Unique Personnel Consultants, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 28, 2015

25-CA-132398 (N.L.R.B. May. 28, 2015)

JD–30–15
Troy, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNIQUE PERSONNEL CONSULTANTS, INC.
Respondent
and Case 25-CA-132398
ANA OROZCO, an Individual
Ahavaha Pyrtel, Esq.,
for the General Counsel.
Andrew G. Toennies, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
Christine E. Dibble, Administrative Law Judge. This case was tried in Peoria, Illinois, on
November 20, 2014.1 The Charging Party, Ana Orozco (Orozco), filed the charge in Case 25-
CA-132398 on July 9, 2014.2 Orozco filed an amended charge in Case 25-CA-132398 on
September 11. The Regional Director for Region 25, Sub-Region 33 of the National Labor
Relations Board (NLRB/the Board) issued a complaint and notice of hearing on September 29
Unique Personnel Consultants, Inc. (the Respondent) filed a timely answer on October 13 and an
amended answer and affirmative defenses on October 31, denying all material allegations in the
complaint.
The amended complaint3 alleges that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (NLRA/the Act) when (1) on about June 27 the Respondent
discharged Orozco for engaging in concerted protected activities; (2) on about June 27 the
Respondent, through Supervising Consultant Elyce Rehmke (Rehmke) interrogated its

1
The following are corrections to the errors in the transcript: p. 10, line 13 “Section 8(a)(1)” replaces “Section
81,” p. 10, line 14 “concerted” replaces “considered,” p. 10, line 21 “concerted” replaces “considered,” p. 11, line 3
“concerted” replaces “considered,” p. 12, lines 4, 15 “concerted” replaces “considered,” p. 127, line 1 “no objection”
replaces “on objection,” p. 138, line 4 “her” replaces “he,” p. 151, line 14 “a” replaces “at,” and p. 151, line 18 “is”
replaces “it”.
2 All dates are in 2014, unless otherwise indicated.
3
Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s exhibit;
“GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for Respondent’s
brief.
JD–30–15
Troy, IL
employees about their concerted activities; (3) on about June 27 the Respondent, through
Rehmke, instructed its employees not to talk to other employees about terms and conditions of
employment; (4) on about June 27 Respondent, through Area Managing Consultant Melinda
McFadden (McFadden), who in writing instructed employees to not discuss their terms and
conditions of employment with other employees, customers, prospective customers, or the
general public; and (5) on about the Respondent, through McFadden, threatened employees with
prosecution by local authorities if they discussed their terms and conditions of employment with
other employees, customers, prospective customers, or the general public. 4
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation headquartered in Troy, Illinois, is a full service temporary
staffing agency with 17 branches throughout Illinois. During the calendar year ending December
31, 2013, the Respondent in conducting its operations, provided services valued in excess of
$50,000 for enterprises within the State of Illinois which are directly engaged in interstate
commerce. The Respondent admits, and I find, that at all material times it has been an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operation
The Respondent provides staffing for a diverse range of business interests, which
includes catering, administrative, and banking fields. However, the majority of its placements
are for the manufacturing industry. The Respondent’s management hierarchy is owner/president,
area manager, managing consultant, supervising consultant, and consultant. Gary Hunsche
(Hunsche) is the owner and president of the company. McFadden has been employed by the
Respondent for about 5 years with the last 3 years serving as the area manager. She is
responsible for managing the branch managers of each location within the region. In June 2013,
Rehmke was hired as a consultant, and subsequently was promoted her to her current position,
managing consultant. As the managing consultant, Rehmke works closely with hiring

4
At the conclusion of the hearing, I notified the parties that by December 5, the Respondent had to research and
notify the counsel for the General Counsel whether GC exhs.
4
15 and 24 were emails authored by McFadden. If the
General Counsel determined that the newly disclosed information was relevant to its case, the counsel for the
General Counsel had until December 9 to submit a motion requesting the admittance into evidence of GC Exhs. 15
and 24. By motion dated December 9, the General Counsel moved to admit GC Exhs. 15 and 24 into evidence. The
Respondent did not file an objection. Based on a review of the evidence and the General Counsel’s motion, I will
admit GC Exhs. 15 and 24.
JD–30–15

3
associates5 and interfacing with business clients. She interviews and hires prospective
associates, performs drug screens and background checks on them, and supervises internal
employees at the Galesburg, Illinois office (Galesburg office).6 Since May, Rehmke has
supervised 3 internal employees in the Galesburg office. The employees are Orozco, Consultant
Emily Collins (Collins) and On-Site Supervisor Anna Castro (Castro). During various time
throughout her 2-year employment history with the Respondent, Castro worked out of the
Galesburg office every Thursday or on alternating Thursdays. Castro’s duties include overseeing
employees’ attendance and work productivity, and recruiting, interviewing, and placing
associates with clients. The managing and supervising consultants are also authorized to hire,
fire, and discipline employees.7 Additionally, they are responsible for marketing and selling the
Respondent’s temporary staffing services to businesses.
During the period at issue, Jasper Smith (Smith) was the IT mobile technician who
worked out of the corporate office in Troy, Illinois.8 His frequently travels to the 17 branch
offices to perform IT service.
On August 2, 2012, Orozco was hired an administrative assistant for the Galesburg
office. Initially she worked in a temporary capacity but was subsequently hired as a permanent
full-time employee on December 3, 2012. Danielle Mason (Mason), senior consultant, was her
immediate supervisor when she was hired. In approximately May, Rehmke became Orozco’s
immediate supervisor. Orozco’s primary job duties were answering telephone calls, scheduling
applicant interviews, updating associates’ files, assisting applicants with completing their
applications, data entry, and filing. She was the only internal employee who worked in the
Galesburg office Monday through Friday from 8 a.m. to 5 p.m. McFadden typically came to the
Galesburg office once a week.9 Since her training period ended, Rehmke has worked from the
Galesburg office 3 to 4 days a week, and Collins was there on alternating Thursdays.
B. The Respondent’s Dress Code Policy
The Respondent has maintained a personal appearance and attire rule (dress code policy),
restricting certain clothing, body piercing, and tattoos while at work. The following were among
prohibited attire or displays: tattoos, body piercings except conservative earrings, flip flops,

5
The Respondent identifies workers who are placed with outside clients as “associates” and employees who
work directly for Unique Personnel as “internal employees.”
6
The charge at issue primarily involves the Respondent’s Galesburg, Illinois branch.
7
Entry-level consultants can hire, fire, and discipline associate employees, but not internal employees.
8
In late summer of 2014, Smith was promoted but without a change in job title. Smith is now authorized to
hire, fire, and discipline IT technicians under his supervision.
9
In response to counsel for the Respondent’s question, McFadden’s testified that beginning in December 2012
she typically went to the Galesburg office once a week. Orozco, however, testified that McFadden came to the
office about once a month. Both appeared to provide credible testimony on this point. Since the General Counsel
has the burden of establishing credibility and has failed to do so in this case, I credit McFadden’s testimony on this
point. Nonetheless, the testimony on this point does not affect the merits of the case.
JD–30–15

