
no such visit occurred. Davis had no recollection of when she
made those calls to the doctor’s office.14 She further claims to
have gone to the friendship house and spoken with the director
who reviewed the sign-in sheet and confirmed that Dugal had
arrived and signed in at the facility at 10 a.m. on April 4, the
time when Dugal purportedly was at the doctor’s office. Davis
purportedly also received a copy of the friendship house sign-in
sheet. (See R. Exh. 10.) Davis, however, could not recall when
she had this conversation with the director at friendship house,
explaining only that it occurred before Lashbrook and Foran
were fired on April 25, nor did she recall when she first saw

13 As there was no doctor’s appointment for Dugal on April 4, the
assertion in the writeup that Dugal received a sample packet of Senokot
on April 4, was incorrect. Despite only cautioning Lashbrook in the
writeup that “any further violations” might affect her employment,
Pettyplace cited this writeup as a reason for Lashbrook’s eventual dis-
charge on April 25. (Tr. 716.)
14 The Respondent at the start of the hearing promised to call the
doctor’s representative as a witness to confirm that there was no April 4
visit by Dugal. The representative, however, was never called, pre-
sumably because the parties were able to stipulate that no such visit
occurred that day. Yet, Davis’ claim of having called the doctor’s
office to confirm whether or not Dugal was seen that day and to have
spoken with the doctor’s receptionist, was unsubstantiated, and the
information allegedly provided to her by the receptionist pure hearsay.
Further, I find it odd that Davis would not have obtained a written
statement from the receptionist, who was willing to provide one, con-
firming the substance of their conversation.
Respondent’s Exhibit 10. (Tr. 1560.) Davis contends that on
April 8, she met with Pettyplace to discuss her investigation,
and that, following that meeting, she continued her investiga-
tion by doublechecking the documents she had earlier re-
viewed, calling the doctor’s office one more time to confirm
that no visit occurred on April 4, and by asking employees if
they knew whether or not such a visit had taken place. She
recalls asking Schwark what she knew about the visit but
Schwark purportedly had no information to give her. Based on
her review of the above-described documents and discussions
with the doctor’s office, Davis concluded that there had been no
doctor’s visit on April 4.
C. The Events of April 8
On the morning of April 8, Davis met with Pettyplace at the
latter’s office to discuss the progress of Davis’ investigation
into employee complaints. Davis claims that at this meeting,
she provided Pettyplace with the documents she obtained dur-
ing her investigation, including the written statements she had
obtained from employees. Davis recalls that at one point dur-
ing the meeting, Pettyplace phoned Haack to discuss several
matters, including the amount of overtime being worked at
Morowske Home. Davis claims she was able to hear what
Haack was saying to Pettyplace during that phone conversation
because Pettyplace placed the call on speakerphone. She re-
calls Pettyplace asking Haack to fax her copies of various docu-
ments, including the health care chronologicals, the van logs,
and consultation referral forms so that she could determine if
the overtime was justified. At the hearing, Davis identified
Respondent’s Exhibit 31 as the set of documents Haack faxed
to Pettyplace that day. According to Davis, at one point during
their phone conversation, Pettyplace asked Haack if Dugal was
seen by a doctor on April 4, and Haack answered that Dugal
“must have went [sic] to the doctor,” that Lashbrook and Foran
took him to the appointment, and that she didn’t do so because
she was busy at a meeting. (Tr. 1481.) After some discussion
with Haack about the doctor’s appointment and being told by
Haack that she knew little of what had gone, Pettyplace, ac-
cording to Davis, commented that Haack did not even know
where the van was on that day. (Tr. 1481; 1486.) Davis testi-
fied that after she and Pettyplace reviewed the faxed documents
they had gotten from Haack, they agreed to hold a meeting with
employees on April 14, to fully look into the employee com-
plaints. Pettyplace, according to Davis, then called Prevatt
“and gave her some information” as to the employee meeting.
Davis subsequently instructed Haack by phone to notify the
Morowske staff of the meeting.
Pettyplace provided the following account of her April 8
meeting with Davis. Davis came to see her that day to discuss
the employee complaints, and to provide her with various
documents which Davis purportedly obtained in the course of
her investigation into the employee complaints. Davis also told
Pettyplace of the report she had received about the company
van having been seen at a union meeting on April 4, and about
Abrakian having had a copy of the budget with her at that meet-
ing. Pettyplace could not recall when she first learned of the
van being spotted at the union meeting, claiming initially that
Davis told her during their April 8 meeting, but stating, on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD488
cross-examination, that she was not sure when she first learned
of it. Although she believes Davis identified the individual
who had given her the report about the van, Pettyplace was
unable to recall or name the individual. (Tr. 995.) Pettyplace
contends she instructed Davis to ask Schwark to provide a writ-
ten statement about seeing the van at a union meeting, and that
Schwark in fact did so in the form of General Counsel’s Exhibit
33.
Pettyplace’s testimony on when she first saw General Coun-
sel’s Exhibit 33 was confusing and seemingly contradictory.
Thus, on direct examination, Pettyplace identified General
Counsel’s Exhibit 33 as one of the documents she and Davis
reviewed and discussed in deciding whether or not to hold a
meeting among Morowske Home employees. (Tr. 846.) Both
Davis and Pettyplace agree that the decision to conduct an em-
ployee meeting on April 14, was made during their April 8
meeting. Consequently, if Pettyplace is to be believed, then she
and Davis first saw and discussed General Counsel’s Exhibit 33
on April 8. General Counsel’s Exhibit 33, however, is dated
April 11. Although Schwark was not called to authenticate the
document as her own or to confirm when it was prepared, a
reasonable inference is that it was prepared on the date shown
therein, e.g., April 11, 3 days after Pettyplace implicitly
claimed she and Davis had reviewed and discussed it. How-
ever, on cross-examination, Pettyplace, apparently recognizing
the inconsistency between her testimony that Davis showed her
General Counsel’s Exhibit 33 on April 8, and the April 11 date
on General Counsel’s Exhibit 33, altered her testimony and
admitted that she, in fact, did not see General Counsel’s Exhibit
33 until April 15, when she returned from a 3-day trip to Ari-
zona. She nevertheless testified that while in Arizona, she had
Davis read the contents of General Counsel’s Exhibit 33 to her
over the phone.15 Davis, however, made no mention in her
testimony of ever having read General Counsel Exhibit 33 to
Pettyplace, and, in fact, had no recollection of reading or show-
ing General Counsel’s Exhibit 33 to any management official,
which presumably includes Pettyplace. Pettyplace’s testimony
regarding General Counsel’s Exhibit 33 struck me as fully con-
trived and not particularly credible.
As to her phone conversation with Haack, Pettyplace gave
the following account. She testified that she called Haack be-
cause Davis had reported to her that the Morowske van was
seen offsite on April 4, at a union meeting. Pettyplace claims
that when she asked Haack if she knew where her van was on
April 4, Haack replied that “the staff had taken the consumer,
Daniel Dugal, to the doctor that day, that morning, then they

15 Pettyplace was inconsistent regarding her return date from Ari-
zona for she subsequently admitted that she was not sure if she returned
from her Arizona trip on Friday, April 15, or Saturday, April 16, or
whether she remained in Arizona throughout the weekend. (Tr. 986,
1019.) Pettyplace did offer to clarify this ambiguity by pointing out
that a review of her appointment book might help clarify the matter.
Neither party, however, accepted her offer to review her appointment
book. As her inability to recall this particular event could adversely
affect her credibility, one would reasonably have expected the Respon-
dent to take Pettyplace up on her offer. Its failure to do so leads me to
suspect that production of the appointment book would not have bene-
fited the Respondent’s case.
took him to the clubhouse.” Pettyplace claims that she probed
Haack further about her latter response by asking Haack if she
was certain the van had only gone to the doctor and the club-
house that day, reiterating that the van had been spotted at a
union meeting. Haack, she contends, became angry at that
point and told Pettyplace that she cannot be expected to know
where the van is every minute of the day. Pettyplace responded
that as the person in charge at the Morowske Home, she was
responsible for the van, and again asked Haack if she knew
anything about the van being used to take staff to a union meet-
ing. Haack answered no. Although unclear from Pettyplace’s
account, at some point either before or during this exchange,
Pettyplace asked Haack to fax her the Morowske van log and
the health care chronological for all the consumers, and any
documents confirming Dugal’s visit to the doctor on April 4.
Pettyplace contends that shortly thereafter, she received a fax
from Haack containing all the documents which make up Re-
spondent’sExhibit 31.16 (Tr. 848, 851, 999.) As to the consul-
tation referral form found on the last page of Respondent’s
Exhibit 31, Pettyplace testified that she received it as is from
Haack, e.g., with both the top and bottom halves of the form
filled in. According to Pettyplace, this was the only phone
conversation she had with Haack in which the Union was dis-
cussed.
Haack provided a much different version of her April 8,
phone conversation with Pettyplace. Thus, she testified that
Pettyplace called her that day to tell her that the van had been
spotted at a union meeting on Van Dyke and Thirteen Mile
Road at 11 a.m. on April 4, and then instructed her to let the
“staff know that, if they were participating in the union involv-
ing the company time at all, they would be terminated.” (Tr.
614.) Haack recalled asking Pettyplace if she wanted her in-
structions written down on the communication log for employ-
ees to read, but that Pettyplace answered, “No.” Pettyplace,
Haack contends, went on to say that “the union could not do
anything for the staff at Morowske, they would not get raises
. . . they would not get benefits, and that politicians up north
were trying to stop the direct care workers from unionizing,”
and further commented that employees at Central State, another
of Pettyplace’s companies, were trying to get rid of the union.
Haack responded that this was simply Pettyplace’s opinion.
(Tr. 615.) At one point during their conversation, Pettyplace
asked Haack to fax certain documents over to her. With the
exception of the last document attached to Respondent’s Ex-
hibit 31, a “Consultation Referral” form, Haack identified the
other documents in that exhibit as the ones she faxed to Petty-
place on April 8. However, as to the consultation referral form
attached to Respondent’s Exhibit 31, Haack insisted that the
one she faxed to Pettyplace that day had only the top half filled
in, but that the bottom half of the form which the attending
physician fills in, was blank except for the initials “NS” written
on it.17

16 According to Pettyplace and Davis, Haack initially faxed only
some handwritten summaries, but subsequently, after being told by
Pettyplace to do so, faxed the actual documents comprising R. Exh. 31.
17 The “Consultation Referral” form has a top and a bottom section
separated by double-dotted lines and is used when a resident is to be
INTER-DISCIPLINARY ADVANTAGE 489
At the hearing, the General Counsel produced the original
consultation referral form, received into evidence as General
Counsel’s Exhibit 38, which Haack testified as being identical
to the one she faxed, along with the other documents in Re-
spondent’s Exhibit 31, to Pettyplace on April 8.18 When shown
General Counsel’s Exhibit 38, Pettyplace expressed “shock”
and “surprise” on learning that another (original) version of the
consultation referral form existed, and wondered aloud where
General Counsel’s Exhibit 38 had come from. (Tr. 859.) Al-
though she had no explanation for this discrepancy between
what she claimed she received from Haack, and what Haack
claims she faxed to her on April 8, Pettyplace nevertheless
gratuitously speculated that Haack must have mistakenly run
two documents through the fax machine simultaneously, caus-
ing the filled-in bottom half of the consultation referral form to
be inadvertently transmitted along a similar one containing a
blank bottom half. (Tr. 863.) Pettyplace’s willingness to en-
gage in such speculation, and to, at times, ramble on and volun-
teer information not asked of her, served only to further under-
mine her credibility. (See, e.g., Tr. 870–871; 899; 910; 912.)
Haack testified that this April 8 phone call from Pettyplace
was one of several she received from Pettyplace that same
week. She recalled that during one of these other calls from
Pettyplace, Lashbrook was with her in her office. Pettyplace,
she contends, told her during this conversation that she wanted
Foran removed from the medical coordinator’s position, that
the employees’ work hours should be reduced to 32 hours per
week, and that there were to be only two staff persons working
a shift, with Haack being one of the two. Haack admits that
Pettyplace upset her during that conversation, and that, follow-
ing the phone call, Lashbrook asked her what was wrong.
Haack told Lashbrook that this was the third time in a week that
Pettyplace had called her and that she seemed angry every time
she called. Lashbrook then explained that Pettyplace was angry
because employees were trying to organize a union at
Morowske Home. (Tr. 609.)

