Terraprise Holdings, Inc. d/b/a Global Recruiters of Winfield

National Labor Relations Board - Administrative Judge Opinions

Feb 26, 2014

13-CA-108187 (N.L.R.B. Feb. 26, 2014)

JD–10-14
Wheaton, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TERRAPRISE HOLDINGS, INC.
d/b/a GLOBAL RECRUITERS OF WINFIELD
and Case 13–CA–108187
MATTHEW SCHMIDT, an Individual
Edward Castillo, Esq.,
for the General Counsel.
David J. Fish, Esq.,
for the Respondent.
Kevin O’Connor, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case was tried in Chicago,
Illinois, on December 10–11, 2013. Charging Party Matthew Schmidt filed the unfair labor
practice charge in this case on June 27, 2013, and filed an amended charge on September 26,
2013.1 Thereafter, on September 27, 2013, the General Counsel issued a complaint in which it
alleged that Terraprise Holdings, Inc. d/b/a Global Recruiters of Winfield (Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act) by taking the following actions
between December 2012 and April 2013: (a) instructing Schmidt’s coworkers not to share work-
related information and/or communicate with Schmidt; (b) changing and/or limiting/restricting
Schmidt’s work assignments and opportunities; and (c) discharging Schmidt on or about April
17, 2013. On October 8 and November 21, 2013, Respondent filed a timely answer
(subsequently amended on November 21, 2013) in which it denied violating the Act as alleged in
the complaint.

1 All dates are in 2012 and 2013, unless otherwise indicated.
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2
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I recommend that the
complaint be dismissed. My rationale for that recommendation is set forth below.
5
FINDINGS OF FACT
I. Jurisdiction
Respondent, a corporation, engages in professional recruiting at its facility in Wheaton, 10
Illinois, where it annually provides services valued in excess of $50,000 directly to points located
outside of 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 Practices15
A. Company Overview
In 2007, Michael Agnew founded Respondent (a franchise of GRN Corporate), and
began serving as Respondent’s owner and president. Respondent recruits job candidates for 20
various companies (clients), including companies in the nuclear, manufacturing, oil, and gas
industries. To carry out its mission, Respondent employs (among other staff members) project
coordinators and recruiters to find candidates for job orders (requests from clients for assistance
in finding candidates for positions that typically are difficult to fill), and employs search
consultants to communicate with clients. If a client ends up hiring a candidate referred by 25
Respondent, then the client pays Respondent a commission for that hire (normally, a percentage
of the candidate’s first year’s salary and benefits). Respondent, in turn, pays its employees a
commission based on the placements that they make (project coordinators receive a 5%
commission, while recruiters receive a 10% commission; recruiters also earn a base salary of
$25,000). (Tr. 35–37, 62–63, 279, 336, 338–339, 341–344; see also Tr. 556 (noting that 30
Respondent generally has had 7 full-time and 7 part-time employees, and that half of the full-
time employees are members of Agnew’s family).)
Although Respondent has clients in a variety of industries, over 50% of Respondent’s
revenue comes from its “nuclear desk,” a group of four nuclear utilities that are Respondent’s 35
clients: Constellation Energy; Energy Northwest (a/k/a Columbia Generating Station); Institute
of Nuclear Power Organization (INPO); and Tennessee Valley Authority (TVA). According to
Agnew, Respondent’s success with placing candidates with nuclear utilities stems from the fact

2 The transcripts in this case are generally accurate, but I hereby make the following correction to the
record: p. 410, L. 10: “test data” should read “testator.” The exhibits are also generally correct, but I have
made the following corrections: R. Exhs. 21 and 65: the cover sheets erroneously state that the exhibits
were received into evidence and subsequently withdrawn – instead, I rejected both exhibits when initially
offered; R. Exhs. 28 and 32: I removed copies of these exhibits from the exhibit file (and placed them in a
labeled envelope) because neither exhibit was offered into evidence.
I also emphasize that although I have included several citations to the record to highlight particular
testimony or exhibits, my findings and conclusions are not based solely on those specific record citations,
but rather are based on my review and consideration of the entire record for this case.
JD–10-14
3
that Agnew has one of the best nuclear utility contact lists in the country, which enables
Respondent to contact potential candidates from 59 nuclear power plants. Agnew described the
nuclear utility contact list (essentially, a database of potential candidates) as a “goldmine,”
because the contact list is a readily available inventory of job candidates that Respondent can tap
into whenever it receives a job order from a client. In light of its value to Respondent, Agnew 5
was very protective of the nuclear desk, and thus limited access to the nuclear desk to only a
small and trusted group of employees. (Tr. 35, 341–342, 349–350.)
By all accounts, Respondent expected its employees to work hard. In particular,
Respondent expected employees to devote a significant portion of their day to making telephone 10
calls to candidates (and clients, if appropriate), with the aim of making as many candidate
referrals and job placements as possible. Specifically, Respondent expected employees on a
daily basis to make a minimum of 60 calls, and plan an additional 80 calls for the following day.
To reinforce the importance of “call time,” Respondent would keep track of employee telephone
calls and post data on each employee’s call time on a projection screen in the employee work 15
area. (Tr. 342, 344–345, 348–349, 351; R. Exh. 2.)
Respondent also stressed the importance of arriving on time and being present in the
office to keep potential job placements moving forward. To drive home the point, Respondent
often (especially with new employees) would lock the door at 8 a.m., and thus require any tardy 20
employees to knock on the door to gain access to the office. (Tr. 345–346, 351–352.) On the
other hand, Respondent did encourage its employees to plan ahead for time off, and would
generally accommodate requests for time off if given sufficient advance notice (typically, two
weeks or more) or if an employee needed time off to deal with an unexpected issue or
emergency.3 (Tr. 352–354.) 25
B. April 2011 – Matthew Schmidt Begins Working for Respondent
On or about April 28, 2011, Schmidt began working for Respondent as a project
coordinator assigned to the nuclear desk. In that capacity, Schmidt was responsible for 30
identifying candidates for job orders, building call plans, coaching candidates for job interviews,
and otherwise assisting Agnew (who served as the search consultant for the nuclear desk).
Schmidt and Agnew were the only people working on the nuclear desk, with the exception of
former employee J.J., a project coordinator who left the company approximately two months
after Schmidt started. (Tr. 30–35, 355.)35
On May 3, 2011, Schmidt signed Respondent’s vision statement that “describes who we
are, what we are about and where we are going.” The vision statement explained that
Respondent expected employees to stay on the phone for several hours per day (e.g., to pitch job
openings to potential candidates), and also stressed the importance of (among other things) 40

3 Respondent’s employee handbook did warn that repeated absences or tardiness could be grounds for
dismissal. (GC Exh. 12, p. 9; see also Tr. 352–353.) Respondent did not distribute its employee
handbook to employees, but did keep a copy of the handbook in the employee work area and discuss
vacation and sick leave policies with employees when warranted. (Tr. 96, 149–150, 353–354; see also R.
Exh. 51 (August 2011 emails between Schmidt and office administrator S.C. about procedures for
requesting time off).)
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maintaining a positive attitude and being at one’s desk and ready for the day by 8 a.m.4 (R. Exh.
2; Tr. 144–145, 146–147, 342–349.)
C. April 2012 – Respondent Promotes Schmidt to Recruiter Position
5
After an initial period to learn the job, Schmidt performed well as a project coordinator.
Accordingly, in April 2012, Respondent promoted Schmidt to a recruiter position on the nuclear
desk. As a recruiter, Schmidt continued to identify candidates for job orders, build call plans,
coach candidates for job interviews, and assist Agnew, but had the additional responsibility of
interacting directly with nuclear desk clients to develop the working relationship, obtain new job 10
orders, and pitch the clients on potential candidates to hire. (Tr. 31, 349, 355–357; see also R.
Exh. 50 (indicating that Respondent awarded Schmidt two free days off in March 2012).)
Schmidt continued to perform well on the nuclear desk in his first few months as a
recruiter. Specifically, Schmidt made 11 placements in his first five months as a recruiter, and 15
for a period of time ran the nuclear desk largely on his own because Agnew had to be away from
the office for 4–6 weeks in May, June and July 2012 due to a family member’s declining health
(and, ultimately, death). (Tr. 357–358, 436–438, 477–479; see also R. Exhs. 34, 63 (showing
that the number of calls that Schmidt made to clients increased significantly in May, June and
July 2012).) 20
In the same timeframe, Agnew met with Schmidt and employee J.L. (a search consultant
on the manufacturing desk who was also Schmidt’s friend and roommate) and encouraged them
to take whatever time off they needed because they were high performing employees. Agnew
explained that if they exceeded their normal allotment of ten days of vacation time, he would 25
deduct any additional leave from their paychecks and return the amount to them at the end of the
year in the form of a bonus. Agnew added that if Schmidt or J.L. ever arrived late, they could
stay late, as long as they put in a total of 8 hours of work. (Tr. 38, 96–97, 138, 195–196; see also
R. Exh. 50 (showing that Schmidt took 51 hours of vacation time from April through September
2012).)30
In mid-September 2012, Agnew gave Schmidt a $4,000 bonus to assist Schmidt with
buying a car to drive to work every day. Up until that point, Schmidt had relied on J.L. for rides
to and from work. (Tr. 39–40, 138, 536–537, 539.)
35
D. September 2012 -- Employee J.L. Leaves the Company
1. Employee J.L.’s last day at the office
On September 24, 2012, J.L.’s employment with Respondent ended after a heated 40
meeting with Agnew. (Agnew maintains that he merely sent J.L. home for the day, while J.L.

