Unique Personnel Consultants, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 112 (N.L.R.B. 2016)

364 NLRB No. 112
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
UniQue Personnel Consultants, Inc. and Ana Orozco
Case 25–CA–132398
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 28, 2015, Administrative Law Judge Christine
E. Dibble issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
The judge found, among other things, that the Re-
spondent violated Section 8(a)(1) of the Act by discharg-
ing employee Ana Orozco for engaging in protected con-
certed activity. The judge found that Orozco was dis-
charged after seeking advice from a fellow employee

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to include the
standard remedial language for the violations found, and shall substitute
a new notice to conform to the language in the Order as modified. We
shall also modify the judge's recommended tax compensation and So-
cial Security reporting remedy, and the corresponding provisions of the
Order and notice, in accordance with our decision in AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016). In accordance with our recent
decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall also
order the Respondent to compensate employee Ana Orozco for her
search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). For the reasons stated in
his separate opinion in King Soopers, supra, slip op. at 9–16, our dis-
senting colleague would adhere to the Board’s former approach, treat-
ing search-for-work and interim employment expenses as an offset
against interim earnings.
about how to respond to the discipline she received for
violating the Respondent’s dress code, which Orozco
believed was being applied unfairly and inconsistently.
The judge found that this activity was protected and that
Orozco was discharged for it. As explained below, we
agree with the judge.4
Facts
The Respondent operates a staffing company with sev-
eral branches in Illinois. The Respondent maintains a
detailed dress code for its employees. The dress code
prohibits certain types of clothing and the display of
body piercing and tattoos while at work.
In August 2012, Orozco began working for the Re-
spondent as a temporary administrative assistant at its
Galesburg, Illinois office. In December, 2012, she be-
came a permanent employee. Although she was initially
told that her facial piercings were not problematic, in
January or February 2013, Supervisor Danielle Mason
instructed Orozco to remove her piercings while she was
at work, and on several occasions thereafter Managing
Consultant Melissa McFadden told her to remove her
piercings. In addition, Orozco was verbally counseled
about wearing jeans in the workplace.
On March 14, 2013, Orozco arrived at the office wear-
ing a jogging suit, having just undergone a medical pro-
cedure. Although she intended to change into appropri-
ate attire upon her arrival, her tasks required immediate
attention and she did not have an opportunity to change
into work attire. McFadden told her that wearing the jog-
ging suit violated the dress code policy, and instructed

4 The judge also found that the Respondent violated Sec. 8(a)(1) of
the Act by interrogating Orozco about that protected concerted activity,
instructing her not to discuss her terms and conditions of employment
with her coworkers, and threatening her with legal prosecution if she
engaged in further protected concerted activity. We adopt those find-
ings for the reasons stated by the judge.
The Respondent contends that it was denied due process because the
complaint alleged that the interrogation was conducted by supervising
consultant Elyce Rehmke, but the judge found an unlawful interroga-
tion by managing consultant Melinda McFadden. We find no merit in
the Respondent’s contention, as the violation found is closely connect-
ed to the subject matter of the complaint allegation and was fully liti-
gated. Pergament United States, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990). Both the complaint allegation and the viola-
tion found concerned the same incident, and it is undisputed that both
Rehmke and McFadden were present during the meeting where the
questioning occurred. The relevant facts concerning this incident were
fully litigated at the hearing. Further, the Respondent does not claim it
would have presented any additional evidence or argued the case dif-
ferently had the allegation referred to McFadden asking the questions
rather than Rehmke. Accordingly, the judge’s finding did not deny the
Respondent due process. In adopting the judge’s finding, however, we
do not rely on her citation to Temecula Mechanical, Inc., 358 NLRB
1181 (2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
her to go home. She received a written discipline for this
dress code violation on March 18, 2013.
Around April 2014,5 Orozco began to believe that her
supervisors, McFadden and Rehmke, were being overly
critical of her. Orozco and fellow employee Anna Castro
discussed Orozco’s displeasure with the Respondent’s
dress code policy and the written warning she had re-
ceived in March 2013. Orozco told Castro that she be-
lieved she was being unfairly singled out for violating
the dress code.
On May 29, the Respondent emailed its employees
about a golfing event it was sponsoring on June 2. The
email set forth a dress requirement for the event that, in
relevant part, required female employees to wear collared
shirts provided by the Respondent and pants or non-
denim shorts that were not “too short.” Orozco attended
the golfing event wearing the Respondent’s collared shirt
and capri pants. Orozco observed that two other female
employees wore capri pants, and that Rehmke wore kha-
ki shorts. The following day, Rehmke issued Orozco a
written final warning for violating the dress code policy.
The warning stated: “Professional dress is required both
in the office and in public when representing UniQue.”
Orozco noted on her written warning that she disagreed
with the warning because she believed there was not
“anything wrong” with the pants she wore, as they were
not denim.
On June 3, Orozco complained to Castro and another
coworker, Emily Collins, about the discipline she re-
ceived. On June 11, Orozco again spoke about the mat-
ter with a third employee, Jasper Smith, as they walked
to the parking lot at the end of the day. Orozco asked
Smith if she could get his advice about a confidential
matter. Smith said yes, and Orozco told Smith about her
written warning for a dress code violation and explained
why she believed it was unfair. Orozco told Smith that
she was contemplating bringing the matter to the atten-
tion of higher management at an upcoming company
picnic. Smith responded that Orozco should not worry
about it and let the matter go. Orozco responded, “okay,”
and the conversation ended.6
About a week later, Smith informed the Respondent’s
human resources department of his conversation with
Orozco, and complained that Orozco had been disrupting
his work. On June 26, Human Resources Manager
Chantelle Gregg contacted McFadden about Smith’s
conversation with Orozco. McFadden and Rehmke then
decided to discharge Orozco.

