SEIU Healthcare Michigan

National Labor Relations Board - Administrative Judge Opinions

Aug 18, 2010

07-CA-052402 (N.L.R.B. Aug. 18, 2010)

JD–45–10
Detroit, Michigan
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SEIU HEALTHCARE MICHIGAN
and Case 7-CA-52402
STEFANI PIPKINS, an Individual
Judith A. Champa, Esq., for the General Counsel.
David R. Radtke, Esq. (Klimist, McKnight, Sale, McClow
and Canzano, P.C.), of Southfield, Michigan, for the
Respondent.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter arises out of a complaint
and notice of hearing issued on January 8, 2010, against SEIU Healthcare Michigan
(the Respondent or the Union), stemming from unfair labor practice (ULP) charges filed
by Stefani Pipkins, an individual. The complaint alleges that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act (the Act) by discharging Pipkins
because of her protected concerted activities.
Pursuant to notice, I conducted a trial in Detroit, Michigan, on June 7 and 8,
2010, at which I afforded the parties full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence.
Issue
Did the Respondent, on September 17, 2009,1 discharge Member
Representative (MR) Stefani Pipkins because she concertedly complained
and expressed concerns in about July and August about the requirements
imposed on MR’s to obtain member surveys, or because Pipkins showed

1 All dates hereinafter occurred in 2009 unless otherwise indicated.
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disrespect to Union President Marge Faville at a September 15 general
membership meeting and then failed on September 16 or 17 to submit an
action plan as she had promised?
Witnesses and Credibility
The General Counsel called Pipkins; Lavette Flucker, former director of
representation, who resigned in October and ran unsuccessfully against Faville for
president in January 2010, and who knew Pipkins socially; Grace Frazier, an employee
of Team Mental Health (TMH) who spoke at the September 15 meeting; Marcus Furlow,
a former MR, who was terminated in February 2010;2 and Laura Johnstone, former
director of education and training, who was terminated in October. Thus, the General
Counsel had no current employees as witnesses.
The Respondent similarly called no current rank-and-file employees. All of its
witnesses were managerial or supervisory: Faville; Marcella Clark, assistant organizing
director; Johnnie Jolliffi, director of the member services department (and secretary-
treasurer since November); and Sandra McMillan, director of negotiations.
Pipkins, Flucker, and Furlow for the General Counsel, and Faville for the
Respondent, were chief witnesses, in that they testified on a broad range of pertinent
matters. The other witnesses on both sides offered testimony on more limited subjects.
Of these chief witnesses, Faville offered the most detailed and consistent testimony and
was the most specific as to dates. I note that the dates of relevant events were almost
wholly established through witness testimony rather than from documents such as
meeting announcements, minutes, or memoranda.
On the other hand, Pipkins was not a credible witness. She was uncertain and
often confusing on dates and the sequence of events; she described meetings or
conference calls between Faville and the MR’s that no other witnesses corroborated—
or even mentioned; she testified that she accused Faville of racial discrimination at the
August 28 meeting but admittedly said nothing in her affidavit about ever raising the
subject to Faville; and she seemed to be attempting to inflate her role at meetings with
Faville. I note Furlow’s testimony that, as a union steward, he was one of the
spokespersons for the MR’s and frequently spoke on their behalf. According to his
accounts, Pipkins played a smaller part in those meetings than she depicted.
For the above reasons, where Pipkins’ testimony differed from that of Faville and
other witnesses, I generally credit their versions. As I stated at trial, I draw no adverse
inferences against Pipkins’ credibility because she exercised her legal right to allege before
another government agency that her termination was due to racial discrimination.3

