NORTHFIELD URGENT CARE LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 30, 2011

18-CA-019755 (N.L.R.B. Sep. 30, 2011)

JD–58-11
Northfield, Minnesota
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NORTHFIELD URGENT CARE, LLC
and Case 18-CA-19755
JENNIFER GROSSMAN,
an individual
Catherine L. Homolka, Esq., and
James L. Fox, Esq., for the General Counsel.
Jonathan K. Reppe, Esq., of Northfield,
Minnesota, for the Respondent.
Jennifer L. Grossman, of Shakopee,
Minnesota, Charging Party.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Minneapolis,
Minnesota, on July 13, 2011.1 The charge was filed April 13, and amended on May 16. The
complaint issued on May 31.
The complaint alleges that the Employer, Northfield Urgent Care, LLC, engaged in a
series of violations of the Act consisting of prohibiting employees from discussing their terms
and conditions of employment with each other; conducting unlawful interrogations of employees;
creating an impression that employees’ activities were under surveillance by the Employer;
engaging in actual surveillance of employees’ protected activities; threatening employees with
sanctions due to their participation in protected activities; imposing such sanctions due to those
activities; and maintaining and enforcing a rule in its handbook that prohibits employees from
discussing their salaries with other employees. Most significantly, the complaint further alleges
that the Employer demoted and terminated an employee, Michael Borucki, and terminated a
second employee, Jennifer Grossman, because those employees had engaged in protected
concerted activities. Each of these actions is alleged to have violated Section 8(a)(1) of the Act.
On June 14, the Employer, through its counsel, filed an answer to the complaint
admitting certain of the factual allegations relating to several alleged violations. In particular, the
answer admitted that Borucki was given an unfavorable evaluation, disciplined, demoted, and
ultimately discharged and that Grossman was disciplined twice and ultimately discharged.

1 All dates are in 2011 unless otherwise indicated.
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(See, GC Exh. 1(g), R. answer, at pars. 15, 16, 23, 28, 30, 32, and 35). The answer also
admitted that the Employer conducted an interrogation of an employee on February 8. (See GC
Exh. 1(g), R. answer, at par. 33.) Finally, the answer admitted that the Employer has
maintained and enforced a confidentiality rule in its handbook that prohibits employees from
discussing their compensation with other employees. (See GC Exh. 1(g), R. answer, at par.
36.) All other material allegations of the complaint were denied.
For the reasons I will describe in detail in this decision, I find that the Employer did
commit a series of unfair labor practices of the types alleged in the complaint. Among those
violations of the Act were the disciplinary actions taken against Borucki and Grossman,
including their terminations. I have also concluded that the Acting General Counsel failed to
meet his burden of proof in establishing several other violations, including those related to
allegedly unlawful surveillance and the creation of an impression of such surveillance.
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
Findings of Fact
I. Jurisdiction
The Respondent, a limited liability corporation, operates a medical clinic providing urgent
care and occupational health services at its facility in Northfield, Minnesota, where it annually
derives gross revenues in excess of $500,000; purchases and receives at its Northfield facility
goods and supplies valued in excess of $50,000 from suppliers located within the State of
Minnesota which, in turn, purchase those goods and supplies directly from points located
outside the State of Minnesota; and provides services valued in excess of $50,000 to customers
located within the State of Minnesota which, in turn, purchase goods and services valued in
excess of $50,000 directly from suppliers located outside the State of Minnesota.
The Respondent admits3 and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Although not specifically alleged in the
complaint, I also find that the Respondent is a health care institution within the meaning of
Section 2(14) of the Act.4
II. Alleged Unfair Labor Practices
A. The Facts
In April 2009, Kevin J. Bardwell, M.D., founded Northfield Urgent Care, LLC, as a
limited liability corporation licensed in the State of Minnesota and located in Northfield. As

2 I found the transcript of the testimony to be remarkably accurate. No corrections are
necessary. I do note that the hard copy provided to me contains a duplicating error that omits
parts of the testimony at page 42. Because the Board now requires the preparation of
electronic copies of its transcripts, I was able to download that defective page and have placed
a complete copy beside the incomplete original.
3 See GC Exh. 1(g), R. answer, pars. 3, 4, 5, and 6, admitting all of the pertinent factual
allegations that form the necessary predicate to a finding of jurisdiction.
4 In particular, the uncontroverted evidence clearly establishes that the Respondent is a
“health clinic” that is “devoted to the care of [the] sick” as defined in that subsection of the Act.
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described in its handbook, the Company operates a “free-standing, walk-in medical office that
provide[s] quick, efficient, and quality Urgent Care and occupational health services.” (Jt. Exh.
2, p. 1.) It currently employs approximately 10 persons, who are under the supervision of its
owner, Dr. Bardwell.
In order to understand some of the issues in this case, it is necessary to outline the
nature of the Employer’s routine operations. Four persons staff the clinic during each shift. The
first employee that a prospective patient encounters is the receptionist. That staff member is
stationed at the front desk. As described by Wanita Parker, the manager of the front desk
operation, the receptionist’s key duty is to register incoming patients. This involves the creation
of a medical chart that is used to document the patient’s treatment at the clinic. Typically, the
registration process takes approximately 20 minutes. Receptionists have some discretion to
short circuit this process if they perceive the incoming patient to be in distress. In such
circumstances, they can take the patient to the so-called “trauma room” where the patient can
be evaluated immediately. Use of this expedited procedure is relatively rare as it is reserved for
such emergency situations as those involving chest pain or bleeding.
After being registered by the receptionist, an incoming patient is placed in an
examination room. The second employee that such a patient would ordinarily encounter is the
nurse. It is the nurse’s duty to take the patient’s vital signs and elicit and record such
information as the patient’s medications and allergies. After that, the patient is examined by the
medical provider that is on duty. Dr. Bardwell testified that the medical providers employed by
the clinic consist of either physicians, physician’s assistants, or nurse practitioners. The
provider takes the patient’s history, performs a physical examination, makes a diagnosis, and
provides treatment.
The remaining employee on each shift is a radiology technician. In the event that the
provider determines that an x-ray is required to assist in diagnosis, the patient is taken to the
technician’s room where the necessary equipment is located. After taking the x-ray, the
technician makes the resulting study immediately available to the provider. The technician also
performs other duties, including participation in the clinic’s occupational health services such as
drug testing.
As one would expect, the work processes performed by the four employees are not
mechanical and their workday varies depending on the number of patients and their presenting
medical problems. This was well-described by Sandra Landon, the clinic’s nurse manager. As
she explained:
With the type of practice we have, it’s either feast or famine: we’re
either running or there’s no one there. If there is no one there and
our work is done, we can take a break, we can converse, we can
do what we need to do.
(Tr. 151.)
Turning now to the persons most involved in the controversies presented in this case,
Dr. Bardwell, as the clinic’s owner, retains ultimate management authority as to all of the clinic’s
operations. He also serves as one of the clinic’s medical providers. The parties are in
agreement that he is a supervisor within the meaning of the Act. His wife, Kim Bardwell, is an
employee of the clinic, serving as one of its receptionists. While she is not alleged to be a
supervisory employee, the parties are in agreement that she is an agent of the Employer within
the meaning of the Act. (See, GC 1(e), complaint at par. 3(b), and GC 1(g), R. answer at par.
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9.)
Michael Borucki was hired by the clinic in April 2009 to serve as a radiation technologist.
In March 2010, Borucki received a new set of job duties. As he explained, he was assigned “to
do sales and marketing as well as [being] the radiology technologist.” (Tr. 74.) In particular, his
new duties consisted of soliciting “local companies to send their occupational health services to
Northfield Urgent Care.” (Tr. 74.) He testified that he devoted 20 to 30 hours per week to the
marketing work, including weekly meetings with Bardwell to discuss this aspect of his work. His
combined duties took approximately 45 hours per week. As part of this redesign of his job,
Borucki was transferred from an hourly pay classification to a salaried position.
In his own testimony, Dr. Bardwell confirmed the nature of this alteration in Borucki’s job
description in 2010. He reported that he gave Borucki this “promotion” that “almost doubled his
salary.” (Tr. 222.) As Bardwell succinctly explained, “[Borucki] continued to work his radiology
technician position but also took on sales and marketing for the clinic.” (Tr. 222.)
In January 2010, Bardwell hired Jennifer Grossman, a physician’s assistant. As she
explained, her work consisted of, “being the medical provider in an urgent care setting.” (Tr.
23.) She worked twelve-hour shifts that always included three weekdays per week. In addition,
she worked another shift on alternate weekends.
Finally, Gina Ledman was hired at the inception of the clinic’s operations in 2009. She is
a licensed practical nurse and her job duties were to serve as the clinic’s staff nurse during her
shifts. Her employment at the clinic was interrupted in May 2010 because she resigned after a
dispute with Bardwell. She resumed her duties as a nurse for the clinic in the following
September.
Our nations’ recent economic history has resulted in the unfortunate reality that current
labor law litigation often takes place against a backdrop of financial distress. Such was the case
here. Dr. Bardwell testified that, beginning in November 2010, the volume of patients was lower
than one would have expected and, as a result, “the clinic was struggling a bit.” (Tr. 221.)
Faced with declining revenue, Bardwell met with his bookkeeper and with a consultant
experienced in urgent care operations to develop a plan to address the shortfall. They
discussed various alternatives including layoffs, cross-training to permit employees to perform
multiple job duties, alteration in the clinic’s hours of operation, and cuts in employees’ benefit
programs. Ultimately, after these discussions, Bardwell rejected any of these possible solutions
and decided to impose an across-the-board pay cut of 10 percent for all employees. He
testified that, in coming to this decision, he clearly recognized that the pay cut was “going to be
a hardship, it’s going to be a tough one to swallow.” (Tr. 221.)
On January 4, Bardwell conducted two evening meetings to announce his decision
regarding the pay cut. He began by convening a “leadership meeting,” with Managers Parker
and Landon, the payroll person, and Borucki. (Tr. 75.) As Borucki testified, Bardwell “discussed
how the clinic wasn’t doing very well and that he had made a decision to give us a 10-percent
pay cut.” (Tr. 75.) Borucki challenged that, asking Bardwell “if there was any alternative to this,
if we could maybe, possibly, look at cutting benefits, possibly the 401(k) match, and he said no,
he didn’t want to do that.” (Tr. 77-78.)
Immediately after the conclusion of the management meeting, Bardwell held a meeting
with all regularly scheduled employees. After first discussing various other topics relating to the
clinic’s operations, Bardwell told the assembled staff that, “the clinic wasn’t doing very well
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financially and, due to that, everybody was going to take a 10-percent pay cut.” (Tr. 170.) He
added that the cut would become effective in 6 days. Under cross-examination by counsel for
the Respondent, Nurse Ledman agreed with counsel’s assertion that, “Dr. Bardwell in that
meeting stat[ed] that he was open to ideas and wanted to hear from people about suggestions
to cut costs at the clinic[.]” (Tr. 189.)
As Bardwell had foreseen, the pay cut proved to be very unpopular among the staff
members. On January 7, Grossman, Borucki, Parker, and Ledman were on duty. During
periods when there was no patient activity, they engaged in discussions about the situation.
Nan Rodgers, an off-duty receptionist, happened to stop by the clinic and joined some of those
discussions. As Grossman described it,
[W]e were just grasping at anything . . . that we could possibly
do to save money so that we wouldn’t have to take a pay cut,
because everyone was basically saying that, you know, we’re
all kind of scraping by as it is and 10 percent is going to be a
big deal.
(Tr. 27-28.) Among the money saving ideas being discussed were ending the Employer’s
match to the 401(k) plan, adding an employee contribution to the health insurance premium,
eliminating the cleaning service, changing the compensation arrangements for the casual
employees, and increasing the number of hours spent by Dr. Bardwell as the clinic’s medical
provider. As Ledman summed up the conversations, “we kind of just brainstormed throughout
the day.” (Tr. 173.)
Among these discussions was one during the lunch hour involving Ledman, Borucki, and
Grossman. At that time, they agreed that nobody was comfortable with the idea of approaching
Bardwell face-to-face to express the views of the employees. As Grossman explained, “we
were worried that that person would [be] targeted.” (Tr. 28.) To avoid this problem, Borucki
raised the suggestion of writing an anonymous letter to Bardwell putting forth the employees’
suggestions for alternatives to what he described as a “drastic pay cut.” (Tr. 78.) They agreed
on this course of action.
On the following day, Grossman undertook the task of drafting the letter to Bardwell.
She indicated that, while laying out the views of the employees, she also “tried to contain the
anger/resentment” felt by the staff. (GC Exh. 3.) On completing the draft, she emailed it to
Borucki and Ledman with a request that they make suggestions and propose changes. In that
email she also reported that she had looked into the requirements for receiving unemployment
compensation and concluded that clinic employees who quit due to the pay cut would be eligible
for benefits because the termination of their employment would have been caused by an action
of the employer.
Ledman provided uncontroverted testimony that, on this date, January 8, she stopped by
the clinic and spoke with the on-duty staff consisting of Stacey Garry, Michelle Stowe, and Dave
Collins. She described what occurred at that time:
[A]s soon as I walked in, everybody asked about what I think
about the pay cut. And I said that I wasn’t happy and that Mike
and Jennie weren’t happy and most everybody else wasn’t
happy. And I told them about the letter and that we were probably
going to write a letter but we didn’t know for sure, you know, if we
should put names on it or whatnot. And they said, “We agree with
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you. . . . Nobody’s happy. We’re not happy either, but we don’t want
to be—we don’t want our names on it.” But they thought it was a
good idea to write the letter.
(Tr. 174-175.)
On the next day, Ledman replied to Grossman’s email with a rather acerbic missive.
She began by telling Grossman that, while the draft “looks great,” she thought it was actually
“too nice.” (GC Exh. 3.) She also discussed the possibility of collecting unemployment benefits
but worried that Bardwell would be able to thwart this plan. However, she ultimately opined that,
“I doubt he’d be smart enough to figure out” how to avoid paying unemployment benefits. (GC
Exh. 3.)
Grossman and Ledman had sent copies of their email exchange to Borucki’s email
account at the clinic. He testified that he read Grossman’s draft letter to Bardwell on January 10
and that, “it looked good to me. I didn’t have anything to add.” (Tr. 81.) He told Grossman that
he was satisfied with the language of the draft and that she should send the letter to Bardwell.
Having secured the approval of Ledman and Borucki, Grossman “put the letter in a
sealed envelope on [Bardwell’s] desk.” (Tr. 31.) Bardwell testified that he found it there on
January 12. A review of the contents of the letter reveals that it was an articulate expression of
the staff’s unhappiness with the pay cut, coupled with an effort to suggest specific alternatives.
Thus, Grossman began by noting that the employees “enjoy working here,” but had “serious
concerns” about the pay cut. (GC Exh. 2.) She went on to express an understanding that the
clinic was “financially in distress,” but asserted that “other alternatives outside of cutting our
wages . . . should be exhausted first.” (GC Exh. 2.) She then set out four specific proposals for
reducing the clinic’s operating expenses along the lines that had been discussed among the
employees. She concluded by asking Bardwell to “please take our suggestions under
advisement,” noting that the staff would also be “happy to sit down together as a collective
group and brainstorm or participate in ways to help this clinic save money—other than cutting
wages.” (GC Exh. 2.) The letter was signed as being from, “The Concerned NUC Staffers.”
(GC Exh. 2.)
It should be noted that the letter was sufficiently pointed to warn Bardwell that, “in order
to maintain our quality of life we may be forced to find employment elsewhere,” and also
sufficiently critical as to advise him that “we are frustrated that such a drastic decision was made
without our input, on extremely short notice, and without exhausting other avenues of revenue
saving.” (GC Exh. 2.) Nevertheless, I find it clear that the tone of the letter was, at all times,
respectful and civil. Grossman took pains to express the staff’s desire “to continue working here
and help make this a successful clinic,” while indicating that nobody preferred the alternative of
seeking other employment. (GC Exh. 2.)
Bardwell testified as to his immediate reaction on reading the letter:
I was upset. Not so much the content of the letter upset me,
because it—I knew there would be some fallout—I mean some
reaction, obviously, with the pay cut—but the fact that it was
anonymous I guess is what upset me the most.”
(Tr. 250.) Bardwell conceded that his response was to conduct a series of meetings with
individual employees.
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Various employees testified that Bardwell did meet with them to discuss the letter.
Borucki reported that he was scheduled to have one of his regular meetings with Bardwell on
January 12. He testified that, at this meeting, Bardwell was “obviously upset” and asked “if I
knew who drafted the letter.” (Tr. 81.) By contrast, Bardwell testified that he never asked
Borucki if he wrote the letter.
As is often true in lawsuits, both of these very highly interested witnesses were
somewhat evasive in describing this conversation. Thus, when Borucki was asked how he
responded to Bardwell’s inquiry regarding authorship of the letter, he reported that he did not
recall his “exact response to that.” (Tr. 81.) Given the stressful nature of the discussion and its
importance to both parties, I find this answer to be unpersuasive and difficult to credit. Similarly,
by reporting that he never asked Borucki if he wrote the anonymous letter, Bardwell engaged in
evasion by failing to address the real issue posed in Borucki’s account. Thus, it will be recalled
that Borucki never claimed that Bardwell asked him if he wrote the letter. Bardwell’s description
of the meeting never addressed the actual question that Borucki claimed he was asked, which
was if he knew who did author the letter.5
Whatever the precise contours of the discussion, I find Borucki’s assertion that Bardwell
interrogated him regarding authorship of the letter is credible and consistent with Bardwell’s own
testimony that he conducted a series of employee meetings about the letter. The reliability of
Borucki’s account is also greatly enhanced by the evidence that I am about to describe
regarding the contents of Bardwell’s other meetings with employees concerning the letter.
Among those other meetings regarding the letter was a conversation between Bardwell
and Nurse Manager Landon in January. Landon testified that Bardwell showed her a copy of
the letter and asked if she knew who wrote it. She reported that she told him that, “it was
probably Jennie, Michael, and Gina.” (Tr. 147.)
Bardwell conducted a particularly telling meeting regarding the letter on January 13. He
was working at the clinic with Nurse Ledman and called her into his office to discuss the pay cut
issue and the anonymous letter. Ledman described their conversation as follows:
[H]e asked me about the conversations from the Friday before and
if I was partaking in any of those. . . . And he told me that these
conversations are toxic and we’re not supposed to be talking about
the pay cut. . . . And then he asked me if I knew about the letter, and
I said that I didn’t. And then he showed me the letter, and—and I
read the letter. And he asked me if I knew who wrote the letter . . .
and I said I didn’t. And then he said that he was upset about the
letter and that he knew that Jennie wrote the letter because it
seemed like her vocabulary or her style of writing or something like
that. And I said that I didn’t know. And then he said that he didn’t
appreciate the anonymous nature of the letter and the fact that
there are threats in the letter.
(Tr. 176-177.) With regard to Bardwell’s final assertion that the letter contained threats, it is

