The TM Group, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 1, 2011

07-CA-052730 (N.L.R.B. Apr. 1, 2011)

JD–20–11
Farmington Hills, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
THE TM GROUP, INC.
and Case 7–CA–52730
KIMBERLY GROVER, an Individual
Patricia A. Fedewa, Esq. and Darlene Haas
Awada Esq., for the General Counsel.
Simcha Shapiro, Esq., of Farmington Hills,
Michigan, for the Respondent.
Kimberly Grover, Charging Party, Pro Se.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This case was heard by me on
November 1 and 2, 2010, in Detroit, Michigan, pursuant to an original charge filed by Charging
Party Kimberly Grover on February 5, 2010, against The TM Group, Inc. (the Respondent); on
February 19, 2010, Grover filed an amended charge against the Respondent; and on March 17,
2010, Grover filed a second amended charge against the Respondent.
On September 21, 2010, the Regional Director for Region 7 of the National Labor
Relations Board (the Board) issued a complaint against the Respondent alleging that the
Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act). On October
1, 2010, the Respondent timely filed its answer to the complaint, essentially denying the
commission of any unfair labor practices and asserting certain affirmative defenses.
At the hearing, the General Counsel proposed an amendment to the complaint as
follows:
On about August 24, 2009, Respondent through its agent Judy Thomas, discouraged
employees from talking to each other about wages, hours, and terms and conditions of
employment.
Respondent engaged in the conduct described above to discourage employees from
engaging in the activities described in paragraph six of the complaint and other protected
concerted activities.
By the conduct described above, Respondent has been interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.1

1 This amendment is contained in GC Exh. 6., par. 7 of the complaint was amended to
Continued
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It should be noted that the proposed amendment was the subject of a pretrial conference
between me and the parties and the subject matter of the proposed amendment is closely
related to the subject matter of the original complaint. Since the Respondent suffered no unfair
surprise by the proposed amendment and, in fact, did not oppose the amendment and since the
amendment was closely related to the allegations in the complaint, I allowed the amendment
and evidence was presented pursuant thereto.
At the hearing, the Respondent was represented by counsel; the Charging Party
appeared pro se. However, all parties were afforded a full opportunity to be heard, examine and
cross-examine witnesses, and introduce evidence. On the entire record, including my
observation of the demeanor of the witnesses, and after considering the briefs2 filed by the
General Counsel and the Respondent, I make the following
Findings of Fact
I. Jurisdiction
The Respondent admits that at all material times it is a corporation with an office and
facility at 34705 West Twelve Mile Road, Suite 371, Farmington Hills, Michigan, and has been
engaged in the installation, support, and development of financial and business productivity of
Microsoft software. The Respondent also admits that during calendar year 2009 in conducting
its business operations, it derived gross revenues in excess of $1,000,000 and purchased and
received at its Farmington Hills facility goods valued in excess of $50,000 directly from points
located outside the State of Michigan.
The Respondent admits, and I would find and conclude, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. Background
The TM Group, as noted, sells accounting and business software and provides
consulting services in support of the software.
The management of the Company consists of essentially four individuals: Judy Thomas,
president and chief financial officer; John Scott Thomas (known as Scott, and Judy Thomas’
spouse), chief executive officer; Mark Thomas, chief information officer, vice president (and
Scott’s brother); and Ken Jacobsen, head of marketing. These four persons conducted TM’s
business operations as its “management team” and met regularly to address the operations,
personnel, and other related issues of the business. The Respondent admits that each member
of its management team is either a supervisor and/or agent within the meaning of Section 2(11)
and/or (13) of the Act.3
_________________________
include pars. 7(a) and (b); 7(b) incorporated the proposed amendment and was in turn
incorporated by reference in pars. 8 and 9 of the complaint.
2 Charging Party Grover did not file a brief; Grover was given full opportunity to testify and
otherwise participate in the proceeding but elected to defer to the General Counsel’s
prosecution of the case.
3 Based on the credible testimony of record, I would find and conclude that Judy, Scott, and
Mark Thomas, as well as Jacobsen, are supervisors and/or agents within the meaning of the
Act. Jacobsen did not testify at the hearing.
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During the times material to this litigation, the Respondent employed about 30
employees consisting of an administrative staff, consultants, and sales and marketing
personnel. The administrative employees were at will and could be subject to termination at any
time and without cause.
Kimberly Grover was hired by the Respondent on September 28, 2008, as an assistant
controller whose duties included handling the Company’s payroll, accounts payable, accounts
receivable, collections, benefits administration, bank accounts reconciliation, daily banking, and
working with the ledger; the assistant controller was a part of the Company’s administrative
staff.
At the time of her hiring, Grover was informed both in writing and verbally during the in-
person interview with Judy and Mark Thomas that as an assistant controller she would be and
was subject to the Company’s confidentiality policies which applied not only to business
competitors but also certain information about the Company’s employees, to include
bankruptcies, garnishments, and other strictly employee matters.4
Beginning sometime in 2008, but to a certainty by the end of December 2009, the
Respondent experienced the first of its economic problems in the loss of a major client. Later in
March of 2009, another major client reneged on its contract responsibilities to pay billings for
work performed by the Respondent. The loss of these major clients caused a serious cash flow
problem for the Respondent necessitating an examination by the management team of areas of
the Company’s operations that could be subject to cost-cutting. Inasmuch as about 70 percent
of the Company’s operating costs were for labor or personnel, beginning around May and
through June and July 2009, the Respondent considered several alternate plans to reduce

4 See GC Exh. 3, a copy of the Respondent’s offer letter to Grover dated September 23,
2008. This letter contains a section entitled “Confidential information" that states as follows at
p. 2:
Confidential information. You will, during the course of service [with TM Group] come in
contract [sic] with certain confidential information, including, but not limited to, customer lists
and names, customers’ records, files pertaining to customers and the specific needs and
wants of customers, financial data and information pertaining to customers and the business
of customers, special products developed by the Corporation to service the needs of
customers, The TM Group’s billing practices and procedures, special designs of The TM
Group's products, as well as the methods used by The TM Group to manufacture its
products, and other confidential information and/or trade secrets of The TM Group. The
term “confidential information and trade secrets,” as used in this paragraph shall be
interpreted in its broadest possible context to include all confidential information, trade
secrets and other information which you may learn, or which may be disclosed to you in
connection with and through your employment with The TM Group. You agree not to
disclose this information to third parties, nor to use the information for your benefit or for
the benefit of any third party. You recognize and agree that all confidential information,
business records, business files, and business documents are the sole and separate
property of The TM Group, and shall not be removed, duplicated or used in any manner by
you for your benefit or for the benefit of any third party.
Grover was told by Mark Thomas in her in-person interview that the Company also expected
her to maintain the confidentiality of information about fellow employees and not to share such
information with anyone other than the three persons—Judy, John Scott, and Mark Thomas.
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personnel expenses (but also other expenses) to include layoffs, reduced hours, and outright
termination of employees.
On July 16, 2009, the three principal owners—Judy, John Scott, and Mark Thomas, met
with Grover and three other members of the administrative staff and informed each person that
because of the Company’s financial condition each would have to take 1 day (8 hours) off per
week, resulting in a reduction of 16 hours in the bimonthly (80 hours) pay period. The
administrative employees were told not to discuss their reduction in hours until management
had the opportunity to inform the consultant and sales employees of the reduction. Grover and
other administrative employees were upset and disturbed over the reduction in their hours.
On August 24, 2009, Grover was terminated by the Respondent. Also, on August 24,
Judy Thomas sent the following email to all of TM’s employees:
We have parted ways with Ms. Kim Grover as of today’s date. We evaluated this both
from the standpoint of fiscal savings as well as the fact that she had reportedly shared
some of her thoughts and concerns with members of our staff, and in her position of
confidentiality, that is not acceptable. I have and [sic] seen and talked with a great many
of you; some had heard these rumors and some have not. The key factor is that they
are rumors, and I have never been one to shy away from talking with anyone about
issues on their minds. If anything is concerning you, please talk with a Management
employee not each other. This rumor mill really needs to stop in its tracks; the dramatics
need to cease. It’s not good for employee morale and it’s certainly not good to get out to
clients and constituents.
Business definitely is picking up. The level of activity around new and existing
opportunities is way up; we’re in front of quite a few opportunities that could be very
short term wins. Clients who had done nothing all summer (and spring for that matter)
are calling and wanting to get started again. There are very positive signs. The one
thing I would ask of all of you is to be patient with each other and with our Management
team. There have been quite a few ups and downs this year, not only here but
everywhere, and it’s wearing on everyone’s nerves, but please let’s try to ratchet down
the frustration level. If there is anything to report to you, the Management will report it.
No one else is in our Management meetings, as it should be, so if you are listening to
and hearing rumors, I would again emphasize that’s all they are is rumors unless you
hear something from Mark, Scott, me or Ken . . . period.
Let’s try to remember that we are a team. If you don’t have work, we have clients you
can start calling. If you have too much work, try sharing with someone else on the team
who may not have as full a schedule or maybe needs to learn something more than they
know today.
We thank you for your work, your loyalty and your care of our clients. They all depend
on you, as do we.5
By letter dated August 24, 2009, Grover emailed Judy and Mark Thomas and, inter alia,
denied ever giving confidential information to anyone.6