4 Schmidt pointed out that the vision statement that he signed referred to search consultants and their
responsibilities, and that the statement contained information about job duties and scheduling that did not
apply to Schmidt since he was a project coordinator at the time. (Tr. 193–194.) While it is true that the
vision statement includes some information about the particular duties of search consultants, I find that
the vision statement also sets forth general guidelines for all employees regarding phone calls, attitude,
and timeliness. Schmidt acknowledged those general guidelines when he signed the vision statement.
JD–10-14
5
maintains that he was terminated. Regardless, September 24 ended up being the last day that J.L.
worked for Respondent.) After the meeting with J.L., Agnew called Schmidt and David Dulay
(another employee) into the conference room and stated that he (Agnew) sent J.L. home and had
to let him go. Schmidt and Dulay did not respond to Agnew’s statement because Agnew told
them that he was merely letting them know what happened, and did not want to have a 5
discussion.5 (Tr. 38–39, 241–242, 359, 532–533, 540–541.)
2. Agnew’s suspicions about employee J.L.
A few days after employee J.L.’s departure, Agnew learned that on September 20, J.L. 10
had printed out and taken home information from Respondent’s database about Respondent’s
manufacturing clients and candidates.6 Agnew also learned that J.L. continued to advertise
himself as a recruiter after he left his position with Respondent. Based on that information,
Agnew formed the impression that J.L. was going to use Respondent’s client and candidate
information to operate his own recruiting company. (Tr. 360–364, 494–496; R. Exh. 62.)15
3. Effect of J.L.’s departure on Schmidt and other employees
J.L.’s departure from Respondent adversely affected the overall morale in the office.
Schmidt was particularly uncomfortable with the situation in the office, because J.L. was his 20
good friend and roommate, and J.L. was in a dispute with Agnew about (among other things) the
company records that he (J.L.) printed out and took home.7 (Tr. 138–139.) As Agnew observed,
after J.L.’s last day in the office, Schmidt displayed a reduced energy level, a less positive
attitude, reduced attendance, a lower level of engagement and teamwork, and a heightened sense
of suspicion and negativity. (Tr. 366–368, 486–487.) 25
More tangibly, J.L.’s departure left a leadership void on Respondent’s manufacturing
desk. To address that issue, Agnew started spending more time on the manufacturing desk,
leaving Schmidt to again take on a larger role with the nuclear desk. (Tr. 94–95, 428–429, 436,
500.) Notwithstanding that opportunity, Schmidt’s production on the nuclear desk did not match 30
the level that he reached earlier in 2012. Specifically, as the data in the table below indicate,
Schmidt reached a high level of productivity when Agnew was out of the office for much of the
summer of 2012, but did not return to that same level in the fall of 2012 when Agnew had to
shift his focus to the manufacturing desk:
35
Month Schmidt’s Calls to
Nuclear Desk Clients
Schmidt’s Submittals8 Schmidt’s Placements

5 In early October 2012, Agnew met with Schmidt in the conference room and asked Schmidt if he
understood why he (Agnew) gave Schmidt the $4,000 bonus. Agnew then explained that he tried to hold
off for as long as he could with employee J.L., but could not wait any longer to let him go. (Tr. 41.)
6 It was not uncommon for Respondent’s employees to work outside of the office.
7 After initially agreeing that he was uncomfortable in the office in light of the developments with
employee J.L., Schmidt testified that the ongoing dispute between Agnew and J.L. did not make him
uncomfortable. (Tr. 140.) I do not credit that denial since it defies logic, and conflicts with testimony
that Schmidt provided only moments earlier. (See Tr. 138–139.)
8 A submittal occurs when Respondent submits a candidate to a client for an open job order. (Tr.
431.)
JD–10-14
6
April 2012 3 5 1
May 2012 43 16 1
June 2012 87 5 2
July 2012 69 14 1
August 2012 36 8 1
September 2012 12 1 2
October 2012 16 4 0
November 2012 28 7 0
December 2012 18 3 1
(GC Exh. 14 (placements); R. Exhs. 59 (submittals), 34, 63 (calls to nuclear desk clients); see
also Tr. 150, 203–204, 357–359, 478–479.)9
E. J.L’s Unemployment Benefits Case Begins5
1. The initial agency decision in J.L.’s unemployment benefits case
On October 11, 2012, the Illinois Department of Employment Security (IDES) made its
initial determination in J.L.’s claim for unemployment benefits based on J.L.’s loss of his job 10
with Respondent. IDES denied J.L.’s claim for benefits, finding that:
The evidence shows that [J.L.] left work at [Respondent’s office] because he was not
satisfied with the outcome of a meeting he had with [Respondent]. Since [Respondent]
was aware of these conditions and had the ability to control such conditions or acts, 15
[J.L.’s] reason for leaving is attributable to [Respondent]. However, because [J.L.] did
not exhaust reasonable alternatives in an effort to correct the situation prior to leaving,
therefore he is not eligible for UI benefits.
(GC Exh. 5.)20
2. Schmidt decides to participate in J.L.’s unemployment benefits case
Later in October 2012, J.L. asked Schmidt if he would testify as a witness in J.L.’s
unemployment benefits case against Respondent. In particular, J.L. asked Schmidt to support 25
J.L.’s claim that Respondent terminated him (and therefore rebut Respondent’s claim that J.L.
quit voluntarily). Initially, Schmidt was reluctant to get involved in J.L.’s unemployment
benefits case because Schmidt still worked for Respondent, and J.L. was a personal friend.
However, after several conversations with employee S.C., who had also been asked to serve as a
witness for J.L. in the unemployment benefits case, Schmidt decided to give an affidavit in the 30
case to deter Respondent from improperly trying to deny benefits to employees in the future.
(Tr. 41–44.) There is no evidence that Respondent was aware in this timeframe of the

9 In the fall of 2012 (September – December 2012), Agnew made 2 nuclear desk placements and 1
additional placement from a different desk in the office. (GC Exh. 13; R. Exh. 64; Tr. 314.) Agnew also
served as the search consultant for 5 other placements that were arranged by one of Respondent’s
recruiters or project coordinators. (R. Exh. 64; see also Tr. 426–428.)
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7
communications that Schmidt, J.L. and employee S.C. were having about J.L.’s unemployment
benefits case.
3. Telephone hearing scheduled for the unemployment benefits case
5
On November 1, J.L. appealed the adverse initial decision on his claim for unemployment
benefits. IDES initially scheduled the case for a telephone hearing on December 20, but later
rescheduled the hearing for January 29, 2013. (GC Exh. 6.)
F. Agnew Seeks Guidance on How to Best Work with Schmidt1010
On October 17, Agnew emailed two members of GRN Winfield’s corporate staff to
express concerns that he was having about working with Schmidt, and to seek guidance on how
to improve their working relationship or otherwise address the problem. Agnew stated as
follows in his email:15
Yesterday, as my wife . . . was dropping off my daughter . . . to clean the office, Matt
interacted with her with the following statement, “I can’t wait until 5:00.” While it raised
a caution flag in the midst of a busy evening, I awoke an hour ago with the red flag of
concern. To this moment, I am not sure if I am being paranoid, but I am highly 20
suspicious. I am gathering others assessment of the situation and recommendations as
there is wise counsel with many counselors.
Total Replacement Strategy is floating through my head. Tomorrow I meet with [J.L.]
and his lawyer. I am concerned that Matt, [J.L.’s] former roommate and his friend, 25
could bide his time to join [J.L.] when [J.L.] gets started – which I assume he will do.
I do not want to drive him to that action by broadcasting my suspicion. I do not want to
be gullible to the fact that that could happen[.] I want him to succeed at GRN Winfield
for years to come as he has demonstrated the ability to work well with me and to produce
(13 placements to date this year).30
You know the rule: the first time you think of firing someone, it is time to do it. Not sure
if this is that time, but I am going to give some behavioral observations and will look
forward to your assessment. (Man, I wish I was sleeping instead of worrying about this!)
35
Matt’s calling behavior is unproductive and he is clearly in a slump. Our suspicion
of one another is high. Yesterday, in the morning meeting, he was “working me” to get
a trip to the Super Bowl if we hit 1.6 mm and 350k in this quarter. (By the way, I said I
would consider it is contingent on the real cost.)

10 In this section, I discuss two emails that Agnew wrote in the fall of 2012 to seek assistance from
Respondent’s corporate staff about how to work with Schmidt. I admitted these emails into evidence over
the General Counsel’s and Schmidt’s hearsay objections because the emails are admissible for the
nonhearsay purpose of establishing Agnew’s state of mind when he wrote the emails, and for the
nonhearsay purpose of establishing Agnew’s motivation for various actions that he subsequently took
regarding Schmidt. See Continental Can Co., 291 NLRB 290, 294 (1988). In relying on these emails as
evidence of Agnew’s state of mind and motivation, I also find that the emails are credible and reliable
(i.e., not fabricated or prepared with an eye towards setting up a defense for future litigation).
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8
Another interaction yesterday was a typical “Pink Sheet” conversation about how the
office was going. I am working more on the forging desk and he is not filling the
jobs on the nuclear desk. I have some candidates in interviews on the nuke and 2 of 3
offers pending. I am working in a limited fashion as I work the manufacturing desk (for 5
good or ill) and increase my SMP activity. He has nothing – no interviews and is
lethargic and negative. This behavior is not common. In a gentle and non-
confrontational manner, we did have a conversation about productivity. His reasoning
for not being productive was that he stated that I asked him not to connect with the
hiring managers of our clients. Honestly, I can’t remember saying that, but with the 10
suspicion rampant right now, maybe I did.11
Last week, I had to check him on his negativity. I am hiring another person and likely to
work on my desk as a PC. In relation to his candidacy, he publically made the most
negative statements. “I do not believe this guy will ever be successful here and we will 15
just be wasting our time.” I am glad for that opinion, but it was in public with Matt and I
both knowing he was better than some that have made it in the office. On another
occasion, he made a blanket negative statement to this regard. In both cases, they were
not points in the decision making process, but a statement of conclusion: “If you do
anything other than this, you are an idiot.” When I pointed this out, he seemed to get it 20
and humbly apologized. My point: I want your opinion, but stating it with some
temperance or in private is better than in public and almost like a challenge not to go in a
direction other than what Matt says.
Action Plan in my head for your review: 1. Have Jolie [Wilson] speak with him and 25
assess what is going on; 2. Have Bill Smyser do some desk side support; 3. Train a new
person on my desk.
(R. Exh. 36 (emphasis added); Tr. 486–487 (explaining that after J.L. left the company, there
was some level of mistrust in Agnew and Schmidt’s relationship, and Agnew was hoping to get 30
past that problem and move forward); see also Tr. 368–373.)
Agnew continued to have concerns about Schmidt’s work ethic in November 2012,
believing that Schmidt’s presence in the office was bringing down the overall energy level in the
office because although Schmidt was the longest tenured employee, he was not demonstrating a 35
positive attitude and was slowing down in his call time. (Tr. 377–378.) Accordingly, Agnew
sought guidance from Jerry Hill (a consultant with the GRN Winfield corporate office), stating
the following concerns in a November 27 email:
. . . Here is my situation: My tenured floor person is Matt Schmidt. Matt, [M., D. and S.] 40
all see that we have a work ethic problem. I need your advice and support to get out of
this rut and move to a new level of energy. Help!