5 This is significant because Bardwell clearly testified that, on reading the letter, he assumed
from the writing style and choice of wording that it had been written by Grossman. Thus, it is far
more likely that Bardwell had asked Borucki if he knew who wrote the letter, rather than asking if
Borucki, himself, had written it. I credit Borucki’s testimony as to this point.
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important to recall that any such “threat” was merely that the employees would seek other
employment. There was nothing in the nature of a personal threat to Bardwell.
Significantly, Bardwell did not dispute any of the details of Ledman’s description of this
conversation. On cross-examination, counsel for the General Counsel inquired as to whether
he had “asked Gina Ledman if she had seen the letter,” to which his terse reply was, “[y]es.”
(Tr. 266.) I credit Ledman’s detailed and uncontroverted account of the contents of the
conversation between them.
It is also undisputed that Bardwell met with Grossman to discuss the letter. On
examination by his own counsel, he was asked if he “ever had a conversation with [Grossman]
specifically asking her if she wrote the letter?” (Tr. 252.) He responded affirmatively.
While there is no doubt that Bardwell interrogated Grossman about the letter, the
testimony and documentary evidence was in conflict about the precise circumstances. For
example, the record contains a corrective action form dated January 14 which purports to be
issued by Bardwell to Grossman. It is characterized as a verbal warning for two disciplinary
issues which are described as, “1) Letter received unsigned, presumably from Jennie re: payroll
deduction 2) ‘toxic talk’ + negativity.” (GC Exh. 5, p. 1.) Grossman is directed to “reduce
‘negativity + toxic talk. (Remove herself from negative discussions) Do not participate!” (GC
Exh. 5, p.1) [All punctuation in the original.] Although the corrective action form has signature
lines for both the employee and the owner, the only signature on it was Bardwell’s.
In addition to this corrective action form, Grossman’s personnel file contained a typed
description entitled, “Discussion with Jennifer Grossman, PA-C.” (GC Exh. 5, p. 3.) This
document is also dated January 14, and it states:
I asked Jennie if she had written the letter, and she said, “I’m not
saying I did and I’m not saying I did not write the letter.”
. . . .
I polled other employees who were present at the meeting wherein
the salary cut was announced, and each person denied writing a
letter. Ms. Grossman was the only employee who did not deny
writing the letter.”
(GC Exh. 5, p. 3.)
Turning to the testimony regarding the events surrounding these documents, Bardwell
reported that he met with Grossman on January 14. Surprisingly, when asked if he issued the
verbal warning to her on that date, he limited his response to a statement that, “I believe so.”
(Tr. 255-256.) Given his authorship of the corrective action document, this seems a peculiarly
vague formulation.
As to Grossman, she vehemently denied meeting with Bardwell or being issued any
discipline on January 14. When asked about the written documentation of such an event, she
stated that the first time she had seen the corrective action form was subsequent to her
termination from employment when she demanded a copy of her personnel file. It was
contained among those papers.
In contrast with the rather puzzling evidence regarding events on January 14, there is no
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dispute in the evidence concerning another meeting between Bardwell and Grossman on
January 18. Grossman testified that she was on duty in the office and Bardwell came in to ask
her, “if I wrote the letter, and I said that I wasn’t going to say whether I wrote it or not, just that I
agreed with what was in the letter.” (Tr. 32.) Regarding the contents of the letter, Bardwell
opined that making suggestions about the Employer’s plans to address a financial shortfall,
“isn’t our place; it’s his place since he’s the owner.” (Tr. 32.)
Grossman’s account of this meeting indicates that Bardwell raised a second topic,
explaining to her that Parker had informed him that, “we were talking about the pay cut.”6 (Tr.
32.) He went on to warn her that:
[I]t’s toxic and it’s negative and that we can’t talk about it, we can
no longer whisper—we, meaning Gina, Mike and myself, can no
longer whisper or go into offices and close the door—that it was
creating a negative environment and that it’s not going to be
tolerated.
(Tr. 32.)
Grossman further recounted that she was unaware that she was being given any form of
discipline arising from this discussion. It was only after she obtained her personnel file that she
discovered that Bardwell had given her a second write-up which was placed in her file.
In fact, the corrective action form that Grossman found in her file for that date serves to
entirely corroborate her testimony regarding this meeting. In the first place, like the similar form
dated January 14, this one has signature lines for both the employee and the owner but is only
signed by Bardwell. It is characterized as a “verbal warning” for the offenses of, “toxic talk—
negativity.” (GC Exh. 4, p. 1.) The form lists five corrective steps that Grossman must take:
“1. No more negativity or ‘toxic talk’ 2. No closed door meetings 3 No whispering 4. Come to
Dr. Bardwell to discuss issues or concerns rather than the staff 5. Walk away from toxic
discussions.” (GC Exh. 4, p. 1.)
What is clear about these interactions between Bardwell and Grossman is that the
overwhelming testimonial and documentary evidence establishes that Bardwell did interrogate
Grossman regarding the authorship of the anonymous letter and did direct her to refrain from
discussions with her coworkers regarding the terms and conditions of their employment.
There can be no doubt that the Employer’s pay cut and the staff’s unhappiness with this
action caused what Landon described as a change in “tone” at the clinic. (Tr. 148.) For
example, Kim Bardwell, the owner’s wife and clinic receptionist, testified that she was assigned
to work with Grossman, Borucki, and Ledman on January 17. It was the first time she had
shared a shift with these three employees. She reported that the staff interactions made it a
“difficult day” for her. (Tr. 205.) Afterward, she told her husband, “about the whispering and
how it made me feel paranoid.” (Tr. 206.) In evaluating her testimony, I found Kim Bardwell to
be a fairminded witness. This was illustrated by her caution in explaining that, “[n]othing that I

6 Bardwell testified that, sometime between January 14 and 18, both Parker and Landon
had told him that Grossman was whispering and speaking behind closed doors for prolonged
periods with Borucki and Ledman. He conceded that he believed that a topic of their
discussions was the pay cut and that he also had concluded that they were the only three
employees engaged in such discussions.
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saw involved patients. But it felt . . . like I was being left out.”7 (Tr. 206.)
On January 19, the day after Bardwell’s meeting with Grossman, he conducted similar
conferences with both Borucki and Ledman. Turning first to Borucki, there is no dispute about
this event. As Borucki described it, Bardwell called him into the office and informed him, “that
there was a lot of toxic talk around the office and negativity and stated that he was going to write
me up for these closed-door meetings and toxic talk.”8 (Tr. 82-83.) Bardwell instructed him,
“not to discuss, have any of these whispering conversations or discussions during work time.”
(Tr. 83.) Ominously, Bardwell added that, “this was going to stop or else.” (Tr. 84.)
In his own testimony, Bardwell confirmed the essential details of his conversation with
Borucki. He agreed that he instructed Borucki to refrain from toxic talk. On cross-examination,
he acknowledged that he had asked Borucki if he had been engaged in discussions about the
pay cut. On hearing this, counsel for the General Counsel posed the following question: “And
after Mr. Borucki admitted he had [been talking about the pay cut], isn’t it true that you then told
him he needed to be above the negativity?” Bardwell replied, “[y]es.” (Tr. 274.)
If any additional corroboration of this event were required, it would be found in the
corrective action form issued by Bardwell to Borucki during the meeting. The reported
disciplinary problem was “toxic talk/negativity.” (GC Exh. 9, p. 1.) The expected improvement
in conduct was, “[n]o more closed door meetings, whispering, or negativity.” (GC Exh. 9, p. 1.)
Most importantly, the form listed specific consequences if there was no improvement. Those
consequences were, “1 Reduction in salary or 2 Change to straight commission for sales
rather than salary.” (GC Exh. 9, p. 1.) [Punctuation in the original.]
Ledman described a very similar meeting with Bardwell on the same day as Borucki’s
session. She testified that Bardwell called her into the office and told her:
that Wanita [Parker] and Kim, his wife, were telling him that we were
whispering and how many times we were whispering each day and
that we weren’t allowed to have whispering conversations because
nobody would know exactly what we were talking about. So he wasn’t
saying that we were talking about the pay cut, but he was saying
that if we were talking about the pay cut nobody would know and so they
felt like they were either being left out of the conversation or they were—
or that we were talking about something that we weren’t supposed to be
talking about.
(Tr. 179.)
The intensity of Bardwell’s concern regarding what he viewed as toxic talk was illustrated
on the next day when he was on duty at the clinic along with Borucki and Ledman. In the
course of the day, he observed Borucki and Ledman conversing at the nurses’ station. Both

7 One can only sympathize with Ms. Bardwell’s awkward position in this situation given the
obvious unhappiness of her coworkers caused by her husband’s decision to impose a
substantial and immediate reduction in their compensation.
8 Counsel for the Employer asked Borucki if he knew what Bardwell meant by toxic talk and
Borucki explained that he “assumed it had to do with, you know, the pay cut, because [Bardwell]
didn’t start really using that term until after the letter, he was given the letter. So I just assumed
that was what he was talking about.” (Tr. 165.)
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employees testified without contradiction that Bardwell chided them, “Come on guys. No toxic
talk.” (Tr. 88.) Ledman told him that they were whispering about a patient’s x-ray results. On
hearing this, Bardwell told them, “Oh well, then you can whisper.” (Tr. 180.)
Borucki also testified regarding another exchange with Bardwell later that day or on the
following day. He reported that Bardwell again warned that, “he didn’t want me to get caught up
in the toxic talk or the negativity that was going around the clinic.” (Tr. 88.) Borucki attempted
to explain that, “the letter was not meant to be negativity, it was supposed to just give
alternatives to the pay cut.” (Tr. 88.) He added that the size of the pay cut was “very drastic.”
(Tr. 88.) In response, Bardwell rolled his eyes and said, “Come on, Mike.” (Tr. 88.) He also
reiterated that he did not want Borucki to become involved in “this toxic talk stuff.” (Tr. 88.) It
should be noted that Bardwell did not dispute the veracity of this testimony.
On approximately the same day as this warning to Borucki, Bardwell had a discussion
with Ledman that offered insight into his evolving response to employees’ disaffection with the
pay cut decision. The conversation began when Bardwell called Ledman into the office. He
asked her to evaluate Borucki’s job performance. He continued with this theme by making
inquiries about Ledman’s own ability to assume some of Borucki’s existing job duties. Next, he
warned her that other employees were reporting continuing “whispering.” (Tr. 181.) He then
made a prediction that he was shortly to effectuate, observing that, “there’s going to be a lot of
changes around here, and, you know, things are going to change pretty soon.” (Tr. 181.) As
with many other key conversations, Bardwell did not dispute Ledman’s account of this
conversation.
On January 26, Bardwell took his first concrete step regarding Borucki’s status with the
Employer. This consisted of the preparation and communication to Borucki of his first-ever
performance review. Thus, although Borucki had been employed by the clinic for 21 months
and had been promoted during the course of those months, he had never before received a
written evaluation.9 Nor was there any evidence that any other employee received such an
evaluation during the same time period. For that reason, I do not credit Bardwell’s rather lame
explanation that January, “happened to be also the month that we started doing the reviews.”
(Tr. 223.) Instead, I credit Borucki’s testimony that, during the course of presenting him with his
evaluation results, Bardwell told him that, “he was tired of the toxic talk and the negative
atmosphere in the clinic and that it needed to stop.” (Tr. 91.) I conclude that this statement
reveals that actual motivation for the performance evaluation.
My conclusion regarding the motivation for the performance evaluation is underscored
when one examines its contents. Generally speaking, the scores assigned by Bardwell to
Borucki’s job performance are consistent with a satisfactory report. The only major criticism
was an admonition that Borucki, “needs to work on appropriate staff interaction (i.e. losing
temper) + not getting involved in ‘toxic talk’ or negativity.” (GC Exh. 10, p.4.) In my view, this
reflects the actual focus of Bardwell’s concern and the true reason for the issuance of the
evaluation at this particular stage in Borucki’s career.
Although I have concluded that the essential motivation for the issuance of this
evaluation was in response to Borucki’s activities related to the pay cut, it is necessary to review
the remainder of the evaluation as it will serve to shed important light on the motivation for other

9 It should be noted that Borucki was hired in April 2009 and was promoted to his current
position in March 2010. Thus, a performance evaluation in January 2011 did not coincide with
any sort of anniversary date.
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actions taken against Borucki. In particular, it is important to examine Bardwell’s recorded
perceptions regarding all areas of Borucki’s performance, keeping in mind that Bardwell chose
to terminate Borucki’s employment just 11 days later. It will be seen that there is nothing in his
rating of Borucki that hints at such an outcome less than a fortnight in the future.10
Borucki’s evaluation form notes that he has two separate job duties, “Marketing Support
Specialist” and “Radiation Supervisor.” (GC Exh. 10, p. 1.) In proceeding to provide ratings for
specific job functions within these two broad categories, Bardwell offered penetrating insight into
his opinion regarding certain of Borucki’s duties that will figure in his later efforts to justify
Borucki’s discharge. For example, Borucki was assessed as having met his job requirements in
the area of recruiting new businesses for the clinic and met requirements, “with commendations”
for making telephone contacts with corporate clients. (GC Exh. 10, p. 3.) His compliance with
company policies was found to consistently exceed requirements, and his attendance was
determined to be in compliance with company rules. His was also found to be consistently in
compliance with such broad evaluation categories as, “[u]se of work time and availability;
organization of work, follow through, productive use of time; attendance, timeliness, use of
breaks.” (GC Exh. 10, p. 5.) As to his work in the radiation department, the evaluation
concludes that, “Mike does a great job supervising the Radiology Dept.” (GC Exh. 10, p. 4.)
Finally, Borucki’s overall score is expressed as, “Consistently Meets Requirements.” (GC Exh.
10, p. 9.)
Numerous witnesses testified at length regarding events that took place during the work
shift on January 31. The complement of employees that day consisted of Grossman as medical
provider, Ledman as nurse, Borucki as radiation technician, and Kim Bardwell as receptionist.
Significantly, this was Ledman’s last day at work as she had tendered her resignation
approximately a week earlier. Grossman planned to commemorate Ledman’s departure by
bringing three slices of cheesecake to work.
The testimony of all concerned, indicates that the behavior of Grossman, Ledman, and
Borucki proved to be frustrating and hurtful to Kim Bardwell. As indicated by the lack of a fourth
piece of cake, she was clearly excluded from the social aspect of the work environment on that
date. As she put it, “the whole day was difficult.” (Tr. 202.) I have already observed that Ms.
Bardwell was a careful witness, even when reporting events that had aroused her ire. Her
concern with accuracy was illustrated in her description of what she felt that day:
[W]henever they didn’t have a patient that they were working
with, [they] were either congregating in the nurses’ station or
congregating in the break room with the door shut. . . . [T]he
whole day, I just felt left out. I felt like I was being ignored,
unless it had—you know, unless it was work-related.
(Tr. 202.) She confirmed that, among her attempted responses to this exclusionary behavior,
she “tried to get as close to them as you could to listen.” (Tr. 207.) [Counsel for the General