4
shorts, denim, sundresses, T-shirts, dresses, or skirts more than 2 inches above the knees. The
rule continues in part:
Female employees must wear dresses, skirt and blouse, suits or dress pants (with
crease) and blouse. No jeans or denim fabric slacks or skirts are permitted.
Conservative scarves and headbands are permitted. Specifically, female
employees may not wear jumpsuits, sundresses, culottes, t-shirts, tank tops, tube
tops, halters, midriff tops, skorts, bare backs, or sheer or revealing blouses.
Dresses, sweaters and blouses may not be low cut and clothing may not be tight or
extremely revealing. Skirt or dress length must not be shorter than two inches
above the knee. Spandex or stirrup pants are not permitted. Dress capris are
acceptable but should not [be] tight to the leg. Dress sandals may be worn but
cannot be too casual. Flip flops are not permitted. Summer dresses and dress tops
may be worn, but they cannot have spaghetti straps, show bra straps, be low cut,
be halter style, nor see through. Skirts should not be extremely short, nor should
dresses. (GC Exh. 9.)
When Orozco was initially hired as a temporary employee, she had piercings in her eyebrow,
nose, and the area between her nose and lip. At that time, Mason told Orozco that the
Respondent had a dress code policy requiring her to wear dress slacks, nice shirts or blouses, and
dresses with hemlines no shorter than an inch or two above the knee. In response to her inquiry
about the appropriateness of her piercings, Mason told her it would not be problematic.
However, in January or February 2013, Mason instructed Orozco to take the piercings out
whenever McFadden came to the office. Orozco was provided with a written copy of the dress
code policy when she was hired as a permanent employee on December 3, 2012.
C. February or Early March 2013 Dress Code Violation
In February or early March 2013, Orozco slipped on the ice as she was entering the office
and ripped her pants. As a result, she went home at lunchtime and changed into the only pair of
clean pants she had available, black jeans, and returned to the office. Later the same day,
McFadden came to the office and Orozco brought it to Mcfadden’s attention that she was
wearing jeans and explained the reason for it. McFadden did not respond but rather walked into
the back room to deposit her items. Orozco did not receive a verbal or written discipline for this
violation of the dress code policy.
On March 14, Orozco came to work about 2-p.m. because she had a medical procedure
that morning. After the medical procedure, she came to work wearing a jogging suit with the
intention of changing into more appropriate attire once she got to the office. On arriving at
work, Orozco noticed that the phone was ringing, Castro was interviewing job applicants and
“numerous” people were in the waiting area. Orozco immediately answered the phone and then
began to help some of the people with their applications and scheduled them for interviews. At
some point during that day, McFadden received a call from Castro complaining that Orozco was
wearing an inappropriate outfit. When she arrived at the office, McFadden pointed out to
Orozco that she was wearing a jogging outfit in violation of the dress code policy. Orozco
JD–30–15

5
explained that because the office was so busy when she arrived that she did not have time to
change clothes. McFadden instructed Orozco to go home. This exchange occurred about 3:30
p.m.
About March 18, McFadden met with Orozco to inform her that she was being issued a
written discipline for violating the dress code policy on March 14. Again, Orozco explained that
because the office was very busy when she arrived at work she immediately began to help out
and did not have time to change into her “dress” clothes. (Tr. 44.) Despite her explanation about
the outfit, McFadden issued the written discipline and instructed her not to discuss their
conversation or the discipline with anyone. McFadden also mentioned that Castro complained to
her that Orozco was talking to her too much.
Orozco wore her piercings in the office in violation of the dress code policy. On several
occasions McFadden saw her with the piercings and pointed to them, indicating Orozco had to
remove them which she did.10 Orozco also acknowledged that she was verbally counseled about
wearing jeans in the workplace. All of these verbal admonishments about her body piercings
occurred prior to the March 18, write-up for the dress code violation. (Tr. 117.) On May 30,
2014, Rehmke told Orozco that the shoes she was wearing were not appropriate for the office
because they looked like “going out shoes.” Orozco did not receive a written warning for this
incident. Nevertheless, she informed Rehmke that she disagreed with her characterization of the
shoes.
D. Complaints by Castro about Orozco socializing at work
Prior to April or May 2013, Castro complained to McFadden on several occasions that
Orozco disrupted her ability to do her job when she was at the Galesburg office because she felt
Orozco talked incessantly and did not work enough. Castro opined that some of Orozco’s
conversations were inappropriate for the workplace. Orozco also voiced her displeasure to
McFadden about Castro asking her to pull documents and re-file them, which Orozco felt could
have more easily been emailed to Castro. As a result of the complaints, in April or May 2013,
McFadden met with Castro and Orozco to resolve the tension between them. McFadden told
Castro and Orozco that she liked their team and wanted them to work towards getting along.
After the meeting, Castro felt Orozco’s behavior improved “for some time” up until the last few
months of Orozco’s employment with the Respondent. (Tr. 171-172.) Occasionally, Castro
would tell Orozco she had to get work completed so that Orozco would stop talking to her while
they worked.11

10
Orozco admits that on at least 2 occasions McFadden saw her with piercings at work and pointed at her to
remove them. McFadden testified that this occurred on several occasions, indicating more than two. I credit Orozco
on this point.
11
McFadden testified that in May or June a decision was made to reconfigure the office to restrict Orozco’s
socializing in the office. The administrative assistant’s work area was moved further away from the consultant’s
interviewing area and chairs were also removed from the administrative assistant’s area. I do not find her testimony
credible. The record establishes that the office was reconfigured after Orozco was terminated. McFadden admitted
that the office purchased new furniture had nothing to do with Orozco’s socializing. There is also evidence that the
Respondent hired a new consultant which required that space be made to accommodate her working in the office.
JD–30–15

6

Other employees, including managers, on occasion also socialized in the workplace.
During working hours, McFadden sold products (Scentsy and Girl Scout cookies), and sent
nonwork-related emails to employees.12 Castro paid personal bills, ordered drug prescriptions,
and held short telephone conversations with her husband while on company time.
E. Orozco’s Performance Reviews July 21 & November 20, 2013
During her tenure with the Respondent, Orozco received two performance reviews. At
the time she was hired as a full-time permanent employee, Orozco was told about the
performance review process, shown a sample of the review, and informed that her first review
would take place 3 months after her hire date. The performance review covers sections on
customer service, initiative and application, dependability, job knowledge, quantity of work,
quality of work, leadership, and attitude. Each of the sections contain several sub-sections with
ratings of either “unsatisfactory,” “requires improvement,” “meets requirements,” “exceeds
requirements,” or “outstanding.” The reviewer also discusses with the employee their past and
future goals.
Orozco received performance appraisals on July 21 and November 20. McFadden
completed Orozco’s first performance appraisal and met with her on July 21 to discuss it. On the
performance appraisal, Orozco was rated as “meets requirements” on all sections except she
received “requires improvement” in 2 areas. Under “quality of work” subsection “work is neat
and well organized,” McFadden assessed Orozco a rating of “requires improvement” because she
needed to work on keeping her work space neat and organized and do a better job of
proofreading her emails and associate notes before sending them. Orozco was also rated
“requires improvement” under “leadership” sub-section “sets a good example.” (GC Exh. 4.)
McFadden noted in the reviewer’s comments for this rating that there had been tension between
Orozco and Castro and “Ana has been coached on professionalism and dress code and has since
improved.” Id. In her comments about Orozco’s overall performance McFadden wrote in part: 13
I do feel that there is some tension between Anna [Castro] and Ana that we are in
the process of addressing. The only other issue that I have had is above where co-
workers feel that there is to (sic) much socializing and work can’t get completed.
It has been brought to my attention as well that whenever I address an issue it is

12
McFadden admitted selling Scentsy products and Girl Scout cookies but denied selling them during work
hours. While I do not credit her testimony on this point, it is immaterial to the merits of the case. The Respondent
does not contend that any of its actions were taken against Orozco because she sold nonwork-related products during
business hours. However, I do not find plausible that McFadden would wait until the office closed to come into
work and solicit orders for her products or wait until her days off to promote and deliver her wares.
13
During her testimony, McFadden gave examples of topics she felt were inappropriate for Orozco to discuss in
the workplace. The subjects included shootings that occurred near Orozco’s family bar, hangovers, occurrences at
Orozco’s family bar, associates Orozco knew from their visits to her family bar, and pointing out associates who
“had her back.” Orozco denied discussing these topics at work. I credit McFadden on this point. There was
corroborating testimony from Rehmke and Castro and based on the totality of evidence, I find McFadden a more
credible witness on this point than Orozco.
JD–30–15