5 See GC Exh. 2. The underscored language in the email as set out above appeared in the
original document.
6 See GC Exh. 4, a copy of Grover’s letter in which she also requested pay stubs for
Continued
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A. The General Counsel’s Witnesses
Kimberly Grover testified that she was hired on September 28, 2008, as assistant
controller for TM, but later discovered that she was carried on the company books as a
bookkeeper. Grover stated that her duties included handling practically anything involving
accounting; e.g., accounts payable and receivable, payroll, bank reconciliation, as well as
keeping the Company’s general ledger. Grover noted that all payments she made on behalf of
the Company were preauthorized by Judy, Mark, and Scott Thomas, the owners of the
Company; she did not sign any checks.
Grover acknowledged signing the offer letter she was presented with at the time of her
hire, noting that it was similar to other such letters she has filed in employee files and that the
confidentiality language contained in her letter was typical of all such letters provided to new
employees.
Grover recalled that at the time of her interview with Judy and Mark Thomas, she was
told that there were three owners and she was free to discuss anything with them, but that any
information deemed confidential was not to be shared with other employees. Grover stated that
Judy and Mark were not specific in terms of what was confidential.
According to Grover, in her view Judy did not seem to be overly concerned about
keeping the affairs of the Company confidential and she seemed in fact to be somewhat
dismissive or unmindful of matters Grover felt should not have been disclosed to employees.
Grover recalled that within the first few months of her employment, she and Judy were
working in the conference room discussing the Company’s tax liabilities and money owed a
vendor when Mark stepped in and suggested that they close the door for the sake of privacy.
According to Grover, Judy dismissively said everybody knows about this, she was not worried
about it.
Grover related how at times when she and Judy were discussing payments to vendors,
Judy would tell her audibly through the office doorways whom to pay and whom not to pay.
Grover also stated that on various occasions she would speak to Judy about tax or 401
payments in her office and Judy would address these matters in the presence of managers and
employees who happened to be there. According to Grover, these types of informal discussions
were fairly regular, occurring every week or every other week when items such as taxes and
other payables were due.
Grover stated that she thought Judy’s behavior somewhat odd because she would make
these comments about the Company’s affairs in areas where employees came and went—the
conference room was near the kitchen—and could overhear any comments or discussions
regarding finances of the Company.
Grover related that when she hired on, she believed the Company was doing well.
However, Grover stated that once on board, she discovered fairly early on that the Company
_________________________
calendar 2009, that she would require for an application for unemployment benefits, and Cobra
(insurance information). Grover also asked the Company only to verify her employment there
and not mention to any prospective employer that she was terminated from any breach of the
confidentiality policy.
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was not doing well financially and, in fact, was in financial difficulty during the entire time she
was employed. Grover recalled that on her first day on the job, administrative employees Kim
Keller and Lisa Woods informed her during a smoke break that the bills were not being paid,
that the 401(k) contributions were not getting paid, and they were concerned about the
Company then.
Grover stated that while she was employed, the Company’s payables were 60–90 days
past due; taxes were not paid, and things got progressively worse during 2009, what with
unpaid vendors calling in and past due tax notices coming in the mail. Grover said that she
believed that some employees knew or should have known about the Company’s financial
predicament; for instance, employee Shannon Erisman opened the mail and as receptionist
answered the phones; also, the marketing director for the Company would on occasion ask her
(Grover) when vendors who had been calling her could be paid. Grover also noted that she
also would send to Judy, Mark, and Scott, Ken Jacobson, and Kim Keller daily bank sheets
which showed cash received that day, what was paid, and a reconciliation of the accounts to
determine cash flow.
In any case, Grover stated that in spite of the Company’s financial issues around the first
of 2009, management continued to hire new employees,7 some of whom commanded high
salaries; expanded its leased office space; purchased furniture for the space; and purchased for
the 2009 baseball season tickets for the Detroit Tigers Baseball Team. Grover also noted that
the managers went out to lunch everyday and charged the expenses to the company credit card
or bank account.
According to Grover, there also was the matter of Scott’s regularly taking advances on
his salary during these times of financial difficulty. Grover said that as part of her duty to
reconcile the company checking account, she happened to learn of this, but Kim Keller also was
aware of Scott’s activities. According to Grover, Keller told her that she had a promissory note
from Scott in her desk drawer reflecting a prior loan that both Judy and Scott had incurred and
asked whether Scott had ever paid this loan.
Grover also stated that in addition to Keller, Shannon Erisman and the former controller
later transferred to a consultant’s job—Lynn Kozoro—expressed their concerns about Scott’s
advances when they saw him come in for more advances.
Grover said that the conversations about Scott with these employees usually took place
in her office after the employees observed Scott in her office. The employees would ask her
whether Scott was asking for money. Grover said on other occasions, conversations about
Scott took place during employee smoking breaks.
Grover stated that after a time the employees became aware that the Company had lost
large clients, and as a result some consultants were sitting at home with no work; according to
Grover, the employees were generally concerned about the welfare of the Company and the
issue was “abuzz” all of the time.
Grover stated that on July 16, 2009, she along with other administrative staffers Kim
Keller, Shannon Erisman, and Kathy McDonald were called to a meeting with Judy and Mark

7 Grover identified Shannon Erisman, receptionist, who was hired about a month after her;
Marcel Chabot, a software designer; and Jeff Majchurzek and Tammy Cowart, consultants also
hired after her.
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Thomas and Ken Jacobsen. According to Grover, Judy told them that in spite of the Company’s
attempts it was not doing well financially but that the Company did not want to lay off anyone.
So, after much thought, Judy said that she had decided to reduce their hours, that each of the
administrative workers would be required to take 1 day a week off during the biweekly pay
period for a reduction of 16 hours per pay period. According to Grover, Judy also said that
management would continue to find ways to cut expenses and realized that management could
not expect the same production from them. According to Grover, Judy advised them that they
were free to work out among ourselves what days we were going to take off and that
management recognized that on a given day there may be only one of us at work but that
management would be patient as the Company worked through the difficult times. Finally,
according to Grover, Judy told them not to discuss the matter with any other employees.
However, once we left the meeting, we were free to talk among ourselves, but not to anyone
else because management did not want to upset the consultants.
Grover stated that she spoke up at the meeting, saying that it was her hope that
management would look into other cost-cutting measures,8 and in response Judy asked her to
make up a list of such measures and submit it to her.
Grover recalled that McDonald also spoke up and told Judy that she was busy all of the
time and did not think she could do her job in a 4-day workweek.
Grover stated that she and Keller took the Friday after this meeting off and conversed
further about the meeting on the following Monday. As it happened, Judy had emailed them
complaining that they had both taken the previous Friday off, leaving the Company without
someone to handle the banking duties, and that henceforth they would have to submit a
schedule of the days each would be off. According to Grover, Keller raised another subject and
told her that she had spoken to all of the consultants—her husband also was a consultant—who
had called her over the weekend, upset and saying that the hours reduction plan was not the
right decision in view of the Company’s having hired two new consultants—Tammy Cowart and
Jeff Majchurzek in particular—who were not working on any projects. In Grover’s opinion, Keller
was very upset—shocked—about having her hours cut.
As this conversation continued, Grover said that she and Keller reasoned that if they
were to lose 1 day per week, they should not be available (for work duties) on those days; they
should shut off their cell phones and not check the company emails. Grover said that she and
Keller believed that management wanted the same amount of work from them and at the same
time was paying them less. Grover said she told Keller that she, in fact, knew that she (Keller)
continued to access her emails when on the off-day and ordered software. Grover said she
advised Keller that they were not going to get their hours restored if she continued to do that.
According to Grover, Keller agreed with her and said that if we were going to be off we should
truly be off duty and not work.9

8 Grover said that she told Judy then that certain amenities such as employer-provided
sodas, candy, and coffee, and idle consultants could be cut to reduce expenses.
9 Grover volunteered that in her opinion, Keller was always worried about her job security
with the Company and believed that Erisman was hired to replace her. According to Grover,
Keller would occasionally ask if she knew whether she was to be let go. Grover said that she
told Keller to simply do her job and do it well. However, Keller’s performance fell off and Grover
said she told her she was going to be let go according to Judy, who was going to replace her
with Erisman. Grover noted that Judy would say this when she argued with Keller.
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Grover recalled that Kathy McDonald10 was also very upset over the reduction in her
hours because her husband was then out of work, and hers was the only income for her family.
According to Grover, McDonald came to her and asked her if she had spoken to either of the
Thomases about cutting other expenses. Grover also recalled that Shannon Erisman11 was a
single mother and told her that she needed to have full-time employment. Grover also related a
time when Lisa Woods12 came to her office—as did the others—and informed her that she was
seriously considering a job offer with another company and asked her (Grover) whether her job
was secure enough to stay with the Company. Grover said she told Woods that she believed
that her position was secure because she had more work than most of the consultants, but that
she had to decide for herself whether to stay.
Grover recalled an occasion when a consultant, Perry Kountouriotis,13 came to her office
and closing the door related a conversation he had had with Judy. Grover noted that Keller
happened to be in the office at the time. According to Grover, Kountouriotis said that he was
concerned about the direction of the Company and did not agree with the hours’ reduction,
especially since there were consultants that he knew were not working, but still on the payroll;
Kountouriotis said he thought they should have been laid off before reducing the hours of other
employees.
Also according to Grover, Kountouriotis asked her if there were other areas that could be
cut, and had she spoken to Judy about reductions in other areas. Grover stated that she told
him that while she (Grover) could make suggestions, Judy was the owner and the ultimate
decision maker.
Then about a week after this discussion (around July 23), Grover said that Scott Thomas
asked for an advance against his salary. Grover stated that this upset her and she then
complained to him, telling him employees had just had their hours reduced, that she herself was
making $500 less per week and had to live on less and he could not even “make it” from
paycheck to paycheck, that he was (unjustifiably) taking money out of the Company and,
further, management had to seriously cut expenses. According to Grover, Scott said that he
understood her concerns and that if she needed a loan, she could have one. Grover said that
she told him she did not want a loan because she could not pay it back since she was making
less money.
Grover said that she took that occasion to again state her concerns about
management’s leasing additional office space, paying more rent and utilities, and still buying
sodas and candy for the employees while some employees were suffering. According to
Grover, Scott told her that she would have to speak to Judy about those matters and the
conversation ended.
Grover said that the employees wanted their hours restored and asked her whether she
had spoken to Judy about saving money through other cost reductions. Grover believed she
was consulted by them because they believed she as controller was in charge of the Company’s
finances. In any case, Grover said that she was concerned about Scott’s advances14 and, since

10 McDonald did not testify at the hearing.
11 Erisman did not testify at the hearing.
12 Woods did not testify at the hearing.
13 Kountouriotis testified at the hearing; his given name is Periklis.
14 Grover also stated that Scott was not current with outstanding loans with the Company
and was taking more than he could repay. Grover identified R. Exh. 1, a copy of an email she
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she was about to go on vacation, thought that it would be a good idea to give Mark the company
checkbook. However, before going to Mark, Grover said that she conferred with Keller who
concurred with her about Scott’s advances and had observed an entry on the general ledger
which removed Scott’s loans. According to Grover, Keller said that she was fearful for her job
were she (Keller) to speak with Mark.
Grover stated that she believed Mark had a right to know about Scott’s actions and later
told him that Scott was getting checks from her. According to Grover, Mark asked whether
Scott was repaying the account and she told him he was not and, in fact, he was taking more
than he could pay back. Grover said that Mark told her that he had looked into the accounting
system but could not ascertain what was going on and thanked her for the information. Mark
then asked her to prepare a spreadsheet of Scott’s activity.
Grover said that she told Mark that Judy had made entries in the books that wrote off
Scott’s loans and this was of concern to her because the Company was behind on its bank loan,
and she feared an audit that would disclose the write-off of Scott’s advances to office and
entertainment expenses that would not be approved by the bank. Grover said that she told
Mark that there were no receipts for these supposed expenses and this really worried her, but
that she thought that she would be fired over this matter. According to Grover, Mark told her not
to worry, that regrettably Judy and Scott were codependent on one another and that Scott had a
gambling problem and frequented go-go dance venues.15
Grover stated that it was her view that Mark was trying to explain why things were what
they were at the Company, but that she should not worry because he would take care of the
problem.
Grover stated that in this discussion with Mark, she also raised the employees’ concerns
about the reduction of hours and that the Company’s spending was not consistent with its
financial problems, and that the management lunches were a really “sticking point” with many
employees. However, according to Grover, Mark defended the lunches, saying that they
provided an opportunity for management to get out of the office and discuss various issues
related to the business. Mark stated that the lunches would not be discontinued.
Grover said that she also raised various issues of concern to her such as consultants
being carried on the payroll but not working on projects, the untimely payment of payroll taxes,
an impending bank audit, and untimely payment of the employees’ 401(k) contributions, all of
which she believed required cutting of expenses to be resolved.
Grover recalled that she went on vacation on August 15, and this conversation with Mark
occurred right before she left work; she was scheduled to return from vacation on August 24.
Directing herself to August 24, Grover said that she reported for work at about
8–8:30 a.m., her usual arrival time. Judy was already there as was Mark, and she met with
them in the conference room where Judy announced that she was to be let go. According to
Grover, Judy said [paraphrased]:
_________________________
had sent to Judy on July 1, 2009, dealing with Scott’s pay and showing that he had more money
advanced than paid back.
15 Scott Thomas did not testify at the hearing.
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You would not believe all the things I have heard about you this past week while you
were gone . . . you have been discussing wages with other employees, discussing the
condition of the company. You have told employees our company is not going to last
until the end of the year, that we are not paying our bills. You have just about ruined my
company.
According to Grover, Judy went on to say that she could not have her working there and
causing hysteria with all the employees.
Grover said that she responded, telling Judy that she (Grover) did not have to tell the
employees about what was going on—they already knew (about the Company’s financial
problems) when she was first hired, what with vendors calling and all.
According to Grover, Judy then accused her of discussing with the marketing director,
Andrew Dolan, that vendors were not getting paid. Grover responded that Dolan herself was
contracting with the vendors who were calling her for payment, and Dolan would in turn come to
Grover asking when they would be paid. Grover said that she only told Dolan that she would
speak to her (Judy) about the matter. Grover said that she told Judy that the tax notices came
in the mail and Keller, McDonald, or Erisman opened the mail, that everyone knew that the
Company had hired two new employees and one—Majchurzek—came from a company known
to be a high compensation employer and the expenses of the other—Tammy Cowart—were
excessive; the employees knew about this and came to her to discuss the matter; Grover said
that she never divulged any financial information about the two to the employees.
According to Grover, Judy then accused her of telling employees that the Company was
paying her mortgage. Grover said she flatly denied this, saying that first it was not true, and
there was no reason to say that in any case because it was not true. Grover said at that point
she turned to Mark and reproachfully told him that she knew that this would happen if she told
him about Scott’s advances.
According to Grover, Judy then denied that this was the reason she was being let go,
that she had made up her mind to fire her before she went on vacation but did not have time to
do so.
Grover said the meeting ended with Judy expressing sorrow over having to let her go
because of a pending (bank) audit, and telling her the Company would not oppose her
unemployment application. Grover said that Judy then walked her back to her office where her
personal items had already been packed up and she left the premises.
Grover acknowledged sending an email to Judy and Mark on August 14, and discussed
various matters associated with her mustering out and, more importantly, strongly denying
divulging any matters requiring confidential treatment.
Grover noted at the hearing that Judy never spoke to her about not being able to afford
to keep her on, and at the termination meeting, only mentioned her having breached the
confidentiality policy as grounds for discharging her.16