5 All dates hereafter refer to 2014.
6 Although the judge did not reference Smith’s response to Orozco
in this conversation, Orozco’s testimony on this point is uncontradicted.
On June 27, McFadden and Rehmke met Orozco as
she entered the office and directed her to a conference
room at the rear of the office. After locking the front
door of the office to ensure privacy, Rehmke handed
Orozco a letter informing her that she was being dis-
charged and explaining the reasons.7 McFadden then
asked Orozco about her June 11 conversation with
Smith. Orozco initially asked her what she was talking
about. After McFadden repeated the question a few
times, Orozco admitted to speaking with Smith about the
written warning and about the idea of complaining to
higher management. McFadden replied that Orozco had
placed Smith in a “bad spot.” Both McFadden and
Rehmke told Orozco that she should have instead come
to them if she had an issue. McFadden then instructed
Orozco to collect her personal items and leave the office.
The Judge’s Decision
The judge found that the Respondent violated Section
8(a)(1) by discharging Orozco for her protected concert-
ed activity. Applying the Board’s decision in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Mgmt. Corp., 462 U.S. 393
(1983), the judge found that Orozco engaged in protected
concerted activity when she discussed with her cowork-
ers the discipline she received and the unfairness of the
dress code policy. Citing Fresh & Easy Neighborhood
Market, Inc., 361 NLRB No. 12, slip op. at 3 (2014),
where the Board found that an employee engaged in con-
certed activity by asking coworkers for signatures on a
document to be used in support of her sexual harassment
claim, the judge stated that an employee who asks for
help from coworkers in addressing an issue with man-
agement acts for the purpose of mutual aid and protec-
tion, even when the issue appears to most immediately
benefit the soliciting employee and therefore does not
make explicit the employees’ mutuality of interests. The
judge found that Orozco engaged in such conduct when
she asked Smith for advice about how to deal with the
unfairness of the discipline she received for the dress
code violations. The judge further found that the Re-
spondent had knowledge of Orozco’s activity, and that
the Respondent’s actions evinced animus toward that
activity. Finally, the judge found that the Respondent
failed to show that it would have terminated Orozco in
the absence of her protected concerted activity,8 and ac-

7 The letter stated that Orozco was discharged for exhibiting unpro-
fessionalism, and referenced “attitude, dress code and negativity to
other staff and corporate representatives.”
8 The judge found that the other purported reasons for Orozco’s dis-
charge were pretextual. We agree with these findings, for the reasons
stated in the judge’s decision.
UNIQUE PERSONNEL CONSULTANTS, INC. 3
cordingly found that her discharge violated Section
8(a)(1).
On exception, the Respondent maintains that Orozco’s
conversation with Smith was not protected concerted
activity and, therefore, the General Counsel did not sus-
tain his initial burden under Wright Line. Contrary to the
Respondent and our dissenting colleague, we agree with
the judge.9
Discussion
Employee conduct is protected under Section 7 of the
Act if it is concerted and engaged in for the purpose of
mutual aid or protection. “[W]hether an employee’s ac-
tivity is ‘concerted’ depends on the manner in which the
employee’s actions may be linked to those of his
coworkers.” Fresh & Easy, 361 NLRB No. 12, slip op.
at 3 (2014), citing NLRB v. City Disposal Systems, 465
U.S. 822, 831 (1984); Meyers Industries, 281 NLRB
882, 887 (1986) (Meyers II), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988). It is well established that employees
need not expressly state their intent to initiate group ac-
tion and that a concerted objective can be inferred from
the circumstances. E.g., Whittaker Corp., 289 NLRB
933, 933–934 (1988), and Root-Carlin, Inc., 92 NLRB
1313, 1314 (1951).
In Fresh & Easy, the Board found that an employee
engaged in concerted activity by asking three coworkers
to assist her in bringing her sexual harassment claim to
management, by signing a document she prepared me-
morializing the incident. The Board found that under
Meyers II and its progeny, the employee engaged in con-
certed activity by seeking her coworkers’ signatures,
even though she did not intend to pursue a joint com-
plaint. Fresh & Easy, slip op. at 3–4. The Board further
found that the employee’s activity was for the purpose of
mutual aid or protection, even though the employee
alone was the target of the harassment that was the sub-
ject of the claim. Among other authorities, the Board
cited Judge Learned Hand’s decision in NLRB v. Peter
Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505–
506 (2d Cir. 1942), where he stated as follows:
When all the other workmen in a shop make common
cause with a fellow workman over his separate griev-
ance, and go out on strike in his support, they engage in
a “concerted activity” for “mutual aid or protection,”
although the aggrieved workman is the only one of

9 In so doing, we do not rely on her citations to Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063 (2009), or Fresh & Easy Neighbor-
hood Market, 358 NLRB 537 (2012). However, we note that Hoodview
Vending Co., 359 NLRB 355 (2012), cited by the judge, was reaffirmed
by the Board at 362 NLRB No. 81 (2015).
them who has any immediate stake in the outcome. The
rest know that by their action each one of them assures
himself, in case his turn ever comes, of the support of
the one whom they are all then helping; and the solidar-
ity so established is “mutual aid” in the most literal
sense, as nobody doubts.
We find that the conduct at issue here is concerted.
Like the conduct in Fresh & Easy, Orozco sought to en-
list the assistance of her coworker, Smith, with a matter
concerning terms and conditions of employment. The
assistance sought was advice about how to respond to the
Respondent’s enforcement of its dress code, which Oroz-
co believed was disparately applied. “Even without
more, under Meyers II [supra] and its progeny, [an em-
ployee’s] conduct in approaching her coworkers to seek
their support of her efforts regarding this workplace con-
cern would constitute concerted activity.” See id. slip op.
at 3–4. Further, the Board has long held that employee
discussions in which advice about future action is sought
or offered constitute concerted activity. See Jhirmack
Enterprises, 283 NLRB 609, 614–615 (1987) (employ-
ee’s response to coworker’s inquiry about complaints
concerning his job performance, stated for the purpose of
encouraging the coworker to take corrective action, “was
a fundamental form of concerted activity in aid of a fel-
low employee and, hence, it was conduct protected by
Section 7 of the Act”); Cadbury Beverages, 324 NLRB
1213, 1220 (and cited cases) (1997), enfd. 160 F.3d 24
(D.C. Cir. 1998) (employee advice to coworker that she
not contact a specific union official for support in obtain-
ing unpaid bonus was protected concerted activity).
Moreover, the fact that Smith advised Orozco to let the
matter go does not affect our finding, as the concerted
nature of an employee’s request for assistance does not
turn on the solicited employee’s response to the request.
See Fresh & Easy, supra, slip op. at 4.
Our dissenting colleague cites Daly Park Nursing
Home, 287 NLRB 710, 711 (1987), as supporting a find-
ing that Orozco did not engage in concerted activity. We
disagree. Daly Park involved an employee’s comments
to her coworkers that she thought the discharge of anoth-
er employee was unfair and that it was a shame the em-
ployee could not hire a lawyer and fight it. The employ-
ee also agreed with another employee’s comment that the
discharged employee would lose a legal fight against the
wealthy employer and expressed her hope that she would
at least be able to receive unemployment compensation.
Significantly, none of the remarks involved the solicita-
tion or offer of assistance or advice to the discharged
employee, nor did they contemplate doing anything
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
about the discharge.10 As such, that case is readily dis-
tinguishable.11
We also agree with the judge that Orozco’s concerted
activity was for the purpose of mutual aid or protection.
Mutual aid or protection focuses on the “goal of the con-
certed activity; chiefly, whether the employee or em-
ployees involved are seeking to ‘improve terms and con-
ditions of employment or otherwise improve their lot as
employees.’” Fresh & Easy, 361 NLRB No. 12, slip op.
at 3 (emphasis in original), quoting Eastex, Inc. v. NLRB,
437 U.S. 556, 565 (1978).12 In Fresh & Easy, the Board
stated that
[A]n 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 employ-
ee, the soliciting employee would receive the most
immediate benefit from a favorable resolution of the is-
sue, and the soliciting employee does not make explicit
the employees’ mutuality of interests.
. . .
By soliciting assistance from coworkers to raise his is-
sues to management, an employee is requesting that his