2 At times relevant, he was one of several stewards for OPEIU Local 42, which the
Respondent recognized as the representative of its nonclerical employees, including MR’s.
3 See R. Exh. 6, a claim she filed with the Michigan Department of Civil Rights on March 16,
2010.
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I recognize the well-established precept that credibility finding is not an all-or-
nothing proposition; witnesses may be found partially credible, since merely because a
witness is discredited on one point does not automatically mean that he or she must be
discredited in all respects. Dalikichi Sushi, 335 NLRB 622, 622 (2001); Golden Hours
Convalescent Hospitals, 182 NLRB 796, 799 (1970). Instead, the trier of fact may
appropriately weigh the witness’ testimony with the evidence as a whole and evaluate
its plausibility. Golden Hours at 798–799; see also MEMC Electronic Materials, 342
NLRB 1172, 1200 fn. 13 (2004).
Facts
Based on the entire record, including testimony and my observations of witness
demeanor, documents, and stipulations, as well as the thoughtful posttrial briefs that the
General Counsel and the Respondent filed, I find the following.
The Respondent, an unincorporated association with a main office in Detroit,
Michigan, is a labor organization that represents approximately 55,000 members who
work in hospitals, nursing homes, and home health care services throughout the State
of Michigan. The Respondent has admitted jurisdiction as alleged in the complaint, and
I find accordingly.
Pipkins worked for the Respondent at its Detroit office as an MR (or business
agent) in the representation department from January 9 until her termination on
September 17. Flucker supervised the department, which had about 12–14 MR’s, the
majority of whom were Black. Each MR was assigned to particular facilities and
engaged in a variety of activities servicing members, including site visits relating to
grievances or contract negotiations.

Likely exacerbated by the difficulties that labor organizations face in today’s
economic climate, the general workplace atmosphere in the representation department
clearly was stressful, as reflected in testimony from both the General Counsel’s and
the Respondent’s witnesses. In this regard, the following language in the employees’
handbook is revealing: “[W]orking in the labor movement is tough, demanding work,
which requires that employees frequently work long and irregular hours, including many
weekends and evenings.”4
Three other provisions of the handbook are also pertinent. The first concerns
production quotas and performance goals:5
Employees . . . are routinely assigned specific numerical objectives, which they
must achieve in their work. These objectives include, without limitation,
deadlines, budgetary limits, and making termination and recruitment quotas.
Employees are expected to meet all production quotas and numerical

4 GC Exh. 2 (Manual of Policies and Procedures) at 9.
5 Ibid at 14.
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performance goals, just as they are expected to perform all other aspects of their
work . . . .
The second provides that employees are expected to utilize the organizational
chain of command in dealing with work-related issues, with step 1 the supervisor, step 2
the department director, and step 3 the president or his/her designee.6
The third states that the Respondent maintains no formal system of discipline but
may exercise progressive discipline in its discretion.7
Nursing Home Action Agenda
In about April, the Respondent formulated a plan to survey nursing home
members statewide regarding the issues affecting them, to serve as the basis to drive
the nursing home division in the next 3 to 5 years.8 It set out a time line for launching a
multi-step, member-driven strategy that would be unveiled at the September Detroit
stewards’ conference. A steering committee composed of nursing home executive
board members and other identified key nursing home leaders would be formed, to
brainstorm and draft a list of issues affecting nursing home workers.
Faville appointed Pipkins and Mary Nelson (who was not in the representation
department) to that committee, as well as to a related staff committee. Both committees
subsequently met a number of times. The record is unclear which committee met when,
and I will treat them together.
Pipkins attended her first meeting on about April 21, with Nelson, Director of
Communication Bob Allison, and Director of Government Affairs Zac Altefogt. Allison
explained the purpose of the plan was to increase nursing home workers’ involvement
in the Union. He spoke about the process of printing and circulating the surveys and
the importance of collecting information from the maximum number of people. He also
stated that MR’s would in the course of their day-to-day business collect surveys and
encourage members to turn them in.
Subsequent committee meetings took place once or twice a month. Chief of
Staff Mark Raleigh and Directors Flucker, Johnstone, and Jolliffi attended later
meetings. By the second or third meeting, the final version of the survey was finished.9
Pipkins testified as follows. In July, Faville held a meeting with Flucker and the
MR’s in a conference room. During the meeting, Pipkins raised concerns about what
would happen if MR’s did not get their surveys in. She stated that the nursing home
agenda was turning into something punitive and cited Raleigh’s comment that he did not
want to count surveys without names on them and Jolliffi’s statement that the member

