Staffing Network Holdings, LLC

National Labor Relations Board - Board Decisions

Feb 4, 2015

362 NLRB No. 12 (N.L.R.B. 2015)

362 NLRB No. 12
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Staffing Network Holdings, LLC and Griselda
Barrera. Case 13–CA–105031
February 4, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On July 17, 2014, Administrative Law Judge Melissa
M. Olivero issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by terminating Griselda Barrera, we agree with the judge that
under Atlantic Steel Co., 245 NLRB 814 (1979), Barrera did not engage
in any conduct that would cause her to lose the protection of the Act.
Contrary to the judge and our colleague, we find that the fourth fac-
tor of the Atlantic Steel test, whether the outburst was provoked by an
unfair labor practice, weighs in favor of protection. Specifically, we
find that the Respondent’s unlawful threats of termination (rather than
the discharge of Barrera’s coworker, relied on by the judge) motivated
Barrera to briefly refuse to leave work when asked to do so and state
that she had done nothing wrong. See Goya Foods, Inc., 356 NLRB
No. 73 (2011). We further find, however, that even assuming this
factor weighed against protection, a finding of a violation is still war-
ranted, because the other three Atlantic Steel factors weigh in favor of
protection, as the judge found. We also agree with the judge that an
analysis under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), is not ap-
propriate in this case, but even assuming Wright Line applied, a finding
of a violation would be warranted for the reasons set forth in the
judge’s decision.
In adopting the judge’s finding that the Respondent’s statement that
Barrera could not return to work conveyed that she was discharged, we
do not rely on Action Carting Environmental Services, 354 NLRB 732
(2009), cited by the judge. Instead, we rely on Kolkka Tables & Finn-
ish-American Saunas, 335 NLRB 844, 846–847 (2001).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Staffing
Network Holdings, LLC, Itasca, Illinois, its officers,
agents, successors, and assigns, shall take the actions set
in the Order as modified.
1. Substitute the following for paragraph 2(g).
“(g) Within 14 days after service by the Region, post at
its facilities in Itasca, Illinois, and its ReaderLink facility
in Romeoville, Illinois, copies of the attached notice
marked ‘Appendix.’21 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including

In affirming the judge’s recommended tax compensation and Social
Security Administration reporting remedies, we rely on Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). We affirm
the judge’s decision not to order a Spanish-language notice posting, but
do not rely on First Student, Inc., 359 NLRB No. 12 (2012), cited by
the judge.
In finding that Andy Vega unlawfully threatened Barrera, Member
Johnson does not rely on Vega’s asking Barrera whether she was fine,
but only on the threat that followed. See his concurrence in Greater
Omaha Packing Co., 360 NLRB No. 62, slip op. at 2 fn. 6 (2014) (em-
phasizing the need to afford employers the opportunity to exchange
views with employees on terms and conditions of employment).
In finding the unlawful discharge, Member Johnson notes that the
judge did not clarify what purported misconduct of Barrera’s was the
subject of her Atlantic Steel analysis. The judge did not credit Supervi-
sor Andy Vega’s testimony that Barrera was rude and refused his in-
struction to go back to work. His colleagues point to Barrera’s later
refusal to go home when directed, but that occurred after Vega told her
to go, and the Respondent does not contend that it took adverse action
against her because of it.
As for the Atlantic Steel analysis itself, Member Johnson agrees that
the first two factors weigh strongly in favor of protection. As for Bar-
rera’s refusal to leave when directed (and assuming that the judge was
looking at that), Member Johnson disagrees with the analysis in Goya
Foods insofar as it puts too much importance on the brevity of insubor-
dination to an employer’s directive (particularly a directive for the
employee to leave). More decisive is the employer’s reaction to the
potential insubordination. Here, Vega told Barrera to go home, she
refused and said she had done nothing wrong, and Vega angrily said,
“Let’s see if you’re not leaving.” After the others defended Barrera,
however, Vega did not insist that she leave. He simply walked off. It
could have reasonably appeared that he was dropping the matter. When
Monica Amaya then came to repeat the instruction, Barrera readily
complied. Based on this and the fact that Barrera’s refusal was not
particularly disrespectful or disruptive, Member Johnson finds that this
factor weighs only weakly toward a loss of protection. Finally, contrary
to his colleagues, he does not disturb the judge’s finding that the fourth
(provocation) factor properly relates to the discharge of employee
“Juan” and does not weigh in favor of protection. All told, however, he
agrees that none of Barrera’s conduct cost her the Act’s protection.
2 We shall modify the judge’s recommended Order in accordance
with our decision in J. Picini Flooring, 356 NLRB No. 9 (2010), and to
conform to the Board’s standard remedial language. We shall substi-
tute a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since November 15, 2012.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. February 4, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in protected, concerted activi-
ties protected under Section 7 of the Act.
WE WILL NOT threaten you with discharge for engaging
in protected, concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of this Order,
offer Griselda Barrera full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Griselda Barrera whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest compounded
daily.
WE WILL file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar
quarters.
WE WILL compensate Griselda Barrera for the adverse
tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Griselda Barrera, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discharge will not be used against her in any
way.
STAFFING NETWORK HOLDINGS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-105031 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273–1940.
3
STAFFING NETWORK HOLDINGS, LLC
Sylvia Taylor, Esq., for the General Counsel.
Amanda Sonneborn, Esq., Kerry Mohan, Esq., and Giselle
Donado, Esq., for the Respondent.
Christopher Williams, Esq. and Alvar Ayala, Esq., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case
was tried in Chicago, Illinois, on February 12 and 13, 2014.
Griselda Barrera, an individual, filed the charge on May 13,
2013, and a first amended charge on September 16, 2013, and
the General Counsel issued the complaint on October 29,
2013.1 (GC Exhs. 1(a), (c), (e).) The complaint alleges that
Staffing Network Holdings, LLC (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by threat-
ening to terminate employees because they engaged in protect-
ed concerted activity, and by terminating Charging Party
Griselda Barrera, an employee of Respondent, because she
engaged in protected concerted activity. (GC Exh. 1(e).) Re-
spondent timely filed an answer and amended answer to the
complaint denying the alleged violations of the Act and assert-
ing eight affirmative defenses. (GC Exhs. 1(g) and (k).) The
parties were given a full opportunity to participate, to introduce
relevant evidence, to examine and cross-examine witnesses,
and to file briefs. On the entire record,2 including my own
observation of the demeanor of the witnesses,3 and after con-
sidering the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Staffing Network Holdings, LLC, a limited lia-
bility corporation, provides long-term and temporary assign-
ment of technical, professional, and light industrial services to a
variety of employers from its facility in Itasca, Illinois, where it
annually performs services valued in excess of $50,000 in