11 At some point, Agnew tried to address Schmidt’s belief that he was not permitted to speak directly
with client’s hiring managers by assuring Schmidt that he (Agnew) would not get in Schmidt’s way, and
that Schmidt should just focus on making placements. (Tr. 371.)
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9
Here is some history you know well. Matt by choice wanted to be a PC on my desk. He
is a great guy and works well with me – a pretty tough row to hoe! That said, Matt is not
a high energy, high work ethic guy. With [J.L.’s] departure, we both went into a period
of suspicion and funk and challenge.
5
Interestingly, [D. and S.] first noted the problem a month ago. Matt and I [met] Friday
and we concurred. Matt took appropriate responsibility. . . . I have challenged Matt to
take leadership in finding candidates that are hard and to lead the effort to change the
work ethic of the floor. I did this based on Jolie’s wise counsel to challenge Matt.
10
Thanks for your partnership, Jerry. No one can do desk side support and creation of a
great floor more than you. Let’s see if we can make it happen in 2012!
(R. Exh. 48; see also Tr. 377 (noting that in the meeting referenced in the email, Agnew and
Schmidt talked about absenteeism and showing up late, and about call planning and getting call 15
plans ready).)
G. December 2012 – Schmidt and S.C. Give Affidavits in J.L.’s Unemployment Case
On December 18, Schmidt and S.C. gave affidavits to J.L.’s attorney for J.L.’s 20
unemployment benefits case against Respondent. In his affidavit, Schmidt (among other things):
(a) described the statements that Agnew made regarding J.L. and his last day at the company
(specifically, that Agnew said he “had to let J.L. go”);
25
(b) stated that he rode to work with J.L., but later received a $4,000 bonus from Agnew to
assist with buying a car to drive himself to work; and
(c) explained that Agnew asked employees to print lists of contacts for making calls so
employees could continue making calls in the event of a power failure or the loss of 30
access to the company’s database of phone numbers.
(GC Exh. 2; see also Tr. 44–45; Findings of Fact (FOF), Section II(D)(1), supra.) Employee
S.C., meanwhile, provided the following information in S.C.’s affidavit:
35
(a) On September 24, Agnew asked employee D.D. to describe an incident where J.L.
declined to take a phone call from Agnew because J.L. was finishing a call with a
client. Agnew stated that “he did not want someone working for him who does not
want to talk to him,” and then stated that would be “sending [J.L.] home today.”
40
(b) Also on September 24, Agnew directed S.C. to contact Respondent’s technical
support provider to ask that J.L.’s account (including his access to email, remote
login, and Respondent’s software and database) be terminated within the next 30–40
minutes.
45
(c) After Agnew and J.L. met on September 24, J.L. went to his desk and collected his
personal belongings, and then left the building.
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(d) On at least one occasion earlier in the year, Agnew intended to terminate J.L. because
of what S.C. believed was a strong and consistent conflict in personalities. S.C.
attempted to persuade Agnew to use an alternative method to resolve his differences
with J.L., and Agnew did not terminate J.L. at that time.5
(e) It is Respondent’s policy, as communicated by Agnew, that employees print lists of
contacts for making calls so employees can continue making calls in the event of a
power failure or the loss of access to the company’s database of phone numbers.
10
(GC Exh. 3; see also Tr. 44–45.)
In the morning on December 19, J.L.’s attorney faxed Schmidt’s and S.C.’s affidavits to
Agnew and Respondent’s attorney. (GC Exh. 4; see also Tr. 277–278, 382.) Later that morning,
Agnew (who was sitting at a desk near Schmidt and other employees) pounded his fist on the 15
desk, and then stood up and stormed out of the office. Agnew did not return to the office until
after lunch. (Tr. 48.)
Later on December 19, Schmidt was working at his desk when Agnew inadvertently sent
him a copy of an email “chat” between Agnew and his attorney. In the email, Agnew stated that 20
he thought Schmidt’s and S.C.’s affidavits “hurt us, but I think we’ll be okay.” When Schmidt
sent an email to Agnew to ask if the message was intended for him, Agnew asked Schmidt to
come to the conference room for a meeting.
During the meeting, Schmidt told Agnew that he never wanted to be a part of J.L.’s 25
unemployment benefits case, but felt that he had to do what is right, and accordingly told the
truth in his affidavit about what he knew. When Agnew asserted that he did not terminate J.L.,
Schmidt reminded him of the things he (Agnew) said about letting J.L. go. Agnew replied that
sometimes his head says different things than his heart, and he says things that he does not mean.
Agnew concluded the meeting by telling Schmidt that “a couple of things can happen from this: 30
we can let this pull us apart; we can grow from this; or we can part ways.” Schmidt responded
that he “would like to make this work.”12 (Tr. 49–55, 182.)

12 During the trial in this matter, Respondent objected to Schmidt’s testimony about Agnew’s email
chat with Respondent’s attorney on the theory that the email chat was protected by the attorney-client
privilege. Respondent’s counsel added that the privilege was not waived because Agnew’s disclosure to
Schmidt was inadvertent. The General Counsel and the Charging Party took the position that Respondent
waived the privilege. (Tr. 50–51.)
I agree with the General Counsel and the Charging Party that Agnew, acting as the client, waived the
attorney-client privilege here. While it is true that Agnew’s initial disclosure of the email chat to Schmidt
was inadvertent, he did not attempt to correct the error by notifying Schmidt that the communication was
not intended for him. To the contrary, Agnew reinforced his waiver of the attorney-client privilege by
setting up a meeting with Schmidt in which they discussed the email chat and its implications.
Respondent took no further action regarding the email chat until it attempted to invoke the privilege at
trial nearly one year after the disclosure. Based on those facts, I find that Respondent waived any
attorney-client privilege regarding the December 19, 2012 email chat.
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11
H. January 2013 – A Fresh Start?
1. Initial positive interactions
On January 3, 2013, Agnew provided Schmidt with a report containing data about the 5
work that Schmidt performed in 2012. On the report, Agnew wrote: “Matt, Per your request.
All my best for a great 2013, Mike.” (R. Exh. 38; see also Tr. 385–386, 388.) Also in early
January, Schmidt learned that he was awarded a space on the annual “peak performers’ trip” to
the Bahamas based on his overall performance in 2012. The trip, which was awarded to high
performing employees from various offices of GRN Winfield, was scheduled for March 2013. 10
(Tr. 37, 594–595.) Notwithstanding these initial positive overtures, Schmidt and Agnew
continued to have a somewhat rocky working relationship.
2. Changes to the nuclear desk
15
In fall 2012 and early 2013, Agnew made changes to the nuclear desk that led Schmidt to
believe his opportunities to make placements were being limited. First, Schmidt believed that
Agnew directed him to limit his direct client contact calls (e.g., calls to hiring managers and the
like) to Constellation Energy,13 a large nuclear utility that was one of four nuclear clients covered
by the nuclear desk.14 Although Schmidt believed that he was being cut off from working with 20
the three other nuclear clients (Energy Northwest, INPO and TVA), he still received job orders
for those clients, including TVA, which was a limited source of job orders because it was on a
hiring freeze. Moreover, Schmidt’s calls, submittals and placements to nuclear desk clients in
early 2013 matched or exceeded his figures from fall 2012 even though the majority of
Schmidt’s client calls in 2013 (70 out of 73 client calls)15 were to Constellation Energy: 25
Month Schmidt’s Calls to
Nuclear Desk Clients
Schmidt’s
Submittals
Schmidt’s
Placements
September 2012 12 1 2
October 2012 16 4 0
November 2012 28 7 0
December 2012 18 3 1
January 2013 22 9 0

13 Although Schmidt testified (rather tentatively) that he believed Agnew instructed him to limit his
client contact to Constellation Energy in or about January 2013 (see Tr. 58–59, 574–575), Agnew
understood that Schmidt became worried about limited client contact as early as October 2012. (See FOF
Section F, supra.)
14 Schmidt had a positive history with Constellation Energy because he had devoted a considerable
amount of time towards improving Constellation Energy’s working relationship with Respondent, and
towards encouraging that company to send more job orders to Respondent. (Tr. 59, 192–193.) Because
of that history, I do not credit Schmidt’s testimony that Constellation Energy was a poor assignment
(because of a lower reimbursement rate or otherwise) – Schmidt’s own testimony that he revived
Constellation Energy as a good source for business refutes his claim that Constellation Energy was not a
desirable client, along with the fact that half (5 out of 10) of the placements that Schmidt made for
Respondent as a recruiter were at Constellation Energy. (Tr. 212–213; GC Exh. 14.)
15 In fall 2012, 36 of Schmidt’s 74 client calls were to Constellation Energy. (GC Exh. 23; R. Exhs.
34, 63.)
JD–10-14
12
February 2013 29 5 1
March 201316 16 8 0
April 201317 6 5 0
(GC Exh. 14 (placements); R. Exhs. 59 (submittals); 34, 63 (calls to nuclear desk clients); see
also FOF Section II(D), supra; Tr. 58–62, 94–95, 134–135, 224, 423–424.)
Second, in January 2013 Agnew assigned an additional employee (O.C.) to the nuclear 5
desk. (Tr. 62–63; see also Tr. 64, 94 (Schmidt believed that Agnew’s decision to add staff to the
nuclear desk reduced the number of job assignments that Schmidt received, and reduced the
quality of those job assignments).)18 Thus, for example, on January 14, Agnew assigned Schmidt
three job orders (two from Constellation Energy and one from INPO) and assigned O.C. four job
orders (two each from Constellation Energy and Energy Northwest). In making these 10
assignments, Agnew emphasized that Schmidt’s assignments were “at a higher level” because he
did not want Schmidt to feel threatened by O.C.’s involvement with nuclear desk assignments.
(R. Exh. 10; Tr. 393–394; see also Tr. 180–182, 226–228 (Schmidt believed the positions he was
assigned were difficult to fill, but acknowledged that he had success in filling those positions (or
similar ones) during his tenure with Respondent).)15
At the same time that these changes were occurring, Agnew and Schmidt were having
trouble communicating and coordinating about the parameters of Schmidt’s responsibilities. For
example, in early January 2013, one of Respondent’s search consultants (former employee
W.M.) unexpectedly resigned. Schmidt began working on placing a candidate that W.M. had 20
identified, because the job order was for Constellation Energy, which Schmidt believed was his
client. By treating W.M.’s candidate as his own, however, Schmidt raised the ire of Agnew, who
believed that Schmidt improperly kept a viable candidate “out of the loop,” such that the
candidate ended up accepting a job with another company instead of the position that
Respondent was trying to fill. (Tr. 441–443, 576–577.)25
Agnew and Schmidt were at odds again in mid-January 2013, when Schmidt began
identifying candidates for a chemistry manager position, but believed that his hands were tied
because most of the viable candidates were set aside on a call list that was reserved for Agnew.
To address this issue, Agnew emailed the following message to Schmidt on January 14:30