16 Grover noted that it was her belief that her complaints about Scott in the context of the
Company’s ongoing financial difficulties probably led to her discharge. I should note that Grover
made this response, over the General Counsel’s objection, in answer to my query as to her view
of what happened to her while employed at the Respondent. Grover’s opinion of why she was
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Periklis Kountouriotis testified that he is currently employed by the Respondent as a
solution architect and has been so employed for about 9-1/2 years; he reports to Judy Thomas
now, and did so in 2009 as well.
Kountouriotis stated that his job includes the management of projects, both in their
presale and implementation stages. Kountouriotis revealed that in 2009, the economy was not
good for the Company but he was aware of the loss of only one major client with whom they had
issues and that client discontinued paying its bills; TM was forced to take legal action against
the client. Kountouriotis volunteered that he was the project manager for this client whom he
did not identify by name. Kountouriotis noted that other employees knew about the difficulties
with and the ultimate loss of this client, stating that it was no secret because management
conducted biweekly meetings where such matters were discussed with the entire work force—
the administrative staff and consultants.
Along these lines, Kountouriotis stated that it was well known among the employees that
the Company was making cutbacks in the hours of the administrative employees,17 he believed
in May and June 2009; they were to be reduced to 32 hours per week. Kountouriotis also said
that the hours of some of the consultants were also reduced.
Kountouriotis acknowledged that he and Grover had a few conversations about the
employees’ concerns about the financial status of the Company, and specifically those
employees like Keller and Kozoro who were upset about their hours being cut. Regarding
Keller, Kountouriotis recalled that she did not discuss the financial status of the Company but
was upset about her hours and any discussion between him and her centered on that.
Kountouriotis said Keller never discussed Grover in the context of their discussions.
Kountouriotis stated that Keller never made any suggestions to him regarding employee work
and he could not recall Keller telling him that Grover had told her about things employees could
do to be better appreciated by management.
Regarding his conversations with Grover, Kountouriotis said that after the cutback in
hours, they discussed in her office where cuts could be had and what employees could be cut to
save money and, in fact, Grover had compiled a list of employees she thought could be laid off
to produce savings to include Majchurzak as the number one candidate, then Lynn Kozoro, Kiki,
and Doug Vanderwarker.
Kountouriotis stated that early on the Friday Grover was scheduled to begin her
vacation, he heard some things being said about the Company and decided that he wanted to
speak to Judy about the matter. So on that day, pursuant to his request, he met with Judy,
Scott, and Mark Thomas, and Kevin Alexander at a restaurant company management
frequented—Roosevelt’s.
At the meeting he told the gathered managers that he had spoken to a number of
employees, to include Lisa Woods, possibly Danielle Winslow, and Kevin Alexander, and was
told that Grover had been talking negatively about the Company. Kountouriotis said that Woods
told him that Grover told her that “we [employees] would come to work one day and the doors
would be closed, [we would have] no jobs,” and that the owners were paying other personal
_________________________
let go is in no way controlling on my decision in this matter.
17 Kountouriotis said the administrative employees included Kathy McDonald, Kim Keller,
Shannon (last name unknown), Kim Grover, Lynn Kozoro, and Kiki (last name unknown).
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bills, e.g., mortgages, cable, and utility, out of company funds. Kountouriotis said that he asked
Alexander and Winslow if they had heard these things from Grover and each confirmed that
he/she had heard that Grover had been talking to certain employees about the financial
condition of the Company and that specifically the owners were paying their personal bills from
the company till, and the doors were going to be shut down.
Kountouriotis also recalled that earlier, he had been told similar things by Keller who on
one occasion was crying in her office fearful of being fired. According to Kountouriotis, Keller
said that Grover told her that she was going to be fired.
Kountouriotis said that he told management that we have a cancer in the Company, that
the cancer was Grover.
According to Kountouriotis, he did all the talking, that Kevin Alexander did not say
anything, and Judy seemed to be surprised by his revelations about Grover.18
Kountouriotis said that Keller told him she was to be fired at least two times, but probably
more than that prior to that Friday meeting. Initially, Kountouriotis stated he could not recall
whether he had spoken to Judy about Keller’s job security prior to the restaurant meeting but,
once reminded that he had provided an affidavit, recalled that at some point he did ask Judy if
she was going to fire Keller and she said no. According to Kountouriotis, his concerns were for
the morale of the Company, the closing of its doors, and Keller being told she was to be fired.
Kountouriotis said that while he was aware that Grover had been released sometime in
late August 2009, he was not present on the day in question; he was informed by email by Judy
who he said customarily informed the employees that a person had been let go but never cited
reasons. According to Kountouriotis, Judy would merely say in the announced departures that
we (the Company) had parted ways.19
Kountouriotis noted that he and Grover had worked together prior to her coming to TM
and he, in fact—when she was employed there—taught her to do payroll and some accounting
with TM’s application. Kountouriotis said when TM lost the big client, he and she talked about
cost-cutting possibilities in her office and, in fact, the things he heard that she had said related
to cost-cutting and, in that sense, was consistent with the conversations he had with her prior to
the Friday restaurant meeting. Kountouriotis also stated that in his conversations with her,
Grover had not said anything about the Company’s closing.
Kimberly Keller testified that she currently is employed by TM and has been since 2003;
her title is client services administrator. Keller said that her duties in 2009 included answering
the telephones, retrieving the mail, invoicing, and other administrative tasks as needed. Keller
noted that she, along with Grover, Shannon Erisman, Lynn Kozoro, and Kathy McDonald,
comprised TM’s administrative staff.

18 Towards the end of his examination on direct by the General Counsel, Kountouriotis said
that at the meeting Grover was talking about the Company’s door closing, wages—specifically
those of Majchurzak—the owners’ paying their bills from company funds; and who to let go
based on Grover’s list.
19 Kountouriotis was shown his affidavit to the Board agent (dated April 23, 2010) in which
he averred that Judy would usually just say people were let go for financial reasons because
she did not like to cause conflict. (Tr. 122.) Kountouriotis agreed that he had provided that
statement.
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Keller stated that in 2009, the Company was financially “hurting” because it had lost a
big client, TUI, a matter that was widely known around the office.
According to Keller, she was aware—from the mail—that the Company faced some tax
issues in 2009, a problem that actually was of longstanding, at least as of 2003, when the IRS
agents actually came to the building. Keller recalled that there was a bank audit at the
Company in 2009, but could not recall that there was an issue surrounding this. As to the tax
problems, Keller said that this was probably discussed among the office employees who either
overheard management—the doors were open—or someone simply spoke about it. Keller also
stated that she certainly knew about the tax problems and that she and Grover discussed it.
Keller stated that the Company’s 401(k) retirement program payments were not always made
on time because funds were lacking; moreover, employees could go on line and look up their
pension accounts. Keller noted that Grover was responsible for keeping up with the Company’s
bank balances and created daily bank balance worksheets20 that she disseminated to Judy.
Keller said that she knew that both Judy and Scott took loans or advances on their
salaries because she wrote the checks, and in her view this was not a “secret.”21
Keller noted that Judy or Scott’s taking advances was not novel to 2009, and had been
happening since 2003. However, Keller could not recall telling Grover that there was a $5000
loan to Scott, but may have told her about some (other) loans because she and Grover did talk
about company expenditures.
Keller said that prior to July 2009, she was a salaried employee at TM, working
8:30 a.m.–5:30 p.m. Monday through Friday. However, in July 2009, Judy called a meeting with
the administrative staff—McDonald, Erisman, Grover, and herself. Ken Jacobsen and Mark
may have been in attendance, but she was not sure.
Keller recalled that the administrative staff was informed at the meeting in July that their
hours were being cut 2 days per pay period. Keller said that she was so upset that she cried.
Keller also recalled that right after the meeting she spoke with Grover about the cuts and that
she had daily discussions with her, sometimes quite a few times during the day about the cuts.
Keller said that in their conversations Grover talked about management’s use of the
company credit cards for lunches and dinners and coffee expenses and other things that could
be done to inspire management to rescind the cutback of hours.22 According to Keller, at the
time of the cutback in hours Grover suggested to her not to work extra time, to make sure she
took her lunch, to start her tour and end it when she was supposed to; Grover said that the
employees needed to show management we were important and should to be restored to full-

