Santa Maria El Mirado

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 715 (N.L.R.B. 2003)

SANTA MARIA EL MIRADOR

715
Santa Maria El Mirador and Ed Gellis. Case 28–CA–
16824
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER
AND WALSH
On September 26, 2001, Administrative Law Judge
Thomas Michael Patton issued the attached decision.
The General Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondent filed an
answering brief. The Charging Party also filed a reply
brief and a motion to correct the record.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions2 and briefs, and has decided to
affirm the judge’s rulings, findings,3 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found no merit in the complaint allegations
that the Respondent violated Section 8(a)(1) of the Act by
(1) promulgating an overly broad no-access rule and by (2)
discharging employee Ed Gellis on October 20, 2000, be-
cause he engaged in the protected concerted activity of
circulating letters to other employees for their signatures
regarding wages, hours, and other terms and conditions of
employment. Applying established Board precedent, we
reverse the judge and find that the Respondent violated the
Act as alleged in these two respects.
Background
The Respondent is a nonprofit organization that serves
developmentally disabled adults in, among other facili-

1 The Charging Party moves to correct the record, arguing that on p.
4, L. 31 of his decision, the judge inadvertently confused the identity of
two individuals mentioned in this case. The Charging Party maintains
that the judge’s error makes it appear as if the individual with the ini-
tials E.C. is the same individual referred to elsewhere in the judge’s
decision as a pedophile. In fact, E.C. is not the individual identified as
a pedophile. Accordingly, we grant the Charging Party’s motion and
shall correct the judge’s decision as follows: on p. 4, L. 31, the term,
“the pedophile” should be substituted for the initials “E.C.” in both
places those initials appear.
2 No exceptions were filed to the dismissal of allegations that the
Respondent violated Sec. 8(a)(1) by interrogating an employee about
protected concerted activities and by impliedly threatening employees
with retaliation for engaging in protected concerted activities.
3 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
ties, nine group homes in Santa Fe, New Mexico. Four
clients reside in each group home. The clients suffer
from mental retardation, mental illness, and behavioral
disorders. Many have multiple disorders and some cli-
ents must be prevented from engaging in self-abusive
behavior, violence, and inappropriate behavior directed
at staff, other residents, and members of the public.
The homes are staffed 24 hours a day, 7 days a week
on rotating shifts, with one skills trainer on duty for each
shift. The skills trainers work under the supervision of
team managers and assistant team managers. None of
the skills trainers sleep at the facilities. The skills train-
ers work with clients in activities such as cooking, clean-
ing, and personal grooming. They also accompany the
clients on supervised trips to community resources such
as banks, libraries, and shopping malls. Specialists visit
the homes to provide necessary medical and therapy ser-
vices to the clients.
Ed Gellis, the alleged discriminatee, was a skills
trainer for over 6 years before he was discharged on Oc-
tober 20, 2000. He worked at the Respondent’s Ponder-
osa facility from 1997 until being transferred to the Ala-
mosa home in August 2000 where he worked until the
time of his discharge. Gellis provided the same services
to clients as the other skills trainers. Gellis’ team man-
ager was Roberto Rodas and the assistant team managers
involved in the events leading to Gellis’ discharge were
Sergio Garcia and Eli Mora. Team managers reported to
Program Director Anita Westbrook. Respondent’s hu-
man resources director was Barbara Craft.
The Respondent has had a policy in effect at its facili-
ties since at least 1997 concerning visits to on-duty skills
trainers. The conduct and work rules section of the Re-
spondent’s human resources guidelines prohibits:
Visits (excessive or prolonged) from relatives, friends,
or off-duty staff while on duty, any behavior which
prohibits the on-duty staff from discharging the duties
of his/her job.
The guidelines provide that disciplinary action up to
and including termination of employment may be im-
posed for violating the rules. Employees are required to
sign an acknowledgement of having received a copy of
the guidelines, and Gellis signed the acknowledgement in
1995 and 1997. Also in 1997, and again in 1998, Gellis
signed a form entitled, “Santa Maria El Mirador Dis-
missal Acknowledgement,” which reads in relevant part:
I understand that the following behaviors are
grounds for immediate dismissal. They include, but
are not limited to,
. . . .
340 NLRB No. 84
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
Having visitors (relatives/friends/off duty staff)
while on duty . . . .
In late August 2000, Gellis learned that a letter dated
August 18, addressed to Program Director Westbrook,
was being circulated among employees for signature.
The letter discussed a number of issues concerning the
working conditions of employees at the Respondent’s
Santa Fe group homes, including, among other things,
staffing ratios, the alleged lack of support given by man-
agement to skills trainers, and the fact that new hires
were paid the same wages as more senior employees.
Gellis signed the letter on August 23, and also began
circulating it.
Gellis redrafted the August 18 letter, dated it Septem-
ber 7, 2000, and began circulating it along with the letter
of August 18th. The new draft was also addressed to
Westbrook and also concerned working conditions, but
emphasized the alleged lack of open communication be-
tween staff and management and the alleged fear the staff
felt in speaking out in instances where they disagreed
with management’s directives. Gellis was the first em-
ployee to sign the new draft on September 12. Gellis
also solicited signatures on his letter from approximately
30 employees.
On September 20, 2000, while he was off duty, Gellis
went to the Respondent’s Del Sur group home where he
met for 10 to 15 minutes with fellow employee Eddie
Martinez,4 who had just completed his shift. Gellis and
Martinez discussed the letters Gellis was circulating.
Gellis and Martinez were observed in conversation by
lead skills trainer Bernadette Romero,5 but she could not
hear what they were saying. The judge credited Ro-
mero’s testimony that Gellis and Martinez spoke for sev-
eral minutes inside the house but exited when Assistant
Team Manager Mark Geraghty drove up. Geraghty en-
countered the two as they were exiting the house.
In a memo dated that same day, addressed to Assistant
Team Manager Sergio Garcia with copies to Team Man-
ager Rodas, Program Director Westbrook, and Human
Resources Director Craft, Gellis informed the Respon-
dent that he had been circulating two documents that
addressed “some serious problems” that the direct care
staff was facing. The memo also informed the Respon-
dent that Gellis had written one of the documents and
was circulating both documents, but that both the writing

4 Martinez usually worked at the Acequia group home, but had
worked a shift that day at the Del Sur group home.
5 The lead skills trainer position is nonsupervisory. However, Ro-
mero, who testified for the Respondent at the trial, was promoted to the
supervisory position of assistant team leader 4 days after Gellis was
discharged.
and circulating were done on his own time, when he was
not on duty.
On September 25, 2000, Geraghty sent a memo to
Westbrook, reporting on a conversation he had with
Skills Trainer Eddie Martinez outside the Del Sur group
home on September 20. Geraghty’s memo stated that he
saw an unusual number of cars parked in front of the Del
Sur home on September 20th, and he stopped to find out
why. As he was entering, the memo continued, Martinez
and Gellis were leaving. The memo stated that Geraghty
found this odd because neither employee worked at Del
Sur, but that Martinez explained to him that he and Gellis
had met there so that Martinez could give Gellis direc-
tions to the Acequia group home because Gellis did not
know where it was located.
Sometime in September, prior to September 27, Gellis
had a conversation at the Alamosa group home where he
was working with Assistant Team Managers Sergio Gar-
cia and Eli Mora as they were inspecting the home dur-
ing Gellis’ shift. Gellis advised the men of the concerns
of the direct care staff and told them that if things did not
improve, the staff was talking about the possibility of
“getting a union.”
On September 25 and again on September 26, Gellis
left different memos with Craft concerning other matters.
In response to these memos, Craft called Gellis on Sep-
tember 27, but the conversation soon evolved into a dis-
cussion of the letters concerning terms and conditions of
employment that Gellis had been circulating for employ-
ees’ signatures.
Craft prepared a personal memorandum after the
phone call summarizing her conversation with Gellis.
According to Craft’s memo, Gellis opened the topic of
the letters and the employees’ concerns, to which Craft
replied that she was glad he brought up the topic of the
letters because she was always available to talk to em-
ployees about their problems. Craft’s memo stated that
she asked Gellis if she could get a copy of the letters and
assured Gellis that there would be “no retribution.” Craft
told Gellis that his letters were bad for morale, created a
negative atmosphere and were a detriment to all in-
volved. She said the only way to deal with the problems
addressed in the letters was to sit down with her face to
face and address the situations. Craft’s memo continued
I also reminded Ed that he violated [the Respondent’s]
policy by going to Del Sur to discuss the letters with
employees. I told him that this kind of activity could
not take place on [the Respondent’s] property.
After Craft spoke with Gellis on September 27, she
spoke with Rodas, Gellis’ team leader. Towards the end
of the discussion, Rodas stated that he wanted to termi-
SANTA MARIA EL MIRADOR 717
nate Gellis. Craft suggested that they consult with West-
brook, Rodas’ supervisor, before taking any action.
Westbrook was on vacation at the time and was sched-
uled to return on October 2.
Within a week or two of her return from vacation,
Westbrook met with Craft and Rodas to discuss Gellis’
possible discharge. Rodas recommended that Gellis be
terminated, and Craft did not oppose the recommenda-
tion. Westbrook agreed with Rodas that Gellis should be
terminated based primarily on his September 20 visit to
Del Sur. Westbrook stated that because of Gellis’ tenure
with the Respondent, he should have been well aware of
its policy against visiting group homes, that it was time
to “just end it all,” and that she wanted to terminate Gel-
lis’ employment with the Respondent.
Prior to discharging Gellis, Craft consulted counsel
and prepared Cobra insurance information for Westbrook
to present to Gellis. On October 20, 2000, about 6:30
a.m., approximately one-half hour before the end of Gel-
lis’ shift, Westbrook and Rodas arrived without notice at
the Alamosa home where Gellis was working, and dis-
charged Gellis by presenting him with a letter of termina-
tion that gave no reasons for his discharge. The letter
stated that if Gellis went on the Respondent’s property
for any reason other than picking up his paycheck, it
would be considered a trespass and Gellis would be
prosecuted.
Based on the foregoing, the General Counsel issued a
complaint alleging that the Respondent violated Section
8(a)(1). The allegations are based on the following inci-
dents:

Craft’s September 27th statement to Gellis, as
memorialized in her personal memo of that same
date, that it was a violation of the Respondent’s pol-
icy to go to Del Sur [a group home] to discuss letters
about working conditions with employees and her
statement to Gellis that [] “this kind of activity could
not take place on the [Respondent’s] property.”
Respondent’s October 20th discharge of em-
ployee Gellis because he went to the Del Sur group
home on September 20th to discuss the letters about
working conditions with employee Ed Martinez
while both employees were off duty.