16 Schmidt and Agnew were out of the office from March 3–8, 2013, to attend the peak performers’
trip to the Bahamas. (R. Exh. 50.)
17 Respondent terminated Schmidt on April 17, 2013. (See FOF, Section II(P), infra.)
18 I do not credit Schmidt’s testimony that the job assignments he received were of poor quality
(when compared to assignments given to other employees, or otherwise). Schmidt was equivocal about
this assertion when questioned about the quality of specific job orders, and the evidentiary record shows
that it is not generally possible to characterize job orders as “good” or “bad” in quality, since (for
example) a high level position may be difficult to fill, but then produce a good commission if filled, while
a lower level position may be easier to fill, but produce a lower commission. (Tr. 94, 103–106, 180–182,
226–228.)
JD–10-14
13
Matt: You said you needed more names and wanted to call on the list developed for me.
My plan was to give you a first shot at this. Please take 10 names of Chemistry
Managers/Supervisors of your choice today to expand your chance of a hit. I will start
calling after today. Coordinate which names you want to take from my call plan with 5
DP.
(R. Exh. 11.) Schmidt, however, did not find Agnew’s offer to be satisfactory, because Schmidt
(mistakenly) believed that Agnew was only giving him one afternoon to call candidates that
Agnew himself would begin calling the next day. (Agnew’s intent was to only call the 10
remaining candidates on his list after Schmidt picked the ten candidates he wanted.) (Tr. 109–
111, 183–184, 394–397.)
3. Inclusion in work meetings and discussions
15
Schmidt also had concerns about being included in staff meetings about ongoing job
orders and other work-related topics. Specifically, Schmidt explained that Agnew told him he
did not need to attend certain regularly scheduled recruiting meetings19 (held on Tuesdays and
Fridays), and also did not invite him to attend several other meetings that he (Agnew) held with
various employees over the course of the day. Schmidt viewed this as a negative development 20
even though it was not uncommon for Agnew to hold meetings that were attended by some, but
not all, employees (particularly if the purpose of the meeting was to address assignments or
topics that related to only a subset of employees in the office). (Tr. 64–65, 137–138, 260–262,
468–469.)
25
4. Absenteeism
In early 2013, Schmidt had to miss all or part of four work days, primarily because of
court dates for his child support20 and DUI cases, and because of a car accident that caused
transportation problems and also led to court dates. Although Schmidt did not always provide 30
Respondent with advance notice of his need to be late or absent to attend to these matters, there
is no evidence that Respondent took action against Schmidt for absenteeism in this time frame
other than to charge Schmidt for vacation time to cover the time that he was not in the office
(with paycheck deductions for excess vacation time used, if necessary). (R. Exh. 50; see also Tr.
150–155, 439–445, 578–581.)35

19 At recruiting meetings, employees might complete a training program, or discuss sales goals or
developments in the industries that Respondent served. (Tr. 100–101.)
20 Schmidt explained that he had court dates in his child support case because the court erroneously
believed that the mother of Schmidt’s son had custody (in fact, Schmidt’s son had moved in with his
grandmother). Because of that error, the court erroneously charged Schmidt for child support, and was
preventing Schmidt from obtaining a passport that he would need to attend the peak performers’ trip to
the Bahamas. Accordingly, Schmidt had various court dates to resolve the child support matter. (Tr.
153–154, 208–209, 527–528, 577–578.)
JD–10-14
14
I. J.L.’s Unemployment Benefits Case Concludes
On January 29, Schmidt and S.C. testified as witnesses in J.L.’s unemployment benefits
case against Respondent, with each providing testimony that was consistent with their December 5
2012 affidavits.21 Agnew and his attorney were present when both Schmidt and S.C. testified.
(Tr. 55–57, 399–400.) Subsequently, on January 31, an administrative law judge with IDES
ruled that Agnew terminated J.L. for reasons other than misconduct, and accordingly found that
J.L. was eligible for unemployment benefits. (GC Exh. 7.)
10
J. February 2013 – Agnew and Schmidt Continue to Struggle with Their Working
Relationship
1. Early February – more positive overtures
15
In the initial days after J.L.’s unemployment benefits case, Schmidt and Agnew worked
together on the nuclear desk without incident. Schmidt and Agnew traded emails about a
potential candidate for a job order, and Agnew also congratulated Schmidt on making his first
placement in 2013.22 (R. Exhs. 12, 15–16; see also Tr. 114–115, 129–130, 177–178, 397–399,
402.) In addition, after meeting with a consultant on February 8 to evaluate the team of 20
employees in the office, Agnew decided that notwithstanding his and the consultant’s concerns
about Schmidt’s attitude, he (Agnew) should work with Schmidt to “keep a good, professional,
productive, mutually beneficial relationship,” and, in short, “[m]ake [Schmidt] my . . . man.” (R.
Exh. 35; see also Tr. 403, 411–415.)
25
2. February 11 – argument about feelings after the IDES hearing
On or about February 11, Schmidt met with Agnew and stated that he (Schmidt) felt like
he was being punished and that it seemed like other employees were getting better job orders
while Schmidt received lower level job orders. Agnew responded by telling Schmidt that he 30
(Agnew) was not there to talk about Schmidt’s feelings, and then asked Schmidt what jobs he
was working on. Agnew then stopped talking about job assignments, and the following
exchange occurred:
Agnew: Fine, if you want to talk about your feelings, let’s talk about your feelings.35
Schmidt: I don’t really have anything to say.

21 At some point between December 19, 2012 and the January 29, 2013 hearing, Agnew called all
employees into a meeting and advised them that he expected them to tell the truth if called to testify at
J.L.’s unemployment benefits hearing. (Tr. 140–141, 252–253, 383.) Agnew’s attorney also told
Schmidt and other employees that they should tell the truth if called to testify. (Tr. 140–142, 252.)
22 At trial, Schmidt characterized Agnew’s congratulatory email as part of a strategy that Agnew had
of praising Schmidt in emails, but reprimanding him publically. (Tr. 184–185.) I do not credit Schmidt’s
characterization because it is unsupported by the record (which includes some emails that praise Schmidt,
and others that reprimand him for performance), and nothing in Agnew’s congratulatory email suggests
that Agnew sent it with an ulterior motive.
JD–10-14
15
Agnew: Let’s talk about my feelings. How do you think it felt when you used the
bonus I gave you against me in the hearing? How do you think that made
me feel? Let’s talk about feelings. Why don’t you go to lunch and think
about my feelings and how you made me feel.
5
Agnew then pushed a $20 bill towards Schmidt and repeated his directive that Schmidt go to
lunch. Schmidt complied.23 (Tr. 66–68.)
Notwithstanding the February 11 confrontation, in the following weeks Agnew and
Schmidt resumed normal communications. For example, Agnew sent Schmidt information about 10
the upcoming peak performers’ trip, and also provided Schmidt with information to assist
Schmidt with two pending job orders.24 (R. Exhs. 17–19; Tr. 123–124, 131–132, 187–189.)
3. Additional absenteeism
15
In February, Schmidt missed all or part of five work days, primarily because of car
related issues, court dates (including court dates needed to clear the way for Schmidt to obtain a
passport), and oversleeping on one occasion (February 13). As with January 2013, there is no
evidence that Respondent took action against Schmidt for absenteeism in this time frame other
than to charge Schmidt for vacation time to cover the time that he was not in the office (with 20
paycheck deductions for excess vacation time used, if necessary). (R. Exh. 50; see also Tr. 156–
157, 225, 445–449, 581–584, 592–594.)
K. March 1, 2013 – Office-Wide Reminder about Attendance Policy
25
On March 1, at Agnew’s direction, S.C. sent an email to all staff to “review a few of our
standard operating procedures per the Employee Handbook.” S.C. highlighted the following
procedures, among others:
Attendance30
To be successful in this job requires a heightened degree of discipline. Being here to do
the job is essential. But because we work in a team environment, your absence can also
have a detrimental impact on your co-workers productivity and success. If your absence
from work becomes repeated and/or excessive, you will be terminated or placed on a 35
Performance Improvement Plan (see Performance Improvement Plan below). Being
punctual is another one of those necessary disciplines. We understand that events (road
construction, accidents, sick child, etc.) may arise from time to time that prevent you
from getting to work on time. If this becomes repeated and/or excessive, you will be