seen by a doctor. The top section of the form is used to identify the
reason for the medical consultation, the medications the resident is
currently receiving and any known allergies, and is dated and signed by
the employee filling out the form. The bottom half of the form bears
the heading “TO BE COMPLETED BY DOCTOR” and apparently
gets filled in by the doctor who sees the resident. The section lists the
doctor’s findings, diagnosis, and recommendations, and contains the
date of the visit and the doctor’s signature.
18 Haack testified that, unlike the “Consultation Referral” appended
to R. Exh. 31, the one she faxed to Pettyplace on April 8, did not have
the bottom half, e.g., the doctor’s section, filled in but rather was blank,
except for the initials of Nancy Sammut, who was the Morowske Home
nurse at the time, on the bottom of the form indicating it had been re-
viewed by Sammut. (Tr. 691.) The documents identified by Pettyplace
and Davis as the ones faxed to them by Haack on April 8, were re-
ceived into evidence as R. Exh. 31. The disputed document is the last
page of R. Exh. 31, entitled “Consultation Referral.” Haack claims that
the bottom half of the “Consultation Referral” form, just below the
double-dotted line, and containing the heading, “TO BE COMPLETED
BY DOCTOR” was not filled in when she faxed it to Pettyplace on
April 8. Pettyplace and Davis, on the other hand, insist that the “Con-
sultation Referral” attached to R. Exh. 31, was received as is from
Haack, e.g., with the bottom half filled in.
Lashbrook corroborated Haack’s testimony regarding the
phone conversation the latter had with Pettyplace during which
Lashbrook was present. According to Lashbrook, based on the
comments and responses Haack gave to Pettyplace during that
phone conversation, she surmised that the Union was being
discussed. Lashbrook, for example, recalled hearing Haack tell
Pettyplace that she knew nothing about “a meeting,” and that
“they didn’t take the van, it was here.” There was also some
discussion between Haack and Pettyplace about overtime dur-
ing that conversation. At one point, Lashbrook heard Haack
refuse to do something Pettyplace asked her to do, offering
instead to write down whatever Pettyplace was asking her to do
in the staff log. Following the phone call, Haack explained to
her that Pettyplace wanted her to tell employees that “they
could be terminated if they practiced union business,” that she
had refused to do so and had, instead, offered to write the direc-
tive down on the staff log for employees to see, and that Petty-
place declined the suggestion. Following the conversation,
Lashbrook, noticing that Haack seemed upset, revealed to
Haack that Pettyplace may have been angry because of the
union meeting that was held on April 4. She cautioned Haack
that, based on her own experiences, the Respondent was now
going to start harassing Haack, and told Haack to watch out for
herself. According to Lashbrook, Haack mentioned to her on at
least two other occasions that Pettyplace had called her at other
times to discuss the Union.
Following the April 8 Pettyplace-Davis meeting, Prevatt was
asked by Pettyplace to assist Davis in the investigation. Ac-
cording to Prevatt, Pettyplace wanted her and Davis “to look
into concerns that some employees had about other employees
at Morowske House and to get to the truth regarding those con-
cerns.” (Tr. 1169.) Pettyplace testified that she asked Davis to
conduct the investigation because she was Respondent’s pro-
gram coordinator, and that Prevatt was asked to participate as a
witness, explaining that she generally has two management
persons taking part in the investigation, and that, more often
than not, one of the investigators will do the talking while the
other takes notes. She contends that she had faith in Prevatt’s
ability to conduct a fair and honest investigation because Pre-
vatt had conducted similar investigations in the past, was very
thorough, and knew the legal boundaries. (Tr. 958.)
Later that day, the Union faxed to Pettyplace a letter notify-
ing her that a majority of the Respondent’s direct care workers
had selected it to represent them for collective-bargaining pur-
poses, and asking for recognition. (See GC Exh. 22.) On
cross-examination, Pettyplace claimed to have no recollection
of having received or even seen the Union’s letter. A fax trans-
mission entry on the top of General Counsel’s Exhibit 22 re-
flects that it was faxed to Pettyplace at 2:51 p.m. on April 8.
Pettyplace did recall that also on April 8, she phoned her attor-
ney, Greg Bator, to notify him that the company van had been
seen at a union meeting, but did not recall ever discussing the
Union’s recognition demand letter with him. Pettyplace’s
claimed inability to recall receiving or seeing the Union’s April
8 recognition demand letter or having discussed such a demand
with her attorney rings hollow. I find it somewhat incredulous
that Pettyplace, who has received training in labor relations
matters, and who acknowledged the importance of the Union’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
demand for recognition in the conduct of her operations, would
recall calling her attorney to inform him about a rumor that the
van had been seen at a union meeting, but not recall informing
him of the Union’s claimed majority status or to seek advice on
what to do regarding the Union’s demand for recognition.
Following the April 8 meeting, Prevatt and Davis purport-
edly met to arrange when and how the employee meeting was
to be conducted. Prevatt claims she reviewed Dugal’s health
care chronological and the van log that Davis provided to her
before the April 14 meeting. She further recalls Pettyplace and
Davis telling her sometime before the April 14 employee meet-
ing that the van had been seen at a union meeting, and learning
that the company budget being removed by Abrakian from the
Morowske Home. Based on her discussions with Davis, Pre-
vatt prepared a list of the concerns that had to be addressed, as
well as a different set of questions that were to be asked of
employees and supervisors during the interviews.
D. The April 14, Employee Meeting
1. The pre-interview conduct
The record reflects that Davis informed Haack that a manda-
tory employee meeting was to be held on April 14, and in-
structed her to notify employees of the meeting. Haack appar-
ently did so within days of the meeting. As required, on April
14, employees gathered at the Morowske Home for the manda-
tory meeting to be conducted by Prevatt and Davis. As the
Morowske Home was normally staffed by two to three direct
care workers per shift, some of the employees who attended the
mandatory meeting were not scheduled to work during the time
the interviews were to be conducted and were there solely for
the meeting. According to Davis, on arriving at Morowske
Home on April 14, she and Prevatt told employees they were
there to investigate certain allegations, and that Prevatt told
employees they were to sit and watch a video on blood-born
pathogens and engage in no “sidebar” conversations with each
other as they waited to be interviewed separately. Davis recalls
Lashbrook saying aloud to employees that they did not have to
tell Davis or Prevatt anything about the union, and Prevatt re-
plying that they were not there to talk about the Union. (Tr.
1525.)
Prevatt testified that on arriving at Morowske Home for the
employee meeting, Davis introduced her to the waiting em-
ployees, told them about the video they were expected to watch
as each was being interviewed, and that they were not to en-
gage in any discussion among themselves about the investiga-
tion. She contends that she instructed Haack and Romain to
watch the group to ensure that no such discussions about the
investigation took place. (Tr. 1187.) Lashbrook, she recalls,
then stood up and told employees they did not have to answer
any questions about the Union, and that she (Prevatt) then told
employees that there was to be no “sidebar” conversations.
Prevatt admits she did not explain to employees what she meant
by “sidebar” conversations. Asked if employees were prohib-
ited from engaging in any other type of conversation unrelated
to the investigation, Prevatt stated they were not, and that she
only wanted them to refrain from discussing or speculating
about the investigation. Thus, she claimed that employees were
free to discuss other matters, including the video, family matter,
etc. (Tr. 1188.) Her testimony in this regard, however,
squarely conflicts with a statement made by her in a sworn pre-
hearing affidavit given to the Board, wherein she recalled tell-
ing employees that “there should be no sidebar conversations or
nonwork-related conversations while I was conducting the
investigation.” (Tr. 1357.)
Haack testified that at the April 14 employee meeting Davis
appeared with Prevatt and that Romain and an assistant man-
ager from Lillian House, Eva Hemphill, were also present for
management. Davis introduced Prevatt to the employee group
and then had the employees identify themselves. Haack recalls
that either Davis or Prevatt then told employees “there was
going to be an investigation and we were not to talk to anybody
about the investigation and they would be taking us into my
office one-by-one and interviewing us, and we would watch a
blood borne pathogen tape while they were doing that.” She
further recalled either Davis or Prevatt instructing employees
that “they were not to talk about anything. We were on com-
pany time. We were not to talk to each other, and that Eva
Hemphill would be watching over us to make sure we didn’t
talk to each other.” Prevatt, she contends also told employees
that they were not allowed to discuss what transpired during
their interviews with anyone. At one point, Lashbrook, she
contends, told the group that they did not have to discuss any-
thing about the Union with Prevatt and Davis, and that Prevatt
responded by telling employees that “there would be no talk
about the Union and if there was any talk about the Union,
you’d be terminated. She further claims that she and Romain
were instructed by Prevatt “not to let anyone talk to each
other.” (Tr. 618–620.)
Romain recalls being present for the April 14 meeting, and
Prevatt introducing herself and instructing employees they were
to sit and watch a video on blood-borne pathogens as they
waited to be interviewed. At one point, Lashbrook, he con-
tends, told employees that they did not have to say anything
about the Union, to which Prevatt responded that there was to
be no “closed-bar” conversations between employees. (Tr.
1409.)
In addition to Haack and Romain, several other employees
testified as to what Davis and/or Prevatt told the employee
group just prior to the individual interviews. Lashbrook re-
called Davis saying that she was conducting an investiga-
tion, and that the employees were all going to be called
into the room individually but did not explain what the
investigation was about. Davis, she contends, further told
them they were not allowed to discuss the subject matter of the
investigation with each other or anyone else outside the home,
nor were they permitted “to discuss anything with each
other while we were sitting out in the living room waiting
or we could be terminated.” Lashbrook claims that when
employees were asked if they had any questions she stood
up and told employees they did not have to answer any
questions about the Union. In response, Prevatt, she con-
tends, told employees that “there will be no more talking
about a union or union business on company time in this
Home or you will be terminated.” (Tr. 119–120.)
Foran’s recollection is that at the start of the meeting just be-
fore the interviews, Prevatt told employees that “this was an
INTER-DISCIPLINARY ADVANTAGE 491
investigation, and we were going to be taken into Diane
Haack’s office one-by-one, and we were not to speak to each
other or we would be terminated.” Prevatt also told employees
that they “were not to speak to each other” as they watched a
video on blood pathogens, and that, after being interviewed,
they were to leave immediately, unless “we were working.”
Foran further recalled Lashbrook telling employees that they
did not have to answer any questions about the Union, and
Prevatt responding that “there’ll be no more union talk on com-
pany time, or we could get terminated.” (Tr. 305–306.)
Abrakian testified that Prevatt told employees they were “not
to discuss the contents of the investigation with each other or
anyone else or we would be terminated.” On cross-
examination, Abrakian noted that Prevatt’s prohibition on
speaking applied to all subject matters, not just the investiga-
tion itself. She also recalled Lashbrook telling employees they
did not have to answer any questions about the Union, and
Prevatt responding that the employees “were on IDA company
time and from that point on, there was to be no discussion of
union or union activity or we would be terminated.” (Tr. 479,
502.)
Hibbs recalled Davis telling employees gathered for the
April 14 meeting that they were to watch a video while other
employees were being interviewed, “and that there was to be
no side talking while this was going on or we could be
terminated.” Lashbrook then commented that employees did
not have to answer any questions about the Union, to which,
she contends, Prevatt responded that this “was to be the last
statement about the union. There was to be no more dis-
cussion about the union or we could be terminated.” (Tr.
531.)
Bibbee testified that Davis first addressed the group, telling
them each employee was to be questioned individually, and that
“they were not to discuss with each other what was talked
about in our meeting.” She recalled Lashbrook, at one
point, telling employees that “we did not have to discuss
the meeting with them,” and Prevatt responding that “un-
ion talk would not be allowed on IDA’s time.” (Tr. 421–
422.)
I am convinced, based on a composite of the employees’ tes-
timony, that Prevatt told employees just prior to the interviews
that they were not to discuss any nonwork-related matters
among themselves as they waited to be interviewed, and, in
response to Lashbrook’s comment that employees did not have
to answer any questions about the Union, further told employ-
ees that they could be terminated if they engaged in any talk
about the Union. Prevatt’s claim that she simply told employ-
ees only that they were not to engage in any “sidebar” conver-
sations is not credible, as it is contradicted by her own pretrial
affidavit wherein she admits telling employees that they were
prohibited from engaging in “sidebar” as well as other non-
work-related conversations. I also reject as not credible, and as
inconsistent with the mutually corroborative testimony of sev-
eral employee witnesses, that Prevatt did not threaten employ-
ees with discharge if they discussed the Union among them-
selves.
2. The individual employee interviews
After instructing employees, Prevatt and Davis summoned
each employee into Haack’s office to be interviewed.19 Haack
remained outside with the other employees while the interviews
were conducted. Davis apparently took charge of calling in
each employee, and Prevatt took the lead role in questioning
employees. Prevatt testified that she had a list of questions she
planned and did ask all employees during their interviews.
Among the questions asked, according to Respondent’s Exhibit
7, was whether there was “anything [the Respondent] could do
to improve the workplace or [the employees’] enjoyment on the
job.”20
Davis testified that even before the interviews, the Respon-
dent suspected that Foran, Lashbrook, Haack, and Abrakian had
violated company policies. Foran, Davis explained, was sus-
pected of theft, e.g., taking money out of the Company’s safe,
and falsifying company documents to reflect a doctor’s ap-
pointment on April 4 that did not occur. Lashbrook was also
suspected of falsifying company documents and of using the
Company’s van for personal use during worktime, while
Abrakian was suspected of stealing confidential information, to
wit, the Company’s budget, and destroying it. (Tr. 1473–
1474.) Prevatt likewise suspected prior to the interviews that
Lashbrook and Foran had lied about taking Dugal to a doctor’s
appointment on April 4, and conceded that, on this particular
subject matter, she had not kept an open mind when interview-
ing Lashbrook and Foran. (Tr. 1351.)
Prevatt and Davis, as well as several of the employees inter-
viewed, testified as to what was asked, and what responses
were given, during the April 14 interviews. There is disagree-
ment between Prevatt and Davis on the one hand, and the em-
ployees on the other, as to what was asked, said, or discussed
during these interviews. Unlike Prevatt, Davis was not ques-
tioned extensively, and provided only limited testimony, about
the individual interviews.
According to handwritten notes taken by Davis of the April
14 interviews, employee Jenkins was the first to be interviewed,
followed by employees Gevedon, Hibbs, Schwark, Romain,
Lashbrook, Bibbee, Abrakian, and Foran in that order. As Jen-
kins, Gevedon, and Schwark did not testify, the only evidence
of what they may have said during their interviews came from
testimony provided by Prevatt and/or Davis, and from Respon-

19 Notes of those interviews, purportedly taken by Prevatt and Davis,
were received into evidence as R. Exhs. 7 and 32, respectively. For the
reasons more fully discussed infra, there are too many discrepancies
and inconsistencies regarding the preparation and contents of R. Exh. 7
to render it reliable and trustworthy. Accordingly, for the reasons dis-
cussed below, I give no weight to, and do not rely on, R. Exh. 7 in
making my determinations here.
20 In her prehearing affidavit, Prevatt denied asking employees dur-
ing their interviews if there was anything she could do to improve their
working conditions. Prevatt denied that there was an inconsistency
between this latter denial in her affidavit, and the statement in R. Exh. 7
that she asked employees if anything could be done to improve their
workplace or their enjoyment on the job. (Tr. 1367–1368.) The dis-
tinction Prevatt attempted to draw is without substance. I find she did
indeed ask employees during their interviews what the Respondent
could do to improve their working conditions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
dent’s Exhibit 32, Davis’ handwritten notes. The Respondent
also relied on Respondent’s Exhibit 7 to bolster Prevatt’s lim-
ited recollection of those interviews. The other named employ-
ees did testify.
a. Jenkins
Jenkins, as stated, did not testify. Davis’ recollection of that
interview is that Prevatt was the one who questioned Jenkins,
and that Prevatt began the interview by asking Jenkins if there
was anything going on at the Home that she should be
aware of. According to Davis, Jenkins was upset and be-
lieved she was being treated in a discriminatory manner
because other employees were receiving preferential
treatment from Haack, e.g., by doing favors for them and
letting them get away with things. Prevatt asked Jenkins
about any gossip going on in the home. Jenkins purport-
edly told Prevatt that employees were getting paid for not
being at work. Prevatt, Davis contends, also asked Jenkins
if employees were getting paid for overtime. Davis could
not recall much more of the interview. (Tr. 1526, 1527.)
Prevatt’s testimony as to how Jenkins’ interview began was
vague, confusing, and not wholly consistent with Davis’ recol-
lection. According to Prevatt, the interview began with Jenkins
complaining about alleged discriminatory practices at the
workplace. Prevatt was not sure how the subject first came up,
whether Davis questioned her about it or whether Jenkins first
brought up, but contends that Jenkins simply blurted out that
she had been told by Romain and Gevedon about a remark
Haack had made about not liking “to hire black girls because
they were lazy.” Prevatt claims that Jenkins directed her re-
marks to Davis, and that she did not know if Jenkins’ com-
ments were part of an ongoing discussion the two might previ-
ously have been having on the subject. (Tr. 1204.)
Because of the seriousness of the subject matter, Prevatt de-
cided to add a question on discrimination at the workplace to
the list of questions she intended to ask all other employees
during their interviews. Prevatt claims she did question Jenkins
about the medication procedures at Morowske Home, about the
payroll process, and on whether she was being paid overtime.
Jenkins, she contends, expressed concern about medication
procedures not being followed, and about Haack bringing up
the Union, and also described an instance in which her hours
were recorded in such a manner on the payroll timesheet as to
deny her overtime for 2 hours of overtime worked. According
to Prevatt, during her interview, Jenkins “volunteered” seeing
the notice posted by Haack stating that employees could not be
fired for joining the Union. Prevatt did not recall asking Jen-
kins how she knew the notice had been posted by Haack, but
claims that Jenkins was upset about the posting. Prevatt claims
she also asked Jenkins about the van being driven for personal
use, and that Jenkins purportedly told her about a voice mail
Lashbrook had left for her saying that Haack had permitted
Lashbrook to use the van to go to a meeting and asking Jenkins
if she wanted to ride together to the meeting. (Tr. 1218, 1223,
1321.) According to Prevatt, Jenkins pulled out her cell phone
during the interview and played back an inaudible recording of
a voice message from Lashbrook to her confirming the above
information about using the van to go to the meeting. Prevatt
claims she disregarded and gave no weight to the recording
because it was not very audible.
In her description of Jenkins’ interview, Davis made no men-
tion of this exchange. Although Davis recalled Jenkins talking
about discrimination, Davis’ recollection, as noted, was that
Jenkins complained about Haack giving preferential treatment
to some employees by doing favors for them and letting them
get away with things. Davis made no mention of Jenkins blurt-
ing out anything at the start of her interview about hearing from
others how Haack complained about not wanting to hire black
women because they were lazy. Although Respondent’s Ex-
hibit 7 makes reference to the comment attributed to Jenkins by
Prevatt in her testimony, Respondent’s Exhibit 32, Davis’
handwritten notes of the interviews which I find more reliable
than Respondent’s Exhibit 7, makes no mention of any such
remark being made by Jenkins during her interview. Had Jen-
kins made the rather crass remark about black women attributed
to her by Prevatt, I seriously doubt Davis would have forgotten
it. Further, Prevatt implicitly suggests in her description of
Jenkins’ interview that the latter simply volunteered the infor-
mation right off the bat, to wit, even before being asked any
questions. Davis, on the other hand, testified that it was Prevatt
who began the interview by asking Jenkins if there was any-
thing going on at the home that she should be aware of. Nor
was any mention made by Davis in her testimony or in Respon-
dent’s Exhibit 32 of Jenkins having played a voice message
from her cell phone during the interview, as claimed by Prevatt.
b. Schwark
Schwark, as noted, was not called to testify, despite a repre-
sentation by Respondent’s counsel at the start of the hearing
that he intended to do so. (Tr. 46.) According to Prevatt’s
description of the interview, Schwark volunteered information
about a staff meeting during which Haack asked for an update
regarding the Union, and about seeing a note posted by Haack
advising employees they could not be terminated for joining a
union. Schwark, Prevatt contends, was also asked about, and
volunteered, information regarding the van’s use for personal
reasons on April 4. Schwark purportedly volunteered that the
van had been at the union meeting on April 4, and about
Lashbrook having asked Haack for permission to use the van.
Prevatt contends that she did not question Schwark about the
Union and that it was Schwark who “brought it up immedi-
ately” while responding to Prevatt’s inquiry into whether the
van had been used for personal reasons. (Tr. 1281.) As to
Schwark’s April 11 letter, Prevatt does not recall it being pro-
duced during Schwark’s interview. She testified, however, that
she was aware of its existence before the April 14 interviews,
and had surmised from its assertion therein that Lashbrook and
Foran had attended the April 4 union meeting. (Tr. 1353.)
Davis provided little testimony regarding Schwark’s inter-
view. Relying on statements contained in a prehearing affidavit
she gave the Board, Davis recalled Schwark and Jenkins for
that matter, stating during their interviews that they did not
want to participate in the Union, and Prevatt replying that they
were not there to talk about the Union. While Davis could not
recall what prompted Schwark and Jenkins to make their state-
ments, her testimony does reveal that Schwark and Jenkins
INTER-DISCIPLINARY ADVANTAGE 493
revealed to Prevatt and Davis during their interviews that they
did not support the Union.
c. Hibbs
Hibbs testified her interview began around 2 p.m. and lasted
some 30 minutes. She recalls Prevatt doing the questioning and
Davis taking notes. During the interview, Prevatt, she con-
tends, asked if Hibbs was aware of any racial discrimination
going on at the facility, if she knew of any employee who left
work early while still on the clock, if she knew of a van being
used for a meeting, and if she knew how her supervisors felt
about the Union. Hibbs answered no to all of these questions.
Prevatt further asked if she knew of the note that had been
posted on the bulletin board about the Union. Hibbs denied to
Prevatt knowing about it, but admitted at the hearing that she
lied to Prevatt about seeing the posted note because she was
frightened at the prospect of being fired for being involved in
the Union. (Tr. 533.) Prevatt was not questioned on, or asked
to recount, her interview of Hibbs. Accordingly, Hibbs’ limited
version of her April 14 interview is accepted as true.
d. Romain
Romain, the fourth one interviewed, recalled being asked by
Prevatt questions about the medications being set up, and about
the employee’s sign in and out procedure. He denied being
asked if the Morowske van was being driven for personal use,21
or any question pertaining to Dugal’s alleged April 4 medical
appointment. He also denied bringing to his interview, or being
asked to provide Prevatt or Davis with, company documents
relating to the April 4 doctor’s visit to the interviews. (Tr.
1411.)
Prevatt recalls asking Romain if he worked on April 4, who
else worked that day, and if he happened to see Lashbrook’s
and Foran’s vehicles parked at the Morowske Home. Romain,
she contends, answered that he could not recall. She also asked
if he knew who completed the health care chronologicals, and
Romain purportedly replied that Lashbrook did so as she was
the medical coordinator at the time. Prevatt recalls also asking
him who had mentioned the Union during a recent staff meet-
ing, and Romain replied he did not attend the meeting. She
further asked if Romain knew what Haack’s position was re-
garding the Union, and Romain allegedly replied that he
avoided discussing the Union because he didn’t want to hear
about it. Prevatt admitted questioning Romain about a union
meeting during his interview, but denied asking any union-
related questions of the other employees interviewed. (Tr.
1318–1319.) This latter claim by Prevatt, however, was, as
noted, disputed by Hibbs, and, as shown below, by the other the
employees who were interviewed and who testified in this pro-
ceeding.
Asked if Romain seemed to know about a doctor’s appoint-
ment occurring on April 4, Prevatt stated that he did not seem
surprised by the question. Romain, as noted, denied being