As stated above, the judge recommended dismissal of
the complaint allegations that the Respondent violated
Section 8(a)(1) of the Act by promulgating an overly
broad no-access rule and by discharging employee Ed
Gellis on October 20, 2000. Both the General Counsel
and the Charging Party have excepted to these dismiss-
als. For the reasons set forth below, we reverse the
judge’s decision and find that the Respondent violated
Section 8(a)(1) in both respects.
ANALYSIS
1. The no-access rule
The judge, citing Tri-County Medical Center, 222
NLRB 1089 (1976), stated that in order for an em-
ployer’s rule restricting access of off-duty employees to
its premises to be valid, the rule must:
Limit[] access solely with respect to the interior of the
plant and other working areas; (2) [be] clearly dissemi-
nated to all employees; and (3) appl[y] to off-duty em-
ployees seeking access to the plant for any purpose and
not just to those employees engaging in union activity.
Finally, except where justified by business reasons, a
rule which denies off-duty employees entry to parking
lots, gates, and other outside nonworking areas will be
found invalid.
The judge acknowledged that the burden was on the Re-
spondent to prove that its rule limiting access of off-duty
employees met the Tri-County standard.
The judge concluded that, when viewed in context,
Craft did not promulgate a new rule and that the Respon-
dent’s existing rule applied only in working areas. The
judge reiterated that the wording of the “Dismissal Ac-
knowledgement” previously signed by Gellis in 1997 and
1998, prohibited on-duty employees from having off-
duty employees as visitors. The judge stated that the
purpose of the no-access rule was to keep off-duty em-
ployees out of the group homes so that the on-duty skills
trainer could be constantly monitoring the residents. The
judge found that Craft’s statement to Gellis on Septem-
ber 27 that he “violated [the Respondent’s] policy by
going to Del Sur to discuss the letters with employees”
and “that this kind of activity could not take place on [the
Respondent’s] property” did not establish that “a new
rule was announced that would have any effect on off-
duty employees in non-work areas.”6 The judge, there-
fore, recommended that this complaint allegation be dis-
missed. We disagree.
The complaint does not challenge the legality of the
Respondent’s written no-access rule, which dates back to
1997, and is set forth in its human resources guidelines
and its dismissal acknowledgement form. Therefore, for
purposes of our analysis, we will assume that that rule is
valid.
However, the complaint does allege that in September
2000, the Respondent promulgated an unlawful no-

6 The judge, however, made no finding as to whether Gellis and
Martinez were in a work area during their September 20 meeting at the
Del Sur facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
access rule. We agree that Craft committed this violation
by her September 27 statements to Gellis, as memorial-
ized in Craft’s accompanying memo on that date, that
Gellis “violated [the Respondent’s] policy by going to
Del Sur to discuss the letters with employees” and that
“this kind of activity could not take place on [the Re-
spondent’s] property.” Unlike the judge, Chairman Bat-
tista and Member Schaumber find no need to apply the
principles of Tri-County Medical Center, supra, to find
that Craft’s statements and memo were unlawful. Craft’s
newly promulgated rule was expressly aimed at “going to
Del Sur to discuss the letters with employees.” Thus, the
rule was not a general one involving access to other fa-
cilities but rather was specifically aimed at employees
engaging in Section 7 activities at other facilities. In
addition, the rule effectively prohibited “this kind of ac-
tivity,” on any of Respondent’s properties. For these
reasons, contrary to the judge, Chairman Battista and
Member Schaumber find that on September 27th, the
Respondent, through Craft, promulgated and maintained
an unlawful no-access rule in violation of Section 8(a)(1)
of the Act.7
2. The Respondent’s discharge of Gellis
The judge analyzed Gellis’ discharge under Wright
Line.8 The judge found that Gellis was engaged in activ-
ity protected by Section 7 of the Act when he circulated
the letters among his fellow employees for them to sign,
and that the Respondent was aware that Gellis was en-
gaged in that activity. However, having found that Craft
did not promulgate an unlawful expansion of the Re-

7 In agreeing with his colleagues that the Respondent violated Sec.
8(a)(1) by promulgating and maintaining an unlawful no-access rule,
Member Walsh applies the well-established principles of Tri-County
Medical Center, supra. First, the newly promulgated rule did not limit
access of off-duty employees solely to the interior of the group homes.
Rather, it was a blanket prohibition on access to the Respondent’s
property, and thus it included the driveways, parking spaces, and other
nonclient, nonwork areas. Second, the rule was not clearly dissemi-
nated to all employees. Third, Craft’s newly promulgated rule specifi-
cally prohibited what Craft called “this kind of activity.” Because the
“activity” Gellis and Craft were discussing in that September 27 con-
versation was the distribution and solicitation of signatures on letters
concerning employees’ terms and conditions of employment, it is clear
that the newly promulgated rule was being applied to protected con-
certed activity particularly and not necessarily to other activities by off-
duty employees. Finally, the Respondent offered no sufficient business
justification for denying off-duty employees access to the outside,
nonworking areas of the group homes such as the driveways and park-
ing areas. For these reasons, contrary to the judge and in agreement
with his colleagues, Member Walsh finds that on September 27th, the
Respondent, through Craft, promulgated and maintained an unlawful
no-access rule in violation of Sec. 8(a)(1) of the Act.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). See also Manno Electric,
321 NLRB 278 fn. 12 (1996).
spondent’s valid no-access rule, and that Gellis violated
that rule when he visited Martinez at Del Sur, the judge
concluded that Gellis was engaged in unprotected con-
duct and that the Respondent did not violate Section
8(a)(1) of the Act when it discharged Gellis for violating
its no-access policy. For the following reasons, we dis-
agree with the judge.
The judge found that the primary justification for dis-
charging Gellis was his violation of the no-access rule
stated by Craft on September 27 by meeting with Marti-
nez at the Del Sur facility.
We have found this rule to be unlawful. The Respon-
dent admits that the violation of the rule, i.e., Gellis’
meeting with Martinez at Del Sur, was the “final straw”
in the discharge of Gellis. Phrased differently, the Re-
spondent admits that the meeting was the reason for the
discharge of Gellis. Accordingly, the discharge was
unlawful.
In the alternative, even if the General Counsel has
shown that the meeting was a reason for the discharge,
the Respondent has failed to show that there were other
(lawful) reasons which, by themselves, would have
caused the discharge. See Wright Line, supra. Under
this analysis, the General Counsel would have satisfied
the initial burden of proof. The burden then shifts to the
Respondent to show that there were other reasons that
would have caused the discharge even if there were no
protected activity. The Respondent has failed to meet
that burden. In this regard, the Respondent points to a
number of incidents to show there were lawful reasons
for Gellis’ discharge such as: failure to watch a patient
while on duty; failure to notice that the facility’s refrig-
erator was broken resulting in spoiled food; and refusal
to distribute certain medications to patients. However, as
the General Counsel points out, the Respondent had pre-
viously disciplined Gellis for these incidents and, in one
instance, rescinded the discipline. In any event, all of the
incidents occurred months prior to Gellis’ discharge and
there is no evidence that the Respondent cited any of
these reasons at the time of Gellis’ discharge. By con-
trast, as noted above, the record is replete with evidence
that the Respondent relied on Gellis’ distribution of let-
ters and his violation of the Respondent’s unlawful no-
access rule as the reasons for his discharge. Thus, we
find that the Respondent has not met its burden of show-
ing that it would have discharged Gellis in the absence of
his protected concerted activity.
Accordingly, we find, contrary to the judge, that the
Respondent violated Section 8(a)(1) of the Act by termi-
nating employee Ed Gellis because he engaged in pro-
tected concerted activities.
SANTA MARIA EL MIRADOR 719
CONCLUSIONS OF LAW
1. By promulgating an overly broad no-access rule on
September 27, 2000, the Respondent violated Section
8(a)(1) of the Act.
2. By discharging employee Ed Gellis on October 20,
2000, because he engaged in the protected concerted
activity of circulating letters to other employees regard-
ing wages, hours, and other terms and conditions of em-
ployment, the Respondent violated Section 8(a)(1) of the
Act.
3. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
4. The Respondent has not otherwise engaged in any
unfair labor practices.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
of the Act, we shall order it to cease and desist and to
take certain affirmative action designed to effectuate the
purposes of the Act.
Specifically, the Respondent shall rescind its unlawful
no-access rule promulgated by Human Resources Direc-
tor Barbara Craft on September 27, 2000, and notify the
affected employees that this has been done. The Re-
spondent shall also remove from its files any reference to
Ed Gellis’ unlawful discharge and notify Gellis that this
has been done and that the discharge will not be used
against him in any way. Further, the Respondent shall
offer Ed Gellis immediate and full reinstatement to his
former position in the Santa Fe area or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any employee hired since the date of his dismissal. The
Respondent shall also make Ed Gellis whole for any loss
of earnings and other benefits suffered by reason of the
discrimination against him. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Santa Maria El Mirador, Santa Fe, New
Mexico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining, and enforcing an overly
broad no-access rule.
(b) Discharging its employee Ed Gellis or any other
employee because that employee has engaged in pro-
tected concerted activity.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the no-access rule promulgated on Sep-
tember 27, 2000, denying employees access to exterior
and nonworking areas of its nine group home facilities in
the Santa Fe, New Mexico area while off duty and notify
the affected employees that this has been done.
(b) Within 14 days from the date of this Order, offer
Ed Gellis full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position
without prejudice to his seniority or any other rights or
privileges he previously enjoyed.
(c) Make Ed Gellis whole for the loss of earnings and
other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of this decision.
(d) Within 14 days of the date of this Order, remove
from its files all reference to Ed Gellis’ unlawful dis-
charge, and within 3 days thereafter notify Gellis in writ-
ing that this has been done and that evidence of this
unlawful discharge will not be used against him in any
way.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its nine group home facilities in the Santa Fe, New Mex-
ico area, copies of the attached notice marked “Appen-
dix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable 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 busi-

