HEALTHBRIDGE MANAGEMENT, LLC; 710 LONG RIDGE ROAD OPERATING COMPANY II, LLC D/B/A LONG RIDGE OF STAM

310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD HealthBridge Management, LLC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford and New England Health Care Employees Union, District 1199, SEIU, AFL–CIO. Cases 34–CA–073303 and 34–CA–080215 March 24, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN On November 1, 2013, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief.1 The General Counsel filed cross-exceptions with supporting argument, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3 1 The parties stipulated that, for purposes of this case, Respondent HealthBridge Management, LLC (HealthBridge) is a joint employer of the employees of Respondent 710 Long Ridge Road Operating Compa- ny II, LLC d/b/a Long Ridge of Stamford (Long Ridge); the events at issue here occurred at the Long Ridge facility. References to “the Respondent” in this decision refer to both Respondents. 2 The parties have implicitly excepted to some of the judge’s credi- bility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear pre- ponderance of all the relevant evidence convinces us that they are in- correct. 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 The Respondent asserts that the complaint is invalid because it was issued under the authority of the Acting General Counsel, who was not properly appointed under the Federal Vacancies Reform Act. For the reasons stated in Benjamin H. Realty Corp., 361 NLRB 918, 918 (2014), we reject this argument. The Respondent has excepted to the judge’s consideration of a prior Board decision and several administrative law judge decisions involv- ing the Respondent and/or affiliated companies as evidence of anti- union animus. We find merit in this exception insofar as we agree that the judge erred by considering cases that are currently pending before the Board. See St. Vincent Medical Center, 338 NLRB 888, 888 (2003) (a judge’s decision pending before the Board is not binding authority), remanded on other grounds 463 F.3d 909 (9th Cir. 2006). Contrary to the Respondent’s exception, however, we find that the judge did not err in considering a prior Board decision as background evidence of ani- mus. See Barnes & Noble Bookstores, Inc., 237 NLRB 1246 fn. 1 (1978), enfd. 598 F.2d 666 (1st Cir, 1979). In light of NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), however, we do not rely on the recess- Board case cited by the judge, Somerset Valley Rehabilitation & Nurs- ing Center, 358 NLRB 1361 (2012). Instead, we rely on HealthBridge Mgmt., 360 NLRB 937 (2014) (Respondent violated Sec. 8(a)(1) by unlawfully removing flyers from union bulletin boards and prohibiting employees from wearing union stickers). and to adopt the recommended Order as modified and set forth in full below.4 We adopt the judge’s findings that the Respondent did not violate Section 8(a)(3) and (1) by discharging em- ployee Tyrone Williams,5 but did violate the Act by dis- charging employee Patrick Atkinson.6 In finding Atkin- son’s discharge unlawful, we agree with the judge that Atlantic Steel Co., 245 NLRB 814 (1979), provides the proper framework for analyzing the conduct for which Atkinson was discharged: leading a group of employees into the office of the Respondent’s center administrator, Polly Schnell, to present complaints about working con- ditions (the “walk-in”). Under Atlantic Steel, the Board considers four factors to determine whether an employee’s conduct is so egre- gious as to lose the Act’s protection: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices. Id. at 816. We find, contrary to the Respond- ent’s exceptions, that the first three factors strongly favor finding that Atkinson’s conduct remained protected. As to the first factor, the walk-in took place in Schnell’s office, away from any patient care area, and there is no evidence either that the conversation was overheard by patients or visitors, or that it disturbed the Respondent’s operations.7 As to the second factor, At- kinson was clearly engaged in protected concerted activi- ty when he informed Schnell of employees’ concerns regarding recent disciplinary actions and other terms of 4 We have modified the first paragraph of the judge’s recommended Order to identify the Respondents’ joint employer status and to include the location as the Long Ridge facility; we have deleted par. 2(c) as duplicative of par. 2(f); and we have corrected inadvertent references to Region 1. We have also modified the recommended Order in accord- ance with our decisions in Excel Container, Inc., 325 NLRB 17 (1997), and Indian Hills Care Center, 321 NLRB 144 (1996). In adopting the judge’s recommended tax compensation and Social Security Admin- istration reporting remedies, we rely on Don Chavas, LLC d/b/a Tortil- las Don Chavas, 361 NLRB 101 (2014). Finally, we have substituted a new notice to conform to the Order as modified and in accordance with Durham School Services, 360 NLRB 694 (2014). 5 We find it unnecessary to pass on the judge’s finding that employ- ee Tyrone Williams never engaged in any union or protected concerted activity. Even assuming arguendo that he had, the General Counsel failed to make a showing of unlawful motivation sufficient to meet his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 6 The record shows that, by letter dated February 2, 2012, the Re- spondent informed Atkinson that he was terminated. 