10 I recognize that there could certainly be circumstances where an employer would give a
good rating to an employee and then discharge that employee immediately thereafter. For
instance, an otherwise competent employee could be caught engaging in embezzlement shortly
after receiving a satisfactory job evaluation. Thus, it is important to note that there is no claim
that Borucki engaged in some substantial, hitherto unknown, form of misconduct that
superseded the overall satisfactory performance rating that Bardwell awarded him mere days
prior to his abrupt termination.
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Counsel’s phrasing.]
Borucki, Grossman, and Ledman’s cliquish behavior and Kim Bardwell’s angry and
distressed reaction to it, culminated in a controversy regarding the treatment of a patient who
arrived at the clinic later that day. Matters began when this patient called the clinic, stating that
he had smashed his hand in a car door. He was concerned both about the injury and about the
cost of treatment. Bardwell went to find the medical staff in order to get an estimate from them
as to the costs of care. She encountered them in the break room and described the patient’s
inquiry. She testified that Grossman told her that the patient would need an x-ray. In testimony
that includes a further insight into her sense of hurt, Bardwell reported that, “she didn’t give me
any more information; they were busy.” (Tr. 197.) Bardwell computed the fees for a clinic visit
and x-ray and gave the patient the resulting total as the cost estimate for the treatment.
Ten minutes later, the patient arrived at the clinic in the company of his girlfriend. There
appears to be no doubt that the patient’s presentation was highly unusual. As Bardwell
explained, he was “very upset” and “talking loudly.” (Tr. 198.) Although the waiting room had
been empty prior to the patient’s arrival, other patients came in shortly thereafter. Bardwell
decided to place the finger injury patient in the trauma room. She conceded in her testimony
that she did not do this out of concern for his medical condition, but rather due to his loud
conduct and unusual demeanor. Indeed, she agreed that she could not observe his injury at all
since he was holding his injured finger in his other hand. She asked him if it was bleeding and
he reported that it was not. After placing the patient in the trauma room, she gave his girlfriend
the paperwork to complete since his hand was incapacitated.
At this point, Bardwell returned to the break room where she found the other three staff
members eating the cheesecake.11 Nursing hurt feelings and having just dealt with a difficult
patient, Bardwell entered the break room appearing, in Grossman’s words, “irate.”12 (Tr. 53.)
She told the staff, “There’s a patient in the trauma room. You guys need to get up and get back
to work.” (Tr. 53.) Grossman interjected, “Wait. Stop . . . . Why is he in the trauma room?” (Tr.
53.) She explained that she posed this question to Bardwell, “because I needed to know what I
was going to be walking into. Is this a chest pain? Is that a DVT [deep venous thrombosis]?
What is this?” (Tr. 53.) Bardwell responded that she placed him in the trauma room because
he was in pain. Grossman asked what kind of pain and Bardwell said, “[h]e has finger pain.
Get back to work.”13 (Tr. 54.)
Both Ledman and Grossman testified that, immediately upon Bardwell’s departure from
the break room, they got up to attend to the patient. They went into the trauma room where
Grossman conducted a preliminary assessment.14 She testified that, “[h]is finger was normal

11 There was nothing improper about this since it will be recalled that Bardwell confirmed
that, prior to the arrival of the finger patient, the waiting room was empty.
12 Bardwell conceded that, on entering the break room, she was “upset.” (Tr. 201.)
13 Ledman testified that Bardwell provided a more sarcastic response to Grossman’s
questions about the patient’s condition, asserting, “Well, I didn’t know it was my job to be a
triage nurse.” (Tr. 183.) As will shortly be described, Bardwell, herself, wrote an account of
these events later that evening. She noted that, “Jenni began questioning my judgement in
rooming the patient in ‘Trauma.’ At that point, I told each one of them to get to WORK.” (GC
Exh. 8.) [Capitalization in the original.]
14 Bardwell appeared to believe that there was some additional period of delay before the
patient was examined by Grossman or Ledman. I conclude that Ledman and Grossman’s
testimony that they made an immediate preliminary examination is credible and Bardwell’s
Continued
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. . .It looked completely normal. He was calm, sitting on the gurney table. He wasn’t writhing in
pain.”15 (Tr. 54.) He told her that he had jammed his finger in a door and had already taken
ibuprophen. Grossman explained that the next step would be an x-ray. Given her evaluation of
his condition, she determined that this could be performed once he had been registered and his
medical chart had been prepared. As she put it, “he’s not acute, he can wait to be registered.”
(Tr. 55.)
Grossman reported that the normal office procedures were then accomplished. Bardwell
completed the registration process and Ledman took the patient’s vital signs, medical history,
and allergy information. At that point, Grossman conducted “a more thorough exam than what I
did initially.” (Tr. 55.) She ordered the x-ray, which revealed that the finger was not broken.
Grossman placed a splint on the finger and sent the patient home. She testified that the patient
did not voice any complaints to her.
Bardwell reported that the patient did voice dissatisfaction to her. As she put it, he was
“furious, and still in pain when he left.” (GC Exh. 8.) While I do not doubt that the patient may
have been unhappy with the pain caused by his injury, it also clearly appears that a significant
source of his anger was the size of his medical bill. This amount was well in excess of the
estimate that he had been given over the telephone by Bardwell. The discrepancy was the
failure to include the cost of the “finger splint application” in addition to the treatment charge and
the x-ray. (GC Exh. 8.) Bardwell and Grossman each attempted to deflect blame from
themselves for this underestimate. I would only note that it would have been very difficult to
provide an accurate estimate over the phone. It is unclear to me how anyone would have been
able to predict the need for the application of a splint prior to observing the condition of the
finger. In fact, the evidence established that the clinic subsequently changed its procedures to
decline to provide detailed cost estimates to future patients over the telephone.
On returning home after her shift, Ms. Bardwell wrote an account of the events that had
caused her concern during the day. She reported that Borucki, Ledman, and Grossman took
eight breaks, including lunch and dinner. Three of those breaks involved “whispering,” while
another three involved “door [being] shut.” (GC Exh. 8.) She then described the events
involving the finger patient. When asked why she took the trouble to create this document, she
explained that it was, “because the whole day was difficult.” (Tr. 202.)
After drafting her account of the day’s events, she showed it to her husband. She told
him that she felt the report should be included in Ledman’s personnel file in the event she
reapplied for work at the clinic as she had done after quitting once before. Dr. Bardwell asked
her to expand her original report to “be more specific,” because, “what he was seeing, not only
about Gina Ledman, but about all three of them, was very discouraging.”16 (Tr. 203.)
Bardwell’s revised report is the document placed into evidence as GC Exhibit 8.
One may readily infer that the impact of his wife’s distress over what she perceived as
misconduct by Borucki, Ledman, and Grossman had a direct effect on the employment
decisions made by Dr. Bardwell over the course of the following days. In fact, the first such
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contrary assumption was a product of her overall distress regarding the events of this workday.
15 Ledman confirmed Grossman’s account of the patient’s condition reporting, “his finger
wasn’t bleeding or it wasn’t split, wasn’t red. It was nothing, just a stubbed finger. And so he
wasn’t in any distress. I had taken his vital signs and they were fine.” (Tr. 184.)
16 Dr. Bardwell confirmed that he asked his wife to add additional details to her written
account.
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decision was announced to Borucki on February 3. Borucki testified that, on that date, he was
feeling ill and had arranged to switch shifts with another radiology technician. During the course
of the day, he received a telephone call from Bardwell, “who was upset and said that he needed
me to come in and work that shift because he wanted to discuss sales and marketing stuff.” (Tr.
95.)
Borucki reported to the clinic at 2:30 p.m. On his arrival, Bardwell called him into the
office to inform him that, “he no longer wanted me to do sales and marketing, that he couldn’t
trust me, and that the clinic wasn’t doing very well and he had to make cuts and so he was
going to take over that position.” (Tr. 96.)
In his own testimony, Bardwell confirmed that he had decided to demote Borucki
because, “I felt that he was over time not being completely honest with me.” (Tr. 233.) As to
particulars, he cited his unhappiness about Borucki’s handing of the marketing of influenza
vaccines. He reported that, in November 2010, the clinic found itself with a large inventory of
unused flu shots. He instructed Borucki to contact the clinic’s “established” corporate customers
to invite them to offer flu shot programs for their employees. (Tr. 232.) None of the customers
availed themselves of the opportunity.17
Bardwell testified that he became “suspicious” of Borucki’s efforts to market the flu shots.
(Tr. 234.) As a result, he asked Borucki to provide him with a list of customers. Borucki
furnished him with a list of “20 to 30 companies.” (Tr. 234.) Bardwell chose to contact 4 of the
listed firms to verify Borucki’s sales efforts. He testified that the individuals he spoke with at 3 of
the companies could not recollect whether Borucki had contacted them about the flu shots. The
fourth company was an organization named Tru Vue. Bardwell testified that the person he
spoke with at Tru Vue told him that Borucki “did not contact us in any way, shape, or form.” (Tr.
235.) Bardwell did not provide any testimony regarding when he had this conversation.
On the day after the demotion meeting, Bardwell sent Borucki a formal notification that
his “sales, marketing, and radiology technician position . . . is being reduced to radiology
technician alone.” (GC Exh. 11.) The letter advised that this would represent a “switch from
salary to an hourly rate.” (GC Exh. 11.) No rationale for this demotion was cited in the
document.
Very shortly after his decision to demote Borucki, Bardwell altered course and decided
on a more drastic approach. Just two days after writing the letter of demotion, Bardwell called
Borucki into his office and discharged him from employment. Borucki reported that Bardwell
informed him of his termination on February 6, immediately after he had reported to the clinic to
begin his shift. He testified that Bardwell explained that,
he was letting me go because he did not, he could not trust me
and he needed somebody that he could trust . . . . and he also
said, you know, he was sick of the toxic talk and closed-door
meetings.
(Tr. 98.) Borucki asked why Bardwell did not trust him and was given, “a couple of examples.”

17 Borucki provided a logical explanation for the complete lack of success in this endeavor.
He explained that the decision to offer such flu clinic programs was taken too late in the season.
By November, employers had typically completed whatever arrangements they intended to
make to cope with the influenza season. This testimony was uncontroverted.
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(Tr. 99.)
The first example provided by Bardwell related to an incident in August 2009. At that
time, Borucki and several other clinic employees were attending an off-site training session.
Bardwell gave Borucki permission to purchase dinner for the attendees. Afterwards, Borucki
told Bardwell that the cost of the meal was $65. However, he submitted a reimbursement
request in the amount of $75.18
The second example cited by Bardwell concerned an incident that had occurred six
months ago. At that time, Borucki had used the company credit card to purchase a case of
bottled water for the clinic without Bardwell’s prior consent.19
After this discussion about the rationales for Borucki’s discharge, Bardwell asked him for
his password to his office email account. After providing this information, Borucki asked
Bardwell to give him a written termination letter. In response, Bardwell sent him an email that
afternoon advising that, “as of 10:00 am today 2/6/11, your employment for Northfield Urgent
Care has been terminated.” (GC Exh. 12.) As with the demotion letter, no reason for the
termination is cited in the email.
It should be noted that Bardwell did not testify in any detail regarding this meeting. He
did, however, prepare a written account of it. In that account, he reported that he fired Borucki
for “repeated dishonesty.” (R. Exh. 2, p. 8.) He also listed the instances of dishonesty involved.
These consisted of calling in sick when he was not ill, the training meal reimbursement, the
purchase of water, and the failure to contact Tru Vue regarding flu shots.
Having obtained the password, Bardwell now proceeded to examine Borucki’s work
email account. In so doing, he reported that he was dismayed to find Grossman’s January 8
email to Ledman and Borucki and Ledman’s reply. When asked why these emails caused such
dismay, he explained that it was because of the discussion about quitting and receiving
unemployment and also because, “I had confirmation that Jennie had written the letter.” (Tr.
282.) After reading the emails, Bardwell forwarded them from Borucki’s email account to
Grossman’s own work and personal email accounts.
Early the next morning, February 8, Borucki sent a text message to Grossman, telling
her to check her email. When she did so, she found the forwarded material from Bardwell. She
reported to the clinic at 8 a.m. to begin her workday. As she sought to obtain her timecard from
her file folder, she found that it contained another copy of the same email exchange.

18 Borucki went on to explain that he had forgotten to tell Bardwell about the tip for the
server. This was the reason for the higher request for reimbursement. He also testified that,
when asked about the different amount, he told Bardwell the reason for the discrepancy and
Bardwell said that everything was “okay.” (Tr. 100.) Borucki’s account is corroborated by the
fact that it is undisputed that no disciplinary action was taken regarding this incident.
19 Once again, Borucki explained this event, reporting that Grossman had told him that the
clinic needed bottled water to offer to patients and asked him to purchase a case of it. She told
him that, “it’d be fine to put it on the company credit card.” (Tr. 101.) A week later, Bardwell
had questioned him about it. On explaining the circumstances, Bardwell indicated that it was
“fine,” but instructed Borucki not to buy any water in the future. (Tr. 102.) As with the dinner
reimbursement, the absence of any contemporaneous disciplinary action taken against Borucki
serves to corroborate his account.
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Grossman proceeded into the office and found Bardwell seated there with yet another
copy of the email exchange on his desk. He asked her, “[w]hat do you have to say about this?”
(Tr. 48.) She replied that she believed they had already discussed the matter. He responded
that, “[f]rom what it looks like here, it looks like insubordination to me.” (Tr. 48-49.) He added
that, “[m]aybe I should suspend you without pay and benefits.” (Tr. 49.)
At this juncture in their tense exchange, Grossman left the office and returned in the
company of Wanita Parker. Her intent was to have Parker serve as a witness to the
conversation. Grossman then asked Bardwell, “[c]an you explain to me how I’m being
insubordinate?” (Tr. 49.) He declined to respond, but simply left the office.
After a ten minute interval, Bardwell summoned Grossman and Parker back into the
office. He told Grossman, “[a]t this point I’m just going to terminate you.” (Tr. 50.) When she
asked for the reason, he told her that it was, “[f]or insubordination.” (Tr. 50.) She demanded
more information and Bardwell declined, telling her that, “I’ll let you know in 10 days.” (Tr. 50.)
Under cross examination, Bardwell did explain that by choosing to fire Grossman for
insubordination, “I meant recurrent negative talk, whispering, and closed door meetings.” (Tr.
279.)
As promised, on February 17, Bardwell sent Grossman a formal written explanation of
his decision to terminate her employment. He told her that:
Your misconduct was a serious violation of the standards of
behavior that Northfield Urgent Care has a right to reasonably
expect and because of your substantial lack of concern [for]
employment. Specifically, without limitation, prior to February 8,
2011 you received several warnings regarding conduct of yours
that violates expected standards of behavior. Additionally, and
without limitation, on or about January 31, 2011 you failed to
provide prompt medical care to a medical patient in physical
pain.
(GC Exh. 7.) The parties agree that the reference to patient care involved the patient with the
injured finger whose visit to the clinic has already been described in detail.
On April 13, Grossman filed an unfair labor practice charge based on events at the clinic.
(GC Exh. 1(a)). She filed an amendment on May 16. (GC Exh. 1(c)). The Regional Director
issued a complaint and notice of hearing on May 31. (GC Exh. 1(e)). Grossman and Borucki
have not been offered employment at the clinic at any time since their discharges.
B. Legal Analysis
The General Counsel alleges that Dr. Bardwell’s response to staff dissatisfaction over
his pay cut decision consisted of a number of unfair labor practices, including adverse personnel
actions involving Borucki and Grossman. Ultimately, the contention is that Bardwell unlawfully
discharged those two employees in response to their protected concerted activities in protest
against the reduction in their compensation. I will assess the Employer’s actions in
chronological order, with particular attention to his ultimate decision to terminate the two
employees.20