7
talked about with other co-workers when it should be between Ana and I.
(emphasis added)
(GC Exh. 4.) Orozco responded in the comment section of the appraisal that she felt it was a
“good review” and she was going to work “smarter and harder.” Id.
On November 20, Rehmke completed Orozco’s second performance appraisal and met
with her to discuss it. Based on the ratings and comments in the appraisal, it is clear that
Orozco’s work performance had improved. Rehmke rated Orozco “meets requirements” in most
of the sub-sections and in several sub-section categories she was rated at “exceeds
requirements.” (GC Exh. 25.) Rehmke included a litany of compliments in the performance
review about Orozco’s “top-notch” customer service skills, eagerness to assist coworkers with
their work, ability to successfully multi-task, great job suggesting applicants for positions,
improved organizational skills, improved proofreading of emails, high regard coworkers and
associates have for her, and wonderful attitude. Rehmke ended the review by noting,
Ana has done a great job in her professionalism and her performance this review
period. I am very proud to see the growth that she had made and is continuing to
make.
(GC Exh. 25.) Effective November 25, Orozco received a pay increase from $10.58 an hour to
$11.06 an hour for “outstanding performance and growth.” (GC Exh. 5.) McFadden prepared the
pay increase. 14
F. Friendship develops between Castro and Orozco
After the meeting in April or May 2013 that McFadden held with Orozco and Castro to
resolve the issues between them, Orozco’s and Castor’s relationship gradually began to improve.
By October 31, a friendship began to develop between them. Castro bought Orozco gifts to
commemorate various holidays and Orozco’s birthday. She also gave Orozco a gift for each day
of administrative professionals week and periodically brought snacks and drinks to the office for
her. After work, Castro and Orozco frequently talked on the telephone about personal and
professional matters, and visited outside of the office. Although Castro occasionally got
frustrated with Orozco talking to her while she tried to complete work, after their meeting with
McFadden she did not complain about it again to McFadden.
G. Orozco and her deteriorating relationship with McFadden and Rehmke
About April, Orozco began to feel that McFadden and Rehmke were being overly critical
of her work and not taking her suggestions for workplace improvements seriously. She was
offended by a trivial comment that Rehmke made about employees brushing their hair, which

14
Although McFadden testified that she prepared a change of pay for Orozco after the July 21 performance
appraisal, the record shows the pay increase, from $10 an hour to $10.58 an hour, was completed May 31 and
effective July 8. (GC Exh. 3.)
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8
Orozco inexplicably felt was directed at her personally. Also, Rehmke began to require Orozco
to enter applications employment history into the data base, which frustrated Orozco.
Orozco began to discuss her complaints with Castro about the Respondent’s dress code
policy and her displeasure with the write-up she received for violating the policy. Stacey
Wiltermood, an administrative assistant, also mentioned to Castro on several occasions that she
had been written-up. 15 During a telephone conversation they held in October 2013, Wiltermood
told Castro that she felt some of the write-ups she had received were unfair. However,
Wiltermood admitted that several write-ups she had received for violating the attendance policy
were valid. McFadden was Wiltermood’s immediate supervisor at the time.
H. Incident at Golf Outing on June 2
On June 2, the Respondent was a sponsor for a golf hole at the local Chamber of
Commerce golf event. On May 29 Rehmke sent an email to Orozco, Castro, Collins, and
Macomb Branch Consultant Jessica Berger (Berger) to explain the plan for working the golf
event. They were responsible for staffing the Respondent’s sponsored golf hole. In the email
she also reminded them of the dress requirement for the golf outing. It read in relevant part,
Per the flyer: DRESS REQUIREMENTS: collared shirts, no denim, no halter or
sting (sic) strapped tops. Please wear your UniQue polo and pants or shorts
(nothing too short and NO jean shorts). Remember we are walking advertising for
UniQue and at a chamber event so we want to dress to impress!
(GC Exh. 12.) McFadden was copied on the email even though she did not attend the golf
outing. Unlike the Respondent’s normal dress code requirement, employees working the golf
event were allowed to wear shorts that conformed to the above description.
On the day of the golf outing, Orozco first reported to the office because she was not
scheduled to work at the event until 2:30pm. She wore her blue UniQue polo shirt and black
dress pants to the office. About 2pm. Orozco changed into black, white and grey capris pants.16

15
Orozco claimed Castro agreed with her complaints that she was being unfairly singled out by local
management. She testified that Castro also told her that Wiltermood communicated to her that McFadden also
treated Wiltermood unfairly. According to Orozco, Castro said McFadden told her she could no longer speak or
email Wilterwood. (Tr. 59-61.) Castro denied Orozco’s testimony in total on these points. I partially credit Orozco’s
testimony. Wilterwood, who I find was a credible witness, testified that she felt Castro was a friend and told her
about her feelings that she was being treated unfairly by McFadden. There is also evidence that Castro and Orozco
became good friends and often spoke about workplace issues. I do not find it plausible that as her friend, Castro
would not have voiced sympathetic understanding, regardless of the level of sincerity, when Orozco complained to
her about McFadden and Rehmke. I do not, however, credit Orozco’s testimony that Castro told her McFadden
forbade her from speaking or emailing Wilterwood. It does not have the ring of truth. Moreover, Wilterwood
certainly would have mentioned in her testimony that her friend, Castro, no longer spoke to or emailed her.
16
The General Counsel and the Respondent disagree over whether Orozco’s pants are cargo or capris. Cargo
pants are defined as loose trousers with a large external pocket on the side of each leg. Capris pants are defined as
close-fitting women’s pants that end below the knee and calf or above the ankle. See, Merriam-Webster Dictionary.
Based on my review of the photograph of the pants, I find that the pants are capris pants.
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9
As she was leaving the office for the golf event, Castro commented that Orozco’s outfit was
“cute.” Orozco and Collins rode to the golf event together. Rehmk and Berger were already at
the event when Collins and Orozco arrived. All of the women wore the company logo polo
shirts. Collins and Berger paired their shirts with capris pants, and Rehmke wore khaki shorts.
Berger wore sandals that showed the tattoo on her foot. However, Rehmke testified that she did
not notice the tattoo, and the General Counsel did not impeach her testimony on this point. It is
unknown what type of footwear the other women wore to the golf event. Orozco worked at the
golf outing from about 2:30 p.m. to 5 p.m. without anyone commenting on her attire.
I. June 3 Orozco disciplined for violating the Respondent’s dress code
On June 3 Rehmke met with Orozco and issued her a written final warning for violating
the dress code policy. (GC Exh. 11.) Rehmke wrote,
In Ana’s last write up from March 14th 2013 it was stated that another write up
would be her final. This is her final warning regarding dress code. Additional
issues could result in termination. Professional dress is required both in the office
and in public when representing UniQue.
(GC Exh. 11.) Orozco notated on the written final warning that she disagreed with it because she
did not feel there was “anything wrong” with her pants since they were not jean material.
J. Orozco’s complaints to coworkers about her being issued discipline on June 3
On June 3 Orozco spoke on the telephone with Castro and complained to her about the
disciplined she received that day. The conversation lasted approximately 2 to 3 minutes.17 She
also told Collins that she received a written warning for wearing capris pants to the golf outing.
Their conversation lasted less than a minute.
On June 11 Smith arrived at the Galesburg office between 4:30 p.m. and 4:45p.m. to
install new telephones. The task was estimated to take 30 to 45 minutes to complete. Orozco
testified that Smith arrived at the office about 4:30 p.m. or 4:45 p.m. on June 11. Castro testified
that he arrived about 2:30p.m. or 3 p.m. However, it appears through subsequent testimony that
Castro confused the dates that she saw Smith in the office talking to Orozco, and that she was
most likely not at the office on the date at issue, June 11. I credit Orozco on this point. By her
own account, Castro would likely not have been in the office on June 11. Smith had more of a
motive to misrepresent the timing of his arrival at the office. He admitted that his wife and
young daughter drove with him the approximately 200 miles from Troy, Illinois, to the
Galesburg office. He claimed that he left Troy at 9:30 a.m. or 10 a.m. and stopped once for gas.
I do not find his testimony credible on this point. First, he claimed he could not specifically
remember if his wife traveled with him on the trip. I find it implausible that he could clearly