7 See Datwyler Rubber & Plastics, Inc., 350 NLRB 669, 670 (2007) (first Atlantic Steel factor favors continued protection where the discus- sion at issue took place in a private location away from the customary work area and other employees and, therefore, did not disrupt work or undermine discipline) (citing Noble Metal Processing, 346 NLRB 795, 800 (2006)). 362 NLRB No. 33 LONG RIDGE OF STAMFORD 311 employment. As to the third factor, the credited evi- dence shows that the walk-in led by Atkinson was simi- lar to previous walk-ins. Atkinson’s remarks were ex- tremely mild, merely informing Schnell that the group was there to discuss concerns about employees being suspended unfairly and that the employees had lost con- fidence in Schnell’s leadership. While talking, Atkinson held a grievance in his right hand and touched his left palm with it as a gesture indicating emphasis. Atkinson did not refuse an order to leave Schnell’s office nor did he attempt to prevent Schnell from leaving. In short, there is no credited evidence that Atkinson engaged in any menacing or abusive behavior of the kind that the Board has elsewhere found weighs against continued protection.8 Finally, we find that, because there is no evidence that Atkinson’s conduct was provoked by any unfair labor practice, the fourth factor weighs against finding his conduct retained the protection of the Act. This factor, however, is outweighed by the other three Atlantic Steel factors, which strongly support a finding that Atkinson’s conduct retained the protection of the Act. Accordingly, we find that the Respondent’s dis- charge of Atkinson violated the Act. ORDER The National Labor Relations Board orders that the Respondent, joint employers HealthBridge Management, LLC and 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford, Stamford, Connecti- cut, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because of their union or protected concerted activity of protesting employee working conditions. 8 In arguing that Atkinson’s conduct during the walk-in lost the Act’s protection, the Respondent relies on the testimony of Larry Con- don, the regional operations director for HealthBridge. However, in crediting the testimony of Atkinson and the other employees who had firsthand knowledge of the walk-in, the judge implicitly discredited Condon’s testimony as to what had occurred. Accordingly, although we agree with the Respondent that the judge erred in finding that Schnell did not report Atkinson’s conduct to Condon until “[s]ome days after the incident,” this factual error does not affect our analysis. The Respondent further maintains that the judge improperly consid- ered whether Schnell’s affidavit describing the walk-in, which was proffered in lieu of her testimony, was admissible as an exception to the hearsay rule because the Respondent did not offer it as substantive evidence of Atkinson’s misconduct. We find it unnecessary to pass on the judge’s hearsay findings regarding Schnell’s affidavit because, even had the judge considered the affidavit for the purposes asserted (to show that Schnell’s description remained constant over time and that no adverse inference should be drawn from her failure to testify), that would not change the result here based on the credited evidence. (b) In any like or related manner interfering with, re- straining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Patrick Atkinson full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Patrick Atkinson whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him, in the manner set forth in the remedy section of the judge’s decision as amended in this deci- sion. (c) Compensate Patrick Atkinson for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Admin- istration allocating the backpay award to the appropriate calendar quarters. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Patrick Atkinson, and, within 3 days thereafter, notify him in writing that this has been done and that the dis- charge will not be used against him 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 after service by the Region, post at its Stamford, Connecticut facility, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. 9 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 BOARD 312 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If 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 em- ployees and former employees employed by the Re- spondent at any time since February 2, 2012. (g) Within 21 days after service by the Region, file with the Regional Director for Region 34 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 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 discharge employees because of their union or protected concerted activity of protesting em- ployee working conditions. 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 Patrick Atkinson full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. WE WILL make Patrick Atkinson whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL compensate Patrick Atkinson for the adverse income tax consequences, if any, of receiving a lump- sum backpay award, and WE WILL file a report with the Social Security Administration allocating Atkinson’s backpay to the appropriate calendar quarters. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Patrick Atkinson, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. HEALTHBRIDGE MANAGEMENT, LLC AND 710 LONG RIDGE ROAD OPERATING COMPANY II, LLC D/B/A LONG RIDGE OF STAMFORD The Board’s decision can be found at www.nlrb.gov/case/34-CA-073303 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. Jo Anne Howlett, Esq., for the General Counsel. George W. Loveland, Esq. and Nicole Bermel Dunlap, Esq., counsel for the Respondents. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. I heard these consolidated cases in Hartford, Connecticut, from June 25 to 28, 2013. The charge and the amended charge in Case 34– CA–073303 were filed on January 26 and March 30, 2012. The charge and the amended charge in Case 34–CA–080215 were filed on May 3 and July 11, 2013. The complaint was issued on September 28, 2012, and alleged as follows: 1. That HealthBridge, Care Realty, Care One, and 710 Long Ridge constitute a single-integrated enterprise and/or joint em- ployers. 2. That on or about January 27, 2012, the Respondent, for discriminatory reasons, discharged Tyrone Williams. 3. That on or about February 2, 2012, the Respondent, for discriminatory reasons, discharged Patrick Atkinson. On June 13 and 14, 2013, the parties entered into a stipula- tion wherein it was agreed, for purposes of this case that any actions taken by or on behalf of Long Ridge by HealthBridge of by any agents of officials of HealthBridge are binding on Long Ridge. Also, it was stipulated for purposes of this case, that HealthBridge is a joint employer of the employees of Long Ridge and that these two companies will be jointly and several- LONG RIDGE OF STAMFORD 313 ly liable if the unfair labor practices are sustained. As a conse- quence, the names of Care Realty, LLC, and Care One, LLC were withdrawn from the case and I have removed them from the caption. The General Counsel’s theory as to Atkinson is that he and a group of about 15 to 20 employees engaged in a “walk in” where they went into the office of Polly Schnell to present grievances or complaints about working conditions. The Gen- eral Counsel contends that this was protected concerted activi- ty. The Respondent asserts that while in the office, Atkinson engaged in threatening conduct and blocked Schnell from leav- ing her office. As to Tyrone Williams, the General Counsel acknowledges that his conduct on January 7, although perhaps warranting some form of disciplinary action, did not in accordance with past practice, warrant his discharge. She posits that after the incident occurred, the Company decided to impose a discharge action against him because Atkinson, the union steward, brought the matter of Williams to Polly Schnell on January 12. It is not asserted that Williams engaged in any prior union or protected concerted activity. It seems that the General Coun- sel’s theory is that Williams was, in effect, collateral damage due to Schnell’s annoyance at Atkinson. Additionally, it seems that the General Counsel is also contending that that the deci- sion to discharge Williams was made at the corporate level and was related to the Respondent’s overall antiunion animus. Presumably, the idea here would be that in the context of bar- gaining, it would be in the Respondent’s interest to play hard- ball and utilize any situation to demonstrate its toughness to- wards the Union. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION It is admitted and I find that the Respondents are employers engaged in commerce within the meaning of Section 2(1), (6), and (7) of the Act. It also is admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background There have been a number of cases involving these Re- spondents and affiliated companies. In Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361 (2012), the Board issued a decision finding that the Respondent violated Section 8(a)(3) and (1) by issuing disci- pline and discharging various employees because of their union activities and by reducing the hours of per diem employees. The Board also concluded that the Respondent violated the Act by interrogating employees and by soliciting grievances. The events of that case occurred in 2011 at a different facility. On January 15, 2013, an ALJ issued a decision in JD(NY)– 012–13 involving a case in New Jersey. In that case, the im- mediate respondent was Somerset Valley Rehabilitation & Nursing Center. The Judge noted that this was part of a group of facilities owned and operated by HealthBridge Management, Inc. and CareOne Management, Inc. both maintaining their corporate offices and IT department at Bridge Plaza in Fort Lee, New Jersey. The ALJ concluded that Somerset violated the Act by making unilateral changes without bargaining in violation of Section 8(a)(5) and by discharging two employees in violation of Section 8(a)(5), (3), and (1). She also concluded that Somerset violated the Act by refusing to provide the union with access to its facility in order to inspect work process and working conditions including health and safety conditions. That case is currently on appeal. On August 1, 2012, another ALJ issued a decision in a series of cases involving a group of Respondents including Health- Bridge Management; Long Ridge of Stanford, and other affili- ated enterprises. In that case, the ALJ concluded inter alia; that the Respondents violated the Act by (a) threatening to call the police in response to employee protected concerted or union activity; (b) failing and refusing to supply timely and complete information requested by the Union; (c) unilaterally and with- out the consent of the Union, laying off employees without providing the union with a contractually required notice; (d) modifying the collective bargaining agreement by implement- ing a new eligibility standard regarding holiday pay, personal days, vacation days, sick days, and uniform allowances; (e) unilaterally implementing certain other changes in working conditions; and (f) laying off and refusing to hire employees without notifying the Union as required by the terms of the contract. That case is also currently pending appeal. In addition, there is currently in process a case involving HealthBridge before still another judge. That hearing has not yet been completed and obviously no determinations have been made. As of the time of this hearing, the Respondents and the Un- ion, which have had a history of bargaining, had been involved in protracted negotiations for a new contract to replace the ex- isting contract that had expired in March 2011. Thereafter, in December 2011, the Respondent locked out certain of its em- ployees at another facility after having advised employees at several of its other facilities that it might engage in a lockout if no agreement was reached. The General Counsel cites the lockout and the threat of a lockout to furnish evidence of anti- union animus. I don’t agree. Parties to collective bargaining are legally entitled to utilize or threaten to utilize legitimate economic weapons, such as strikes and lockouts to advance their respective bargaining positions. Assuming that one or the other party chooses to utilize its economic weapons merely means that it is engaging in conduct that is permissible under the Act. On the other hand, a recent past history of unlawful conduct, can be used to demonstrate antiunion animus and can be taken into account when deciding the present case. B. Tyrone Williams The transactions that underlay this complaint started on Sat- urday, January 7, 2012, when Tyrone Williams was working as a porter. It should be noted that Williams was not a person who in any way, was active in the Union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314 On this day, a long-erm patient was being discharged and was going home with her family who needed assistance in bringing down her belongings. Kathleen Treacy, the director of social services, was acting as the manager on duty and it was her responsibility to facilitate the discharge of the patient who was going to be transported to her home by an ambulance ser- vice. During the discharge process, Treacy paged housekeeping on several occasions and no one responded. At the time, Williams was the third-floor housekeeper. On the third page, when no one showed up, Treacy commented to the patient’s family that no one was responding at which point, Williams who was standing nearby, said that he was here and belligerently asked her if she knew who he was. He continued in this vein and she tried to calm him down. Treacy told him that the family needed help to bring down the patient’s belongings and he essentially said that this was not his job, “sweetheart.” Nevertheless, he relented and did help. When Treacy saw him outside by the van, she said that she wanted to speak to him in private and when she went through the door, she saw in the glass reflection, that he made a gesture that she interpreted as being a threaten- ing gesture. Another witness to this incident described Wil- liams’ gesture as being a mocking gesture. Treacy both verbal- ly and in writing, reported this incident and this generated an investigation by Schnell. In addition to writing up her side of the story, statements were later obtained from the two people from the outside service that were present. On January 9 or 10, Schnell spoke to Williams and told him what Treacy had reported regarding the January 7 incident. At this meeting, Williams was accompanied by another employee whose name is Tequila Watts. Williams denied the accusations completely and he was asked to provide a statement as to what took place on that date. Tequila Watts later went to Shop Steward Atkinson (who was not present at the facility) and told him about the meeting. On January 12, Atkinson and Watts went to see Schnell and asked Schnell to tell them what Williams was being accused of. Schnell responded that he knew perfectly well what it was about; that she was fed up with him and that he should leave her office. Atkinson and Watts then told Williams that they were not told what he was accused of and Williams wrote out a state- ment to the effect that although he was willing to cooperate in an investigation, he (Williams) did not know what he was being accused of and therefore had nothing to say. This was obvious- ly an evasion since both he and Watts had been told about Treacy accusations 2 or 3 days before. Also, since Watts told Atkinson about that earlier meeting, I find that it is not credible that Atkinson was unaware of what Williams was being ac- cused of. Accordingly, I can see why Schnell got annoyed and told him to leave her office. On Friday, January 13, Williams submitted a statement which essentially said that he did not know what he was being accused of. Later in the day, Schnell told Williams that he was being suspended pending an investigation. When asked for a more detailed recitation of what he was being accused of, Schnell gave Williams a notice that stated that he was being suspended for “inappropriate interaction with a supervisor.” On January 16, Williams tendered a second statement re- garding the January 7 incident. In this statement, he placed the blame on Treacy, who he described as being sarcastic and dis- respectful to him. Somewhere around this time, the two people from the outside company were solicited to give statements and they did so. As noted above, these two individuals basically supported the version of the events given by Treacy. On January 27, 2012, the Respondent discharged Williams. There were a series of conversations among Schnell and her superiors, Larry Condon, the regional operations director for HealthBridge and Ed Remilliard, the regional human resource director of HealthBridge. Basically, they decided to believe the version of events as described by Treacy and to disbelieve the version of events described by Williams. They also assert that the conduct was sufficient to warrant a discharge instead of some lesser punishment. And essentially, it is the degree of the punishment that is the issue here because although the General Counsel concedes that some punishment was warranted, she asserts that a discharge was not. Of course, we are not trying an arbitration case here and a prerequisite for finding a viola- tion of the Act is also a finding that the discharge was motivat- ed, at least in part, either by union or protected concerted activi- ty by Williams or others. So how can we compare Williams with similarly situated employees in the past? Those situations involving discharges are as follows.1 The Company’s records show that Sylvia Taylor and Iris Brown were discharged because both were involved in an inci- dent that involved a heated exchange which was accompanied by finger pointing, shoving, and yelling. Further, the argument reached such a level that the doors to the residents’ rooms had to be closed. After being initially suspended pending an inves- tigation on January 13, 2011, both were discharged on February 4, 2011. Willie Dickerson was discharged on October 19, 2010. The discharge letter states inter alia; The reason for this termination is your unprofessional and in- appropriate conduct, including, but not necessarily limited to your threatening physical and verbal actions towards another staff person and your use of vulgar, profane and derogatory language. Letifa Wright was discharged on September 20, 2010, for “unprofessional and inappropriate conduct.” The Company’s records show that the incident precipitating her discharge in- volved her angry response to phone calls made by residents. This, however, was not her first offense. In June 2009, she received counseling after she made a threatening phone call to a coworker. In December 2009, she received a 1-day suspension and a final warning for a “verbal altercation which disturbed the operation of the facility.” In August 10, 2010, Wright was 1 It perhaps should be kept in mind that at this time, the contract had expired and the arbitration procedures available to employees under the expired contract were no longer available. As such, the situation that had existed under the collective-bargaining agreement was somewhat different inasmuch as the possibility of arbitration was no longer a constraint on disciplinary actions. LONG RIDGE OF STAMFORD 315 suspended pending investigation for “rude and threatening be- havior.” The General Counsel offered records showing that various individuals received discipline short of discharge. It is her position that these were cases that were similar to the January 7 incident involving Williams. On January 31, 2007, the Respondent gave a 1-day suspen- sion to Yvelon Saveur for “insubordination.” This was later reduced to a warning for “disobedience.” The records indicate that in his case, Saveur refused to complete an assignment giv- en to him by his supervisor. On February 15, 2007, the Respondent issued a 5-day sus- pension to Monica Gayle, after she had received two previous disciplines. It is not clear from the records as to the nature of the incident precipitating her February 15 suspension. On November 3, 2008, a warning was issued to Erik Michel. The records indicate that he told his supervisor, “Don’t start with me,” after they had some dispute about a parking space. On December 1, 2010, the Respondent issued a 3-day sus- pension to Jennifer Baker for insubordination. The records indicate that when she was asked to perform a task by the nurs- ing supervisor, she refused. C. Patrick Atkinson Atkinson has been employed by the Respondent since 1993. He also has been a union delegate (functionally a shop stew- ard), for a long time and has actively participated in many grievance proceedings. There is nothing in this record to sug- gest that the Company’s representatives did not deal with him in a professional manner or that any employees were ever dis- ciplined because of his role during grievance proceedings. As noted above, Atkinson played a role in the Williams’ af- fair in that he went to see Schnell after he was told that Wil- liams had been accused of wrongdoing. As previously noted, she ordered him to leave her office. In my opinion, this had nothing to do with his subsequent discharge. On January 19, Atkinson organized a protest by employees that was referred to as a “walk-in.” These apparently had been conducted in the past. In this instance, he and a group of about 15 other employees walked into Schnell’s office where they stood silently by the wall as Atkinson spoke. At the time, Schnell was seated at her desk and working on her computer. Atkinson held a grievance in his hand and stated that they were there to address concerns about employees being suspended unfairly. He also stated that the employees had lost confidence in her leadership. The evidence is that while talking, Atkinson held the grievance in his right hand and touched his left palm with it; apparently as a gesture indicating emphasis. And de- spite the Respondent’s claim to the contrary, there is no compe- tent evidence to show that Atkinson banged his fist into his hand; made any kind of menacing statements or gestures; or positioned himself in such a way as to prevent Schnell from leaving her office. After a very short period of time, Schnell left her office stating that she was uncomfortable with the situa- tion and did not return. Soon thereafter, the assembled em- ployees also left her office and as they did, Atkinson saw Schnell and said; “No justice, no peace.”2 Some days after the incident, Schnell reported it to her supe- rior, Larry Condon, who testified, subject to objection, as to what she told him. Schnell also gave an affidavit to the Re- spondent’s counsel regarding this incident which was proffered in lieu of her testimony. The Respondent asserts that Condon’s testimony regarding what Schnell told him fits within an exception to the hearsay rule; namely Rule 803(a) relating to present sense impressions. This rule permits hearsay regardless of whether the declarant is available as a witness if it is a “statement describing or explain- ing an event or condition, made while or immediately after the declarant perceived it.” Condon’s testimony would be tanta- mount to receiving Schnell’s unsworn and uncross-examined description of the events on January 19. In my opinion, his testimony regarding her statements does not fall within this exception to the rule against hearsay as it was neither made during nor immediately after the transaction described. Similarly, I cannot hold that an affidavit given to Respond- ent’s counsel is an exception to the hearsay rule where there has been no opportunity by the opposing party to cross-examine the witness at the time it was given. Rule 804(b)(1)(A) & (B) pro- vides an exception to the rule against receiving hearsay for former testimony where the declarant is not available. In some limited circumstances the Board has received affidavits taken by NLRB Regional Office personnel where the witness is no longer alive.3 Weco Cleaning Specialists, 308 NLRB 310 fn. 7 (1992). But unless the witness is truly unavailable, such affi- davits are not receivable. Park Maintenance, 348 NLRB 1373 fn. 2 (2006), and Marine Engineers District 1 (Dutra Construc- tion), 312 NLRB 55 (1993). See also NLRB v. St. George Warehouse, 645 F.3d 666 (3d Cir. 2011), enfg. 355 NLRB 488 (2010), where the court held that the hearsay testimony of the deceased discriminatee’s mother regarding her son’s post- termination search for alternative work was admissible in a backpay proceeding to show that the discriminatee had engaged in a reasonably diligent search for work. In the present case, the Respondent asserted that Schnell did not want to testify and that counsel was not willing to have her appearance compelled by judicial process. To me this is not sufficient to show that she was unavailable. Accordingly, her affidavit is inadmissible hearsay. 4 2 In my opinion, this is a somewhat dated slogan and should not be construed as a threat. 3 I should note that during the investigatory phase of an NLRB pro- ceeding, Board agents are required to be neutral and therefore affidavits taken by a Board agent are not the same as statements or affidavits taken by counsel representing a party. 4 In Park Maintenance, 348 NLRB 1373, 1373 fn. 2, the Board re- versed the admission of affidavits in the absence of a showing that the affiants were unavailable to testify, but found that this constituted harmless error because the judge discredited the statements in the affi- davits. In Marine Engineers District 1 (Dutra Construction), 312 NLRB 55, the Board held that the judge properly refused to accept the affidavit of a nonappearing witness, where the proponent did not allege that the affiant was unavailable to testify. However, in Three Sisters Sportswear Co., 312 NLRB 853, 865 (1993), enfd. mem. 55 F.3d 684 (D.C. Cir. 1995), cert. denied 516 U.S. 1093 (1996), a pretrial affidavit DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316 The bottom line is that there was no one who testified on be- half of the Respondent who could offer admissible testimony that contradicted the testimony of Atkinson and the other em- ployees who described the events on January 19. The only question is whether that conduct, clearly concerted, lost its protection by virtue of the standards set forth in Atlantic Steel Co., 245 NLRB 814, 816 (1979). III. ANALYSIS In Atlantic Steel, the Board established a balancing test for these types of situations. In determining if an employee’s con- certed conduct relating to conditions of employment loses the protection of the Act, the Board will take into account and bal- ance the following factors (a) the place of the discussion; (b) the subject matter of the discussion; (c) the nature of the em- ployee’s outburst; and (d) whether the outburst was provoked by the employer’s unfair labor practices. In my opinion, the evidence shows that the “walk-in” by At- kinson and the other employees constituted concerted activity that related to conditions of employment. The record shows that this was done in a way that had some precedent in the past and that the employees did not refuse to obey any order to leave Schnell’s office. The