20 There is an additional allegation that the Employer promulgated, maintained, and
Continued
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Before engaging in the evaluation of the Employer’s behavior, I must address an
essential preliminary consideration. The Acting General Counsel’s theory as to most of the
alleged unfair labor practices centers on his view that the Employer was responding vigorously
and unlawfully to the protected concerted activities of its employees. Absent a conclusion that
those employees had actually been engaged in such protected concerted activities, there would
be no basis for the Board to regulate management’s conduct.
It must be recognized that, typically, the issue of protected concerted activity will arise in
the context of employees’ efforts to organize or assist in the functioning of a labor union. In this
case, there is no evidence that the clinic’s staff ever sought to create or affiliate with any labor
organization. Despite this, it is well-established that the Act’s protections extend beyond the
context of labor union organizing.21 This is evident from the language of Section 7 of the Act
which provides that employees shall possess “the right of self-organization . . . to engage in
other concerted activities for the purpose of . . . mutual aid and protection.” This right is
enforced through the mechanism of Section 8(a)(1) which prohibits employer interference,
restraint, or coercion of employees who are exercising their Section 7 rights.
The Board’s recognition of the Act’s protection of employees’ activities that do not
involve labor unions was explicitly endorsed by the Supreme Court in NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962). In that case, employees of a foundry were not represented
by any union. Nevertheless, they chose to walk off the job as a group in order to protest the
lack of heat in the plant during a wintertime cold spell. The employer fired them for violating a
company rule that prohibited unauthorized departures from work. Management argued that the
employees’ concerns were merely “gripes,” and that it was already working to have the furnace
repaired at the time of the walkout. Both the Board and the Supreme Court ordered the
reinstatement of the discharged employees. As the unanimous Court explained, the workers
had “no bargaining representative and, in fact, no representative of any kind to present their
grievances to their employer. Under these circumstances, they had to speak for themselves as
best they could.” 370 U.S. at 15. In so doing, they were entitled to the protection of the Act.22
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enforced a handbook rule that unlawfully prohibited employees from discussing their
compensation with each other. The Employer concedes this issue. (See R. answer to
complaint, par. 4(z) and R. Br., at p. 7 which admits that the handbook provision contained
“prohibited language.”) Nevertheless, I will discuss the issue briefly at the conclusion of my
legal analysis.
21 These additional protections afforded by the Act are often invoked in settings that are far
removed from the typical labor union case. For example, on my own docket, I have addressed
these issues in a case involving investment consultants for a large financial institution in
Citizens Investment Services Corp., 342 NLRB 316 (2004), affd. 430 F.3d 1195 (DC Cir. 2005),
and in a recent case that I will discuss in this decision due to its presentation of similar analytical
issues arising out of the discharge of hair stylists at a salon and day spa, Salon/Spa at Boro,
356 NLRB No. 69 (2010).
22 The Court also declined to limit such protection to situations where it found the
employees’ actions to have been reasonable. Thus, it took note of the fact that the walkout
occurred at the same time the employer was already acting to fix the furnace problem and that
this, arguably, rendered the protest “unnecessary and unwise.” 370 U.S. at 16. Nevertheless,
the Court held that “the reasonableness of workers’ decisions to engage in concerted activity is
irrelevant.” 370 U.S. at 16. This is pertinent to the present case because there is credible
evidence to suggest that Bardwell’s adverse actions against employees arose in significant
measure from his belief that their use of an anonymous letter was offensive and unreasonable.
Continued
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As the Court explained, “an employer is [not] at liberty to punish a man by discharging him for
engaging in concerted activities which §7 of the Act protects.” 370 U.S. at 17.
In effectuating the Supreme Court’s mandate, the Board has been careful to draw a
distinction between individual acts and protected concerted activity. That the drawing of such
distinctions is sometimes complicated is illustrated by the extensive citation necessary to
describe the procedural history of the Board’s leading precedents on the topic: Meyers
Industries (Meyers I), 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985) and Meyers Industries (Meyers II), 281 NLRB
882 (1986), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988). In Meyers II, the Board held that the Act “requires some linkage to group action in
order for conduct to be deemed ‘concerted’ within the meaning of Section 7.” 281 NLRB at 884.
In assessing the nature of such concerted activity, the Board has cautioned that a pragmatic
approach is required in order to properly assess the “myriad of factual situations that
. . . will continue to arise in this area of the law.” Meyers I, 268 NLRB at 497. The key concept
is that concerted action must “be engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.” Meyers I, 268 NLRB at 497.
In this case, it is evident that Borucki and Grossman acted together and in further
concert with a number of their coworkers. Thus, it will be recalled that Borucki, Ledman, and
Grossman decided on the use of an anonymous letter to present their objections to the pay cut.
Grossman drafted the letter and submitted it for editing and approval to Ledman and Borucki.
They did approve the letter as drafted. These three employees also engaged in discussions of
the pay cut and the appropriate response to it with a variety of additional staff members. These
included Parker, Rodgers, Garry, Stowe, and Collins. Indeed, there was uncontroverted
testimony from Ledman that Garry, Stowe, and Collins specifically expressed their belief that, “it
was a good idea to write the letter.” (Tr. 175.) All of these discussions about the terms of
employment and the proper means of conveying dissatisfaction with the pay cut constituted
concerted activity among a group of employees. Their conduct was indistinguishable from that
of the workers involved in Champion Home Builders, Co., 343 NLRB 671 (2004), enf. in
pertinent part, 209 Fed. Appx. 692 (9th Cir. 2006) (discharged employee had engaged in
concerted activity when he discussed his concerns about the employer’s bonus policy with
coworkers who agreed with his plan to write a protest letter to the employer).
Not all concerted activity is protected under the Act. Having acknowledged this, it must
also be observed that a concerted protest about a pay cut clearly falls within the Act’s ambit of
protection. As the Board has held, “there can be no doubt that there is no more vital term and
condition of employment than one’s wages, and employee complaints in this regard clearly
constitute protected activity.” Rogers Environmental Contracting, 325 NLRB 144, 145 (1997),
quoting Cal-Walts, Inc., 258 NLRB 974, 979 (1981).
It is also true that concerted activity may be of an egregious character to such a degree
that it loses protection. As the Board explained:
The protection that our Act provides employees verbal and
written expressions during the course of protected activity is
_________________________
His assessment is immaterial in light of the Court’s refusal to become involved in such
evaluations of protected activities. The Board continues to take the same position, declining to
impose “a reasonable means requirement on employees’ concerted activity.” Accel, Inc., 339
NLRB 1052, 1052 (2003) [Internal punctuation omitted].
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not without limitation. Otherwise protected activity may
become unprotected if in the course of engaging in such
activity, the employee uses sufficiently opprobrious, defamatory,
or malicious language. Nonetheless, the most repulsive speech
enjoys immunity provided it falls short of a deliberate or reckless
untruth. [Citations and internal punctuation omitted.]
Honda of America Mfg., 334 NLRB 751, 752 (2001), enf. 73 Fed. Appx. 810 (6th cir. 2003).
In this case, there is absolutely nothing that would remotely suggest that the behavior of any of
the employees transgressed the standards for protection. In particular, I have already
characterized the letter written by Grossman and approved by Borucki as being both civil and
respectful in its language and tone.
For these reasons, I readily find that the statements and actions that the clinic’s
employees made in response to the pay cut were both concerted and protected within the
meaning of the Act. As a result, adverse actions taken against those employees due to their
participation in these activities would be unlawful under the Act.
I will now examine the Employer’s actions as they unfolded in response to the staff’s
reaction to the announcement of the pay cut on January 4. To begin, the Acting General
Counsel alleges that, shortly after receiving the anonymous employees’ letter on January 12,
Bardwell unlawfully interrogated employees and unlawfully prohibited them from discussing the
pay cut with each other.23
Bardwell testified that he did conduct meetings with employees regarding the
anonymous letter. Borucki testified that he had such a discussion with Bardwell on January 12.
I have already noted that I credit much of Borucki’s account, including his assertion that
Bardwell asked, “if I knew who drafted the letter.” (Tr. 81.)
The Board does not hold that all questioning of employees by their employers is
unlawful. Rather, it employs a totality of circumstances test to gauge the propriety of such
interrogations. See Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees
Local Union 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In conducting the assessment, the
Board considers the so-called Bourne24 factors, which it has described as follows:
Those factors are: (1) The background, i.e., is there a
history of employer hostility and discrimination? (2) The
nature of the information sought, e.g., did the interrogator
appear to be seeking information on which to base taking
action against individual employees? (3) The identity of
the questioner, i.e., how high was the interrogator in the
company hierarchy? (4) The place and method of

23 As explained in her brief, counsel for the Acting General Counsel specifically alleges that
Bardwell’s questioning of Ledman “[o]n about January 12,” was unlawful. (GC Exh. 1(e), pars.
a, b, and c.) Actually, this incident took place on January 13. In addition, Bardwell interrogated
Borucki and Landon on the same topic. Borucki’s questioning took place on January 12 and
Landon was questioned sometime during the same month. All of these matters were fully
litigated by the parties and any imprecision regarding dates in the complaint was not prejudicial.
See Pergament United Sales, 296 NLRB 333, 335 (1989), enf. 920 F.2d 130 (2d Cir. 1990).
24 Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
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interrogation, e.g., was the employee called into the boss’s
office? Was there an atmosphere of unnatural formality?
(5) The truthfulness of the reply.
Holiday Inn-JFK Airport, 348 NLRB 1, 4 (2006), citing Rossmore House, supra.
Regarding Bardwell’s questioning of Borucki, the first factor cuts against the Employer
as both Bardwell and Borucki confirmed that Bardwell was “upset” about the anonymous letter
and appeared “obviously” so during the interview. (Trs. 250, 81.) Thus, the employee was
confronted by an expression of employer hostility. The second factor, the nature of the inquiry,
is strong evidence of unlawful conduct. In this regard, Bardwell’s conduct mirrors that of the
employer in United Services Auto Assn., 340 NLRB 784, 786 (2003), enf. 387 F.3d 908 (D.C.
Cir. 2004), where employees were questioned with “only one objective . . . to identify who had
been engaged in the flier distribution.” The nature of such a pointed inquiry is strongly probative
of unlawful conduct. Likewise, the next factors support the same conclusion. Bardwell was the
highest official of the employer and his questioning took place in the formal setting of his office.
Regarding the final criterion, I decline to find against the employer as I did not credit Borucki’s
evasion in recounting his response to the questioning.
With particular emphasis on the prohibited purpose of the questioning, I conclude that
the hostile interrogation of Borucki regarding the identity of the employee who had engaged in
protected conduct that the employer deemed unacceptable was unlawful. While the Acting
General Counsel has not specifically alleged that it constituted an unfair labor practice, I will
consider it as evidence of the Employer’s unlawful animus involved in the adverse actions taken
against Borucki and Grossman within the next month. See American Packaging Corp., 311
NLRB 482, fn. 1 (1993) (“law is well-settled that conduct that exhibits animus but that is not
independently alleged to violate the Act may be used to shed light on the motive for, or
underlying character of, other conduct that is alleged to violate the Act”) and Meritor Automotive,
328 NLRB 813 (1999) (same).
In addition to his interrogation of Borucki, in the same time frame Bardwell also asked
Landon about the authorship of the letter. While Landon was the clinic’s nurse manager, there
is no contention that she was a statutory supervisor. As with Borucki, Bardwell’s inquiry into
authorship of the letter had the same unlawful purpose and his questioning was conducted with
the same degree of formality. It is true that Landon responded truthfully and without hesitation.
This factor cannot be decisive as Landon was clearly sympathetic to Bardwell’s position
regarding the letter. The fact that the employee under interrogation is friendly to management’s
position cannot excuse an otherwise unlawful attempt to uncover protected activities in order to
impose sanctions against those employees engaged in the activities. Bardwell’s questioning of
Landon is also evidence of his animus against the protected activities of his employees who
were involved in drafting and presenting the anonymous letter regarding the pay cut.
Turning next to the specific conversation alleged to involve the commission of several
unfair labor practices, the evidence demonstrates that, on January 13, Bardwell summoned
Ledman into his office. He interrogated her regarding two topics. She testified that he began by
asking her if she had participated in employee discussions about the pay cut on January 7.
Ledman added that, “he told me that these conversations are toxic and we’re not supposed to
be talking about the pay cut.” (Tr. 176.) Next, Bardwell showed Ledman the anonymous letter
and asked her, “if I knew who wrote the letter.”25 (Tr. 176.) Ledman told him that she did not