23 Schmidt’s account of this conversation with Agnew was not rebutted.
24 I do not credit Schmidt’s testimony that Agnew sent these emails as false leads or with ill will.
Schmidt did not have a basis for testifying (or speculating) about Agnew’s intentions in sending the
emails, and regarding one of the emails (R. Exh. 18), Schmidt admitted that he could not remember the
candidate that Agnew discussed in the email. (Tr. 185–187, 190–191.) Schmidt was also a bit too eager
(after a leading question that drew an objection that I sustained) to assert that Agnew became more rude
when responding to work related questions after December 18, 2012, the day that Schmidt gave his
affidavit in J.L.’s IDES case. (Tr. 191.)
JD–10-14
16
terminated or placed on a Performance Improvement Plan. Please give the office a call if
you are going to be late or if you are unable to be at work due to some emergency (leave
a message if no one answers). If the weather is bad and traffic could be an issue, please
leave a few minutes earlier than normal so you are not late.
5
Performance Improvement Plan
If an individual’s performance is not at a satisfactory level for any consecutive period,
they may be placed on a “Performance Improvement Plan.” During the subsequent
period, the employee’s performance will be monitored closely and appropriate training, 10
coaching and mentoring provided. The employee’s performance will be assessed daily to
pinpoint areas of weakness and offer suggestions and appropriate actions for
improvement. If at the conclusion of the Performance Improvement Plan the employee’s
performance has not elevated to a reasonable and acceptable level, as defined in writing
by the employer, and agreed to by the employee, at the beginning of the Performance 15
Improvement Plan, their employment may be terminated. If the employee elects not to
continue under the terms of the Performance Improvement Plan, it will be regarded as a
“Voluntary Resignation,” effective the end of that business day.
(R. Exh. 20 (emphasis in original); see also GC Exh. 11 (note from S.C. to Agnew to explain that 20
she added the language about the possibility of being terminated for excessive absences because
that language was not in the employee handbook); GC Exh. 12 (employee handbook containing
attendance policy language from December 2011); Tr. 298–302, 304–305, 308.) Schmidt
acknowledged receiving S.C.’s March 1 email about attendance, but asserted that he had not seen
the attendance policy before that date. (Tr. 175–176, 203.)25
On the same day that S.C. sent her email about Respondent’s attendance policy, Schmidt
was out of the office for 7 hours to obtain his passport. Agnew was frustrated that Schmidt had
to be absent to resolve the issues with his passport, but supported Schmidt’s absence from the
office that day because it was necessary for Schmidt to be able to go on the peak performers’ 30
trip. Accordingly, Respondent took no action against Schmidt for being absent on March 1. (Tr.
158, 210, 449–451, 584; R. Exh. 50.)
L. March 3–8, 2013 – The Peak Performers’ Trip
35
From March 3–8, 2013, Agnew and Schmidt attended the GRN Winfield peak
performers’ convention at the Atlantis resort in the Bahamas. Agnew’s family also attended, as
did one of Schmidt’s friends. Convention sessions were scheduled in the morning on March 4–
5, but otherwise convention attendees were generally free to enjoy the resort on their own. (R.
Exh. 17, pp. 3–4; Tr. 115–117; see also Tr. 415 (noting that although the corporate office of 40
GRN Winfield organized the trip, Agnew paid for the cost of Schmidt’s trip because that was
Agnew’s responsibility as a company franchise owner).) During the trip, Agnew paid for
Schmidt and his friend to join him (Agnew) in riding jet-skis during one afternoon. Agnew and
Schmidt also attended company functions at which Schmidt spoke with various respected
corporate officials and industry leaders. (Tr. 117–120, 204–205, 207–208, 585–586; R. Exhs. 45
56–58.)
JD–10-14
17
M. Agnew Assigns Nuclear Desk Work to Additional Employees
In March 2013, Agnew began assigning nuclear desk work to employees D.Da. and
David Dulay. Dulay also received assignments from the oil and gas desk and the
metals/manufacturing desk to ensure that he had a sufficient amount of work to stay busy. 5
Schmidt believed that D.Da. (and O.C., who joined the nuclear desk in January) were being
assigned “better” job orders, and were also taking away assignments that would otherwise have
gone to Schmidt. (Tr. 63–64, 243–244, 250–252.)
At some point after Dulay began doing nuclear desk work, Agnew instructed him not to 10
speak to Schmidt about his work assignments. Agnew repeated that instruction to Dulay on
multiple occasions, including one incident where Agnew observed Schmidt and Dulay talking at
their desks and made a throat slashing gesture (that both Schmidt and Dulay observed) to
indicate that Dulay should stop talking to Schmidt about what he was working on (Agnew’s
rationale was that Schmidt did not need to know about assignments, such as work from the 15
manufacturing desk, that were not related to Schmidt’s success). (Tr. 86–87, 245–247, 469.)
Schmidt also observed that Agnew did not list one of the jobs assigned to D.Da. on the
“update on jobs” sheet (although Schmidt found that the job was listed in Respondent’s computer
database). Schmidt concluded that Agnew did not list the job on the update sheet because20
Agnew did not want Schmidt to know about it. (Tr. 70–72.)
N. Mid-March, 2013 – Respondent Places Schmidt on a Performance Improvement Plan
In mid-March, Agnew, Schmidt and S.C. met to discuss Schmidt’s performance. During 25
the meeting, Agnew told Schmidt that his production numbers were not as strong as they used to
be. Agnew also told Schmidt that his attendance was not satisfactory, and emphasized that
Schmidt needed to arrive at work on time. Agnew placed Schmidt on a performance
improvement plan (albeit one that was not in writing) aimed at addressing the weaknesses in
Schmidt’s performance. (Tr. 160–162, 198–199, 453–456; see also Tr. 456 (noting that Agnew 30
did not fire Schmidt at this point because he needed someone on the nuclear desk and Schmidt
was the best person that he had); R. Exh. 22 (email dated March 27, referencing a meeting “last
week” with Schmidt about attendance).) Schmidt was surprised that Agnew was unhappy with
his attendance since Respondent had approved vacation or sick leave for Schmidt’s previous
absences and tardies. (Tr. 196–198.)35
O. March/April 2013 – Conflicts between Agnew and Schmidt Persist
1. March 27 – Schmidt arrives late for work
40
Despite having been advised by Agnew that his attendance was unsatisfactory, on March
27, Schmidt arrived to work one hour late because he overslept. (Tr. 158–159, 167, 461; R. Exh.
50.) S.C. emailed Schmidt about his late arrival (with Agnew copied on the email) and stated as
follows:
JD–10-14
18
Hey Matt,
In the conversation you had with Dr. Agnew, [D.P.], and I last week, you were informed
that your attendance has been unsatisfactory. This morning, you were an hour late which 5
isn’t the behavior we were expecting after the conversation we had. This pattern of
behavior has a negative impact, obviously on you as well as others, and we want to
encourage you to address this pattern.
If you want to discuss this further, please set up a meeting with me, [D.P.], and Dr. 10
Agnew.
(R. Exh. 22; Tr. 163–165.) After this incident, Agnew decided that he should fire Schmidt.25 (Tr.
462.)
15
2. Respondent removes Schmidt’s remote access
Consistent with Agnew’s decision to fire Schmidt, on March 27, Agnew directed
employees D.P. and S.C. to remove Schmidt’s work account remote access privileges because
Agnew feared that Schmidt would take information from Respondent’s database, leave the 20
company, and join former employee J.L. in running their own recruiting business.26 (Tr. 280–
281, 463; GC Exh. 8, page 1.) A few days later, Schmidt attempted to use remote access, and
discovered that he could not log in. Schmidt asked D.P. and S.C. about the problems he was
having with remote access, and subsequently learned that he should speak to Agnew about the
issue since Agnew was the one who decided to remove Schmidt’s remote access privileges. (Tr. 25
73–77.) Schmidt asked Agnew about his remote access privileges when they met on or about
April 10, and Agnew responded that he removed Schmidt’s access because Schmidt had not
logged in for a while. Schmidt pointed out that Agnew did not remove his remote access in the
past when Schmidt did not log in, but did not attempt to argue the issue further. (Tr. 83–84.)

25 In this same timeframe, Agnew’s belief that Schmidt was not working out in the office was
reinforced when Agnew’s son Robert reported that Schmidt said Robert was “lucky” to only have to
work for one hour on the day that Robert and Schmidt spoke in the office. (Tr. 462–463.) Although
Schmidt explained at trial that he was only joking (see Tr. 590–592), I credit Agnew’s testimony that he
viewed Robert’s report of Schmidt’s comment as further indication that Schmidt had a poor attitude about
working for Respondent. Indeed, Agnew expressed concerns about similar remarks in October 2012,
before Schmidt gave his affidavit and testified in J.L.’s unemployment benefits case. (See FOF, Section
II(F) (Agnew expressed concerns about Schmidt’s comment that he could not wait until 5:00 p.m.).)
26 I give little weight to Agnew’s additional explanation that he also removed Schmidt’s remote
access because a corporate official incorrectly advised him that Schmidt (and a high school intern whose
remote access was also terminated) was not using the remote access feature. (Tr. 463–464; see also Tr.
281–282, 287–291, 293; GC Exh. 9.) Respondent’s remote access records do not support a claim (by a
corporate representative or anyone else) that Schmidt was not using remote access (see GC Exh. 9), and
Agnew had no discernible motive to remove Schmidt’s remote access other than the fact that he (Agnew)
planned to terminate Schmidt in the near future and feared that Schmidt would take Respondent’s records
before he left the company. To be sure, Agnew gave the “you weren’t using remote access” explanation
to Schmidt when Schmidt asked him why his remote access was removed. (See Tr. 83–84.) I find,
however, that Agnew merely used that explanation to avoid telling Schmidt the truth – that Agnew
planned to fire Schmidt in the near future.
JD–10-14
19
On April 11, Agnew instructed D.P. and S.C. to remove the remote access privileges for
all of Respondent’s full time callers (recruiters, search consultants and project coordinators)
unless there was a rationale for not doing so. With the assistance of Respondent’s technical
support provider, D.P. and S.C. carried out Agnew’s directive. Agnew then met with employees 5
on April 12 and announced that if they were not using remote access from home, then their
remote access privileges would be removed. (GC Exh. 8, page 2; Tr. 84–85, 247, 282–287, 297.)
On April 19 (two days after Respondent terminated Schmidt’s employment), Agnew instructed
Respondent’s technical support provider to restore all employees’ remote access privileges, but
emphasized that his request “excludes those not employed of course.” (GC Exh. 10; Tr. 248, 10
297.)
3. Disagreement about job order calling plan
On or about April 3, Agnew met with Schmidt and D.Da. to discuss the plan for 15
identifying and contacting candidates for an electrical engineering position at Constellation
Energy. According to Agnew, since multiple employees would be working on the same job
order, he divided up the candidate research by instructing Schmidt to identify candidates that
were currently employed by a nuclear power plant, while O.C. would identify candidates from
A&E/OEMs (entities that provide services to nuclear power plants), and D.Da. would identify 20
candidates from fossil power plants. Schmidt stated that he wanted to look for candidates
outside of nuclear power plants, but Agnew said no.27 (R. Exh. 25; see also Tr. 80–81, 473.) By
April 9, Schmidt had prepared his list of candidates to call. (R. 25.)
On April 10, Schmidt requested a meeting with Agnew to talk about how things were 25
going in the office.28 In that meeting, Schmidt told Agnew that he testified in J.L.’s case because
he needed to, and not to hurt Agnew. Schmidt added that while he did not say anything untrue
when he testified, he nonetheless wanted to apologize to Agnew if Schmidt’s decision to testify
hurt Agnew. Finally, Schmidt stated that he knew that he had been punished for testifying, and
forgave Agnew for doing that. (Tr. 77–80.) 30
Agnew did not respond to Schmidt’s apology (other than to say “okay”). Instead, Agnew
admonished Schmidt because the candidate list that Schmidt prepared for the Constellation
Energy job order included candidates from A&E/OEMs, a source that Agnew assigned O.C. to
research. Schmidt responded that Agnew told him to focus on “nuclear,” which included both 35
power plants and A&E/OEMs. Schmidt added that O.C. was not present for the April 3 meeting
when Agnew discussed candidate research duties, but then apologized for the misunderstanding.
(Tr. 80–83, 473.) Agnew subsequently admonished Schmidt in an April 10 email, stating as
follows:
40