20 See GC Exh. 5, copies of bank balance worksheets covering the period June 30–July 1,
2009, that Grover prepared. Keller said that she received copies of these types of documents.
21 Keller was somewhat equivocal about the matter, saying she could have found out about
the advances from Grover, or even Judy herself. (Tr. 155.) She even volunteered that Mark
also knew of the advances.
22 Keller was asked by the General Counsel whether Grover made any suggestions to her
about what employees could do to inspire the Company to rescind the cutbacks. Keller’s
response was not altogether clear, but I construed her to be saying that the credit card
expenses could be cut back and that would “inspire” the Company to restore their hours. (Tr.
158–159.)
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time. Keller said that she believed that McDonald and Erisman were present when Grover
offered this advice. Keller said that for her part she tried to put Grover’s suggestions into
practice, but after only 2 days she reverted to her old ways of arriving early at 7:30 a.m., not
taking lunch, and working until she was not needed. Keller believed that she talked to
Kountouriotis about some of these matters and could have shared with him Grover’s advice to
her.
Keller volunteered that during their discussions from early on, around October or
November 2008 (perhaps 2009) when Erisman had been hired, Grover gave her the impression
that Judy intended to fire her, and that Grover mentioned this to her on many occasions that she
should watch her back. According to Keller, Grover’s admonitions were an ongoing thing for the
entire time (Grover was employed). Keller stated that she spoke to Scott and Judy as well
about Grover’s statements a few times, but this was before July 2009. Keller said that Judy told
her that the talk about firing her was untrue. However, Keller said that she trusted Grover so
she was unsure where she stood with management.
Keller stated she became aware of Grover’s discharge on Friday (August 24) in the
morning and actually observed Judy picking up Grover’s personal belongings. The General
Counsel showed Keller the August 24 email from Judy, but she said she was too upset to read
it, then and at the hearing; Keller acknowledged that the “Kim” in the list of employees was she.
Keller noted that no one from management ever asked her about anything Grover may
have shared with her, as best as she could recall. Keller, however, stated that she never
actually asked Grover to talk to management on her behalf about her hours.
B. The Respondent’s Witnesses
Judy Thomas testified at the hearing and stated that she made the decision to terminate
Grover in consultation with Scott Thomas, her husband, brother-in-law Mark Thomas, and Ken
Jacobsen, the Company’s director of sales and marketing.23
According to Judy, she made the decision to terminate Grover because of the
Company’s economic difficulties and its need to cut operating expenses drastically, to include
the administrative staff of which Grover was a part. Judy stated that it was her view that
Grover’s duties could be handled by other staff members. Judy unequivocally (under
examination by the General Counsel) testified that there were no other reasons to end her
employment. Judy acknowledged sending her employees an email covering in part Grover’s
termination on August 24, 2009, the day Grover was terminated. (Tr. 125.)
Judy also acknowledged that she attended the August 14 luncheon meeting and that
Kountouriotis expressed his concerns about Grover. Judy admitted that Kountouriotis told her
specifically that after the reductions in hours, Grover told him that administration and
management assistants should not work additional hours or put in additional hours or additional
effort, nor should they answer emails, so that management would see how much they were
needed and then restore them to full-time.

23 Judy Thomas has been referred to herein as Judy because her married name is identical
to the two other principals of the Respondent. John Scott Thomas has been referred to as
Scott. For the same reason as has Mark Thomas been referred to as Mark.
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Judy agreed that the meeting began at around 5:05 pm. on Friday, August 14, 2009, the
last day Grover was at work before she took her vacation.
Judy testified at length regarding the circumstances that she said ultimately led to
Grover’s termination.
Judy stated that she is the president of TM and also serves as its chief financial officer
(CIO) and secretary; and in her role as CFO she is responsible for the Company’s finances and,
in fact, handled the general ledger and payrolls. Two other administration members, Lynn
Kozoro and Kim Keller, were responsible for the bookkeeping chores prior to 2008.
Judy said that in 2008, she determined that a help desk employee was necessary to
assist a consultant and Kozoro was not satisfactorily handling bookkeeping, so she transferred
Kozoro to the help desk, which in turn created a bookkeeping vacancy.
According to Judy, she found out that Grover had been laid off by a client who asked
about possible employment for her with TM. Judy said that she and Mark interviewed Grover
and in the course of which she explained to Grover that the Company had recently worked out
an installment agreement with the Michigan tax authorities, that there was considerable bank
indebtedness currently on the books, that things were, nonetheless, improving in those areas
but she needed help in the office.
Judy recalled that during Grover’s interview Mark informed Grover of the need to
maintain confidentiality of company information, and that she reinforced his discussion. Once
Grover was hired, Judy said that she worked closely with her with regard to business matters.
Judy admitted that in the course of their dealings Grover informed her of her concerns about the
business, including taxes not being timely paid, the scheduling of payments for certain items,
and occasionally advising that certain matters required her more immediate attention.
According to Judy, she and Grover worked well enough with each other with no arguments, let
alone threats to fire her; Grover was a satisfactory employee.
As to the Company’s business activities, Judy stated that the Company signed a lease
for additional space on December 1, 2008, and moved in the space on January 17 or 18, 2009,
but Grover was not involved in this decision. Judy noted that Scott and she were not in
complete agreement about the move, but the old space was designed for 8 consultants but was
accommodating 16 and there were many complaints from the consultants, so the move to the
expanded space was made.
Judy said that TM had two major clients, Demmer and TUI. According to Judy, Deemer
brought in about $29,000 per month and TUI, a 2-year project, around $70,000 per month.
Regrettably, according to Judy, her Company lost both of these major clients in early to mid-
2009, and even had to sue TUI for $147,000 it owed as of March 2009. The immediate
consequence of these losses was a drastic hit on the Company’s cash flow—around a loss of
$100,000 monthly—and consultants with no work in what she described as the worse economy
in memory in Michigan. Judy said that the Company thereupon embarked on efforts to find
more work and also to explore areas within the Company to garner costs savings. Judy, noting
that 70 percent of the Company’s operating expenses were for personnel with the majority of
the consultants working on the TUI project, management was compelled to meet almost daily to
deal with financial issues.
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Judy recalled that the Company’s management team—Scott, Mark, Jacobsen, and
herself—examined the Company’s billable utilization rates24 for the consultants, phone
expenses, rent expense, and Scott’s leased vehicle costs. In response to the Company’s
predicament, management considering jettisoning the expanded suite space but actually
purchased the leased vehicle. Also, according to Judy, the Company finally resolved to find
more work projects but also to consider layoffs of employees.
Regarding layoffs, Judy stated that in May 2009, the Company considered laying off
Paul Shifren, a manager of a consulting team who received an annual salary in the $125,000–
$135,000 range; Kiki Hall, a member of the Solomon software team; a marketing manager,
Andre Dolan; and administrative employees Kim Keller and Kim Grover. However, Judy said
that at that time only Shifren was let go.
According to Judy, around the June–July 2009 time-frame, when TUI decided not to pay
its outstanding bills, the management team reviewed the utilization reports for the consultants
and considered additional layoffs. Towards this end, Judy said that she prepared financial data
spreadsheets25 on July 7 and 17, and August 5, 2009, that she and the management team used
to consider possible layoffs of employees. Judy stated that she wanted to avoid layoffs because
of the difficulty of finding persons possessed of the specific technical skills needed to do
consulting in the software field.
With that primary consideration in mind, Judy said that she included for possible layoffs
nonconsultants Kim Grover and Kiki Hall, along with aforementioned Paul Shifren and
consultants Tammy Cowart and Judson Smith. According to Judy, she did not act on this plan
on July 7 (R. Exh. 2(a)), although Shifren had been let go as of May, but was still entitled to his
last paycheck on July 7.
Judy stated that management decided to wait until the July 15 billing period before
acting on the July 7 spreadsheet. Judy recalled that before preparing the second (July 17)
spreadsheet, she and Jacobsen happened to lunch with a client also experiencing economic
challenges. According to Judy, the client suggested to them that reducing employees’ hours to
save money was superior to laying them off; in this way money could be saved but the work
force could remain essentially intact. Judy said that she presented this plan to the management
team which approved the plan. Judy noted that by this time Shifren was no longer employed
nor was Cowart, so the second spreadsheet (R. Exh. 2(b)) prepared on July 17 reflected the
savings to be realized by reducing the hours of Grover, Keller, Erisman, and McDonald, the
administrative staff; along with Dolan of marketing; two consultants in the Dyamics GP team;
two consultants on the Dyamics SL team; and one person from the CRM team. Judy noted that
while Grover’s hours were reduced to save her job as of July 17, she was still on the line to be
fired as of that date. Judy said that, nonetheless, she decided to retain her at that time.
Judy stated that on July 17, 2009, she conducted the first of several meetings to apprise
employees of the reduction in their hours with the administrative staff; Grover, Keller, Erisman,
McDonald, and possibly Dolan were called in and told of the reduction. According to Judy, she