25 In his own testimony, Bardwell confirmed that he asked Ledman about the letter. See, tr.
Continued
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know who wrote it. Bardwell then informed her that he was “upset” about the letter and that he
knew that Grossman was the author, “because it seemed like it was her vocabulary or her style
of writing.” (Tr. 177.)
The Acting General Counsel contends that Bardwell’s statements constituted three
separate unfair labor practices consisting of two improper interrogations26 and an unlawful
directive to Ledman that she refrain from discussing the pay cut with coworkers. (See
complaint, GC Exh. 1(e), at pars. 4(a, b, and c). Ledman’s testimony about the meeting was
uncontroverted and corroborated to a substantial degree by Bardwell’s admission and by a
pattern of similar conduct on his part. Finding her account to be reliable, I conclude that
Bardwell did violate the Act by impermissibly questioning Ledman for the purpose of learning
about the specific involvement of employees in protected activities with the objective of taking
adverse actions against such employees. All of the Bourne factors support this conclusion.
In addition to the unlawful interrogation, Bardwell instructed Ledman to refrain from
discussing the pay cut with her coworkers, characterizing such conversations as “toxic.” (Tr.
176.) Discussing such topics with coworkers is protected activity within the meaning of the Act.
See Mesker Door, 357 NLRB No. 59, slip op. at 2 (2011) (employee engaged in “protected
activity” when he discussed the union with a coworker). There was no contention that the
Employer prohibited clinic employees from conversing with each other about topics unrelated to
work. In such circumstances, the Board’s policy is clear. As it explained in the related context
of a union organizing campaign:
[A]n employer may forbid employees from talking about a union
during periods when the employees are supposed to be actively
working, if that prohibition also extends to other subjects not
associated or connected with their work tasks. However, an
employer violates the Act when employees are forbidden to
discuss unionization, but are free to discuss other subjects
unrelated to work, particularly when the prohibition is
announced or enforced only in response to specific union
activity in an organizational campaign.
Jensen Enterprises, 339 NLRB 877, 878 (2003). Of course, the same rule would apply to
employer regulation of discussions about other protected concerted activity such as the
response to the pay cut involved in this case.27 Bardwell’s instruction to Ledman to refrain from
discussions with fellow employees regarding the pay cut constituted a violation of Section
8(a)(1).
The complaint next alleges that, on January 14, Bardwell imposed unlawful discipline on
_________________________
266.
26 It is far from clear to me that an employer commits multiple unfair labor practices if its
officials ask improper questions on more than one topic during the same interrogation. I will not
engage in any detailed assessment of this manner of pleading since the remedial response to
such employer misconduct is identical whether one characterizes the conduct as one offense or
multiple offenses.
27 For another example in a healthcare context, see Scripps Memorial Hospital Encinitas,
347 NLRB 52 (2006) (employer violated the Act when supervisor overheard two nurses
discussing upcoming union meeting at the nurses’ station and told them, “that does not belong
here”).
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Grossman in response to her protected activities. (See complaint, GC Exh. 1(e), at par. 4(e).)
As to this contention, the documentary evidence is crystal clear. It consists of a corrective
action form written and signed by Bardwell on January 14. It is characterized as a verbal
warning issued in response to Grossman’s “presum[ed]” authorship of the pay cut letter and
involvement in “’toxic talk’ + negativity.” (GC Exh. 5, p. 1.) Grossman testified that, after her
discharge from employment, she requested a copy of her personnel file. Once this was
provided to her, she discovered this corrective action form among the paperwork. She reported
that she had never seen it before. Whether disclosed to her at the time of its creation or simply
inserted into her personnel file, the corrective action form constitutes disciplinary action as
alleged by the Acting General Counsel. See Altercare of Wadsworth Center, 355 NLRB No. 96
(2010) (counselings and warnings constitute adverse actions if they are intended to form part of
employer’s disciplinary process).
It remains to be determined whether the discipline was unlawfully imposed in response
to Grossman’s protected activities. To the extent that it responds to her presumed involvement
in preparing the anonymous pay cut letter, the answer is obvious. As a result, it is unnecessary
at this point to interpret Bardwell’s meaning regarding his concepts of toxic talk and negativity. I
will address those topics later in this decision. It is clear that Bardwell did impose discipline on
Grossman for her participation in producing the anonymous letter, a protected activity. The
disciplinary action was unlawful.
The complaint next alleges that Bardwell engaged in three unfair labor practices on
January 18, all directed at Grossman. Grossman testified that, on that day, Bardwell spoke to
her in his office. He directed her attention to the anonymous letter and asked, “if I wrote the
letter, and I said that I wasn’t going to say whether I wrote it or not.” (Tr. 32.) Bardwell
confirmed this account in his own testimony. Grossman also reported that Bardwell informed
her that Parker had reported that she had been “talking about the pay cut” with other
employees. (Tr. 32.) He instructed her that:
it’s toxic and it’s negative and that we can’t talk about it, we can
no longer whisper—we, meaning Gina, Mike, and myself, can
no longer whisper or go into offices and close the door—that it
was creating a negative environment and that it’s not going to
be tolerated.
(Tr. 32.) In addition, Grossman testified that, while she was not given a copy during their
meeting, she later discovered in reviewing her personnel file that Bardwell had written another
corrective action form on this date. The form again characterized the discipline as a verbal
warning for “toxic talk—negativity.” (GC Exh. 4, p. 1) It directed her to refrain from discussing
conditions of employment with fellow workers.
I readily conclude that Bardwell’s conduct on this date included the three violations as
alleged. By asking Grossman if she had authored the anonymous letter, Bardwell engaged in a
pointed and hostile effort to learn about her participation in protected activity in order to impose
sanctions against her. All of the Bourne factors support such a conclusion, including
Grossman’s evasive response which was based on her entirely reasonable perception that a
truthful answer would subject her to punishment. Similarly, for reasons previously outlined,
Bardwell’s order to Grossman to refrain from discussing the terms and conditions of her
employment with her coworkers constituted an unfair labor practice within the meaning of
Section 8(a)(1).
This leaves the assessment of the corrective action form which imposed a verbal
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warning for the offenses of “toxic talk—negativity.” (GC Exh. 4, p. 1.) In assessing Bardwell’s
meaning, it is vital to consider the context. That context consists of Bardwell’s
contemporaneous discussion with Grossman during which he expressed his hostility toward her
participation in the protected activities of writing and presenting the letter protesting the pay cut
and discussing the pay cut with other employees.28 From this, it is apparent that the verbal
warning was an unlawful response to Grossman’s protected activities in violation of Section
8(a)(1).
Next in chronological order, the complaint alleges that, on January 19, Bardwell
committed seven unfair labor practices involving his interactions with Borucki and Ledman.
Turning first to Ledman, she provided uncontroverted and credible testimony that Bardwell
summoned her into the office and told her that Parker and Kim Bardwell, “were telling him that
we were whispering and how many times we were whispering each day.” (Tr. 179.) He
informed her that, “we weren’t allowed to have whispering conversations” because such
conversations would cause other employees to feel excluded and would lead them to surmise
that “we were talking about something that we weren’t supposed to talk about.” (Tr. 179.)
The Acting General Counsel asserts that, when Bardwell told Ledman that two other
employees had reported that she was whispering, he engaged in the offense of creating an
impression of surveillance of employees’ protected activities. The Board has explained that the
rationale for prohibiting such conduct is that employees should be shielded from fear that
“members of management are peering over their shoulders, taking note of who is involved in
[protected] activities, and in what particular ways.” Fred’k Wallace & Son, 331 NLRB 914
(2000). The Board has further held that, “[i]n order to establish an impression of surveillance
violation, the General Counsel bears the burden of proving that the employees would
reasonably assume from the statement in question that their [protected] activities had been
placed under surveillance.” Heartshare Human Services of New York, 339 NLRB 842, 844
(2003).
While there are certainly cases where application of this standard is straightforward, the
Board’s precedents reveal that other situations present close questions. In my view, this is one
such example. Counsel for the Acting General Counsel bases her view of the illegality of
Bardwell’s statement on her conclusion that, “Ledman could have reasonably believed that Dr.
Bardwell was engaged in surveillance by his reliance on other employees’ reports of her
behavior.” (GC Br., at p. 36.) The difficulty with this approach is that it does not grapple with
the Acting General Counsel’s burden of proof. While Ledman could have come to such a
conclusion, it is at least equally likely that she would have instead concluded that Kim Bardwell
and Parker had taken it upon themselves to report on her behavior. This would certainly have
been consistent with the well-known understanding that these two employees were favorably
disposed to management.
The Board has indicated that, where two equally plausible interpretations exist, the
burden of establishing the unlawful creation of an impression of surveillance has not been met.
SKD Jonesville Division, LP, 340 NLRB 101, 102 (2003) (where two likely interpretations of
employer’s statement exist, no reason to infer one over the other). Such is the case here.
Beyond this, I have relied on two quite specific precedents that appear to be on point. In
Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007), the Board held that, “merely

28 Later in this decision, I will explain my further conclusion that Bardwell’s use of the
concepts of toxic talk and negativity as workplace offenses represents an attitude of unlawful
animus toward employees’ protected concerted activities.
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informing employees that their coworkers have volunteered information about ongoing
[protected] activities does not create an impression of surveillance, particularly in the absence of
evidence that management solicited that information.” Similarly, in Stevens Creek Chrysler
Jeep Dodge, 353 NLRB 1294, 1296 (2009), the Board held that, “when an employer tells
employees that it learned of their [protected] activities from another employee . . . the Board has
found no violation.” [Citations omitted.]
Considering these authorities, I conclude that an employee in Ledman’s position could
have reached two equally reasonable conclusions based on Bardwell’s statement that Parker
and his wife had reported on her activities. The first such conclusion would be that Bardwell
had improperly solicited them to obtain and provide such information. The second would be that
the two coworkers had taken it upon themselves to report the information to their boss.
Because the evidence is in true equipoise, the Acting General Counsel has not met his burden
of proving this violation. American, Inc., 342 NLRB 768 (2004).
Bardwell’s alleged second offense in his meeting with Ledman was an instruction to her
to cease whispering with her coworkers. Taking this instruction it its full and proper context, I
conclude that it was unlawful. In this regard, two factors are dispositive. First, there was no
prohibition against whispering at this workplace. Indeed, the testimony was clear in establishing
that whispering formed a normal practice which arose from the confidential nature of the work
and from the legal requirement that the clinic protect patients’ privacy. Indeed, it is noteworthy
that, far from prohibiting whispering, the employer’s handbook encouraged it, admonishing
employees that, “[l]oud talking . . . where patients can hear is never acceptable.” (Jt. Exh. 1, p.
2.) The second factor that I find compelling of a finding of unlawful conduct is Bardwell’s
contemporaneous explanation that whispering would prompt coworkers to conclude that the
offenders were discussing a prohibited topic. Again, taken in context, it is clear that the
prohibited topics would have consisted of the sort of toxic talk or negative talk about terms and
conditions of employment that Bardwell found to be both unacceptable and punishable. I find
that Bardwell’s prohibition of whispering, issued during his campaign against protected protests
of his pay cut decision, was unlawful.
The remaining alleged violations on January 1929 were all directed toward Borucki.
They consist of the utterance of two threats, the promulgation of two instructions to refrain from
discussing terms and conditions of employment, the creation of an impression of surveillance,
and the issuance of unlawful discipline. (See complaint, GC Exh. 1(e), pars. 4(d), (k), (l), (p),
and (q).)30

29 In her brief, counsel for the Acting General Counsel explains that, while the complaint
alleged that one of these violations took place “[o]n about January 12” and that another took
place “[o]n about January 26,” the evidence established that they both occurred on January 19.
(GC Exh. 1(e), pars. 4(d) and (p)). See GC Br., at fns. 16 and 17. Once again, the issues were
fully litigated and the minor discrepancies were not prejudicial under the standard of Pergament
United Sales, supra.
30 Paragraph 4(d) of the compliant states that this alleged offense occurred on January 12.
Paragraph 4(p) alleges an offense occurring on January 26, while paragraph 4(q) contends that
another offense was committed during the same meeting referred to in 4(p). In her brief,
counsel for the Acting General Counsel asserts that all three of these alleged unfair labor
practices actually took place on January 19. See GC Br., at fns. 16 and 17. Each alleged
offense was fully explored by both sides at trial and I cannot find any prejudice regarding the
discrepancy in the dates.
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With one exception, the evidence, consisting of testimony and documentation, is both
largely uncontroverted and quite overwhelming in establishing the commission of these alleged
infractions. Borucki testified that Bardwell called him into his office on this occasion and told
him “that there was a lot of toxic talk around the office and negativity and stated that he was
going to write me up for these closed-door meetings and toxic talk.” (Tr. 82-83.) He went on to
instruct Borucki that, “we were not to discuss, have any of these whispering conversations or
discussions during work time.” (Tr. 83.)
Bardwell’s own testimony largely corroborated Borucki’s account. He agreed that he
asked Borucki if he had been talking about the pay cut and Borucki admitted that he had done
so. At that point, counsel for the General Counsel asked him, “And after Mr. Borucki admitted
he had, isn’t it true that you then told him he needed to be above the negativity?” (Tr. 274.)
Bardwell responded affirmatively.
Lest there be even the slightest doubt about what was said at this meeting, it is dispelled
by the content of the corrective action form that Bardwell issued to Borucki during the meeting.
The subject of the corrective action is described as “bad behavior” consisting of “’toxic
talk’/negativity Closed doors Whispering.” (GC Exh. 9, p. 1) [Punctuation in the original.] The
instruction to Borucki was, “[n]o more closed door meetings, whispering, or negativity.” (GC
Exh. 9, p.1.) The threatened sanction for failure to follow these instructions was plainly
described as either, “[r]eduction in salary” or “[c]hange to straight commission for sales rather
than salary.” (GC Exh. 9, p. 1.)
As asserted by the Acting General Counsel, the evidence clearly establishes that
Bardwell threatened Borucki with reprisals, including loss of pay, in the event he persisted in
criticizing his terms and conditions of employment in discussions with coworkers. The evidence
similarly establishes that Bardwell instructed Borucki to cease and desist from discussions of his
terms and conditions of employment with his coworkers. Finally, it conclusively shows that
Bardwell issued an adverse disciplinary action to Borucki due to his participation in the
protected activity of discussing the Employer’s pay cut decision with his coworkers. All of these
actions violate Section 8(a)(1).31
Lastly, I must again grapple with the Acting General Counsel’s assertion that Bardwell’s
statements also created an impression that he was engaged in surveillance of his employees’
protected activities. Examining Bardwell’s statements on this occasion, it is noteworthy that he
did not attribute his knowledge of Borucki’s “whispering conversations” to any surveillance. (Tr.
83.) Indeed, he did not provide any explanation as to how he became aware of this activity by
employees. In such circumstances, the Board has rejected a finding of an impression of
surveillance violation, observing:
A statement as to what someone has heard could be based on
(1) what he had heard from the grapevine or (2) what he had
picked up from spying. There is no reason to infer the latter as
the source over the former.
SKD Jonesville Division, LP, 340 NLRB 101, 102 (2003). The Board’s reasoning in this regard
is particularly apt as to this workplace. It is a small office and each employee could readily

31 To the extent that it is not already apparent, I will shortly discuss the inextricably close
relationship in Bardwell’s meaning between the concepts of toxic talk and negativity and the
discussion of his pay cut decision by employees.
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observe his or her coworkers. Grossman testified that when she and Borucki talked about the
pay cut, other employees “could hear if they wanted to.” (Tr. 45.) Furthermore, the staff
understood that there were employees who supported management’s views as to the necessity
for the pay cut. For instance, Borucki reported that Parker, “seemed to kind of stick up for Dr.
Bardwell.” (Tr. 82.) Considering the totality of circumstances, I find that a reasonable person
did not have an adequate basis to infer from Bardwell’s remarks to Borucki during their meeting
on January 19 that the Employer was either engaged in surveillance of protected activity or was
seeking to convey an impression that it was engaged in such an endeavor. As a result, the
Acting General Counsel has not carried his burden of proof in this respect.
It is next alleged that the Employer twice violated the Act during a conversation between
Bardwell and Ledman on January 21 in Bardwell’s office. Ledman was the sole witness who
testified regarding the content of the conversation. While I found most of her trial testimony to
be clear and precise, her recollection of this conversation and her subjective view as to its
meaning and purpose were vague and uncertain. She reported that much of the discussion
focused on Bardwell’s desire to learn whether Ledman felt that she would be able to perform
some of Borucki’s current job duties. He also commiserated with her regarding what he termed
her “crappy” work schedule. (Tr. 181.) The discussion did turn to the pay cut issue, but
Bardwell did not attempt to justify the cut. Instead, using his calculator, he figured out the
amount of Ledman’s reduction in income and conceded that it was, “a lot of money.” (Tr. 181.)
At this juncture, Bardwell told Ledman that, “there’s going to be a lot of changes around here.”
(Tr. 181.) Ledman explained that, before Bardwell could elaborate, “we kind of got interrupted
at that point.” (Tr. 181.)
I recognize that the Board employs an “objective standard of whether [an employer’s]
remark tends to interfere with the free exercise of employee rights. The Board does not
consider either the motivation behind the remark or its actual effect.” Scripps Memorial Hospital
Encinitas, 347 NLRB 52 (2006) [Citation and internal quotation marks omitted.] Nevertheless, I
find Ledman’s description of the effect of Bardwell’s discussion with her to be probative because
she struck me as a rather sophisticated observer of work-related interactions. Her opinion
represents a useful insight into the objective nature of Bardwell’s unfinished commentary. She
described the impact of the conversation as follows:
I kind of left the meeting like I wasn’t sure if he meant that there
was going to be a lot of changes with my schedule or with my
position or if he was saying—if he was then referring to Mike,
because Mike—we were talking about Mike first. I just left with
a funny taste, a funny taste in my mouth and a sort of funny
stomach, like I wasn’t sure where that conversation was going.
It just was kind of weird.
(Tr. 181.)
Ledman’s candid expressions of uncertainty regarding the motivation behind Bardwell’s
scattered remarks on a number of topics mirrors my own conclusion. While he mentioned his
concern about ongoing whispering, he did not link that concern to the pay cut issue or any other
term or condition of employment.
Much of the content of their conversation consisted of Bardwell’s expressions of
commiseration with Ledman regarding her own working conditions, including the size of her pay
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cut. As a result, both Ledman and I found it difficult to conclude whether his contention that
changes were about to occur was a threat or a promise of amelioration of her situation.32 In
resolving this close question, I am mindful that the Acting General Counsel bears the burden of
proof and that, “mere suspicion cannot substitute for proof of an unfair labor practice.” Lasell
Junior College, 230 NLRB 1076 (1977) [Citation omitted.] Because Bardwell’s remarks were
equivocal and incomplete, the evidence does not permit me to find that the Acting General
Counsel has carried his burden regarding these alleged violations.
On January 26, Bardwell subjected Borucki to a thorough job performance evaluation,
including the detailed assessment of both his roles as radiology supervisor and marketing
specialist. The Acting General Counsel contends that, as part of this process, the Employer
gave Borucki an unfavorable evaluation due to his participation in protected activities with his
coworkers. (See complaint at GC Exh. 1(e), par. 4(r).) Based on both the content of the
evaluation and Bardwell’s contemporaneous remarks during the meeting, I find that this
allegation has been proven. In making such a finding, I must first acknowledge that much of the
evaluation is actually favorable and even complimentary to Borucki. Nevertheless, it is
impossible to ignore the fact that Bardwell assessed Borucki’s work performance in one key
area as failing to meet even minimum requirements.
The area of assessed deficiency involved “harmony, teamwork and leadership” and the
maintenance of “good supervisor and employee relationships.” (GC Exh. 10, p. 4.) It is evident
that a failing grade as to these aspects of the employment relationship is a grave matter which
could overshadow the other aspects of his evaluation. The question remains as to whether the
employer gave this low assessment to Borucki because of his protected activities. Both the
evaluation document and Bardwell’s remarks to Borucki concerning his evaluation reveal this to
be the case. The comment written beneath the failing score warned that he needed to improve
his staff interactions and to avoid toxic talk and negativity. This was reinforced by Bardwell’s
verbal comment that was “was tired of the toxic talk and the negative atmosphere in the clinic
and that it needed to stop.” (Tr. 91.) The evidence establishes that Borucki’s performance
evaluation was significantly downgraded in direct response to his Employer’s disapproval of his
involvement in protected concerted activity. This constituted a violation of the Act.
The Acting General Counsel next contends that the Employer, through its agent, Kim
Bardwell, engaged in actual surveillance of employees’ protected activities in violation of the
Act.33 (See complaint, GC Exh. 1(e), par. 4(s).) There can be no dispute that Kim Bardwell did
engage in surveillance of her coworkers on January 31. Under cross examination by counsel
for the Acting General Counsel, she conceded that she “tried to get as close to them as [she]
could to listen.” (Tr. 207.) [Counsel’s words.] She also agreed that she took the trouble to
reduce her observations to written form and present them to her husband that evening.
The real issue here is not whether Kim Bardwell engaged in surveillance. It is
undisputed that she did so. Standing alone, this does not prove that the Employer committed