27 Schmidt admitted that he believed it was “very unfair” that D.Da. was assigned the task of finding
candidates in fossil power plants. In Schmidt’s view, he had devoted a lot of time to expanding into that
market, only to have that market “immediately taken away from me.” (Tr. 81.) For that reason, I credit
Agnew’s testimony that Schmidt stated in the April 3 meeting that he wanted to research candidates
outside of nuclear power plants.
28 This is the same meeting in which Schmidt asked Agnew why his remote access privileges were
taken away. See Findings of Fact (FOF), Section II(O)(2), supra.
JD–10-14
20
Matt:
I am glad you see a real possibility with the candidate you have from the non-utility
sector for the electrical engineering role at Constellation. While I applaud your effort and
energy, I need to make roles clear. Per the April 3, 2013 meeting, we discussed who was 5
focusing on which sectors to source candidates for these roles. Your focus was to be on
sourcing candidates from the nuclear utilities, a role that I have clarified on multiple
occasions. [O.C.] was to focus on sourcing candidates from A&E/OEM’s and [D.Da.]
was to focus on fossil. We divided it up this way so we could comb the market
efficiently and in an organized manner. I was surprised that you had several people on 10
your plan yesterday and today who were from A&E/OEM’s and are submitting people
from A&E/OEM’s when your focus is to be on nuclear utilities.
While again, I applaud your effort, for me to run an office with multiple recruiters
working on the same job orders, we have roles segmented in a logical manner. If you had 15
come to me and asked to discuss candidate sources, we could have determined that you
sourcing candidates from A&E/OEM’s would be ok. To source and submit candidates
who are from A&E/OEM’s when I directly stated that you were to focus on nuclear
utilities, since others are sourcing from A&E/OEM’s, is something to address. Let’s find
a way for you to continue to source candidates successfully while maintaining role 20
clarification.
That said, you did excellent research and that was good!
(R. Exh. 25.) To explain how he understood the candidate research roles for the electrical 25
engineer job order, Schmidt sent Agnew the following reply:
Mike
You stated to me that it was ok to look outside of nuclear and that you were taking 30
[D.Da.] off the project. I have worked very hard to cultivate this relationship with [N., a
human resources official at Constellation Energy] and Nine Mile and have also been
working with [N.] on permission to search outside of the nuclear utilities. The reason
being that the pool of electrical engineers within nuclear has almost depleted. [O.C.] was
not on the call with us when we clarified roles and I was unaware (as was he) until today 35
that you were going to place him on this search.
If this is how you would like to proceed I apologize and will immediately terminate my
search outside of the nuclear utilities per your command.
40
(GC Exh. 21; Tr. 589–590; see also Tr. 472.)
On April 11, Schmidt devoted much of the day to putting together a new list of
candidates to call about the electrical engineering position with Constellation Energy, since his
original list generally was not usable because included candidates from A&E/OEMs. Schmidt’s 45
work on the new list, however, had a negative impact on the time that he spent calling candidates
about the job opening. (Tr. 232–233.)
JD–10-14
21
On April 12, Agnew (inadvertently, at first) initiated an online chat with Schmidt about
the low amount of time that Schmidt devoted to calling candidates the previous day. The
following exchange occurred during the online chat:
5
Agnew: He can [choose] to work hard and be productive. Not the choice
yesterday.
Schmidt: Who can [choose] to work hard and be productive? If that is in reference
to me because of my call time, I did work hard and [was] productive 10
yesterday. My call plan consisted of only about 16 names because the 50
names I had for Electrical Engineers I could not call because they were at
A&E firms. I spent the morning researching a call plan. I could not do
that at home because you terminated my [remote] access to CAPS. My
time will be better today . . .15
Agnew: In the mirror.
Schmidt: I didn’t put the blame on anyone else. Just stated the facts. I did what I
could to be productive and set myself up to make more calls. I couldn’t 20
make the calls I didn’t have. I did however probably research 75–100
names. Sorry for the low call time, I will improve it today.
(GC Exh. 20.)
25
Towards the end of the day on April 12, Agnew emailed Schmidt about his low call time
on April 11. Agnew stated as follows in his email:
Matt:
30
40 minutes of call time is too low. I was shocked when I saw this. It was not like you or
anyone in the office to have that low of a level of call time and know you have to address
this. I had no idea why that was happening and it has taken me a better part of a morning
to assess what happened. I am glad you did great research, but you did it during call
time. As we have emphasized since you came here, you are to do research during 35
research time, 8:00–8:30; 11:30 to 12:00, 4–5 daily. If you wish to shift from that plan,
at a minimum you need to ask me in advance.
Matt, we have over 2000 engineers from utilities in the database and plenty to call. I
realize you believe that you “had” to spend call time for research time. That to me does 40
not hold water. Even if there was a miscommunication to you about focusing on utilities,
which I do not think there was, you still used a vast amount of the day researching when
you were to be calling. In the future, let’s keep the minimum acceptable level of call
time to be about 2 hours per day (3 is a goal), as 40 minutes is unacceptable and I think
you would agree with that.45
(R. Exh. 26; Tr. 230–232, 471–472.)
JD–10-14
22

P. April 17, 2013 – Respondent Terminates Schmidt
On April 16, Schmidt arrived 45 minutes late to work because he overslept. (R. Exh. 50;
Tr. 159, 166–168.) Agnew accordingly decided to fire Schmidt, citing Schmidt’s: poor 5
performance; attendance record; and poor attitude and damage to the demeanor of the office.
(Tr. 466–467.)
On April 17, Agnew emailed Schmidt in the middle of the day with the following
message:10
Matt
Yesterday, you “overslept” again. You arrived significantly late and we have brought this
pattern to your attention repeatedly. As of this morning, Matt, you have nine unexpected 15
absences since January 2013. Matt, in fairness to you and to the team, this needs to be
addressed.
(R. Exh. 29.)
20
Later in the day, Agnew announced that he would be meeting with each recruiter
individually to discuss the jobs they were working on. During Schmidt’s meeting with Agnew,
Agnew asked Schmidt for a status report on each of the job orders that he was assigned, and then
Agnew notified Schmidt that he was terminated, as described below:
25
Agnew: Matt, this just isn’t working, and I think we need to part ways.
Schmidt: Why?
Agnew: Well, a couple of reasons – your performance, your attendance, and I 30
don’t think we can get past what had happened.
Schmidt: I don’t understand about my attendance. The days that I’ve had off, you
have supported me on, having off. I was just charged for vacation time.
So I don’t know where these days off -- I don’t know why my attendance 35
has been poor.
Agnew: We’re not discussing this. You’ve missed quite a bit of work.
Schmidt: I don’t understand how you could terminate me for performance. I was 40
the top recruiter in the office. I just got back from a trip to the Bahamas
for being a peak performer in the entire company.
Agnew: You’ve only made one placement in the past five or six months.
45
(Tr. 87–90, 309; see also Tr. 484 (noting that Agnew also terminated Schmidt because of his
poor attitude).) Agnew then gave Schmidt his final paycheck. Agnew also offered Schmidt an
JD–10-14
23
additional check for $10,000 as a severance package, provided that Schmidt sign a five-page
document within 24 hours. Schmidt replied that he would review the document and let Agnew
know about the severance package, and then left the office. (Tr. 91–93.)
Q. Disparate Treatment Evidence5
1. Absenteeism
The evidentiary record shows that Respondent has applied its absenteeism policy (stated
in the employee handbook) somewhat informally. There do not appear to be any numerical 10
“triggers” for discipline or discharge due to absenteeism – instead, Respondent generally has
charged employees for vacation and sick leave when they arrive late or are out of the office, but
has taken more formal steps if employees exhausted their available leave and/or a pattern of
repeated absenteeism developed. (Tr. 352–354; see also Tr. 456–457 (noting that Agnew
preferred to “invest” in employees until he reached the point where nothing more could be 15
done).) The following table summarizes how Respondent has addressed absenteeism issues in
the past few years:
Employee Description of Absenteeism Action Taken by
Respondent
R.Fl. On his first day of work, R.Fl. announced that he
would have to leave at 3:00 p.m. (Tr. 458.)
Respondent decided not to
retain R.Fl. as an employee.
R.Fl. accordingly only worked
for Respondent for one day.
(Tr. 458–459, 521–522.)
J.J. In April 2011, Respondent allowed J.J. to use
vacation time to take Fridays off. (Tr. 324–325;
GC Exh. 16.)
In May 2011, J.J. began experiencing health
problems that resulted in her being out of the
office for 9 consecutive work days, with further
absences for medical reasons expected. (GC
Exhs. 15–16.)
On June 2, 2011, Respondent
informed J.J. that she was
terminated or had the option to
resign (but would be eligible
for rehire). (GC Exh. 17; Tr.
318, 323–331, 458.)
H.M. In 2008, H.M. had issues with tardiness. (R.
Exh. 43.)
In January 2009, out of 16 work days, H.M. was
absent 5 days, and tardy 2 days. H.M.’s sick and
vacation leave were therefore exhausted. (R.
Exh. 43.)
In 2008, Respondent
authorized H.M. to arrive at
work at 8:45 a.m. instead of
8:00 a.m. Respondent also
began producing a letter
whenever H.M. was tardy or
late. (R. Exh. 43.)
On January 26, 2009,
Respondent asked H.M. to
sign a letter to indicate that
H.M. agreed with
Respondent’s account of her
JD–10-14
24
tardies and absences in 2009.
(R. Exh. 43.)
W.M. In December 2012, W.M. missed 7 days of
work, with many of those absences for
unspecified reasons. (GC Exh. 18; Tr. 332.)
Respondent concluded that
W.M. quit voluntarily. (GC
Exh. 18; Tr. 332–333.)
2. Adverse employment action based on poor job performance
As noted above, Respondent began operations in 2007, and has a relatively small number
of employees (7 full-time and 7 part-time). As a result, there is limited information about 5
Respondent taking action against employees for poor performance. However, the evidentiary
record does show that Agnew was willing to take action to address performance issues when
necessary, as set forth below:
Employee Description of Problem with Performance Action Taken
E.C. E.C. was not able to perform the work to
Agnew’s satisfaction. (Tr. 458.)
On July 1, 2011, E.C. resigned
from her job with Respondent.
(GC Exh. 22; Tr. 520–521.)
R.Fi. R.Fi. generated poor sales revenue. (Tr. 317–
319, 458.)
Respondent reassigned R.Fi.
to a program manager
position. Later, R.Fi.
voluntarily left the company.
(Tr. 321–322, 458, 522.)
10
3. Performance of employees assigned to the nuclear desk in 2013
In early 2013, Schmidt was the only employee (besides Agnew) who was assigned to the
nuclear desk. Employee O.C. joined the nuclear desk in January 2013 (after being hired in
October 2012), while D.Da. and David Dulay joined the nuclear desk in March 2013. Since 15
Schmidt by far had the longest tenure on the nuclear desk, it is difficult to compare his
performance to O.C., D.Da. and Dulay, who were new to the nuclear desk practice. In any event,
nuclear desk employees had the following numbers in 2013 (up to Schmidt’s discharge on April
17, 2013):
20
Employee (date
joined the nuclear
desk)
Submittals in 2013 Placements (nuclear
desk only) in 2013
Amount Billed in
2013
Agnew29 No data available in
evidentiary record
3 (placements made
without assistance of
a recruiter or program
coordinator)
$101,116.50

29 This table does not include placements that Agnew made while working on a different “desk” in
the office, nor does it include placements for which Agnew served as the search consultant (and therefore
worked with a recruiter or program coordinator who also received credit for the placement). I also note
that Agnew’s commission as a search consultant differs from the billing rates that apply to recruiters such
as Schmidt. (See Tr. 342, 426–428, 514–515.)
JD–10-14
25
O.C. (January 2013) 6 2 $27,325
D.Da. (March 2013) 5 No data available in
evidentiary record
No data available in
evidentiary record
Dulay (March 2013) No data available in
evidentiary record
0 (on the nuclear
desk)
$0 (on the nuclear
desk)30
Schmidt (April 2011) 27 1 $16,375
(GC Exhs. 13–14 (placements and amounts billed by Agnew, Schmidt and O.C.); GC Exh. 19
(submittals by O.C. and D.Da.); R. Exh. 59 (submittals by Schmidt); R. Exh. 64 (placements and
amounts billed by Agnew); see also Tr. 312–313, 426–428, 514–515; FOF, Sections II(B),
(H)(2), (M).)5
4. Respondent’s treatment of employee S.C.
As previously noted, like Schmidt, employee S.C. gave an affidavit and testified in J.L.’s
unemployment benefits case. (FOF, Sections II(G), (I).) There is no evidence that Respondent 10
has taken any adverse employment action against S.C. since S.C. gave the affidavit or testified.
To the contrary, S.C. was still working for Respondent when this case went to trial, and made
more money in 2013 than in 2012. (Tr. 485–486, 525, 530.)
APPLICABLE LEGAL STANDARDS15
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 20
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Relco Locomotives, Inc., 358 NLRB No. 37, slip op. at 12 (2012), enfd. 734
F.3d 764 (8th Cir. 2013); see also Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022
(2006) (noting that an ALJ may draw an adverse inference from a party’s failure to call a witness
who may reasonably be assumed to be favorably disposed to a party, and who could reasonably 25
be expected to corroborate its version of events, particularly when the witness is the party’s
agent). 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. Relco Locomotives, 358 NLRB No. 37, slip op. at 12. My credibility findings are set
forth above in the findings of fact for this decision.30
B. Section 8(a)(1) Violations
Under Section 7 of the Act, employees have the right to engage in concerted activities for
their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for an employer (via 35
statements, conduct, or adverse employment action such as discipline or discharge) to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Relco
Locomotives, 358 NLRB No. 37, slip op. at 12.