10 Indeed, the Board has distinguished Daly Park from situations,
like here, where the discussions among employees over subjects affect-
ing employment are directed toward future action. Cadbury Beverages,
324 NLRB 1213, 1220 (and cited cases).
11 Although apparently acknowledging that Jhirmack Enterprises
and Cadbury Beverages support a finding that Orozco engaged in con-
certed activity, the dissent suggests that Daly Park’s discussion of
Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964)
represents a “separate” line of Board cases with a different standard,
one that requires a finding that Orozco did not engage in concerted
activity. The dissent’s suggestion overlooks the Board’s holding in
Daly Park that the activity at issue was not concerted because, unlike
here, none of the employees’ comments demonstrated that any of them
had “contemplated doing anything about the discharge.” Daly Park,
287 NLRB at 710. That holding in no way conflicts with the holdings
in Jhirmack and Cadbury Beverages, or our finding here that employee
discussions in which advice about future action is sought or offered
constitute concerted activity.
12 The dissent contends that proof of “motivation” is required to find
a purpose of “mutual aid or protection.” We disagree. As discussed in
Fresh & Easy, motive is not “relevant to whether activity is for ‘mutual
aid or protection.’” Fresh & Easy, 361 NLRB No. 12, slip op. at 3. In
Fresh & Easy, the Board observed:
The motive of the actor in a labor dispute must be distinguished from
the purpose for his activity. The motives of the participants are irrele-
vant in terms of determining the scope of Section 7 protections; what
is crucial is that the purpose of the conduct relate to collective bargain-
ing, working conditions and hours, or other matters of “mutual aid or
protection” of employees.
Id., quoting Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320, 328 fn.
10 (7th Cir. 1976).
coworkers exercise vigilance against the employer’s
perceived unjust practices.
Id., slip op. at 5, 6; see also NLRB v. Peter Cailler Kohler
Swiss Chocolates Co., supra at 505–506.13 These principles
are no less applicable here. Orozco was seeking a cowork-
er’s advice on the best way to address her workplace com-
plaint that the Respondent was discriminatorily and arbitrar-
ily applying its dress code policy—a policy applicable to
Orozco’s coworkers.14
Accordingly, for all these reasons, we adopt the
judge’s finding that Orozco engaged in protected con-
certed activity during her conversation with Smith and
that the Respondent violated Section 8(a)(1) by discharg-
ing Orozco for engaging in that activity.
ORDER
The National Labor Relations Board orders that the
Respondent, UniQue Personnel Consultants, Inc., Troy,
Illinois, its offices, 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 and 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, re-
straining, 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 posi-
tion 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.

13 Relying on former Member Johnson’s dissent in Fresh & Easy,
361 NLRB No. 12, slip op. at 25–28, the dissent contends that Peter
Cailler Kohler is inapplicable where an employee seeks support in
addressing his/her issue with management. For the reasons set forth in
Fresh & Easy, id. at 6–8, we disagree with that view.
14 In support of his contention that Orozco’s activity was not for mu-
tual aid or protection, the dissent relies on Continental Mfg. Corp., 155
NLRB 255, 257–258 (1965). Contrary to the dissent, the relevant find-
ings in that case did not speak to mutual aid and protection but rather
addressed whether the activity was concerted.
UNIQUE PERSONNEL CONSULTANTS, INC. 5
(b) Make Ana Orozco whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate Ana Orozco for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 25, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year.
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charge of Ana Orozco, and within 3 days thereafter noti-
fy Ana Orozco in writing that this has been completed
and that the discharge will not be used against her in any
way.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days from the date of the Board’s Order,
rescind the email and expunge from Ana Orozco’s per-
sonnel file and any other files maintained by the Re-
spondent the email it issued to its employee, Ana Oroz-
co, 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.
(g) 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 em-
ployees to not engage in protected concerted activity or
that it would contact the police to stop such protected
activity.
(h) Within 14 days after service by the Region, post at
its facility in Galesburg, Illinois, copies of the attached
notice marked “Appendix.”15 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 Re-

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees and members are customarily posted. In addi-
tion 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 notic-
es are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent 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 June 27, 2014.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
Contrary to my colleagues, I would reverse the judge’s
findings that the Respondent violated Section 8(a)(1) of
the National Labor Relations Act (NLRA or the Act) by
interrogating and discharging employee Ana Orozco.
Section 8(a)(1) makes it unlawful for an employer “to
interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in section 7.” In relevant
part, Section 7 states that the Act protects “concerted”
activity for the “purpose” of “mutual aid or protection.”
Based on these two provisions, the majority’s findings
that the Respondent violated the Act turn on whether
Orozco engaged in concerted activity for the purpose of
mutual aid or protection when she asked a coworker for
advice about how she should respond to a disciplinary
warning she had received. My colleagues find that
Orozco was engaged in concerted activity, even though
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
she did not seek to initiate, induce, or prepare for group
action. Instead, Orozco sought advice as to what she,
and only she, should do regarding a matter concerning
herself, and only herself. But even if one assumes that
the record supports a finding that Orozco’s activity was
concerted, unlike my colleagues and the judge, I believe
the record fails to establish that Orozco had the requisite
purpose of mutual aid or protection. Accordingly, I re-
spectfully dissent from the majority’s findings that Oroz-
co was unlawfully interrogated and discharged in viola-
tion of Section 8(a)(1).1
Facts
Orozco was employed by the Respondent as an admin-
istrative assistant at its Galesburg, Illinois office. At the
time of the events at issue here, her immediate supervisor
was Elyce Rehmke, and above Rehmke was Melinda
McFadden. The Respondent maintains a dress code,
which prohibits (among other things) tattoos, body pierc-
ings (except for “conservative earrings by female em-
ployees”), shorts, dresses, or skirts more than 2 inches
above the knee, jeans or denim fabric, and jogging suits.
“Dress capris” are acceptable provided they are not “tight
to the leg.”2
Orozco had facial piercings. On at least two occa-
sions, McFadden saw Orozco with the piercings and
pointed to them to indicate that Orozco should remove
them, which she did. On March 14, 2013, Orozco came
to the office after a medical procedure wearing a jogging
suit. She intended to change into appropriate attire once
she arrived at the office, but the office was busy so she
immediately started working instead. A coworker of
Orozco’s complained to McFadden about Orozco’s at-
tire. Orozco explained her situation to McFadden, but
McFadden gave Orozco a verbal warning and sent her
home for the rest of the day. On March 18, McFadden
issued a written warning to Orozco for the March 14
dress code infraction. The written warning referenced
prior verbal warnings regarding Orozco’s facial pierc-
ings.
On June 3, 2014, Orozco received a second and final
written warning for an alleged dress code infraction at a
company golfing event the previous day. Prior to the
June 2 event, the Respondent announced modified dress
code requirements for the event. Employees were in-