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
ness or closed any of the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent at
any of its nine group homes in the Santa Fe, New Mexico
area at any time since September 27, 2000.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT promulgate, maintain, or enforce an
overly broad no-access rule.
WE WILL NOT discharge employee Ed Gellis or any
other employee for engaging in protected concerted ac-
tivity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the no-access rule promulgated on
September 27, 2000, denying employees access to exte-
rior and nonworking areas of our nine group home facili-
ties in the Santa Fe, New Mexico area while off duty and
WE WILL notify the affected employees that this has
been done.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ed Gellis full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position without prejudice to his seniority or any
other rights or privileges he previously enjoyed.
WE WILL make Ed Gellis whole for the loss of earn-
ings and other benefits he suffered as a result of the dis-
crimination against him, with interest.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files all reference to Ed Gellis’
unlawful discharge, and WE WILL, within 3 days there-
after, notify Gellis in writing that this has been done and
that evidence of this unlawful discharge will not be used
against him in any way.
SANTA MARIA EL MIRADOR
Lew Harris, Attorney, for the General Counsel.
Michael T. Pottow, Attorney (Catron, Catron and Sawtell,
P.A.), for the Respondent.
Ed Gellis, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS MICHAEL PATTON, Administrative Law Judge.
This case was heard at Santa Fe, New Mexico, on May 30 and
31, 2001. Ed Gellis filed the charge on October 23, 2000. The
charge alleges violations of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by Santa Maria El Mira-
dor1 (the Employer or Respondent). The complaint issued on
December 22, 2000.
The complaint alleges that the Employer violated Section
8(a)(1) of the Act by discharging Gellis on October 20, 2000,2
because he engaged in the protected concerted activity of circu-
lating letters to other employees regarding wages and hours and
other terms and conditions of employment. The complaint also
alleges that the Employer violated Section 8(a)(1) on Septem-
ber 19 and October 3, by promulgating an overly broad no-
access rule and that the Employer’s human resources director
impliedly threatened Gellis with retaliation for engaging in
concerted activities and coercively interrogated Gellis about
employees’ concerted activities.3 The answer denies any viola-
tion of the Act.
The following findings are based upon the entire record, in-
cluding the posthearing briefs filed by the General Counsel and
the Employer. Many of the facts are not in dispute. In assess-
ing credibility testimony contrary to my findings has not been
credited, based upon a review of the entire record and consid-
eration of the probabilities and the demeanor of the witnesses.
See NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits facts showing that it meets the
Board’s jurisdiction standards and that it is an employer en-

1 Sometimes abbreviated SMEM.
2 Unless otherwise indicated, all dates are in 2000.
3 Complaint pars. 5(a)(1) and 5(a)(2) also allege independent viola-
tions of Sec. 8(a)(1) by Bernadette Romero. No evidence was offered
to establish those allegations. The Employer’s unopposed motion to
dismiss those allegations at the close of the General Counsel’s case-in-
chief was granted. The complaint does not allege any violation of Sec.
8(a)(3).
SANTA MARIA EL MIRADOR 721
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Employer is a nonprofit organization serving develop-
mentally disabled adults. Its operations in Santa Fe, New Mex-
ico, include nine group homes. Four residents, also called par-
ticipants or clients, live in each home. The homes are staffed
24 hours a day on rotating shifts. Typically there is one staff
person present for each shift. That employee’s title is skills
trainer. The skills trainers do not sleep at the homes.
Ed Gellis was a skills trainer for over 6 years before he was
discharged on October 20. The skills trainers work under the
supervision of team managers and assistant team managers.
Gellis’ team manager was Roberto Rodas. Assistant Team
Managers Sergio Garcia and Eli Mora were assistant team man-
agers who were involved in events relevant to Gellis’ discharge.
Bernadette Romero was a lead skills trainer (a nonsupervisory
position) who was made an assistant team manager in October.
The team managers reported to Program Director Anita West-
brook. Registered Nurse Estella Trujillo was in charge of medi-
cal services that are provided by her and other nurses. The Em-
ployer’s human resources director was Barbara O. Craft and the
Employer’s executive director was Mark Johnson.
The evidence consists of testimony by Gellis, Rodas, Romero,
Westbrook, Trujillo, Craft, and Johnson, as well as documentary
evidence. The documentary evidence includes a Board affidavit
given by Rodas during the administrative investigation of the
charge. That affidavit consists of a statement of 7 pages, plus 30
pages of attached documents. This affidavit was received as a
stipulated exhibit. Rodas was called as a witness by the General
Counsel and was subject to cross-examination regarding the
affidavit, including the attachments. Since I was afforded an
opportunity to observe Rodas testify, I am in a position to de-
termine whether testimony by witnesses at the hearing was more
reliable than Rodas’ affidavit and its attachments or vice versa.
Neither the Employer nor the General Counsel has contended
that the affidavit and its attachments should not be treated as
affirmative evidence. As a stipulated exhibit the affidavit is
affirmative evidence in the particular circumstances of this case.
See Alvin J. Bart, 236 NLRB 242 (1978). Cf. Eugene Iovine,
Inc., 328 NLRB 294 fn. 5 (1999).
With one exception, I find that the appearance, contents,
substance, internal patterns and other distinctive characteristics
of the documents attached to the Rodas affidavit, taken in con-
junction with the circumstances, establish that they are docu-
ments taken from the Employer’s business records, that they
are what they purport to be and are, like the statement to which
they are attached, affirmative evidence. The exception is the
attachment numbered 070, which purports to be a list summa-
rizing disciplinary actions taken against Gellis. That document
has not been considered in reaching my decision.
Santa Maria hired Gellis in 1994. Beginning in the summer
of 1997, Gellis was assigned to the Ponderosa group home and
in August 2000, he was transferred to the Alamosa group home
where he was working at the time of his discharge. In the
month prior to his discharge he, together with the other em-
ployees, received a cost of living raise, bringing his salary at
the time of his discharge to $18,564. At the time he received
the cost of living raise he received a letter thanking him for his
“day to day hard work.” The salutation of the letter is “Dear
Gellis, Edward J:” and is obviously a form letter that Craft
credibly testified was sent to all skills trainers using a word
processor merge program at the time all employees received
their cost of living raise. At the time of his discharge Gellis
was also receiving on the job training to be an architectural
draftsman by an unrelated employer. He was working as a
draftsman at the time of the hearing.
Johnson, Craft, and Rodas credibly testified regarding the
operation of the group homes, the needs of the residents, the
responsibilities of the skills trainers and the rules governing
their job performance.
The skills trainers work with residents in activities such as
cooking, cleaning, personal grooming, and other areas of eve-
ryday normal living. Medical and therapy specialists visit the
homes to provide medical and specialized professional services.
The skills trainers accompany residents of the group homes on
supervised trips to community resources such as banks, grocery
stores, shopping malls, theaters, and public libraries. An objec-
tive is to provide a normal home atmosphere for the residents.
The residents suffer from mental retardation, mental illness,
and behavioral disorders. Many have multiple disabilities. Some
residents must be controlled to prevent self-abusive behavior, as
well as violence and inappropriate behavior directed at other
residents, staff, and members of the public. Some residents have
eating disorders and must be monitored to prevent them from
eating harmful nonfood substances. As an intermediate care
facility for the mentally retarded, the Employer is subject to
Federal standards and regulations. The focus of those regula-
tions is to insure 24 hours a day intervention and support that is
individualized to each resident. Because of the nature of the
residents’ disabilities and their vulnerability, they must be con-
stantly monitored and supervised around the clock.
On February 3, employee Sara Kelly made a detailed written
report to management that she had observed Gellis failing to
properly supervise a resident for an extended period of time
during a visit to a public library that evening. Gellis had ac-
companied the residents of his house on a visit to the library.
One of the residents Gellis was responsible for was a pedophile.4
Constant line-of-sight monitoring of the pedophile had been
mandated whenever he was in public places like the library.
Kelly’s written report stated that she observed Gellis working
intently at a computer terminal and not monitoring the residents.
She reported that she recognized the voice of the pedophile in
another part of the library, located him and spent the next 15
minutes monitoring him. Kelly reported that she confronted
Gellis at the library about this issue and that she later telephoned
the on-call Assistant Team Leader Kate McLaine at her home
and reported the incident. McLaine’s on-call log for that eve-
ning shows that she tried to reach Gellis at the home where he
was working later that night. The log shows that after several
unsuccessful attempts Gellis answered at 8:12 p.m. McLaine
identified herself and Gellis either hung up or they were cut off.