30 Dulay did make one placement in January 2013, that resulted in an amount billed of $26,125, but
that placement occurred while Dulay was assigned to another “desk” in the office. (GC Exh. 13; Tr. 312.)
JD–10-14
26
The test for evaluating whether an employer’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 activities. Id. Apart from a few narrow exceptions
(none of which apply in this case), an employer’s subjective motivation for its conduct or 5
statements is irrelevant to the question of whether those actions violate Section 8(a)(1) of the
Act. See Station Casinos, LLC, 358 NLRB No. 153, slip op. at 18–19 (2012).
To establish that an adverse employment action violates Section 8(a)(1) of the Act,
meanwhile, the General Counsel must demonstrate that: the employee engaged in activity that is 10
“concerted” within the meaning of Section 7 of the Act; the respondent knew of the concerted
nature of the employee’s activity; the concerted activity was protected by the Act; and the
respondent’s decision to take adverse action against the employee was motivated by the
employee’s protected, concerted activity. Relco Locomotives, 358 NLRB No. 37, slip op. at 12,
17; see also id. at 14 (observing that “[e]vidence of suspicious timing, false reasons given in 15
defense, failure to adequately investigate alleged misconduct, departures from past practices,
tolerance of behavior for which the employee was allegedly fired, and disparate treatment of the
discharged employees all support inferences of animus and discriminatory motivation”). If the
General Counsel succeeds in making an initial showing of discrimination, then the respondent
has the opportunity to demonstrate, by a preponderance of the evidence, that it would have taken 20
the adverse employment action against the employee even in the absence of the employee’s
protected concerted activities. Id. at 12; see also Hoodview Vending Co., 359 NLRB No. 36, slip
op. at 5 (2012).
DISCUSSION AND ANALYSIS25
A. Did Respondent Violate the Act by Changing or Limiting Schmidt’s
Work Assignments and Opportunities?
The General Counsel alleges that from mid-December 2012 to April 2013, Respondent 30
violated the Act by changing, limiting and/or restricting Schmidt’s work assignments and work
opportunities in retaliation for Schmidt’s decision to give an affidavit and testify in J.L.’s
unemployment benefits case. In support of this allegation, the General Counsel maintained that
Agnew: (a) prohibited Schmidt from having direct contact with nuclear desk clients (except for
Constellation Energy); (b) assigned O.C., D.Da. and Dulay to the nuclear desk and assigned 35
them job orders that paid higher commissions and/or were easy to fill; and (c) hid a job order
from Schmidt and assigned the order to D.Da.
Applying the standard for assessing whether adverse employment actions violate Section
8(a)(1) of the Act, I find that the General Counsel presented sufficient evidence to make an 40
initial showing of discrimination. Schmidt engaged in protected concerted activity in mid-
December 2012 when he and S.C. jointly decided to give affidavits in support of J.L.’s
unemployment benefits case, and again on January 29, 2013 when Schmidt and S.C. testified in
J.L.’s case.31 There is also no dispute that Respondent was aware of Schmidt’s protected

31 I do not accept Respondent’s argument that Schmidt’s decision to testify was not “concerted”
activity because the testimony was solely for J.L.’s benefit. (See R. Posttrial Br. at 35.) The evidentiary
JD–10-14
27
activities, since Respondent received a copy of Schmidt’s affidavit on December 19, 2012, and
Agnew was present when Schmidt testified on January 29, 2013.32 (FOF, Section II (G), (I).) As
for its initial showing that Respondent acted with animus and discriminatory motivation, the
General Counsel presented evidence that the timing of the adverse employment actions was
suspicious since the adverse employment actions occurred within weeks of Schmidt’s protected 5
activity.
I note that I am not persuaded by other evidence that the General Counsel presented to
demonstrate animus. First, I do not find that Agnew engaged in conduct on December 19, 2012,
that demonstrated animus. The evidentiary record establishes that after Agnew received 10
Schmidt’s and S.C.’s affidavits on December 19, Agnew stormed out of the office. There is no
evidence, however, that Agnew directed his outburst at Schmidt. Later in the day, when Agnew
and Schmidt spoke about J.L.’s case (after Agnew had acknowledged in an email chat that
Schmidt’s and S.C.’s affidavits hurt Respondent in the unemployment benefits case against J.L.),
Agnew commented that “a couple of things can happen from this: we can let this pull us apart;15
we can grow from this; or we can part ways.” (FOF, Section II(G).) I do not find that comment
to be evidence of animus – instead, in context, Agnew’s remarks simply expressed the sentiment
that while it was a difficult situation for Schmidt and Agnew to be on opposite sides of J.L.’s
case, Schmidt and Agnew could choose what course their working relationship would take going
forward. 20
Second, I do not find that Agnew’s remarks to Schmidt on February 11, 2013,
demonstrate animus. In that conversation, Schmidt was the one who asserted that Agnew was
punishing him for testifying in J.L.’s case by assigning “better” job orders to other employees.
Through that assertion, Schmidt invited Agnew to engage on the issue, and Agnew obliged by 25
essentially telling Schmidt that J.L.’s case left everyone involved with bruised feelings.33 (FOF,
Section II(J)(2).) Given those facts, the General Counsel did not show that Agnew’s February 11
remarks demonstrated discriminatory animus – instead, Agnew’s remarks indicate that Agnew
was frustrated with Schmidt because he believed Schmidt was focused only on how he (Schmidt)
felt after testifying in J.L.’s case, without regard to how the case may have affected others who 30
were involved.

record shows that S.C. and Schmidt jointly decided to testify at least in part because they wished to deter
Respondent from unfairly contesting unemployment benefits claims in future cases that might be brought
by Respondent’s employees. (FOF Section II(E)(2).) The Board has recognized that collective action of
this nature constitutes protected concerted activity. Supreme Optical Co., 235 NLRB 1432, 1432–1433
(1978) (finding that five employees engaged in protected concerted activity when they attended an
unemployment benefits hearing to testify in support of a discharged employee), enfd. 628 F.2d 1262 (6th
Cir. 1980), cert. denied 451 U.S. 937 (1981)).
32 Although Schmidt decided in October 2012 that he would participate in J.L.’s case, there is no
evidence that Respondent learned of Schmidt’s protected activities until December 19, 2012, when
Respondent received a copy of Schmidt’s affidavit. (FOF, Section II(E)(2), G.)
33 Schmidt made a similar assertion on April 10, when Schmidt advised Agnew that he (Schmidt)
forgave Agnew for punishing him because Schmidt testified in J.L.’s case. Agnew disregarded Schmidt’s
remark on that occasion and turned the discussion to another topic (regarding whether Schmidt followed
Agnew’s instructions when he created a call plan that included candidates from sources that Agnew
assigned to another employee). (FOF, Section II(O)(3).)
JD–10-14
28
In any event, since the General Counsel made an initial showing of discrimination (albeit
a tenuous one), I turn to the question of whether Respondent demonstrated, by a preponderance
of the evidence, that it would have made changes to the nuclear desk (and by extension, changes
to Schmidt’s work assignments and opportunities) even in the absence of Schmidt’s protected
concerted activities. I find that Respondent carried its burden on this issue. The evidentiary 5
record shows that in October 2012, Agnew was concerned about Schmidt’s performance, and
was suspicious that Schmidt would leave the company to run a recruiting business with J.L.
Agnew also noted that there was some confusion at that time about whether he told Schmidt to
limit his direct client contact calls to Constellation Energy. All of those issues, as well as
Agnew’s belief that he should address the problems by making changes to the nuclear desk, were 10
therefore on the table in October 2012, months before Agnew learned that Schmidt would be a
witness in J.L.’s unemployment benefits case. Thus, when Agnew proceeded to make changes to
the nuclear desk (by assigning O.C., and later Dulay and D.Da. to work on nuclear desk projects,
and by having Schmidt focus his client contact on Constellation Energy), he did not make those
changes based on Schmidt’s protected activities, but rather made the changes based on concerns 15
that he (Agnew) had about Schmidt before Schmidt engaged in protected activity.34
Accordingly, I find that Respondent would have changed Schmidt’s work assignments and
opportunities even in the absence of Schmidt’s protected activities, and I recommend that the
allegations in paragraphs IV(e)–(f) of the complaint be dismissed.
20
B. Did Respondent Violate the Act by Instructing Coworkers not to Communicate with or
Share Work-Related Information with Schmidt?
The General Counsel also alleges that from mid–December 2012 and April 2013,
Respondent unlawfully instructed employees not to communicate with Schmidt, and not to share 25
work-related information with Schmidt. Specifically, the General Counsel contends that Agnew:
told Schmidt that he did not need to attend various staff meetings; used a hand gesture to tell
Dulay to stop communicating with Schmidt; and generally told Dulay not to talk with Schmidt
about Dulay’s work assignments.
30
The General Counsel’s arguments fall short because the evidentiary record does not show
that Respondent made statements or engaged in conduct that had a reasonable tendency to
interfere with, restrain or coerce employees in the exercise of their Section 7 rights. As a
preliminary matter, I do not find that Respondent unreasonably excluded Schmidt from staff
meetings. To the contrary, the evidentiary record shows that Respondent included Schmidt (and 35