6 Ibid at 40.
7 Ibid at 52.
8 See GC Exh. 5.
9 See GC Exh. 4, two pages of questions with answer boxes to check.
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services department would check behind the MR’s to confirm that members attended
the meetings at the facilities. Faville responded that she disagreed with Pipkins.
Pipkins also testified about a conference call that Faville conducted with all MR’s
and Flucker in June or July. According to Pipkins, Faville specifically said during the
call that MR’s would have to get completed surveys from a minimum number of
members by individual facility and that mailed in surveys would no longer be counted.
However, neither Flucker or Furlow, or Faville, nor any other witness,
corroborated Pipkins’ testimony that there was such a meeting or conference call
between Faville and the MR’s. Accordingly, and taking into account problems with
Pipkins’ overall credibility, I decline to find as facts that such a meeting or conference
call occurred.
Returning to what I find to be facts, in or before mid-August, Pipkins attended a
committee meeting or meetings at which Raleigh said he did not want surveys that
lacked members’ names, and at which Jolliffi said that the surveys were a mandate, and
MR’s who did not meet their required number of surveys or quotas were probably going
to be disciplined. Pipkins reported this to Furlow and other MR’s, who requested a
meeting on the matter.
Such a meeting was held on about August 17,10 in Flucker’s office, with Pipkins
participating by telephone. She related what Raleigh and Jolliffi had stated. Flucker
responded that Pipkins should not be saying anything about discipline because nothing
concrete had been decided. Pipkins reiterated what Jolliffi had said. According to
Furlow, Pipkins and Flucker argued back and forth, and Flucker testified without
controversion that the conversation ended with Pipkins being upset and hanging up.
August 19 Conference Call
On the afternoon of August 19, Faville conducted a conference call with all of the
MR’s, who were either grouped in Flucker’s office or participated by phone. Faville set it
up after reviewing a report giving updated survey returns from each MR by facility.
During the call, Faville reviewed with each MR his or her progress. She commended a
few for their results, including Rudi Mauch (a Caucasian) and questioned others
(including Alan Orta, who is Hispanic, and LaToya McDaniel, who is Black) as to why
they had not reached their goals. Furlow testified without controversion that he voiced
concerns the MR’s had about the process because he was one of their spokespersons
in his capacity as a steward.
Pipkins and Flucker testified about what happened after the call (Furlow did not).
Their accounts were fairly similar on many points, but where they differed, I credit
Flucker’s as more reliable and less self-serving. Some of the MR’s complained that
they had reached their goals yet not received accolades. Furlow stated that he was not

10 Vis-à-vis Pipkins and Flucker, Furlow gave the most specific date frame for the meeting,
and I credit him on point. Tr. 291.
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going to collect any more surveys and then laughed. After that, Pipkins and perhaps
others stated that they were not going to collect any more either, and they laughed
about it.11 Regardless of how serious they were, Flucker told them that this was not the
time for those statements and that they needed to continue with their work. She did not
report the incident. However, the following day, Raleigh called Faville and informed her
that he had overheard MR’s grumbling about the surveys.
Flucker testified that she did not report any employee complaints concerning
survey goals and personally disagreed that such goals be set.
August 28 Meeting
On the afternoon of August 28, Faville met with Flucker and all of the MR’s in a
conference room. She opened by stating that she had heard of dissatisfaction among
the MR’s and wanted to clear the air. She asked them, one-by-one, to state their
concerns, and they did so. For example, Kim Fowlkes and Carso Jones raised issues
they had with Flucker, and Dave Robertson said something about his region unrelated
to the surveys.
Pipkins testified that the thrust of her voiced concerns was racial discrimination
rather than the surveys per se.12 In this regard, she testified that she accused Faville of
having been harsher in the earlier conference call with minority representatives vis-à-vis
Caucasian representatives and that she considered this unfair, and that Faville denied
any such discrimination.
In contrast, no other witnesses testified that Pipkins specifically raised racial
discrimination as an issue. According to Flucker, Pipkins was vocal in speaking about
what Jolliffi had stated regarding discipline if MR’s did not meet their survey goals, and
Pipkins and Furlow raised the prior conference call and the accolades that Mauch had
received; Furlow did not describe anything Pipkins or he said at the meeting; and Faville
testified that Pipkins made a comment to the effect that she would not have volunteered
to be on the committee had she known that the survey goals would be mandates.
A claim of racial discrimination is certainly considered a significant matter in
today’s workplace, and lack of corroboration from Flucker and Furlow that Pipkins made
such an accusation undermines her credibility on this point. Also significant in this
regard is Pipkins’ admission that nowhere in her affidavit to the NLRB did she state that
she raised the issue of racial discrimination with Faville.13
At some point, Pipkins spoke about what Jolliffi had stated regarding discipline if
MR’s did not meet their survey goals. However, she testified that other MR’s, including