32 Granted, with perfect hindsight, it appears likely that Bardwell was actually considering
replacing Borucki with Ledman in the marketing role. However, Ledman remained uncertain
that this was his meaning and I share that uncertainty. Even if one were to conclude that he
was exploring this planned personnel action, it hardly represented a threat against Ledman.
Rather, such a change in her duties would have constituted a promotion.
33 While the creation of an impression of surveillance is a more common allegation in labor
law cases, actual surveillance is, of course, also an unfair labor practice. See Ivy Steel & Wire,
346 NLRB 404 (2006).
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an unfair labor practice. There is no contention that Kim Bardwell was a supervisor at the clinic.
Indeed, it is fair to say that her position as receptionist was at the lowest rung of the corporate
ladder. The Employer does concede that she was an agent of the clinic. Nevertheless, in order
to find the Employer liable for her conduct, it must be shown that she was authorized to perform
the particular acts at issue as part of her agency status or that the Employer’s conduct and
statements created a reasonable belief among the employees that she was so authorized. See
Pan-Osten Co., 336 NLRB 305, 306 (2001) (“party who has the burden to prove agency must
establish an agency relationship with regard to the specific conduct that is alleged to be
unlawful”).
There was simply no evidence whatsoever that Dr. Bardwell ordered his wife or any
other employee to engage in surveillance. In this connection, Parker, Landon, and Kim
Bardwell all clearly testified that he never made such a request. Bardwell, himself, also denied
ordering any surveillance of employees. No contrary evidence was presented. Furthermore,
while Bardwell was clearly well-informed regarding the protected activities of employees who
were angered by the pay cut, the evidence demonstrates that he acquired this knowledge
without any need to order surveillance. His supporters among the workforce were entirely
willing to volunteer this information to him.
Frankly, the only evidence that Kim Bardwell was authorized to spy on her coworkers is
the inference to be drawn from her actual surveillance coupled with her marital relationship to
Dr. Bardwell. This is insufficient. See, Leather Center, 308 NLRB 16, 26 (1992) (“familial
relationship, without more,” is insufficient to establish agency). I conclude that the Acting
General Counsel has failed to carry his burden of establishing that Kim Bardwell was authorized
to spy on her coworkers or that the Employer created a reasonable apprehension on the part of
those coworkers that she was so authorized. I know of no legal authority for the proposition that
an employer would violate the Act by receiving unsolicited reports from employees regarding the
activities of their coworkers.
The remaining alleged unfair labor practices all arise from events surrounding the
demotion and termination of Borucki on February 3 and 6 and the termination of Grossman two
days later. Due to their importance, I will discuss these events separately as follows.
1. The Demotion and Termination of Borucki
It is undisputed that Bardwell demoted Borucki on February 3 and fired him just three
days later. The Acting General Counsel contends that these personnel actions were unlawful
because they were made as a direct response to Borucki’s protected concerted activities
involving the pay cut at the clinic.34 (See complaint, GC Exh. 1(e), pars. 4(t),(v), and (aa).) The
Employer disputes the issue of motivation, claiming that the reasons for these adverse actions
related to a variety of forms of misconduct by Borucki. Given the nature of this dispute, I must
analyze the issues by employing the methodology devised by the Board for assessment of
multiple alleged motivations. See Wright Line, 251 NLRB 1083 (1980) enfd. 662 F.2d 899 (1st

34 The Acting General Counsel also alleges that Bardwell threatened Borucki during the
course of the February 6 meeting at which he also terminated Borucki. (See complaint, GC
Exh. 1(e), par. 4(u).) In my view, such a statement made in the course of firing an employee is
simply part of the res gestae of the termination. Even if the statement is properly construed as a
threat, it would not constitute a separate offense. In any event, regardless of the correctness of
my view as to the propriety of this style of pleading, a finding of an additional violation here
would not affect the remedy.
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Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-403 (1983).
In the context of an alleged violation of Section 8(a)(1), the Board has described the
steps required by Wright Line as follows:
To prove a violation under Wright Line, the General Counsel must
first show that protected activity was a motivating factor in the
Respondent’s decision to take adverse action against the alleged
discriminatees. The General Counsel can satisfy this initial burden
by proving that the alleged discriminatees engaged in protected
activity, that the Respondent was aware of it, and that the Respondent
demonstrated some animus toward that protected activity. The
burden then shifts to the employer to demonstrate that the same
adverse action would have occurred even absent the protected
activity.
American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB 347, 349 (2006).
I have already discussed at length my conclusion that Borucki engaged in protected
concerted activity with Ledman, Grossman, and a number of other employees when they chose
to criticize the Employer’s pay cut decision, attempted to formulate alternatives to that decision,
and decided to present the Employer with an anonymous letter setting forth their views. There
is also abundant evidence to establish that Bardwell knew of Borucki’s involvement in these
activities. He received reports to this effect from his wife, Parker, and Landon. He documented
his concern about these concerted activities in a variety of written disciplinary records.
Most compellingly, Bardwell testified that, on January 19, he discussed Borucki’s
“negativity” regarding the pay cut decision with him directly, instructing him that he needed to
cease such behavior. (Tr. 274.) They had another such discussion a day or two later, during
which Borucki explained that the anonymous letter was not meant to be negative. In reply,
Bardwell “rolled his eyes” and told Borucki to avoid involvement in “toxic talk stuff.” (Tr. 88.)
It is undisputed that, on February 3, Bardwell took adverse action against Borucki
consisting of his demotion from a salaried position to an hourly rate that resulted in a large cut in
his compensation and the loss of his marketing responsibilities. Shortly thereafter, Bardwell
imposed what the Board has termed “the most draconian punishment in an employer’s arsenal,”
the discharge of Borucki. Metro Transport, LLC, 351 NLRB 657, 659 (2007). I must next
determine whether a substantial motivating factor in the demotion and termination decisions
was Borucki’s participation in the protected concerted activities. In making this analysis, I am
mindful of the Board’s observation that:
Unlawful motive may be demonstrated not only by direct evidence,
but by circumstantial evidence, such as timing, disparate or
inconsistent treatment, expressed hostility toward the
protected activity, departure from past practice, and shifting
or pretextual reasons being offered for the action. [Citations
omitted.]
Fresh Organics, Inc., 350 NLRB 309, 312 at fn 17 (2007). I conclude that virtually all of these
types of probative evidence of unlawful animus exist in this case.
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As a starting point for the analysis, I must take into account the Employer’s other unfair
labor practices committed in response to the same protected activity by the employees,
including Borucki. Thus, I have found that Bardwell unlawfully interrogated employees,
including Borucki, regarding their involvement in the protest of the pay cut. Bardwell instructed
employees, including Borucki, to cease their involvement in the same protected activities. He
also threatened Borucki with precisely the sort of demotion that he later imposed if Borucki
continued his participation in the protected activity. Finally, he issued a performance evaluation
to Borucki that gave him an unsatisfactory rating in the category involving teamwork and
relationships with coworkers due to his continuing involvement in the protected conduct.
The Board considers “the employer’s contemporaneous commission of other unfair labor
practices” as probative evidence of unlawful motivation. Waste Management of Arizona, 345
NLRB 1339, 1341 (2005). This is particularly true when the other violations are directed at the
same employee who is later subjected to the adverse action under evaluation. See St.
Margaret Mercy Healthcare Centers, 350 NLRB 203, 204 (2007), enf. 519 F.3d 373 (7th Cir.
2008). The fact that Bardwell engaged in a pattern of unfair labor practices directed toward
those employees, including Borucki, who were involved in the concerted protest of the pay cut
decision is powerful evidence of animus against the same employees leading to the adverse
actions taken against them.
Next, I have considered persuasive direct evidence of Bardwell’s unlawful motivation in
demoting and discharging Borucki. That direct evidence consists of Bardwell’s own statements
and writings showing that he disciplined Borucki due to his involvement in negativity and so-
called toxic talk. In parsing the meaning of these concepts as understood by the Employer, it is
useful to consider the broader implications of an employer’s reliance on attitudinal factors in
imposing discipline. In other words, discipline due to involvement in toxic talk or negativity is
different from discipline imposed in response to deficient work performance (e.g. low
productivity or quality of work) or specific forms of misconduct in the workplace (e.g.
embezzlement, violence, drug abuse).
For very understandable reasons, the Board has a long history of skepticism regarding
employers’ imposition of discipline premised on negative assessments of employees’ attitudes,
particularly when those adverse actions occur in the context of protected concerted activities by
the same employees. As the Board has noted, “[i]t is well settled that an employer’s reference
to an employee’s ‘attitude’ can be a disguised reference to the employee’s protected concerted
activity.” Rock Valley Trucking Co., 350 NLRB 69 (2007). For this reason, the Board has
ordered reinstatement of employees who were discharged for such subjective descriptions of
attitudinal deficiencies as being a “disruptive force” (Skyline Lodge, 305 NLRB 1097, fn. 1
(1992)); or an “instigator” (Boddy Construction Co., 338 NLRB 1083 (2003); or “troublemaker”
(United Parcel Service, 340 NLRB 776 (2003); or for possessing a “bad attitude” (Dayton
Typographic Service, Inc v. NLRB, 778 F.2d 1188, 1193 (6th Cir. 1985).
In several recent cases, the Board has expressed the same concerns regarding the
concept of “negativity” as a workplace offense. In KSL Claremont Resort, 344 NLRB 832
(2005), the Board held that a work rule prohibiting “negative conversations” about coworkers
and managers was unlawful. Its rationale was expressed as follows:
We find that the rule’s prohibition of “negative conversations”
about managers would reasonably be construed by employees
to bar them from discussing with their coworkers complaints
about their managers that affect working conditions, thereby
causing employees to refrain from engaging in protected
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activities. Accordingly, the rule is unlawful. [Citation and
footnote omitted.]
344 NLRB at 832. Of course, it is easy to see that Bardwell’s use of a similar, albeit unwritten,
policy to threaten and discipline his employees represents the same sort of unlawful conduct
and motivation.
The Board’s conclusion that employer sanctions imposed for “negativity” directed toward
complaints about terms and conditions of employment are violative of Section 8(a)(1) was
implicitly reinforced in a very recent case, Worldmark by Wyndham, 356 NLRB No. 104 (2011).
In that case, a sales employee voiced criticisms of a new dress policy imposed by the employer.
He received discipline for expressing “negativity.” 356 NLRB No. 104, slip op. at p.2. While the
Board’s focus in its opinion was on the issue of the concertedness of the activity by the
employees, it accepted without need for additional discussion that it is inherently unlawful to
impose sanctions for protected concerted activity that an employer believes to constitute
“negativity.”
In my opinion, the case that speaks most directly to the issue of sanctions for negativity
happens to have arisen on my own docket. In Salon/Spa at Boro, 356 NLRB No. 69 (2010), the
Board adopted my decision finding the discharge of two employees for violation of the
employer’s negativity policy to be unlawful. The case presented many of the same issues and
concerns as the present litigation. The owner of the hair salon in question presented credible
testimony that, before opening her business, she had conducted a careful study of the industry
and had concluded that the key to a financially successful operation was to create an
atmosphere where customers felt a “culture of love and happiness.” 356 NLRB No. 69, slip op.
at p. 18. As a result, she formulated a policy prohibiting any form of negativity by the staff. The
policy was directed, in part, towards gossip and expressions of personal animosity. In reality, it
was so broad that on one occasion during a snowstorm, an employee entered the salon and
uttered a complaint about the weather. She was admonished for violating the policy against
negativity. Unfortunately, the salon owner also applied the negativity policy toward employees’
expressions of complaints about management actions and workplace procedures. This
culminated in the owner’s decision to fire two hair stylists for violating the negativity policy by
complaining about certain actions and behaviors of management.35
In defending his client, counsel for the salon contended that, “this [e]mployer should not
be punished simply because they have a unique take on how they want their workplace to be.”
356 NLRB No. 69, slip op. at p. 18. I sympathized with this argument then and I continued to do
so now. It appears to me that the Board has an obligation to make a concerted effort to
accommodate an employer’s business model to the extent this is possible consistent with its
obligation to enforce the Act. In Boro, I noted that the Board has striven to do so, citing the
example of W San Diego, 348 NLRB 372 (2006). In that case, management of a hotel had an
operating philosophy intended to make guests feel as though they were staying in a
“Wonderland” where every desire could be fulfilled. 348 NLRB at 372. In order to effectuate
this vision, employees were required to wear a uniform that included a small pin. The hotel
imposed a work rule that prohibited any other forms of adornment to the uniform. The rule was