21 Although there is some reference in R. Exh. 7 to suggest that Ro-
main may have been asked this particular question, R. Exh. 7, as previ-
ously discussed, is not a reliable document, rendering the reference
therein to what Romain may have said during his interview highly
questionable.
asked any question about that alleged appointment. Although
Romain further denied that he was asked to provide documents
relating to that appointment, Prevatt’s testimony on this matter
was vague and confusing. At one point in her testimony, for
example, she commented that Romain was “unable to produce
the other things that I asked for, the physician’s order and a
number of things,” and explained to her that “he didn’t know
where they were and that he hadn’t seen them since.” (Tr.
1213.) Her assertion in this regard strongly suggests that she
had asked Romain during the interview to provide her with
certain documents, and that he was unable to do so, a claim
denied by Romain. On cross-examination, Prevatt was ques-
tioned about a statement in Respondent’s Exhibit 7 stating that
Romain “provided documentation” during his interview, and
claimed to recall that Romain brought with him the health care
chronological and either the van log or the medical consultation
form, a claim that Romain, as noted, denied. (Tr. 1209, 1411.)
On further cross-examination by the General Counsel as to
what documents Romain may have provided, Prevatt seemed
confused and admitted that what had actually occurred was that
Davis had asked Romain about certain documents, implicitly
conceding that Romain had not in fact provided any documents
during his interview. Prevatt claims she also asked Romain if
he had seen the Morowske van in the parking lot of the meeting
on April 4. (Tr. 1215.) She also asked Romain about the keys
Foran had for parts of the facility, explaining that she did so
because she knew that Romain had concerns about it. (Tr.
1317.)
I found Romain’s testimony regarding his interview to be
more reliable than that provided by Prevatt who, as previously
indicated, had difficulty testifying without the aid of Respon-
dent’s Exhibit 7. Prevatt’s demeanor was not particularly con-
vincing, and her poor recall and, at times, inconsistent state-
ments, renders her testimony unreliable. For example, Prevatt,
as noted, backed off her initial claim that Romain brought cer-
tain documents with him to the interview, even though Respon-
dent’s Exhibit 7, her alleged notes of the interviews, contains a
notation that Romain, during his interview, “provided docu-
mentation that Kelly [Lashbrook] and Linda [Foran] provided
from 4/4 appointment.” I accept Romain’s assertion, eventu-
ally conceded to by Prevatt on cross-examination, that he was
not asked, nor did he provide, any company documents during
his interview. I note in this regard that, unlike Respondent’s
Exhibit 7, Davis’ notes, Respondent’s Exhibit 32, contains no
such claim, further rendering Respondent’s Exhibit 7 as unreli-
able and untrustworthy. I also reject as not credible and as
inconsistent with the testimony of other employees who were
interviewed and who testified at the hearing, Prevatt’s claim
that employees, unlike Romain, were not asked any union-
related questions during their interviews.
e. Lashbrook
Lashbrook, the next one interviewed, gave a detailed account
of her interview. She recalls being summoned for the interview
at around 2:45 p.m. that day, and observing Davis taking notes,
while Prevatt asked the questions. According to Lashbrook,
Prevatt began the interview by asking her if she was aware that
the Morowske van was seen at a union meeting on April 4, at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD494
11 a.m. Lashbrook answered no, to which Prevatt replied that
the van had indeed been spotted at the meeting. Lashbrook told
Prevatt that the van had not been at any meeting she had at-
tended, and denied Prevatt’s query of whether she had ever
used the van for nonwork-related matters. Prevatt next ques-
tioned Lashbrook on her activities for April 4, and Lashbrook
proceeded to describe her work activities that day. She de-
scribed for Prevatt her attempt to obtain a medical appointment
for Dugal that day, and her unsuccessful efforts to get Dugal’s
April 7 physical exam moved up to April 4. She told Prevatt
that she and Foran then took four of the Morowske residents to
the club house, that she had left work early that day, and that,
after quitting work, she went to a union meeting. She denied
ever telling Prevatt during the interview that she had taken
Dugal to see the doctor on April 4, for an earache problem, or
saying that she and Foran had stayed with Dugal in the exami-
nation the entire time during that alleged April 4 doctor’s visit.
Prevatt also asked Lashbrook if Dugal had been provided lunch
on April 4, and Lashbrook answered that Dugal had brought a
bag lunch that had been prepacked for him the night before.
Lashbrook denied being shown by Prevatt or Davis during her
interview any of the documents (e.g., the health care chrono-
logical, the van log, the medical consultation form, or medica-
tion forms) that she and/or Foran were alleged to have falsified
or altered, or, for that matter, being told about them, or given a
description of or an opportunity to explain any alleged discrep-
ancies they may have contained. (Tr. 221–222.)
Prevatt, she contends, also questioned her about Dugal’s
April 7 appointment, and whether he received any medications
during that visit. Lashbrook told Prevatt that she had not
worked April 7, that either Foran or Haack, both of whom
worked on April 7, must have taken Dugal to his appointment
that day, but that, as the medical coordinator, she knew that
Dugal was given medication for constipation during that visit.
Lashbrook recalls Prevatt asking her about the practice at the
Morowske Home for distributing medicines, and she describing
for Prevatt the training and certification process for employees
to become medical coordinators. Prevatt asked Lashbrook if
she had ever been asked by someone not authorized to pass out
medications to do so on their behalf, and Lashbrook admitted
having done so in a prior occasion when the Home was under-
staffed. She also recalled being questioned about the health
care chronologicals and how they were to be filled out, and
about the payroll sheets. As to the latter, Lashbrook recalls
Prevatt asking if Lashbrook knew if anyone had signed out for
her. Lashbrook answered that she was not aware of it. She also
recalls denying to Prevatt having falsified the timesheet. (Tr.
147.) Prevatt also asked Lashbrook if she was aware of any
discrimination taking place at the Morowske Home and
whether she viewed Romain as a good assistant supervisor.
Lashbrook denied knowing of any discrimination at the Home,
and told Prevatt that she believed Romain did his job well.
Lashbrook also recalls Prevatt asking if she knew how her
supervisor felt about the Union. Lashbrook denied having any
such knowledge. Prevatt, she contends, then asked if she knew
that conducting union business or discussing union business on
company time could lead to termination. Lashbrook replied
that she was not fully aware of it, and Prevatt responded, “Now
you are.” Prevatt then asked if there was anything Davis could
do to make Lashbrook’s job better, and Lashbrook answered,
“No.” Finally, Lashbrook recalls Prevatt asking her as the in-
terview was ending where Lashbrook, who apparently was
sporting a tan at the time, had gotten the tan. At the conclusion
of the interview, Lashbrook was instructed to leave the facility
and speak to no one. (Tr. 123–132.)
Prevatt testified, contrary to Lashbrook, that she made spe-
cific reference to, and questioned Lashbrook about, Dugal’s
April 4 doctor’s visit during the interview, and that Lashbrook
was shown the April 4 health care chronological, identified the
signature therein as hers, and admitted taking Dugal to the doc-
tor on April 4. Prevatt denied that Lashbrook explained to her
how she had tried, without success, to change Dugal’s April 7
appointment to April 4, and characterized Lashbrook’s claim in
this regard as “ridiculous and dishonest” because, she contends,
Lashbrook had explained in detail how she had taken Dugal to
the doctor on April 4. (Tr. 1279.) Prevatt could not recall
whether she or Davis gave Lashbrook the health care chrono-
logical to review during her interview. Prevatt also did not
recall showing Lashbrook a copy of the van log during the in-
terview, nor questioning her about it. Prevatt further denied
talking about the Union with Lashbrook, or the latter raising the
subject, during her interview. Finally, Prevatt recalls asking
Lashbrook if she had used the van for personal use on April 4,
and Lashbrook denying having done so. She claims that her
suspicion that Lashbrook lied about an April 4 doctor’s visit
regarding Dugal was confirmed after she interviewed Foran.
Davis provided some testimony regarding Lashbrook’s in-
terview. She denied that she or Prevatt asked Lashbrook, and
Foran for that matter, during their interviews if they knew who
had brought the Union in, or who had brought the van to the
union meeting, or questioned them about their affiliation with,
or views on, the Union. On the question of whether Lashbrook
and/or Foran were specifically asked whether they took Dugal
to the doctor on April 4, Davis testified, in a somewhat vague
and not quite responsive manner, “We [her and Prevatt] were
talking about the doctor’s appointment on April 4.” Thus,
while her testimony in this regard suggests that she and Prevatt
were referring to Lashbrook’s activities on April 4, it does not
necessarily follow from her above testimony that Lashbrook
and Foran was expressly asked whether they took Dugal to the
doctor on April 4. When asked what types of questions were
asked of Lashbrook, she answered that “Kasie had asked
about what time the appointment was, what had happened,
the routine of that day. What the doctor had said about
anyone else that went to the appointment. What happened
during the appointment, that type of thing.” (Tr. 1258–
1259.)
I credit Lashbrook over Prevatt and Davis as to what was
asked and discussed during Lashbrook’s interview. From a
demeanor standpoint, inconsistencies in her testimony, and her
poor independent recollection of events, Prevatt’s testimony
regarding this and the other interviews is unreliable and un-
trustworthy. Thus, as credibly testified by Lashbrook, I find
that Lashbrook never stated during her interview that she and
Foran took Dugal to a doctor’s appointment on April 4. I find
instead that Lashbrook told Prevatt and Davis that she had tried,
INTER-DISCIPLINARY ADVANTAGE 495
but was unable, to get Dugal’s physical checkup appointment
scheduled for April 7, moved up to April 4, and that Dugal was
in fact seen by a doctor on April 7, not April 4. I note in this
regard that Davis’ notes make no reference to any discussion
having occurred during Lashbrook’s interview regarding this
alleged April 4 doctor’s visit.
f. Bibbee
Bibbee followed Lashbrook in the interview process. She
recalled seeing both Prevatt and Davis taking notes during her
interview, and Prevatt asking most of the questions. Among
the questions asked of her were whether she had seen medica-
tions being prepared for others to administer, whether the pay-
roll sheet was always readily available for her to sign, whether
she was aware of any discrimination taking place, and whether
she had seen the Morowske van at a union meeting. (Tr. 424–
425.) As to the medications, Bibbee told Prevatt that the medi-
cations were not being improperly distributed, and that either
the home manager or someone else authorized to do so took
care of distributing medication. Regarding the payroll sheet,
Bibbee answered that the sheet was always available except
when it was being processed to be sent to payroll. On the dis-
crimination issue, Bibbee told Prevatt that everyone was treated
equally at the facility, and denied seeing the van at a union
meeting. Bibbee was also asked if she knew how the
Morowske Home manager or assistant manager felt about the
Union, to which she answered no. She contends that Prevatt at
one point asked whether she had attended a staff meeting at
Morowske Home during which the Union was discussed. Bib-
bee answered that she had, at which point Prevatt asked who
had brought up the “union talk.” Bibbee answered that she did
not know. Prevatt also asked if Bibbee had seen the posting on
the bulletin board about the Union, and Bibbee answered she
had not. The entire interview, according to Bibbee, lasted
about 15 minutes, after which she and employee Gevedon left
the facility together. (Tr. 423–429.)
Prevatt was not questioned about her interview of Bibbee,
and consequently, did not deny Bibbee’s assertion that Prevatt
asked her about a staff meeting at Morowske Home where the
Union was discussed, and then asked who had brought up the
“union talk.” Accordingly, I credit Bibbee’s account of what
transpired during her interview, including her claim of being
asked by Prevatt who, during the staff meeting, had raised the
subject of the Union.
g. Abrakian
Abrakian was called in between 3:15–3:30 p.m. to be inter-
viewed, and testified that Prevatt asked the questions while
Davis took notes. Prevatt, she contends, asked if she was aware
that the Company’s van had been seen at an 11 a.m. meeting on
April 4, and that she answered she was not. Prevatt also asked
Abrakian if she knew how the supervisors felt about the Union,
and if she was aware who initiated the union talk at the home.
Abrakian answered no to both questions. Abrakian clearly was
not being truthful in claiming not to know who was responsible
for the Union’s arrival at the home, for, as previously dis-
cussed, it was Abrakian who first contacted the Union and who
arranged for the April 4 union meeting. Prevatt, she contends,
then asked her to describe the procedure for distributing medi-
cations, and also asked Abrakian if she had “punched” out
medications for others to distribute, or vice versa. Abrakian
denied doing so. Abrakian also denied Prevatt’s query on
whether anyone had ever asked her to sign them in or out for
the day. Abrakian contends that Prevatt also asked if she was
aware of the Company’s van being used for nonwork-related
reasons. Abrakian denied any such knowledge. Other ques-
tions asked of her related to the payroll sheet, e.g., if it was
always available for her to sign in and out, and whether she was
being paid for overtime.
Prevatt also questioned Abrakian on how she received the
copy of the budget and what she had done with it, and whether
Abrakian knew that by taking it, she was violating the confi-
dentiality agreement between the Company and herself.
Abrakian answered that she was unaware of any confidentiality
agreement, that the budget had been left by the fax machine,
and that after taking home a copy of the budget, she threw it
away in her garbage can. Abrakian recalls telling Prevatt that
the budget was not stamped confidential and that, to her knowl-
edge, Morowske Home was a nonprofit corporation, and that
the financial statements of nonprofit companies were a matter
of public record. Prevatt, she contends, then cautioned that if
she removed any other paperwork from the Morowske Home,
she would be fired. (Tr. 482.) According to Abrakian, Prevatt
then told her that if there was anything that she, Prevatt, could
do to make the workplace better, to let Davis know. Abrakian
contends she took advantage of Prevatt’s offer by asking why
employee paychecks no longer came with a pay stub attached
detailing their pay rates. Prevatt commented that paychecks
should have stubs attached, and asked Davis to resolve this
matter with the front office immediately. The interview, ac-
cording to Abrakian, ended around 3:50 p.m. (Tr. 480–483.)
Abrakian testified that following the April 14 interviews, she
refrained from discussing the Union at work with anyone else
because of Prevatt’s admonition just prior to the interviews that
they would be terminated if they did so. (Tr. 502.)
Prevatt testified that prior to interviewing Abrakian, she had
already been told by Pettyplace and Davis that Abrakian had
removed a financial document from the facility and shared it
with others. She claims that when she interviewed Abrakian,
her first question to Abrakian was what she did with the fi-
nancial document that she took out of the house without
permission and shared with others.22 She contends that
when Abrakian answered that she had thrown it away,