11 Pipkins also testified that the statements were made in a jocular vein. As she put it, “[I]t
was a running joke.” Tr. 52.
12 See Tr. 74.
13 Tr. 142. The only mention of race in her affidavit is that Mauch is White and McDaniel
Black. Tr. 183.
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Nelson, also complained in connection with the mandates, and she was not certain
which MR raised the subject of discipline.14
When Furlow’s turn came, he commented that he would “ride it out” with
Faville,”15 Faville told him to stop, that she had heard him talking “bullshit” about her in
the parking lot.16 She also said, “Not only that. You and Stefani don’t like doing the
surveys or the extra work for the members.”17 It is undisputed that Pipkins denied the
assertion and asked who had said that about her. I credit Faville and Furlow’s
testimony that Faville answered it was Raleigh, over Pipkins’ testimony that Faville did
not disclose his name to her until a monthly all-staff meeting on September 14.
In any event, at the September 14 meeting, Pipkins raised the matter of what
Raleigh had reportedly said against her, stating that it was a lie. Faville responded that
they could take care of that at the next monthly staff meeting, when Raleigh would be
back from leave.
When asked on cross-examination why she considered mandates punitive,
Pipkins did not offer a cogent explanation. She first answered that she volunteered for
the nursing home action committee outside of her regular work duties, but it then
became mandatory. Next, she testified that it was punitive because she was one of the
MR’s assigned to do the surveys, not necessarily because she was on the committee.
Also during cross-examination, Pipkins admitted that she did not know if the
Respondent adopted Raleigh’s proposal not to count unsigned surveys, because Allison
disagreed with him. No MR was ever disciplined for failing to meet his or her survey
goals or quotas.
September 15 General Membership Meeting
On the morning of September 15, Director of Negotiations McMillan sent Pipkins
an e-mail, notifying her that she was assigned to be the lead negotiator for Luther
Haven,18 one of the facilities she serviced. Previously, Pipkins had assisted in
negotiations but never served as the lead negotiator. Faville testified that this was a
new responsibility for Pipkins but not a promotion, because all MR’s negotiate contracts.
That evening, in the auditorium, Faville conducted an open meeting of union
officials, executive board members employees, and union members. Approximately
100 persons attended. As Faville finished giving a report on the home health service
division, Frazier stood up, raised her hand, and stayed standing until Faville recognized
her. Frazier stated that she had heard all the nice things Faville had said, but they were
having problems at TMH, which she described. Faville assured her the Union would do
everything it could. She asked who the union MR was. Pipkins stood up and stated