24 Judy explained that a consultant is generally expected to bill a client for services provided
at an hourly rate of 60 percent of the 160 hours comprising a work month. According to Judy,
all consultants except three were expected to reach the billable utilization rate. However, as of
April 2009, Judy said that the consultants were billing at 30–40 percent of the utilization rate.
25 Judy identified R. Exhs. 2(a)–(c) as copies of the spreadsheets she prepared to discuss
possible layoffs during the period covering July 7 through August 5.
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told these employees that the economic conditions and the Company’s inability to achieve the
60-percent utilization rate necessitated drastic cost reductions among all of the company teams.
Judy said that she also told these employees that she (the Company) would prefer that they not
discuss the reduction with anyone until she had the opportunity to speak to the other employees
affected by the hours' reduction measure.
Judy volunteered that not only was she personally upset over the matter, but so was
Grover who queried whether there was some other way to cut costs other than cutting her
hours. Judy said that she asked the employees for cost-saving suggestions and they
responded with coffee and candy cuts, which would amount to savings of about $200 to $250
monthly.
Judy noted that following the reduction of hours, the Company’s cash flow position
improved for purposes of payroll but collections/receivables did not, so the management team
considered her August 5 version of the spreadsheet (R. Exh. 2(c)), the utilization reports, held
more meetings, and had more discussions of who would be next for layoff or termination.
According to Judy, Grover’s name again came up in these discussions and on August 10, she
made the decision to terminate her. Judy recalled that around August 10, she and Grover
discussed layoffs in general and that Grover asked her at the time whether she (Judy) planned
any more job cuts; and if she had so planned, to wait until she (Grover) returned from her
scheduled and paid-for vacation trip. Judy stated that she did not inform Grover at that time that
there were going to be any further layoffs. Judy volunteered that, in fact, this conversation took
place in the hallway of the office, was overheard by other employees, and taken as a kind of
joke. (Tr. 205.)
Noting that the August 5 spreadsheet included the same employees being considered
for layoff or termination, Judy stated that at the time the Company was not realizing the kind of
needed “effective” cash flow on the payroll side of the ledger. In addition, according to Judy,
she was doing most of Grover’s work coupled with her belief that Grover’s assignments could
be handled by other members of the administrative staff and still maintain internal efficiency.
Judy said that she planned to assume Grover’s payroll and general ledger duties and the other
administrative staff, McDonald and Keller, would take over payroll, the receivables and bank
account reconciliations at a cost “far less” than Grover’s rate of pay.
Judy stated that while her decision to fire Grover was made on August 10, she did not
inform her at that time because Grover was scheduled to go on a prepaid vacation and that she
had earned her company-paid vacation time.
Turning to August 14, Judy acknowledged meeting with Kountouriotis, Kevin Alexander,
Jacobsen, and Scott at the Roosevelt Restaurant, and at that meeting Kountouriotis told her
about things that Grover had said that affected her in an extreme way, leaving her mortified and
feeling betrayed. (Tr. 228.)
Judy explained that at about 4:45 p.m., she was asked to attend a meeting with two of
her senior consultants—Kountouriotis and Alexander—and they insisted that the meeting not be
held in the office.
According to Judy, Kountouriotis, a person not normally excitable or agitated, was clearly
upset that day, began the meeting by saying we have a cancer in the Company and that Grover
was the cancer, and to her he was very serious.
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Judy said that she asked him to explain and Kountouriotis told her that a number of
employees told him that in conversations with Grover about the financial condition of the
Company, Grover had said that managers were paying for their mortgage and utility bills from
company funds, that taxes and the 401(k) contributions were not being paid and, moreover, that
Grover had discussed other employees’ salaries. Judy said she asked Kountouriotis how he
knew this and he told her that he had spoken to the affected employees and in some instances
he had heard such things from Grover herself.
Judy stated that she met with Mark, Scott, and Jacobsen at the company offices on the
following Monday (August 17) to discuss an approach to deal with the Grover matter. Judy
noted that the managers had been told that employees were sending out resumes and were
going to quit because of the financial condition of the company so they decided to speak with
the employees who had directly heard what Grover had said; Judy said that she conducted the
interviews herself.26
Judy stated that she had decided to fire Grover the morning of August 14 (before the
meeting at the Roosevelt) and that she was to be notified of her decision that morning. But
because Grover was going on vacation, Judy said that she decided not to lay her off that day
and further she had no opportunity to discuss her decision with her. Judy acknowledged,
however, that she does not (ordinarily) discuss her termination decisions with employees prior
to letting them go because the decision had already been made. (Tr. 230.)
Turning to August 24, Judy said that she and Mark met with Grover at around 8:50 a.m.
Judy said that she told Grover that she was being let go for economic reasons and that the
decision was final. According to Judy, Grover appeared stunned by the announcement, saying
that she (Grover) did not understand. According to Judy, Mark then said to Grover that she
knew how things had been going on at the Company—we did not have the billings or cash flow,
etc. According to Judy, Grover persisted in asking for more information about the decision and
Mark said we (management) also had information that she (Grover) should have understood
was very important for her to keep confidential, and that management made that very clear at
the outset of her employment. Judy admitted that she told Grover, “and you wouldn’t believe
what I have been hearing in the last week.” (Tr. 215.)
Judy noted that Grover denied divulging to anyone anything confidential in nature and
specifically denied discussing salaries with any employees.
According to Judy, Grover also told Mark that she knew this would happen if she spoke
to him about her concerns about Scott and his salary advances. Judy acknowledged that this
subject had been broached at an August 19 management luncheon meeting, but this had
nothing to do with her decision to lay off Grover. Judy acknowledged that at this August 19
meeting, Grover’s advocacy of reductions in various company expenses was also discussed.
Regarding Grover’s concerns about cost cutting, Judy admitted that in conversations
over 4–5 months, Grover expressed such concerns, specifically that some employees, namely
Majchurzak, Cowart, and Kiki Hall, were being paid too much for what they were contributing to
the Company. Judy stated that she never admonished Grover for telling her these things, rather
she tried to explain to her the Company’s rational for retaining these employees.27

26 Judy did not identify the employees she interviewed or what each specifically stated to
her.
27 On cross-examination, Judy stated, however, that Grover’s job performance was a factor
Continued
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After Grover was let go, Judy admitted that she disseminated the August 24 email to all
of the company employees, mainly to calm things down in the Company in the aftermath of
Grover’s layoff—(as she put it) to rally the troops and make things better and to curtail the
spreading of rumors about the financial condition of the Company.
Mark Thomas testified that as TM’s chief information officer he was and is in charge of
the Company’s information technology operations. Mark also stated that he along with his
sister-in-law Judy and his brother Scott comprise the Company’s board of directors.
Mark stated that Grover began working for the Company in the fall of 2008, and he (and
Judy) interviewed her for the controller position for which she was hired. Mark recalled that in
the interview he explained to Grover the nature of her duties in the position, emphasizing three
areas that were to be considered of very high importance. According to Mark, he told Grover
that if she were hired he expected her to maintain confidentially of the Company’s financial
information; the confidentiality of private employee information, such as employee bankruptcies
and garnishments; and the confidentiality of customer information. Mark said that Grover told
him that she understood, and in fact she knew that these areas of confidentiality were fairly
normal requirements for a controller position.
Turning to the financial condition of the Company, Mark noted that beginning about
January 2009, the Company was not in good financial shape, was taking in less money than it
was spending resulting in a negative cash flow because some of the firm’s customers declared
bankruptcy while others simply stopped doing business with TM or refused to pay their bills,
necessitating legal action to collect. As a result, management determined by the late winter and
early spring of 2009, that the Company had to cut costs by as much as $50,000 per month.
Mark recalled that the management team—Judy, Scott, Ken Jacobsen, and himself—
met during this period and discussed various layoff scenarios to achieve the needed cost
savings. According to Mark, the scenarios included possible layoffs of consultants,
administrative staff, and the sales and marketing staff—basically across-the-board staff cuts.
Mark recalled that the management meetings dealing with those issues were often very
contentious and complex because some of the proposed layoffs—for example, consultants
currently working on projects—could cause a negative effect on the Company’s finances.
According to Mark, the management team prepared spreadsheets incorporating different layoff
scenarios involving different employees and these were presented at the management meetings
when these issues were discussed.28 Mark stated that the basic or “number 1” component or
element associated with a layoff determination was the effect of the employee’s reduced salary
on the Company’s bottom line and in July 2009, the Company’s financial condition was not
good, the cash flow situation was poor.
_________________________
in her discharge to an extent, mainly because she had to do much of her work. Judy went on to
say that Grover had very strong opinions about billing—items to be billed and those that were
not—with which she (Judy) did not necessarily agree. According to Judy, she was not sure
(comfortable) that Grover understood how the Company, functioned or what was necessary
from the client’s prospective for the Company to bill for certain things but not to bill for others.
Nonetheless, Judy conceded that Grover did have a handle on how the books should be kept.
(Tr. 241–242.)
28 Mark identified R. Exhs. 2(a)–(c), the spreadsheets prepared by Judy and presented at
the management meetings.
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Mark recalled that one of the management team members, he could not recall who,
broached a cost-savings measure that entailed reduction of hours as opposed to layoffs which
would keep employees working but at the same time help the Company’s cash flow. According
to Mark, management decided on this course and informed 10–11 employees who had the least
amount of current work that their hours would be reduced. However, Mark stated that the
employees were informed that when the Company got more work, their hours would be
restored. Mark believed that the plan was announced in a companywide conference call.
Mark noted that even with the reduction in hours in place, the Company’s financial
condition did not improve, at least immediately, and the management team continued to discuss
further cost cutting in the form of layoffs and other cost-cutting measures. Accordingly, around
the end of July and beginning of August 2009, Mark stated that management decided to lay off
a consultant—Cowart—and administrative staff member Grover29 who was due to go on
vacation sometime in August.
Mark admitted that Grover and he had previously discussed cost-cutting measures and
recalled that Grover thought savings could be realized on reduction of telephone service and in
other areas. Regarding Scott’s taking salary advances, Mark recalled that Grover did not think
that this was appropriate (under the circumstances). Mark testified that he was never angry with
Grover for expressing her stance on the matter and told her that he would check on the matter.
Mark volunteered that at the time his concerns centered on whether Scott’s salary advances
were being accounted for appropriately.30 Mark noted that while he supported the decision to
lay Grover off, Scott’s advances did not factor into the layoff decision which was made not then,
but before Grover went on vacation.
Regarding his opinion of Grover, Mark stated that the only time he was critical of her was
when she was on vacation and employees (Kountouriotis and Alexander) as he later found out,
at a meeting he did not attend, told the management team that Grover was inappropriately
sharing confidential information.
Directing himself to the day Grover was told of her layoff—August 24—Mark said that he
and Judy met Grover that morning and Judy gave Grover the word that they were parting ways,
but Judy did not initially give Grover a reason. However, according to Mark, Grover was very
concerned and wanted to know a reason and pressed them for an answer. According to Mark,
Judy told her the Company had to cut back on costs. According to Mark, he told Grover that he
had heard that she was sharing confidential information with the other employees and that we
did not like it. Mark stated that Grover emphatically denied sharing any information. However,
Mark stated that he had heard from the managers at the meeting that Grover was telling
employees that the Company was going out of business, that employees needed to send their
resumes out; that the Company was in a bad financial condition, and the officers were paying
their mortgages with company funds. Mark admitted that when Grover initially brought her

29 Mark was not sure but believed that the decision to lay off Grover was made about August
7 or 10.
30 Mark stated that he told the members of the management team that he was aware of the
advances and reminded the team that there was an audit coming up in a few months and if
(anyone) was taking advances, this had to be documented and paid back as soon as possible.
(Tr. 76.) Mark later in his testimony stated that the bank audit was scheduled for the fall of
2009. Also in 2009, according to Mark, the Company was scheduled to be audited by Michigan
employment authorities (MESC). (Tr. 289–291.)
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concerns about Scott’s advances, she did not mention any of these matters to him. Mark also
volunteered that at the time he did not believe Grover was actually sharing information about the
Company’s finances to anyone outside the Company but this was, nonetheless, a concern.
Mark stated that since this information was relayed to him after the meeting by the
management team, he contacted Kountouriotis and some other (unidentified) employees and
asked whether the statements attributed to Grover were made by her, and they confirmed what
he had heard.31
III. Applicable Legal Principles
The complaint, as previously noted, essentially alleges that the Respondent violated
Section 8(a)(1) of the Act, first, by discharging Grover because she engaged in protected
concerted activities; and, second, by interfering with the rights of its employees guaranteed
under Section 7 of the Act.
I believe that it will be helpful to all to set out the applicable legal principles enunciated
by the Board governing violations of Section 8(a)(1) of the Act.
Section 7 of the Act (in pertinent part) provides that “[e]mployees shall have the right to
self-organization, to form, join, or assist any labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and shall also have the right
to refrain from any or all such activities.”32 Thus, in short, employees have a statutory right in
concert to take action for better job conditions.
Section 8(a)(1) of the Act provides: “It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in
Section 7.”33 The test under Section 8(a)(1) does not turn on the employer’s motive or whether
the coercion succeeded or failed. The test is whether the employer engaged in conduct, which
it may be reasonably said, tends to interfere with the free exercise of employee rights under the
Act.34
Thus, it is violative of the Act for the employer or its supervisors and agents to engage in
conduct, including speech, which is specifically intended to impede or discourage employees
from engaging in union or other activities for their mutual aid and protection. F. W. Woolworth
Co., 310 NLRB 1197 (1993); Williamhouse of California, Inc., 317 NLRB 699 (1995).
The test of whether a statement or conduct would reasonably tend to coerce or interfere
is an objective one, requiring an assessment of all the surrounding circumstances in which the
conduct or statement is made. Rock Valley Trucking Co., 350 NLRB 69, 79 (2007). Electrical
Workers Local 6 (San Francisco Electrical Contractors Assn.), 318 NLRB 109 (1995).
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local