22 Given her overall inability to testify about the events of April 14,
without consulting R. Exh. 7, her alleged notes, I find it hard to believe
that Prevatt could recall word-for-word the first question she asked
Abrakian during the latter’s interview. Undermining Prevatt’s claim,
that her first question to Abrakian included a query on whether the
latter had shared the budget with others is the fact that R. Exh. 7, which
Prevatt, as noted, testified are her notes of the interviews, makes no
mention of Prevatt asking if Abrakian had shared the budget with any-
one. Davis’ own notes of those interviews, R. Exh. 32, likewise con-
tains no mention of any such question being asked of Abrakian. I
therefore reject as not credible Prevatt’s claim that she asked Abrakian
during the latter’s interview if she had shared the budget with others,
and that Abrakian admitted doing so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD496
Prevatt again asked, “You took a financial document that
you know was confidential and belonged to the company
out of the house without permission, shared it with others,
then threw it away?” Abrakian reiterated that she had.
Prevatt denies being told by Abrakian that the financial
document, e.g., the budget, was not stamped “confiden-
tial,” and, indeed, claims that Abrakian acknowledged that
the budget was a confidential document. (Tr. 1228.) Pre-
vatt contends she did not ask Abrakian why she had taken
the budget. She denies asking Abrakian if she was affili-
ated with a union or what her views were regarding un-
ions. She also denied asking Abrakian if she had seen the
van at a union meeting, explaining that she viewed ques-
tions about employee’s involvement with a union to be
inappropriate. (Tr. 1232–1233.) Prevatt, however, never
denied asking Abrakian if she aware who initiated the union
talk at the Morowske Home. Finally, according to Davis,
Abrakian, during her interview, denied having a copy of the
budget but subsequently admitted on questioning by Prevatt
that she took the budget home and discarded it.
I found Abrakian’s version of her interview more credible
than that provided by Prevatt or Davis. Several factors lead me
to doubt Prevatt’s account. First, I find it hard to believe that
Prevatt, who had difficulty testifying about the April 14 inter-
views without resorting to Respondent’s Exhibit 7, her alleged
interview notes, was nevertheless able to recall word-for-word
the first question she put to Abrakian during the latter’s inter-
view. Her representation in this regard struck me as pure fabri-
cation, more likely than not intended to convince others of her
interrogation skills. Nor do I believe that Prevatt ever asked
Abrakian if she shared the Company’s budget with others at the
April 4 union meeting, or elsewhere for that matter, for no men-
tion of any such inquiry being made of Abrakian is found in
Respondent’s Exhibit 7, or in Respondent’s Exhibit 32, Davis’
interview notes. Abrakian, as noted, testified that while she had
the budget with her when she went to the April 4 union meet-
ing, she did not share it with anyone. Nothing in Respondent’s
Exhibits 7 or 32 contradicts Abrakian’s claim in this regard.
Accordingly, I find, consistent with Abrakian’s testimony, that
she never told Prevatt or Davis during her interview that she
had shown the budget to others at the April 4 meeting. I further
believe Abrakian’s assertion that Prevatt cautioned her not to
remove any other documents from the home or she would be
fired. I also credit, over Prevatt’s denial, Abrakian’s claim that
Prevatt asked her if she knew who had initiated the union talk
at the Morowske Home, for Bibbee, as found above, was asked
basically the same question by Prevatt during the former’s in-
terview. As to Davis’ claim that Abrakian initially denied tak-
ing the budget, her own notes make no mention of any such
denial by Abrakian, and the latter’s own testimony, which I
credit, reflects that she admitted outright during her interview
to copying the budget and leaving the home with the copy.
h. Foran
The last one to be interviewed, Foran testified to being called
in around 3:40 p.m., and recalled Prevatt doing much of the
questioning and Davis taking notes. The first question posed to
her centered on her activities on April 4. Foran went on to
describe to Prevatt that on arriving to work, she read her
books, punched the meds, did breakfast, got the guys up,
and then took the guys to the club house, and came back
and left at 10:30 a.m. Prevatt then asked if she knew Dr.
Lovy, to which Foran replied that she did. Prevatt fol-
lowed up by asking if she had taken Dugal to see the doc-
tor, and Foran stated she had. Foran testified that Prevatt
never referred to this doctor’s visit as having occurred on
April 4, and that she believed Prevatt was asking about the
doctor’s visit which she and Haack took Dugal to on April
7. (Tr. 309.)
In response to questions by Prevatt regarding the doc-
tor’s visit, Foran, under the impression that Prevatt was
referring to the April 7 doctor’s appointment, stated that
she went into the examining room with Dugal, that the
latter was given a prescription for Senokot medication for
his constipation, and that they left the doctor’s office be-
tween 12–12:30 p.m. Prevatt also asked about the health
care chronologicals and whether the payroll sheet was
always available. Foran answered that, as the medical
coordinator, Lashbrook filled out the health care chro-
nologicals, and that the payroll sheet had always been
available. Foran denied Prevatt’s query on whether any-
one had ever signed her out on the payroll sheet. She fur-
ther claims that she was unaware during the interview that
someone had indeed signed her out when she left early on
April 4. She testified that at no time during the interview
was she shown copies of the payroll sheets or the health
care chronological covering the April 4 date or any other
period. Nor did Prevatt or Davis describe these or any
other documents to her or asked her to explain the contents
of any documents.
Foran also recalls Prevatt asking if she knew that using the
Company van for personal reasons could result in termination.
Foran answered that she did not. Prevatt then asked if Foran
was aware that the van had been spotted at a union meeting,
and Foran again answered she did not. Prevatt went on to ask
Foran if she knew who had “initiated” the Union at the home,
and Foran said she did not. Foran admits she was not being
candid with Prevatt in this regard, explaining that she was
“scared” of revealing what she knew about the Union. Prevatt,
according to Foran, also asked whether medications were being
improperly distributed, whether she had seen the budget that
Abrakian had taken, whether she knew of any discrimination
taking place at the facility, and whether she had worked over-
time without getting paid. Foran answered each question in the
negative.
Finally, Foran was asked if she had any keys to the office
and to the supply closet. She admitted having a set of keys,
explaining that Haack had authorized her to have the keys be-
cause she was, at the time, the medical coordinator and, as
such, needed access to items such as diabetes medication for
home clients. Foran also admitted, in response to Prevatt’s
question, knowing the combination to the Company’s safe,
explaining to Prevatt that this was common knowledge. Prevatt
then told Foran she would have to relinquish the Home keys to
her, and Foran agreed to do so. Finally, Foran recalls Prevatt
asking if there was anything that could be done to make the
INTER-DISCIPLINARY ADVANTAGE 497
Morowske Home a better workplace. In response, Foran sug-
gested that classes be held on how to get along. (Tr. 313.) At
the conclusion of the interview, Foran went back outside to
where she had left her purse, retrieved the keys, and handed
them to Prevatt.
Prevatt testified, contrary to Foran, that the first question she
asked the latter was whether she had gone to a doctor’s ap-
pointment with Dugal on April 4, and that Foran answered she
had. Prevatt contends that Foran could not have believed that
she was being asked questions about Dugal’s April 7 doctor’s
visit, and not the alleged April 4 visit, because “there was no
discussion” at all about April 7, and there was repeated refer-
ence to April 4 during Foran’s interview. Foran was then asked
to describe her activities that day. She contends Foran re-
counted how she and Lashbrook took Dugal to the doctor at
around 10 a.m. for an earache. Prevatt recalled Foran becom-
ing irritated at the questions posed to her about the doctor’s
visit. According to Prevatt, Foran told her she and Lashbrook
took turns waiting in the examining room with Dugal, that the
doctor prescribed Senokot medication for Dugal, and that they
left the doctor’s office around noontime. When she asked
Foran what had happened with the earache complaint, Foran
said that nothing could be done for it. Prevatt was unable to
recall what else she may have asked Foran about the visit with-
out referring to Respondent’s Exhibit 7. On reviewing her
notes, she recalled asking Foran if Dugal had eaten lunch, and
Foran responding that he must have. Foran, she contends, was
unable to give her a definitive answer on whether Dugal had
lunch that day. Prevatt contends she also asked Foran if she
knew whether the van was being used for personal use, and
Foran replied she did not know. Prevatt also recalled asking
Foran, as she did with Lashbrook, if she had used the van for
personal reasons on April 4, and Foran answering she had not.
(Tr. 1319.)
Prevatt contends she also questioned Foran about her rela-
tionship with Haack, and stated her belief that Haack was
Foran’s niece. Foran denied Haack was her niece. Prevatt also
asked if Haack had given her the keys and combination to the
safe, and Foran denied having them. According to Prevatt,
during his interview, Romain expressed concern to her that
Foran had the keys and the combination to the safe at
Morowske Home, that he had been instructed by someone to
retrieve the keys from Foran, and that, when he attempted to do
so, Foran denied having them. (Tr. 1317–1318.) Prevatt con-
tends that when she again asked Foran if she had the keys,
Foran changed her story and admitting having them when Pre-
vatt questioned why she would receive reports about Foran
having access to areas requiring the keys. When Prevatt asked
if she had the keys with her, Foran got up, left the room to re-
trieve the keys, and on returning handed them to Davis. Prevatt
concluded from her interview of Foran that the latter had lied
and been dishonest about the events of April 4, about having
keys to the Home, about the personal use of the van, and gener-
ally about everything else. (Tr. 1234–1246.)23

23 R. Exh. 7, Prevatt’s alleged interview notes, show Romain stating
during his interview that Foran “has keys to everything . . . and has
gotten into [the] safe.” Prevatt testified that during his interview, Ro-
Davis also provided some testimony regarding Foran’s inter-
view. Davis recalled Prevatt asking Foran about the Morowske
Home keys, and testified that Foran at first repeatedly denied
having them but subsequently admitted having them. Davis
also testified, in response to a leading question from Respon-
dent’s counsel, that Foran provided information regarding a
doctor’s visit on April 4.24 Further, contrary to Prevatt’s asser-
tion, Davis testified that neither Foran nor Lashbrook were
shown any documents during their interviews. (Tr. 1542.)
Davis denied that Foran or Lashbrook were ever asked by her-
self or Prevatt who had brought the Union to the workplace,
who had taken the van to the union meeting, or whether they
had engaged in union activity on company time or their views
on the Union. She also claims that neither she nor Prevatt
asked any of the employees interviewed questions about their
involvement with the Union. (Tr. 1545.)
E. General Credibility Findings
As shown and found above regarding the individual inter-
views, Prevatt was not a credible witness from a demeanor
standpoint and because of the numerous inconsistencies and
discrepancies in her testimony. Prevatt’s inability to recall
much without resorting to Respondent’s Exhibit 7, her alleged
interview notes, also casts doubt on the reliability of her testi-
mony. Prevatt, for example, had no recollection of meeting or
interviewing employee Gevedon on April 14, despite Respon-
dent’s own evidence, Respondent’s Exhibit 32, showing that
Gevedon was indeed interviewed by Prevatt and Davis that day.
Prevatt also seemed confused at times, as when she got Jenkins
mixed up with Schwark in her testimony, and when she stated
that Foran followed Lashbrook in the interview process. The
record makes clear that Bibbee and Abrakian were interviewed
after Lashbrook, followed by Foran. Further, Prevatt’s testi-
mony regarding her preparation of Respondent’s Exhibit 7 also
undermines her credibility as well as the reliability and trust-
worthiness of that document.
Regarding Respondent’s Exhibit 7, Prevatt testified that fol-
lowing the April 14 interviews, she met briefly with Davis and

main expressed concern that Foran had the Home keys and combination
to the safe. She further testified to Romain mentioning during his in-
terview that he had been directed sometime in March by someone, she
was unable to recall whom, to retrieve the keys from Foran but that,
when he sought to do so, Foran denied having a set of the Morowske
Home keys. In his testimony, however, Romain made no mention of
having engaged in any such discussion about Foran and the keys with
Prevatt during his interview. Given the unreliability of R. Exh. 7 and
Romain’s failure to corroborate Prevatt’s assertion as to what he may
have said during his interview, Prevatt’s testimony in this regard is
rejected as not credible. Indeed, even R. Exh. 7, Prevatt’s alleged
notes, do not corroborate Prevatt’s testimonial claim that Romain ex-
pressed concern about Foran having the Home keys, that he had been
instructed to retrieve the keys from Foran, and that the latter denied
having them.
24 Davis had initially stated only that they began discussing a doc-
tor’s appointment following the discussion about the keys. After ask-
ing Foran some more questions about the keys, Respondent’s counsel
brought Davis back to the subject of the doctor’s visit by telling Davis
to return to her discussion about the doctor’s appointment on April 4.
Davis had not mentioned April 4, as the date of the doctor’s appoint-
ment until it was suggested by Respondent’s counsel. (Tr. 1535–1536.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD498
then went home. She contends that later that evening and dur-
ing the morning of the following day, April 15, she transcribed
her handwritten notes of the interviews into the typewritten
form which is Respondent’s Exhibit 7 on her home computer,
and then e-mailed Respondent’s Exhibit 7 to Pettyplace on the
afternoon of April 15, as an attachment to an e-mail coverpage,
and then discarded her handwritten notes. Although she
claimed at the hearing that Respondent’s Exhibit 7 is an “accu-
rate reproduction” of her discarded handwritten notes, Prevatt
admitted to having supplemented her handwritten notes with
some of her own recollections of what transpired during the
interviews, and that Respondent’s Exhibit 7 was not a word-
for-word transfer of her handwritten notes, pointing out in this
regard that she included in Respondent’s Exhibit 7 what she
deemed to be “appropriate.” (Tr. 1295–1296.) Regarding the
questions she purportedly asked all employees during their
interviews and which are set forth on the first page of Respon-
dent’s Exhibit 7, Prevatt admits that Respondent’s Exhibit 7
contains only a synopsis, and not an actual word-for-word tran-
scription, of the questions. (Tr. 1292.) At no point in her tes-
timony did Prevatt explain or identify the portions of Respon-
dent’s Exhibit 7 that were supplemented by her and which were
not in her handwritten notes, or how she determined what in the
handwritten notes was “appropriate” or not “ appropriate” for
inclusion into Respondent’s Exhibit 7. Nor did she offer to
explain the obvious discrepancy between her claim that Re-
spondent’s Exhibit 7 is an “accurate reproduction” of her hand-
written notes, and her admission that she supplemented the
handwritten notes during transcription with her own post-
interviews recollection of events, and that Respondent’s Exhibit
7 does not reflect “word-for-word” of what was contained in
her handwritten notes. In the absence of any such explanations,
and without the handwritten notes, Prevatt’s claim that Respon-
dent’s Exhibit 7 is an “accurate reproduction” of her handwrit-
ten notes cannot be verified or substantiated. If anything, Pre-
vatt’s description of Respondent’s Exhibit 7 as an “accurate
reproduction” of her handwritten notes conflicts with her own
testimony about supplementing her handwritten notes with her
own recollection of events.
Other discrepancies and/or inconsistencies in Respondent’s
Exhibit 7 itself, and in Prevatt’s testimony, further serve to
undermine the reliability and trustworthiness of Respondent’s
Exhibit 7, as well as Prevatt’s credibility. As previously dis-
cussed, Jenkins was the first employee to be interviewed, fol-
lowed by Gevedon. Romain was the fifth person interviewed.
While Davis’ handwritten notes reflected in Respondent Ex-
hibit 32 were apparently taken and follow the order in which
the employees were interviewed, Respondent’s Exhibit 7 does
not. Thus, although Romain was the fifth person interviewed,
the notes of his interview appear first on Respondent’s Exhibit
7, while the notes taken of Jenkins’ interview, who was the first
to be called, appear on the bottom of the first page of Respon-
dent’s Exhibit 7. As Jenkins was the first to be interviewed,
one might reasonably and logically expect that Prevatt’s notes
of that interview would have been recorded first or at the be-
ginning of the handwritten notes, and thereafter transcribed by
Prevatt onto Respondent’s Exhibit 7 in exactly the same man-
ner, especially given Prevatt’s claim that Respondent’s Exhibit
7 is an accurate reproduction of her handwritten notes. Prevatt
could not explain why the notes of Romain’s interview notes,
and not those pertaining to Jenkins, appear at the beginning of,
or first on, Respondent’s Exhibit 7. (Tr. 1202–1203.)
Further undermining the reliability of Respondent’s Exhibit
7 is Prevatt’s inconsistent and vague testimony regarding what
was asked by her of Romain during the interview about the van
being at a union meeting, and what Respondent’s Exhibit 7
contains in this respect. Thus, at one point in her testimony,
Prevatt claimed to have asked Romain during his interview
whether he had seen the Morowske van at a union meeting.
Respondent’s Exhibit 7, however, shows Prevatt asking Ro-
main if he had seen the van at “the” meeting. Prevatt initially
stated that Respondent’s Exhibit 7 was wrong in that the ques-
tion to Romain pertained to “a” meeting, not “the” meeting.
She subsequently changed her testimony, stating that she was
not sure if she had referred to “the” meeting instead of “a”
meeting when posing the question to Romain. Yet, when asked
by the Respondent’s counsel later in her testimony if Respon-
dent’s Exhibit 7 contained any errors that needed to be cor-
rected at the hearing, Prevatt answered “no.” Clearly, this an-
swer was not entirely correct, for given her uncertainty and
confusion as to the question posed to Romain, Prevatt could not
say with certainty whether or not Respondent’s Exhibit 7 cor-
rectly reflected what she asked Romain. Prevatt’s ambiguity
and uncertainty in this regard undermines not only her credibil-
ity as to the April 14 events, but also the reliability and accu-
racy of Respondent’s Exhibit 7.
Also casting doubt on the reliability of Respondent’s Exhibit
7 is Prevatt’s and Pettyplace’s testimony regarding the trans-
mission of Respondent’s Exhibit 7 by the former to the latter on
April 15. Pettyplace testified to receiving Respondent’s Exhibit
7 from Prevatt by e-mail. However, when questioned on voir
dire examination by the General Counsel regarding her receipt
of Respondent’s Exhibit 7, Pettyplace initially testified that
Respondent’s Exhibit 7 did not come attached to an e-mail, as
claimed by Prevatt, but rather came as the e-mail itself, without
identifying who it was from. She testified that on receipt of the
e-mail, she clicked on it and Respondent’s Exhibit 7 immedi-
ately opened up. Pettyplace explained that she knew it came
from Prevatt because the latter had called to advise her that
Respondent’s Exhibit 7 was being sent, suggesting implicitly
by this latter testimony that the e-mail did not identify the
sender. However, shortly thereafter, during questioning by
Respondent’s counsel, Pettyplace changed her testimony,
claiming she had been confused by the General Counsel’s ques-
tions. She went on to explain that Respondent’s Exhibit 7 did
indeed come as an attachment to an e-mail cover page from
Prevatt.
At the hearing, both Pettyplace and Prevatt claimed that they
searched for but were unable to locate the e-mail cover page to
which Respondent’s Exhibit 7 was purportedly attached. Pet-
typlace could not recall downloading or making a hard copy of
the cover page. Prevatt, for her part, theorized that the docu-
ment may have been automatically deleted by AOL, her inter-
net provider, but also conceded she may have deleted the cover
page herself. (Tr. 1296.) The Respondent at the hearing sought
to downplay the importance or significance of the alleged cover
INTER-DISCIPLINARY ADVANTAGE 499
page by noting that, except for identifying Prevatt as the sender,
the cover page was essentially blank and contained no other
information on it that would be of relevance to the proceeding.
But for Prevatt’s overall poor performance as a witness and her
lack of credibility on other matters, I might have accepted Pre-
vatt’s undisputed assertion that the cover page, if indeed one
was sent, was blank and contained nothing of relevance to the
issues raised in this proceeding. Given her unreliability as a
witness, I simply do not believe Prevatt’s claim that the e-mail
cover page was blank. Thus, I find it highly unlikely that Pre-
vatt would have sent Pettyplace a blank page with Respon-
dent’s Exhibit 7 attached to it without including some explana-
tion as to what it was that was being sent.
I also found unconvincing Pettyplace’s and Prevatt’s testi-
mony regarding the latter’s transmission and the former’s re-
ceipt of Respondent’s Exhibit 7. Pettyplace’s explanation for
changing her testimony on how she received Respondent’s
Exhibit 7, to wit, that she was somehow confused by the Gen-
eral Counsel’s question, was not credible, for there was nothing
particularly confusing about the General Counsel’s question.
Pettyplace in this regard never hesitated or displayed any uncer-
tainty or confusion in initially claiming that Respondent’s Ex-
hibit 7 came without a cover page, and instead answered with
unqualified conviction that, despite the absence of a cover page,
she knew it was sent by Prevatt because the latter had called to
say the e-mail was being sent.
As to Prevatt, her own testimony about the extent of her edu-
cation and experience in conducting investigations of the kind
conducted herein, and in the field of labor relations in general,
undermines, in my view, her claim that she destroyed both the
e-mail to which the Respondent’s Exhibit 7 allegedly was at-
tached, as well as the underlying handwritten notes which pur-
portedly formed the basis for Respondent’s Exhibit 7. For ex-
ample, Prevatt at the hearing, described in great detail the ex-
tent of her education and experience, and noted, with some
pride, that during her more than 18 years in the industry, she
has conducted between two to three investigations a year. Pet-
typlace likewise described Prevatt as a highly skilled investiga-
tor. Given the level and extent of her experience, I find it diffi-
cult to believe that Prevatt would not have had sufficient fore-
sight to retain documents which someone with her level of
education and experience could easily have surmised would be
useful and relevant to any future inquiry into these matters. In
sum, I view Prevatt’s representation that she discarded the
documents in question with a high degree of skepticism. In-
deed, I strongly suspect that Prevatt never actually took notes
during the interviews. In this regard, I note that most of the
employees who were questioned about their interviews testified
to seeing Davis take notes, but not Prevatt. Further, Pettyplace
herself testified that the standard practice during the conduct of
any such investigations is that one person will do the question-
ing while the other takes notes. Thus, my suspicion is that
Respondent’s Exhibit 7 represents Prevatt’s post-interviews
recollection of what she believes transpired during the inter-
views, and not a copy of any handwritten notes taken by Prevatt
during those interviews.
As to Davis, her testimony, as described above in individual
circumstances, was generally not very reliable. Davis, who
seemed not to have too much difficulty on direct examination
answering questions put to her by the Respondent’s counsel,
became forgetful on cross-examination, and repeatedly re-
sponded “I don’t know” or “I don’t recall” to questions she
would have been expected to answer in a straightforward man-
ner as the person who purportedly initiated and looked into the
employee complaints which led to the April 25, discharges of
the alleged discriminatees. Davis was, at times, inconsistent
and self-contradictory. Accordingly, I found her testimony
unconvincing and generally not particularly credible.
Pettyplace’s testimony suffers from the same deficiencies as
Davis.’ Her demeanor on the stand was one of arrogance.
Pettyplace, at times, rambled on to the point where she had to
be asked to stop and wait for the next question. (Tr. 870, 899.)
She also seemed somewhat hostile to the General Counsel. Her
testimony was at times self-contradictory, as, for example,
when she claimed to have seen Respondent’s Exhibit 33, the
letter purportedly written by Schwark, during her April 8 meet-
ing, when it is clear she could not have done so as the letter
appears to have been prepared on April 11. She subsequently
changed her tune to reflect that she indeed had seen the letter
on her return from Arizona. Further, her claim that Davis read
the letter to her over the phone was, as noted, put in doubt by
Davis herself, who testified that she did not recall reading or
showing Respondent’s Exhibit 33 to anyone in management.
Accordingly, I accord little weight to Pettyplace’s overall tes-
timony.
F. The Post-April 14 Events and Terminations
Haack, as noted, was not interviewed by Prevatt or Davis
during the employee interviews. Instead, at around 4:30 p.m.,
after the employee interviews were over, Haack was summoned
to her office by Prevatt and Davis and told by Prevatt that she
was under investigation. When Haack asked why she was be-
ing investigated, Prevatt purportedly told her that she was not at
liberty to discuss it but would be told why at a supervisors’
meeting that was to be held the following day, April 15. (Tr.
622.) Prevatt told her she could leave but not to discuss any-
thing with anyone regarding this matter. On April 15, Haack
attended a supervisors’ meeting at the Respondent’s Midland
offices attended by Davis, Romain, and the home supervisors of
the Respondent’s other homes. At this meeting, Haack re-
ceived a prize of a stuffed giraffe for having a perfect petty
cash account.
Later that same day, Haack received a report from Bibbee
about seeing Jenkins make a fist at Abrakian behind her back as
the latter walked past her, and that employee Gevedon had
witnessed the incident. Haack also recalls receiving a call from
Abrakian regarding this incident, probably the following day,
April 16, saying that Davis wanted Haack to call her. Haack
claims she instead phoned Pettyplace on April 17, to discuss
what to do. Pettyplace, she contends, told Haack that she main-
tained a zero tolerance for workplace violence and that Jenkins
would have to be terminated. (Tr. 629.) On instructions from
Pettyplace, Haack phoned Davis and spoke with her about the
incident a short while later. Davis told Haack that she and Pet-
typlace had decided to suspend, rather than terminate, Jenkins,
but did not explain why. Haack then obtained written state-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD500
ments from Bibbee, Abrakian, and Gevedon regarding the inci-
dent and faxed them to Pettyplace, and to the Respondent’s
recipient rights advisor, Jan Audia. Jenkins declined to
provide her with a statement.
Prevatt made no mention in her testimony of meeting with
Haack following the employee interviews, and testified only to
briefly meeting with Davis following the interviews and then
leaving the facility. She could not recall when she left the
Morowske Home that day following her post-interviews discus-
sion with Davis, and believed it might have been between
12:30–1:30 p.m. This timeframe does not square with the
claim made by several employees who testified to being inter-
viewed in mid to late afternoon, e.g., as late as 3:30 p.m., on
April 14. Nor could Prevatt recall where she went after leaving
the Morowske Home, or what time she might have arrived at
her home that day. She also had no recollection of when she
might have begun transcribing her handwritten notes into Re-
spondent’s Exhibit 7, or how long she might have worked on it
that evening before resuming the transcription the following
morning. (Tr. 1294.)
Prevatt claims that not long after the April 14 interviews, she
and Davis got together and decided to recommend to Pettyplace
that Foran and Lashbrook be terminated for giving false infor-
mation and/or violating company policy, and that Abrakian be
terminated for removing the budget from the facility and shar-
ing it with others. (Tr. 1286.) She testified that she conducted
no further investigation into the matters discussed on April 14,
following the interviews, but believes Davis continued to gather
and further review documents relating to the investigation.
Davis, however, could not recall conducting any further inves-
tigation after the April 14 interviews. (Tr. 1583.) At some
point following that meeting, Pettyplace, according to Prevatt,
approved their recommendations. Prevatt claims she then, with
assistance from Davis, prepared the termination letters on or
around April 19.
Davis had little recollection of what she did following the in-
terviews. She did not, as noted, recall conducting any further
investigation, despite Prevatt’s claim that she did so. While she
recalled giving Pettyplace her recommendation to discharge
these individuals, Davis had no recollection of when she
reached her conclusion to recommend termination, or when she
may have made her recommendations to Pettyplace.
Pettyplace’s testimony regarding when and how the decision
to terminate the alleged discriminatees was vague, ambiguous,
and not particularly credible. She testified that on returning
from her Arizona trip, she met once with Prevatt and Davis to
discuss the interviews, and had a second meeting with Davis
alone, at which time she made the decision to terminate alleged
discriminatees Abrakian, Lashbrook, and Foran, and that the
written terminations were prepared at the conclusion of that
meeting with Davis.25 However, when questioned by me, Pet-