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s Exhibit; “GC Exh.” for General
Counsel’s Exhibit; “R. Br.” for Respondent’s Brief; and “GC Br.” for
the General Counsel’s Brief. The Charging Party did not file a brief.
2 On March 31, 2014, after the General Counsel and Respondent
moved to correct the transcript, I issued an Order Correcting Transcript.
The Order to Correct Transcript is in the record as ALJ Exh. 2. Pursu-
ant to this Order, the transcript is corrected as follows: Tr. 86, L. 18:
substitute “By Ms. Taylor” for “By Ms. Sonneborn”; Tr. 97, L. 21:
substitute “breaks” for “brakes”; Tr. 103, L. 19: substitute “Ms.
Sonneborn” for “Ms. Taylor”; Tr. 126, L. 24: substitute “Ms.
Sonneborn” for “Ms. Taylor”; Tr. 128, L. 8: substitute “Ms.
Sonneborn” for “Ms. Taylor”; Tr. 146, L. 3: substitute “hire” for “high-
er”; Tr. 221, L. 18: substitute “Ryan” for “Brian”; Tr. 222, L. 1: substi-
tute “Ryan” for “Brian”; Tr. 258, LL. 8–10: substitute “pinche joto,
maricon, te voy a partir tu madre, and eres un puto” for “[Spanish
word], [Spanish word], [Spanish word].”
3 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case. I further note that my
findings of fact encompass the credible testimony and evidence pre-
sented at trial, as well as logical inferences drawn therefrom.
States other than the State of Illinois. Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operations and
Management Structure
Respondent operates a staffing agency. Some of its locations
are freestanding (branch locations) and others are within the
premises of another employer (embedded locations). One such
embedded location is at a facility called ReaderLink in Romeo-
ville, Illinois. The General Counsel does not allege that Re-
spondent and ReaderLink are joint employers or a single em-
ployer under the Act. Respondent provides 80 employees who
work as pickers and stockers, an onsite manger, and a staffing
assistant to ReaderLink. The pickers work side by side on a
production line with radio headsets, placing books into boxes
and sending them down the line. Stockers, who work near the
pickers, ensure that the pickers are provided with a sufficient
supply of books to pick.
Respondent’s clients may wish to terminate or remove one of
Respondent’s employees from its employ. Respondent uses the
acronym DNR (do not return) to describe such situations.
Thus, when an employee is told not to return to a client-
employer’s premises, Respondent describes this situation by
stating that the employee has been “DNR’d.”
In November and December 2012, Andy Vega was Re-
spondent’s onsite supervisor at ReaderLink. Esther Rodriguez
is Respondent’s operations manager for ReaderLink and other
accounts; in the fall of 2012 she visited ReaderLink about two
or three times per week. Cecilia Zuniga is Respondent’s human
resources manager. Respondent admits, and I find, that Vega,
Rodriguez, and Zuniga are supervisors of Respondent within
the meaning of Section 2(11) of the Act and agents of Re-
spondent within the meaning of Section 2(13) of the Act. (GC
Exhs. 1(g) and (k).)
At the time of the events giving rise to this case, Monica
Amaya was Respondent’s staffing assistant at ReaderLink; she
reported to Vega. (Tr. 217–218.) Her duties included assisting
Vega with payroll and administrative duties. Id. I find that
Amaya is an agent of Respondent. Agency may involve ex-
press or apparent authority. The Board applies common-law
principles of agency in determining whether an employee is
acting with apparent authority on behalf of an employer when
that employee makes a particular statement or takes a particular
action. Pan-Oston Co., 336 NLRB 305 (2001), citing Cooper
Industries, 328 NLRB 145 (1999). Apparent authority results
from a manifestation by the principal to a third party that cre-
ates a reasonable belief that the principal has authorized the
alleged agent to perform the act in question. Pan-Oston Co.,
336 NLRB at 306, citing Southern Bag Corp., 315 NLRB 725
(1994). Agency status can be established when an employee is
held out as a conduit for transmitting information to employees.
D&F Industries, 339 NLRB 618, 619 (2003); Hausner Hard-
Chrome of KY, 326 NLRB 426, 428 (1998). As set forth more
fully below, Amaya relayed various messages from Vega to
Barrera, including the messages sending Barrera home and
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
advising her not to return to work. I find that in so doing Ama-
ya is an agent of Respondent within the meaning of Section
2(13) of the Act.
B. Griselda Barrera’s Employment
with Respondent
Griselda Barrera was employed by Respondent from about
2004 until she was discharged by Respondent on November 15,
2012.4 (Tr. 13.) Barrera’s only assignment while employed by
Respondent was at ReaderLink, where she worked as a picker.
(Tr. 14.) Her supervisor was Andy Vega. (Tr. 15–16.) Prior to
her termination, Barrera had never been disciplined for insub-
ordination or other issues related to her work performance.5
C. The Events of November 15
On November 15, 2012,6 the pickers and stockers at
ReaderLink were trying to fulfill a large book order. (Tr. 17,
71.) Vega testified that he was asked to speak to the stockers
by Mari Perez, a supervisor employed by ReaderLink, because
the stockers were not working quickly enough. (Tr. 241.) Ac-
cordingly, Vega spoke with two stockers that morning.7
One of the stockers, a man identified only as Juan, stated that
he would not work faster for $8.25 [an hour]. (Tr. 243.) Vega
testified that he was shocked and taken aback by this response
and that Perez told Vega to send Juan home. (Id.) Vega testi-
fied that he told Juan he couldn’t accommodate him elsewhere,
said he was sorry, and shook Juan’s hand. (Tr. 245.) Juan
allegedly replied, “OK, that’s fine. I’ll go home.”8 (Tr. 243.)
The decision to send Juan home caused an immediate reac-
tion by the pickers. Shortly after seeing Juan leave, the pickers
spoke to Vega. Barrera and others, including Olga Gutierrez,
told Vega that the line wasn’t moving because the stocker
(Juan) was new and couldn’t keep up with the work. (Tr. 19,
72.) Vega replied that Juan was being sent home because of his
attitude and because he couldn’t keep up with the work. (Tr.
18–19, 72.) Barrera, Gutierrez, and others told Vega that this
wasn’t fair. (Tr. 19, 73.) Vega replied that it wasn’t the pick-
ers’ matter to deal with and that they should get back to work.

4 I find Respondent’s claim that it did not discharge Charging Party
Barrera to be without merit for reasons discussed in greater detail here-
in.
5 I decline to discredit Barrera’s testimony based upon the contradic-
tion between her testimony at Tr. 37 and R. Exh. 1. Barrera testified
that she had never been disciplined, but when confronted with a disci-
plinary action form she admitted receiving it. (Id.) However, Barrera
did not believe that this form represented “discipline” because it was
not related to her work. (Id.) Instead, Barrera was written up for
punching in more than 10 minutes before her shift started. (R. Exh. 1.)
I do not find this contradiction material and, therefore, I decline to
discredit Barrera as a witness.
6 All dates are in 2012, unless otherwise indicated.
7 Neither of the two stockers, nor Perez, was called as witnesses at
the trial.
8 This rather illogical testimony, along with other examples cited be-
low, form the basis for my discrediting of Vega as a witness. It defies
credulity that Vega replied to Juan in this manner. Vega’s testimony
that he told Juan he “couldn’t accommodate him,” shook Juan’s hand,
and said he was sorry stands in stark contrast to Vega’s testimony that
he was shocked and taken aback by Juan’s statement that he would not
work faster.
(Id.) Vega further stated that he could send the pickers home
for their attitude. (Tr. 19.) Vega then left the area.
A short time later Vega, appearing angry, returned to the
pickers’ work area and asked Barrera if everything was fine.
(Tr. 20–21, 74.) Vega told Barrera that if she had an issue, he
could send her home. (Tr. 21.) Barrera asked Vega if he was
threatening her and stated that she could send a letter to the
Department of Human Rights. (Tr. 21, 31.) Vega then told
Barrera to take her things and go home. (Tr. 21, 74.) Barrera
refused, stating that she had done nothing wrong. (Id.) Vega
then became angrier, pointed at Barrera, and stated, “Let’s see
if you’re not leaving.” (Tr. 21.) Gutierrez and others came to
Barrera’s defense, stating she had done nothing wrong. (Tr.
75.) Although Vega appeared angry and raised his voice during
this exchange, Barrera did not raise her voice in response. (Tr.
21–22, 74.) Vega again left the area.9
Vega returned to the office and asked Amaya to send Barrera
home. (Tr. 219.) Amaya then went to the pickers’ work area.
(Tr. 23, 75, 219.) Amaya told Barrera to please take her things
and leave because if she did not, Vega would call security and
have her escorted out. (Tr. 23, 75–76, 219.) Other workers
came over and spoke to Amaya supporting Barrera. (Tr. 24, 76,
227–228.) The other workers told Amaya that Vega had been
rude. (Id.) Amaya stated that there had been a lot of com-
plaints about Vega, but that there was nothing she could do.10
(Tr. 25.) Barrera and Amaya left the work area and Barrera
turned in her radio. (Tr. 219.) Amaya then escorted Barrera to
the cafeteria, where she waited for her ride home.11
Barrera was initially told by Amaya to go home for the day.
I credit the testimony of Amaya and Gutierrez, and Barrera’s
affidavit testimony in making this finding. Events that tran-
spired later that day, however, lead me to the conclusion that
Barrera was discharged. Barrera and Amaya agree that Barrera
sent a text message to Amaya on the evening of November 15
and asked if she [Barrera] could come back to work the next