35 Bardwell also articulated a very similar conception of the breadth of his policies against
negativity and toxic talk, explaining that, “My definition of ‘toxic talk’ would be any talk that is
negative and can spread and create a hostile work environment. I mean, it’d be like a toxic
cloud spreading. I think that’s where the term comes from. But in my mind it can be any talk;
doesn’t matter what it’s about.” (Tr. 230-231.) [Italics supplied.]
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enforced against an employee who chose to wear a union pin in public areas of the hotel. In
declining to find a violation of the Act, the Board held that the hotel had demonstrated “a special
circumstance . . . justifying its prohibition on wearing the pin in public areas of the hotel.” 348
NLRB at 373. [Footnote omitted.]
In Boro, I attempted to discern the possibility of a reaching a similar accommodation with
the employer’s business plan. Ultimately, I was forced to conclude that the breadth of the
negativity policy and its subsequent enforcement rendered such an accommodation impossible.
Thus, I found that the employer’s demand that the staff refrain from all forms of criticism of
management’s actions and decisions was in fundamental and irreconcilable conflict with the
Act’s expressed purpose of, “protecting the exercise by workers of full freedom of association
. . . for the purpose of . . . mutual aid and protection.” (Section 1 of the Act.) In reaching this
outcome, I noted that a negativity policy that prohibited adverse comment on management
decisions would render it impossible for employees to engage in even the most preliminary
forms of concerted activity that the Act was designed to protect. See, 356 NLRB No. 69, slip op.
at pp. 17-18.
In the present case, from a legal standpoint, the situation is identical. While the Board
and its judges must make a good faith effort to accommodate the legitimate business plans and
decisions of the nation’s entrepreneurs, the policies against negativity and toxic talk invoked to
justify the disciplinary actions against Borucki (and, of course, Grossman) cannot be reconciled
with the Board’s duty to enforce the mandate of Congress. Indeed, to the extent that the facts
of this case differ from those of Boro, the need for Board action is underscored. Unlike Boro,
this Employer did not attempt to present a particularized business rationale for the policies
against negativity and toxic talk. More importantly, in Boro, there was no doubt that the
negativity policy was a genuine part of the business plan created at the outset and applied
throughout the entire existence of the salon. In sharp contrast, Borucki provided uncontroverted
and credible testimony that Bardwell never articulated a policy against toxic talk, “until after the
letter, he was given the letter.” (Tr. 165.)
For all of these reasons, I conclude that to the extent the Employer relied on violations of
its policies against negativity and toxic talk, it was acting in violation of the Act’s protections. In
consequence, each such statement of its rationale constitutes clear and unmistakable direct
evidence of unlawful animus as a key motivating factor in the demotion and discharge of
Borucki (and, again, of the discharge of Grossman).
Having found that Borucki engaged in protected concerted activities that were known to
his employer, and that the employer took adverse actions against him that were motivated in
substantial part by unlawful animus against those activities, the burden now shifts to the
Employer to establish that it would have taken the same adverse actions regardless of Borucki’s
participation in protected activities. The Employer advances a number of reasons that it
contends will serve to meet its burden in this regard. In evaluating those reasons, I am mindful
of the Third Circuit’s observation, later cited with approval by the Board, that:
[T]he policy and protection provided by the National Labor Relations
Act does not allow the employer to substitute “good” reasons for
“real” reasons when the purpose of the discharge is to retaliate for
an employee’s concerted activities.
Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1352 (3d Cir. 1969), cited with approval in North
Carolina Prisoner Legal Services, 351 NLRB 464, 469, at fn. 17 (2007). I will now assess the
Employer’s asserted justifications for Borucki’s demotion and almost immediately subsequent
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termination.
In my view, one of the most compelling factors in the assessment of Bardwell’s
motivations underlying his treatment of Borucki is the inconsistency of the asserted
explanations, including the shifting and disparate nature of the rationales being offered for his
ultimate discharge. Thus, in his brief, counsel for the Respondent attempts to assert a relatively
narrow rationale consisting of Borucki’s “dishonesty.” (R. Br., at p. 10.) He argues that Borucki
had provided prior “minor” examples of dishonesty, but it was his “dishonesty in regard to the flu
vaccine marketing [that] was sufficient to tip the scale for termination.” (R. Br., at pp. 10-11.)
In contrast, Bardwell, himself, emphasized these so-called “minor” episodes of what he
viewed as dishonesty and added other rationales. The authoritative expression of his own
asserted reasoning in reaching the decision to discharge Borucki is contained in a written report
that he prepared after his termination meeting with Borucki. It is clear that this report represents
a considered attempt to explain and justify his decision. I readily infer that it was written for the
purpose of memorializing his justifications in the event the discharge provoked controversy or
litigation.
The first justification raised by Bardwell was not the flu shot episode relied on by counsel
in his brief. Rather, it was the bald and unsupported accusation that, “I didn’t believe that he
was sick” when he called in sick for his Saturday shift. (R. Exh. 2, p. 8.) Neither in this report
nor in his testimony did Bardwell present any evidence or reasoning to support this assumption.
Furthermore, this unexplained accusation is gravely undermined by Bardwell’s own assessment
of Borucki’s record of compliance with attendance polices issued less than two weeks earlier.
Thus, in his performance evaluation, written on January 26, Bardwell assessed Borucki using
language in the evaluation form that provided, “Complies with the attendance policy.” (GC Exh.
10, p. 5.) He specifically chose not to use the form’s language for an employee who “Fails to
follow appropriate department procedures regarding scheduled hours (i.e. . . . ill calls, etc.).”
(GC Exh. 10, p. 5.) The utter failure to explain the basis for Bardwell’s conclusion that Borucki
had abused the sick leave policy, coupled with the very recent expression of satisfaction with
Borucki’s history of past compliance with that policy, renders this explanation unpersuasive.
Bardwell next asserted that Borucki had violated attendance rules by failing to inform
him that he had switched shifts with Tom, his fellow radiology technician. As he put it, “Michael
should have contacted me on Wednesday evening or Thursday because we were supposed to
meet every Thursday to discuss sales and marketing for the clinic. So I believe he was
dishonest.” (R. Exh. 2, p. 8.) In the first place, this rationale lacks internal logic. It has not been
explained, or can I understand how the alleged failure to plan his schedule so as to meet with
Bardwell represents “dishonesty.” At most, it would represent a violation of the attendance
policy, a policy which the Employer had recently assessed Borucki as being in general
compliance with. The attempt to twist this into an example of dishonesty represents an
expression of the Employer’s animus rather than an effort to provide a genuine rationale for
Borucki’s termination from employment. Furthermore, there was considerable dispute in the
testimony regarding the Employer’s expectations in this regard. Borucki testified that Bardwell
had told him that it was permissible for him to switch shifts with Tom without seeking advance
approval so long as the change did not result in the Employer’s liability for paying overtime to
Tom. Bardwell testified that he had told Borucki that “he was free to go ahead and do that
[switch shifts with Tom] without notifying me” so long as it did not interfere with the sales
meetings. (Tr. 229.) He conceded that Borucki had often switched shifts without giving him
advance notice. On balance, I conclude that the Employer has not shown that Borucki’s failure
to provide advance notice on this one occasion served as a genuine and significant reason for
the actual decision to terminate him. At most, this would have represented a minor violation of
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their past vague understanding of the proper procedures. Viewed against the backdrop of the
Employer’s very recent formal expression of satisfaction with Borucki’s compliance with
attendance policies, this rationale is also unpersuasive.
The next two rationales presented in Bardwell’s written account are so trivial as to
represent evidence of animus rather than proof of legitimacy. The first was an incident dating
from August 2009 in which Borucki had failed to include the tip when he told Bardwell the
amount due to him as reimbursement for meals purchased at the time employees were on off-
site training. Because of his omission, the submitted written reimbursement claim was
approximately $10 larger than the amount he had verbally reported to Bardwell. It was
undisputed that Borucki was not disciplined at the time and Bardwell’s attempt to dredge up this
petty incident more than 16 months later is evidence of animus.
The same reasoning applies with even more force to the event characterized by
Bardwell’s report as involving, “charg[ing] unapproved items at Target on the clinic credit card.”
(R. Exh. 2, p. 8.) On the surface, this smacks of serious misconduct, even potential theft. In
reality, it is a mere will-o’-wisp. The undisputed evidence revealed that this episode took place
six months before the termination meeting. At that time, the clinic needed bottled water for its
patients. Grossman asked Borucki to go to Target and purchase a case using the clinic’s credit
card. He did make the purchase, to the tune of four dollars. While Bardwell later told him not to
do so in the future, no disciplinary action was taken.
I have already noted that counsel for the Employer, perhaps cognizant of the effect of
these two accusations on an impartial trier of fact, has “recognize[d] that two of the incidents
involving Borucki’s honesty were minor and did not warrant discipline.” (R. Br., at p. 10.) The
fact that Bardwell chose to resurrect them and offer them as rationales for firing an employee is
illustrative of both animus and the desire to disguise an improper motivation. In similar
circumstances, the Board has chastised one employer for asserting “makeweight reasons” that
suggest that it was “simply making up its defense as it went along,” and another for weakening
its defense by merely “grasping for reasons to justify an unlawful discharge.” Desert Toyota,
346 NLRB 118, 120 (2005), rev. denied 265 Fed. Appx. 547 (9th Cir. 2008) and Meaden Screw
Products, 336 NLRB 298, 302 (2001). [Internal punctuation omitted.]
The last reason offered by Bardwell in his report is the only reason relied on by his
counsel in the brief. This consists of the accusation that Borucki lied to Bardwell regarding his
activities in connection with the Employer’s attempt to dispose of excess flu vaccines by offering
flu shot clinics to prior corporate customers. I have little doubt that Bardwell was unhappy with
Borucki’s performance as to the flu shots. It is likely that an employer would be displeased that
its sales person had failed to find even a single customer for these flu shots.36 Nevertheless,
several key factors persuade me that the flu shot clinic issue would not have led to Borucki’s
demotion absent his participation in protected concerted activities regarding the pay cut.
Beyond this, it is clear that Bardwell’s unhappiness about this issue related to Borucki’s
marketing duties. Even if one were to suppose that it contributed to his demotion from those
duties, it had nothing whatsoever to do with his radiology work. It will be recalled that, even
after the failed flu shot campaign, Bardwell had characterized this aspect of Borucki’s job
performance as follows: “Mike does a great job supervising the Radiology Dept.” (GC Exh. 10,
p. 4.)

36 On the other hand, Borucki’s explanation for his failure to locate any customers makes
sense. He explained that he was given this assignment too late in the year. Employers had
already made whatever arrangements for flu season that they wished to undertake.
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My concern regarding the genuineness of the flu shot issue as a factor in Borucki’s
discipline begins with the nature of the Employer’s investigation of the issue. It is undisputed
that Bardwell asked Borucki for a client list. Borucki provided a list of 20 to 30 clients. For
unexplained reasons, Bardwell chose to contact only 4 of those customers. Three of these
were unable to provide any information that would aid in Bardwell’s investigation. One customer
told Bardwell that Borucki had not been in touch with it regarding flu shots. Borucki testified that
he had not contacted that client because Bardwell had agreed to undertake this particular sales
effort himself. Bardwell denied this. Both witnesses are thoroughly interested parties and
neither offered any corroborative evidence to support their opposing accounts.
Taken in full context, I conclude that Bardwell has failed to prove that he discovered
evidence of Borucki’s dishonesty in the conduct of his flu shot duties. Part of this context
consists of my conclusion that Bardwell grasped at other straws to bolster a claim of legitimacy
for his conduct in the face of strong evidence of unlawful animus. Beyond this, Bardwell’s
assessment of Borucki’s job performance, written after the flu shot campaign, undermines his
case. The Employer’s counsel correctly characterizes the overall thrust of this evaluation as
being “generally favorable.” (R. Br., at p. 3.) More specifically, in evaluating Borucki’s success
at his marketing duties, Bardwell gave him a rating of “[m]et requirements with commendations”
as to his record of ability to “[h]andle and make telephone calls to/from corporate clients while
representing NUC Occupational Medicine services.”37 (GC Exh. 10, p. 3.)
With regard to Bardwell’s decision to demote Borucki by removing him from his
marketing position, I conclude that there is some evidence to support a view that this resulted
from a mix of motives, including a very substantial degree of unlawful animus and a lesser
degree of genuine dissatisfaction with Borucki’s success in marketing the clinic’s services.38 On
careful reflection, I conclude that the Employer has failed to meet its burden. As the Board has
explained, “[a]n employer cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same action would have taken place
even in the absence of the protected activity.” Yellow Ambulance Service, 342 NLRB 804
(2004), citing W.F. Bolin co., 311 NLRB 1118, 1119 (1993), enfd. 99 F.3d 1139 (6th Cir. 1996).
Given the strength of the Acting General Counsel’s evidence as to unlawful animus, the
pretextual nature of much of the Employer’s asserted defense, and the proximity in time
between the protected activity and the demotion decision, I conclude that Borucki’s demotion
would not have taken place absent his involvement in the pay cut protests. In this connection, it
is impossible to ignore the compelling documentary evidence consisting of the written warning
issued by Bardwell to Borucki on January 19. In that document, Borucki was advised that
continued involvement in “meetings, whispering, or negativity” would result in “[r]eduction in
salary or [c]hange to straight commission for sales rather than salary.” (GC Exh. 9, p. 1)
While the decision to demote Borucki reflects some component of genuine
dissatisfaction with his marketing job performance, the same cannot be claimed for the decision
to terminate Borucki from his radiology position. It is clear that the demotion effectively resolved

37 It is clear that this was written after Borucki’s lack of success in marketing the flu shots
was evident to Bardwell. No evidence was presented as to the date on which Bardwell
contacted the client who reported that it had not heard from Borucki about flu shots. To the
extent that the record is silent on this point, it cannot assist the Employer in meeting its
evidentiary burden.
38 In this regard, I acknowledge that Bardwell issued two warnings to Borucki prior to the pay
cut controversy. These warnings centered on his performance of sales and marketing duties.
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any legitimate areas of concern about Borucki’s job performance. I have already noted that,
less than two weeks earlier, Bardwell had assessed Borucki’s performance as “great” in his role
as supervisor of the radiology department. (GC Exh. 10, p. 4.) Thorough examination of the
evidence in this case compels a conclusion that the only rationale established in this record that
explains the decision to terminate a “great” department leader from employment was Bardwell’s
ongoing dissatisfaction with Borucki’s involvement in the protected concerted activities
stemming from the pay cut. Because the termination was entirely a product of unlawful animus
against Borucki’s protected activities, it constitutes a violation of Section 8(a)(1).
2. The Termination of Grossman
The Acting General Counsel contends that, on February 8, Bardwell conducted two
meetings with Grossman during which he unlawfully interrogated and threatened her and
ultimately terminated her employment. By way of vital context, it must be recalled that at the
time of Borucki’s discharge two days earlier, Bardwell had requested and received his email
password. He then accessed Borucki’s email account and discovered Grossman’s January 8
email to Ledman and Borucki providing them with her draft of the pay cut protest letter and
Ledman’s response. At 3:28 a.m. on February 8, Bardwell took the trouble to forward these
emails to Grossman at both her work and personal email addresses. When Grossman reported
to the clinic for work at 8 a.m. that morning, she found yet another copy of the emails in her
timecard folder. Her first meeting with Bardwell took place immediately thereafter in his office.
Grossman provided credible and largely uncontroverted testimony regarding her
meetings with her employer on that day. She testified that, upon entering the office, she
encountered Bardwell seated there with a yet another copy of the emails laying on the desk. He
began by asking her, “[w]hat do you have to say about this?” (Tr. 48.) I agree with counsel for
the Acting General Counsel’s contention that this constituted an unlawful interrogation because
it was yet another pointed attempt to ascertain the details of her involvement in protected
activity. In addition, virtually all of the Bourne factors support a finding of a violation. The
Employer’s hostility toward protected activities had just been strongly underscored by the
termination of Borucki. It was clear that his current inquiry was made with the purpose of
seeking information on which to base disciplinary action against Grossman. He was the highest
official of the Employer and the setting was formal. I readily conclude that his question
constituted an unlawful interrogation.
Bardwell followed up his interrogation with a statement that Grossman’s conduct in
writing the pay cut letter “looks like insubordination to me.” (Tr. 48-49.) Thereupon, he
observed that, “[m]aybe I should suspend you without pay and benefits.” (Tr. 49.) I concur with
counsel for the Acting General Counsel’s view that this statement constituted an unlawful threat
of reprisal for Grossman’s participation in the protected activity involved in protesting the pay
cut.
After these preliminary discussions that included an unlawful interrogation and threat,
the meeting was interrupted. It resumed shortly thereafter with the additional presence of
Parker, whom Grossman had summoned to serve as a witness. At this point, Bardwell informed
Grossman that, “I’m just going to terminate you.” (Tr. 50.) When she asked why, he told her
that it was, “[f]or insubordination.” 39 (Tr. 50.)