17
Orozco claims Castro expressed disbelief about her being disciplined and pointed out that Berger’s tattoos
were showing through her shoes and Rehmke shorts were really short. However, no evidence was introduced that
Castro observed what Berger or Rehmke wore to the golf outing.
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10
remember the time he arrived at the Galesburg office but could not remember if his wife traveled
with him. I also find it difficult to believe that he did not stop for lunch or restroom breaks with
his wife and a child traveling with him. Further, I found that many of his responses were evasive
and were deliberately nonresponsive answers to the counsel for the General Counsel’s questions.
One example is his reluctance to admit something as innocuous as the type of vehicle he drove
on the day at issue. Consequently, I credit Orozco’s testimony that Smith arrived at the
Galesburg office on June 11 about 4:30 p.m. or 4:45 p.m.
When Smith got to the office Orozco was getting ready to leave for the day. Since Smith
was unable to complete the installation by the end of the workday, he got permission from the
CEO to stay overnight so he could return the next morning and finish the job. 18 At
approximately 5 p.m., Orozco and Smith left the office together and walked to the parking lot.
While they were in the parking lot, Orozco asked Smith if he could give her advice about a
matter she wanted him to keep confidential. She told him that she had been written up for a
dress code violation and thought it was unfair. She pointed out that Rehmke had worn very short
dresses but had not been disciplined.19 Orozco told him she felt it was unfair that she had been
issued a written warning for wearing capris pants to the golf event. The conversation lasted
about 10 minutes.
Orozco claimed the next day on June 12 Smith commented that the dress Remke wore to
work that day was “a little short.” She agreed with Smith and then took a photograph of Rehmke
in the dress which was about 4 inches above the knees. Smith denied making the statement and
told her that he thought Rehmke always looked nice.20 (GC Exhs.19, 22.) Both witnesses
appeared equally credible on this point. The General Counsel has the burden of proving
credibility, but failed to do so in this instance. See Central National Gottesman, 303 NLRB 143, 145
(1991) (finding that the General Counsel did not meet its burden of proof because the testimony that the
allegation occurred was equally credible as the testimony that denied the allegation); Blue Flash Express,
109 NLRB 591, 591-592 (1954) (same), questioned on other grounds, Allegheny Ludlum Corp. v. NLRB,
104 F.3d 1354 (D.C. Cir. 1997). Therefore, I credit Smith’s testimony on this point.
Once Smith returned to the corporate office in Troy, Illinois, he spoke with Gregg in
human resources about Orozco disrupting his work with her complaints to him about being
treated unfairly by management and her threats to disrupt to the upcoming company picnic. This
was not his first time complaining to Gregg about Orozco interrupting his work with her
socializing.

18
Orozco denies talking with Smith for a prolonged period while he was in office. She insists she waited until
after hours in the parking lot to talk with him about the written warning she had received. Smith insists otherwise. I
credit Orozco’s testimony based on my earlier assessment of his veracity, his overall demeanor and the totality of
the evidence.
19
Evidence was also presented that Castro wore jeans to the office in violation of the dress code policy but was
not disciplined. (GC Exh. 20.)
20
My review of the photograph convinces me that Rehmke’s dress was about 4 inches or more above her knees.
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K. June 27 Respondent Terminates Orozco
On June 26 Gregg contacted McFadden to inform her that Smith had complained to
human resources about Orozco talking to him excessively which precluded him from completing
his work in a timely manner. The same day McFadden and Rehmke made the decision to
terminate Orozco.21 Consequently, on June 27 they met with Orozco at the conference table in
the back room of the Galesburg office. Rehmke locked the front door to the office, at which
point Orozco was handed a letter explaining the reasons for her termination. (GC Exh. 6.) The
termination letter stated that she had exhibited unprofessionalism consisting of “attitude, dress
code and negativity to other staff and corporate representatives.” Id. The letter read in part,
I would ask you to refrain from discussing UniQue’s business or any member of
our staff in a negative manner that could hinder our business in anyway, this
includes discussing UniQue with any of our associates. If we are made aware of
any negative comments to community members, customers or prospect (sic)
customers we will take legal action.
(GC Exh. 6.) McFadden continued the meeting by asking Orozco about the substance of her
conversation with Smith on June 11. Orozco responded several times that she did not know to
what McFadden was referring. Finally, McFadden asked her if she had told Smith she was going
to complain to Regional Manager Ladd and Gregg about being disciplined. Orozco told her that
she was upset about being issued the written warning on June 3 and had discussed it in
confidence with Smith. Orozco admitted that she told him she was going to complain to Ladd
and Gregg about the discipline she received. McFadden told her that she had placed Smith in a
“bad spot” by talking with him. Both McFadden and Rehmke reminded her that if she had an
issue with either of them she should have discussed it with them. McFadden ended the meeting
by instructing Orozco to gather her personal items and leave the office. Orozco’s termination
was effective immediately.
L. Management’s warns Orozco not to contact Respondent’s staff
By letter dated June 27 McFadden informed Orozco that she was prohibited from
contacting “in the form of a phone call, email, social media or in person any office, staff
associates or customers of UniQue Personnel Consultants, or any public function to which
UniQue staff are present particularly the one at 1255 Monmouth Blvd Galesburg, IL 61401 other
than to contact Human Resources regarding any benefits or final pay information.” (GC Exh. 7.)
Orozco was also notified that a copy of the letter had been forwarded to the Galesburg Police
Department and the Knox County State Attorney’s Office. Id.