14 Tr. 78–79; Tr. 152.
15 Tr. 294.
16 Tr. 359.
17 Ibid.
18 R. Exh. 3.
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that she was. Faville asked if she could have an action plan ready in 2 weeks. Pipkins
responded that she had been working on one with Flucker and Clark and could have it
to her tomorrow.19
After the meeting, both McMillan and Jolliffi testified, they spoke with Faville
about the incident. Faville did not name them as among the people who came up to her
afterward concerning the matter, leading me to the conclusion that she and they did not
make a deliberate attempt to mesh their testimony but testified from genuine recall. I
credit them, noting that their testimony comported with Flucker’s account of what Faville
told her later that evening. McMillan told Faville that she was very surprised someone
would do that in the middle of a general membership meeting and that she had never
seen such behavior. Jolliffi described Faville as visibly shaken and asked if she was
okay. Faville replied yes.
Following the meeting, Faville approached Flucker in the parking lot, where they
had a conversation. Their recollections were quite similar and not inconsistent. Faville
asked, “What the hell was that?”20 Flucker asked what she was talking about. Faville
asked if she had not heard Pipkins. Flucker replied that she had stepped out (to speak
with a member). Faville explained what had occurred and that Pipkins had better have
the plan on her desk the next day. Flucker said that she would take care of it.
The divergence of testimony between the General Counsel’s and the
Respondent’s witnesses on the September 15 meeting primarily concerned Pipkins’
demeanor and tone of voice rather than her words themselves.
Thus, Pipkins, Furlow, and Johnstone depicted her tone and demeanor as
normal and respectful. In contrast, Faville used “snotty, condescending, disrespectful;”
McMillan “very rude and disrespectful;” and Jolliffi “very insolent and very rude,” based
on Pipkins’ tone of voice and the body movements of her head and shoulders.21
Perhaps most accurately from an objective point of view, Frazier chose “confident.”22
I am mindful that perceptions about what is or is not respectful are viewed
through the filter of predisposition, and witnesses’ characterizations may be colored by
their desire to help one side or the other. Weighing the respective versions, I conclude
that Faville genuinely construed Pipkins’ behavior as disrespectful, regardless of
Pipkins’ subjective state of mind. Several factors lead me to this outcome. Their
dialogue occurred in the context of an atmosphere that Faville no doubt found
unpleasant: Frazier essentially challenged her statements that the Union was doing a
good job representing nursing home members. Frazier’s depiction of Pipkins’ tone as
“confident” suggests an element of “attitude” or that Faville could have reasonably
perceived such. Further, although Johnstone testified that Pipkins’ tone was normal

19 Other accounts had Pipkins stating that she would have it the following morning, but the
difference is immaterial.
20 Tr. 372.
21 Tr. 369–370, 410, 423.
22 Tr. 195.
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and respectful, she testified on cross-examination that in her meeting with Faville on
September 16 concerning Pipkins, Faville “seemed upset that she had been
challenged” and stated that this was not the first time Pipkins had “publicly challenged”
her.23 Finally, Flucker’s and Jolliffi’s accounts reflect that Faville evinced strong
emotions to the incident immediately after its occurrence.
Events of September 16 and17
One of the few undisputed facts is that Faville did not receive the TMH action
plan on either September 16 or 17. Similarly, there is no disagreement that Faville’s
office is located within feet of the MRs’ cubicles and off the hallway that leads to the
break room. On many other matters, testimony was conflicting, either implicitly or
directly to the point that someone was untruthful.
Pipkins testified that about a week prior to September 16, Clark and she had
already put together an action plan (General Counsel’s Exhibit 9) and needed only to
finalize certain details. They met with Flucker in her office on the afternoon of
September 16 and reviewed it. Flucker told Pipkins and Clark that Faville was
unavailable but that the plan was done, and they would give it to Faville the following
day. Afterward, Clark and Pipkins continued to work on the stickers for the plan, and
Pipkins left work at about 5 or 5:30 p.m. Flucker’s account was substantially the same.
She testified that she also said the plan would have her approval once Pipkins added
dates to achieve certain goals.
In direct contradiction to their testimony, Clark averred that she never saw
General Counsel’s Exhibit 9 before it was shown to her at the trial, never saw any
written action plan, and did not meet with Pipkins and Flucker on September 16.
The Respondent maintains records of entry into various areas of the facility (exits
are not recorded). They show that on September 16, Faville’s first entry was at 8:24
a.m. and her last entry at 7:37 p.m.,24 corroborating Faville’s and MacMillan’s testimony
that the former was in the office throughout the day. I so find. They also tend to lead
credence to Faville’s testimony that she saw Pipkins several times that day, but they did
not speak to each other. On the other hand, they cast doubt on Pipkins’ and Furlow’s
assertion that they never saw Faville at all on September 16.