4 The actual name of the person appears in the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
She had the same result at 8:35 p.m. when she called again. In a
third call 10 minutes later the phone was answered by an an-
swering machine and she left a message for Gellis that she was
the on-call person and that she needed to talk to him. The log
does not reflect that Gellis returned the call.
Rodas gave Gellis a written warning on February 8 for not
adequately supervising residents at the library on February 3.
The warning was signed by Westbrook, Craft, and Rodas and
threatens possible termination. The warning states that Sara
Kelly observed Gellis working at an internet computer and not
supervising residents for at least 30 minutes. Gellis’ made
extensive written comments on the warning protesting that
Kelly’s report was the result of a personal issue between him
and Kelly and requested mediation. On February 11, 14, and
18, Gellis sent memos to Rodas, Westbrook, and Craft chal-
lenging the discipline and how it had been handled. In none of
his written comments did Gellis challenge the factual assertions
in the written warning. On February 22, there was a meeting of
Gellis, Rodas, and Craft. At the meeting Gellis asserted that he
had kept the pedophile in his vision at all times and denied that
the resident had not been left unsupervised. Craft credibly
described Gellis’ behavior at this meeting. Despite Craft’s
assurances that everyone would have a turn to talk, he contin-
ued to interrupt Craft and Rodas, speaking in a very loud and
verbally aggressive manner, to the point that Craft was con-
cerned that Gellis might become physically violent.
On February 28, Craft advised Gellis by memorandum that
the discipline had been rescinded. Craft credibly testified that
she and Rodas jointly concluded to not discipline Gellis only
because it was one employee’s word against another and that
under the Employer’s dispute resolution procedures the action
would likely be rescinded.
At a staff meeting at the Ponderosa home sometime after the
library events, Program Director Anita Westbrook was present
when Rodas mentioned the pedophile and remarked that he
needed constant supervision. Gellis spoke up and said he
thought that Rodas comments were directed at him. Gellis then
argued that close supervision of the pedophile was not neces-
sary. He told Westbrook and the other staff members that he
had not seen any behavior by the pedophile that warranted one-
on-one supervision or that the pedophile needed to be kept
away from children. Gellis observed that he had brought his
own children around the man and that he paid no attention to
Gellis’ children. Westbrook replied to Gellis that they had a
professional opinion that the pedophile was a risk and that if
something happened the resident would probably go to jail and
his life would be ruined.
On March 15, Gellis came on shift at 11 p.m. The skills
trainer he was relieving told him that the light was out in the
refrigerator. Gellis assumed that the problem was merely a
burned out light bulb and took no action. In fact, the refrigera-
tor was not working. Gellis did not recognize the problem until
the following morning when he began preparing for breakfast
and he found melting ice cream. Gellis did not call the on-call
supervisor. Instead, he awaited the arrival of the skills trainer
for the next shift, identified as Chriselda, and told her of the
situation. Chriselda then called the on-call supervisor. Gellis
testified that he and Chriselda threw out all the food in the re-
frigerator. The value of the lost food was $400 to $500. When
Westbrook learned of the situation she was concerned about the
loss of so much food and questioned whether all the food
needed to be discarded. She went to the home and examined
the garbage to see if any of the discarded food could be sal-
vaged. She found that there was no meat in the discarded food
despite the fact that based on grocery receipts and the menu,
meat would have been in the refrigerator. Chriselda told her
that Gellis had taken the meat. Gellis testified that he did not
take the meat. Westbrook’s testimony regarding what she was
told by Chriselda is credited, but the evidence is insufficient to
prove that Gellis took the meat. I draw no adverse inference
against either the Employer or the General Counsel for failing
to call Chriselda as a witness.
In a March 16 memo to Brian Rempel, the manager of hu-
man relations at the time, Rodas described meeting with Gellis
and of counseling him about not using the call system and re-
viewing the procedures Gellis should follow when appliances
are not working properly. Rodas reported expressing his con-
cern that none of the food in the malfunctioning refrigerator
had been salvaged. Gellis conceded that Rodas met with him
regarding the refrigerator incident and did not deny that Rodas
pointed out that if Rodas realized the refrigerator was not work-
ing it might have been possible to save some food and to have
cooked some of the food.
When Gellis worked at Ponderosa one of his duties was
passing prescribed drugs to residents. Gellis was a certified
medication aide (CMA). Estella Trujillo was a registered nurse
responsible for overseeing health care of the residents and she
supervised the nursing staff. She oversaw Gellis’ CMA work.
Gellis was able to pass drugs to residents under the authority of
Trujillo’s nursing license. Thus, Trujillo was personally re-
sponsible as a registered nurse for Gellis’ CMA work. On July
31, Trujillo relieved Gellis of his duties related to administering
medication. She credibly testified that she took this action
because she suspected he was discarding medication he op-
posed administering to a client identified as E.C. There was an
objective basis for Trujillo’s suspicion. Another staff member
had reported to Trujillo that a medicine tablet had been found in
a toilet at the end of one of Gellis shifts. Based upon a descrip-
tion of the tablet by the staff member, Trujillo concluded that
the appearance of the tablet was consistent with it being risper-
dal, a psychotropic drug that was being administered to E.C.
E.C.’s psychiatrist had prescribed risperdal and the nursing
staff monitored the patient. Before the tablet had been found in
the toilet Gellis had challenged the decision of the psychiatrist
to administer risperdal to E.C. Gellis’ opposition giving E.C.
risperdal was the subject of a staff meeting, where he made a
formal presentation in support of his position. Gellis’ recom-
mendation that E.C. be taken off risperdal was not adopted.
Because of behavior problems that had been observed with
E.C., Trujillo suspected that Gellis was withholding E.C.’s
risperdal. The locks on the medication cabinets at the Ponder-
osa home where were changed at the time Gellis was relieved
of his CMA duties. After nurses began administering E.C.’s
drugs, a reduction in his aggressive and violent behavior was
observed. Trujillo attributed the improvement in E.C.’s behav-
ior to his being given his medication.
SANTA MARIA EL MIRADOR 723
Gellis called Trujillo several times and asked why he was not
allowed to pass medication, but Trujillo never fully explained
her reasons to Gellis. She told Gellis she wanted to monitor the
residents and since nurses were scheduled anyway, she wanted
the nurses to assess the residents’ response to their medications.
Trujillo was generally opposed to CMAs passing drugs.
Rodas determined that E.C. would be transferred from
Pondersoa to another home to separate him from Gellis. The
record does not show that Gellis was told the reason for the
proposed transfer. Gellis was strongly opposed to the transfer,
and on August 6, wrote a detailed memo opposing the transfer to
Lynn Shannon, QMRP (Qualified Mental Retardation Profes-
sional), with copies to Rodas, Trujillo, Kelly, and Westbrook.
In this memo Gellis again challenged the medical decision to
give E.C. psychotropic medication and questioned other aspects
of his treatment. The memo requested that the team reconvene
to reconsider E.C.’s transfer. While Gellis’ opposition to the
transfer was being considered, another person occupied the va-
cant slot and E.C. could not be transferred. Rodas then decided
to transfer Gellis from Ponderosa to another group home to ac-
complish his objective of separating Gellis and E.C.
Rodas gave Gellis a memo on August 10, advising him that
he would be transferred to the Nizhoni group home effective
August 24. Nizhoni was a new group home. Rodas’ memo
said that the reason for the transfer was that Gellis’ skills were
needed at the new site because of his experience and depend-
ability. Rodas testified that Gellis was experienced and de-
pendable, but his credible testimony and the record show that
his actual agenda, which he did not state to Gellis, was to sepa-
rate Gellis from resident E.C. The memo advised Gellis that
his special scheduling needs that permitted him to work his
second job would be unchanged, but that his schedule was sub-
ject to change to meet the Employer’s needs. A copy of the
Employer’s written policy reserving the right to reassign em-
ployees and the Employer’s policy on work schedules was at-
tached to the memo.
Rodas and Gellis offered inconsistent versions of aspects of a
discussion that they had regarding the August 10 memo, and
Rodas’ decision to transfer Gellis to Nizhoni. Rodas testified
that during the discussion Gellis spoke to him in a very loud
and abrasive voice, that Gellis said that the decision to transfer
him was “bullshit,” that Rodas needed to take management
classes and that Rodas didn’t know what he was doing. Gellis
denied that he made those remarks to Rodas. Gellis testified
that he restricted his remarks to pointing out that he had ex-
pressed his opposition to men serving as a skills trainer for
female residents because it was inconsistent with proper respect
for the female residents’ dignity. Rodas’ testimony regarding
the portions of the conversation denied by Gellis was more
credibly offered. Moreover, Gellis impressed me as being a
very intelligent and perceptive man. It is probable that he rec-
ognized Rodas’ real agenda was to separate him from E.C. It is
not improbable that he reacted in an angry and aggressive fash-
ion, given the evidence of his strong personal interest in E.C.’s
care and the credible evidence that on other occasions he spoke
to members of management in a loud and abrasive manner. In
any case, based upon considerations of demeanor, I credit Ro-
das’ testimony regarding the content and character of Gellis’
remarks to him described above.
On August 13, Gellis submitted a memo to Rodas regarding
his transfer to Nizhoni, with copies to Craft, Westbrook, and the
Nizhoni team manager. The memo stated in some detail the
reasons he challenged the appropriateness of the Employer’s
policy of using male skills trainers to work with female resi-
dents. The memo pointed out that he had requested in writing
that he not be required to help female residents who needed help
in dressing, bathing, using the bathroom or feminine hygiene
and asserted that his wishes had been accommodated in the past.
This was a reference to an incident in 1998, when Gellis had
refused to accept an assignment to work with female residents.
On July 16, 1998, Gellis had sent a memo to management that
explained that he had refused to work a shift as requested by an
on-call supervisor because he did not wish to work with female
residents. On July 23, 1998, Shari Mott, then Gellis’ team man-
ager, responded by memo. Mott rejected Gellis’ contention that
he should not be required to work with females and informed
Gellis that his conduct had been insubordinate. Mott cautioned
him that insubordination was grounds for dismissal. Neverthe-
less, Gellis was not thereafter assigned to work with female
residents until Rodas announced his transfer to Nizhoni.
On August 15, Rodas responded by memo to Gellis’ August
13 memo opposing his transfer to Nizhoni. Rodas observed
that Gellis’ preference to not work with female residents had
been accommodated in the past only because there were suffi-
cient female skills trainers. Rodas went on to state that it was
no longer possible to accommodate Gellis because of the limi-
tations of the available staff and the need to have a male staff
member with his experience, knowledge, and reliability at
Nizhoni. Rodas included a copy of Rodas’ job description.
Rodas did, however, offer Gellis an alternative to working at
Nizhoni. Rodas stated that he was willing to transfer another
experienced staff member from the Alamosa group home to
Nizhoni and allow Gellis to work at Alamosa. Rodas pointed
out that while there was one female resident at Alamosa, she
was completely independent with hygiene and grooming. Ro-
das asked for Gellis’ response by August 18.
Gellis did not respond until August 20, when he submitted a
memo to Rodas with copies to Craft and Westbrook. In the
memo Gellis did not indicate whether he would prefer to work at
Alamosa, rather than Nizhoni. Instead, the memo challenged
Rodas’ characterization of Gellis’ opposition to working with
female residents as “personal issues” and questioned the wisdom
of transferring Gellis from Ponderosa. Gellis claimed that the
decision to have nurses administer medication to Ponderosa
residents was evidence of instability at Ponderosa. As discussed
earlier, that decision was actually motivated by a suspicion that
Gellis was withholding resident E.C.’s drugs, with resultant
aggressive and violent behavior by that resident. Gellis attached
to his memo statements from two employees who worked at
Ponderosa. Kim Polston, who had apparently resigned her em-
ployment, signed one. Polston acknowledged that she felt guilt
for the distress her leaving Ponderosa had caused residents.
Lynda Garcia signed the other employee letter, which predicted
dire consequences to residents if Gellis left Ponderosa. Credible
testimony by Program Director Westbrook shows that while the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
transfer was being considered Garcia visited Westbrook and
complained that Gellis had pressured her to write the letter.
Garcia did not testify.
Notwithstanding his efforts to avoid transfer, Gellis was
transferred to the Alamosa group home later in August. After
he was transferred he asked Trujillo for permission to pass
medications at Alamosa. Trujillo refused the request. She
credibly testified that in addition to her general professional
doubts regarding the passing of medications by CMAs, she was
especially concerned about Gellis passing medications at Ala-
mosa because of her suspicion that Gellis had withheld medica-
tion at Ponderosa. Garcia’s particular concern was that one of
the Alamosa residents was on psychotropic medication for
aggression and that the resident was resistant and non-
compliant in taking his medications.
In August Gellis had learned that a letter dated August 18
addressed to Westbrook, was being circulated among employ-
ees for signature. The letter discusses a number of issues con-
cerning working conditions at the Respondent’s Santa Fe group
homes. Gellis’ name is the 12th signature of 30 persons who
signed that petition. Dates by the employees’ names suggest
that Gellis signed the letter on August 23, and that the last em-
ployee signed the letter on September 22. Unlike the other
employees who signed the letter, Gellis also printed his name.
Gellis testified that he later began circulating the letter. The
date of the earliest signature he recalled observed being placed
on the document has a date of August 31 beside it.
Gellis testified that he also redrafted the August 18 letter and
circulated the new draft, which was dated September 7. The
second letter was also addressed to Westbrook and addressed
working conditions. The first signature on that document ap-
pears to be that of Gellis and is dated September 12. The next
name has the date of September 14 by it, and the last signature
is dated September 24. It appears that persons who had signed
the first letter also signed the second and at least one name
appears to have been placed on both letters on September 22.
On September 18, Gellis sent Trujillo a memorandum raising
questions about his not being permitted to pass medications and
stating that he had received information that another skills
trainer had been asked if he would like to train for CMA certi-
fication.
On September 20, while Gellis was off duty, he went to the
Employer’s Del Sur group home, where he met with employee
Eddie Martinez. Gellis and Martinez discussed the letters Gel-
lis was circulating. Bernadette Romero was working at Del Sur
the morning of September 20 when Gellis met with Martinez.
The two letters circulated by Gellis indicate that Romero had
signed the letters on September 19. Romero testified as a wit-
ness for the Employer and described what she observed at Del
Sur that morning. On September 20, she was a lead skills
trainer. She was promoted to assistant team leader in October.
The Employer’s attorney represented that she was promoted 4
days after Gellis was discharged. According to Romero Marti-
nez was in the house when she arrived to begin work at Del Sur
at about 7 a.m. on September 20.
Romero testified that Gellis came into the house about 15
minutes later and told Romero that he was there to meet Marti-
nez. Romero recalled that Martinez’s shift should have been
over when Gellis arrived, but that he may have stayed to do
required paperwork. It appears probable that Martinez was off
work at the time he met with Gellis. Martinez was assigned to
the Acequia5 group home and it was Romero’s understanding
that Martinez had worked at Del Sur on the shift before her
arrival that day. Romero testified that Gellis met with Martinez
inside the house for about 10 or 15 minutes, but that she did not
overhear what they said. Romero testified that while Gellis and
Martinez were talking inside the house Assistant Team Man-
ager Mark Geraghty6 drove up. Geraghty’s arrival in front of
the house could be observed through large windows on the
front of the house. Romero testified that upon Geraghty’s arri-
val, Gellis and Martinez ended their conversation inside the
house and left the house through the front door as Geraghty was
walking up the sidewalk. Romero testified that she saw Ger-
aghty speaking with Gellis and Martinez outside the house.
Geraghty then came into the house and asked what Martinez
and Gellis were doing there. Romero explained to Geraghty
that Gellis was there to meet Martinez because Gellis did not
know where Acequia was located.
Gellis testified before Romero and offered a different version
of the September 20 events. Gellis did not mention in his tes-
timony that he talked with Martinez inside the house. Gellis
merely testified that he and Martinez were walking to their cars
at Del Sur when Geraghty drove up and called out to Martinez.
Gellis testified that Geraghty called Martinez over to speak to
him and that Gellis continued on to his car, but then decided to
walk back to hear what Geraghty had to say. Gellis testified
that he heard Geraghty tell Martinez about a meeting that he
hoped to see him at later that day.
Considering the demeanor of the witnesses and the probabili-
ties, I credit the testimony of Romero regarding what she testi-
fied that she observed at Del Sur on September 20. Gellis did
not merely meet with Martinez outside Del Sur as his testimony
suggests. I specifically credit Romero’s testimony that the two
employees met inside the house and I do not credit Gellis’ tes-
timony that he and Martinez and were walking to their cars
when Geraghty drove up. Rather, they exited the house after
Geraghty drove up. Moreover, I do not find that Gellis testi-
mony is sufficient to establish that Geraghty spoke to Martinez
only about a meeting because he did not claim to hear all that
was said before he returned to listen.
In a memo dated September 20, addressed to Assistant Team
Manager Sergio Garcia, with copies to Team Manager Rodas,
Program Director Westbrook, and Human Resources Director
Craft, Gellis informed the Employer that he was engaged in
circulating two documents, “which address some serious prob-
lems that direct care staff are facing.” Gellis stated in the
memo that he had written one of the documents and was circu-
lating the documents to employees on his own time, when he
was not on duty. The General Counsel does not contend and
the evidence does not show that the Employer had any knowl-
edge of the letters or of Gellis’ circulation of the letters earlier
than September 20. Based upon the probabilities and an ab-
sence of any evidence to the contrary, I conclude that the Sep-