entire transaction was of extremely short duration and there is no evidence that Atkinson’s conduct in- volved any threats, menacing conduct, or any attempt to impede Schnell from leaving her office. On the basis of this record, it is my opinion, that Atkinson’s conduct was protected by Sec- tion 7 of the Act and accordingly that his discharge for this event constitutes a violation of Section 8(a)(3) and (1) of the Act. On the other hand, I do not believe that Williams was dis- charged for any illegal reason. He had never engaged in any union or protected concerted activity and there would have been no particular reason to pick him out for antiunion retalia- tion. The General Counsel theorizes that instead of warning or suspending Williams, the Company made the decision to dis- charge him because of its general antiunion animus as shown in prior cases or because Atkinson, as a union steward, inquired on his behalf on January 12, 2012. In accordance with Wright Line, 251 NLRB 1083 (1980), approved NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), if the General Counsel makes out a prima facie showing sufficient to support an inference that protected or union activity was a motivating factor in the decision to dis- charge or take other adverse action against an employee, then the burden shifts to the Respondent to demonstrate that it would have taken the same action in the absence of the protected ac- tivity. In my opinion, the assertion that the Respondent decided to overly punish Williams because of Atkinson’s meeting with Schnell is simply too far-fetched. Anything is possible, but I view this theory as being so unlikely that it cannot, in my opin- ion, give rise to a prima facie case. Although a bit more possi- ble, the idea that the Respondent, which clearly had good cause of a frightened witness who was a current employee and who claimed not to remember anything about her affidavit other than her signature, was received as past recollection recorded under Rule 803(5). to discipline Williams, decided to discharge him because of its overall animus demonstrated by other cases involving other facilities, is also a very thin reed. In the present case, the evidence demonstrates, and the Gen- eral Counsel basically concedes that the Company was justified in imposing some form of discipline on Williams for his behav- ior on January 7. While his conduct may not have risen to the level of Dickerson, Sylvia Taylor, and Iris Brown, it was not as trivial as the General Counsel would suggest. In my opinion, the evidence shows that Williams refused to respond to a call; that he badgered the supervisor on duty; that he insulted her and made a sexist comment to her; and that he mocked her when they were returning into the building after the patient had been discharged from the facility. These actions were done in the presence of other employees, a resident and her family, and the employees of the service that was picking up the patient. The General Counsel also suggests that the Respondent did not make a thorough investigation before discharging Williams. But in my opinion, the investigation was more than adequate especially since Williams, in his initial response, chose to be evasive and claimed that he didn’t know what he was being accused of despite being told a few days earlier. By the time that the discharge decision was made, the Company had state- ments from Treacy and two other witnesses who contradicted the second statement that Williams had provided on January 16. We are not litigating whether the Company violated the Act by not doing a thorough investigation of this incident. To the ex- tent that this is an issue, it is only one insofar as it would tend to show whether the Company treated Williams in a disparate manner. And in my opinion, it did not. In my opinion, the evidence does not establish that the Re- spondent discharged Williams because of antiunion reasons or for any other reasons that would violate the Act. On the contra- ry, it is my opinion that the preponderance of the evidence shows that the only reason he was discharged was because of his behavior on January 7, 2013. CONCLUSIONS OF LAW 1. By discharging Patrick Atkinson, because of his protected concerted activity in leading a union protest concerning condi- tions of employment, the Respondent violated Section 8(a)(3) and (1) of the Act. 2. The aforesaid violation affects commerce within the meaning of Section 2(6) and (7) of the Act. 3. Except as found herein, the other allegations of the com- plaint are dismissed. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having concluded that the Respondents are responsible for the unlawful discharge of Patrick Atkinson, they must offer him reinstatement, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate LONG RIDGE OF STAMFORD 317 prescribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondents shall also be required to expunge from their respective files any and all references to the unlawful discharge and to notify the employee in writing that this has been done and that the unlawful discharge will not be used against him in any way. The Respondent Employer shall file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters. The Respondent Employer shall also compensate Atkinson for the adverse tax consequences, if any, of receiving one or more lump-sum back- pay awards covering periods longer than 1 year. Latino Ex- press, Inc., 359 NLRB 518 (2012). [Recommended Order omitted from publication.]