31 Mark said that he may have spoken to Kim Keller but cannot recall this with confidence.
However, Mark said the decision to lay off Grover was already made, so anything Keller may
have said had no bearing on her layoff.
32 29 U.S.C. §151.
33 29 U.S.C. §152.
34 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305 NLRB 626 (1991); and
American Freightways Co., 124 NLRB 146, 147 (1959).
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11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board has noted in this regard that the context
of statements can supply meaning to the otherwise ambiguous or misleading expressions if
considered in isolation. Debbie Reynolds Hotel, 332 NLRB 466 (2000).
Significantly, the Board has held that an employer may not maintain rules that forbid
employees from discussing their working conditions with each other. Kinder-Care Learning
Centers, 299 NLRB 1171 (1990).
Lastly, Section 8(c) of the Act provides that:
The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evidence of
an unfair labor practice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
The Board has noted that Congress added Section 8(c) to the Act in 1947 as part of the
Taft-Hartley Act because it believed that the Board had made it “excessively difficult for
employers to engage in any form or noncoercive communications with employees regarding the
merits of unionization.”
As noted, Section 8(a)(1) also entitles employees to engage in concerted activities for
their mutual aid and protection. In NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the
Supreme Court affirmed that employees with no bargaining representative or established
procedure for presenting their grievances may nonetheless take collective and concerted action
to air their grievances regarding terms and conditions of employment.
In this regard, the Board has determined employees who discuss their wage rates
engage in protected activity. Fredericksburg Glass & Mirror, Inc., 323 NLRB 165 (1997). More
recently, the Board has held that employees who complained about favoritism, wages, and
bonuses engaged in protected activity. North Carolina License Plate Agency #18, 346 NLRB
336 (2006). However, employees who misappropriate wage or other financial information of the
employer may lose the protection of the Act even if they are engaging in concerted activity.
Roadway Express, 271 NLRB 1238 (1984); International Business Machines Corp., 265 NLRB
638 (1982).
In likewise, the Board has held that employee conduct characterized as “snooping” will
not be extended the protection of the Act. Canyon Ranch, Inc., 321 NLRB 937 (1996).
The Board has defined concerted activity. When an employee acts with or on the
authority of other employees, the employee is said to be engaging in concerted activity. Meyers
Industries, 268 NLRB 493, 497 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985) (Meyers II), cert. denied 487 U.S. 1205 (1988).
As noted in the recent case, Asheville School,35 in which the administrative law judge
was upheld, the following summary of the Board’s interpretation of concerted activity (taken
from Diva, Ltd., 325 NLRB 822 (1998)) is instructive:
Since Meyers [Meyers Industries (Meyers I)], 268 NLRB 493 (1984), and Meyers
Industries (Meyers II), 281 NLRB 882 (1986), the Board has found an individual

35 347 NLRB No. 84 (2006).
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employee’s activities to be concerted when they grew out of prior group activity, when
the employee acts formally or informally, on behalf of the group, or when an individual
employee solicits other employees to engage in group action, even where such
solicitations are rejected. However, the Board has long held that for conversations
between employees to be found protected concerted activity, they must look toward
group action and that mere “griping” is not protected. See Mushroom Transportation
Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964), and its progeny. Id. at 830.
As the Board stated in Holling Press, Inc., 343 NLRB 301 (2004):
In order for employee conduct to fall within the ambit of section 7, it must be both
concerted and engaged in for the purpose of “mutual aid or protection.” These are
related but separate elements that the General Counsel must establish in order to show
a violation of Section 8(a)(1).
Accordingly, employees who simply pursue a personal claim, even with the assistance of other
employees, may not be extended the protection of the Act under Holling Press, Inc. In short,
the employee must be shown to be seeking a collective goal and may not simply advance his or
her personal claim.36
Notably, the Board has held that an individual employee who takes some action or
expresses some concern about work conditions without a discussion among other employees
is, nonetheless, concerted when the action or expression by the individual is a logical outgrowth
of the concerns expressed by the other employees.37
The Board has held that concerted activity encompasses those circumstances where
individual employees seek to initiate or induce or to prepare for group action and even if one
employee acts alone during some phase of concerted presentation of grievances, this does not
render his action outside the protection of the Act.38 Moreover, where other employees speak
to an individual employee about matters concerning their terms and conditions of employment
and rely on that employee to act as a liaison to management, the employee need not be
expressly “appointed” or “nominated” as a spokesperson in order for the employee’s action to
be found concerted.39
Similarly, employees whose complaints may differ may, nonetheless, be concerted
where they were united in their protests about terms and conditions of employment. Hahner
Foreman & Harness, Inc., 343 NLRB 1423 (2004).
The Board has held that since wages are the most important and vital term and condition
of employment, employee complaints about wages are protected activity. Rogers
Environmental Contracting, Inc., 325 NLRB 144 (1997). Accordingly, where one employee
informs another employee that he has overheard supervisors saying that the latter employee
was going to be fired, the Board has held this to be protected concerted activity since the
communication was an attempt to protect the employee’s employment. Tracer Protection
Services, 328 734 (1999).

36 See Gartner-Harf Co., 308 NLRB 531 fn.1 (1992), where the Board noted that an
employee’s personal complaints about his own lack of work hours were deemed not protected.
37 Mike Yurosek & Son, Inc., 306 NLRB 1037 (1992).
38 Compuware Corp., 320 NLRB 101 (1995).
39 Midland Hilton & Towers, 324 1141 (1977).
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Notably, in a situation where employees discussed their dissatisfaction with their working
conditions and what the employees could do about it, and an employee suggested a specific
plan or action to get management’s attention, the Board has held that the action of the
employee was concerted and protected.40
The Board has recently held that concerted activity does not depend on employees
agreeing in advance to protest together and that as long as the employees’ complaints were
motivated by their opposition to their employer’s actions regarding job conditions, the
employees’ motives need not be similar—the overriding commonality of their action is the key to
the concerted issue. Worldmark By Wyndam, 356 NLRB No. 104 (2011).
While employees may vindicate their Section 7 rights in a concerted fashion, they may
not conduct themselves in such a manner as to lose the protections of the Act. Atlantic Steel
Co., 245 NLRB 814 (1979); Winston Salem Journal, 341 NLRB 124 (2004). As a general
proposition, employees may not engage in acts constituting disloyalty or making misleading,
reckless, or maliciously untrue statements about or regarding their employer.41 Endicott
Interconnect Technologies, Inc., 345 NLRB 448 (2005). In short, employees cannot engage in
conduct deemed sufficiently egregious so as to remove it from the protection of the Act. White
Oak Manor, 353 NLRB 795 (2009).42
Notably also, the Board has held that an employee possessed of special custody of
confidential wage and salary information contained in the employer’s personnel records, and
aware that her established duties required that she maintain the confidentiality of this
information, was lawfully discharged when she disclosed the information in discussions with
fellow employees discussing wages in violation of the employer’s policy prohibiting such
discussions. Asheville School, 347 NLRB 877 (2006).
When the alleged 8(a)(1) violation turns on the employer’s motive in taking an adverse
action against an employee, the Board requires that the charge be analyzed under the

40 See JCR Hotel, Inc., 338 NLRB 250 (2002), where an employee suggested that the
employees stage a walkout when the hotel was busy in the context of their discussion about
their working conditions to include the employer’s failure to provide a customary daily meal in
order to get the employer to pay attention to their dissatisfaction, and the Board held the
employee’s action to be concerted and protected.
41 See Case Farms of North Carolina, 353 NLRB 257 (2008), where the Board held that two
employees who served as spokespersons for the other employees complained about working
conditions to local newspaper reporters but did not lose the protection of the Act. Similarly, see
Valley Hospital Medical Center, 351 NLRB 1250 (2007), where employee complaints about
working conditions were reported in a newspaper. However, where an employee sent letters to
her employer’s corporate management and to the primary customer at the facility, coupled with
threats to send certain company information to outside media, the Board held that her conduct
was not protected because of malicious falsehoods contained in the letter and her statements
were made with knowledge of their falsity or at least in reckless regard for their truth. TNT
Logistics North America, Inc., 347 NLRB 568 (2006).
42 See Tampa Tribune, 351 NLRB 1324 (2007), when an employee made a single profane
and derogatory reference to the employer’s vice president, the Board held under the
circumstances the comment was not sufficiently opprobrious to cause him to lose the protection
of the Act.
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framework set out in Wright Line, 251 NLRB 1083 (1980),.enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).43
Under the Wright Line framework, the General Counsel must establish four elements by
the preponderance evidentiary standard. Accordingly, the General Counsel must first show the
existence of activity protected by the Act, generally an exercise of an employee’s Section 7
rights. Second, the General Counsel must show that the employer was aware that the
employee had engaged in such activity. Third, the General Counsel must show that the alleged
discriminatee suffered an adverse employment action. Fourth, the General Counsel must
establish a line or nexus between the employee’s protected activity and the adverse
employment action. If the General Counsel establishes these elements, she is said to have
made out a prima facie case of unlawful discrimination, or a presumption that the adverse
employment action violated the Act.44
Once the General Counsel establishes initially that the employee’s protected activity was
a motivating factor in the employer’s decision, the burden of persuasion shifts to the employer to
show that it would have taken the same action even in the absence of the protected activity.
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Liberty Ashes & Rubbish
Co., 323 NLRB 9 (1997).
It is also well settled, however, that when an employer’s stated motives for its actions are
found to be false, the circumstances may warrant an inference that the true motive is one that
the employer desires to conceal. The motive may be inferred from the total circumstances
provided. Moreover, under certain circumstances, the Board will infer animus in the absence of
direct evidence. That finding may be inferred from the record as a whole. Fluor Daniel, Inc.,
304 NLRB 970 (1991).
Inferences of animus and discriminatory motivation may be warranted under all the
circumstances of a case, as noted even without direct evidence. Evidence of suspicious timing,
false reasons given in defense, failure to adequately investigate alleged misconduct,45
departures from past practices, tolerance of behavior for which the alleged discriminatee was
fired, disparate treatment of the discharged employees, and reassignments of a union supporter
from former duties isolating the employee, all support inferences of animus and discriminatory
motivation. Adco Electric, 307 NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993);
Electronic Data Systems Corp., 305 NLRB 219 (1991); Bryant & Cooper Steakhouse, 304
NLRB 750 (1991); Bourne Manor Extended Health Care Facility, 332 NLRB 72 (2000); Visador
Co., 303 NLRB 1039, 1044 (1991); In-Terminal Services Corp., 309 NLRB 23 (1992); Nortech
Waste, 336 NLRB 554 (2001); Bonta Catalog Group, 342 NLRB 1311 (2004); L.S.F.
Transportation, Inc., 330 NLRB 1054 (2000); and Medic One, Inc., 331 NLRB 464 (2000).