5 The spelling of Acequia in the record has been corrected.
6 The spelling of Geraghty’s name in the record has been corrected.
SANTA MARIA EL MIRADOR 725
tember 20 memo was delivered to the Employer after Geraghty
discovered Gellis meeting with Martinez in the Del Sur group
home at about 7:15 a.m. that morning.
The Employer has had a policy since at least 1997, that on-
duty skills trainers are not to have visits from friends, relatives,
or off-duty staff. The conduct and work rules section of the
Employer’s human resources guidelines prohibits:

Visits (excessive and/or prolonged) from relatives, friends, or
off-duty staff while on duty, any behavior which prohibits the
on-duty staff from discharging the duties of his/her job.

The guidelines provide that disciplinary action up to and in-
cluding termination of employment may be imposed for violat-
ing the rules. Employees are required to sign an acknowledge-
ment of having received a copy of the guidelines. Gellis signed
an acknowledgement of having received a copy of the guide-
lines in 1995 and 1997.
In 1997 and again in 1998, Gellis signed a form entitled
“Santa Maria El Mirador Dismissal Acknowledgement,” each
of which reads in relevant part:

I understand that the following behaviors are grounds
for immediate dismissal. They include, but are not limited
to,
. . . .
Having visitors (relatives/friends/off duty staff) while
on duty . . . .

Prior to 1997, the Employer used a similar dismissal ac-
knowledgement form that did not provide that having visitors
was a ground for immediate dismissal. Craft credibly testified
that the provision regarding visitors was added to the dismissal
acknowledgement beginning in 1997 as a result of a change in
policy. The record evidence demonstrates, there is no evidence
to the contrary, and I find that Employer’s human resources
guidelines and the dismissal acknowledgement regarding hav-
ing visitors was communicated to the Employer’s employees,
including Gellis, and was in effect beginning in 1997.
The General Counsel contends that there was an accepted
practice of off-duty employees visiting the group homes for
special events like birthdays, or just for everyday social rea-
sons. The evidence supporting this contention is the following
testimony by Gellis:

Q. Were there occasions when off duty employees
from other group homes visited where you were em-
ployed?
A. Yes, sir.
Q. And what would occasion those visits?
A. Different things. I worked with a fellow who often
stopped by just to say hello. Again, a client—I remember
a client was sick and a direct care staff stopped by to see
him. Sometimes, there was no particular reason to stop
by, somebody was just in the neighborhood.
Q. Did—was there any prohibition brought to your at-
tention by management that those types of visits were in-
appropriate?
A. No, sir. There—there was none.
. . . .
Q. And did you, yourself, make visits to other group
homes when you were off duty?
A. Yes, sir.
Q. And what would occasion those visits?
A. I think, if I was working—if I was working at Pon-
derosa House, the home that I was working at—again, if I
was in the neighborhood, I would stop by to say hello.
And—and eventually it became—I stopped by for these
letters, I contacted staff.

The General Counsel examined Rodas regarding the question of
social visits to a group home by off-duty employees who worked at
a different home. A fair reading of Rodas’ testimony is that visits
by skills trainers to a home where they did not work was only ac-
ceptable, if the skills trainer was accompanying a resident. Rodas
testified as follows:7

Q. There’s no rule against relatives coming to visit and
participate with their group home relatives in events that
are taking place in the homes; is that right?
A. hat’s right. They can come any time.
Q. hey can come any time?
A. Yes.
Q. Okay. Now the skills trainers that are on a shift at a
group home, do they have specified hours for meals and
breaks?
A. No, they don’t.
Q. Okay. And sometimes in these celebrations or spe-
cial events, staff from one house may come to the house
where the celebration is taking place; isn’t that true?
A. That’s true. With the clients you mean?
Q. Yes.
A. Okay.
Q. Yes.
A. Yes, that’s true.
Q. No, what I’m saying is—well, you have Ponderosa
House, that is the name of one house; is that correct?
A. That’s correct, yes.
Q. When you have someone celebrating a birthday in
Ponderosa House, a participant, and someone who is
working in Mejone (phon.) House knows that person,
there’s no prohibition for that employee, the skills trainer
from Mejone House to come and participate in the birth-
day celebration and have some birthday cake, is there?
A. If they’re with the clients. You mean if they’re
working with the clients and come over to Ponderosa
House for supper?
Q. No, if they just come because they had—they were
familiar with the participant who was having a special
supper, a special dinner, or a birthday, and because they
had worked there before, is there any prohibition for them
to come over and visit and partake of that event?
A. If they come with a client, if they’re on duty, I don’t
see why—then it’s not prohibition for—
Q. [interrupting the witness] No. They’re not—I
don’t think you’re understanding my question.