1 I join my colleagues in adopting the judge’s findings that the Re-
spondent violated Sec. 8(a)(1) of the Act by instructing Orozco not to
discuss her terms and conditions of employment and by threatening
Orozco with prosecution or legal action for talking about her terms and
conditions of employment.
2 As the judge helpfully notes for the sartorially challenged among
us, including myself, “capris” are close-fitting women’s pants that end
between the knee and the ankle.
structed to wear their company polo shirts, and they were
permitted to wear pants or shorts but “nothing too short
and NO jean shorts.” Orozco wore her company polo
shirt and nondenim capris. The next day, Rehmke issued
Orozco a second and final warning for wearing capris at
the golf outing. Two other employees at the event also
wore capris, and one wore sandals that showed her tat-
too. Those employees were not disciplined.
Jasper Smith was employed by the Respondent as an
IT mobile technician. On June 11, Smith arrived at the
Galesburg office as Orozco was preparing to close for the
day. Orozco and Smith left the office together. In the
parking lot, Orozco asked Smith if she could get some
advice, and she asked Smith to keep their conversation
confidential. Orozco then told Smith about the written
warning she had received for wearing capris at the golf
event and said that she thought it was unfair. Orozco
told Smith that she planned to complain about the warn-
ing to higher management at an upcoming company
event. In reply, Smith suggested she let the matter go.
Smith did not voice any complaints of his own or other-
wise comment on Orozco’s concerns.
Smith reported the conversation to the Respondent’s
human resources department. Smith informed HR that
Orozco discussed taking her complaints to higher man-
agement and possibly disrupting an upcoming company
outing. On June 26, HR forwarded the information
Smith provided to McFadden. Later that day, McFadden
and Rehmke decided to discharge Orozco.
On June 27, McFadden and Rehmke met with Orozco
in the Galesburg office. Rehmke locked the front door of
the office, and McFadden handed Orozco a letter stating
that she was terminated for “unprofessionalism,” consist-
ing of “attitude, dress code and negativity to other staff
and corporate representatives.” McFadden then asked
Orozco what she had said to Smith. Orozco asked
McFadden what she was talking about. McFadden re-
peated the question several more times and Orozco gave
the same answer. Finally, McFadden asked Orozco if
Orozco had told Smith she was planning on going to
higher management with her issues. Orozco conceded
that she did speak with Smith, that she told him she was
upset about the June 3 written warning, that she told him
she was going to complain to higher management, and
that she had asked Smith to keep their conversation pri-
vate. McFadden replied that Orozco had put Smith in a
“bad spot.” Rehmke told Orozco that Orozco should
have discussed any problems with Rehmke or McFad-
den. McFadden repeated Rehmke’s statement and then
instructed Orozco to gather her personal items and leave
the office. Orozco’s termination was effective immedi-
ately.
UNIQUE PERSONNEL CONSULTANTS, INC. 7
Discussion
As the foregoing factual summary makes clear, Orozco
was interrogated about her conversation with Smith, and
the Respondent does not challenge the judge’s findings
that the conversation with Smith was a motivating factor
in Orozco’s discharge and that the Respondent failed to
show it would have discharged Orozco even in the ab-
sence of that conversation. The Respondent does, how-
ever, except to the judge’s finding that when she spoke
with Smith, Orozco was engaged in activity protected by
Section 7 of the Act. Thus, the issue before the Board is
straightforward. If Orozco’s conversation with Smith
was protected by Section 7, the interrogation and dis-
charge violated Section 8(a)(1) of the Act. If not, the
interrogation and discharge may have been unfair, but
they were not unlawful under the Act.
As noted previously, NLRA Section 8(a)(1) makes it
an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7,” and Section 7 protects
employees when they engage in “concerted activities for
the purpose of . . . mutual aid or protection” (emphasis
added). The Board and the courts have devoted exten-
sive attention to the circumstances that must be satisfied
before an employee’s actions will be deemed to consti-
tute concerted activity for the purpose of mutual aid or
protection, and these issues were discussed at length in
my separate opinion in Fresh & Easy Neighborhood
Market, 361 NLRB No. 12, slip op. at 11–19 (2014)
(Member Miscimarra, concurring in part and dissenting
in part).
For an employee to enjoy the protection of Section 7,
two elements must be met: the activity he or she engages
in must be “concerted,” and the activity must have the
purpose of “mutual aid or protection.” The Board com-
prehensively reassessed the first of these two elements in
a pair of decisions issued in the 1980s: Meyers Indus-
tries, 268 NLRB 493 (1984) (Meyers I),3 and Meyers
Industries, 281 NLRB 882 (1986) (Meyers II).4 In Mey-
ers II, among other things, the Board set forth the stand-
ard to be applied to determine whether a conversation
constitutes concerted activity. In doing so, the Board
“embrac[ed] the view of concertedness exemplified by
the Mushroom Transportation line of cases.” Id. at 887.
Quoting from Mushroom Transportation, a Third Circuit
decision, the Board stated:

3 Remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985).
4 Affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988).
It is not questioned that a conversation may constitute a
concerted activity although it involves only a speaker
and a listener, but to qualify as such, it must appear at
the very least it was engaged in with the object of initi-
ating or inducing or preparing for group action or that it
had some relation to group action in the interest of the
employees.
Id. at 887 (quoting Mushroom Transportation Co. v. NLRB,
330 F.2d 683, 685 (3d Cir. 1964)). And in Daly Park Nurs-
ing Home, 287 NLRB 710 (1987), the Board—once again
quoting from Mushroom Transportation—further clarified
the standard:
Activity which consists of mere talk must, to be pro-
tected, be talk looking toward group action. If its only
purpose is to advise an individual as to what he could
or should do without involving fellow workers or union
representation to protect or improve his own status or
working position, it is an individual, not a concerted,
activity, and, if it looks forward to no action at all, it is
more than likely to be mere griping.
Id. 710–711 (quoting Mushroom Transportation, 330 F.2d
at 685).
Applying the standard set forth in Mushroom Trans-
portation, I believe it is clear that Orozco’s conversation
with Smith would not qualify as concerted activity.
Orozco asked Smith for advice concerning what she
should do about a disciplinary warning she believed was
unfair. She told Smith that she was planning to raise the
issue with higher management at a company event.
Orozco did not so much as mention the possibility of
involving Smith or any other coworker in her confronta-
tion with management. She did not seek to initiate, in-
duce, or prepare for group action of any kind. Rather,
the purpose of the conversation was “to advise an indi-
vidual [Orozco] as to what [s]he could or should do
without involving fellow workers or union representation
to protect or improve [Orozco’s] own status or working
position,” and therefore, under the Mushroom Transpor-
tation standard, the conversation was “an individual, not
a concerted, activity.” Daly Park Nursing Home, supra.
However, a separate line of Board cases suggests that
the Mushroom Transportation standard may not apply
here. Under this precedent, the question is not whether
Orozco engaged in “mere talk” that does not constitute
concerted activity absent evidence that at least one of the
speakers was seeking to initiate, induce, or prepare for
group action, but rather whether the discussion was con-
certed activity in and of itself. See, e.g., Cadbury Bever-
ages, 324 NLRB 1213, 1220 (1997), enfd. 160 F.3d 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
(D.C. Cir. 1998); Jhirmack Enterprises, 283 NLRB 609,
609 fn. 2 (1987).5
I need not decide, however, which line of precedent
applies here because even if one were to assume that
Orozco engaged in concerted activity when she spoke
with Smith on June 11, it is clear that the conversation
did not have mutual aid or protection as its purpose. Sec-
tion 7 states that concerted activities are protected only if
undertaken for the “purpose” of “collective bargaining or
other mutual aid or protection.” As explained in my sep-
arate opinion in Fresh & Easy Neighborhood Market,
supra, slip op. at 17-19, the term “purpose” refers to in-
tent, and in cases that turn on intent, motivation must be
proven.6 On its face, Section 7 contemplates a “purpose”
that must be shared in some way by the employees in-
volved in the “mutual” aid or protection.7 The term “mu-
tual” means “entertained, proffered, or exerted by each
with respect to the other of two or to each of the others
of a group.”8

5 As the D.C. Circuit explained in enforcing the Board’s order in
Cadbury Beverages, the Board adopted the administrative law judge’s
opinion, which “specifically distinguished the Daly Park line of cas-
es”—“establishing the well-settled proposition that mere talk between
co-workers is not concerted activity protected by the NLRA”—from
“those Board cases establishing the rule that discussion among employ-
ees about subjects affecting their employment is, when directed toward
future action, protected, concerted activity.” Cadbury Beverages, Inc.
v. NLRB, 160 F.3d 24, 28 (D.C. Cir. 1998). Contrary to my colleagues’
suggestion, it does not follow from the Board’s statement in Daly Park
that none of the employees’ comments demonstrated they had “con-
templated doing anything about [their coworker’s] discharge” that the
activity at issue would have been concerted had an employee’s com-
ment demonstrated she contemplated doing something on her own
about her own personal issue. 287 NLRB at 710. Rather, the Board
specifically noted the lack of evidence, “as called for in Meyers II,” that
“an individual employee sought to initiate or to induce or to prepare for
group action.” Id. (emphasis added). Thus, the Board found that the
conversation at issue did not constitute concerted activity, as no
“ʻgroup action of any kind [was] intended, contemplated, or even re-
ferred to.’” Id., quoting Mushroom Transportation, supra at 685 (alter-
ation in original).
6 See Fresh & Easy, supra, slip op. at 17 & fn. 61 and cases cited
therein.
7 See, e.g., Continental Mfg. Corp., 155 NLRB 255, 257–258, 261–
262 (1965), when a single employee gave the employer a letter com-
plaining about working conditions and stating that “the majority of the
other employees” had the same “problem” but were “afraid to speak
up.” Even though the employee undisputedly worked with a co-
employee to investigate issues referenced in the letter, which involved
other co-employees as well, the Board found there was “no protected
concerted activity” because, among other things, the letter was prepared
and signed by the employee “acting alone” without any evidence that
“the letter was intended to enlist the support of other employees.” Id. at
257–258 (emphasis added).
8 Webster’s Third New International Dictionary of the English Lan-
guage (1981) 1493 (emphasis added). See also Charles J. Morris,
NLRB Protection in the Nonunion Workplace: A Glimpse at a General
Theory of Section 7 Conduct, 137 U. Penn. L. Rev. 1673, 1679–1680
(1989) (commonly accepted meaning of “mutual” is “possessed, expe-
The facts of the instant case do not remotely suggest
that the interaction between Orozco and Smith had the
“purpose” (i.e., intent) of “mutual aid or protection.”
Orozco talked about the dress code as applied to her, and
she told Smith about action she was contemplating in
order to bring her issue concerning the discipline she had
received to the attention of higher management. Orozco
had no intention of seeking to benefit anybody but her-
self. Accordingly, Orozco’s conversation with Smith—
the conversation about which she was interrogated and
for which she was discharged—did not have a purpose of
mutual aid or protection.9
Conclusion
The Board is required to apply the statute that Con-
gress enacted, and we do not have authority “to be a fo-
rum in which to rectify all the injustices of the work-
place.” Meyers II, 281 NLRB at 888. The only question