9 I do not credit Vega’s version of his exchange with Barrera. Vega
testified that Barrera angrily referred to him as a secretary and a no-
body, and threatened to call immigration and report him. (Tr. 248.)
His testimony was contradicted by that of Barrera, Gutierrez, and Ama-
ya. Barrera denied that she told Vega that he was nothing more than a
secretary, that he was a nobody, or that she [Barrera] was going to call
immigration and have him deported. (Tr. 44.) Gutierrez did not men-
tion any such comments in her testimony. Amaya testified that she
could not remember whether Vega mentioned any such comments to
her. (Tr. 230–231.) More importantly, Vega’s testimony that Barrera
made these statements to him is contradicted by R. Exhs. 8 and 10,
which were prepared by Vega and Amaya shortly after the events in
question. These contradictions, as well as others detailed elsewhere in
this decision, have led me to the conclusion that Vega’s testimony was
not credible.
10 When questioned about this on cross-examination, Amaya did not
specifically deny making this statement. Instead, she testified that she
remembered the workers making complaints about Vega, but could not
remember if she agreed with them. (Tr. 227–228.) Therefore, I credit
the testimony of Barrera on this point.
11 I credit the testimony of Barrera that she asked Amaya to wait in
the cafeteria. (Tr. 39.) Barrera testified that she gets a ride to work and
had to wait for her ride. (Id.) Barrera had no reason to fabricate this
point. To the extent that this testimony contradicts that of Amaya (Tr.
219), I credit Barrera.
5
STAFFING NETWORK HOLDINGS, LLC
day. (Tr. 26, 219.) Barrera and Amaya further agree that
Amaya advised Barrera that she needed to come to the office
and speak to Vega about what had happened that day. (Id.) I
credit Barrera’s further testimony that Amaya stated that she
[Barrera] should not return to work.12 (Tr. 26.) The text mes-
sages were not produced at the trial.
D. Events Following Barrera’s Discharge
Barrera sought State unemployment benefits after her dis-
charge. (R. Exh. 8; Tr. 57.) In its statement to the Illinois De-
partment of Employment Security (IDES), Respondent indicat-
ed that Barrera had been involuntarily separated from employ-
ment. (R. Exh. 8.) In its narrative explanation, Respondent
stated that Barrera had disrupted production by “getting the
ladies in the line worked up” about “standing up against . . . the
injustice we were committing.”13 (R. Exh. 8.) However, Re-
spondent also indicated that Barrera would be “considered for
future assignments” with any account other than ReaderLink.
(Id.) I find that this statement indicates that Barrera is eligible
for rehire. As a defense to Barrera’s unemployment claim,
Respondent did not allege that she had not been terminated.
(Id.) Additionally, Respondent did not indicate that Barrera
was insubordinate to Vega in its statement to IDES. During
Barrera’s unemployment hearing, Respondent asserted that she
was discharged because of her attitude. (GC Exh. 4; Tr. 60.)
Barrera was ultimately granted State unemployment benefits.
(GC Exh. 4.)
Barrera also filed a claim against Respondent with the Illi-
nois Department of Human Rights (IDHR). (R. Exh. 2.) In her
claim, Barrera alleged discrimination by Respondent based
upon her ancestry and age.14 (Id.; Tr. 51.)

12 I do not credit Vega’s testimony about responding to the text mes-
sage. Initially, I note that Vega and Amaya disagree about the circum-
stances surrounding their conversation; Amaya testified that she called
Vega to discuss Barrera’s message and Vega testified that he spoke to
Amaya face-to-face at work. (Tr. 219–220; 250–251.) Additionally,
they disagree about the content of their discussion. Amaya testified
that Vega told her to tell Barrera that she either had to come to the
office or call Vega to “talk about what happened.” (Tr. 220.) Vega
testified that he told Amaya that, “before we put her back on the sched-
ule she would need to talk to me.” (Tr. 250.) Not only does Vega’s
testimony contradict Amaya’s on this point, it also contradicts his own
testimony that Barrera could not return to ReaderLink and his statement
to the Illinois Department of Employment Security that Barrera had
been DNR’d from ReaderLink. (R. Exh. 8, p. 2; Tr. 251.) Further-
more, I credit Amaya’s testimony about her response to Barrera’s text
message only to the extent that it is corroborated by Barrera.
13 Respondent made an identical narrative statement regarding the
events surrounding Barrera’s discharge in its computer system. (R.
Exh. 15.)
14 At trial, Respondent’s counsel sought to admit the IDHR notice of
dismissal and investigator’s report. (R. Exh. 3.) I rejected this exhibit.
Respondent’s counsel indicated that she intended to impeach Barrera
with the document. (Tr. 53.) The document contains investigative
notes and conclusions of an IDHR investigator. It does not contain any
statements signed and sworn to by Barrera. The investigator was not
subpoenaed as a witness for the trial. Therefore, I reaffirm my ruling
that this document was both inadmissible as hearsay and an improper
document with which to impeach Barrera, as it could not be corroborat-
ed. Respondent did not raise this issue in its brief.
Later, Respondent scheduled a meeting with Barrera. (Tr.
46, 131–132.) Zuniga and Rodriguez were to attend the meet-
ing on behalf of Respondent. (R. Exh. 12; Tr. 132, 133, 188.)
Respondent’s witnesses testified that they were going to offer
Barrera a position at a different facility at this meeting. (Tr.
132, 153.) However, Respondent’s Exhibit 9 describes this
meeting only as an “investigative interview.” Barrera was nev-
er told that she would be offered alternate employment and
never received an offer of other employment from Respondent.
(Tr. 47, 154.) Barrera canceled the meeting because she was ill
and never called to reschedule.15 (Tr. 47.)
In December, Barrera and her son came to ReaderLink. Bar-
rera asked to speak with Soledad Santiago, an official with
ReaderLink’s human resources department. (Tr. 48, 221, 252.)
Instead, Vega and Amaya came to see Barrera. (Tr. 49.) At no
time, did either Vega or Amaya indicate that Barrera could
return to work or could seek an assignment at a different facili-
ty. Barrera and her son left without speaking to Santiago, who
was unavailable.
At some point, Vega allegedly received telephone messages
from Barrera’s son, who was not called as a witness at the trial.
Although Vega never talked to him, Barrera’s son allegedly left
threatening messages laced with profanity for Vega. (R. Exhs.
9, 10.) Transcripts or recordings of these messages were not
produced at the trial. Additionally, there was no evidence ad-
duced that Barrera’s son left these messages while acting with
Barrera’s authority.
Rodriguez and Vega held a meeting with the other pickers at
ReaderLink following Barrera’s discharge. The lawfulness of
any statements made at the meeting is not before me.
In support of Vega’s testimony that Barrera was DNR’d
from ReaderLink, Respondent’s counsel sought to admit a list
of employees who had been DNR’d from ReaderLink as an
exhibit. (R. Exh. 7; Tr. 119.) I denied admission of the exhibit
because it was prepared in anticipation of litigation16 and, to the