7 The notations in brackets regarding the interruptions of the testi-
mony are added.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
A. I’m sorry.
Q. My question is, if they are not on duty, but they are
like a friend or a relative of the participant in Ponderosa
House, there’s no prohibition of a friend or a relative com-
ing to celebrate a birthday or have a special meal, is there?
A. Not for a relative. We have a policy in place for the
staff members who are off duty to be—
Q. [interrupting the witness] I’m not—well, all right.
I said friend or relative. Is there prohibition for a friend or
relative—
A. No.

The record evidence does not demonstrate that management was
aware of social visits by off-duty employees as described by Gellis.
Gellis’ testimony on regarding social visiting by skills trainers
lacks detail and is uncorroborated. Gellis’ testimony suggests that
the Employer condoned social as well as professional relationships
between staff and residents. The record evidence does not warrant
such a conclusion.
I find that the evidence does not establish that the Employer
condoned visits to the group homes by off-duty employees,
whether to visit residents or other staff members. Craft credi-
bly testified that a lead skills trainer named Sandy Esell re-
signed to avoid termination without any prior verbal or written
warnings because she had her children visiting at a group home
while she was working. During the same week that happened
Esell also overspent a food purchase order that also had missing
items. Westbrook credibly described from memory several
instances during her tenure when the Employer had corrected
employees regarding visits to group homes. One of the in-
stances involved an off-duty skills trainer visiting a group
home. Westbrook recalled that it occurred in early 2000, and
was brought to the attention of management when a resident
complained of the visiting off-duty employee.
Geraghty sent a memo to Westbrook on September 25, with
copies to Craft and Rubi Lucero, Geraghty’s supervisor, report-
ing a conversation with Martinez outside Del Sur on September
20. The memo states that there were six cars parked in front of
the house and he had stopped to see what was going on. The
memo indicates that as he was walking in Gellis and Martinez
were leaving. The memo states that Geraghty thought it un-
usual because neither employee worked there. Geraghty re-
ported that he spoke with Martinez outside the house and asked
Martinez what was going on and that Martinez explained that
Gellis had asked to meet him there because Gellis did not know
where Acequia was located. Gellis was not asked to clarify the
question of where Martinez worked before they met and neither
Geraghty nor Martinez was a witness. The record is insuffi-
cient to draw any conclusions regarding the inconsistency be-
tween Geraghty’s memo and Romero’s understanding that Mar-
tinez worked at Del Sur on September 20.
Gellis’ uncontroverted testimony was that sometime in Sep-
tember, prior to a September 27 telephone conversation with
Craft, Assistant Team Managers Sergio Garcia and Eli Mora
conducted an inspection of the Alamosa group home while
Gellis was on duty. In a conversation with Garcia and Mora,
Gellis advised them of concerns of the direct care staff with an
asserted lack of support by management and a lack of commu-
nication with management. Gellis told Garcia and Mora that
the staff was talking about possibly getting a union if things
didn’t change. The evidence does not establish, and the Gen-
eral Counsel does not argue, that Gellis’ remarks were the re-
sult of questioning by Garcia or Mora. Rather, the evidence is
that Gellis volunteered the information.
Gellis left a memo with Craft on September 25, protesting
the lack of a response from Trujillo to his September 18 memo
to her and contending that he was being treated unfairly by not
being permitted to pass medications. On September 26, Gellis
left another memo with Craft, with a copy to Trujillo, stating
that he had spoken with Trujillo and wished to proceed to a
complaint under the Employer’s dispute procedures regarding
his not being permitted to pass medication. Gellis also tried to
reach Craft by phone. When he was unsuccessful, he left a
message asking her to call him at his other job.
On September 27, Craft called Gellis at his other job. This
call was in response to Gellis’ September 26 memo, and he
requested the call in his telephone message. Gellis and Craft
testified as to what was said. In addition to her testimony, a
memorandum prepared by Craft summarizing the conversation
was admitted into evidence. As described by both Gellis and
Craft the conversation lasted about 20 minutes.
The conversation initially was about Gellis being relieved of
his CMA duties and how the passing of medications was going
to be handled. There are inconsistencies between Craft and
Gellis regarding the discussion of the CMA issue, but their
resolution is not necessary to resolve the unfair labor practices
allegations or to resolve other credibility issues. Nevertheless,
to the extent the evidence regarding the CMA issue is inconsis-
tent, I credit the testimony and memorandum of Craft over the
less convincing testimony of Gellis. I draw no adverse conclu-
sions from the fact the one page memo did not mention some
aspects of the conversation that Craft addressed in her testi-
mony.
After discussing the CMA issue, the discussion turned to the
letters addressed to Westbrook that Gellis was circulating and
which had been the subject of Gellis’ September 20 memoran-
dum to Westbrook, Craft, and others. According to Gellis,
Craft told him that she had received the memo in which he
informed the Respondent that he was circulating letters and she
wanted to know what the letters were about. Gellis testified
that he told Craft that the staff felt that it was not being re-
warded for seniority, that new hires being paid the same as long
time employees, that the staff felt that it didn’t have a voice,
and that there was an us versus them mentality on both sides.
Gellis testified that Craft said that the letters were causing more
problems and increasing divisiveness between direct care staff
and management, that she had been approached by some of the
staff who told her that they had felt pressured to sign and that
there was a concern that those who signed would treat those
who didn’t differently. According to Gellis, Craft said that
anyone from the staff with a problem could come to her in ut-
most confidentiality. Gellis further testified that Craft re-
quested the letters, but that he expressed concern for the protec-
tion of employees, since employees were afraid to express
complaints to management and that Craft said that he could
give the letters to her without the signatures.
SANTA MARIA EL MIRADOR 727
Craft’s testimony was that Gellis opened a discussion of man-
agement problems and he introduced the topic of letters that he
and others employees had put together that addressed employee
concerns and that he mentioned problems with team managers
and assistant managers. According to Craft, she said that she
was glad he mentioned the letters because she wanted to make
herself available to any employee that has problems with man-
agers to sit down and work out some solutions. According to
Craft, Gellis started talking a lot and talking very quickly and
very loudly. She described Gellis as speaking very passionately
about how poorly he thought the managers functioned in their
job, saying that employees were unhappy, they didn’t feel like
they had a voice with their managers and that employees felt
that the communication went one way and that employees were
not invited to participate in decision making. Craft testified that
she could not “get a word in edgewise” and that she spent 10–15
minutes just listening. Craft testified that eventually she was
able to speak and that she asked if she could get a copy of the
letters in order to address the issues and Gellis expressed con-
cern that the employees might be fearful if he did that. Craft
testified that she responded that she would respect the confiden-
tiality and that he could trust her with the letters and that she
assured him that there would be no retribution. Craft’s Septem-
ber 27 memo adds (consistent with Gellis’ testimony) that Craft
suggested furnishing copies of the letters without the names.
Craft’s memo also states that she was receiving reports that
employees felt coerced through peer pressure to sign the letters,
that the letters were bad for morale, they created a negative at-
mosphere and were a detriment. The accounts of Craft and Gel-
lis regarding discussion of the letters are in many respects con-
sistent. To the extent they are inconsistent, I find the version
described by Craft to be more probable and to have been more
credibly offered. In particular, I credit the account of Craft that
Gellis opened the discussion of the letters.
Craft’s September 27 memo states, “I also reminded Ed that
he violated [the Employer’s] policy by going to Del Sur to dis-
cuss the letters with employees. I told him that this kind of
activity could not take place on SMEM property.”
In contrast to Craft’s memo, Gellis testified as follows:

Q. Then what was said in the conversation, if any-
thing?
A. She said that a staff member had—not a staff mem-
ber, a supervisor had seen me at another house and—with
the letters—and had—and she told me that that wasn’t al-
lowed. That was a violation of the policy, and I asked her
if I could meet with staff, not inside the house, but outside
the house on the curb, or beyond the curb right by the
street—if I could meet them before or after work at the
houses and she told me that I couldn’t do that. That any-
where near the property was a violation of the policy. And
then she reiterated the fact that we could come to her in
utmost confidentiality and I told her that I would do what I
can to get her a copy of the letters and that’s—right now
that’s all I remember of the conversation.