21
Later in her testimony McFadden claimed she alone made the decision to terminate Orozco, and Rehmke was
only present at the meeting because she was Orozco’s immediate supervisor. She contradicts, without explanation,
her initial testimony that she and Rehmke together made the decision to terminate Orozco. Consequently, I do not
credit her testimony on this point and find that both McFadden and Rehmke made the decision to discharge Orozco.
(Tr. p. 29, 235.)
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III. DISCUSSION AND ANALYSIS
A. LEGAL STANDARD FOR PROTECTED CONCERTED ACTIVITY
Section 8(a)(1) of the National Labor Relations Act (NLRA/the Act) provides that it is an
unfair labor practice for an employer to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act. The rights guaranteed in Section 7
include the right “to form, join, or assist 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.” See Brighton Retail, Inc., 354 NLRB
441, 441 (2009).
In Meyers Industries (Meyers 1), 268 NLRB 493 (1984), and in Meyers Industries
(Meyers II), 281 NLRB 882 (1986), the Board held that “concerted activities” protected by
Section 7 are those “engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself.” However, the activities of a single employee in enlisting
the support of fellow employees in mutual aid and protection is as much concerted activity as is
ordinary group activity. Individual action is concerted if it is engaged in with the object of
initiating or inducing group action. Whitaker Corp., 289 NLRB 933 (1988). A conversation can
constitute concerted activity when “engaged in with the object of initiating or inducing or
preparing for group action or [when] it [has] some relation to group action in the interest of the
employees.” Meyers II, supra, 281 NLRB at 887 (quoting Mushroom Transportation Co., 330
F.2d 683, 685 (3 Cir. 1964)). The object of inducing group action, however, need not be
expressed depending on the nature of the conversation. See Hoodview Vending Co.., 359 NLRB
No. 36, slip op. at 4–5 (2012).
An employer violates Section 8(a)(1) of the Act if it disciplines or discharges an
employee for engaging in activity that is “concerted” within the meaning of Section 7 of the Act.
If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the
employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action was motivated by the employee’s
protected, concerted activity. Relco Locomotives Corp., 358 NLRB 37 (2012) (citing Meyers
Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once
the General Counsel establishes such an initial showing of discrimination, the employer may
present evidence, as an affirmative defense, showing it would have taken the same action even in
the absence of the protected activity. The General Counsel may offer evidence that the
employer’s articulated reasons are pretext or false. Relco, supra.
B. July 11Respondent Forbids Orozco from Discussing with Coworkers
Terms and Conditions of Employment
The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act when on
June 27 the Respondent, through Rehmke, instructed its employees not to talk to other
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employees about terms and conditions of employment. Specifically, the General Counsel alleges
that Rehmke told Orozco that if she had an issue with either her or McFadden she was to discuss
it with them, rather than voicing her complaints about them to other employees. The Respondent
did not specifically address this issue in its posthearing brief, except for a generalized argument
that Orozco did not engage in concerted activity.
The Board has held that prohibiting employees from discussing terms and conditions of
employment, particularly discipline or potential discipline, violates Section 7 of the Act.
Employees have a right to discuss discipline with each other because those discussions may
induce employees to take collective action. Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004); Waco, Inc., 273 NLRB 746, 748 (1984). See also Lafayette Park Hotel, 326 NLRB 824
at 828 (1998) (citing Norris/O’Bannon, 307 NLRB 1236, 1245 (1992)). It is not relevant
whether an employer’s prohibition on discussing terms and conditions of employment is a
request or order, nor must it contain a direct or specific threat of discipline to be a violation of
employees’ Section 7 rights. Franklin Iron & Metal Corp., 315 NLRB 819, 820 (1994), enfd. 83
F.3d 156 (6th Cir. 1996); Westside Community Mental Health Center, 327 NLRB 661, 666
(1999) (supervisor’s instruction to employees not to discuss their discipline found unlawful
restraint of Section 7 rights, even though the instruction contained no explicit threat of a
penalty). However, an employer might avoid liability if it can establish that there is a legitimate
and substantial justification that outweighs the Section 7 rights of employees. Verizon Wireless,
349 NLRB 640, 658-659 (2007); Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001).
It is undisputed that at the meeting with Orozco on June 27 McFadden asked Orozco
what she said to Smith and if she told him that she was going to voice her complaint that she had
been unfairly disciplined with human resources and upper management at the company picnic.
After Orozco reluctantly admitted to the conversation with Smith, Rehmke told her if she had a
problem with McFadden to come talk to Rehmke. McFadden reinforced the admonishment by
telling her if she has an issue with Rehmke she should discuss it with McFadden. Within
minutes of this exchange, McFadden handed Orozco her termination letter and Orozco collected
her personal belongings and left the building.
I find that McFadden’s and Rehmke’s instruction to Orozco on June 27 was clearly a
restraint on Orozco’s and other employees’ Section 7 rights to speak with fellow employees
about terms and conditions of employment and interferes with their ability to engage in
collective action with fellow workers. The June 27 meeting was not the first time that McFadden
had told Orozco she should not discuss their conversations with her coworkers. As previously
noted, McFadden remarked in Orozco’s performance appraisal that she was displeased that
Orozco discussed with coworkers issues that McFadden voiced with her in private.
Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act as alleged in
the complaint paragraph 4(d) (ii).
C. Alleged Interrogation of Orozco
The General Counsel argues that the Respondent, through Rehmke, interrogated its
employees about their concerted activities. The General Counsel contends that Rhemke’s
questions to Orozco during their meeting on June 27, 2014, were coercive, intimidating, and
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amounted to an unlawful interrogation. The Respondent did not specifically address this issue in
its posthearing brief, except for a generalized argument that Orozco did not engage in concerted
activity.
I find that the General Counsel has failed to establish that the Respondent, through
Rehmke, unlawfully conducted an interrogation of its employees in violation of Sections 8(a)(1)
of the Act for the reasons discussed below.
The Board considers the totality of the circumstances in deciding whether questioning
rises to the level of an unlawful interrogation. Rossmore House, 269 NLRB 1176 (1984).
Moreover, the Board has determined that in applying the Rossmore test, it is appropriate to
consider the factors established in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Under the
Bourne test, the factors to consider are: background of any employer hostility; the nature of the
information sought; the identity of the questioner; the place and method of interrogation; and the
truthfulness of the employee’s reply. Westwood Health Care Center, 330 NLRB 935, 939
(2000). In applying these factors, the question to be answered is whether, based on the facts of
the specific case, the questioning at issue would reasonably tend to interfere with, restrain, or
coerce employees in the exercise of their statutory rights. Rossmore House, 269 NLRB 1176,
1177 (1984); Temecula Mechanical, Inc., 358 NLRB No. 137 (2012).
Although the complaint alleges that Rehmke was responsible for the interrogation that
occurred on June 27 the evidence does not support this charge. Neither McFadden nor Rehmke
provided any testimony regarding what was said in the meeting. They also did not dispute
Orzoco’s version of the conversation. Orozco testified that McFadden was the official
responsible for questioning her about her conversation with Smith. According to Orozco, the
only comment Rehmke made was, “I told you … that if you had a problem to come talk to me or
Melinda. If you had a problem with Melinda you’d come talk to me.” (Tr. 81.) This falls short
of meeting the test for finding that a conversation amounts to an unlawful interrogation.
I find, however, that McFadden’s questions to Orozco amounted to unlawful
interrogation. The record establishes that on the morning of June 27 McFadden and Rehmke met
with Orozco at the conference table in the back room of the Galesburg office. Rehmke locked
the front door to the office, presumably for privacy. There is no evidence that prior to the start of
the meeting Orozco was told of any legitimate reason for a meeting in which she was asked by
McFadden about her conversation with Smith. Although Orozco responded truthfully to
McFadden’s queries, she did so reluctantly after McFadden repeatedly questioned her about what
she told Smith. There is also no evidence that Rehmke or McFadden gave her any assurances
that she could speak freely about the substance of her conversation with Smith without reprisal.
On the contrary, the meeting ended with McFadden handing Orozco a termination letter.
The evidence establishes that there had been several incidents leading to the June 27
meeting that reveals the Respondent’s hostility towards Orozco: the write-up Orozco received for
the outfit she wore at the golf event; McFadden noting in Orozco’s performance appraisal her
repeated displeasure that Orozco discussed their conversations about work issues with other
coworkers; and McFadden and Rehmke telling Orozco that she should not share her complaints
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about them with coworkers. Second, the evidence shows that one of the primary purposes of the
June 27 meeting was for McFadden to specifically ask Orozco if she talked to Smith, what she
told him, and if she told him she was going to speak to upper management about being
disciplined. Both McFadden and Rehmke were Orozco’s superiors in the company’s hierarchy,
and had authority to discipline or fire her. The evidence establishes that their relationships never
progressed to a friendship, but rather remained one of supervisor and employee.
I find that although Rehmke did not question Orozco about her concerted activity in this
instance, McFadden’s questioning would reasonably tend to interfere with, restrain, or coerce
employees in the exercise of their statutory rights. Accordingly, I find that the Respondent
violated Section 8(a)(1) of the Act as alleged in complaint paragraph 4(d)(i) when on June 27,
the Respondent, through its manager, unlawfully interrogated Orozco.
D. June 27email threatening Orozco with prosecution
The General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act
when McFadden sent Orozco an email instructing her not to discuss terms and conditions of
employment with other employees, customers, prospective customers, or the general public; and
threatened her with prosecution by local authorities if she discussed her terms and conditions of
employment with other employees, customers, prospective customers, or the general public. The
Respondent did not specifically address this issue in its posthearing brief, except for a
generalized argument that Orozco did not engage in concerted activity.
The Board has held that employees have a right under Section 7 to discuss “discipline or
disciplinary investigations involving fellow employees.” Fresh & Easy Neighborhood Market,
358 NLRB No. 65 (2012); Caesar’s Palace, 336 NLRB 271 (2001); Verizon Wireless, 349
NLRB 640, 658-659 (2007). Similarly, it is unlawful for an employer to threaten legal action
against an employee in retaliation for engaging in protected activity. See Carborundum Resistant
Materials Corp., 286 NLRB 1321 (1987). As noted in the General Counsel’s post-hearing brief,
the Board has upheld a judge’s finding that an employer threatening to file harassment charges
against an employee for engaging in protected and union activity violates the Act. River Falls
Healthcare, 2014 WL 4090575 (N.L.R.B. Aug 19, 2014).
The evidence is undisputed that McFadden sent Orozco an email threatening her with
prosecution by local authorities if she contacted “any of the Respondent’s offices, staff,
associates or customers for any reason.” I find that the language in the email is so broadly
worded that it would chill employees in the exercise of their protected activities. Orozco could
reasonably interpret the email as a prohibition against contacting any of the Respondent’s
offices, staff, associates or customers to discuss wages and salary information, employee contact
information, discipline, and other terms and conditions of employment. She could also
reasonably interpret the email to prohibit heated discussions about the fairness of her disciplines
and termination, the Respondent’s dress code policy, or a myriad of other protected subjects.
In order to justify a prohibition against employees discussing terms and conditions of
employment with other coworkers or people, the Respondent must show that it has a legitimate
business justification. See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15
(2011) (the Board held no legitimate and substantial justification when an employer promulgates
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a blanket prohibition against employees discussing matters under investigation). The question
becomes whether the Respondent’s stated legitimate and substantial business reasons outweigh
the employees’ exercise of their Section 7 rights. See also Banner Estrella Medical Center, 358
NLRB No. 93, slip op. 2 (2012) (the Board quoting from Hyundai America Shipping Agency,
“Rather, in order to minimize the impact on Section 7 rights, it was the Respondent’s burden ‘to
first determine whether in any give[n] investigation witnesses need [ed] protection, evidence
[was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was]
a need to prevent a cover up.’”). Id.
In this instance, the Respondent must show that sending the email was necessary because
its staff, employees, associates and customers were in danger of being harassed or harmed by
Orozco. McFadden testified that Castro and Smith’s concerns and Orozco’s comments about
friends who “had her back” justified sending Orozco the email. I find, however, that the
Respondent has not met its burden because it failed to present substantive evidence that those
concerns were credible.
Although Castro testified “I’m not afraid of Ana, but I am a little bit in fear of what she’s
capable of doing,” it is not relevant to the Respondent’s alleged concerns. Castro admitted that
she never voiced this concern to any of the Respondent’s employees, including McFadden or
Rehmke. Castro also alleged that Orozco’s nonwork-related conversations were “disruptive” and
“harassing” to her ability to do her work. (Tr. 166-167). Read within context, it is clear that
Castro did not view these conversations as menacing or threatening, but rather as an annoyance.
Further, after Orozco was terminated, Castro continued to be close friends with her and admitted
she was not afraid of Orozco. Likewise, Smith testified that his complaint that Orozco was
“disruptive” and “harassing” referred to his belief that she talked too much while he was trying
to work. According to him, this made it more difficult to timely complete his work because she
kept interrupting him to talk. Consequently, I find neither Castro’s nor Smith’s testimony would
justify the Respondent sending Orozco the email at issue. Finally, Orozco’s alleged comments
that certain people who came into the Galesburg office were her friends and “had her back” if
she needed them is too ambiguous and subject to different interpretations to justify violating her
section 7 rights by threatening her with prosecution for discussing her terms and conditions of
employment with other employees, customers, prospective customers, or the general public.
Accordingly, I find that the Respondent violated section 8(a)(1) of the Act as alleged in
paragraph 4(e)(i)(ii) of the complaint.
E. Orozco’s termination on June 27, 2014
The General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by
terminating Orozco in retaliation for her engaging in protected concerted activities. Further, the
General Counsel argues that the reasons given for Orozco’s termination are pretextual. The
Respondent counters that Orozco was not engaged in protected concerted activity because she
was advocating solely by and on behalf of herself. Respondent further contends that even
assuming Orozco’s activity was of a protected concerted nature, it was unaware of it. The
Respondent argues that, even assuming the General Counsel established its initial burden of
proof, Orozco was discharged for nondiscriminatory reasons.
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I find that the General Counsel has established that the termination of Orozco effective
June 27 violated Section 8(a) (1) for the reasons discussed below.
As with 8(a)(3) discrimination cases, the Board applies the Wright Line22 analysis to 8(a)
(1) concerted activity cases that involve an employer’s motivation for taking an adverse
employment action against employees. Hoodview Vending Co., supra; Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063, 1065 (2009). The burden is on the General Counsel to
initially establish that a substantial or motivating factor in the employer’s decision to take
adverse employment action against an employee was the employee’s union or other protected
activity. In order to establish this initial showing of discrimination, the evidence must prove: (1)
the employee engaged in concerted activities; (2) the concerted activities were protected by the
Act; (3) the employer knew of the concerted nature of the activities; and (4) the adverse action
taken against the employee was motivated by the activity. Once the General Counsel has met its
initial showing that the protected conduct was a motivating or substantial reason in employer’s
decision to take the adverse action, the employer has the burden of production by presenting
evidence the action would have occurred even absent the protected concerted activity. The
General Counsel may offer proof that the employer’s articulated reason is false or pretextual.
Hoodview Vending Co., supra 359 NLRB No. 36, slip op at 5. Ultimately, the General Counsel
retains the ultimate burden of proving discrimination. Wright Line, id. However, where “the
evidence establishes that the reasons given for the Respondent’s action are pretextual—that is,
either false or not in fact relied upon—the Respondent fails by definition to show that it would
have taken the same action for those reasons, absent the protected conduct, and thus there is no
need to perform the second part of the Wright Line analysis.” Golden State Foods Corp., 340
NLRB 382, 385 (2003) (citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982)). The Wright Line analysis is not applicable when there is no dispute that the
employer took action against the employee because the employee engaged in protected concerted
activity. Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. 63 Fed. Appx. 524 (D.C.
Cir. 2003).
A Wright Line analysis is appropriate in this case because the Respondent’s motive is at
issue. In order to sustain its initial burden of proof, the General Counsel must first prove that
Orozco engaged in concerted protected activity and it was the substantial or motivating factor in
the Respondent’s decision to discharge her. Upon such a showing, the Respondent then must
present evidence that it would have terminated Orozco even absent the protected concerted
activity. See Correctional Medical Services, 356 NLRB No. 48, slip op. at 2 (2010).
The evidence establishes that Orozco engaged in concerted activities when she discussed
the discipline she received and the unfairness of the Respondent’s dress code policy with
coworkers. The counsel for the General Counsel correctly notes in its posthearing brief that the
Board has consistently held that “an employee who asks for help from coworkers in addressing
an issue with management does, indeed, act for the purpose of mutual aid or protection, even
where the issue appears to concern only the soliciting employee, the soliciting employee would
receive the most immediate benefit from a favorable resolution of the issue, and the soliciting
employee does not make explicit the employees’ mutuality of interests.” (GC Br. 26) See also,
Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12, slip op. at 3 (2014) (explaining the