43 See General Motors Corp., 347 NLRB No. 67 (2006) (not published in Board volumes),
wherein the Board stated Wright Line applies to all 8(a)(3) and (1) allegations that turn on
employer motivation.
44 Yellow Transportation, Inc., 343 NLRB 43 (2004); Tracker Marine, LLC, 337 NLRB 644
(2002).
45 The Board advises that the investigation should be full and fair. The Board has also
noted, however, that while an employer’s failure to conduct a full and fair investigation into
alleged misconduct of an employee may constitute evidence of discriminatory intent, such
failure will not always constitute evidence of such intent. Hewlett Packard Co., 341 NLRB 492
(2004).
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The employer’s burden under Wright Line requires it “to establish its Wright Line defense
only by a preponderance of evidence.” The respondent’s defense does not fail simply because
not all of the evidence supports it, or even because some evidence tends to negate it. Merillat
Industries, 307 NLRB 1301, 1303 (1992).
To establish an affirmative defense, “[a]n employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of the protected activity.” W. F. Bolin Co.,
311 NLRB 1118, 1119 (1993), enfd. 99 F.3d 1139 (6th Cir. 1996).
Notably, the test applies regardless of whether the case involves pretextual reasons or
dual motivation. Frank Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984). The Board
has held that, “[A] finding of pretext necessarily means that the reasons advanced by the
employer either did not exist or were not, in fact, relied upon, thereby leaving intact the
inference of wrongful motive.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982). In short, a finding of pretext defeats any attempt by the employer to show
that it would have discharged the discriminatee absent his (protected) union activities. Golden
State Foods Corp., 340 NLRB 382 (2003).
The Board has determined that decisions affecting an employee’s condition of
employment may be based on its exercise of business judgment and that judges should not
substitute their business judgment for that of an employer. Lamar Advertising of Hartsford, 343
NLRB 261 (2004); Yellow Ambulance Service, 342 NLRB 804 (2004).
Moreover, the Board has emphasized that the crucial factor is not whether the business
reason was good or bad, but whether it was honestly invoked and was in fact the cause of the
action. Framan Mechanical Inc., 343 NLRB 408 (2004).
IV. The Positions of the Parties
The General Counsel contends first that when Grover discussed with her fellow
employees how the Respondent’s financial issues, with which as the controller/bookkeeper she
was in a position to know, were affecting their employment conditions and went on to suggest to
them ways by which they would protect their jobs and brought the employees’ concerns to the
attention of management, she was engaging in concerted protected activity. The General
Counsel next contends that the Respondent’s management ultimately on August 14 became
fully aware of Grover’s activities, and in particular that she was communicating with other
employees concerned about their hours being cut and the need for ways to cut costs so that the
employees could return to full-time work. The General Counsel notes that even before August
14, Grover specifically confronted Scott Thomas about his taking salary advances, when at the
time employees were upset over having their hours cut. Grover notes she also spoke directly to
Mark Thomas about Scott’s obtaining loans and advances on his salary that she believed he
could not repay. During this encounter, Grover also raised with Mark certain activities that she
felt were inimical to the Company’s balance sheet such as the weekly management lunches,
retaining low performing consultants on the payroll, and haphazardly making the 401(k)
contributions and paying due taxes.
The General Counsel argues that the August 14 luncheon convened by the Respondent,
of course, at the insistence and instigation of Kountouriotis to expose Grover’s multiple
conversations with her fellow employees regarding the financial condition of the Company and
management’s handling of the situation. The General Counsel submits that at this meeting
management was directly and expressly told in detail what Grover had been telling employees
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about management’s conduct or conduct of the affairs of the Company, and what the
employees could do to show how much they were needed in order to have their full-time hours
restored.
The General Counsel submits that Judy Thomas’ reaction—mortification, betrayal, and
anger—to Grover’s protected activities in support of her fellow employees directly led to the
Respondent’s decision to terminate Grover on the Monday following the Friday luncheon
meeting. On August 24, upon Grover’s return from vacation, she merely faced a fait accompli—
her belongings were already packed up and she was summarily terminated.
The General Counsel submits that on this record the evidence establishes
overwhelmingly that Grover was terminated in retaliation for her having engaged in concerted
protected activities in violation of Section 8(a)(1) of the Act.
The General Counsel also contends that the Respondent’s defenses—on the one hand,
Grover was terminated for no other reason than cost cutting and on the other that Grover had
performance issues 3 to 4 months prior to her termination—were false and pretextual. She
argues that aside from the shifting nature of the Respondent’s defense, the testimony of Mark
and Judy regarding the August 24 termination meeting clearly implicates their consternation
over what they had heard about Grover at the luncheon and their claim that Grover breached
the Company’s confidentiality policy. The General Counsel submits essentially that by their own
testimony, both Judy and Mark undercut any claim that Grover was terminated solely for
economic reasons and that she would have been let go for that reason in spite of having
engaged in protected activities.
The General Counsel submits that the Respondent failed to establish its defense with
regard to Grover’s termination.
Turning to the August 24 email, the General Counsel contends that this announcement
disseminated to all of the Respondent’s employees was inherently coercive and threatening to
the employees. She submits that at the time, the Respondent had just that day terminated
Grover and her termination was specifically addressed in the email, and specifically “that she
had reportedly shared some of her thoughts and concerns with members of our staff, and in her
position of confidentiality, that is not acceptable.”
The General Counsel notes that the email goes on to instruct the employees that “If
anything is concerning you, please talk with a [sic] Management employees not each other.”
The General Counsel submits that under the circumstances, a TM employee would reasonably
tend to believe that the Respondent looked unfavorably—as an act of disloyalty—upon any
employee who discussed his wages, hours, and other conditions of employment with other
employees and, moreover, the employee, like Grover, would be terminated. The General
Counsel contends that the Respondent violated Section 8(a)(1) of the Act by disseminating the
August 14 email to its employees.
The Respondent asserts that Grover was laid off for economic reasons stemming from
the Company’s economic circumstances. The Respondent submits that the critical statements
about management attributed to Grover by the employees and disclosed through Kountouriotis
at the August 14, 2009 luncheon were made after the decision to let her go and thus were not
germane to that decision.
The Respondent submits that the decision to determinate Grover had little relationship to
either her work performance or any alleged efforts on her part to improve the working conditions
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of her coworkers. The Respondent contends that in point of fact management had actually
encouraged suggestions from Grover to improve conditions at the Company during the parlous
economic conditions extant at the time. The Respondent asserts that as testified to by Judy and
Mark Thomas at the hearing and buttressed by the spreadsheets adduced there, Grover was let
go only after considerable deliberation by management because she was the highest paid of the
administrative workers and other lower paid administrative employees could do her job, at least
in substantial part.
The Respondent contends that because Grover was an adequate employee, out of
consideration for Grover, Judy Thomas decided to postpone her termination until after Grover
returned from the vacation she had earned.
The Respondent concedes that the revelations by Kountouriotis were shocking to
management and ironically the statements purportedly arose from the very employees whose
interests Grover was supposedly protecting. However, the Respondent submits that
irrespective of the hurt, betrayal, and anger felt by Judy, the decision to terminate Grover had
already been made because of the Company’s financial troubles and to that point, Grover’s
layoff was early on contemplated, but simply not acted on.
The Respondent finally asserts that if, arguendo, the Act may have been violated
because of the coincidental timing of the luncheon meeting with management at which an
employee advised that Grover was a “cancer” for what she had been telling her coworkers, and
Grover’s subsequent notification of allegations against her by coworkers and her termination by
management when she returned from vacation, the Respondent is, nonetheless, entitled to
dismissal of the charge. The Respondent contends that if Grover made the statements
attributed to her by Kountouriotis, she breached her obligation of confidentiality as the custodian
of the Company’s financial records and actually made false statements about the Company’s
finances, and on which grounds she could have been fired for cause. Moreover, making such
statements would not be protected under Section 7 of the Act.
Turning to the August 24 email to the employees, the Respondent asserts first that it
was disseminated to address the Company’s economic-based decision to lay off Grover as well
as its concern that Grover had disseminated information deemed confidential by TM.
Second, the Respondent asserts that the email was designed to rally the remaining
employees and to encourage them not to spread rumors but to bring rumors to the attention of
management.
The Respondent contends that given such purposes, there was no threat implied or
expressed in the email. The Respondent submits in essence that the email only sought to rally
the spirits of the workers, calm their fears, and reduce rumor mongering among them, all in the
context of the Company’s precarious financial condition and some employees’ reactions thereto
that created a fear-laden atmosphere. Accordingly, the Respondent contends that it did not
violate the Act by disseminating the August 29 email.
Discussion and Conclusions
The major or predominant issue involved here is whether Grover engaged in protected
concerted activities. Secondarily, if she did engage in protected conduct, did the Respondent
sufficiently establish that it terminated her for legitimate reasons—breach of the Company’s
confidentiality policy and/or for the more strongly advanced defense, economic necessity; and
that irrespective of Grover’s having engaged in conduct protected by the Act, she would have
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been let go. As to the email that the Respondent through Judy Thomas issued to the
employees, the issue there is whether this notice acted as a prohibited interference with rights
guaranteed them under the Act.
In point of fact as I view things pertinent to this litigation, the trigger event for this dispute
was the Respondent’s decision to cut the work hours of the administrative staff—Grover and
three others—on or about July 16, 2009. This action was a signal on at least two fronts—one,
the Company was in a serious financial predicament, and two, the administrative staff
individually was going to have to take what amounted to an immediate 20-percent pay cut, that
is a reduction of 16 hours per 80 hours per pay period. Naturally, the administrative staff was
very upset about this and expressed their concerns to Judy on the spot. So certainly the
Respondent was on notice that this announcement was not received with alacrity by the
affected employees, most notably Grover who, in her position was privy to the operating costs of
the business, immediately asked if other cost-cutting measures could be implemented as
opposed to the cutting of her and the other administrative staffer’s hours.
With these findings in mind, in my view two important facts are established on this
record. One, as of around July 16, the Respondent’s financial condition was such that its
management legitimately deemed it necessary to consider and make changes in its operation to
reduce its operating costs to include layoffs of employees and, as it turned out, reduce
employees’ work hours. The second point established in my view is that about that same time
of their cut in hours, several employees became concerned about the condition of the Company
and management’s response thereto and engaged in discussions between and among
themselves about the matter. Grover, deeply affected financially by the cuts in her hours but
also the one employee who had access to the Company’s expenditures and costs, clearly
emerged as the employee taking the lead in the protests of other employees who had their
hours cut and after a time became the one employee to whom the others went and with whom
they consulted about the Company’s condition.
As a preliminary matter, I found Grover to be an eminently credible witness. On the
witness stand, she appeared calm and forthcoming and more importantly, the substance of her
testimony was corroborated by other witnesses.46
Notably, Grover, who was fully aware of the Company’s financial problems—especially
the loss of two major clients—expressed to both Judy and Mark her concerns about the
Company’s expenditures and suggested ways or measures the Company could undertake to
reduce costs. More pointedly, Grover expressed her concerns to Mark about one of the
principal’s—Scott—taking salary advances when the Company could not afford it and especially
when other employees had their hours reduced. Having set out the pertinent parts of Grover’s
(and Keller’s and Kountouriotis’) testimony in some detail, I will not reiterate it here. Suffice it to
say that after July 16, Grover to a certainty in my mind engaged in concerted activity on her own
and on the behalf of other employees by protesting and discussing with them her and their
objections to their pay cuts—reduced hours—and certain steps the employees could take to
persuade management to restore their normal hours.