rienced, performed, etc., by each of two or more with respect to the
other; . . . held in common, shared . . . Mutual indicates an exchange of
a feeling, obligation, etc., between two or more people, or an inter-
change of some kind between persons. . . .”).
9 To find that Orozco’s conduct had a purpose of mutual aid or pro-
tection, my colleagues rely on the Board majority’s decision in Fresh &
Easy, supra, which applied NLRB v. Peter Cailler Kohler Swiss Choco-
lates Co., 130 F.2d 503, 505–506 (2d Cir. 1942), to find that an em-
ployee acted for the purpose of mutual aid or protection where she
solicited her coworkers to sign a piece of paper as witnesses to an of-
fensive message, which would then become part of the employee’s
report to management. Peter Cailler is the source of the “solidarity
principle,” which my colleagues implicitly apply here as well. But as
former Member Johnson explained in his separate opinion in Fresh &
Easy, the Board majority misapplies that principle when it finds that an
employee’s mere solicitation of support regarding her individual griev-
ance has a purpose of mutual aid or protection. In Peter Cailler, the
court used the example of a sympathy strike to define the contours of
the solidarity principle:
When all the other workmen in a shop make common cause with a
fellow workman over his separate grievance, and go out on strike in
his support, they engage in a ‘concerted activity’ for ‘mutual aid or
protection,’ although the aggrieved workman is the only one of them
who has any immediate stake in the outcome. The rest know that by
their action each of them assures himself, in case his turn ever comes,
of the support of the one whom they are all then helping; and the soli-
darity so established is ‘mutual aid’ in the most literal sense, as no-
body doubts.
130 F.2d at 505–506. Thus, as Member Johnson pointed out, the soli-
darity principle applies where employees “in fact join the individual
grievant”—where, for example, they “go out on strike in his support”—
not merely where an individual grievant solicits support for his or her
individual grievance, as happened in Fresh & Easy. 361 NLRB No. 12,
slip op. at 26 (Member Johnson’s emphasis). See id., slip op. at 17 fn.
58, where I joined Member Johnson’s finding that “the majority’s ap-
plication of its ‘solidarity principle’ [was] based on an unwarranted
extension of” Peter Cailler. Here, however, the solidarity principle is
even less applicable than in Fresh & Easy. Orozco did not even solicit
Smith’s support or ask Smith to take any action that would then become
part of Orozco’s complaint to management. She simply asked Smith
for advice.
UNIQUE PERSONNEL CONSULTANTS, INC. 9
within our purview here is whether the Respondent vio-
lated Section 8(a)(1) of the Act when it interrogated and
discharged Orozco. For the reasons set forth above, I
believe it did not. As to this issue, therefore, I respectful-
ly dissent.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with prosecution or legal
action for talking to other employees, customers, or the
general public regarding your terms and conditions of
employment.
WE WILL NOT discharge or otherwise discriminate
against you in retaliation for your protected concerted
activities.
WE WILL NOT interrogate you about your protected
concerted activities.
WE WILL NOT instruct you to refrain from talking to or
discussing with other employees, customers, or the gen-
eral public your terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ana Orozco full reinstatement to her former
position or, if that position no longer exists, to a substan-
tially similar equivalent position, without prejudice to her
seniority or any other rights or privileges enjoyed.
WE WILL make Ana Orozco whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, less any net interim earnings,
plus interest, plus reasonable search-for-work and inter-
im employment expenses.
WE WILL compensate Ana Orozco for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 25, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful threats and discharge of Ana Orozco, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the unlawful threats and dis-
charge will not be used against her in any way.
WE WILL, 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 us the
email we issued to Ana Orozco threatening her with
prosecution by local authorities or legal action for dis-
cussing her terms and conditions of employment with
other employees customers, or the general public.
WE WILL, within 14 days from the date of the Board’s
Order, retract, in writing, the letter we 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 we would contact the police to stop such protected
activity.
UNIQUE PERSONNEL CONSULTANTS, INC.
The Board’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 Re-
lations Board, 1015 Half Street SE, Washington, D.C.
20570, or by calling (202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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 Region-
al 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 Consult-
ants, 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 violat-
ed 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 activi-
ties; (2) on about June 27 the Respondent, through Supervising
Consultant Elyce Rehmke (Rehmke) interrogated its employees
about their concerted activities; (3) on about June 27 the Re-
spondent, 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 Con-
sultant Melinda McFadden (McFadden), who in writing in-
structed employees to not discuss their terms and conditions of
employment with other employees, customers, prospective
customers, or thegeneral public; and (5) on about the Respond-
ent, 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 de-
meanor of the witnesses, and after considering the briefs filed

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 “concert-
ed” replaces “considered,” p. 10, line 21 “concerted” replaces “consid-
ered,” p. 11, line 3 “concerted” replaces “considered,” p. 12, lines 4, 15
“concerted” replaces “considered,” p. 127, line 1 “no objection” replac-
es “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 tran-
script; “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.
4 At the conclusion of the hearing, I notified the parties that by De-
cember 5, the Respondent had to research and notify the counsel for the
General Counsel whether GC exhs. 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 Coun-
sel 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 evi-
dence. 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.
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation headquartered in Troy, Illi-
nois, 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 opera-
tions, provided services valued in excess of $50,000 for enter-
prises 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 com-
merce 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 consult-
ant, supervising consultant, and consultant. Gary Hunsche
(Hunsche) is the owner and president of the company. McFad-
den has been employed by the Respondent for about 5 years
with the last 3 years serving as the area manager. She is re-
sponsible for managing the branch managers of each location
within the region. In June 2013, Rehmke was hired as a con-
sultant, and subsequently was promoted her to her current posi-
tion, managing consultant. As the managing consultant,
Rehmke works closely with hiring 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, Illi-
nois office (Galesburg office).6 Since May, Rehmke has super-
vised 3 internal employees in the Galesburg office. The em-
ployees are Orozco, Consultant Emily Collins (Collins) and
On-Site Supervisor Anna Castro (Castro). During various time
throughout her 2-year employment history with the Respond-
ent, 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 manag-
ing 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

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 Gales-
burg, Illinois branch.
7 Entry level consultants can hire, fire, and discipline associate em-
ployees, but not internal employees.
UNIQUE PERSONNEL CONSULTANTS, INC. 11
Troy, Illinois.8 His frequently travels to the 17 branch offices
to perform IT service.
On August 2, 2012, Orozco was hired an administrative as-
sistant for the Galesburg office. Initially she worked in a tem-
porary capacity but was subsequently hired as a permanent full-
time employee on December 3, 2012. Danielle Mason (Ma-
son), 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 an-
swering telephone calls, scheduling applicant interviews, updat-
ing 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 end-
ed, 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, 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 Re-

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 McFad-
den 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.
spondent 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 Feb-
ruary 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 re-
spond 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 immedi-
ately answered the phone and then began to help some of the
people with their applications and scheduled them for inter-
views. At some point during that day, McFadden received a
call from Castro complaining that Orozco was wearing an inap-
propriate 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 explained that be-
cause 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 com-
plained 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