22251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982).
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“mutual aid or protection” analysis focuses on whether there is a connection between the activity
“and matters concerning the workplace or employees’ interests as employees.”) Orozco engaged
in such discussions when she asked Smith for his advice about the discipline she received on
June 2. She also voiced to other coworkers those same concerns about the unfairness of her
discipline and the disparate manner in which the Respondent issued discipline for violations of
that policy. See Fresh & Easy Neighborhood Market, 358 NLRB No. 65 (2012); Caesar’s
Palace, 336 NLRB 271 (2001); Verizon Wireless, 349 NLRB 640, 658-659 (2007).
I also find that the evidence establishes the Respondent had knowledge of the concerted
activity prior to terminating Orozco. McFadden notated in Orozco’s July 21, 2013, performance
appraisal that she was aware of Orozco sharing with coworkers work related discussions that
they had which she wanted to remain between them. Credible testimony was introduced that
months and days prior to her termination, Orozco complained to Castro, Smith, and Collins
about the Respondent’s dress code policy and the discipline she received on June 3 for violating
the policy. About a week after June 3 Smith acknowledged that he told the Human Resources
Manager, Chantelle Gregg, about Orozco’s complaints about being disciplined and her issues
with management. He also noted that he informed Gregg that Orozco said she was going to the
company picnic and complain to President Hunsche and Regional Manager Ladd about her belief
that she was being treated unfairly.
I find that Orozco’s discussions with coworkers about her belief she was being
disciplined unfairly and the dress code policy was being applied inconsistently constitutes
protected concerted activity. I also find that the Respondent, through its managers and human
resources staff, was aware of the protected activity prior to terminating her. Clearly discharging
Orozco was an adverse employment action. The remaining question, therefore, is whether the
Respondent terminated Orozco because of discriminatory animus.
Discriminatory animus can be inferred from both circumstantial and direct evidence. The
Board considers several factors in determining whether an inference of discriminatory animus
can be sustained. The factors to consider are proffering false reasons in defense of taking the
adverse action, disparate treatment of certain employees with similar work records or offenses,
deviation from past practice, and the proximity in time of the discipline to the protected activity.
Embassy Vacation Resorts, 340 NLRB 846, 847 (2003); Austal USA, LLC, 356 NLRB No. 65,
slip op. at p.1 (2010); Lucky Club Co, 360 NLRB No. 43 (2014); Relco Locomotives, supra.
I find that the Respondent’s actions evince discriminatory animus when: Orozco was
interrogated about her conversations with coworkers; she was chastised for sharing with
coworkers her discussions with management; and she was instructed not to discuss terms and
conditions of employment with coworkers. The evidence is undisputed that prior to terminating
Orozco, Smith told Gregg that Orozco interrupted his work with excessive talking; and that she
had informed him that she was going to elevate her complaints up the management hierarchy
about being disciplined and issues with her managers. The evidence is also undisputed that
Smith was told the information would be forwarded to McFadden. (136-139, 148) Moreover,
the Respondent admits in its position statement that one of the reasons for Orozco’s discharge
was for her threat “to take action to get her managers discharged.” (GC Exh. 8.) The Board has
held that a judge may find that a factual assertion in a party’s position statement is substantive
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evidence or an admission. See United Scrap Metal, Inc., 344 NLRB 467, 467-468 (2005); Elyria
Foundry Co., 321 NLRB 1222, 1232-1233, and 1251 (1996), enfd. 205 F.3d 1341 (6th Cir.
2000).
I do not credit McFadden’s testimony that only after Orozco’s termination did she learn
about Orozco’s threats to complain to Hunsche and Ladd about her discipline. McFadden
readily admitted that Gregg informed her of Smith’s complaints about Orozco’s excessive
talking and the evidence has not been refuted that Gregg told Smith she would forward the
information about Orozco’s alleged threats to disrupt the picnic by complaining about her
discipline. It seems to me that a known threat by an employee to disrupt a company picnic
would be information more important for human resources to convey to the manager than a
complaint that Orozco talked too much. Yet, McFadden would have me believe that despite the
disparity in importance, Gregg conveyed the more minor infraction while neglecting to convey
an alleged credible threat. This is especially significant considering McFadden’s testimony that
the staff was in fear of what Orozco might do after she was discharged because of comments she
allegedly made in the past about activity at her family bar and people she knew that would “have
her back.”
As already noted in the decision, McFadden expressed displeasure with Orozco for
talking with coworkers about their conversations on work related issues for months, weeks, and
minutes prior to Orozco’s discharge. Minutes before issuance of the termination letter, Rehmke
reiterated that Orozco should not discuss problems that she has with managers with anyone but
other managers. Further, Orozco was terminated within weeks of the Respondent’s human
resources manager learning of, and forwarding to, McFadden Orozco’s threat to get her
managers fired by complaining about them to Hunsche and Ladd at the company picnic.
I find that the General Counsel has established its initial burden of proof. Therefore, the
Respondent must show that Orozco would have been terminated even in the absence of the
protected conduct. See Wright Line, supra, 251 NLRB at 1089.
The Respondent argues that it terminated Orozco because of her “unprofessionalism and
disruptive behavior.” (R. Br. 16.) According to the Respondent, Orozco was terminated for
interrupting other employees work by excessively discussing personal matters and complaining,
dress code violations, and threatening to make a scene at the company picnic to get her managers
discharged. However, I find that the Respondent’s purported reasons for Orozco’s discharge are
pretextual. The Respondent seized on a few trivial offenses committed by Orozco to effectuate
its true purpose of discharging Orozco because of her concerted protected activity.
McFadden initially testified that she was the sole decision-maker regarding Orozco’s
discharge and one of the reasons for Orozco’s termination was that she continued to violate the
dress code policy.23 The March 14, 2013, written warning issued to Orozco noted that if she
violated the dress code policy again, she would be issued a final warning and subject to
termination. Her second written warning for violating the dress code policy stated it was her
final warning and “[a]dditional issues could result in termination.” (GC Exh. 11) Although I
agree that the first written warning was justified, the second warning was clearly unwarranted