39 The Board has previously expressed its concern regarding employers’ use of the
disciplinary concept of insubordination to prohibit “concerted employee protest[s] of supervisory
activity.” University Medical Center, 335 NLRB 1318, 1321 (2001), enf. denied in pertinent part
Continued
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Under cross-examination about these events, Bardwell made two key statements. First,
he explained that by terminating Grossman for insubordination, he was referring to her
involvement in an “excessive” and “recurrent” amount of “negative talk, whispering, and closed-
door meetings.”40 (Tr. 279.) Bardwell made one other key statement during this exchange with
counsel for the General Counsel:
COUNSEL: And other than toxic talk and negativity, you regarded
[Grossman] overall as a good and prompt employee?
BARDWELL: Yes.
(Tr. 279.)
Turning now to the heart of the matter involving Grossman, I must evaluate the
lawfulness of her termination at the conclusion of this meeting. The issue of which evaluative
criteria I should properly employ in assessing this question has given me some pause. In
connection with Borucki’s discharge, I have already outlined the criteria the Board employs
where there is a genuine issue of the existence of multiple motivations for the employer’s
disciplinary action. However, the Board also maintains a different evaluative standard for cases
in which the evidence demonstrates only one motivation. In such circumstances, it holds that:
The discharge of an employee will violate Section 8(a)(1) of the Act
if the employee was engaged in concerted activity (i.e. activity
engaged in with or on the authority of other employees and not solely
on her own behalf), the employer knew of the concerted nature of the
employee’s activity, the concerted activity was protected by the Act,
and the discharge was motivated by the employee’s protected
concerted activity.
Triangle Electric Co., 335 NLRB 1037, 1038 (2001). In my view, this is an appropriate standard
to employ in evaluating Grossman’s discharge.
It is clear that Grossman engaged in the concerted activity of planning and implementing
a response to the Employer’s pay cut decision along with Borucki and Ledman. It is equally
clear that, as of February 8, the Employer had unambiguous proof of Grossman’s involvement
in this conduct, consisting of copies of her own email and draft protest letter. For reasons
already discussed, there can be no dispute that such a concerted protest of a pay cut conducted
in a civil and respectful manner constitutes protected activity within the meaning of the Act. It is
also undisputed that, by firing Grossman, the Employer imposed what has been termed, “the
capital punishment of the workplace.” Reno Hilton Resorts, 320 NLRB 197, 209 (1995).
[Internal punctuation omitted.]
_________________________
335 F.3d 1079 (DC Cir. 2003). Much more recently, the Board observed that, “[i]t is well-settled
that a refusal to comply with a directive to cease protected communications does not constitute
insubordination.” Tenneco Automotive, 357 NLRB No. 84, slip op. at p. 5 (2011). That is
precisely the situation presented here.
40 In his testimony, Bardwell indicated that the insubordinate behavior he was referring to
concerned the same activity for which he had issued corrective action forms to Grossman on
January 14 and 18. Earlier in that same testimony, he had reported that this activity included
the closed-door and whispered conversations about his pay cut decision. See, tr. 271-274.
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All that remains is to consider whether the discharge was motivated by Grossman’s
participation in the pay cut protests. I see no reason not to accept Bardwell’s stated rationale
for his decision. Thus, he told Grossman that she was being fired for “negativity” that was
clearly connected to her pay cut protest. This was emphasized by his contemporaneous and
repetitive presentation to her of copies of her email and draft pay cut protest letter.
Furthermore, Bardwell conceded that, apart from this behavior, she was a good employee. The
Board comprehends that the initial explanation offered by an employer when explaining the
termination of an employee has greater probative force than subsequent rationales offered up in
response to outside scrutiny of its motivation. See, Yellow Ambulance Service, 342 NLRB 804,
805 (2004). The evidence establishes that the Acting General Counsel has met his burden of
proving that Grossman was fired as a direct consequence of her employer’s dissatisfaction with
her concerted protected protest activity regarding the pay cut. As a result, the termination
constitutes a violation of Section 8(a)(1).
I recognize that the Employer now asserts a number of additional reasons for the firing
of Grossman. Although I view these reasons as afterthoughts, in the interest of decisional
completeness, I will evaluate them using the Board’s Wright Line methodology. I have already
explained that Grossman engaged in protected activity that was well known to her employer.
Her employer responded by imposing an adverse action that was substantially (if not entirely)
motivated by aminus against her due to her protected activity. As a result, the burden shifts to
the Employer to establish that it would have terminated her employment for other legitimate
reasons.
In response to this burden, the Employer asserts two rationales beyond its disapproval
of her negativity and toxic talk. The first such explanation, described in Bardwell’s formal
termination letter written nine days after her firing, is that Grossman demonstrated “substantial
lack of concern [for] employment.” (GC Exh. 7.) Counsel for the Respondent explains that this
refers to Grossman’s “email communication regarding quitting and collecting unemployment.”
(R. Br., at pp. 9-10.) His reference is to Grossman’s discussion in her email to Borucki and
Ledman indicating her belief that the pay cut constituted a lawful reason for an employee to quit
and receive unemployment compensation under state law. Counsel contends that this
documents Grossman’s involvement in a “scheme to quit and collect unemployment.” (R. Br., at
p. 9.) Nowhere does counsel for the Respondent explain how this expression of an opinion
about the availability of unemployment compensation would constitute unprotected conduct
under the Act. It is apparent to me that employees may discuss such matters when deciding
among themselves how to respond to the imposition of a pay cut.41 I can perceive no difference
between such an expression of viewpoint and a similar discussion of whether to walk off the job
in order to protest the Employer’s pay cut. It will be recalled that such a response was
specifically protected by the Supreme Court in NLRB v. Washington Aluminum Co., supra. I
conclude that this proffered rationale is both unavailing and supportive of the conclusion that
Grossman’s discharge was wholly motivated by animus against her protected activity.
Finally, the Employer alleges that Grossman was discharged, in part, due to her failure
to provide “prompt medical care to a patient.” (GC Exh. 7 and R. Br., at p. 10.) The reference
here is to the patient with the injured finger who was treated at the clinic on January 31. Using

41 While counsel is perhaps insinuating that such a discussion may have involved the
consideration of improper conduct under the state unemployment compensation statutes, he
does not point to anything that would support such an interpretation. I do not perceive
Grossman’s statement as involving any impropriety.
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the Board’s evaluate methods, I readily conclude that this explanation was not a genuine
motivation for Grossman’s discharge. In the first instance, I have considered the compelling
evidence of timing. The timing here has significance in two respects. First, it is noteworthy that
Bardwell was informed about the incident by his wife on the day it occurred. Despite this, he
made no mention of it to Grossman until he wrote his termination letter to her on February 17.42
He never offered any reason for his prior silence. As the Board has observed in a very similar
context, such an unexplained “delay in discipline” is “highly suspect.” Moore Business Farms,
288 NLRB 796, fn. 3 (1988).
The other aspect of timing is even more probative. While Grossman was not discharged
in proximity to her alleged deficiency in treating the finger patient, she was discharged
immediately following the discovery of conclusive proof of her authorship of the pay cut protest
letter. Bardwell’s instantaneous response to his discovery represents timing that can only be
described as “stunningly obvious.” Allstate Power Vac, 357 NLRB No. 33 (2011), slip op. at p.
4, quoting NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970). As the Board has explained,
“where adverse action occurs shortly after an employee has engaged in protected activity, an
inference of unlawful motive is raised.” McClendon Electrical Services, 340 NLRB 613, fn. 6
(2003). The Board has also observed that timing can sometimes be “dramatic” evidence of
unlawful motivation. Saigon Gourmet Restaurant, 353 NLRB 1063, 1065 (2009). This is such a
case.
Apart from timing, a variety of other factors convincingly demonstrate that the finger
patient incident is a mere pretext. I have already noted in connection with Borucki’s firing that
animus is demonstrated by the commission of the string of other unfair labor practices
adjudicated in this case, including those specifically directed at Grossman. Furthermore,
Borucki’s firing just two days prior to Grossman’s termination is strong circumstantial evidence
of illegal motivation. See Extreme Building Services Corp., 349 NLRB 914, 916 (2007)
(discharge of employee shortly after discharge of another employee engaged in the same
protected activities “strongly supports” a finding of unlawful motivation).
Finally, I have considered Bardwell’s own testimony that he relied exclusively on his
wife’s account of the finger patient incident. He never questioned the other employees who
were involved in the patient’s treatment or the patient himself. In addition, he never discussed
the issue with Grossman. This stands in stark contrast to his testimony that he did not routinely
discipline employees when a patient expressed dissatisfaction with treatment. He also reported
that he would investigate such a complaint. The failure to follow such a procedure here,
particularly when Bardwell has conceded that Grossman’s overall job performance had been
good, is evidence of pretext. In Midnight Rose Hotel, 343 NLRB 1003, 1005 (2004), the Board
noted that the failure to conduct an investigation of alleged misconduct and failure to afford the
employee an opportunity to explain her behavior before firing that employee constitute
“significant factors” supporting a conclusion of unlawful conduct. See also, Hospital Espanol
Auxillio Mutuo de Puerto Rico, 342 NLRB 458, 460 (2004), enf. 414 F.3d 158 (1st Cir. 2005)
(“simply accept[ing] the complaints as true, without affording [employee] an opportunity to refute
them” is evidence of unlawful discharge).
For all these reasons, I conclude that the copious evidence convincingly establishes that

42 As Grossman explained, “At the time that I was terminated, there was never any mention
of a patient, never any discussion about a patient, I was never asked about a patient. The first
time I actually heard about this was when I got this [termination] letter.” (Tr. 52.) In his own
testimony, Bardwell confirmed this. See, tr. 278.
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Bardwell did not actually rely on any reasons to terminate Grossman apart from those directly
linked to his animus against her due to her participation in the protected pay cut protest activity.
Grossman’s discharge constitutes a violation of Section 8(a)(1).
3. The Employer’s Rule Prohibiting Employees’ Discussions of Salaries
The Employer maintains an employee handbook that contains the following provision:
“No employee may ever discuss issues of personal salaries or raises with other employees
other than management.” (Jt. Exh. 2, p. 5.) The Acting General Counsel alleges that such a
prohibition violates the Act. Counsel for the Employer, quite properly, does not contest this
allegation and concedes in his brief that the provision contains “prohibited language.”43 (R. Br.,
at p. 7.)
I agree with the lawyers that the Board clearly prohibits maintenance of such a rule
against discussions among employees regarding their pay. As the Board has put it, “employers
may not prohibit employees from discussing their own wages or attempting to determine what
other employees are paid.” Mediaone of Greater Florida, 340 NLRB 277, 279 (2003). [Citations
and footnote omitted.] See also, Longs Drug Stores California, 347 NLRB 500 (2006) (rule
stating, “[y]our pay is confidential company information and should not be discussed with fellow
employees” is unlawful). Based on this, I will make the required finding and order an
appropriate remedy.
Conclusions of Law
1. The Employer unlawfully interrogated its employees as alleged in paragraphs 4(a),
(c), (g), and (w) of the complaint. This conduct violated Section 8(a)(1) of the Act.
2. The Employer unlawfully prohibited its employees from discussing the terms and
conditions of their employment with each other as alleged in paragraphs 4(b), (d), (h), (j), and
(p) of the complaint. This conduct violated Section 8(a)(1) of the Act.
3. The Employer unlawfully disciplined its employees because of their participation in
protected concerted activities as alleged in paragraphs 4(e), (f), (m), and (aa) of the complaint.
This conduct violated Section 8(a)(1) of the Act.
4. The Employer unlawfully threatened its employees due to their participation in
protected concerted activities as alleged in paragraphs 4(k), (l), and (x) of the complaint. This
conduct violated Section 8(a)(1) of the Act.
5. The Employer unlawfully issued an unfavorable evaluation of its employee, Michael
Borucki, due to his participation in protected concerted activities as alleged in paragraphs 4(r)
and (aa) of the complaint. This conduct violated Section 8(a)(1) of the Act.

43 Counsel for the Respondent does assert that there was never any proof that “the
prohibited language in the handbook was the basis for employee discipline.” (R. Br., at p. 7.)
This is not entirely accurate. In his testimony, Bardwell conceded that, during an unemployment
hearing, the clinic’s attorney (not Mr. Reppe) argued that Borucki’s conduct violated this rule.
See, tr. 260-262. In any event, if the rule is unlawful on its face, the Acting General Counsel
does not need to prove that it was actually enforced. See, Double Eagle Hotel & Casino, 341
NLRB 112, 115 (2004), enf. 414 F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006)
(rule prohibiting salary discussions is “plainly” unlawful “on its face”).
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6. The Employer unlawfully demoted and terminated its employee, Michael Borucki,
due to his participation in protected concerted activities as alleged in paragraphs 4(t), (v), and
(aa) of the complaint. This conduct violated Section 8(a)(1) of the Act.
7. The Employer unlawfully terminated its employee, Jennifer Grossman due to her
participation in protected concerted activities as alleged in paragraphs 4(y) and (aa) of the
complaint. This conduct violated Section 8(a)(1) of the Act.
8. The Employer unlawfully maintained a provision in its Employee Handbook that
prohibits its employees from discussing their compensation with each other as alleged in
paragraph 4(z) of the complaint. This conduct violated Section 8(a)(1) of the Act.
9. The Acting General Counsel did not meet his burden of proving that the Employer
engaged in unlawful surveillance of its employees and in the unlawful creation of an impression
of such surveillance as alleged in paragraphs 4(i), (q), and (s) of the complaint.
10. The Acting General Counsel did not meet his burden of proving that the Employer
unlawfully threatened its employees as alleged in paragraphs 4(n) and (u) of the complaint.
11. The Acting General Counsel did not meet his burden of proving that the Employer
unlawfully prohibited an employee from discussing her terms and conditions of employment with
other employees as alleged in paragraph 4(o) of the complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. This will include a requirement that the Respondent rescind its
handbook provision prohibiting its employees from discussing their compensation with each
other.
With regard to Borucki, I will order the Respondent to rescind its unlawful performance
evaluation (GC Exh. 10) and corrective action form (GC Exh. 9) and to remove all references to
those matters in its files. I will also order that he be offered reinstatement to his sales and
marketing duties and radiology supervisor duties and that he be reimbursed for his loss of pay
and benefits from the dates of his demotion and discharge, respectively, computed on a
quarterly basis until the date of such proper offer of reinstatement, less any net interim earnings,
as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950). I will order that the make whole
remedy shall include the payment of interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
As to Grossman, I will order the Respondent to rescind its unlawful corrective action
forms (GC Exhs. 4 and 5) and to remove all references to those matters in its files. I will also
order the Respondent to offer her reinstatement and make her whole for any loss of earnings
and other benefits, computed on a 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). I will order that the make whole remedy shall include the payment of interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
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Finally, I will order that the employer post a notice in the usual manner, including
electronically to the extent mandated in J. Picini Flooring, 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended44
ORDER
The Respondent, Northfield Urgent Care, LLC, Northfield, Minnesota, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees regarding their participation in
protected concerted activities and the participation of other employees in such activities.
(b) Prohibiting its employees from discussing the terms and conditions of their
employment with each other.
(c) Threatening its employees with reprisals because of their participation in
protected concerted activities.
(d) Disciplining its employees because of their participation in protected
concerted activities.
(e) Issuing unfavorable performance evaluations to its employees because of
their participation in protected concerted activities.
(f) Demoting Michael Borucki or any other of its employees because of their
participation in protected concerted activities.
(g) Discharging Michael Borucki, Jennifer Grossman, or any other of its
employees because of their participation in protected concerted activities.
(h) Maintaining or enforcing a handbook provision or work rule that prohibits
employees from discussing their compensation with each other.
(i) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, rescind the provision in its
Employee Handbook prohibiting its employees from discussing their compensation with each
other.

44 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(b) Within 14 days from the date of the Board’s Order, remove from its files the
unlawful corrective actions forms issued to Michael Borucki and Jennifer Grossman and the
unfavorable performance evaluation issued to Michael Borucki and, within 3 days thereafter,
notify each of them in writing that this has been done and that the corrective action forms and
unfavorable performance evaluation will not be used against them in any way.
(c) Within 14 days from the date of the Board’s Order, offer Michael Borucki and
Jennifer Grossman full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(d) Make Michael Borucki whole for any loss of earnings and other benefits
suffered as a result of his unlawful demotion and discharge, in the manner set forth in the
remedy section of this decision.
(e) Make Jennifer Grossman whole for any loss of earnings and other benefits
suffered as a result of her unlawful discharge, in the manner set forth in the remedy section of
this decision.
(f) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful demotion of Michael Borucki and the unlawful discharges of Michael
Borucki and Jennifer Grossman, and within 3 days thereafter, notify each of them in writing that
this has been done and that the demotion and discharges will not be used against them in any
way.
(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(h) Within 14 days after service by the Region, post at its facility in Northfield,
Minnesota, copies of the attached notice marked “Appendix.”45 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since January 12, 2011.

45 If this Order in enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(i) 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 insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. September 30, 2011
____________________
Paul Buxbaum
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate our employees regarding their participation in protected
concerted activities or regarding the protected concerted activities of other employees.
WE WILL NOT prohibit our employees from discussing the terms and conditions of their
employment with each other.
WE WILL NOT threaten our employees with reprisals because of their participation in protected
concerted activities.
WE WILL NOT discipline our employees because of their participation in protected concerted
activities.
WE WILL NOT issue unfavorable performance evaluations to our employees because of their
participation in protected concerted activities.
WE WILL NOT demote our employees because of their participation in protected concerted
activities.
WE WILL NOT discharge Michael Borucki, Jennifer Grossman, or any other of our employees
because of their participation in protected concerted activities.
WE WILL NOT maintain a handbook provision or work rule that prohibits our employees from
discussing their compensation with each other.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed by Federal labor law.
WE WILL, within 14 days from the date of the Board’s Order, rescind the provision in our
Employee Handbook prohibiting employees from discussing their compensation with each
other.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files the unlawful
corrective action form and unfavorable performance evaluation issued to Michael Borucki and
the unlawful corrective action forms issued to Jennifer Grossman and, within 3 days thereafter,
WE WILL notify each of them in writing that this has been done and that these corrective action
forms and performance evaluation will not be used against either of them in any way.
WE WILL, within 14 days from the date of the Board’s Order, offer Michael Borucki and Jennifer
Grossman full reinstatement to their former jobs or, if these jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Michael Borucki whole for any loss of earnings and other benefits resulting from
his demotion and discharge, less any net interim earnings, plus interest.
WE WILL make Jennifer Grossman whole for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days of the date of the Board’s Order, remove from our files any reference
to the demotion and discharge of Michael Borucki and the discharge of Jennifer Grossman, and
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the demotion and discharges will not be used against them in any way.
Northfield Urgent Care, LLC
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Towle Building, Suite 790, 330 Second Avenue South, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.