10 Orozco admits that on at least 2 occasions McFadden saw her with
piercings at work and pointed at her to remove them. McFadden testi-
fied that this occurred on several occasions, indicating more than two. I
credit Orozco on this point.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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. Neverthe-
less, she informed Rehmke that she disagreed with her charac-
terization 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
Other employees, including managers, on occasion also so-
cialized in the workplace. During working hours, McFadden
sold products (Scentsy and Girl Scout cookies), and sent non-
work-related emails to employees.12 Castro paid personal bills,
ordered drug prescriptions, and held short telephone conversa-
tions with her husband while on company time.
E. Orozco’s Performance Reviews July 21 and
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

11 McFadden testified that in May or June a decision was made to re-
configure 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.
12 McFadden admitted selling Scentsy products and Girl Scout cook-
ies 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.
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 subsections with
ratings of either “unsatisfactory,” “requires improvement,”
“meets requirements,” “exceeds requirements,” or “outstand-
ing.” The reviewer also discusses with the employee their past
and future goals.
Orozco received performance appraisals on July 21 and No-
vember 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 require-
ments” on all sections except she received “requires improve-
ment” 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 coworkers 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 ad-
dress an issue it is 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 per-
formance 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 ser-
vice skills, eagerness to assist coworkers with their work, abil-
ity to successfully multi-task, great job suggesting applicants
for positions, improved organizational skills, improved proof-
reading of emails, high regard coworkers and associates have

13 During her testimony, McFadden gave examples of topics she felt
were inappropriate for Orozco to discuss in the workplace. The sub-
jects included shootings that occurred near Orozco’s family bar, hango-
vers, 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 McFad-
den 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.
UNIQUE PERSONNEL CONSULTANTS, INC. 13
for her, and wonderful attitude. Rehmke ended the review by
noting,
Ana has done a great job in her professionalism and her per-
formance 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 “outstand-
ing performance and growth.” (GC Exh. 5.) McFadden pre-
pared 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 Oroz-
co 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 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

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.)
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 McFad-
den also treated Wiltermood unfairly. According to Orozco, Castro
said McFadden told her she could no longer speak or email Wilter-
wood. (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 com-
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
(GC Exh. 12.) McFadden was copied on the email even
though she did not attend the golf outing. Unlike the Respond-
ent’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 of-
fice 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 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 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

plained 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 testimo-
ny 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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 termi-
nation. 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 “any-
thing 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 wear-
ing 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 and 4:45 p.m. to install new telephones. The task was
estimated to take 30 to 45 minutes to complete. Orozco testi-
fied that Smith arrived at the office about 4:30 or 4:45 p.m. on
June 11. Castro testified that he arrived about 2:30 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 tim-
ing 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 re-
member the time he arrived at the Galesburg office but could
not remember if his wife traveled with him. I also find it diffi-
cult 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 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

17 Orozco claims Castro expressed disbelief about her being disci-
plined 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.
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 dis-
ciplined.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 wit-
nesses 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 Ex-
press, 109 NLRB 591, 591–592 (1954) (same), ques-
tioned 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 disrupt-
ing his work with her complaints to him about being treated
unfairly by management and her threats to disrupt to the up-
coming company picnic. This was not his first time complain-
ing to Gregg about Orozco interrupting his work with her so-
cializing.
K. June 27 Respondent Terminates Orozco
On June 26 Gregg contacted McFadden to inform her that
Smith had complained to human resources about Orozco talk-
ing 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 Consequent-

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 as-
sessment 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.
21 Later in her testimony McFadden claimed she alone made the de-
cision to terminate Orozco, and Rehmke was only present at the meet-
ing 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
UNIQUE PERSONNEL CONSULTANTS, INC. 15
ly, 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 unprofes-
sionalism 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. Oroz-
co 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. Oroz-
co’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.
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 bargain-

her testimony on this point and find that both McFadden and Rehmke
made the decision to discharge Orozco. (Tr. p. 29, 235.)
ing 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 employ-
ees, 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. Individ-
ual 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
355, 357–361 (2012).
An employer violates Section 8(a)(1) of the Act if it disci-
plines 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 es-
tablishes such an initial showing of discrimination, the employ-
er 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 11 Respondent Forbids Orozco from Discussing with
Coworkers Terms and Conditions of Employment
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act when on June 27 the Respondent,
through Rehmke, instructed its employees not to talk to other
employees about terms and conditions of employment. Specif-
ically, 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 general-
ized argument that Orozco did not engage in concerted activity.
The Board has held that prohibiting employees from discuss-
ing terms and conditions of employment, particularly discipline
or potential discipline, violates Section 7 of the Act. Employ-
ees have a right to discuss discipline with each other because
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
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 dis-
cuss 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 justifica-
tion 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 manage-
ment 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 termi-
nation 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 em-
ployees’ 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 Oroz-
co’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 activ-
ities. The General Counsel contends that Rhemke’s questions
to Orozco during their meeting on June 27, 2014, were coer-
cive, intimidating, and amounted to an unlawful interrogation.
The Respondent did not specifically address this issue in its
posthearing brief, except for a generalized argument that Oroz-
co did not engage in concerted activity.
I find that the General Counsel has failed to establish that the
Respondent, through Rehmke, unlawfully conducted an inter-
rogation of its employees in violation of Section 8(a)(1) of the
Act for the reasons discussed below.
The Board considers the totality of the circumstances in de-
ciding 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 estab-
lished 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 interro-
gation; 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 1225 (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 provid-
ed 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 conversa-
tion 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 Gales-
burg office. Rehmke locked the front door to the office, pre-
sumably 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 con-
versation 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 as-
surances 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 inci-
dents leading to the June 27 meeting that reveals the Respond-
ent’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 about them with
coworkers. Second, the evidence shows that one of the primary
purposes of the June 27 meeting was for McFadden to specifi-
cally ask Orozco if she talked to Smith, what she told him, and
if she told him she was going to speak to upper management
UNIQUE PERSONNEL CONSULTANTS, INC. 17
about being disciplined. Both McFadden and Rehmke were
Orozco’s superiors in the company’s hierarchy, and had author-
ity to discipline or fire her. The evidence establishes that their
relationships never progressed to a friendship, but rather re-
mained 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. According-
ly, 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 27 email 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 prose-
cution by local authorities if she discussed her terms and condi-
tions of employment with other employees, customers, prospec-
tive 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 Sec-
tion 7 to discuss “discipline or disciplinary investigations in-
volving fellow employees.” Fresh & Easy Neighborhood Mar-
ket, 358 NLRB 537 (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 (NLRB
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 termina-
tion, 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 busi-
ness justification. See Hyundai America Shipping Agency, 357
NLRB 860, 874 (2011) (the Board held no legitimate and sub-
stantial justification when an employer promulgates a blanket
prohibition against employees discussing matters under investi-
gation). The question becomes whether the Respondent’s stat-
ed legitimate and substantial business reasons outweigh the
employees’ exercise of their Section 7 rights. See also Banner
Estrella Medical Center, 358 NLRB 809, 810 (2012) (the
Board quoting from Hyundai America Shipping Agency, “Ra-
ther, 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 rele-
vant 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 al-
leged that Orozco’s nonwork-related conversations were “dis-
ruptive” 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 con-
tinued 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 com-
plete his work because she kept interrupting him to talk. Con-
sequently, I find neither Castro’s nor Smith’s testimony would
justify the Respondent sending Orozco the email at issue. Fi-
nally, 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 in-
terpretations to justify violating her section 7 rights by threaten-
ing her with prosecution for discussing her terms and condi-
tions of employment with other employees, customers, prospec-
tive 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 com-
plaint.
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 be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
cause she was advocating solely by and on behalf of herself.
Respondent further contends that even assuming Orozco’s ac-
tivity was of a protected concerted nature, it was unaware of it.
The Respondent argues that, even assuming the General Coun-
sel established its initial burden of proof, Orozco was dis-
charged for nondiscriminatory reasons.
I find that the General Counsel has established that the ter-
mination 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 em-
ployment 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 estab-
lish that a substantial or motivating factor in the employer’s
decision to take adverse employment action against an employ-
ee 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 mo-
tivated 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 pro-
tected concerted activity. The General Counsel may offer proof
that the employer’s articulated reason is false or pretextual.
Hoodview Vending Co., supra 359 NLRB 355, 359. Ultimate-
ly, the General Counsel retains the ultimate burden of proving
discrimination. Wright Line, id. However, where “the evi-
dence 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 pro-
tected 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 Medi-
cal Services, 356 NLRB 277, 278 (2010).