23
McFadden inexplicably changed her testimony and claimed that she made the decision to terminate Orozco in
collaboration with Rehmke. This is another example of her shifting defenses and evasive responses.
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and a pretext for retaliating against her for engaging in protected concerted activities. The dress
code explicitly allows for female employees to wear dress capris that are not tight to the leg or
made of denim fabric. Similarly, the email that Rehmke sent notifying employees of the
modified dress code for the golf event did not prohibit capris. My review of a picture of
Orozco’s pants shows that they are capris pants that clearly are not made from denim material,
tight to the leg, or too short. (GC Exh. 18.) Even assuming that the pants were cargo pants as
alleged by the Respondent, they were no more “unprofessional” for the outdoor golf event than
the shorts Rehmke wore to work. Further, there is nothing in the written dress code policy or
Rehmke’s email prohibiting female employees from wearing camouflage patterned capris pants.
The record is undisputed that Orozco’s shirt and shoes complied with the dress code requirement
for the golf event. Thus, her written warning was unwarranted and used to mask the
Respondent’s true discriminatory motive for terminating her. It is revealing that Collins and
Berger also wore capris pants to the golf outing but were not disciplined. In fact, Berger wore
sandals at the golf event that showed her tattoo in violation of the dress code policy. On another
occasion Castro wore jeans to work without being disciplined, which was explicitly prohibited in
the dress code. (GC Exh. 9, 20.) Consequently, the evidence is clear that Orozco was treated
differently from similarly situated employees who had committed the same offense.
Second, the evidence establishes that other employees, including managers, socialized in
the workplace without being disciplined. During working hours, McFadden sold products
(Scentsy and Girl Scout cookies), and sent non-work-related emails to employees. Castro paid
personal bills, ordered drug prescriptions, and held short telephone conversations with her
husband while on company time. The Respondent does not deny that other employees engaged
in non-work-related conversations but argues that no one except Orozco talked excessively about
personal matters while at work. I find, however, that this reason is a pretext for discriminatory
retaliation. McFadden noted in Orozco’s performance appraisal that some coworkers had
complained about her interrupting their work by talking too much. In the same performance
review, however, McFadden commented that Orozco performs well in her position and has only
“minor things that need to be worked on.” (GC Exh. 4.) This would seem to indicate that
McFadden considered Orozco’s socializing to be a “minor” issue. The second review that
Orozco received was completed by Rehmke, who made numerous complimentary comments
about her job performance, the high esteem coworkers and associates have for her, and her great
attitude. Shortly after the performance appraisal, McFadden gave Orozco a pay raise for
“outstanding performance and growth.” (GC Exh. 5.) I do not find credible the Respondent’s
assertion that Orozco’s “socializing” was so disruptive to the workplace that it warranted her
termination. It is contradicted by the July 21, 2013 performance appraisal that deemed her
socializing to be a “minor” issue, the November 20, 2013 performance appraisal that was replete
with praise and high ratings, and a pay raise effective November 25, 2013, for “outstanding
performance and growth.” It is also telling that despite the supposed disruptive and harassing
nature of Orozco’s socializing she was never issued an official verbal or written warning or other
discipline. Consequently, the Respondent tolerated this behavior from Orozco throughout her
tenure and terminated her for it only after it learned of her protected concerted activity. This is a
departure from its past practice of tolerating her socializing and further demonstrates animus. See
JAMCO, 294 NLRB 896, 905 (1989) (clear departure from past practice evidence of
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discriminatory motive); Lucky Cab Co., 360 NLRB No. 43, slip op. at 6 (2014) (citing Approved
Electric, 356 NLRB No. 45, slip op. at 3 (2010)).
As previously noted, the position statement submitted on behalf of the Respondent by its
attorney admitted that a reason for Orozco’s termination was because she threatened to “take
action to get her managers discharged.” (GC Exh. 8.) I have already found that voicing her
intentions to inform upper management that she had been unfairly disciplined by local
management is a protected concerted activity. Therefore, the Respondent’s admission supports a
violation of the Act.
The termination letter issued to Orozco also lists, in addition to the dress code violation,
attitude and negativity to staff and corporate representatives. I have already pointed out that in
her most recent performance appraisal, Rehmke noted that Orozco’s coworkers and associates
held her in high regard which lays bare the fallacy of using “negativity” as a basis for
termination. Further, discharging an employee for “attitude” without more specificity frequently
runs afoul of the Act. The Board critically reviews such action because it often masks an
employer’s attempt to discipline or terminate an employee because the employee engaged in
protected concerted activity. See Citizens Investment Services Corp., 342 NLRB 316, 328
(2004), enfd. 430 F.3d 1195 (D.C. Cir. 2005) (taking an adverse action against an employee
because of “attitude” can belie the employer’s discriminatory motive); Boddy Construction Co.,
338 NLRB (2003) (the Board noted, “employer complaints about ‘bad attitude’ are often
euphemisms for prounion sentiments, particularly when there is no alternative explanation for
the perceived ‘attitude’ problem.” Id., citing James Julian, Inc. of Delaware, 325 NLRB 1109
(1998)). –The Respondent has failed to articulate, with specificity, the nature of Orozco’s
“attitude” and why it warrants the most severe form of workplace punishment, termination.
Terminating Orozco for “attitude” is especially perplexing in light of the praise heaped on her a
few months earlier noting her willingness to assist the office in whatever manner needed, her
wonderful attitude, the high regards coworkers have for her, and the pay increase she received
for “outstanding performance and growth.” (GC Exh. 4, 5, 25)
Accordingly, I find that the Respondent violated section 8(a)(1) of the Act as alleged in
paragraph 4(b) of the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Unique Personnel Consultants, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent violated Section 8(a)(1);
a. Terminating Orozco on June 27, 2014
b. Interrogating employees about their protected activities
c. Directing employees not to discuss their terms and conditions of
employment with other employees, customers, prospective customers, or the
general public
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d. threatened employees with prosecution or legal action for discussing their terms
and conditions of employment with other employees, customers, prospective
customers, or the general public
3. The above violations are unfair labor practices that affects commerce within the
meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not violated the Act except as set forth above.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent having discriminatorily discharged its employee, Ana Orozco, must
offer Ana Orozco reinstatement and make her whole for any loss of earnings and other benefits
she suffered as a result of the discrimination against her from the date of the discrimination to the
date of her reinstatement. Further, the Respondent must remove from its files (both official and
unofficial) all references to the discharge of Ana Orozco.
Backpay because of the discriminatory discharge shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010), enf. denied on other grounds sub. nom. Jackson Hospital Corp. v. NLRB,
647 F.3d 1137 (D.C. Cir. 2011).
The Respondent shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Respondent shall also compensate Ana
Orozco for the adverse tax consequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year, Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014).
The Respondent having discriminatorily issued an email to its employee, Ana Orozco,
threatening her with prosecution by local authorities or legal action for discussing her terms and
conditions of employment with other employees, customers, or the general public must rescind
the email and expunge it from Ana Orozco’s personnel file and any other files maintained by the
Respondent which contains the discriminatorily issued email.
The Respondent having discriminatorily sent a letter to the Knox County State’s
Attorney’s Office and the Galesburg, Illinois Police Department must notify both in writing that
it retracts its June 27, 2014, letter instructing employees to not engage in protected concerted
activity or that it would contact the police to stop such protected activity.
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Further, the Respondent will be required to post and communicate by electronic post to
employees the attached Appendix and notice that assures its employees that it will respect their
rights under the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended24
ORDER
The Respondent, Unique Personnel Consultants, Inc., Troy, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with prosecution or legal action for talking to other
employees, customers, or the general public regarding their terms or conditions of employment.
(b) Discharging or otherwise discriminating against its employees in retaliation for their
protected concerted activities.
(c) Interrogating its employees about their protected concerted activities.
(d) Instructing its employees not to talk to or discuss with other employees, customers, or
the general public their terms and conditions of employment.
(e) In any like or related manner, interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Ana Orozco full
reinstatement to her former position or, if that position no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges previously
enjoyed.
(b) Within 14 days from the date of the Board’s Order, make Ana Orozco 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