Faville met with a number of people that day, including Flucker in the morning.
Flucker stated that she wanted to talk about last night. Faville replied that she was a
little calmer than last evening but still upset that Pipkins had disrespected her in front of
the membership. Flucker responded that she was working with Pipkins. Faville replied
that Flucker needed to work with her a lot because this could never happen again and
that she had thought last night of firing Pipkins but was probably going to suspend her.
Faville further stated that Pipkins had better get the plan to her that day.25

23 Tr. 224; 220.
24 R. Exh. 8 at 2.
25 This apparently was the same conversation that Flucker testified occurred on September
Continued
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Entry logs further show that on September 17, Faville first entered at 10:58 a.m.
and last entered at 3:49 p.m.26 That day, she called in her senior leadership team,
which included Jolliffi, Chuck Lobaito, and Attorney Chris Mikula. She told them that
she was terminating Pipkins for disrespecting and humiliating her at the meeting and
then failing to provide her with the plan on the following day.27 She directed Mikula and
Jolliffi to give Pipkins the termination paperwork.
Pipkins reported to work at about 8:30 a.m. on September 17. That morning, she
sent an e-mail to Mikula, Flucker, and Clark, with a copy to Faville, concerning problems
at TMH.28 Rather inexplicably, she made no mention therein of the action plan. She left
for fieldwork at about 4 p.m. and subsequently received an e-mail directing her to return
to the facility. She was at her cubicle at 5:15 p.m., when Jolliffi came over and told her
to accompany her. They went to Mikula’s office, where Mikula informed Pipkins that
they were letting her go. She asked why. Milkula handed her a termination letter dated
September 17 and signed by Faville.29 Afterward, Jolliffi accompanied Pipkins back to
her desk, where she retrieved her notebook and purse.
Pipkins testified that she had the action plan on her person all day on September
17 and tried to tell Jolliffi in Mikula’s office that she had it with her. She later testified
that she did tell Mikula, Jolliffi, and Lobaito that she had it in her hand. She also
testified that she left the plan in the center of her desk when she left.
In direct opposition, Jolliffi, testified that Pipkins made no attempt to hand her any
documents or give her a plan and never stated that she had a TMH plan; moreover,
Jolliffi never saw such a plan on Pipkins’ desk. Flucker could not recall if she saw it
there after Pipkins’ termination.
Faville testified that she talked to Flucker following the termination, but the latter
never said there was a written plan or gave her one. She further testified that she never
saw a TMH plan and that June 7, 2010 was the first time she saw General Counsel’s
Exhibit 9. Flucker testified that she did not know whether Faville ever received a plan.
At trial, Faville stated that she made the decision to terminate Pipkins due solely
to the latter’s conduct at the September 15 general membership meeting and
subsequent failure to turn in the TMH plan, taken together.
Analysis and Conclusions
The framework for analyzing alleged violations of Section 8(a)(1) turning on
_________________________
17, in which Faville referenced the September 15 meeting and Pipkins’ failure to provide her
with the plan and said she had a mind to fire her.
26 R Exh. 8 at 2.
27 She gave the same reasons for Pipkins’ discharge to Furlow and Johnstone on
September 18, in separate conversations.
28 R. Exh. 5.
29 GC Exh. 6. It stated no reasons for the termination.
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employer motivation is Wright Line 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). General Motors Corp., 347 NLRB No. 67 fn. 3
(2006) (not reported in Board volumes). Under Wright Line, the General Counsel must
make a prima facie showing sufficient to support an inference that the employee’s
protected conduct motivated an employer’s adverse action. The General Counsel must
show, either by direct or circumstantial evidence, that the employee engaged in
protected conduct, the employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took action because of this
animus.
Under Wright Line, if the General Counsel establishes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of
the evidence, that protected activity was a motivating factor in the employer’s action.
The burden of persuasion then shifts to the employer to show that it would have taken
the same adverse action even in absence of such activity. NLRB v. Transportation
Corp., 462 U.S. 393, 399−403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th
Cir. 2002); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th
Cir. 1997) (per curiam). Where an employer’s stated reason for its actions is found to
be pretextual, i.e., is either false or not, in fact, relied upon, then by definition the
employer has failed to meet its Wright Line burden. CSS Healthcare Services, Inc.,