Neither the Employer nor the General Counsel chose to ex-
pand on or clarify this evidence. Craft’s memo is limited to a
statement of the substance of what she said to Gellis regarding
his visit to Del Sur. The record demonstrates that Gellis was
both highly verbal and not at all reluctant to speak up. It is
probable that Gellis would have responded to Craft when she
criticized his visit to Del Sur. Accordingly, I conclude that it is
probable that both addressed the issue of Gellis making off-
duty visits to group homes.
Gellis’ testimony was a summary of what he claims was
said, rather that his recollection of what was actually spoken.
Gellis’ quoted testimony was delivered as a rapid stream of
run-on sentences with little inflection. Gellis testimony regard-
ing the conversation was unconvincing. I specifically do not
credit his claim that Craft prohibited solicitation “anywhere
near” the property. I reach these conclusions even though not
specifically denied by Craft. See NLRB v. Howell Chevrolet
Co., 204 F.2d 79 (9th Cir. 1953), affd. 346 U.S. 482 (1953). In
addition to Gellis’ unconvincing demeanor there are objective
reasons to question this testimony.
On October 2, Gellis sent a memo to Craft that addressed
Craft’s September 27 request that she be permitted to see the
letters. The lengthy memo expresses Gellis’ concern that the
letters should not be turned over without Gellis speaking to the
employees. In the memo Gellis requested permission to contact
staff “at or on SMEM property” to discuss furnishing the letters
to Craft. Gellis goes on to request permission “to contact staff
at or on SMEM property with anything that concerns the per-
formance of our jobs.” It seems improbable that Gellis’ would
not have challenged an attempt to limit what employees would
be permitted to do off-premises on nonwork time. In all his
other memoranda, as well as in his personal contacts with man-
agement, Gellis demonstrated that he was very assertive and
not hesitant to challenge management. Yet in the October 2
memo he does not suggest that Craft had presumed in their
September 27 telephone conversation to tell Gellis what he or
other employees could do on their own time, off the Em-
ployer’s property.
Another consideration is that Gellis’ testimony regarding
what occurred outside Del Sur discussed earlier, was misleading
and in part not true. The content and tenor of that testimony was
misleading and did not disclose the true facts regarding an event
that is central to the case. Had Romero (who had supported
Gellis by signing both letters) not credibly testified in rebuttal
that Gellis met with Martinez in the house, the testimony of
Gellis would have left the false impression that he met with
Romero outside the house. Gellis did not controvert Romero’s
credible account. Gellis testimony regarding his visit to Del Sur
is a reason for careful scrutiny of his other testimony.
A final consideration is the complaint, which is based upon
Gellis’ charge and the evidence supporting the charge. The
factual portion of the pertinent complaint allegation is limited to
an assertion that that the Employer’s rule “prohibited access for
off-duty employees to any part of the Respondent’s facilities.”
Words have meanings in the context in which they are used.
The September 27 conversation regarding Gellis’ visit to Del
Sur and the October 3 message by Craft in answer to Gellis’
questions regarding future visits to group homes must be con-
sidered in the context of what had occurred on September 20,
as well as the established rules regarding visitors at the group
homes of which Gellis was aware. Craft was not announcing a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
new rule restricting visits by off-duty employees. The issue
that was addressed by Craft was Gellis’ participation in a meet-
ing in the living area of Del Sur. The message that Craft deliv-
ered to Gellis was that the meeting between Gellis and Marti-
nez in the living area of Del Sur violated the Employer’s exist-
ing rules and that no exceptions would be made for him.8
On October 1, Trujillo had responded to the September 18
memo Gellis had sent to her regarding his not being permitted
to pass medications. Trujillo confirmed that she was phasing
out the use of CMAs, but that she might choose to train some
individuals as CMAs for backup. On October 2, without notice
to Gellis and based upon the medication issue involving E.C.,
Trujillo filed a complaint against Gellis with the New Mexico
Board of Nursing. Trujillo’s testimony regarding her decision
to file the complaint is rational and was credibly offered. There
has been no contention that the complaint to the Board of Nurs-
ing was motivated by Gellis’ protected activities and there is no
substantial evidence warranting such a conclusion.
Craft and Gellis agree that on October 3, Craft left a message
on Gellis’ answering machine. The message was contained on a
cassette tape. The tape was available during the administrative
investigation, but the tape was never requested and Gellis fur-
nished to the investigator only a written transcript that he had
prepared and which he testified was accurate. Gellis testified that
he had been instructed to keep the tape and to bring the tape to
the hearing. Gellis testified that the tape had been accidentally
recorded over earlier on the same day that he testified. The Em-
ployer objected to the receipt of the transcript in lieu of the origi-
nal tape. I sustained the objection on the ground that the absence
of the original had not been satisfactorily explained. Gellis then
testified regarding the substance of Craft’s October 3 telephone
message and Craft thereafter acknowledged that the transcript
contained the gist of what was said. The transcript was then
received as an exhibit to the extent that it had been adopted by
Craft. The credible testimony establishes that Craft left a mes-
sage on Gellis’ answering machine on October 3 acknowledging
receipt of Gellis’ October 2 memo and his request to continue to
contact staff at or on SMEM property. She told Gellis that the
answer was no, that it violated the Employer’s policy and that he
could not continue to do that. She also said that employees could
visit with her in confidence. Craft’s October 3 memo, like her
September 27 remarks, must be considered in context. It is sig-
nificant that Craft stressed that Gellis could not “continue to do
that,” an unambiguous message that he was prohibited from mak-
ing off-duty visits like the one he had made to Del Sur on Sep-
tember 20 because it violated the Employer’s policy.
Craft testified that after she spoke with Gellis on September
27, she went to Rodas and told him that Gellis had asked to
again be an exception to policy. She testified that this was a
reference to Gellis having previously asked to be an exception
to two other policies. One was a policy that prohibits employ-
ees from working back-to-back 8-hour shifts and the other was

8 The General Counsel has not urged a finding that impermissible re-
strictions were imposed on solicitation at Employer property other than
at the group homes. The focus of the restrictions at issue was limited to
the group homes and any broader applicability of the restrictions was
not litigated.
Gellis’ request to not work with female residents. Craft testi-
fied that Rodas indicated that because of this additional request
to be exempted from restrictions on visiting group homes, he
wanted to terminate Gellis. Craft testified that Rodas had been
frustrated in trying to manage Gellis and that there had been
issues around Gellis’ performance in the past. Craft testified
that she suggested that they consult with Westbrook, Rodas’
supervisor, who was then on vacation.
Westbrook was on vacation beginning September 21 and re-
turned on October 2. After she returned Craft and Rodas met
with her and the decision to discharge Gellis was made. The
date of the meeting was not established. Craft recalled it being
the first or second week of October.
Westbrook testified that she agreed to discharge Gellis based
upon several incidents. Regarding Gellis’ visit to Del Sur she
testified that the information she had received regarding Gellis’
visit to Del Sur on September 25 was “the final straw.” She
stated that because of his tenure he knew that “hanging out” at
a group home was not allowed. She testified, “I felt like as
long as he had been there that he knew that, and so my response
was, just end it all, I’m tired of this, and do the termination.”
Westbrook explained that a number of earlier problems involv-
ing Gellis, discussed in detail supra, contributed to her support
of Rodas’ recommendation to discharge Gellis. These included
the refrigerator incident, the pedophile incident and the related
series of memos by Gellis, the issue of withholding medication
and the related resident behavior problems, Gellis’ resistance to
moving a resident, his resistance to being reassigned, and his
resistance to working with female residents. Westbrook denied
that the nature of the letters Gellis circulated was a considera-
tion in his discharge.
In his testimony under FRE 611(c) and in his affidavit Rodas
pointed to the same incidents as Westbrook. He testified, “Dur-
ing that period of time, he was insubordinate with his supervi-
sors. He refused all of kind of directives that would come from
his supervisors, and it was a series of events that led to the con-
clusion of Mr. Gellis’ termination.” Rodas agreed that in his
communications with Gellis he had never used the word insub-
ordinate. He was asked to point out in his affidavit the acts of
Gellis he considered to be insubordinate. One example Rodas
pointed out was Gellis’ opposition to moving a resident, dis-
cussed supra. Another example was Gellis’ opposition to his
transfer from Ponderosa and rude and insulting remarks Gellis
made to Rodas. On that occasion Gellis spoke to him in a very
loud and abrasive voice, saying said that the decision to transfer
him was “bullshit,” that Rodas needed to take management
classes and that Rodas didn’t know what he was doing. The
examination of Rodas’ questioning was then cut short without
Rodas having completed going through the affidavit to point
out other examples of insubordinate conduct. Instead, the affi-
davit was received as a stipulated exhibit.
Craft testified that if she disagreed with a manager regarding
a termination, higher management decided the issue. She testi-
fied that she did not oppose Rodas’ wish to fire Gellis’ because
of the two unpleasant experiences she had in dealing with Gel-
lis. Craft cited the conversation she had at the meeting in Feb-
ruary regarding the pedophile incident that she described as
extremely loud, verbally aggressive, disrespectful, and insubor-
SANTA MARIA EL MIRADOR 729
dinate and her telephone conversation on September 27, which
was similarly unpleasant.
Craft credibly testified that the Employer uses progressive
discipline in some cases and not others, depending on the cir-
cumstances. An example presented of a discharge where pro-
gressive discipline was not used involved the discharge of skills
trainer Sandy Esell, discussed above, who was terminated in
without any prior verbal or written warnings. Another example
of a discharge without progressive discipline was the discharge
of a nurse for arguing with the health service coordinator in
front of others and making derogatory comments about the
health service coordinator. Westbrook described two instances
where the Employer took corrective action short of discharge
when off-duty employees were visiting group homes. In one
situation an off-duty employee and her children were visiting a
home and another situation where an off-duty employee was
visiting an on-duty friend.
Craft delayed Gellis’ discharge until after she consulted
counsel and prepared Cobra insurance information. On Octo-
ber 20 Gellis was working at Alamosa and was due to finish his
shift at 7 a.m. About one-half hour before the end of the shift,
Rodas and Westbrook arrived without notice and discharged
Gellis. They gave Gellis a letter of termination that did not
explicate the reasons for his discharge. The letter stated in
substance that if he went on the Employer’s property for any
reason other than picking up his paycheck at the administrative
offices it would be considered trespass and that he would be
prosecuted. Rodas and Westbrook instructed Gellis to gather
his things and leave, which he did.
On October 25, the New Mexico Board of Nursing advised
Gellis that although there was evidence for the Board to con-
sider disciplinary action against him based on Trujillo’s report,
the Board had determined to not initiate disciplinary proceed-
ings. The Board of Nursing cautioned Gellis of serious conse-
quences that could result from violating the applicable statutes
and rules of the Nursing Board. The record does not reflect that
Gellis has sought to use his CMA certification since the Em-
ployer fired him.
B. Analysis
The Employer acknowledges in its post-hearing brief, consis-
tent with well-established precedent, that asking employees to
sign letters like those circulated by Gellis is activity protected by
Section 7 of the Act. The Employer concedes and the evidence
clearly establishes that at the time the decision was made to
discharge Gellis the Employer knew that Gellis was engaged in
asking his fellow employees to sign the letters. Gellis testified
without contradiction that he also told two supervisors in Sep-
tember that employees were considering a union.
As framed by the allegations of the complaint, the legal is-
sues to be decided are (1) whether Craft’s statement of the Em-
ployer’s policy to Gellis in their telephone conversation on
September 27, and in her telephone message to Gellis on Octo-
ber 3 unlawfully restricted access to any part of the Employer’s
facilities by off-duty employees; (2) whether Craft unlawfully
questioned Gellis about employees’ concerted activities in the
September 27 telephone conversation; (3) whether in the Sep-
tember 27 telephone conversation Craft make implied threats of
retaliation against employees for their protected concerted ac-
tivities; and (4) whether the Employer violated the Act by dis-
charging Gellis because employees engaged in protected con-
certed activities.9
The General Counsel and the Employer filed posthearing
briefs in support of their positions. Each points to the Board’s
decision in Tri-County Medical Center, 222 NLRB 1089
(1976), as the controlling precedent regarding restricting the
access of off-duty employees to the Employer’s premises. In
Tri-County the Board stated the following test:

We conclude, in order to effectuate the policies of the Act,
that such a rule is valid only if it (1) limits access solely with
respect to the interior of the plant and other working areas; (2)
is clearly disseminated to all employees; (3) applies to off-
duty employees seeking access to the plant for any purpose
and not just to those employees engaging in union activity.10
Finally, except where justified by business reasons, a rule
which denies off-duty employees entry to parking lots, gates,
and other outside nonworking areas will be found invalid.