24
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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24
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Ana Orozco, and within 3 days thereafter notify Ana
Orozco in writing that this has been completed and that the discharge will not be used against her
in any way.
(d) 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 under the terms of this Order.
(e) Within 14 days from the date of the Board’s Order rescind the email and expunge
from Ana Orozco’s personnel file and any other files maintained by the Respondent the email it
issued to its employee, Ana Orozco, threatening her with prosecution by local authorities or legal
action for discussing her terms and conditions of employment with other employees, customers,
or the general public.
(f) Within 14 days from the date of the Board’s Order retract, in writing, the letter it sent
on June 27, 2014, to the Knox County State’s Attorney’s Office and the Galesburg, Illinois
Police Department instructing employees to not engage in protected concerted activity or that it
would contact the police to stop such protected activity.
(g) Within 14 days after service by the Region, post at its facility in Galesburg, Illinois,
copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms provided by
the Regional Director for Region 25 Sub-region 33, 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 and members are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. 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 December 14, 2012.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

25 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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Dated, Washington, D.C. May 28, 2015
____________________________
Christine E. Dibble (CED)
Administrative Law Judge
JD–30–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT ask you about your discussions with employees.
YOU HAVE THE RIGHT to discuss wages, hours, and other terms and conditions of
employment with other employees and WE WILL NOT do anything to interfere with your
exercise of that right.
WE WILL NOT instruct you not to speak to each other about terms and conditions of
employment.
WE WILL NOT threaten you with prosecution or legal action for talking to other employees,
customers or the general public regarding your wages, hours, and working conditions.
WE WILL NOT fire employees because they exercise their right to discuss wages, hours, and
working conditions with other employees.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL offer Ana Orozco her job back along with her seniority and all other rights or
privileges.
WE WILL pay Ana Orozco for the wages and other benefits she lost because we fired her.
JD–30–15

WE WILL compensate Ana Orozco for the adverse tax consequences, if any, of receiving a
lump-sum backpay award.
WE WILL file a report with the Social Security Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL remove from our files all references to the discharge of Ana Orozco and WE WILL
notify her in writing that this has been done and that the discharge will not be used against her in
any way.
WE WILL send a letter to the Knox County’s State’s Attorney’s Office and the Galesburg,
Illinois Police Department rescinding our June 27, 2014 letter which threatened prosecution of
Ana Orozco if she contacted our employees, customers, or the general public.
UNIQUE PERSONNEL CONSULTANTS, 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.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-132398 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
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, (317) 226-7413.