25 Pettyplace claims she also decided to fire Haack because Haack’s
“behavior demonstrated that she was not honest” and “was comfortable
falsifying information” and in “not telling the truth.” In short, Petty-
place testified that she just couldn’t trust Haack any longer. (Tr. 889.)
Pettyplace’s stated reasons for discharging Haack stand in stark con-
trast to the representation made by the Respondent’s attorney in his
opening remarks that Haack was fired because the Respondent believed
typlace was unsure if her discussions with Prevatt and Davis
regarding the discharge decisions occurred in person or over the
phone. She also became somewhat combative and confronta-
tional with the General Counsel when the latter sought to probe
her recollection into how many conversations she may have had
with Prevatt and Davis regarding the investigation after return-
ing from Arizona. Her overall tone and demeanor left much to
be desired and conveyed an image of evasiveness. (Tr. 1021–
1022.)
As to her testimony regarding when and how the written
terminations were prepared, Pettyplace’s claim that the written
terminations were prepared at the end of her meeting with
Davis does not square with Prevatt’s assertion that she prepared
the written terminations, for according to Pettyplace, she and
Davis met alone without Prevatt. Although she claimed sole
responsibility for the discharges, incredibly Pettyplace had no
clue as to who actually prepared the discharge letters, and
claimed not to have had any input into the drafting of the letters
or to know who did. She gave the following reasons for the
discharges: Abrakian for copying and taking the Company’s
financial records from the Morowske Home to her home and
sharing it with others in contravention of company policy (Tr.
909–910); and Lashbrook and Foran for lying about taking
Dugal to a doctor’s appointment on April 4, and falsifying
company records to reflect that such a visit occurred.
Pettyplace testified that she “terminated everyone’s em-
ployment involved here based on their own testimony, the in-
formation that they gave us.” This particular claim, however,
seems inconsistent with her further claim at the hearing that she
also relied on numerous other documents to support the dis-
charge. Thus, she claims to have relied on the forms faxed to
her by Haack on April 8 (R. Exh. 31), the medication admini-
stration record (R. Exh. 4), the medicine count sheet (R. Exh.
9), the payroll sign-in sheet (GC Exh. 2), and the employee
communication log (R. Exh. 26) in discharging Lashbrook and
Foran. Further, as to Lashbrook, Pettyplace added that she also
relied on Respondent’s Exhibit 30, the April 8 write-up issued
to her by Haack at Davis’ insistence, to terminate Lashbrook.
(Tr. 865–866; 872; 882; 883–884; 893.) The terminations were
carried out on April 25.
Abrakian testified to receiving a voice mail from Davis 3
days earlier, on April 22, asking her to be available for a meet-
ing at 11 a.m. on April 25. On April 25, Abrakian arrived for
the 11 a.m. meeting, and soon thereafter Davis, accompanied
by Christine Reinbold, another of Respondent’s program coor-
dinators, arrived. Abrakian was then taken into Haack’s office
(Haack was not present). On entering the office, Abrakian told
Davis that if she was going to be asked any questions, it would
have to be done with the door open. Davis, at that point, told
Abrakian that she was no longer an employee and handed her a
termination letter. When Abrakian asked why she was being
terminated, Davis replied that it was all stated in the termina-

she “may have interfered with protected activity by promoting the
union.” (Tr. 47.) While these inconsistent reasons for Haack’s dis-
charge raise a question as to the true reason for the action taken, I do
not address that issue as Haack’s discharge is not alleged in the com-
plaint to be unlawful.
INTER-DISCIPLINARY ADVANTAGE 501
tion letter. Abrakian refused to sign the termination letter and
walked out with her copy without reading it. The letter advised
that she was being terminated effective immediately for
“[t]heft, misappropriation and misuse of company property.” It
explained that on or before April 4, Abrakian had, by her own
admission, taken “a financial/budget report from the home,
without permission and knowing that it was company property”
and that she had thereafter shared “this document with others,
outside of the workplace” and then disposed of it. (GC Exh.
17.)
When she got outside, Abrakian read the letter and learned
that she had been accused of sharing the copy of the budget
with others. She contends she went back inside and informed
Davis and Reinbold that she had not, in fact, made any such
admission. While she does not deny taking the copy of the
budget outside the facility, she contends that the assertions in
the discharge letter that she shared it with others and that she
knew it was “company property” were false. She did admit that
she received no authorization to take the budget from the home,
and to signing a confidentiality statement when she began
working for the Respondent. (Tr. 492.) As to the document’s
confidential status, Abrakian explained that the she did not
view the budget to be confidential as it was not stamped as
such, as are other documents belonging to Respondent.
Pettyplace testified that she was unaware, until the hearing,
of Abrakian’s assertion that she did not know the budget was
confidential, but claimed that while she might have been will-
ing to listen to Abrakian’s explanation before discharging her,
it probably would not have altered that decision because
Abrakian “was very negative in the way she presented her-
self; appeared very, you know, angry, you know, angry at
the company for who knows what; felt she had a right to
those documents.” (Tr. 911.) It is unclear if Pettyplace’s
characterization or description of Abrakian’s demeanor was a
reference to her behavior during the April 14 interview, or her
behavior when notified of her discharge on April 25. Petty-
place, however, was present at neither Abrakian’s April 14
interview nor at her April 25 discharge meeting. Pettyplace’s
characterization of Abrakian’s demeanor was therefore not
based on any personal observation of Abrakian. Nor is there
any record evidence to indicate that Prevatt and/or Davis made
any mention to Pettyplace of Abrakian’s conduct or demeanor
during her April 14 interview, or of Davis having provided
Pettyplace with such information during her discharge inter-
view of Abrakian on April 25. In this regard, neither Respon-
dent’s Exhibit 7, Prevatt’s alleged interview notes, nor Respon-
dent’s Exhibit 32, Davis’ notes, contain any description of
Abrakian becoming angry or displaying a “negative” attitude
during her April 14 interview. Pettyplace’s comment about
Abrakian’s demeanor struck me as purely gratuitous and unso-
licited, designed, I am convinced, to depict Abrakian as some-
what of a hotheaded, undesirable employee. Pettyplace’s asser-
tion that she would not have altered her decision to discharge
Abrakian because of her alleged “anger” and “negative” atti-
tude begs the question, not answered by Pettyplace, of whether
Pettyplace would have discharged Abrakian had the latter not
been “angry” or “negative.”
Foran received a similar phone message from Davis at her
home on or about April 22, notifying her to be available for a
meeting on April 25 at 11 a.m. Foran was on vacation at the
time and was scheduled to return to work on April 25. She
reported for work at 6 a.m. on April 25, and, at 11 a.m. went to
meet with Davis as had been requested. She recalls Abrakian
arriving around that time, and Reinbold and Davis arriving
soon thereafter. Once there, Abrakian was called in to meet
with Davis and Reinbold in Haack’s office, and came out a few
minutes later. Foran was then called in. Once inside, Davis
informed her she was being terminated and asked her to sign
the discharge letter.26 (GC Exh. 15.) Foran refused to do so.
At one point during her meeting, Abrakian came in and told
Davis to stop telling lies about her. After Rienbold signed the
discharge letter as a witness, Foran received her copy and left.
She contends that at no time during the meeting was she orally
informed why she was being discharged. Foran did read the
discharge letter but only after she left the meeting. Foran
claims that at no time between April 14, when the interviews
occurred, and April 25, when she received her discharge notice,
was she asked any questions about or given an opportunity to
address or explain the subjects covered in the discharge letter.
Lashbrook, like Foran, was left a message on her answering
machine on April 24, by Davis asking that she attend a meeting
at 11 a.m. the following day. Earlier that day, Lashbrook had
told Haack that she would be seeing a doctor on April 25, for a
back problem she was having, and received permission from
Haack to take time off on April 25, for that purpose. On April
25, presumably after the doctor’s visit, Lashbrook received
word from her boyfriend that Davis was trying to get a hold of
her and left word with him to call Davis. When Lashbrook did
so, she was told by Davis that she had been terminated.
Lashbrook then asked Davis why she was being terminated, but
Davis simply stated that she could read the reasons on the dis-
charge letter she was being sent by mail. Lashbrook asked why
she could not tell her the reasons over the phone, but Davis
declined to do so, and hung up after repeating that Lashbrook