The burden is on an employer to prove that a rule limiting
access of off-duty employees rule meets the Tri-County stan-
dards. The initial issue here is whether Craft promulgated a no-
access rule on September 27 that was not limited to non-
working areas and reaffirmed the rule on October 2. I conclude
that when viewed in context, the record shows that Craft did
not promulgate a new rule and that the existing rule she cited
applied only in working areas.
On September 27 and October 3, Craft told Gellis, in sub-
stance, that when he met with Martinez in the Del Sur group
home on September 20 the Employer’s rule governing visitors
in the homes had been violated. The wording of the “Dismissal
Acknowledgement” signed by Gellis in 1997 and 1998, prohib-
its on-duty employees from having off-duty employees as visi-
tors. If an off-duty employee is visiting with an on-duty em-
ployee, the visit is necessarily in a work area because the entire
shift is worktime. The skills trainers work alone and must con-
stantly monitor the residents. The object of the rule is to not
have off-duty employees in the house. While the purpose of
Gellis’ visit on September 20 was to meet with Martinez, he
was a visitor when they met in the living room of the house.
When Craft told Gellis that “this kind of activity” could not
take place on the Employer’s property it was in the context of a
discussion of visitors in the group homes like his visit to Del
Sur on September 20. The evidence does not show that a new
rule was announced that would have any effect on off-duty
employees in nonwork areas, assuming there are any nonwork
areas at the group homes.
The meaning of Gellis’ request to meet with employees “at
or on SMEM property” in his October 2 memo is unclear.
Craft’s application of the existing rule to prohibit visits like that
of Gellis on September 20 is not unreasonable and her applica-

9 There were no motions to amend the complaint and no arguments
have been advanced that the evidence establishes violations of the Act
not specifically alleged in the complaint. The evidence does not estab-
lish any violations not alleged that were fully litigated.
10 The Tri-County rationale would be equally applicable to protected
concerted activity not involving a union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
tion of the rule did not amount to the promulgation of a new
rule. If there was any ambiguity in her September 27 remarks,
the message was made clear on October 3 when Craft left her
message for Gellis. She explained that what was prohibited
was Gellis “continuing to do that,” a reference that could only
be to his visit in the Del Sur house. The policy Gellis violated
was disseminated to all employees and the focus was not on
union or protected concerted activity.
In view of the foregoing, I conclude that the rule as stated by
Craft on September 27 and October 3 was not the promulgation
of an unlawful restriction and I shall recommend that complaint
paragraphs 5(b)(2) and 5(c) be dismissed.
The next issue is whether Craft unlawfully questioned Gellis
on September 27. In Rossmore House, 269 NLRB 1176
(1984), the Board held that the lawfulness of questioning by
employer agents about protected activities turned on the ques-
tion of whether, under all the circumstances, the interrogation
reasonably tends to restrain or interfere with the employees in
the exercise of rights guaranteed by the Act. There is no per se
rule or presumption that makes Craft’s questions unlawful.
Here Gellis asked Craft to call him and when she did he opened
a discussion of the letters and the concerns of the employees.
The subject of employee morale was introduced by Gellis. The
letters themselves were addressed to Westbrook and it is clear
from the most cursory examination of the letters that those who
signed had to have expected the letters to be given to the Em-
ployer. When Gellis expressed concern for giving Craft copies
of the letters she suggested redacting employee names. When
he declined to furnish the letters she acquiesced. The tone of
Craft’s remarks was not coercive, despite Gellis’ unpleasant-
ness. There is an absence of evidence that threats or promises
of benefits accompanied Craft’s remarks. I shall recommend
dismissal of complaint paragraph 5(b)(3).
The complaint alleges in paragraph 5(b)(1) that in the Sep-
tember 27 conversation Craft “impliedly” threatened employees
with retaliation for engaging in concerted activities. No expla-
nation of the theory of this alleged violation or the facts on
which it is based has been offered and the alleged violation is
not self-evident. Accordingly, I shall recommend dismissal of
complaint paragraph 5(b)(1).
The final issue is whether the discharge of Gellis violated
Section 8(a)(1). The General Counsel and the Employer agree
that the issue should be resolved using the analytical framework
established by the Board in Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). See also Manno Electric,
321 NLRB 278 fn. 12 (1996).
To set forth a violation in dual motive Section 8(a)(1) dis-
crimination cases, the General Counsel is required to show by a
preponderance of the evidence that animus against protected
activity was a motivating factor in the employer’s conduct. To
sustain his initial burden, the General Counsel must show (1)
that the employee was engaged in protected activity, (2) that the
employer was aware of the activity, and (3) that the activity
was a substantial or motivating reason for the employer’s ac-
tion. Wright Line, id. Motive may be demonstrated by circum-
stantial evidence as well as direct evidence and is a factual
issue, which the expertise of the Board is peculiarly suited to
determine. FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th
Cir. 1995), enfg. 314 NLRB 1169 (1994); Andrex Industries
Corp., 328 NLRB 1279 (1999).
If the General Counsel’s initial burden is satisfied, the em-
ployer can escape liability for its action by either disproving one
or more of the critical elements of the General Counsel’s case or
by establishing as an affirmative defense that the employer
would have taken the same action even in the absence of the
employee’s protected conduct. TNT Skypak, Inc., 312 NLRB
1009, 1010 (1993). To make such a showing, an employer can-
not simply present a legitimate reason for its actions but must
persuade by a preponderance of the evidence that the same ac-
tion would have taken place even in the absence of the protected
conduct. Signature Flight Support, 333 NLRB 1250 (2001).
The evidence presented to satisfy the General Counsel’s ini-
tial burden must be analyzed separately from the employer’s
defense. Pace Industrial, 320 NLRB 661 (1996), enfd. 118
F.3d 585 (8th Cir. 1997). Nevertheless, the employer’s stated
reasons for adverse action against an employee can be consid-
ered as a part of the General Counsel’s initial burden and if
they are pretextual they can support an inference that the em-
ployer had an unlawful motive. Black Entertainment Televi-
sion, 324 NLRB 1161 (1997). The entire record may be exam-
ined to ascertain whether the adverse action was motivated by
protected activity. Thus, in determining whether the evidence
presented has satisfied the General Counsel’s initial burden, the
evidence is not limited to the evidence introduced by the Gen-
eral Counsel, but can also include the reasons advanced by the
employer for its action and any additional reasons offered at the
hearing. Williams Contracting, 309 NLRB 433 (1992).
The uncontroverted evidence shows that Gellis engaged in
protected concerted activity by drafting the second letter and
asking fellow employees to sign the letter and that the Em-
ployer became aware of his activity when he sent his Septem-
ber 20 letter to the Employer. In addition, in September Gellis
told two supervisors that the employees were considering get-
ting a Union.
The General Counsel points to circumstantial evidence to
show that protected conduct was the motive for Gellis dis-
charge. It is contended that Gellis was treated more harshly
that some employees who were not fired for receiving visitors.
This argument is not convincing. Lead Skills Trainer Sandy
Esell was terminated without any prior verbal or written warn-
ings because she had visitors while on-duty, where there were
also other problems with her performance. The record demon-
strates that Rodas viewed Gellis as a problem employee before
the protected activity. These problems included evidence that
Gellis may have withheld medication and not supervised a pe-
dophile in a public library, as well as the refrigerator incident.
Moreover, the insubordinate and personally insulting remarks
Gellis made to Rodas regarding Gellis’ transfer show Rodas
had ample motive unrelated to protected activity to recommend
discharge.
The General Counsel argues that the evidence shows that the
Employer manufactured an overblown concern and reaction to
the visit that Gellis made to Del Sur, contending that there is no
evidence that Romero was prevented from discharging her job,
SANTA MARIA EL MIRADOR 731
because both Gellis and Martinez were off-duty. This argu-
ment is not persuasive. The thrust of the Employer’s rule was
to prohibit absolutely no off-duty staff visits in the group
homes.
Rodas’ August 10 memo to Gellis remarking on Gellis’
knowledge, dependability, and experience is stressed as evi-
dence of improper motive. This evidence is not persuasive.
The credible evidence shows that the transfer was to separate
Gellis from a resident who Rodas believed was being deprived
of his prescribed medication by Gellis. Gellis had successfully
foiled Rodas’ earlier attempt to transfer the resident to separate
him from Gellis. The memo was not a reflection of any high
regard Rodas had for Gellis and given the background are not
inconsistent with Rodas’ decision to fire Gellis. The problems
that the Employer relied on in explaining Gellis’ discharge
were not related to deficiencies in his knowledge, dependabil-
ity, and experience.
No reason was given to Gellis for the discharge at the time
he was given the discharge letter. It is argued that an inference
of unlawful motive can nevertheless be drawn from the lan-
guage of the letter because it contains a warning of prosecution
for trespassing by merely going on the Respondent’s property.
It is not uncommon for employers to bar former employees
from their property and the Employer had a valid rule prohibit-
ing on-duty employees from receiving visitors at the group
homes. Under these circumstances, I am unable to conclude
that the discharge letter is evidence of an improper motive for
Gellis’ discharge.
Gellis was discharged close in time to his protected activity
because the event that precipitated his discharge was unpro-
tected conduct in the course of his otherwise protected activity.
Timing in these circumstances is insufficient, standing alone, to
make out a prima facie showing that the protected activity was
a substantial or motivating reason for the discharge.
In view of the foregoing, I conclude that the General Counsel
has not shown that protected concerted activity was a substan-
tial or motivating reason for Gellis’ discharge. Accordingly, I
shall recommend dismissal of paragraph 4(d) of the complaint.
CONCLUSIONS OF LAW
1. Santa Maria El Mirador is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
[Recommended Order omitted from publication.]