34 I also note that the General Counsel did not prove that certain alleged changes actually occurred.
For example, although Schmidt claimed that Agnew was giving him work assignments that were lower
level or difficult to fill, the evidentiary record does not support that allegation. In fact, when making a
round of assignments to O.C. and Schmidt on January 14, 2013, Agnew emphasized that Schmidt’s
assignments were at a “higher level” to reassure Schmidt that he was not being marginalized on the
nuclear desk. (FOF, Section II(H)(2).) Similarly, although Schmidt believed that Agnew “hid” a job
order from him by not including it on a list of jobs, the evidentiary record does not show that Agnew
intentionally omitted the job order from the list, or that the omission was intended to harm Schmidt. To
the contrary, the job order was duly listed in Respondent’s computer database (where Schmidt found it),
and in any event, there is no evidence that Schmidt was entitled to be informed about job order
assignments to other employees (such as this one, which Agnew assigned to D.Da.). (FOF, Section
II(M).)
JD–10-14
29
other employees) in assorted scheduled and impromptu meetings on an as-needed basis, just as
Respondent did before Schmidt gave his affidavit and testified in J.L.’s unemployment benefits
case. (FOF, Section II(H)(3).)
As for the General Counsel’s assertion that Respondent instructed employees not to 5
communicate with or share work-related information with Schmidt, the General Counsel relies
on Dulay’s testimony, which established that Agnew directed Dulay not to speak with Schmidt
about Dulay’s work projects. As Dulay explained, Agnew communicated that instruction when
Agnew and Dulay met at the office on various occasions, and also when Agnew used a hand
gesture (in Schmidt’s presence) to signal to Dulay that he should stop talking to Schmidt about a 10
work assignment. (FOF, Section II(M).) That evidence falls short of establishing that
Respondent violated Section 8(a)(1) of the Act. Based on Dulay’s testimony, Agnew’s
instruction not to speak to Schmidt was quite narrow, insofar as Agnew only told Dulay to
refrain from speaking with Schmidt about Dulay’s work projects. Dulay therefore remained free
to speak to Schmidt about a variety of other matters, including a wide range of topics that would 15
be protected by the Act (such as working conditions or terms and conditions of employment).
The hand gesture that Agnew made to Dulay must be viewed in this context – essentially, as a
reminder to Dulay that he should not speak to Schmidt about his (Dulay’s) work assignments,
and not (as the General Counsel alleges) as some larger directive to refrain from communicating
to Schmidt altogether. Since Agnew’s directives to Dulay regarding speaking to Schmidt were 20
specific, narrow and not related to matters that implicate Section 7 rights, I do not find that
Agnew’s directives had a reasonable tendency to interfere with, restrain or coerce employees in
exercising their rights under the Act,35 and I recommend that the allegations in paragraphs IV(c)–
(d) of the complaint be dismissed.
25
C. Did Respondent Violate the Act when it Terminated Schmidt?
Finally, the General Counsel alleges that Respondent unlawfully terminated Schmidt for
discriminatory reasons on April 17, 2013. The General Counsel’s allegation regarding Schmidt’s
termination is covered by the legal standard that addresses whether an adverse employment 30
action violates Section 8(a)(1) of the Act.
As I noted when analyzing the General Counsel’s claims regarding the changes to
Schmidt’s work assignments and opportunities, the General Counsel presented sufficient
evidence to make an initial showing that Respondent terminated Schmidt for discriminatory35
reasons. Schmidt engaged in protected activity when he participated (along with employee S.C.)

35 I would reach the same result even if I considered Agnew’s motive for telling Dulay not to speak
to Schmidt about Dulay’s work assignments. Agnew credibly explained that he remained concerned that
Schmidt would leave the company and join J.L. in running their own recruiting service. Because of that
concern, Agnew wished to avoid giving Schmidt information related to recruiting projects that were not
assigned to Schmidt. Agnew’s motive in instructing Dulay not to talk to Schmidt about work projects
was therefore unrelated to Schmidt’s protected activities.
In this connection, I note that I am not persuaded by the General Counsel’s argument that Respondent
did not become concerned about Schmidt joining up with J.L. until after Schmidt gave an affidavit and
testified in J.L.’s case. (See G.C. Posttrial Br. at 13–14.) To the contrary, Agnew began taking steps in
October 2012 (if not sooner) to address his fear that Schmidt might leave the company to join J.L.,
months before Schmidt gave his affidavit and testified. (FOF, Section II(F).)
JD–10-14
30
in J.L.’s unemployment benefits case, and Respondent was aware of Schmidt’s protected
activities since it received a copy of Schmidt’s affidavit on December 19, 2012, and was present
when Schmidt testified on January 29, 2013. Further, the General Counsel made an initial
showing of discriminatory animus by presenting evidence that: Agnew gave partly dubious
reasons at trial when he tried to explain why Respondent initially decided to remove Schmidt’s 5
(and essentially, only Schmidt’s) remote access privileges in late March 2013 (see FOF, Section
II(O)(2)); and Respondent terminated Schmidt only two-and-a-half months after Schmidt
testified (suspicious timing).36
I also find, however, that Respondent demonstrated, by a preponderance of the evidence, 10
that it would have terminated Schmidt even in the absence of Schmidt’s protected concerted
activities. Agnew explained that he decided to terminate Schmidt because of poor performance,
poor attendance, and poor attitude. The evidentiary record supports each of those explanations.
On the issue of performance, there is no dispute that Schmidt initially performed quite 15
well as a recruiter, as he made several placements in early and mid–2012 and laid the foundation
for earning recognition as a “peak performer.” However, Schmidt was not able to sustain such a
high level of performance, as his placement numbers declined despite being the primary person
on the nuclear desk in fall 2012 when Agnew had to direct some of his attention to the
manufacturing desk due to J.L.’s departure from the company. Not surprisingly, Agnew became 20
concerned in fall 2012 (before learning of Schmidt’s protected activities) that Schmidt was in a
slump, and began contemplating bringing corporate personnel in to work with Schmidt, and
assigning other employees to the nuclear desk. (FOF, Section II(C), (D)(3), (F).) Schmidt
continued to have mediocre placement results in 2013, such that his production was matched by
O.C. (who was brand new to the nuclear desk). (FOF, Section II(Q)(3).)25
Turning to Respondent’s concerns about Schmidt’s attitude, the evidentiary record shows
that in early fall 2012 (shortly after J.L. left the company), Agnew formed the impression that
Schmidt developed a negative attitude, and that Schmidt’s poor attitude was affecting Schmidt’s
energy level and efforts with teamwork. Schmidt agreed that things were uncomfortable in the 30
office after J.L. departed. (FOF, Section II(D)(3), (F).) In the months that followed, various
incidents reinforced Agnew’s perception of Schmidt’s attitude, including (but not limited to):
Schmidt’s ongoing problems with absenteeism; offhand remarks that Schmidt made that
suggested he was not happy being at the office; and incidents where Schmidt handled candidates
and job orders in a manner that made Agnew believe Schmidt was insubordinate and looking out 35
for his own interests. (FOF, Section II(H)(2), (K), (N), (O)(1), (O)(3).)

36 As previously noted, I do not find that Agnew’s remarks to Schmidt on December 19, 2012,
February 11 and April 10, 2013, demonstrate discriminatory animus. (See Discussion and Analysis,
Section A.) I also do not find discriminatory animus based on Agnew’s April 17, 2013 statement that he
was discharging Schmidt in part because Agnew did not think that they could “get past what had
happened.” (See FOF, Section II(P).) Agnew’s April 17 statement is ambiguous at best, since his
reference to “what had happened” could (among other possibilities) refer to the mutual suspicion that
developed after J.L. left the company (a lawful rationale for discharging Schmidt), or Schmidt’s protected
activities (an unlawful rationale). The General Counsel did not present sufficient evidence to resolve this
ambiguity in its favor.
JD–10-14
31
And, starting in fall 2012, Agnew became concerned about Schmidt’s attendance and
daily readiness for work, prompting Agnew to raise those concerns in a November 2012 meeting
with Schmidt. As he had done with other employees in the past, Agnew initially tolerated
Schmidt missing work in 2013 (and simply charged Schmidt vacation time for the hours/days of
work that he missed).37 However, by March 2013, Agnew deemed it necessary to remind all 5
employees of Respondent’s attendance policy, and also decided to notify Schmidt that he would
be placed on a performance improvement plan because of his poor attendance (and poor
performance).38 Despite that warning, Schmidt overslept and arrived late to work on two
additional occasions (March 27 and April 16) before Respondent terminated him. (FOF, Section
II(F), H(4), (J)(3), (K), (N), (O)(1), (P).) 10
In sum, Respondent proffered ample support for its decision to terminate Schmidt for
poor performance, attitude and attendance,39 and also demonstrated that it was concerned about
those issues before it learned that Schmidt engaged in protected concerted activity. I therefore
find that Respondent carried its burden of showing that it would have terminated Schmidt even 15
in the absence of Schmidt’s protected activities, and I recommend that the allegation in
complaint paragraph IV(g) be dismissed.
CONCLUSION OF LAW
20
The General Counsel has failed to prove by a preponderance of the evidence that
Respondent violated Section 8(a)(1) of the Act as alleged in the complaint.

37 For example, Respondent took a similar approach with former employee J.J. Initially, Respondent
tried to work with J.J. on attendance issues, as Respondent permitted J.J. to use vacation time to take
Fridays off. When J.J.’s absenteeism worsened due to medical problems, however, Respondent decided
to terminate J.J.’s employment. (FOF, Section II(Q)(1).)
38 The General Counsel makes much of the fact that on March 1, 2013, Respondent added language
to the attendance section of its employee handbook that warned employees that they could be terminated
for repeated or excessive absences or tardy arrivals (instead of being placed on a performance
improvement plan, which could lead to termination if not completed successfully). I do not see that
“policy change” as probative here, since there is no dispute that, consistent with both the original and
revised attendance policy, Respondent told Schmidt in mid-March 2013 that he would be placed on a
performance improvement plan to address his problems with attendance.
On a related point, I note that I considered the fact that when Respondent placed Schmidt on a
performance improvement plan, Respondent did not define Schmidt’s expected performance in writing, or
have Schmidt agree to those performance expectations. (See FOF Section II(K) (describing the
performance improvement plan process).) Respondent’s failure to take those steps does not cast doubt on
the validity of the performance improvement plan in this case, particularly where there is no dispute that
Respondent notified Schmidt (and Schmidt understood) that he needed to improve his attendance. (See
FOF Section II(K), (N), (O)(1).)
39 I note that I considered the disparate treatment evidence in the record, and do not find that any of
the former employees that the parties identified were comparable to Schmidt because none of those
employees were discharged for a combination of deficiencies that included performance, absenteeism and
poor attitude. (See FOF, Section II(Q).) I therefore do not find any evidence that Respondent treated
Schmidt more harshly than it treated other employees who engaged in similar misconduct.
JD–10-14
32
On these findings of fact, conclusion of law and on the entire record, I issue the following
recommended40
5
ORDER
The complaint is dismissed.
Dated, Washington, D.C. February 26, 201410
_______________________15
GEOFFREY CARTER
Administrative Law Judge

40 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.