46 The Respondent suggests that Grover was not a credible witness in part because she
cited “lack of work” as grounds for her discharge to the Michigan unemployment authorities. I
do not think that Grover’s application for unemployment benefits, as I understood the workings
of that system and its associated process, in any way diminished her credibility.
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While Grover was assuredly looking out for her own pecuniary interests, she also
participated in discussions with other similarly financially affected employees regarding the
Company’s move to cut their hours. It seems clear that in the view of the employees (including
Grover and Kountouriotis), other measures such as not paying idle consultants their salaries or
other expenses could be implemented to save money. Grover later expressed these collective
concerns to the principal managers, namely, Judy, Mark, and Scott. Accordingly, in my view
Grover’s actions were concerted in nature, reflecting her and her fellow employees’ essential
disagreement with the Respondent’s cost-saving measures which affected an important term
and condition of their employment—their wages. I would find and conclude, therefore, that
Grover’s conduct was protected by the Act.
Regarding the Respondent’s knowledge of Grover’s actions, little need be said. The
credible evidence—from Grover and Keller in particular, but Kountouriotis as well, indicates that
Judy and Mark knew through Grover that the employees affected by the cut in hours were not
pleased by that particular cost-saving measure. In fact, Judy testified that Grover had
suggested to her other ways to reduce costs, and in likewise Mark testified that Grover
expressed to him her displeasure with Scott’s salary advances (while other employees faced
cuts in pay), along with her concerns about the expensive management lunches and over-paid
consultants.
It is worth noting that during the time Grover expressed her concerns about
management’s approach to saving money, the Company’s financial condition remained in
doubt. However, irrespective of the company’s finances, Grover was never informed that her
position was in jeopardy. Rather, Grover was considered a good employee and as of the time
she took her vacation—August 14—the Company, facing a bank audit, especially needed her
services upon her return, at least according to Judy.
This takes us to August 14, 2009, the day of the meeting instigated by Kountouriotis with
the Respondent’s management team. As I have set out in this decision, Kountouriotis told the
gathering of managers that Grover was a “cancer” in the Company and that she had
communicated to the employees certain information about the managers’ purported misuse of
company funds and that she had divulged possibly confidential information about the
employees. Judy testified that upon receipt of this information she was upset and felt betrayed
by Grover, but that this information had nothing to do with her decision to let Grover go; she had
made that decision the morning of August 14, but only because of the Company’s economic
situation.47
While I do not believe that Grover made the statements—and she credibly denied
making them—attributed to her by Kountouriotis who claimed that he had been told these things
by other employees, the statements, even if false, directly related to the essence of Grover’s
protest of the cuts in her and (others) hours while management in her view was improvident in
the use of company funds.48 Accordingly, with Judy’s denial of connection of the statements to

47 I note that Judy earlier in her testimony stated that she had made the decision to let
Grover go on August 10. However, upon my examination, Judy said that she made the decision
to discharge Grover on the morning of August 14 before the Roosevelt luncheon meeting. (Tr.
230.)
48 Judy and Mark both testified that they conducted an investigation of sorts to determine if
Grover had actually made the statements attributed to her by Kountouriotis and determined that
she had indeed made the remarks. Keller could not recall being queried by management about
the remarks.
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her decision to discharge Grover in mind I, nonetheless, would find and conclude that those
statements, and Judy’s ultimate decision to discharge Grover on August 24 upon her return to
work, were sufficiently connected in time to establish an unlawful motive for Grover’s discharge.
According, I would find and conclude that the General Counsel fully met her burden under
Wright Line.
Turning to the Respondent’s defense or rather defenses, the Company seems to place
its principal reliance on its economic defense; that is, Grover’s release was due to the
Company’s troubled economic situation. The Respondent also seems to rest its decision to
discharge Grover at least in part on her having divulged confidential information about its
employees. In any case, the Respondent contends that its decision to discharge Grover was
not based on or motivated by her statements and/or conduct reflecting her dissatisfaction with or
protest of the cuts in her and other employees’ hours.
First, contrary to the General Counsel, I would find and conclude that the Respondent
clearly established that its economic and financial conditions during the material times here—
mainly the period immediately before July 16 through August 24, 2009—were sufficiently
perilous to justify the Company’s concerns about cost cutting and the actions it took, specifically,
laying off employees and cutting employees’ hours. I also would find and conclude that the
Respondent established that Grover and other employees were legitimately from about July 7
through August 5, 2009, being considered for layoff because of the Company’s financial
conditions. In my view, the record clearly supports these findings and even Grover as
bookkeeper came to realize early in her time with the Company that there were serious financial
issues afflicting the Company. With the loss of the two major clients in 2009, coupled with what
all would concede were very rough economic times in the county, and Michigan in particular
during this time frame,49 the Respondent in my view established that it could have with
justification discharged Grover irrespective of her being engaged in protected economic activity.
That said, the question remains did the Respondent actually and honestly discharge her for
economic reasons or even because she possibly violated the Company’s confidentiality policy.
As I have noted, the Respondent’s burden is not only to present a competent defense for
its actions against an alleged discriminatee, it must also persuade the judge that its defense is
bona fide. In my view, the Respondent has not persuaded me that it discharged Grover for
legitimate reasons. I believe that the Respondent’s defense(s) is pretextual and that the real
reason for its discharge of Grover was motivated by the disclosures made by Kountouriotis at
the luncheon meeting on August 14. I do not believe that the Respondent, mainly Judy, had
made the decision to lay Grover off either on August 10 or the morning of August 14. It is my
belief and finding that the decision to discharge her was made because of the information Judy
and Scott received from Kountouriotis at the luncheon meeting on August 14. And as I have
stated, while I do not believe Grover made the remarks attributed to her, they, nonetheless,
were directly related to her concerted protest of the reduction in hours and her complaints that
management—especially Scott—was not properly utilizing company funds to meet the financial
crisis the Company was experiencing.
In arriving at this conclusion, I have taken note that Judy testified that she arrived at the
decision to lay Grover off on August 10, but later changed her testimony to August 14 in the
morning before the luncheon meeting; her credibility suffered in this regard in my view. Then

49 I have taken administrative notice of the national recession ongoing in 2009, and the
effects thereof on the State of Michigan. I have also credited the testimony of Judy and Mark
regarding the historically low state of the Michigan economy in 2009.
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there are Judy’s spreadsheets that as late as August 5 included Grover as a potential layoff
candidate. However, Grover and Judy both testified that Grover was never told that she was at
risk of losing her job and, in fact, Judy seemingly had no actual plans to discharge her,
especially with the impending bank audit, and, as indicated in Judy’s August 24 email, business
was definitely picking up. This flies in the face of the Respondent’s claim that Grover was let go
for economic reasons.50
Then there is the matter of Judy’s and Mark’s statements to Grover on August 24 as
they were discharging her. Judy, it seems, gave token significance to the Company’s economic
situation in justifying the discharge but, acting on her admitted sense of betrayal, felt compelled
to bring up what she had heard at the luncheon meeting. Mark, taking up the cause, then raised
the purported breach of the confidentiality policy. Taken together, it seems clear to me that it
was the information Judy (and Scott) received at the luncheon meeting which triggered the
discharge decision, and not the economic condition of the Company.
I am also persuaded to my conclusion by the testimony of Judy and Mark regarding the
“investigation” they conducted following Kountouriotis’ remarks to determine whether Grover
had made the statements attributed to her. Judy did not say specifically whom she consulted
and Mark said that he might have spoken to Keller, who testified that she was not contacted
about Grover’s statements by anyone from management. In my view, this inadequate
investigation further cements in my view that the Respondent’s reasons are not bona fide.
I would also note that the Respondent evidently considered Grover to be in breach of its
confidentiality policy, mainly by disclosing employee information. However, there was no proof
adduced by the Respondent, save Kountouriotis’ general statement, that would support this
charge which Grover adamantly denied.51 Here again, this aspect of the Respondent’s defense
seems contrived and, hence, in my view pretextual.
On bottom, I would find and conclude that the Respondent did not meet its burden and,
accordingly, the Act was violated by the Respondent in discharging Grover.
Turning to the August 24 email, I would find and conclude that the Respondent violated
the Act in disseminating it to the employees. In agreement with the General Counsel, it is clear
that this email constituted an interference with the Section 7 rights of the employees. I note that
given the totality of the circumstances, these employees could reasonably infer that if they
spoke to one another about terms and conditions of their employment without first consulting
with management, this would be viewed unfavorably by management. Implicit in this failure
could be a serious consequence to include discharge, as was the case with Grover whose
discharge was announced in the same email.
I would find and conclude that the Respondent violated Section 8(a)(1) of the Act by
disseminating the August 24, 2009 email to its employees.

50 It should be noted that based on Judy’s testimony, the spreadsheets she prepared for the
management team were utilized solely in their meetings but were not disclosed to any of the
nonmanagement employees, most notably Grover.
51 For instance, the Respondent adduced no evidence that Grover specifically divulged
garnishment, bankruptcy, or other private employee information of any specific employee(s).
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Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By discharging Kimberly Grover on August 24, 2009, the Respondent violated
Section 8(a)(1) of the Act.
3. By disseminating an email to employees on August 24, 2009, that discouraged
employees from talking to each other about wages, hours, and terms and conditions of
employment, the Respondent violated Section 8(a)(1) of the Act.
The Remedy
Having found that the Respondent has engaged in unfair labor practices warranting a
remedial order, I shall recommend that it cease and desist from engaging in such conduct and
that it take certain affirmative action designed to effectuate the policies of the Act.
The Respondent, having discriminatorily discharged Kimberly Grover, I shall recommend
that it be ordered to remove from its files any references to Grover’s discharge and make her
whole for any loss of earnings and other benefits she may have suffered by virtue of the
discrimination practiced against her, computed (where and if applicable) on a quarterly basis
from the date of the discharge less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus daily compound interest as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I make the
following recommended52
ORDER
The Respondent, The TM Group, Inc., Farmington Hills, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for concertedly
complaining to its management regarding wages, hours, and working conditions of its
employees.
(b) Discouraging employees from talking to each other about wages, hours, and other
terms and conditions of employment.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.

52 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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2. Take the following action necessary to effectuate the policies of the Act.
(a) Within 14 days from this Order, offer Kimberly Grover full reinstatement to her
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previously enjoyed, and make Kimberly Grover
whole for any loss of earnings and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from its files any reference to
Kimberly Grover’s unlawful discharge, and within 3 days thereafter notify her in writing that this
has been done and that the discharge will not be used against her in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due, if any, under the terms of
this Order.
(d) Within 14 days after service by the Region, post at its office in Farmington Hills,
Michigan, copies of the attached notice marked “Appendix.”53 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 24, 2009.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. April 1, 2011
____________________
Earl E. Shamwell Jr.
Administrative Law Judge

53 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT permanently or indefinitely lay off or discharge employees because they engage in
protected concerted activities.
WE WILL NOT in any way discourage employees from talking to each other about wages, hours, and
working conditions.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise
of rights guaranteed them by the Act.
WE WILL, within 14 days from the date of this Order, offer Kimberly Grover full reinstatement to her
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously enjoyed.
WE WILL make Kimberly Grover whole for any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful
discharge of Kimberly Grover, and WE WILL within 3 days thereafter notify her in writing that this has
been done and that the discharge will not be used against her in any way.
THE TM GROUP, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
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THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.