26 The discharge letter, GC Exh. 15, describes three categories of
misconduct by Foran as forming the basis for her discharge. The first
category “Dishonesty” includes: (a) providing false information during
an investigation; (b) claiming to have attended an April 4, 2005 medical
appointment with a consumer that never occurred; (c) failing to report
the falsification of the health care chronological; (d) failing to report
the alteration or falsification of the medical consult form; and (e) stat-
ing during the investigation that she left work early between 12:30 and
1 p.m. on April 4, but signing out at 2 p.m. The secondary category
“Misappropriation of company equipment and time” includes: (a) use
of the company van for personal use; (b) conducting personal business
on paid time; and (c) documenting time spent doing personal business
on paid time. The third category, a more general one, simply states that
Foran “refused to acknowledge the unauthorized possession of the safe
combination as well as the keys to the offices and records of the home;
or to relinquish the keys when asked by the assistant home supervisor.”
It further states that when initially interviewed by Prevatt on April 14,
Foran “denied having possession of the keys” and only on further dis-
cussion admitted having access to offices, files, and the safe as recent
as March 2005, and that following this conversation with Prevatt, Foran
relinquished the keys to Prevatt.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD502
was given the reasons in the discharge letter. Lashbrook re-
ceived her discharge letter on April 27. (See GC Exh. 14.)
The reasons cited in Lashbrook’s discharge letter for her
termination included “dishonesty,” the use of the Morowske
van for personal use, conducting personal business on paid
time, and documenting time spent doing personal business as
time worked. Under the charge of “dishonesty,” Lashbrook
was accused of providing false information during an investiga-
tion, falsely claiming to have attended an April 4 medical ap-
pointment which never occurred, falsifying health records, e.g.,
the health care chronological, altering or falsifying medical
records, e.g., the medical consult form, and falsifying the van
log.
While she admits not being forthright during her April 14 in-
terview about knowing how Haack felt about the Union,
Lashbrook insists that at no time during her interview did she
claim to have taken Dugal or any other consumer to a doctor’s
appointment on April 4. She also denied falsifying any com-
pany documents, including the health care chronological or the
medical consult form, as asserted in her discharge letter, and
denied telling Prevatt or Davis during her interview that some
other direct care worker took Dugal to the doctor on April 4.
(Tr. 139–140.) Lashbrook further denied having used the van
to go to a union meeting on April 4, or for personal, nonwork-
related reasons, and denied recording on the April 4 timesheet
her personal time off as having been worked by her. Finally,
Lashbrook testified, without contradiction, that at no time fol-
lowing her interview was she given a chance to respond to, or
discuss, the reasons for termination set forth in her discharge
letter.
On June 8, the Board conducted an election among the direct
care employees which was won by the Union. Davis served as
the employer’s observer during that election. As evidenced by
General Counsel’s Exhibit 11, the voter eligibility list, neither
Jenkins nor Schwark voted in the election. (GC Exhs. 11, 12,
13.) The last named discriminate, Bibbee, was discharged a
few days later, on June 13, purportedly for violating company
policy against sleeping on the job. (GC Exh. 16.) The incident
occurred on June 10, while Bibbee worked the midnight shift.
According to Bibbee, she reported to work at 8 p.m. on June
9, and was scheduled to work through 6 a.m. on June 10. Jen-
kins was her coworker on the midnight shift. The Respondent
maintains a written policy in its employee handbook that
strictly prohibits employees from sleeping while on duty. (R.
Exh. 3, p. 69.) Bibbee acknowledged knowing of this restric-
tion. She testified that at around 3 a.m. on June 10, while on
duty, she was watching television as the consumers slept and
admittedly dozed off for about 15 minutes. At one point, Davis
walked in and caught her napping, and simply told her to stay
awake and then left. (Tr. 444.) Bibbee recalls that on the
morning of June 10, she told Romain that she had been caught
sleeping on the job and would probably be fired for it. She
informed Romain that if she was to be fired, that he should call
her in advance so that she would not have to drive all the way
back to Morowske Home just to be told she was being fired.
Schwark was present when she had this conversation with Ro-
main. Bibbee further recalls telling Jenkins that she expected to
be fired for sleeping on the job. (Tr. 451.)
After completing her shift, Bibbee left. However, as she
predicted, Bibbee received a phone call from Romain later that
day telling her not to report for work that evening and that
Davis wanted to see her on June 13. Bibbee asked Romain if
she was going to be fired and Romain responded in the affirma-
tive. Bibbee went to see Davis on June 13, and met with Davis
and Romain. At this meeting, Davis handed Bibbee a termina-
tion letter and asked her to sign it, but Bibbee refused to do so.
Bibbee asked why Jenkins was not being terminated for failing
to report her to Davis, but received no answer. Bibbee admits
knowing that sleeping on the job was a dischargeable offense.
(Tr. 450.)
Evidence was produced at the hearing showing that on or
about April 27, a few months before Bibbee was discharged,
Jenkins, on two occasions, was observed by fellow employee,
Stephanie Byrd, sleeping on the job. Unlike Bibbee, no action
was taken against Jenkins. Byrd testified in this regard that she
reported Jenkins’ sleeping incidents to Davis at the end of her
shift, and that Davis said she would look into it. Byrd claims
that she followed up on her report to Davis about 1 week later
and that Byrd told her that Jenkins had been working double
shifts and too many hours and had been tired. Byrd does not
know if Jenkins was ever disciplined based on her report.
Davis denied ever receiving any such report from Byrd. I
credit Byrd over Davis regarding this incident. Byrd was sub-
poenaed to testify, has no apparent interest in the outcome of
this case, and is still employed by the Respondent, rendering
her testimony highly reliable. Davis, on the other, was, as pre-
viously discussed in other respects, not a particularly credible
witness.
Finally, testimony from employee Hibbs shows that on Oc-
tober 27, 4 days before the start of the hearing, she received a
call from Davis asking if she was willing to meet with Respon-
dent’s attorney, Daniel Gwinn, the following day. Davis ap-
parently was meeting with Gwinn when she called Hibbs.
When Hibbs expressed uncertainty about meeting with Gwinn
because she would have to obtain a babysitter, Davis asked if
Hibbs was willing to speak with Gwinn directly. Hibbs agreed,
at which point Gwinn got on the phone and asked Hibbs if she
would meet with him around 1:15 p.m. the following day.
Hibbs repeated that she would try but had to make sure she
could get a babysitter for her child. Gwinn then told Hibbs that
if she did not cooperate, he could subpoena her. Hibbs told
Gwinn to go ahead and subpoena her as it made no difference
to her since she had already been subpoenaed. Hibbs recalled
Gwinn asking if she had had any discussions with the General
Counsel, and Hibbs replied that she had, but could not recall
how this particular discussion came up. It appears that at some
point during this conversation, Hibbs volunteered that she had
given a sworn affidavit to the Board. Gwinn then asked Hibbs
to provide him with a copy of the affidavit she had given to the
Board. When Hibbs expressed doubts as to whether it was
proper for her to do so, Gwinn stated that she was free to do so
as there was no attorney-client privilege between the two of
them.
Following that conversation, Hibbs left for home, where she
received a call from Davis. Davis told Hibbs that she was get-
ting “bugged” by Gwinn about her affidavit and asked if Hibbs
INTER-DISCIPLINARY ADVANTAGE 503
would provide him with a copy. Hibbs agreed to fax a copy to
Davis and stated she did not object to Davis faxing it to Gwinn.
Hibbs faxed her affidavit to Davis that same day, explaining
that she did so in order to get Davis “off her back” and because
she “didn’t really want to upset the attorney who works for the
company that I work for.” (Tr. 535–537.) Hibbs’ above ac-
count of her conversations with Davis and Gwinn was not dis-
puted by Davis, who testified on other matters, or by attorney
Gwinn, who was at the hearing but did not take the stand to
refute Hibbs’ assertions. Accordingly, Hibbs’ above testimony
is credited.
G. Discussion and Findings
1. The 8(a)(1) allegations
The complaint alleges, and the General Counsel contends,
that the confidentiality statement employees are asked to sign
is, on its face, overly broad and unlawful. In Lutheran Heri-
tage Village-Livonia, 343 NLRB 646 (2004), the Board held
that in determining whether a challenged rule, like the confi-
dentiality statement at issue here, is unlawful, it initially looks
at whether the rule explicitly restricts activities protected by
Section 7. If it does, then the rule is deemed to be unlawful,
even absent evidence of its enforcement. If, however, the rule
does not explicitly restrict activity protected by Section 7, it
will be found to be unlawful only upon a showing of one of the
following: (1) reasonable employees would construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights. See also U-
Haul Co. of California, 347 NLRB 375, 378 (2006); Cintas
Corp., 344 NLRB 943 (2005); Lafayette Park Hotel, 326
NLRB 824, 825 (1998).
Here, the Respondent’s confidentiality statement does not
explicitly prohibit employees from engaging in protected activ-
ity. Nevertheless, the wording therein classifying as “strictly
confidential” “any and all information” pertaining to IDA, its
employees, or its consumers, and threatening to discipline or
discharge employees who violate this rule or policy, is overly
broad. The rule, as noted, contains no limitations or excep-
tions, and simply prohibits the disclosure of “any and all infor-
mation.” There is no record evidence to indicate that employ-
ees were ever told that activities otherwise protected by the Act,
their right, for example, to freely discuss their wages or other
terms and conditions of employment among themselves, were
not covered by the confidentiality rule. In the absence of any
such explanation or clarification, employees could reasonably
construe the rule as prohibiting them from engaging in discus-
sions pertaining to their wages, benefits, and other terms and
conditions of employment, a right accorded them under Section
7. Accordingly, I agree with the General Counsel that the Re-
spondent’s confidentiality statement is facially unlawful, and
that the maintenance of such a rule violates Section 8(a)(1) of
the Act, as alleged.
The General Counsel also contends that Romain unlawfully
created the impression that the employees’ union activities
were being kept under surveillance when, on April 4, he asked
Abrakian and Lashbrook how the union meeting had gone. The
test for determining whether an employer has created an im-
pression of surveillance is whether the employee would rea-
sonably assume from the statement in question that his or her
union activities had been placed under surveillance. See North
Hills Office Services, 346 NLRB 1099 (2006), citing South
Shore Hospital, 229 NLRB 363 (1977). While it is clear from
Foran’s credited testimony that Romain had reason to suspect,
before his April 4 discussion with Abrakian and Lashbrook,
that Foran and possibly other employees might be interested in
unionizing, there is no evidence to indicate that Romain or any
other management official had been told by Foran or any em-
ployee that a union organizational meeting was to be held on
April 4. Romain, at most, would have known only of Foran’s
interest in a union from a prior conversation, but could not have
known of the April 4 union meeting since, according to Foran,
that meeting had not yet been arranged. While Abrakian
clearly took the lead role in organizing and disseminating the
information about the April 4 meeting to other employees, there
is no evidence to suggest that she did so openly so as to have
alerted the Respondent to what she was up to or about her un-
ion sympathies.
There is likewise no evidence that Lashbrook, also a union
supporter, had openly displayed her prounion stance at any time
before the meeting so as to have put the Respondent on notice
of where she stood, or given it an opportunity to learn of the
April 4 meeting. Thus, when Romain approached them on
April 4, and asked how the union meeting had gone, Abrakian
and Lashbrook could reasonably have believed that the Re-
spondent had learned of, and was now keeping tabs on, their
union activities. On these facts, I find that Romain, by asking
Abrakian and Lashbrook how the union meeting had gone,
created the unlawful impression that their union activities, and
presumably that of other employees, were being kept under
surveillance, in violation of Section 8(a)(1) of the Act.27
It is further alleged that Romain’s remarks to Bibbee, Hibbs,
and Gevedon in late March, as they sat around discussing per-
sonal and some work-related matters, amounted to an unlawful
threat of discharge. I agree. As credibly testified by Bibbee
and Hibbs, as they and Gevedon were sitting around the
Morowske kitchen chatting in Romain’s presence, the subject
of the Union came up, and Hibbs remarked something about
employees not receiving pay raises or holiday pay. In response
to their comments, Romain remarked to the three that the Re-
spondent would “mess” with, and try to fire, them if they got
involved with the Union. Romain’s remark was a clear threat
that Bibbee, Hibbs, or Gevedon or any employee could be dis-

27 In an affidavit he gave to the Board, Romain claimed to have
learned that employees attended the April 4 union meeting after hearing
Hibbs make a comment about having gone to the meeting. He was not
sure, however, what Hibbs had actually said, how the subject was
raised, was unable to recall if he had a conversation with Hibbs on the
subject of the meeting, and denies asking her any questions about the
meeting. (Tr. 1428.) The statements in his affidavit are too vague to be
worthy of belief. Hibbs, as noted, testified to having had only two
conversations with Romain in which the Union was discussed, both of
which occurred in March. Implicitly, therefore, Hibbs denied telling or
revealing to Romain that she had attended the April 4 union meeting. I
credit her denial over the suggestion in Romain’s affidavit that he
learned of the union meeting after the fact.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD504
charged for supporting the Union. As such, the remark was
coercive and a violation of Section 8(a)(1) of the Act.
The complaint also alleges that Romain’s questioning of
Hibbs about her union sympathies was unlawful. Hibbs, as
noted, testified, without contradiction, that, a few days after the
above-described conversation, Romain asked her how she felt
about the Union while both were on the back patio of the
Morowske Home. The test for determining whether the ques-
tioning of an employee constitutes an unlawful interrogation is
the totality-of-the-circumstances test adopted by the Board in
Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
In making that determination, the Board considers such factors
as the background in which the questioning occurred, the nature
of the information sought, the identity of the questioner, the
place and method of the interrogation, and the truthfulness of
the employee’s reply. Professional Medical Transport, Inc.,
346 NLRB 1290, 1294 (2006).
Here, the questioning of Hibbs occurred at the workplace,
was conducted by one of her supervisors who, just days earlier,
had threatened her and other employees with discharge if they
were to support the Union. Although Romain testified on other
matters, he was not asked to refute Hibbs’ claim that he ques-
tioned her about her views on the Union. Consequently, there
is no explanation in the record as to why Romain needed to
know how Hibbs felt about the Union. Nor is there any evi-
dence to suggest that Romain’s question occurred in the context
of a friendly, casual conversation the two might have been hav-
ing, or that the relationship between the two was anything other
than a working one. In these circumstances, Romain’s ques-
tioning, when viewed in light of his earlier threat to Hibbs and
others that employees could be discharged for supporting the
Union, was clearly coercive. That Hibbs chose to tell Romain
that she viewed the Union as a good idea does not render Ro-
main’s questioning any less coercive, for Hibbs might have
decided to express this particular view in the belief that Romain
may have suspected how she felt about the Union based on
their prior conversation just days earlier. Accordingly, I find
that Romain’s questioning of Hibbs on how she felt about the
Union amounted to an unlawful interrogation and violated Sec-
tion 8(a)(1) of the Act, as alleged.
The complaint also alleges that the prohibition imposed on
employees on April 14, by Davis and/or Prevatt against engag-
ing in any union-related discussions while they waited to be
interviewed was unlawful, as was Prevatt’s threat to discharge
any employee for doing so. When an employer imposes a re-
striction on employee conversations, it violates Section 8(a)(1)
of the Act if the restriction applies only to union-related talk.
Brandeis Machinery & Supply Co., 342 NLRB 530 (2004).
Although Davis and Prevatt both claimed that employees were
free to discuss nonwork-related matters as they waited to be
interviewed, Haack, Lashbrook, Foran, Abrakian, and Hibbs all
credibly testified to hearing Prevatt tell employees, following
Lashbrook’s comment that employees did not have to discuss
the Union with Prevatt or Davis, that there was to be no discus-
sion about the Union or they would be terminated. Having
found that Prevatt indeed imposed such a restriction on em-
ployees during the April 14 meeting, I further find the restric-
tion to have been unlawful and a violation of Section 8(a)(1).
Scripps Memorial Hospital Encinitas, 347 NLRB 52 (2006).
The restriction, as noted, applied only to union-related discus-
sions among employees since, according to Prevatt and Davis,
employees remained free to discuss other nonwork-related mat-
ters. Prevatt’s further warning to employees, that they could be
discharged if they engaged in any such union talk, was also
unlawful and a further violation of Section 8(a)(1) of the Act.
Frazier Industrial Co., 328 NLRB 717, 718 (1999).
The Respondent also violated Section 8(a)(1) when, during
her interviews of Bibbee and Abrakian, Prevatt questioned
them about the Union. Thus, Bibbee credibly recalled being
asked by Prevatt if she knew who, during a Morowske Home
staff meeting, had brought up the subject of the Union.
Abrakian similarly credibly testified to being asked by Prevatt
if she knew who was responsible for initiating the union talk at
the Morowske Home. The questioning of both, as noted, oc-
curred during a mandatory employee meeting called to investi-
gate allegations of employee misconduct regarding other mat-
ters, and was undertaken by Prevatt, a high-level management
official not previously known to either Bibbee or Abrakian.
Prevatt’s questioning therefore did not occur in a friendly, cas-
ual, noncoercive setting. The Respondent has offered no ex-
planation for why Prevatt found it necessary to inquire into
what Bibbee and Abrakian knew about who might have been
responsible for discussing the Union at the Morowske Home.
The topic of the Union, according to the Respondent, had no
bearing on and was unrelated to the investigation that was con-
ducted on April 14. Consequently, there was no legitimate
reason for Prevatt to inquire into such matters. Abrakian’s false
denial about knowing who was responsible for the union talk at
the Home strongly suggests that she found the inquiry coercive.
Accordingly, Prevatt’s inquiry into whether Bibbee and
Abrakian knew who had brought up the subject of the Union
during a staff meeting, or who was responsible for the union
talk at the Home, amounted to unlawful interrogations and, as
previously stated, violated Section 8(a)(1) of the Act.
It is further alleged in the complaint that the Respondent en-
gaged in the unlawful solicitation of employee grievances when
Prevatt admittedly asked each employee during her interview if
there was anything it could do to improve the workplace or the
employees’ enjoyment on the job. The Board has held that
“[a]bsent a previous practice of doing so, the solicitation of
grievances during an organizational campaign accompanied by
a promise, express or implied, to remedy such grievances vio-
lates the Act.” Maple Grove Health Care Center, 330 NLRB
775 (2000). There is no question that Prevatt’s question to
employees on how the Respondent could improve the work-
place or the employees’ enjoyment on the job was an attempt
by Respondent to elicit from employees grievances they may
have had regarding their overall terms and conditions of em-
ployment. While a solicitation of grievances alone is not
unlawful, it nevertheless raises an inference that the employer
is promising to remedy the grievances, an inference that be-
comes even more compelling when, during a union organiza-
tional campaign, an employer that has not previously had a
practice of soliciting employee grievances institutes such a
practice. Here, there is no evidence to show, nor has a claim
INTER-DISCIPLINARY ADVANTAGE 505
been made, that the Respondent had an established past prac-
tice, prior to Prevatt doing so during the April 14 interviews, of
soliciting and resolving, or promising to resolve, employee
grievances. Accordingly, I find that Prevatt’s conduct on April
14, of soliciting employee grievances, with the implicit promise
of remedying them, constituted a further violation of Section
8(a)(1) of the Act.
Finally, the complaint, as amended at the hearing, alleges,
and I agree, that the Respondent further violated Section 8(a)(1)
when its attorney, Gwinn, questioned Hibbs about statements
she may have made to a Board agent in this case, and then
asked her for a copy of the affidavit she gave to the Board. The
Board has consistently held that the questioning of an employee
as to statements he or she may have given to a Board agent, as
well as employer requests for copies of affidavits provided by
employees to the Board, is inherently coercive and unlawful.
Wire Products Mfg. Corp., 326 NLRB 625, 626 (1998); Astro
Printing, 300 NLRB 1028, 1029 fn. 6 (1990); Frascona Buick,
Inc., 266 NLRB 636, 647 (1983); Ingram Farms, 258 NLRB
1051, 1054 (1981).
Although Hibbs on cross-examination stated that she volun-
tarily told Gwinn that she had given an affidavit to the Board,
that revelation by Hibbs was, I find, the product of some subtle
coercion, for it occurred the day after her superior, Davis, asked
her to speak with Gwinn, after Gwinn threatened to subpoena
Hibbs if she did not cooperate with him, and presumably after
Gwinn questioned her about discussions she may have had with
a Board agent in this case. In these circumstances, Hibbs’ dis-
closure to Gwinn about having given a sworn affidavit to the
Board can hardly be viewed as “voluntary” and devoid of coer-
cion. Further, Hibbs’ undisputed and credited testimony makes
clear that Hibbs gave Davis a copy of her affidavit only after
Gwinn had asked for it, and after Davis made clear that Gwinn
was bugging her about obtaining a copy of Hibbs’ affidavit.
Hibbs’ stated reason for finally giving in and handing over her
affidavit to Davis to deliver to Gwinn, to wit, that she did not
want to anger the attorney who was representing her employer
in this matter, strongly suggests that Hibbs’ decision to comply
with Gwinn’s request for her affidavit was motivated by fear
that not doing so could have adverse consequences for her.
Accordingly, I find that Gwinn’s conduct in questioning Hibbs
about discussions she may have had with a Board agent, and in
asking Hibbs for a copy of her Board affidavit, was coercive
and, as stated, a violation of Section 8(a)(1) of the Act.
2. The 8(a)(3) allegations
a. Abrakian’s discharge
The General Counsel contends that Abrakian was wrongfully
discharged for her union activities. The Respondent, on brief,
argues that Abrakian was lawfully terminated for violating its
confidentiality rule by “[stealing] a budget report from the
Morowske Home.” (R. Br. 29.) In Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983), the Board
established a causation test for determining when the discharge
or other disciplinary measure taken against an employee vio-
lates the Act. Under Wright Line, the General Counsel, as part
of his or her burden of proof, must make an initial prima facie
showing that the action taken against the employee was moti-
vated, at least in part, by his involvement in union or other
protected activity. The General Counsel makes out a prima
facie case by showing that the employee involved had engaged
in union or other protected activity, that the employer knew or
was aware of such activity, that it harbored antiunion animus,
and that said animus was a motivating factor in the decision
taken. Once a prima facie case is established, the burden shifts
to the employer to demonstrate by a preponderance of credible
evidence that it would have taken the same action against the
employee even in the absence of any union or other protected
conduct. If, however, the employer’s explanation is found to be
pretextual—that is, if the reasons cited either did not exist or
were not in fact relied on—the employer will not have satisfied
its burden and the inquiry is ended at that point. Tasty Baking
Co., 330 NLRB 560, 573 (2000); L.S.F. Transportation, 330
NLRB 1054, 1074 (2000).
Applying the Wright Line analysis to the instant case, the
evidence here makes clear that Abrakian was the primary
mover of the Union’s organizational campaign. Thus, it was
Abrakian who, in March, first discussed with Lashbrook and
Foran her interest in having a union represent her and other
employees, who thereafter contacted several unions to obtain
information on how to organize, and who then arranged for the
Union to meet with employees on April 4. Abrakian was also
responsible for notifying employees about the April 4 union
meeting, attended that meeting as well as other union meetings
held between April 14, and her discharge date, and signed a
card authorizing the Union to represent her for collective-
bargaining purposes.
The record also shows that the Respondent was fully aware
of Abrakian’s involvement with the Union before discharging
her. As noted, after returning to the Morowske Home follow-
ing the April 4 union meeting, Supervisor Romain asked her
how the meeting had gone, suggesting that he knew that
Abrakian had gone to the meeting. Further, the April 11 letter
purportedly written by Schwark at Davis’ behest, and which
Davis I am convinced read at some point before the April 14
interviews, identified Abrakian as having been at the April 4
union meeting. It is clear, therefore, and I find, that the Re-
spondent knew of Abrakian’s prounion sympathies and activi-
ties before firing her.
Finally, the numerous above-described 8(a)(1) violations
committed by the Respondent, which included threats of dis-
charge for union supporters, coercive interrogation of employ-
ees as to their union activities, prohibiting union talk among
employees while allowing other nonwork-related discussions,
creating an impression that the employees’ union activities
were being kept under surveillance, and soliciting and implic-
itly promising to remedy employees grievances in order to dis-
suade them from supporting the Union, all amply support a
finding that the Respondent harbored animosity towards the
Union and its supporters. Accordingly, I find that the General
Counsel has made a prima facie showing that the discharge of
Abrakian on April 25, was motivated, if not wholly, at least in
part, by her involvement with the Union. The burden under
Wright Line now shifts to the Respondent to demonstrate by a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD506
preponderance of credible evidence that it would have dis-
charged Abrakian even if she had not engaged in any union
activity. Riverboat Services of Indiana, Inc., 345 NLRB 1286,
1298 (2005).
The Respondent has not done so here. Thus, the Respondent
has failed to provide a clear, consistent, and credible explana-
tion for Abrakian’s termination. In Abrakian’s April 25 dis-
charge letter, for example, the Respondent cited “theft, misap-
propriation, and misuse of Company property” as the sole rea-
sons for her dismissal, describing the above-described miscon-
duct as consisting of Abrakian’s removal of the Company’s
budget from the Home without permission and sharing it with
others outside the workplace. Pettyplace at the hearing again
defined the “theft, misappropriation, and misuse of Company
property” to mean that Abrakian was discharged for “copying
and taking the Company’s financial records from the Home and
sharing it with others.” However, at the hearing, the Respon-
dent also asserted, for the first time, that Abrakian’s conduct in
removing a copy of the budget from the home violated its con-
fidentiality rule and that said violation was a factor in her ter-
mination. Abrakian’s discharge letter, as noted, makes no men-
tion of this alleged violation of the confidentiality rule as a
basis for her discharge.
In its posthearing brief, the Respondent again cites theft as a
reason for the discharge, claiming the theft violated its confi-
dentiality rule. (R. Br. 29.) Thus, the Respondent avers in its
brief that regardless of what she subsequently did with the copy
of the budget, “Abrakian was terminated because she stole a
budget report from the Morowske Home.”28 It explained that
the budget was a sensitive document and not for the use of
employees, and that Abrakian’s removal of the budget from the
property, without more, amounted to a “misappropriation of
sensitive company property” in violation of the confidentiality
rule, and justified her discharge. Notwithstanding its latter
claim that it was the mere removal of the budget from the
Home, and inferentially not what she did with it afterwards,
that led to Abrakian’s discharge, elsewhere on brief, the Re-
spondent, in what I am convinced was a continuing attempt to
cover all bases regarding the discharge, added to its list of rea-
sons by asserting that Abrakian was discharged for taking a
copy of the budget to the April 4 union meeting. Thus, the
Respondent avers on brief (p. 2) that “IDA discharged
Abrakian because Abrakian admitted to taking a financial
budget sheet from the Morowske Home to [the] Union meet-
ing.” Neither Abrakian’s discharge letter, nor Pettyplace at the
hearing, as noted, cited Abrakian’s taking of the budget with
her to the union meeting as a grounds for the discharge. Its
claim on brief, that it was the mere removal of the budget from
the Home which justified and led to Abrakian’s discharge, nei-
ther squares, or is consistent, with the Respondent’s new asser-
tion on brief that Abrakian was discharged for taking the
budget to the union meeting, or with Pettyplace’s assertion in

28 The assertion that Abrakian “stole” the budget is not entirely accu-
rate, for while Abrakian admits making a copy of the budget and taking
it with her when she left Morowske Home that day, she left the original
copy of the budget where she found it, next to the fax machine. Thus,
she did not “steal” the budget as charged by the Respondent.
her testimony that Abrakian was discharged for removing a
copy of the budget from the home and sharing it with others.”
The Board has held that when, as here, an employer provides
inconsistent or shifting reasons for its actions, a reasonable
inference may be drawn that the reasons proffered are mere
pretexts designed to mask an unlawful motive. GATX Logis-
tics, Inc., 323 NLRB 328, 335 (1997); also Mt. Clemens Gen-
eral Hospital, 344 NLRB 540, 459 (2005); Holsum De Puerto
Rico, Inc., 344 NLRB 694, 715 (2005). I find such an inference
fully warranted here.
Further, the Respondent’s assertion that Abrakian was dis-
charged for sharing the budget with others is also pretextual.
Pettyplace, as noted, claimed that Abrakian admitted having
done so during her April 14 interview. Abrakian, however,
credibly denied making any such admission during her inter-
view. As Pettyplace was not present during Abrakian’s, or any
of the other, interviews, her information as to what Abrakian
may have said came from Prevatt, and from Respondent’s Ex-
hibit 7, Prevatt’s alleged interview notes, and Respondent’s
Exhibit 32, Davis’ notes. However, as found above, Prevatt
was not a credible witnesses, and her claim that Abrakian made
such an admission was rejected as not credible, as being incon-
sistent with Abrakian’s more credible denial, and as finding no
support in Respondent’s Exhibits 7 or 32. The Respondent, it
should be noted, produced no evidence, other than its false
assertion that Abrakian admitted doing so during her interview,
to show that Abrakian indeed shared the budget with others
either at the Union or elsewhere. The April 11 letter, purport-
edly prepared by Schwark at Davis’ request describing what
transpired during the April 4 union meeting, which I am con-
vinced is the genesis for the claim that Abrakian shared the
budget with others, makes no mention of Abrakian having done
so. Schwark, who might have been able to shed some light on
this matter, was not called to testify. Accordingly, as Abrakian
never told Prevatt in her interview that she had shared the
budget with others, the Respondent’s assertion that she did so is
false, rendering specious and pretextual its claim that it dis-
charged her for this reason. When a respondent’s stated rea-
sons for its actions are found to be false (i.e., “pretextual rea-
sons”), discriminatory motive may be inferred. Pontiac Care &
Rehabilitation Center, 344 NLRB 761 (2005).
As to its reliance on the confidentiality rule to support
Abrakian’s discharge, the Respondent, as noted, never cited
Abrakian’s alleged breach of this rule in its discharge letter as a
reason for the discharge, but rather raised it for the first time at
the hearing. The discharge letter states only that Abrakian,
inter alia, took the budget from the Home without permission
“knowing that it was Company property.” Consequently, the
Respondent’s claim, raised for the first time at the hearing, that
Abrakian was discharged for violating its confidentiality rule,
appears to have been more of an afterthought designed to guar-
antee that Abrakian’s discharge would stick. Its claim, there-
fore, that Abrakian was discharged for violating its confidenti-
ality rule is nothing more than a pretext intended, I am con-
vinced, to mask another unlawful motive.
The Respondent, in any event, could not have properly dis-
charged Abrakian for violating the confidentiality rule for, as
found above, that rule is facially invalid and unenforceable
INTER-DISCIPLINARY ADVANTAGE 507
because its classification of “any and all information” pertain-
ing to, among other things, the business and employees as
strictly confidential, the disclosure of which could lead to dis-
missal, could reasonably be construed as prohibiting employees
from engaging in Section 7 protected activity, including dis-
cussing wages, hours, and other terms and conditions of em-
ployment among themselves. The disciplining, or in this case,
discharge of an employee pursuant to such an invalid rule is
itself unlawful. Convenience Food Systems, 341 NLRB 345,
351 (2004).
There are, in any event, sound reasons for doubting the Re-
spondent’s claim that the budget was a confidential document.
Haack, as noted, received it from Davis after repeated requests
for the budget. The document itself, unlike others received by
Haack that day, was not labeled or stamped confidential, and
Haack, who had never before been given the budget, received
no instructions on how she was to handle it, or directive from
Davis or anyone else from management that the budget was a
confidential document not to be disclosed to anyone. In fact,
Haack, who as a supervisor could reasonably be expected to
distinguish between confidential and nonconfidential docu-
ments, treated the budget as a nonconfidential document by
leaving it unsecured next to the Home fax machine, an area
open to both employees and nonemployees at the Home.
Haack, on the other hand, secured other documents received
from Davis clearly marked and stamped “confidential” by slid-
ing them under the locked door to her office. If Haack knew or
had reason to believe that the budget was a confidential docu-
ment, I am convinced she would have secured it in the same
manner as she did the other documents so labeled, and would
not have left it out in the open next to the fax machine. Nor, I
am further convinced, would she have shown and discussed the
budget with Lashbrook, and risked being discharged, had she
known or been told by upper management that the budget was
not to be “disseminated for the use of employees,” as the Re-
spondent on brief claims was the policy regarding the budget.
In sum, other than the Respondent’s bare assertion to the
contrary, there is no evidence to show that the Respondent had,
in the past, viewed or treated its budget as a confidential docu-
ment. If it was the Respondent’s intent that the budget be
treated as confidential, that fact was never communicated or
made known to its own supervisor, Haack, or to employees in
general, including Abrakian. Thus, even if the Respondent’s
confidentiality rule was deemed to be valid, which, as found
above, it is not, the Respondent nevertheless could not have
discharged Abrakian for violating the rule by removing a copy
of the budget from the Home for it has not demonstrated that
the budget was, in fact, a confidential document. As noted,
Respondent’s reliance on the confidentiality rule to support
Abrakian’s discharge was not cited in her discharge letter as a
reason for her termination, and was, instead, raised for the first
time at the hearing. I am convinced that this explanation was
more of an afterthought designed to bolster the termination
decision. As such, the Respondent’s reliance on the confidenti-
ality rule to support the discharge, like the other varying and
shifting explanations proffered at the hearing and on brief, is
nothing more than a pretext designed to conceal the Respon-
dent’s true motive for discharging Abrakian, e.g., her support
for the Union. Accordingly, I find that the Respondent has not
come forth with a legitimate, nondiscriminatory reason for
discharging Abrakian, or demonstrated that it would have dis-
charged Abrakian even if she had not engaged in any union
activity. Having failed to rebut the General Counsel’s prima
facie case, I further find that the Respondent’s discharge of
Abrakian on April 25, violated Section 8(a)(3) and (1) of the
Act, as alleged.
b. Lashbrook’s and Foran’s discharge
Lashbrook and Foran, as noted, are also alleged to have been
unlawfully discharged for their union activities. There is no
disputing, and the Respondent does not contend otherwise, that
both Lashbrook and Foran were union supporters and that the
Respondent knew of their union sympathies before firing them.
Like Abrakian, both attended and spoke out at the April 4 union
meeting, and signed cards authorizing the Union to represent
them. Lashbrook, like Abrakian, was questioned by Romain on
how the meeting had gone, making clear that Romain knew she
had been at the union meeting. Foran made her prounion views
known to Romain sometime in March. Further, the April 11
letter that Davis claims to have received from Schwark discuss-
ing what occurred at the April 4 union meeting identifies
Lashbrook and Foran as having been in attendance. Evidence
of Respondent’s animosity towards the Union and its support-
ers, which includes Lashbrook and Foran, was discussed above
in connection with Abrakian’s unlawful discharge and will not
be repeated here. The evidence thus convinces me, and I find,
that the General Counsel has made a prima facie showing that
Lashbrook and Foran were unlawfully discharged for their
union activity.
The Respondent contends that Lashbrook and Foran were
lawfully discharged for “fabricat[ing] the existence of a doc-
tor’s appointment on April 4, 2005, to cover up taking a com-
pany van and attending a union meeting on company time.” (R.
Br. 1.) Pettyplace, who made the decision to discharge
Lashbrook and Foran, claimed that the circumstances leading
up to the terminations were fully investigated, and that “we
terminated everyone’s employment involved here based on
their own testimony, the information that they gave us.” (Tr.
803, 916.) Several factors convince me that the Respondent’s
rationale for discharging Lashbrook and Foran is akin to the
proverbial house of cards based on nothing more than on false
assumptions, speculation, and conjecture, rather than on any
real evidence.
According to the Respondent, Lashbrook and Foran violated
company policy by using the Morowske van to attend the union
meeting on April 4, and points to the report it received from
Schwark, General Counsel’s Exhibit 33, as the basis for its
belief that Lashbrook and Foran had engaged in such conduct.
This argument is flawed in several respects. First, there is no
credible evidence to show that Lashbrook and Foran indeed
used the Morowske van to go to the meeting. Both in fact testi-
fied, credibly I find, that they went to, and returned from, the
April 4 union meeting in Lashbrook’s own vehicle. Further,
General Counsel’s Exhibit 33, Schwark’s alleged written report
on which the Respondent bases its claim, states only that
Schwark purportedly observed the Morowske van at the union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD508
meeting, but does not say that Schwark actually saw Lashbrook
or Foran driving the van to or from the meeting. Rather, the
letter states only that because Schwark did not see either
Lashbrook’s or Foran’s car in the union parking lot, she simply
assumed that one or both must have driven to the meeting in the
Morowske van. Thus, the Respondent could not possibly have
relied on this alleged written report from Schwark as a grounds
for discharging Lashbrook or Foran for misuse or misappro-
priation of the Morowske van. Further, the assertion in General
Counsel’s Exhibit 33 attributed by the Respondent to Schwark,
that the Morowske van was at the union meeting on April 4,
was, as noted, disputed not only by Lashbrook and Foran, but
also by the other employees who attended the meeting and who
testified in this proceeding. Nor can the Respondent rely on
anything contained in General Counsel’s Exhibit 33 to justify
the discharges, for that document, as previously discussed and
found, is unreliable and untrustworthy and has no evidentiary
value. It is not even clear, for example, if General Counsel’s
Exhibit 33 was indeed prepared by Schwark. Nor is there any
evidence, other than Davis’ own suspect and questionable tes-
timony, to show that Schwark orally informed Davis about
seeing the van at the union meeting. Schwark, as noted, was
not called to testify on these matters despite Respondent’s rep-
resentation at the start of the hearing that it intended to call her
as a witness.
In sum, there is no credible evidence to show that the Re-
spondent was notified by Schwark that Lashbrook and Foran
drove to the April 4 union meeting in the Morowske van, for
even if General Counsel’s Exhibit 33 could be considered a
reliable and trustworthy document, Lashbrook and Foran, as
noted, credibly denied doing so, and Schwark was not called as
a witness to refute their claims. Further, the claim in General
Counsel’s Exhibit 33, allegedly made by Schwark, that the
Morowske van was at the union meeting, was credibly disputed
by other employee witnesses at the hearing. Finally, even if
General Counsel’s Exhibit 33 were deemed credible enough to
be entitled to some weight, and it is not, it would not support
the Respondent’s claim, for General Counsel’s Exhibit 33, as
noted, does not say that Lashbrook and Foran were seen driving
the Morowske van to and from the union meeting, only that
Schwark presumed they had done so because she failed to no-
tice their private vehicles in the union parking lot. Accord-
ingly, the Respondent’s claim that Lashbrook and Foran im-
properly used the Morowske van to attend the April 4 union
meeting is baseless and devoid of record support. Its assertion,
therefore, that it discharged Lashbrook and Foran, in part, for
doing so, is rejected as without merit and as nothing more than
a pretext.
The Respondent next argues that to cover up their miscon-
duct in driving the Morowske van to the April 4 union meeting,
Lashbrook and Foran falsified several documents to reflect that
they used the van on April 4, to take Dugal to a doctor’s ap-
pointment, not to go to the union meeting. In support of its
claim, the Respondent contends that Lashbrook and Foran both
admitted during their respective April 14 interviews to taking
Dugal to the doctor on April 4, even though the record makes
clear, and indeed the parties’ stipulated, that no such appoint-
ment occurred that day. There are several problems with the
Respondent’s argument.
First, there was no need for Lashbrook and Foran to hide
what the Respondent contends was their misconduct in taking
the van to the union meeting because, as found above, that al-
leged misconduct never occurred. Further, Lashbrook and
Foran credibly denied telling Prevatt and/or Davis during their
interviews that they took Dugal to the doctor on April 4. Pre-
vatt’s and Davis’ claim that both Lashbrook and Foran admitted
during their interviews having done so was, as found above, not
credible. Nor can the Respondent rely on Respondent’s Exhib-
its 7 and 32 to support its claim that Lashbrook and Foran ad-
mitted going to the doctor on April 4. For the reasons previ-
ously discussed, there are simply too many inconsistencies and
discrepancies regarding the accuracy and reliability of Respon-
dent’s Exhibit 7 to warrant giving it any weight. As to Respon-
dent’s Exhibit 32, Davis’ notes, the entries therein for
Lashbrook make no mention of Lashbrook having been asked
about a doctor’s visit on April 4, or an admission by Lashbrook
that she took Dugal to the doctor on that day. The entries in
Respondent’s Exhibit 32 reflecting Foran’s interview, however,
does show Foran describing her activities for April 4, and an
entry reflecting a visit by her and Lashbrook to the doctor that
day.
As previously discussed, Foran insisted at the hearing, con-
trary to the entry in Respondent’s Exhibit 32, that at no time
was the date of April 4 mentioned to her during her interview,
and that she simply assumed Prevatt was asking her about the
April 7 doctor’s visit she and Haack took Dugal to on that day.
I resolve this obvious discrepancy between Foran’s testimony
and the entry in Respondent’s Exhibit 32 in Foran’s favor.
Davis, as noted, readily admitted that her interview notes are
incomplete and do not reflect everything that was said during
the employee interviews. As such, Respondent’s Exhibit 32
does not accurately reflect the substance of all that transpired
during the interviews, including, presumably what was or was
not asked of Foran during her interview. Further, Davis, as
already discussed, was not a particularly credible witness.
Given her own unreliability as a witness, her admission that
Respondent’s Exhibit 32, her interview notes, is incomplete and
does not contain all that transpired during Foran’s and the other
employees’ interviews, and the various inconsistencies between
Davis’ testimony at the hearing and the contents of Respon-
dent’s Exhibit 32,29 I find that the entry in Respondent’s Ex-
hibit 32 showing Foran describing her activities for April 4, as
including a trip to the doctor, not to be accurate. I find instead,
as testified to by Foran, that she, like Lashbrook, was never
asked by Prevatt or Davis if she had taken Dugal to the doctor
on April 4, and that the statement attributed to her in Respon-
dent’s Exhibit 32 about a visit to the doctor pertained to
Dugal’s April 7 appointment.

29 By way of example, Davis’ claim at the hearing that Foran during
her interview refused to admit having the keys to the Morowske Home
is found nowhere in R. Exh. 32. Nor is her claim at the hearing that
Abrakian denied removing a copy of the budget from the Home found
in R. Exh. 32.
INTER-DISCIPLINARY ADVANTAGE 509
The Respondent also points to what it contends were altera-
tions or falsifications of certain Morowske Home documents as
proof that Lashbrook and/or Foran engaged in a deliberate de-
ception regarding their activities on April 4. There are, to be
sure, certain discrepancies regarding entries found in some
Morowske Home documents which tend to show that Dugal
was taken to the doctor on April 4, even though it is clear no
such visit occurred. Nevertheless, the Respondent has not
demonstrated that either Lashbrook or Foran doctored, or were
in any way responsible for, falsifying these questionable docu-
ments. The credible evidence of record makes clear that at no
time prior to their discharges were Lashbrook or Foran shown
the documents in question or given an opportunity to see or
explain the entries. Prevatt’s assertion at the hearing, that both
Lashbrook and Foran were presented with some of these docu-
ments, as previously discussed, was denied by Davis and un-
dermined by Romain’s testimony, and patently false. Rather,
the evidence makes clear that the Respondent simply assumed
that Lashbrook and/or Foran had falsified documents without
questioning them about it. The failure to give an employee an
opportunity to explain the circumstances for which he or she is
being disciplined or discharged supports a finding of pretext.
Diamond Electric Mfg. Corp., 346 NLRB 857, 861 (2006); La
Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002).
Indeed, some of the suspect entries relied on by the Respon-
dent on the documents in question could reasonably have been
explained. Pettyplace, for example, concluded that Lashbrook
and/or Foran had falsified the van log on April 4, by recording
their destination information in advance of their trip that day, in
contravention, she contends, of company policy. Pettyplace’s
assertion, however, was disputed by Davis, who testified that it
is the practice of employees to complete the destination infor-
mation called for in the van log before embarking on the trip.
Respondent’s additional claim, for example, that Lashbrook
and Foran had gone to the union meeting on company time on
April 4, is patently untrue, for both Lashbrook and Foran credi-
bly testified to having asked, and receiving permission from,
their Supervisor Haack to leave work early that day, e.g., at 11
a.m. Haack, who could have explained this to Pettyplace, Pre-
vatt, or Davis, was never given an opportunity to do so, even
though she too was present for the April 14 interviews. The
Respondent’s failure to question Haack about this and other
matters relating to its investigation of the April 4 events, like its
failure to question the alleged discriminatees about the disputed
documents, further reflects an unwillingness on its part to get at
the truth. Indeed, its conduct in this regard, coupled with
Davis’ and Prevatt’s testimony suggesting their belief, prior to
the April 14 interviews, that documents had been falsified and
that Lashbrook and/or Foran were the guilty parties, strongly
indicates that the Respondent may have made up its mind to
discharge Lashbrook and Foran before the April 14 interviews,
and that the interviews were designed to provide it with some
cover in the event the discharges were subsequently challenged.
The interviews themselves, as gleaned from Prevatt’s descrip-
tion of how she approached and conducted them, was more
inquisitorial in nature, rather than an honest attempt to ascertain
what occurred on April 4, and how or why the documents in
questioned were altered.
Further, there, with respect to Lashbrook, the claim, raised
for the first time at the hearing by Pettyplace, that her discharge
was also based on the writeup issued to her on April 8, for not
recording in the med sheet that Dugal had been prescribed
Senokot during his doctor’s visit. This additional reason for
Lashbrook’s discharge appears to have been an afterthought, as
it was never mentioned in Lashbrook’s discharge letter as a
ground for termination. As previously discussed, an em-
ployer’s shifting explanation for disciplinary action taken sup-
ports an inference of pretext. See GATX Logistics, Inc., supra,
and other cases cited in connection with Abrakian’s discharge.
As to Foran, the Respondent, as noted, also cited as a ground
for her discharge Foran’s alleged failure to admit during her
interview to having the keys to the Morowske Home. How-
ever, no credible evidence was produced to show that Foran
indeed refused to admit possessing the Morowske Home during
her interview, rendering the Respondent’s claim in this regard
as patently false. As noted, where an employer’s stated reason
for a discharge is found to be false, a finding is warranted that
the reason given is nothing more than a pretext designed to hide
another unlawful motive. Pontiac Care & Rehabilitation Cen-
ter, supra.
Finally, the Respondent, on brief (R. Br. 29, fn. 5), cites
Foran’s alleged failure to report a recent drunk driving convic-
tion, as required by policy, as also “grounds for her termina-
tion.” Again, this particular argument was never cited in
Foran’s discharge letter as a basis for her termination. Further,
while Foran was questioned about it at the hearing, Pettyplace
never asserted this in her testimony as a reason for Foran’s
termination. Rather, the argument is being raised for the first
time in the Respondent’s brief. This post hoc attempt by the
Respondent on brief to support its discharge of Foran by raising
a new reason not previously raised supports a finding that the
reason cited is nothing more than a pretext. As previously dis-
cussed, an employer’s shifting explanation for a discharge, or,
as here, its post hoc attempt to rationalize such a decision, are
suggestive of a pretext. Aljoma Lumber, Inc., 345 NLRB 261
(2005). Nor can the Respondent simply cite this reason to
show that it could have discharged Foran for allegedly failing
to report a drunk driving incident, for an employer cannot meet
its burden under Wright Line simply by pointing to a potentially
legitimate reason for its adverse action. Rather, it must demon-
strate that it, in fact, relied on a nondiscriminatory reason for its
actions. Diamond Electric, supra at 863; Riverboat Services of
Indiana, Inc. supra.
In sum, I find that the reasons cited by the Respondent for
discharging Lashbrook and Foran on April 25, are mere pre-
texts. As such, the Respondent has not rebutted the General
Counsel’s prima facie showing that Lashbrook and Foran were
in fact discharged for their union activity. Accordingly, I find
that Lashbrook’s and Foran’s discharges were unlawful and
violated Section 8(a)(3) and (1) of the Act, as alleged.
c. Bibbee’s discharge
According to the Respondent, Bibbee was lawfully dis-
charged after being caught by Davis sleeping on the job on June
10. While not disputing that Bibbee was caught sleeping on the
job, the General Counsel nevertheless contends that the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD510
spondent simply used this particular misconduct by Bibbee as a
pretext to rid itself of another union adherent, rendering the
discharge unlawful. That Bibbee was a union supporter is not
disputed, for she too attended the April 4 union meeting, and
signed a union authorization card. Nor can it be disputed that
the Respondent knew of her above activity, for the April 11
letter, which the Respondent contends was written by Schwark,
identifies Bibbee as being in attendance. The Respondent, as
previously discussed, harbored animosity towards the Union
and its supporters. In these circumstances, I find that the Gen-
eral Counsel has a made a prima facie showing sufficient to
support an inference that Bibbee’s discharge was discriminato-
rily motivated, if not wholly at least in part, by antiunion con-
siderations. Accordingly, the burden shifts to the Respondent
to demonstrate that it would have discharged Bibbee even if she
had not been a union supporter. The Respondent has met that
burden here.
As noted, the Respondent maintains a policy strictly prohib-
iting employees from sleeping while on duty, which Bibbee
acknowledged being familiar with. With the exception of one
instance cited by the General Counsel in support of a disparity
of treatment claim, the Respondent has, in the past, discharged
employees for engaging in similar misconduct, e.g., sleeping on
the job. (See R. Exh. 36.) The record, for example, shows the
following former Morowske Home employees were discharged
for sleeping on the job: Jeremy Thomson, discharged on April
30, 2004; Pha Swanson, discharged April 30, 2004; and Kas-
sandra Johnson, discharged on January 6, 2000. Further, as
evidenced by the numerous other terminations listed in Re-
spondent’s Exhibit 36, the Respondent’s “no sleeping on the
job” restriction has been applied to Respondent’s other homes.
In sum, Bibbee’s discharge for sleeping on the job, which she
admits doing and which she herself believed would result in her
termination, was consistent with the Respondent’s established
practice.
The General Counsel, however, claims that Bibbee was dis-
parately treated vis-à-vis Jenkins for the same misconduct, that
the only distinction between the two is that Bibbee was a union
supporter while Jenkins was not, and that this disparity of
treatment warrants an inference that Bibbee was terminated for
her union sympathies. The General Counsel contends that the
Respondent simply and conveniently seized on Bibbee’s mis-
conduct of sleeping on the job as a way of masking its true
motive for the discharge, and that the reason given amounts to
nothing more than a pretext. It is true that Byrd, as found
above, reported seeing Jenkins asleep on two separate occa-
sions in April, and that, upon reporting these incidents to Davis,
was told about 1 week later by Davis to essentially ignore Jen-
kins’ conduct because Jenkins was apparently tired from work-
ing double shifts. While Davis’ response to these reported
incidents are troubling and might suggest a disparity in treat-
ment, I remain unconvinced from this single apparent aberra-
tion in the Respondent’s strict adherence to its no sleeping pol-
icy that Bibbee would not have been terminated but for her
union activity. I note in this regard that the facts surrounding
the Jenkins sleeping incident are somewhat different from the
incident involving Bibbee. In Bibbee’s case, Jenkins was
caught napping by Davis herself, a fact which, I am convinced,
would have been sufficient to sustain the discharge. Jenkins,
on the other hand, was observed only by Byrd, another em-
ployee, sleeping on the job. Pettyplace testified that the Re-
spondent will not discharge an employee for sleeping on the job
based on the report of a single employee, explaining that this is
to prevent a false accusation from being made for personal
reasons or animosity. (Tr. 906–907.) Pettyplace’s testimony in
this regard is accepted as true, particularly since there is evi-
dence in the record of an employee having been discharged
after being caught sleeping on the job by a Home supervisor
only. Accordingly, I find that the Respondent has effectively
rebutted the General Counsel’s prima facie case, and that Bib-
bee was lawfully discharged for sleeping on the job and not for
engaging in union activity. I shall therefore recommend dis-
missal of this particular complaint allegation.
CONCLUSIONS OF LAW
1. The Respondent, Inter-Disciplinary Advantage, Inc., is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. By maintaining an overly broad confidentiality rule that
restricts employees in the exercise of their Section 7 rights, by
creating the impression that it was keeping its employees’ un-
ion activities under surveillance, by threatening to discharge
employees who engage in union activity, coercively interrogat-
ing employees about the union activities, by prohibiting em-
ployees from talking about the Union at the workplace while
allowing other nonwork-related discussions, by soliciting and
implicitly promising to remedy employee grievances, by coer-
cively interrogating employees about discussions they may
have had with Board agents, and asking that employees provide
them with copies of affidavits given to the Board, the Respon-
dent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
4. By terminating the employment of employees Kelly
Lashbrook, Linda Foran, and Marie Abrakian for engaging in
union activities, the Respondent has violated Section 8(a)(3)
and (1), and Section 2(6) and (7) of the Act.
5. Except as set forth above, the Respondent has not engaged
in any other unfair labor practices that were alleged in the com-
plaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
To remedy its discriminatory discharge of employees
Lashbrook, Foran, and Abrakian, the Respondent shall be re-
quired to offer them reinstatement to their former or substan-
tially equivalent positions if their former positions no longer
exist, and to make them whole for any loss of earnings and
other benefits they may have suffered, to be computed on a
INTER-DISCIPLINARY ADVANTAGE 511
quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest on such
amounts as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). It shall also be required to remove from its
files any and all references to their unlawful discharges, and to
notify each of them in writing that it has done so and that their
discharges will not be used against them in any way.
Further, the Respondent will be required to rescind and not
give effect to its overly broad confidentiality statement, and to
post an appropriate notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, Inter-Disciplinary Advantage, Inc., Mid-
land, Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining and giving effect to its overlybroad confi-
dentiality statement, prohibiting employees from talking about
the Union while allowing other nonwork-related discussions by
employees, creating the impression that employees’ union ac-
tivities are being kept under surveillance, threatening to dis-
charge employees who engage in union activities, coercively
interrogating employees about their union activities, soliciting
and implicitly promising to remedy employee grievances, inter-
rogating employees about discussions they may have had with
Board agents, and requesting that employees provide them with
affidavits they may have given to the Board.
(b) Discharging or otherwise discriminating against employ-
ees Kelly Lashbrook, Linda Foran, Marie Abrakian, or any
other employee for supporting International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), AFL–CIO, or any other union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind and cease giving effect to its confidentiality
statement.
(b) Within 14 days from the date of the Board’s Order, offer
Kelly Lashbrook, Linda Foran, and Marie Abrakian full rein-
statement 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 they previously en-
joyed.
(c) Make Kelly Lashbrook, Linda Foran, and Marie
Abrakian 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.

30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Kelly Lashbrook, Linda Foran, and Marie Abrakian, and within
3 days thereafter, notify them in writing that this has been done
and that their discharges will not be used against them in any
way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its
Morowske Home facility in Macomb County, Michigan, copies
of the attached notice marked “Appendix.”31 Copies of the
notice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 2005.
(g) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

31 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.”