355 NLRB No. 5 (2007); Fluor Daniel, Inc., 304 NLRB 970, 970 (1991).
The initial question is whether the employee’s actions were concerted in nature.
An individual employee acting with or on the authority of other employees and not solely
on his or her own behalf is engaged in concerted activity. Meyers Industries (Meyers I),
268 NLRB 493, 497 (1984), revd. sub nom. Prill v. NLRB, 755 F.2d 942 (D.C. Cir.
1985), cert. denied 474 U.S. 971 (1985), decision on remand Meyers Industries (Meyers
II), 281 NLRB 882, 885 (1986), enfd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988). Concerted activity encompasses an individual employee who seeks
to initiate, induce, or prepare for group action, or who brings group complaints to
management. Meyers II, 281 NLRB at 887. Conversely, it does not include activities of
a purely personal nature that do not envision group action. See United Association of
Journeymen and Apprentices of the Pipefitting Industry of the United States and
Canada, Local Union 412, 328 NLRB 1079 (1999); Hospital of St. Raphael, 273 NLRB
46, 47 (1984).
The August 17 meeting with Flucker was set up at the request of employees,
after Pipkins reported to them changes in the procedure for obtaining their quotas of
surveys. At that meeting, Pipkins essentially served as a spokesperson for the MR’s in
the discussion with Flucker. At the August 28 meeting with Faville, Pipkins again raised
issues about the consequences for MR’s for not achieving their quotas, and other
employees voiced similar concerns. I conclude that these activities of Pipkins were
concerted. They were protected activities as well, since they related directly to
employees’ terms and conditions of employment. I note that the protection of protected
activity does not depend upon the merit or lack of merit of the grievance or complaint.
See Skrl Die Casting, Inc., 222 NLRB 85, 89 (1976); NLRB v. Guernsey-Muskingum
Electric Cooperator, Inc., 285 F.2d 8, 12 (6th Cir. 1960).
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On the other hand, statements that Pipkins made at the September 14 meeting
denying the accusation that she had said she did not like doing the surveys, and at the
September 15 meeting about the TMH action plan, related solely to herself and did not
seek or entail any kind of group action. Therefore, they were not concerted in nature.
Pipkins’ statements after the August 17 meeting with Flucker, whether or not made in
jest, were that she was not going to collect more surveys, in direct controversion of
management’s directives. I conclude that they did not constitute protected activity, even
leaving aside the provision in the employees’ handbook specifically stating that
employees must comply with all production quotas and numerical performance goals.
As to knowledge, Pipkins’ protected activities at the August 28 meeting were in
the presence of Faville. I next turn to her statements at the August 17 meeting with
Flucker. A supervisor’s knowledge of an employee’s protected activity is ordinarily
imputable to a respondent. State Plaza Hotel, 347 NLRB 755, 756 (2006); Dobbs
International Services, 335 NLRB 972, 973 (2001). However, an exception to this
general precept is made when credited testimony has established that a supervisor who
learned of union activities did not pass on the information to others. Dr. Phillip Megdal,
D.D.S., Inc., 267 NLRB 82, 82 (1983); see also Kimball Tire Co., 240 NLRB 343, 344
(1979). Flucker, whom the General Counsel called as a friendly witness, testified that
she personally disagreed with the Respondent’s policy of setting survey goals and that
she informed no one of complaints she heard from employees about the surveys. In
light of Flucker’s credited, unrebutted testimony, I conclude that knowledge of Pipkins’
statements at the August 17 meeting with Flucker is not properly imputable to the
Respondent.
Based on the above, I will consider only what Pipkins said to Faville on August
28 about the surveys as protected concerted activity known to the Respondent.
The complaint alleges no independent violations of Section 8(a)(1), and there is
no direct evidence of animus toward Pipkins for engaging in the above activity. Anger
that Faville expressed at Pipkins at the August 28 meeting was for purportedly stating
that she did not like doing the surveys. Her later negative statements all related to
Pipkins’ “disrespectful” conduct at the September 15 meeting and her subsequent
failure to provide the TMH action plan, and had nothing to do with the surveys. The
General Counsel in her brief (at 38) raises Johnstone’s unrebutted testimony that Faville
on September 16 stated that Pipkins had “publicly challenged” her before. The qualifier
“publicly” suggests a broader audience than the representation department, but in any
event, I have difficulty concluding that Pipkins’ statements at the August 28 meeting,
even if she is fully credited, constituted a “challenge,” especially when Faville called the
meeting to solicit the MR’s concerns and complaints, and most, if not all, MR’s voiced
them.