15 There is no evidence that Barrera was told to call Respondent for
an assignment with another of Respondent’s clients. Furthermore,
Respondent’s employment application is silent as to what an employee
should do if he or she is DNR’d from a client site. (R. Exh. 5.) The
application does, however, indicate that receiving a DNR is grounds for
termination. (Id.)
16 Reports and documents prepared in the ordinary course of busi-
ness are generally presumed to be reliable and trustworthy for two
reasons: businesses depend on such records to conduct their own af-
fairs; accordingly, the employees who generate them have a strong
motive to be accurate and none to be deceitful; and the routine and
habitual patterns of creation lend reliability to business records.” U.S.
v. Blackburn, 992 F.2d 666, 670 (7th Cir.1993) (citing U.S. v. Rich, 580
F.2d 929, 938 (9th Cir.1978)). The absence of trustworthiness of a
document is clear when a report is prepared in anticipation of litigation
because the document is not for the systematic conduct and operation
of a business, but for the primary purpose of litigating. Certain Un-
derwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir.
2000).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
extent it constitutes a summary, no underlying documents (elec-
tronic or otherwise) were produced by which the General
Counsel could verify the exhibit’s accuracy. (Tr. 119, 122.)
Furthermore, the witness through whom Respondent’s counsel
was seeking to admit the document did not prepare it and a
proper foundation was not laid to establish that the document
was a business record. (Tr. 120; 124–126.) Therefore, I reaf-
firm my ruling denying admission of Respondent’s Exhibit 7.17
Discussion and Analysis
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My
credibility findings are generally incorporated into the findings
of fact set forth above.
I did not find Vega to be a credible witness. Numerous ex-
amples of his contradictory and self-serving testimony are giv-
en elsewhere in this decision. He delivered his testimony in an
often rambling and narrative fashion. (Tr. 243–246, 246–247.)
Moreover, his testimony was contradicted by that of other wit-
nesses and documentary evidence.
Vega’s testimony diverged from that of Amaya regarding
Amaya’s escorting Barrera out of the pickers’ work area.
Amaya simply testified that Barrera gave Amaya her [Barre-
ra’s] radio and then she went home. (Tr. 219.) Vega, however,
testified that he encountered Barrera and Amaya as they were
leaving the pickers’ work area. (Tr. 250.) He went on to state
that he asked Barrera for her radio headset and Barrera refused
to give it to him. (Id.) He then testified that he and Amaya
followed Barrera to the control room, where she left her radio
headset and left. (Id.) Neither Amaya nor Barrera testified that
they encountered Vega after leaving the pickers’ work area.
Additionally, neither Amaya nor Barrera testified to the ex-
change between Vega and Barrera regarding the radio headset.
This contradiction, along with numerous others noted in this
decision, establishes that Vega’s testimony was unreliable.
Vega also testified that Barrera asked Amaya if she could
apologize to him after he sent Amaya to the pickers’ work area.
(Tr. 249.) During this conversation, Vega allegedly told Ama-
ya that Barrera did not have to apologize because she had done
nothing wrong. (Id.) Neither Amaya nor Barrera mentioned
this alleged apology attempt during their testimony. In addi-
tion, Vega’s testimony is inherently incredible because Vega
testified that he sent Barrera home for insubordination. If Bar-

17 Respondent did not address my refusal to admit its exhibit in its
brief.
rera was, in fact, insubordinate, it is implausible to believe that
Vega would say she had done nothing wrong.
Finally, Vega’s testimony was contradicted by the documen-
tary evidence in this case. For example, Vega’s testimony dif-
fers from Respondent’s version of events as set forth in its posi-
tion statement. (GC Exh. 2.) In addition, his testimony differs
from his version of events contained in Respondent’s computer
system and the identical version of events as provided to IDES.
(GC Exh. 10; R. Exhs. 8 and 15.) These contradictions support
my finding that Vega did not provide credible testimony.
Therefore, for the reasons contained in this decision, as well as
my review of all of the evidence in this case, I decline to credit
Vega’s testimony.
I do not credit Amaya’s testimony where it conflicts with
that of other witnesses. Amaya seemed unsure when giving her
testimony. Instead of denying numerous statements attributed
to her, Amaya answered that she did not remember whether or
not she made the statements. (Tr. 227, 228–232.) For example,
Amaya did not remember whether: she agreed with the pickers’
complaints about Vega; she thought it was unfair that Barrera
was sent home; Vega told her that Barrera had threatened to
call immigration; or Vega told her that Barrera had allegedly
referred to him as a secretary.
Furthermore, when asked about the same incident a second
time, Amaya appeared to embellish her testimony. When ini-
tially asked about Barrera’s December visit to ReaderLink,
Amaya testified that Barrera told her that she [Barrera] wanted
to see someone from ReaderLink’s human resources depart-
ment and that she [Amaya] told Barrera that Santiago was not
available. (Tr. 221.) When asked again a few seconds later
about this incident, Amaya added further details about the en-
counter (that she [Amaya] went to the office to page Soledad
Santiago, that Santiago did not respond, and that she [Amaya]
returned to the front of the building to tell Barrera that Santiago
was not available). (Tr. 221–222.) Therefore, where it con-
flicts with the testimony of other witnesses, I have not credited
the testimony of Amaya.
Gaspar, Zuniga, and Rodriguez had little to offer in the way
of relevant evidence. None of them witnessed any of the events
of November 15. (Tr. 104, 127, 180.)
Zuniga provided little relevant evidence and I generally do
not credit her testimony. Zuniga’s testimony that Vega did not
have the authority to fire or DNR employees seemed far-
fetched. (Tr. 118.) Vega was the highest ranking employee of
Respondent present on a daily basis at ReaderLink. Vega him-
self did not offer any testimony concerning his authority to
discharge employees. Respondent did not raise this defense in
any of its pretrial statements or filings and raised it for the first
time at the hearing. In any event, the employees believed that
Vega had the authority to do so and, in reality, he terminated
Barrera. I have not credited Zuniga’s testimony, which was not
corroborated by any documentary evidence or other witnesses,
on this point.
7
STAFFING NETWORK HOLDINGS, LLC
Zuniga’s testimony failed to establish Respondent’s theory
that Barrera was never terminated. Zuniga testified that Re-
spondent scheduled a meeting with Barrera to offer her alter-
nate employment. (Tr. 131.) Although Zuniga testified that the
purpose of the meeting with Barrera was to offer her another
position with a different client, she described the meeting as an
“investigative interview” in an email to Rodriguez. (R. Exh. 9.)
In another email message, Zuniga stated that Barrera requested
the meeting to address her [Barrera’s] concerns. (GC Exh. 11.)
Zuniga’s testimony regarding the purpose of the meeting with
Barrera was refuted by the documentary evidence; neither of
the email messages indicates that Respondent intended to offer
Barrera alternate employ-ment.
I further decline to credit the testimony of Rodriguez. Her
knowledge of the events of November 15 came solely from an
alleged telephone conversation with Vega after Barrera was
discharged. Vega did not testify to having any such conversa-
tion with Rodriguez. In addition, Rodriguez did not seem at all
aware of Amaya’s involvement in Barrera’s discharge. She
attributed many of the statements made by Amaya on Novem-
ber 15 to Vega. For example, Rodriguez testified that Vega
allegedly told Rodriguez that it was he who told Barrera that
security would remove her if she would not leave. (Tr. 181.)
Additionally, on cross-examination, Rodriguez did not always
answer the question that was posed. For example, when asked
by counsel for the General Counsel to explain Respondent’s
procedure for firing employees, Rodriguez responded, “We
don’t fire employees too often.” (Tr. 198.) Despite her posi-
tion as operations manager for Respondent’s onsite division,
which includes ReaderLink, and as a superior to Vega, she
claimed not to know whether Vega had authority to discharge
employees. (Tr. 198.) Therefore, I have not credited the testi-
mony of Rodriguez.
Conversely, I find the testimony of Barrera both believable
and reliable. She testified in a steady and forthright manner.
Her testimony was corroborated to a great extent by that of both
Gutierrez and Amaya. However, I have not credited her testi-
mony that Amaya initially told her that she could not return to
work on November 15 to the extent it is contradicted by her
earlier affidavit testimony. Although Barrera’s testimony con-
tained a few minor contradictions, and she once sparred with
counsel for Respondent on cross-examination, I do not find this
detracts from her overall credibility. Her testimony was logical
and consistent and she did not appear to waver on cross-
examination. Therefore, based upon Barrera’s consistent testi-
mony and demeanor on the witness stand, I credit her testimony
except where otherwise noted.
I further decline to discredit Barrera, as suggested by Re-
spondent, because she filed ancestry and age discrimination
claims with IDHR. The Board has found that the filing of an
EEOC charge is not inconsistent with a claim of discriminatory
discharge under the Act. Gallup, Inc., 349 NLRB 1213, 1249
(2007). In Gallup, Inc., the Board noted that there can be mul-
tiple reasons for a discharge, and because one or more reasons
may be covered by different statutes, multiple charges covering
those suspected reasons are not inconsistent. Id. Accordingly,
I decline to find that Barrera’s IDHR charge creates an incon-
sistency in her testimony requiring that she be discredited.
I credit Gutierrez’ testimony. Gutierrez admitted that she
has a weak memory due to a medical condition. (Tr. 84.)
However, her testimony did not appear embellished or fabricat-
ed. She did not waver in her testimony on cross-examination.
Her testimony is largely corroborated by that of Barrera, who I
have found to be a credible witness. She testified regarding the
events surrounding Barrera’s exchanges with Vega and Amaya
on November 15, and her testimony contained sufficient detail
such that I credit it.
I disagree with counsel for the General Counsel that the tes-
timony of Gutierrez or Gaspar is entitled to be deemed “inher-
ently credible.” (GC Br. 18.) Under Board law, current em-
ployees are likely to be particularly reliable because these wit-
nesses are testifying adversely to their pecuniary interests.
Advocate South Suburban Hospital, 346 NLRB 209 fn. 1
(2006), citing Flexsteel Industries, 316 NLRB 745 (1995), affd.
mem. 83 F.3d 419 (5th Cir. 1996); see also American Wire
Products, 313 NLRB 989, 993 (1994) (Current employee
providing testimony adverse to his employer is at risk of repris-
al and thus likely to be testifying truthfully). Although
Gutierrez and Gaspar are eligible for future assignments, they
are not current employees of Respondent. Instead, I find that
they are former employees of Respondent who are eligible for
rehire. The General Counsel has not cited any cases, and I
could not find any, supporting the proposition that the testimo-
ny of temporary workers not currently employed by a respond-
ent staffing agency, but eligible to seek further assignments,
should be assigned any enhanced credibility.18 It is too specu-
lative to believe that Gutierrez or Gaspar were testifying against
their own pecuniary interests, especially given that neither testi-
fied that they plan to seek assignments from Respondent in the
future.
B. Respondent Twice Unlawfully Threatens
Employees with Termination
The General Counsel’s complaint alleges that two threats of
termination were made by Vega on about November 15. (GC
Exh. 1(e), par. IV.) Although the complaint does not further
elucidate the contents of these threats, the brief of counsel for
the General Counsel indicates that these threats were made: (1)
during a conversation with the pickers immediately after Juan
was sent home, when Vega allegedly said he could send the
pickers home for having the same attitude as Juan, and; (2)
when Vega returned to the production line a short time later,
asked Barrera if she was fine, and said he could send her home.
(GC Br. 7–8.)
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.

18 The cases cited by the General Counsel are distinguishable from
this case because they all deal with the credibility of current employees
of a respondent. As I have found, Gaspar and Gutierrez are not current
employees of Respondent.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) of the Act makes it unlawful for an employer,
via statements or conduct, to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
Yoshi’s Japanese Restaurant & Jazz Home, 330 NLRB 1339,
1339 fn. 3 (2000). The test for evaluating whether an employ-
er’s conduct or statements violate Section 8(a)(1) of the Act is
whether the statements or conduct have a reasonable tendency
to interfere with, restrain, or coerce union or protected activi-
ties. Id.; see also Park N’ Fly, Inc., 349 NLRB 132, 140
(2007).
The evidence clearly establishes that Barrera and the other
pickers protested Vega’s treatment of Juan to Vega on Novem-
ber 15. Unrepresented employees who engage in a peaceful
work stoppage to protest the termination of a fellow employee
are engaged in protected concerted activity. Robbins Engineer-
ing, 311 NLRB 1079, 1083 (1993). Under Board law, even a
single employee’s complaint about the treatment or discipline
of another constitutes concerted activity. The Loft, 277 NLRB
1444, 465 (1986) (one employee’s complaint to employer about
employer’s handling of problem is concerted activity); Rich-
boro Community Mental Health Council, 242 NLRB 1267
(1979) (letter of single employee protesting the discharge of
another employee is concerted activity). Even if I were to find,
as suggested by Respondent, that Barrera acted alone in protest-
ing Juan’s discharge, her actions would still constitute protected
concerted activity. In this instance, Barrera voiced a concern
about Vega’s decision to discharge Juan. I have found that
other employees, including Olga Gutierrez, joined in Barrera’s
protest. Thus, I find that Barrera was engaged in protected,
concerted activity when she complained about Juan’s dis-
charge. I further find that Respondent violated Section 8(a)(1)
of the Act by twice threatening Barrera with discharge for en-
gaging in this activity.
I find that Vega’s statement that he could send the pickers
home for having the same attitude as the discharged stocker
constitutes a violative threat of discharge. I further find that
Vega’s repeated asking Barrera if she was fine, and his accom-
panying statement that he could send Barrera home, constitute a
threat of termination violative of the Act. Both statements are
directly tied to Barrera’s protected concerted activity and were
made during the short period between when the pickers en-
gaged in their protected protest and when Vega decided to send
Barrera home. Thus, I find that Vega’s statements on Novem-
ber 15 would tend to restrain and coerce employees in exercis-
ing their Section 7 rights. As such, I find that Vega’s state-
ments violate Section 8(a)(1) of the Act.
I have credited Barrera’s testimony regarding these two
threats. Although these threats were not heard by Gutierrez, I
still credit Barrera’s testimony. Gutierrez candidly admitted
that she did not hear what Vega said to Barrera during their
conversations, other than his telling Barrera to go home. (Tr.
73, 81.) For reasons set forth more fully elsewhere in this deci-
sion, I do not credit the testimony of Vega. Therefore, based
upon the credited testimony of Griselda Barrera, I have found
that Respondent violated Section 8(a)(1) of the Act by twice
threatening employees with termination for engaging in pro-
tected, concerted activities.
C. Respondent Unlawfully Terminates
Griselda Barrera
Respondent further violated Section 8(a)(1) of the Act by
terminating the employment of Griselda Barrera. I do not find
that Barrera’s actions on November 15, or on any date thereaf-
ter, caused her to lose the protection of the Act.
Section 8(a)(1) of the Act states that it is an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7
[of the Act].” 29 U.S.C. § 158(a)(1). Rights guaranteed by
Section 7 include the right to engage in “concerted activities for
the purpose . . . of mutual aid or protection.” 29 U.S.C. § 157.
An employee’s discharge independently violates Section
8(a)(1) of the Act where it is motivated by employee activity
protected by Section 7. Unrepresented employees who engage
in a peaceful work stoppage to protest the termination of a fel-
low employee are engaged in protected concerted activity and
an employer who discharges employees for engaging in such
activity violates Section 8(a)(1) of the Act. Robbins Engineer-
ing, 311 NLRB 1079, 1083–1084 (1993). The Board will find
that activity is concerted where the evidence supports a finding
that the concerns expressed by the individual employee are a
logical outgrowth of concerns expressed by a group. Amelio’s,
301 NLRB 182 (1991).
In this case, I find that Barrera’s actions were both protected
and concerted. I have found that Barrera and the other pickers
protested Vega’s discharge of Juan. However, as explained
above, the Board has found that the action of a single employee
in protesting the discharge of another has been found to consti-
tute concerted activity. At a minimum, Barrera was seeking to
incite group action. She told Vega that his treatment of Juan
was unfair. Her intent to incite group action is obvious from
Vega’s written statement that Barrera was disrupting produc-
tion by “getting the ladies in the line worked up” about “stand-
ing up against . . . the injustice we were committing.” (R. Exhs.
8 and 15.)
Furthermore, I find that Barrera was discharged by Respond-
ent. The Board has long held that the fact of discharge does not
depend upon the use of formal words of firing. Hale Mfg. Co.,
228 NLRB 10, 13 (1977), enfd. 570 F.2d 705 (6th Cir. 1978).
It is sufficient if the words or actions of the employer would
lead a prudent person to believe that his or her tenure had been
terminated. Ridgeway Trucking Co., 243 NLRB 1048, 1048–
1049 (1979), enfd. in relevant part 622 F.2d 1222, 1224 (5th
Cir. 1980). Barrera was never told she was terminated. The
credited evidence establishes that Barrera was initially told to
go home for the day. However, in a later exchange with Re-
spondent’s agent, Amaya, Barrera was told not to return to
work. A direction not to return to work is a discharge. Action
Carting Environmental Services, 354 NLRB 732 (2009). Bar-
rera was never subsequently told that she could return to work
or seek assignments at some other facility. Therefore, I find
that Barrera was discharged by Respondent on November 15.
Although Respondent claims it discharged Barrera for insub-
ordinate behavior, the Board distinguishes between true insub-
ordination and behavior that is only disrespectful, rude, and
9
STAFFING NETWORK HOLDINGS, LLC
defiant. Goya Foods, Inc., 356 NLRB No. 73, slip op. at 4
(2011), citing Severance Tool Industries, 301 NLRB 1166,
1170 (1991), enfd. mem 953 F.2d 1384 (6th Cir. 1992). In
Goya Foods, an employee who initially refused a supervisor’s
instruction to punch out and go home, but then complied after a
few minutes, was found to have engaged in the latter and, there-
fore, to fall under the Act’s protection. Id.; see also Noble Met-
al Processing, Inc., 346 NLRB 795 (2006). The Board has held
that on-the-job work stoppages of significantly longer duration
remained protected. Crowne Plaza LaGuardia, 357 NLRB No.
95, slip op. at 6 (2011), citing Los Angeles Airport Hilton Hotel
& Towers, 354 NLRB 202, 202 fn. 8, and 11 (2009), adopted
by 355 NLRB 602 (2010) (no loss of protection for 2-hour
work stoppage that did not interfere with the hotel’s opera-
tions). In this case, Barrera and the other pickers engaged in a
momentary exchange with Vega. None of the credited evi-
dence establishes that Barrera raised her voice, used profane
language, or uttered threats. Thus, I find that Barrera’s behav-
ior was not truly insubordinate and that her momentary refusal
to return to work did not remove her from the Act’s protection.
Moreover, I find that her brief work stoppage to incite the re-
mainder of the pickers to action remained protected. Thus,
Respondent’s arguments fail.
Respondent has asserted that Barrera’s behavior on Novem-
ber 15 was unprotected. When an employee is disciplined or
discharged for conduct that is part of the res gestae of protected
concerted activities, the pertinent question is whether the con-
duct is sufficiently egregious to remove it from the protection
of the Act. Aluminum Co. of America, 338 NLRB 20 (2002).
In making this determination, the Board examines the following
factors: (1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst or
alleged misconduct; and (4) whether the conduct was provoked
by an employer’s unfair labor practice. Standard Hotel, 344
NLRB 558, 558 (2005), citing Atlantic Steel Co., 245 NLRB
814, 816 (1979).
The Atlantic Steel factors weigh in favor of my finding that
Barrera did not forfeit the protection of the Act. The discus-
sions at issue took place in the picker’s work area at
ReaderLink, a location in which Respondent’s employees were
assigned to work. The Board has held that an employee’s out-
burst against a supervisor in a place where other employees
could hear it would tend to affect workplace discipline by un-
dermining the authority of the supervisor. Kiewit Power Con-
structors Co., 355 NLRB 708 (2010). The Board has held that
when a supervisor makes statements to an employee on the
shop floor he should expect that other employees will react and
an employee’s outburst in response to such a public display
retains the protection of the Act. Id. Like the supervisor in
Kiewit Power Constructors, Vega chose to send Juan home
while on the shop floor and, thus, should have expected the
reaction of Barrera and the other employees. Therefore, I find
that the first Atlantic Steel factor weighs in favor of protection.
The second Atlantic Steel factor also weighs in favor of pro-
tection. The subject matter of the discussion was Respondent’s
decision to discharge another employee. As the Board found in
Robbins Engineering, supra, unrepresented employees who
engage in a peaceful work stoppage to protest the termination
of a fellow employee are engaged in protected concerted activi-
ty. The pickers felt that Vega’s action in discharging Juan was
unfair because of the heavy workload. Thus, Barrera’s actions
relate directly to the employees’ working conditions. Accord-
ingly, I find that the second Atlantic Steel factor weighs in fa-
vor of protection.
The third Atlantic Steel factor, the nature of Barrera’s out-
burst, also weighs in favor of protection. In assessing whether
an employee’s protected, concerted activity loses the protection
of the Act, the Board has found that a line “is drawn between
cases where employees engaged in concerted activities that
exceed the bounds of lawful conduct in a moment of animal
exuberance or in a manner not motivated by improper motives
and those flagrant cases in which the misconduct is so violent
or of such a character as to render the employee unfit for fur-
ther service.” Prescott Industrial Products Co., 205 NLRB 51,
51–52 (1973). In this instance Barrera’s behavior was not exu-
berant or hostile. The credited testimony of Barrera and
Gutierrez establishes that Barrera did not raise her voice or
threaten Vega; nothing about her outburst renders her unfit for
further service. Therefore, I find that the third Atlantic Steel
factor weighs in favor of protection.
The fourth Atlantic Steel factor does not weigh in favor of
protection. Barrera’s outburst was motivated by what Barrera
and the other pickers viewed as Respondent’s unfair treatment
of another employee. However, the lawfulness of Vega’s
treatment of Juan is not before me, and I cannot find that it
constitutes an unfair labor practice. The Board has found that
an outburst provoked by statements or conduct not deemed
unlawful weigh slightly against retaining the Act’s protection.
Tampa Tribune, 351 NLRB 1324, 1325 (2007), citing Verizon
Wireless, 349 NLRB 640 (2007). Thus, the fourth Atlantic
Steel factor does not weigh in favor of protection. Neverthe-
less, this leaves me with three of the four Atlantic Steel factors
weighing heavily in favor of protection. Therefore, I find that
Barrera’s behavior on November 15 did not forfeit the protec-
tion of the Act.
Furthermore, even assuming arguendo that Barrera referred
to Vega as a secretary or nobody, threatened to report him to
immigration officials, and stated that he always takes the su-
pervisor’s side, as alleged by Respondent, she would still retain
the Act’s protection. (See R. Br. at 14.) The Board has held
protected an employee’s use of profane language and refusal to
return to work. Postal Service, 251 NLRB 252 (1980), enfd.
652 F.2d 409 (5th Cir. 1981); see also Lana Blackwell Truck-
ing, LLC, 342 NLRB 1059, 1062 (2004) (remarks did not lose
protection even though a manager subjectively believed that the
employee was rude, disrespectful, and embarrassed her in front
of other employees). Thus, even had I found that Barrera had
uttered the remarks attributed to her by Respondent, I would
still find that her behavior retained the protection of the Act.
In its brief, Respondent analyzes the discharge allegation us-
ing the burden shifting approach set forth 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. Trans-
portation Management Corp., 462 U.S. 393, 395 (1983). A
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wright Line analysis seems unnecessary, as the reason set forth
in Barrera’s discharge in its computer system and statement to
IDES show that she was terminated for engaging in protected
concerted activity. (R. Exhs. 8 and 15.) However, even using
the burden-shifting framework of Wright Line, I find that Re-
spondent’s discharge of Barrera violates the Act.
In Wright Line, the Board determined that the General Coun-
sel carries the initial burden of persuading by a preponderance
of the evidence that an employee’s protected conduct was a
motivating factor (in whole or in part) for the employer’s ad-
verse employment action. The elements required for the Gen-
eral Counsel to meet his initial burden are protected concerted
activity by the employee, employer knowledge of that activity,
and animus on the part of the employer. Consolidated Bus
Transit, Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467
(2d Cir. 2009). If the General Counsel meets that burden, then
the burden shifts to Respondent to prove that it would have
taken the same action absent the employee’s protected conduct.
Wright Line, 251 NLRB at 1089; NLRB v. Transportation
Management Corp., 462 U.S. at 399–403. Once the General
Counsel has met his initial burden under Wright Line, an em-
ployer does not satisfy its burden merely by stating a legitimate
reason for the action taken, but instead must persuade by a
preponderance of the credible evidence that it would have taken
the same action in the absence of the protected conduct. T & J
Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc.,
321 NLRB 278, 280 fn. 12 (1996).
Counsel for the General Counsel has met her initial burden
under the Wright Line test. I have found the activities of Barre-
ra were both protected and concerted. The Board, with court
approval, has construed the term “concerted activities” to in-
clude those circumstances where individual employees seek to
initiate or induce group action, as well as individual employees
bringing truly group concerns to the attention of management.
Meyers Industries, 281 NLRB 882 (1986), enfd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988); see also NLRB v. City Disposal Systems, 465 U.S.
822, 831 (1984) (affirming the Board’s power to protect certain
individual activities and citing, as an example, a lone employee
who intends to induce group activity). As set forth more fully
above, I have found that Barrera was engaged in protected con-
certed activity and that Vega had direct knowledge of this ac-
tivity. Barrera was voicing group concerns, or, at a minimum,
seeking to induce group action. Thus, the General Counsel has
established that Barrera engaged in protected, concerted activi-
ty and that Respondent had knowledge of that activity.19
The Board relies on both circumstantial and direct evidence
in determining whether the conduct in question was unlawfully
motivated. Fluor Daniel, Inc., 311 NLRB 498 (1993). Im-
proper motivation may be inferred from several factors, includ-

19 Even Vega’s version of events supports a finding that Barrera’s
actions were both protected and concerted. Vega testified that he and
Perez observed Barrera talking to other pickers after Vega walked Juan
off the work floor. (Tr. 244.) Vega then approached Barrera and the
others and asked if there was a problem, to which Barrera replied,
“Why did you send that stocker home.” (Tr. 247.) Vega’s reply, “that
has nothing to do with you girls” was made to the group and indicates
that Barrera was raising a group concern.
ing pretextual and shifting reasons given for an employee’s
discharge and the timing between an employee’s protected
activity and the discharge. Temp Masters, Inc., 344 NLRB
1188, 1193 (2005).
Several factors establish that Barrera’s discharge was moti-
vated by her protected activity. In its own summary of the
events surrounding Barrera’s termination, Respondent stated
that it discharged Barrera because she got the “ladies in the line
worked up” about what she asserted were legal violations and
injustice. (R. Exhs. 8 and 15.) Clearly these references are
little more than code for Barrera’s protected, concerted activity.
This evidence links Respondent’s decisions to send Barrera
home and ultimately discharge her to Barrera’s protected, con-
certed activity and establishes that this activity motivated her
discharge.
The timing of Barrera’s discharge also supports a finding of
improper motivation. Barrera was terminated shortly after her
protest of Vega’s discharge of Juan. In fact, Barrera was sent
home almost immediately after this incident, and then told not
to return to work later that same day. Thus, the timing of Bar-
rera’s discharge shows that it was motivated by her protected
activity.
Furthermore, Respondent’s multiple and shifting justifica-
tions for its termination of Barrera provide evidence of its un-
lawful motive. When an employer is unable to maintain a con-
sistent explanation for its conduct, but rather resorts to shifting
defenses, “it raises the inference that the employer is ‘grasping
for reasons to justify’ its unlawful conduct.” Meaden Screw
Products Co., 336 NLRB 298, 302 (2001), citing Royal Devel-
opment Co. v. NLRB, 703 F.2d 363, 372 (9th Cir. 1983). See
also Master Security Services, 270 NLRB 543, 552 (1984) (an-
imus demonstrated where an employer used a multiplicity of
reasons to justify disciplinary action). Respondent advanced a
multitude of reasons for its discharge of Barrera in its state-
ments to IDES and the General Counsel during the investiga-
tion of the charges underlying this case, and in its answers to
the complaint and brief. Respondent has asserted: Barrera was
not terminated; if Barrera was terminated, she was terminated
by ReaderLink; Barrera could not have been terminated be-
cause Vega lacked the authority to terminate her; if Respondent
did terminate Barrera, it was justified in doing so because she
was either insubordinate or failed to return to work after being
sent home; and if Barrera was terminated, Respondent did not
violate the Act because either Barrera was not involved in pro-
tected, concerted activity, or if she was involved in protected,
concerted activity it was not the motivation for her discharge.
The defense regarding Vega’s authority to terminate employees
was raised for the first time at the trial of this case. I find that
Respondent’s multiple defenses provide evidence of its unlaw-
ful motive in terminating Barrera. Therefore, I find that the
General Counsel has met his initial burden of persuasion under
Wright Line.
Respondent has not shown that it would have discharged
Barrera in the absence of her protected conduct. On brief, Re-
spondent asserts it was justified in terminating Barrera based on
her: (1) insubordinate and abusive behavior on November 15;
(2) refusal to meet with Vega on November 16; and (3) son’s
harassing and threatening phone calls to Vega. (R. Br. 49–50.)
11
STAFFING NETWORK HOLDINGS, LLC
I have already found that Barrera’s behavior on November
15 was not so insubordinate or abusive as to cost her the protec-
tion of the Act. I can find no authority to support Respondent’s
assertion that Barrera should have been discharged for the al-
leged phone messages of her son subsequent to November 15.
The messages were not preserved, or transcribed, or offered as
evidence at the trial. The testimonial evidence produced by
Respondent regarding these calls was not sufficient to carry
Respondent’s burden under Wright Line.
Additionally, Respondent’s attempt to qualify Barrera’s dis-
charge by asserting that Barrera could come and talk to Vega
about it, does not alter the nature of Respondent’s action. A
direction not to return to work is a discharge. Action Carting
Environmental Services, 354 NLRB 732 (2009). Attempting to
place the burden on Barrera to come and speak to the person
who discharged her does not negate the discharge. Thus, I find
that Respondent has failed to carry its burden.
Furthermore, I do not find that any of the events following
Barrera’s discharge have disqualified her from reinstatement.
Respondent cites no case law, and I can find none, standing for
the proposition that Barrera may have either lost the protection
of the Act or become ineligible for reinstatement based upon
the actions of a third party. As such, I decline to find that any
telephone messages left by Barrera’s son on Vega’s voicemail
disqualify her from reinstatement.
D. Respondent’s Affirmative Defenses
Respondent asserted eight affirmative defenses in its amend-
ed answer to the complaint. (GC Exh. 1(k).) I have rejected
Respondent’s defense that the complaint failed to state a cause
of action by my findings herein. I have also rejected Respond-
ent’s argument that it would have taken the same action against
Barrera absent her protected, concerted activity. Furthermore,
to the extent Respondent argues equitable defenses of unclean
hands and estoppel, the Board has refused to recognize these
defenses in its proceedings. Goodyear Tire & Rubber Co., 271
NLRB 343, 346 (1984).
Other than Vega’s uncorroborated statements, Respondent
provided no evidence that the decision to DNR Barrera was
caused by ReaderLink. Respondent did not call Perez as a
witness. Furthermore, I have found that the direction to Barrera
not to return to work was given by Vega. As I have not credit-
ed Vega’s testimony, I decline to find that ReaderLink caused
Barrera’s discharge.
Respondent further asserts that the complaint should be dis-
missed to the extent that it is based on decisions issued by an
improperly constituted Board. See NLRB v. Noel Canning, 134
S.Ct. 2550 (2014). Respondent does not identify to which
Board decisions it is referring. None of the cases cited in this
decision were issued by the Noel Canning Board. Thus, this
affirmative defense is rejected.
Respondent raises Barrera’s alleged failure to mitigate dam-
ages as an affirmative defense. This defense is rejected to the
extent that it does not provide a valid defense to Barrera’s dis-
charge and to the extent it may provide a defense to the amount
of backpay owed, it may be raised at the compliance stage of
the proceeding. See Great Lakes Oriental Products, 283
NLRB 99 (1987). In a related vein, Respondent asserts an af-
firmative defense that no backpay or reinstatement are owed,
based on the Supreme Court’s decision in Hoffman Plastic
Compounds v. NLRB, 535 U.S. 137, 1512 (2001). Evidence of
the discriminatee’s immigration status may properly be consid-
ered at the compliance stage of the proceedings. See Concrete
Form Walls, Inc., 346 NLRB 831, 836 (2006). Thus, I leave
this affirmative defense for later proceedings.
Respondent presented no evidence supporting its other af-
firmative defenses at the hearing and the affirmative defenses
were not raised in Respondent’s brief. As Respondent seems to
have abandoned these remaining affirmative defenses, I will not
address them further.
None of Respondent’s affirmative defenses has merit under
the facts as I have found them. Therefore, I find that Respond-
ent violated the Act by twice threatening its employees with
discipline for engaging in protected concerted activity and by
discharging Griselda Barrera.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act when it
terminated the employment of Griselda Barrera on about No-
vember 15, 2012.
3. Respondent violated Section 8(a)(1) of the Act when it
twice threatened employees with termination for engaging in
protected, concerted activity.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily discharged em-
ployee Griselda Barrera, must offer her reinstatement and make
her whole for any loss of earnings and other benefits. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB No. 8 (2010).
For all backpay required here, Respondent shall file a report
with the Social Security Administration allocating backpay to
the appropriate calendar quarters. Respondent shall also com-
pensate the discriminatee for the adverse tax consequences, if
any, of receiving one or more lump-sum backpay awards cover-
ing periods longer than 1 year, Latino Express, Inc., 359 NLRB
No. 44 (2012).
Further, Respondent shall be required to remove from the
personnel file of Griselda Barrera any reference to her unlawful
termination, and advise her in writing that this has been done.
In addition, Respondent shall be required to cease and desist
from engaging in unlawful discriminatory conduct and to post
an appropriate notice, attached hereto as an “Appendix.” Alt-
hough it appears that Respondent employs a large number of
Spanish speaking employees (all of the General Counsel’s wit-
nesses testified with the assistance of a Spanish-language inter-
preter), no party requested that the notice be posted in both
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
English and Spanish. Therefore, I will not order that the notice
be posted in Spanish. See First Student, Inc., 359 NLRB No.
12, slip op. at 3 fn. 2 (2012) (Board deletes the portion of the
judge’s order requiring notice posting in Spanish because no
party requested a Spanish-language notice).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Staffing Network Holdings, LLC, Itasca, Il-
linois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in protected, concerted activity.
(b) Threatening employees with discharge for engaging in
protected, concerted activity.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Griselda Barrera full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Griselda Barrera whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section of the
decision.
(c) File a report with the Social Security Administration allo-
cating backpay to the appropriate calendar quarters.
(d) Compensate Griselda Barrera for the adverse tax conse-
quences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify the employee in writing that this
has been done and that the discharge will not be used against
her in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cilities in Itasca, Illinois, and its ReaderLink facility in Romeo-
ville, Illinois, copies of the attached notice marked “Appen-

20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
dix.”21 Copies of the notice, on forms provided by the Regional
Director for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 15,
2012.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. July 17, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten employees with discharge for engag-
ing in protected, concerted activity.
WE WILL NOT terminate any employee for engaging in con-
certed activities protected under Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Griselda Barrera full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Griselda Barrera whole for any loss of earn-
ings and other benefits resulting from her discharge, less any
net interim earnings, plus interest compounded daily.

21 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.”
13
STAFFING NETWORK HOLDINGS, LLC
WE WILL file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters.
WE WILL compensate Griselda Barrera for the adverse tax
consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of
Griselda Barrera, and WE WILL, within 3 days thereafter, notify
her in writing that this has been done and that the discharge will
not be used against her in any way.
STAFFING NETWORK HOLDINGS, LLC