22 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982).
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 ap-
pears 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
“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 ad-
vice about the discipline she received on June 2. She also
voiced to other coworkers those same concerns about the un-
fairness 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 537 (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 Oroz-
co. 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 violat-
ing 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 protect-
ed activity prior to terminating her. Clearly discharging Orozco
was an adverse employment action. The remaining question,
therefore, is whether the Respondent terminated Orozco be-
cause of discriminatory animus.
Discriminatory animus can be inferred from both circum-
stantial and direct evidence. The Board considers several fac-
tors 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 Vaca-
UNIQUE PERSONNEL CONSULTANTS, INC. 19
tion Resorts, 340 NLRB 846, 847 (2003); Austal USA, LLC,
356 NLRB 363, 363 (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 exces-
sive 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 Re-
spondent 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 posi-
tion statement is substantive 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 Oroz-
co’s termination did she learn about Orozco’s threats to com-
plain 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 infor-
mation 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 dispari-
ty 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 dis-
pleasure 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 bur-
den of proof. Therefore, the Respondent must show that Oroz-
co would have been terminated even in the absence of the pro-
tected 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 inter-
rupting other employees work by excessively discussing per-
sonal 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 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 em-
ployees 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 Re-
spondent’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 san-
dals 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 situ-
ated employees who had committed the same offense.
Second, the evidence establishes that other employees, in-
cluding 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
deny that other employees engaged in non-work-related con-
versations but argues that no one except Orozco talked exces-
sively 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 posi-
tion and has only “minor things that need to be worked on.”
(GC Exh. 4.) This would seem to indicate that McFadden con-
sidered 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 per-
formance, the high esteem coworkers and associates have for
her, and her great attitude. Shortly after the performance ap-
praisal, 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 Oroz-
co’s socializing she was never issued an official verbal or writ-
ten 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 con-
certed 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 discriminatory motive); Lucky Cab Co.,
360 NLRB No. 43, slip op. at 6 (2014) (citing Approved Elec-
tric, 356 NLRB 238, 240 (2010)).
As previously noted, the position statement submitted on be-
half of the Respondent by its attorney admitted that a reason for
Orozco’s termination was because she threatened to “take ac-
tion to get her managers discharged.” (GC Exh. 8.) I have al-
ready found that voicing her intentions to inform upper man-
agement that she had been unfairly disciplined by local man-
agement is a protected concerted activity. Therefore, the Re-
spondent’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 Oroz-
co’s coworkers and associates held her in high regard which
lays bare the fallacy of using “negativity” as a basis for termi-
nation. 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 em-
ployer’s attempt to discipline or terminate an employee because
the employee engaged in protected concerted activity. See Citi-
zens 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 em-
ployer’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 work-
place punishment, termination. Terminating Orozco for “atti-
tude” 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 Sec-
tion 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 con-
ditions of employment with other employees, customers, pro-
spective customers, or the general public
(d) Threatened employees with prosecution or legal action
for discussing their terms and conditions of employment with
other employees, customers, prospective customers, or the gen-
eral 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 un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged its em-
ployee, 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. Fur-
ther, 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 Ken-
tucky River Medical Center, 356 NLRB 6 (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
UNIQUE PERSONNEL CONSULTANTS, INC. 21
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.
Further, the Respondent will be required to post and com-
municate by electronic post to employees the attached Appen-
dix 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 ac-
tion for talking to other employees, customers, or the general
public regarding their terms or conditions of employment.
(b) Discharging or otherwise discriminating against its em-
ployees in retaliation for their protected concerted activities.
(c) Interrogating its employees about their protected concert-
ed 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, restrain-
ing, or coercing its employees in the exercise of the rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate 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 privi-
leges previously enjoyed.
(b) Within 14 days from the date of the Board’s Order, make

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
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
(c) Within 14 days from the date of the Board’s Order, re-
move 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 addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days from the date of the Board’s Order re-
scind 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 prose-
cution 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 pro-
tected 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 fa-
cility 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 con-
secutive 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 Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pen-
dency 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 employ-
ees 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

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 28, 2015
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 vio-
lated 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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
the above rights.
WE WILL NOT ask you about your discussions with employ-
ees.
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 sen-
iority and all other rights or privileges.
WE WILL pay Ana Orozco for the wages and other benefits
she lost because we fired her.
WE WILL compensate Ana Orozco for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award.
WE WILL file a report with the Social Security Administra-
tion allocating the backpay award to the appropriate calendar
quarters.
WE WILL remove from our files all references to the dis-
charge 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 Attor-
ney’s Office and the Galesburg, Illinois Police Department
rescinding our June 27, 2014 letter which threatened prosecu-
tion of Ana Orozco if she contacted our employees, customers,
or the general public.
UNIQUE PERSONNEL CONSULTANTS, INC.
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.