Animus may be inferred from the totality of circumstances and the record as a
whole, considering such factors as, inter alia, suspicious timing, disparate treatment,
and advancing shifting reasons for the action. Tubular Corp. of America, 337 NLRB 99,
99 (2001); Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976 F.2d 744 (11th Cir.
1992); see also Real Foods Co., 350 NLRB 309, 316 (2007). Similarly, the Board
evaluates all of the circumstances of a particular case to determine whether the timing
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of the employer’s actions suggests that it seized an opportunity to mask its true
motivation. Case Farms of North Carolina, Inc., 353 NLRB No. 26 at slip op. 6 (2008).
Here, Pipkins’ discharge occurred approximately 3 weeks after the August 28
meeting, certainly not a long period. However, intervening events militate against
finding any suspicion in timing: not only the September 15 meeting and the events of
September 16 and 17, but the notification to Pipkins on the morning of September 15
that she was going to be made a chief negotiator for the first time. I cannot believe that
the Respondent was Machiavellian and disingenuous to the point where it prepared and
gave Pipkins such a notification when it already intended to fire her for her conduct on
August 28, simply to manufacture evidence in its defense if the discharge went to an
NLRB trial. Accordingly, I do not find the timing of the discharge to be indicative of
unlawful animus.
As far as disparate treatment, the record does not reflect that any other
employees have engaged in similar conduct for which Pipkins was discharged.
Moreover, the Respondent does not maintain a system of progressive discipline or have
established procedures for employees to challenge proposed disciplinary actions.
Finally, Faville has been consistent in citing the reasons for Pipkins’ discharge, both to
witnesses at around the time of its occurrence and at the hearing.
Lastly, I will consider the Respondent’s defenses to determine if any animus can
be inferred from them. The Respondent contends that Pipkins’ discharge was based on
her conduct at the September 15 meeting and her failure to turn in the action plan,
taken together.
I have concluded that, regardless of Pipkins’ intent, Faville was perturbed by
what she considered Pipkins’ disrespectful conduct toward her at the meeting, in front of
100 or so people.
Regarding the events of September 16 and 17, and crediting Pipkins and Flucker
that a plan was completed on the afternoon of September 16, I am perplexed by
Pipkins’ failure to provide it to Faville at that time. At the September 15 meeting, Faville
asked her to have it within 2 weeks, but Pipkins promised to provide it to her the next
day. Crediting Pipkins and Flucker that Faville was not available to meet with them and
Clark on the afternoon of September 16 does not answer the question of why getting
the report into Faville’s hands on September 16 or 17 would have been difficult. Faville
was in the office both days, and she and Pipkins worked in the same suite of offices and
were readily accessible to one another. Thus, even had Faville not been personally
present and available on those days, nothing in the record explains why Pipkins could
not have left the action plan in Faville’s personal office or with Faville’s secretary instead
of apparently waiting for a formal face-to-face meeting to be arranged. In the same
vein, I cannot fathom why Flucker did not take steps to furnish Faville with such a plan,
even when, according to Flucker’s own testimony, Faville told her prior to Pipkins’
termination that Pipkins’ job was in jeopardy because she had not submitted it.
In her brief (at 40), the General Counsel cites the chain of command provision to
argue that Pipkins could not be expected to give the plan directly to Faville. However,
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this argument ignores the fact that Faville certainly had the authority to instruct Pipkins
to bypass Flucker and deal directly with her, and she exercised it here.
In sum, either the plan did not exist, or Pipkins (and Flucker) failed to take
reasonable steps necessary for Faville to receive it. Either way, Pipkins did not provide
the plan to Faville on the day she sua sponte promised or even on the following day.
I conclude that the reasons the Respondent has advanced for Pipkins’
termination were not pretextual and that, based on all of the circumstances I have set
forth, the General Counsel has not established animus, either by direct evidence or
circumstantially. Therefore, the General Counsel has failed to establish a prima facie
case of unlawful discrimination under Section 8(a)(1).
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent has not engaged in any unfair labor practices under the Act.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended30
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 18, 2010.
_____________________
Ira Sandron
Administrative Law Judge

30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes