Castro Valley Animal Hospital, Inc.

370 NLRB No. 80 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. Castro Valley Animal Hospital, Inc. and Christina Ar- ianna Padilla and Akilah Williams. Cases 32– CA–251642 and 32–CA–254220 February 2, 2021 DECISION AND ORDER BY CHAIRMAN MCFERRAN, AND MEMBERS KAPLAN AND EMANUEL On July 27, 2020, Administrative Law Judge Amita Baman Tracy issued the attached decision. The Respond- ent filed exceptions and a supporting brief, the General Counsel filed an answering brief with an exhibit, and the Respondent filed a reply brief.1 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 exceptions2 and briefs and has decided to af- firm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board orders that the Re- spondent, Castro Valley Animal Hospital, Inc., Castro Valley, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees with discharge if they en- gage in protected concerted activities. (b) Falsely reporting employees to the police because they engage in protected concerted activities. (c) Discharging employees because they engage in pro- tected concerted activities. 1 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent in its brief argues only that the judge erred by find- ing that the employees engaged in protected concerted activity for mutual aid or protection. (The Respondent’s brief nominally argues as well that the judge erred by finding that the Respondent had knowledge of em- ployees’ protected concerted activity and that the judge’s recommended remedies were unjust, but only because the employees were not engaged in protected concerted activity.) The Respondent has excepted to the judge’s other findings. The Respondent, however, does not state, either in its exceptions or supporting brief, any grounds on which these pur- portedly erroneous findings should be overturned (beyond its argument that the charging parties did not engage in protected concerted activity). Therefore, in accordance with Sec. 102.46(a)(1)(ii) of the Board’s Rules and Regulations, we shall disregard these exceptions. See Holsum de (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed 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 Christina Arianna Padilla and Akilah Williams full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges pre- viously enjoyed. (b) Make Christina Arianna Padilla and Akilah Wil- liams whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) Compensate Christina Arianna Padilla and Akilah Williams for the adverse tax consequences, if any, of re- ceiving lump-sum backpay awards, and file with the Re- gional Director for Region 32, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year(s) for each employee. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges, and within 3 days thereafter, notify the employees in writing that this has been done and that the discharges will not be used against them 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, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Castro Valley, California facility copies of the attached notice marked “Appendix.”4 Copies of the Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). Member Kaplan concurs in adopting the judge’s finding that the Re- spondent unlawfully discharged employee Williams. However, he does so because the record supports finding that the Respondent discharged her because it believed she engaged in concerted activity for mutual aid or protection, regardless of whether her complaints about break times were in fact concerted. See, e.g., Lou's Transport, Inc., 361 NLRB 1446, 1447 (2014), enfd. 644 Fed.Appx. 690 (6th Cir. 2016). Accordingly, Member Kaplan finds no need to pass on whether Williams actually did engage in protected concerted activity. 3 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 notice, on forms provided by the Regional Director for Re- gion 32, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained 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, 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 custom- arily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered 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 employees and former em- ployees employed by the Respondent at any time since October 18, 2019. (g) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. February 2, 2021 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 14 days after service by the Region. If the facility is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial comple- ment of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if the Respondent customarily The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT threaten you with discharge if you engage in protected concerted activities. WE WILL NOT falsely report you to the police because you engage in protected concerted activities. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected concerted ac- tivities. 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 Christina Arianna Padilla and Akilah Wil- liams full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Christina Arianna Padilla and Akilah Williams whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earn- ings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and interim em- ployment expenses, plus interest. WE WILL compensate Christina Arianna Padilla and Akilah Williams for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 32, within 21 days of the date the amount of backpay is fixed, either by agree- ment or Board order, a report allocating the backpay awards to the appropriate calendar year(s) for each em- ployee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharges of Christina Arianna Padilla and Akilah communicates with its employees by electronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” CASTRO VALLEY ANIMAL HOSPITAL, INC. 3 Williams, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. CASTRO VALLEY ANIMAL HOSPITAL, INC. The Board’s decision can be found at www.nlrb.gov/case/32-CA-251642 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Amy Berbower, Esq., for the General Counsel. Jonathan Martin, Esq., for Respondent. STATEMENT OF THE CASE AMITA BAMAN TRACY, Administrative Law Judge. This case was tried in Oakland, California, from March 10–11, 2020. Christina Arianna Padilla (Padilla) and Akilah Williams (Wil- liams) (collectively, Charging Parties) filed charges, as cap- tioned above, on November 12, 2019, and January 6, 2020. The General Counsel, through the Regional Director for Region 32 of the National Labor Relations Board (the Board), issued a com- plaint and consolidated complaint, dated January 2, 2020, and February 20, 2020, respectively. Castro Valley Animal Hospital (Respondent) filed timely answers to the complaint and amended complaint. The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) when (1) about October 21, 2019,1 it threatened employees with termina- tion if they did not waive their group complaints about their terms and conditions of employment by signing an acknowledg- ment form that said the employees were provided enough time for meals; (2) about October 22, reported an employee to the po- lice because the employee engaged in protected concerted activ- ity by refusing to waive a group complaint about not getting meal breaks; (3) about November 7, reported an employee to the 1 All dates hereinafter are 2019 unless otherwise specified. 2 The transcripts and exhibits in this case generally are accurate other than a few misspellings. 3 Although I have included several citations to the evidentiary record in this decision to highlight testimony or exhibits, I emphasize that my findings and conclusions are not based solely on those citations, but ra- ther are based on my review of the entire record for this case. Further- more, in evaluating witness’ testimonies, I have considered the demeanor of the witnesses; the apparent interests of the witnesses; the inherent probabilities; corroboration or lack thereof; consistencies or inconsisten- cies within the testimony of the witnesses and between the witnesses when testifying about the same event. See, e.g. NLRB v. Walton Mfg. police because the employee engaged in protected concerted ac- tivities by refusing to waive a group complaint about not getting meal breaks and/or not being paid for working overtime; (4) on or about October 18, terminated employee Williams; and (5) on or about October 21, terminated employee Padilla. In its answer, Respondent denies the allegations. Respondent claims that no threat was made, denies knowledge of any alleged group complaints, and denies that employees were asked or com- pelled to sign an acknowledgment form as alleged. Respondent also asserts that on about October 22 it reported an employee to the police for stealing money, and on about November 7 it re- ported an employee for her harassing communications. Finally, Respondent admits that it terminated Padilla on or about October 21 but denies terminating Williams on or about October 18. Re- spondent claims that it terminated Padilla for legitimate, non-dis- criminatory and nonretaliatory reasons unrelated to her alleged protected concerted activity, her alleged complaints, her alleged refusal to sign any form (as Respondent did not provide such a form), and any other alleged protected activity. Instead, Re- spondent terminated Padilla for her unlawful and disloyal acts. As for Williams, Respondent asserts that she voluntarily re- signed her employment, and if it is found that Respondent termi- nated Williams, it was for legitimate, nondiscriminatory and non-retaliatory reasons unrelated to her alleged protected con- certed activity or any other alleged protected activity. Instead, Respondent claims, Williams refused to perform her required job duties. On the entire record,2 including my observation of the de- meanor of witnesses,3 and after considering the briefs filed by the General Counsel and Respondent,4 I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a California corporation with an office and place of business in Castro Valley, California, is engaged in the oper- ation of a veterinary clinic and animal hospital. During the 12- month period ending October 1, Respondent, in conducting its operations at its place of business in Castro Valley, California, derived gross revenues in excess of $500,000, and purchased and received goods and materials valued in excess of $5000 directly from points outside the State of California. Accordingly, I find, and Respondent admits, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. Based on the foregoing, I find this dispute affects commerce and that the Board has jurisdiction of this case, pursuant to Sec- tion 10(a) of the Act. Co., 369 U.S. 404, 408 (1962). Any testimony in contradiction to my findings has been considered but rejected. Additionally, it is well estab- lished that the trier of fact may believe some, but not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950). Most striking to me is the incredible testimony of Gurbinder Brar (Brar), who is Respondent’s owner, as much of his testimony was con- tradicted by his contemporaneous text messages between the Charging Parties and himself. 4 Other abbreviations used in this decision are as follows: “GC Exh.” for the General Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “GC Br.” for the General Counsel’s Brief; and “R. Br.” for Respondent’s Brief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background Respondent is a veterinary clinic and animal hospital (the fa- cility) in Castro Valley, California, and is owned and operated by veterinarian Gurbinder Brar (Brar) (Tr. 231); the facility’s hours of operation are from 8:30 a.m. to midnight 7 days a week. Along with Brar, two other veterinarians work at Respondent in- cluding his wife Nitu Brar (Dr. Nitu).5 Respondent also employs a handful of veterinary technicians (vet techs) and receptionists who are either paid hourly or on salary; an individual may be hired to perform both job functions or only one job function. Nevertheless, receptionists assist the veterinarians and vet techs, but the amount and type of assistance varies among the recep- tionists (Tr. 21–23, 304, 311, 290, 295–296, 319–320).6 Recep- tionists perform duties such as checking in and out clients and answering phone calls. When assisting the veterinarians and vet techs, receptionists may hold animals for injections, put animals in kennels, bring animals to their owners, and vaccinate animals (Tr. 335). No written job duties for the receptionist position ex- ists (Tr. 359–360).7 When Respondent hires new employees, these employees are verbally informed of workplace policies and rules; no employee handbook or written policies exist, including instructions on clocking in and out for meal or lunch breaks (Tr. 23). Employees are trained by other employees. On occasion, Brar would make policy announcements to the employees via documents he placed in the break room (Tr. 43–44, 105–106; GC Exh. 22).8 5 Both Brar and Dr. Nitu are admitted supervisors and agents of Re- spondent within the meaning of Secs. 2(11) and 2(13) of the Act. 6 Brar claimed that all receptionists perform a wide range of duties assisting the veterinarians and vet techs. However, it is clear from wit- ness testimony that the duties varied greatly among the receptionists. Ronnie Swart (Swart), who self-identified as a head or lead receptionist, testified that she did not perform vet tech duties including assisting in animal euthanasia and surgeries, and that receptionists do not have to perform vet tech work (Tr. 319–320). Swart testified that a receptionist may perform such duties if she has the time or desire to do so (Tr. 319– 320). 7 Brar claimed that the receptionist’s job description was created by the receptionists, including Padilla, and a written description was located at the receptionist’s desk (Tr. 359). However, Respondent did not intro- duce the job description into the record and failed to provide the job de- scription in response to the General Counsel’s subpoena duces tecum (Tr. 359–361). Thus, I draw an adverse inference that a written job descrip- tion for the receptionist position does not exist. See Shamrock Foods Co., 366 NLRB No. 117, slip op. at 1 fn. 1 and 15 fn. 29 (2018) (em- ployer’s contumacious failure to produce subpoenaed records regarding the duties of its floor captains warranted adverse inference that they would have corroborated the testimony of employees), enfd. per curiam 779 Fed. Appx. 752 (D.C. Cir. 2019). 8 Brar testified that he never asked employees to sign policies or notes from him (Tr. 252–253). However, Swart’s text message to her cowork- ers shows that in January Brar wanted all employees to sign a note re- garding when appointments should be scheduled (GC Exh. 22). Thus, I do not credit Brar’s testimony as it is directly contradicted by Swart’s contemporaneous text messages to her coworkers to sign a document as ordered by Brar. Employees clock in and out of work via a computer-based time- keeping system using a computer located outside Brar’s office. Employees received individual passwords to clock in and out of the timekeeping system, and only Brar could alter and approve employees’ timecards (Tr. 24–25, 158, 244–245). Respondent provided employees’ their work schedules 1 week in advance, and these schedules did not include any set times for lunch breaks or other breaks (Tr. 28; GC Exh. 2). At least two recep- tionists testified that they clocked in and out for their lunch breaks while Williams and Padilla denied doing so (Tr. 290–291, 296, 304, 311). As for overtime pay, the employees did not re- ceive overtime pay even when they worked overtime hours (alt- hough Brar claimed that no employees worked overtime hours) (Tr. 369, 385).9 2. Padilla’s Employment Respondent hired Padilla in May 2018 as a receptionist and vet tech, earning 14 dollars per hour with no set schedule, and terminated her on October 21 (Tr. 18).10 Padilla handled client transactions, scheduled appointments, administered vaccines, created estimates for clients, and assisted in animals’ blood draws, x-rays, and surgeries (Tr. 19). When Padilla began working for Respondent, she testified that Brar and “all of the employees on staff” told her that she should find time to eat during downtime (time when there was no work to perform) and that the employees do not clock out for lunch or meal breaks; Padilla would not have scheduled, uninterrupted lunch breaks during her work shifts (Tr. 30, 108, 161).11 Padilla testified that she specifically asked Brar in approximately June 2018 if employees earn overtime pay and clock out for lunch 9 Whether Respondent violated State or Federal laws concerning lunch breaks and/or overtime pay to eligible employees will not be ad- dressed in this matter. 10 I relied on most of Padilla’s testimony in determining these findings of fact as I found her testimony credible. Padilla testified consistently and calmly throughout her direct and cross-examination; Padilla did not become flustered when being cross-examined. Padilla provided details as to the events relevant in this complaint. Padilla appeared to be a con- fident and authentic witness who stood her ground as to her recall of events which gave credence to her testimony. Furthermore, Padilla’s testimony is corroborated by documentary evidence including her text messages with Brar as well as screenshots of her online timesheets and the police incident report. However, I cannot credit her testimony of when she learned about Respondent’s removal of Williams from the work schedule. 11 In contrast, Swart, who is a salaried employee, testified that she trained Padilla and other new employees to clock in and out for lunch (Tr. 322–323). I cannot rely on portions of Swart’s testimony for several reasons. Swart provided vague and defensive responses to questions from Counsel for the General Counsel. Some portions of her testimony appeared rehearsed as if she sought to provide the correct answers for Respondent, which still employs her. When questioned as to the actual practices of employees, Swart did not know if these employees clocked in and out for lunch (Tr. 316–317, 322). Swart cited to the non-existent employee manual which she claimed mandated a 30-minute meal break even though she testified that she informed Padilla that she could take 1- hour lunch breaks (Tr. 323). Even if I am to accept Swart’s testimony as credible, Brar, who approved Padilla’s timecards, never spoke to Padilla about the need to clock in and out for lunch breaks; he never disciplined Padilla for not clocking in and out for lunch breaks. CASTRO VALLEY ANIMAL HOSPITAL, INC. 5 breaks (Tr. 35). Brar told her that at Respondent she would not earn overtime pay and would not clock out for lunch breaks be- cause Respondent’s policies differ from other animal hospitals and clinics (Tr. 35). As a result, Padilla did not clock out for her meal breaks except “less than a handful of times” when she clocked out due to a need to leave the facility (Tr. 30–31, 113). Padilla testified that she often had no backup to cover the recep- tion desk. Thus, Padilla rarely clocked out for lunch breaks, and would not receive a scheduled, uninterrupted lunch break during her work shift. Moreover, Brar informed her that she needed to remain at the reception desk when no other employees were available (Tr. 96–97).12 Regarding overtime, Padilla testified that sometimes she worked more than 8 hours per day but was not paid overtime (Tr. 25). Since Padilla assumed that Brar’s policies, which he described to her, on overtime and meal breaks were permitted, Padilla did not discuss these issues with any coworkers until early October when Williams raised her own concerns to Padilla (Tr. 97, 347–348). 3. Williams’ Employment Williams, who was referred to the position by Padilla and in- terviewed and hired by vet tech Luis Cordova (Cordova), began working at Respondent on September 9 as a receptionist;13 she worked Mondays through Wednesdays from approximately 4 p.m. to midnight, earning 13 dollars per hour (Tr. 32, 147–149, 202, 338; GC Exh. 13–14).14 Williams testified that Cordova explained the job duties of the position for which she was hired, telling her that as a receptionist she would only interact in a mi- nor way with the animals such as holding them down during a procedure or taking their weight but would not be acting as a vet tech, including not participating in surgeries (Tr. 149, 162, 206).15 When Williams began working for Respondent, Padilla as- sisted in training her, and they would work together approxi- mately 2 days per week (Tr. 33). At the start of her employment, Williams learned from Padilla, Cordova and Brar that she would not get paid overtime (although she did not work overtime hours) (Tr. 34–35, 164, 209–210). Padilla and other unidentified em- ployees also informed Williams that employees do not clock out for lunch breaks and eat when there are no clients; thus, Williams also never clocked out for her lunch breaks and did not receive scheduled, uninterrupted lunch breaks (Tr. 33, 153, 159–160). Padilla relayed to Williams that she asked Brar “casually” when she started working at Respondent whether employees are paid overtime and whether employees clock out for lunch breaks (Tr. 12 In contrast, Brar testified that 99 percent of the time receptionists worked in pairs and were rarely alone (Tr. 370–371). Swart testified that there is never a time when a receptionist who needs a lunch break is pre- vented from doing so due to lack of coverage (Tr. 322). Two other re- ceptionists, Maddy Davich (Davich) and Celia Prieto (Prieto) testified that they could clock out and take their meal breaks during their shifts (Tr. 290–291, 296, 304, 311). Based upon the collective consistent tes- timonies of Brar, Swart, Davich, and Prieto, it appears that these employ- ees never had difficulty taking their lunch breaks. However, such testi- mony does not contradict the credible testimony of Padilla and Williams that they could not take their meal breaks regularly and were informed not to clock out for those meal breaks. 13 Williams testified credibly and consistently throughout her testi- mony. Although Williams appeared flustered and irritated during cross- 35). Padilla told Williams that Brar told her that they do not earn overtime pay and do not clock out for lunch breaks based on Re- spondent’s policies (Tr. 35). In early October, Williams claimed that Brar offered her a pay raise and a 10 a.m. to 10 p.m. shift but would not pay her over- time (Tr. 34, 163–164).16 Williams declined the offer due to the lack of overtime pay (Tr. 163–164). In contrast, Brar claimed that after 1 to 2 weeks of employment, Williams requested a pay raise if she was required to perform job duties involving animals (Tr. 341–342, 344, 350, 365). Williams denied requesting a pay raise (Tr. 164–165). Brar described the duties that Williams would not perform to include explaining medications to clients, not taking pets from clients, not weighing animals, not putting the animals in the exam rooms and not cleaning (Tr. 343). Brar testified that he informed Williams that she needed to perform these job duties she refused to perform and would consider a pay raise in the future (Tr. 342, 344–345, 346). In response to Brar’s refusal, Brar testified that Williams responded rudely and arro- gantly, and refused to perform assigned duties (Tr. 346, 366– 367). Brar testified that Williams then would only take phone calls and accept payments from clients (Tr. 367). Brar did not issue any warnings to Williams (Tr. 366–367). Here, I do not credit Brar’s version of events. Brar claimed that after he refused to provide Williams a pay raise and reiter- ated the job duties, he expected her to perform, Williams re- sponded rudely and arrogantly and performed even less job du- ties than he claimed she needed to perform. Instead of disciplin- ing or terminating Williams for failure to perform her job duties, Brar kept Williams employed and told her he would consider a pay raise in the future once she performed her assigned duties. Due to this implausible response, I do not credit Brar’s testi- mony. Instead, I credit Williams’ testimony that she refused Brar’s offer of a pay raise and more hours of work without over- time pay. Furthermore, I credit Williams’ testimony rather than Brar’s testimony due to a subsequent credited discussion, which will be discussed shortly, between Padilla and Williams concern- ing lunch breaks and overtime. 4. Padilla and Williams Discuss Respondent’s Policies on Lunch Breaks and Overtime Pay Soon after Brar offered Williams a pay raise with increased hours but no overtime pay, Padilla and Williams discussed and complained to one another about Respondent’s policies on lunch breaks and overtime pay (Tr. 35, 160–161, 167). Williams com- mented to Padilla, “Man, we don’t get no breaks around here” examination, her testimony remained uncontradicted and corroborated by the documentary evidence such as her text messages with Brar. Thus, I credit Williams’ testimony when in conflict with Respondent’s wit- nesses. 14 Brar testified that Williams held the positions of veterinary assistant and veterinary receptionist (Tr. 334–335). Regardless of her job title, Williams had been informed by Cordova what her job duties would be. 15 Cordova did not testify. However, Swart and other receptionists testified that the amount of vet tech worked performed by the reception- ists varied. 16 Padilla corroborated Williams’ testimony by relaying that Brar of- fered Williams a 10 a.m. to 10 p.m. shift which prompted a conversation between Padilla and Williams regarding the lack of overtime pay and lunch breaks at Respondent (Tr. 34–35). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 (Tr. 161). To which Padilla responded to Williams that she needed to take her break when she could and eat when she could (Tr. 161). Williams testified that lunch breaks were “over- looked, not necessarily talked about” (Tr. 161). Padilla told Wil- liams that she did not think it was “fair” and not sure if the poli- cies were “completely legal” but did not question Brar on his policies (Tr. 35). Padilla and Williams testified that they never spoke to Brar about their discussion between themselves (Tr. 97– 98, 180, 185). Padilla also testified that from the time between early October to October 18, she did not speak to any coworkers about their complaints regarding lunch breaks and overtime pay. Williams testified that other than her conversation with Padilla in early October, she only spoke to head receptionist Ronnie Swart (Swart) on October 16 about the lack of lunch breaks (Tr. 166–168, 210–211, 213). 5. Williams Discusses Respondent’s Policies on Lunch Breaks with Swart during Williams’ Last Scheduled Work Shift On approximately October 16, Williams worked with Swart for the first time (Tr. 155–156, 169). Williams also worked with Cordova and Brar that day (Tr. 168). During that shift, at ap- proximately 5:30 p.m., Cordova asked Williams to assist with euthanizing a dog (Tr. 172). Williams expressed her discomfort with helping with the euthanasia, and Cordova said okay (Tr. 172). Williams spoke to Swart about Cordova’s request for as- sistance, and Swart told Williams that she was also uncomforta- ble with such tasks (Tr. 172, 205–206). Swart, along with recep- tionists Celia Prieto (Prieto) and Maddy Davitch (Davitch), tes- tified that they do not perform such tasks (Tr. 295, 310, 319). Later during this same work shift, another customer brought in two dogs that had been in a fight. Williams and Swart placed the dogs in separate rooms while Brar assessed the situation (Tr. 169–170). When the situation finally calmed at approximately 9 p.m., Williams and Swart complained to one another about not being able to take a break that shift (Tr. 169–170). Williams admitted that she was “super frustrated” during this conversation and complained to Swart that if she would be asked to participate in euthanizing a dog and dog surgeries, she should be paid more as she was not hired for those duties (Tr. 228). However, Wil- liams never asked Brar directly for a higher salary to perform those duties. Williams also testified that she complained to Swart that she was irritated because she never receives a lunch break when she works. Swart asked her why she does not receive lunch breaks. Williams responded that she was never informed how to take a lunch break or when to take a lunch break. Swart told Williams that because Cordova, receptionist Veronica Gar- cia (Garcia), and she are salaried employees, their meal breaks are handled differently. Swart told Williams that she should complain to Brar about not getting lunch breaks (Tr. 170–171). Thereafter, at approximately 9:45 p.m. to 10 p.m., Cordova asked Williams to help in the exam room with those same dogs. Again, Williams expressed her discomfort and Cordova said okay (Tr. 173). Swart left the facility at 10 p.m. (Tr. 171). Fi- nally, between 10:30 p.m. and 11 p.m., Brar asked Williams to assist with the same dogs who had been in a fight but again 17 Dr. Nitu did not testify. Williams expressed her discomfort and Brar said okay (Tr. 174). During this shift, Brar did not tell Williams that she was required to assist him, nor did he tell her that his request was part of her job duties (Tr. 174). At the end of Williams’ shift, Brar asked her to return to the facility on Friday, October 18 to pick up her paycheck rather than giving it to her that day which he had done in the past (Tr. 175). In contrast to Williams’ testimony, Swart testified that on the one occasion she worked with Williams, that shift was not hectic, and she could not recall any details from that shift (Tr. 320). Swart denied Williams complaining to her about not being able to take a meal break (Tr. 317–318). Swart also testified that she never observed Williams refusing to perform work duties but had been informed as such by other employees (Tr. 318). Swart tes- tified that Williams and she did not discuss any subjects concern- ing work that day (Tr. 320). I do not credit Swart’s testimony. Swart could not recall any details from the only shift she worked with Williams. While it may be reasonable that Swart could not recall details from Wil- liams’ last work shift as the shift did not stand out in her mind, Swart also claimed that she knows she did not speak to Williams about their work duties that day nor did Williams speak to her about the lack of meal breaks. It is incongruous for Swart to not recall any events from that work shift but then to also recall what Williams and she did and did not discuss. Swart’s selective memory undermines her credibility. Thus, I credit Williams’ tes- timony that she discussed the lack of meal breaks with Swart along with her discomfort in performing certain tasks as a recep- tionist. 6. Williams’ Termination On Friday, October 18, Williams went into the facility around noon to pick up her paycheck (Tr. 176). Dr. Nitu, who Williams had never met, met her in the reception area (Tr. 177).17 Swart and Garcia were present as well.18 Dr. Nitu informed Williams she had her paycheck but also wanted her facility key (Tr. 178). When Williams asked Dr. Nitu why she needed her facility key, Dr. Nitu informed Williams that they had found someone else to cover her Monday to Wednesday shifts. Williams did not have the facility key with her and told Dr. Nitu she would not return that day with the facility key because she did not have the time or money to return that day (Tr. 178–179). Dr. Nitu then offered to compensate Williams for her time to bring the key back to the facility along with any transportation costs. Williams asked Dr. Nitu when she would be working again, but Dr. Nitu was unsure and told Williams that they may call her on Monday, Oc- tober 21 to inform her when she would be working again. Also, during this conversation, Dr. Nitu informed Williams that they would be mailing her a check to compensate her for her lunch breaks once they determined how many lunch breaks, they owed her. After some back and forth conversation, Williams told Dr. Nitu that she wanted this additional check for her lunch breaks when she returned the facility key around noon on Monday, Oc- tober 21 (Tr. 179–180). Williams testified that she did not speak to Brar or Dr. Nitu 18 Garcia did not testify, and Swart was not asked any questions about this interaction. CASTRO VALLEY ANIMAL HOSPITAL, INC. 7 about her complaints that she did not receive lunch breaks during her work shifts (Tr. 179–180). In contrast, Brar testified that Williams had complained to him directly, and that he did not hear of Williams’ complaints from any other employee (Tr. 268–269, 348–349). Brar claimed that during Williams “last day of work or something she claimed additional lunches” (Tr. 263–264). Brar also testified, “[I]t was at the end when [Williams] said, you know, she wanted more – to be paid more for her lunches” (Tr. 348). Brar alleged that Williams was the only employee to com- plain that she did not get meal breaks so even though he also claimed that she did receive meal breaks, he still decided to give her an extra paycheck for the lunch breaks and hoped to continue working with her (Tr. 348). Furthermore, Brar claimed that Wil- liams told Dr. Nitu when she picked up her paycheck that she would not work at that pay level and would not perform the as- signed duties (Tr. 368). I do not credit Brar’s testimony that Williams complained to him directly that she wanted to be paid more for her lunch breaks. I also do not credit his testimony that no employees informed him that Williams complained about her lack of lunch breaks. Dr. Nitu did not testify, and as an admitted Section 2(11) and 2(13) supervisor and agent for Respondent, I draw an adverse inference that her testimony would not have corroborated Brar’s testimony as to what occurred when Williams returned to the fa- cility to pick up her paycheck.19 Furthermore, as stated above, in discrediting Swart, a totality of the circumstances indicates that Swart likely informed Brar of Williams’ complaint of not being able to take lunch breaks. Swart, who could have corrob- orated Brar’s version of events, was not questioned about this interaction between Dr. Nitu and Williams. This lack of corrob- oration by Swart weakens Brar’s claims that Williams’ refused to work at Respondent at the pay rate offered and perform the assigned job duties.20 Even more on point, as discussed further, Brar’s subsequent text messages with Williams confirms that he knew Williams had complained about her lunch breaks to a coworker which led to his decision to remove her from the sched- ule. Thus, I find that Brar had been informed that Williams com- plained about her lack of lunch breaks and decided to pay her the unpaid lunch breaks when removing her from the schedule and asking for her facility key. After Williams left the facility around noon, she called Pa- dilla, asking her “what was going on” (Tr. 182).21 Padilla told Williams that she did not know what was going on, but that Wil- liams should not have been fired and she should be fine. Padilla advised Williams to call Brar to ask him directly (Tr. 182). After Williams could not reach Brar by phone call, Williams sent Brar a text message at 1:47 p.m. asking why she was no longer sched- uled to work Monday through Wednesday (GC Exh. 12). Brar responded at 3:57 p.m. that he needed the facility key returned because it would be given to another person and that they were trying to find space in the schedule for Williams to take her 19 See Michael Cetta, Inc. d/b/a Sparks Rest., 366 NLRB No. 97, slip op. at 9–10 (2018) (adverse inference may be drawn against an employer for failing to call its manager to testify). 20 See Stabilus, Inc., 355 NLRB 836, 840 fn. 19 (2010) (lack of cor- roboration by a witness who testified but who failed to testify about an incident may weaken a party’s case). “needed breaks and lunch times” (GC Exh. 12). Brar wrote that the staff would contact her with an update on Monday, October 21. Williams responded at 7:33 p.m. by informing Brar that she would bring back her facility key on Monday and proceeded to complain that Dr. Nitu did not act professionally when she spoke to Williams in the presence of Swart (GC Exh. 12). The following day, Saturday, October 19 at 1:37 p.m., Wil- liams wrote to Brar, “Just letting you know I will exchange the key for my unpaid lunches as well” (GC Exh. 12). Brar re- sponded informing Williams that “as a courtesy” they were giv- ing her a check to compensate her for “anything [she] said about unpaid lunches” even though she did eat her food when she was clocked in; Brar also wrote: “Technical[ly] you were eating your food even clocked in on front desk. It is very well recorded in cameras. But yes, still you will get some extra check for lunch time you did not clock out” (GC Exh. 12). Williams pointed out that she ate her lunch at the reception desk to be able to handle customers “BECAUSE of the fact you guys don’t schedule lunch times. I had no choice BUT to work AND eat @ the same time. Regular jobs schedule lunch times I see your company did not have that intact” (GC Exh. 12 (emphasis in original)). Williams continued that she felt she was doing additional work due to a coworker’s illness, and commented, “There are other people as well that eat @ the front desk due to down time as well.” Instead of denying Williams’ statement regarding lack of scheduled lunch breaks, Brar asked Williams how many lunches she wanted paid, and to not discuss other employees since “[a]ll oth- ers are very happy with policy and procedures. It is you who wants lunches paid.” (GC Exh. 12). Brar and Williams ex- changed further text messages, and Williams reminded Brar that Dr. Nitu told Williams she would be compensated for her trans- portation costs when she returned her facility key. At around noon, on Monday, October 21, Williams went back to the facility to return her key (Tr. 186). Both Padilla and Garcia were at the facility. Padilla asked Williams if she was okay, and Williams told her she was okay. Garcia told Williams she was sorry, and Garcia handed Williams the check for her lunch breaks (Tr. 186). Williams left her facility key (Tr. 186). No one from Respondent ever contacted Williams to place her back on the work schedule as stated by Brar and Dr. Nitu (Tr. 186–187). Williams denied quitting her job with Respondent. In contrast, Brar provided inconsistent testimony as to what occurred during these last few days of Williams’ employment. Brar claimed that on Friday, October 18, he expected Williams to inform him whether she was willing to perform “required du- ties” when she picked up her paycheck, and at what pay rate Wil- liams wanted to perform these “required duties” (Tr. 261, 263, 367–368). Brar also claimed that on Friday, October 18 he ex- pected Williams to inform him whether she would perform these “required duties” with the same pay she had been receiving (Tr. 265–266, 367–368). Brar then claimed that Williams told him 21 Padilla testified that Williams called her at around 9:30 a.m. to tell Padilla she had been fired (Tr. 36). I credit Williams’ testimony that she went to the facility around noon because after her phone call with Padilla, Williams followed her advice by contacting Brar thereafter at approxi- mately 1:45 p.m. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 that she would not return to work unless she is given a raise (Brar denied her request for a raise), and thus she verbally resigned (Tr. 264, 356, 367–368). Despite his text message to the con- trary, Brar denied removing Williams from the schedule due to her need for lunch breaks and other breaks (Tr. 261–262, 347, 367). Here is another example of Brar’s complete lack of credi- bility during this hearing. The text message from Brar directly points to his reason for removing Williams from the schedule— the need to find time for her “needed breaks and lunches,” not that she would not perform her required duties, as Respondent now claims. Brar also did not respond to Williams’ accusation that he did not schedule lunch breaks, and specifically told her that the other employees were satisfied with Respondent’s poli- cies and procedures and that only she wanted paid lunches. Brar did not remind Williams during this text message conversation that Williams was supposed to inform Brar that day whether she would perform the “required duties” and at what pay level; ra- ther, Brar responded to Williams’ question about why she was not on the schedule that he needed to find where he could accom- modate her “needed breaks and lunches.” Thus, Brar’s claim that Williams quit because she would not perform the “required duties” at her existing pay level is not supported by the record. Brar’s silence to Williams’ accusations made about Respond- ent’s lunch break policy also support my finding that he did not provide credible testimony. Moreover, since Dr. Nitu did not testify, taking an adverse inference, I find that Williams did not demand on Friday, October 18 additional pay to perform “re- quired duties.” Instead, on October 18, Williams arrived at the facility to pick up her paycheck, and after being informed that her facility key needed to be returned, Dr. Nitu also informed Williams that they would be paying her for her unpaid lunch breaks. Later, Williams filed a complaint with the state labor depart- ment. In response to her complaint, on January 15, 2020, Brar provided Williams’ timesheets, claiming that Williams clocked in and out for lunch during every shift she worked (Tr. 267; GC Exh. 13). Brar also claimed that Williams left her job because she wanted higher pay, would not perform all assigned duties at her pay level, was rude and hostile to her coworkers with a re- fusal to change her behavior including how she spoke to her coworkers, and was late for her work shifts (GC Exh. 13). Brar wrote that Williams was given “sufficient meal periods” and per- mitted to have snacks and breaks even while clocked in (GC Exh. 13). Brar then stated because Respondent could not “support her demands for higher pay, we had to let her go. Which is she left at her own free will” (GC Exh. 13). Brar testified that even though Williams received paid lunch breaks, he paid her extra money and hoped he would “continue working with her” (Tr. 270–271). However, Williams denied the accuracy of these timesheets as Williams testified that she never clocked out for 22 Williams submitted a few of her transportation receipts to and from the facility to support her testimony that her timesheets do not reflect the actual times she arrived and departed from the facility, as she alleges that Brar fabricated these timesheets by adding in a meal break (GC Exh. 15). I do not rely upon these receipts as they do not support or contradict Wil- liams’ arrival and departure from the facility. 23 Although Padilla did not initially testify to the entire conversation she had with Williams, Padilla’s subsequent testimony about her lunch (Tr. 188–189).22 Brar testified that he could not recall if he clocked out Williams for her lunch breaks (Tr. 275–276). Re- garding her job duties, Williams testified that she never refused to perform all duties involving animals, unlike Brar’s claim (Tr. 206). Instead, Williams admitted that she would not participate in a euthanasia procedure, dog surgery, and anything involving blood and needles which went beyond the scope of duties Cor- dova told her she would perform (Tr. 202–203, 207). Williams testified that she assisted in vaccinating animals, giving animals medicine, providing prescription refills, and weighing animals at the start of a visit (Tr. 206–207). I do not credit Brar’s testimony that Williams clocked in and out for meal breaks. The credited evidence shows that Brar de- cided to pay Williams for her lunch breaks after he learned of her complaint from someone else, likely Swart. If Williams had clocked in and out for lunch as Brar claimed and the timesheets show, there would have been no need to pay Williams an addi- tional check for her lunch breaks. Such a claim is contrary to the credited evidence and makes no logical sense. If Williams would not perform “required duties” as he told her to perform, why would Brar offer Williams additional money to “continue work- ing with her.” In addition, contrary to his email to the labor com- missioner where he stated that Williams was given “sufficient meal periods” as well as “snacks and breaks even while she was clocked in,” Brar emphasized to Williams that only she wanted paid lunches, while everyone else was “very happy” with the pol- icies and procedures. Again, Brar’s testimony continued with its pattern of inconsistencies and wavering explanations. 7. Padilla’s Termination a. Padilla’s Version of Events On Friday, October 18, Padilla received a call from Williams telling her that she met Dr. Nitu for the first time when she went to pick up her paycheck, and that Dr. Nitu asked for the facility key and told her to leave the facility (Tr. 36).23 After she re- ceived Williams’ phone call, Padilla spoke to Swart, asking her what happened with Williams but Swart was uncertain (Tr. 37). Padilla told Swart that Williams told her that she had been fired, and that Brar was upset she was complaining about lunches and wanted the facility key back (Tr. 37). Padilla testified that she told Swart that Williams said she would not give the key back until Respondent paid for her lunch breaks (Tr. 37). Padilla then complained to Swart that Williams is her friend, that they all work overtime, that they all do not get paid lunch breaks, and that Brar should have spoken to Williams rather than firing her (Tr. 37–38). Swart shrugged off Padilla’s complaint, stating that she did not know what happened but did not think it was fair either (Tr. 38).24 Later that day Padilla spoke to Cordova at around 6 p.m. about conversations with Swart and Cordova about Respondent’s removal of Williams from the facility shows that Williams told Padilla that her lunch breaks were the crux of why Respondent wanted back the facility key. 24 Swart did not specifically testify about any conversation with Pa- dilla regarding Williams’ termination on October 18. I credit Padilla’s testimony that she spoke to Swart about William’s termination. CASTRO VALLEY ANIMAL HOSPITAL, INC. 9 Williams’ termination (Tr. 38).25 Padilla testified that she asked Cordova if he knew anything about Williams’ termination (Tr. 39). Padilla testified that Cordova told her that Swart spoke to Brar about Williams’ complaints about lack of lunch breaks and overtime (Tr. 39). Padilla then complained that Brar’s treatment of Williams was unfair and that instead he should have spoken to her. Padilla also stated that the receptionists do more than what they should be expected to do. Cordova responded that Williams should not be complaining to her coworkers since she had only been working at Respondent for a short time and eve- rything had been fine thus far (Tr. 39).26 On Monday, October 21, at approximately 12:30 p.m., Garcia provided a document to Padilla, telling her that Brar wanted her to sign it (Tr. 42, 100). This document included every employ- ees’ name (except Williams’) and declared that the employees had always been given adequate meal breaks (GC Exh. 3). The document (Staff Note) states: Staff Note - Every time you want somethings, it’s food/snack/lunch break, you are required to clock ut. So far it was going openly. As I did not mind, even any of the team members are actually on paid time and clockedmin but, sitting in break room enjying theitr meal. YOU ARE REQUIRD TO CLOCK OUT AT LEAST ONCE BEFORE REACHING 5 HOURS ON YIUR CLOCK WINDOW. HERE BY, I ACKOWLEDGE THAT SO FAR I HAVE BEEN ALWAYS GIVEN ENOUGH TIME FOR MEALS DAILY. _________________ LUIS _________________ VERONICA _________________ RONNIE _________________ CHRISTINA _________________ MADDIE _________________ CELIA 25 Cordova did not testify. Thus, this testimony is hearsay. I credit Padilla’s testimony that she spoke to Cordova, but I give little weight to her testimony as to what he told her as it is not corroborated. 26 Padilla’s photo of her timecard shows that she clocked in at 12:20 p.m., on October 21 (GC Exh. 8). The record is unclear whether Garcia asked Padilla to sign this document before or after Williams dropped off the facility key and picked up her lunch break paycheck. 27 Prieto denied reviewing or signing the Staff Note that Padilla testi- fied Garcia showed her on October 21 (Tr. 292; GC Exh. 3). However, Prieto’s W-4 signature, which Prieto admitted signing, is comparable to her signature on the line next to Prieto’s name on this Staff Note (GC Ex. 3, 17: Tr. 301). In addition, Cordova’s signature on the Staff Note is comparable to his signature on his W-4 form (GC Exh. 18). Swart and Davich testified that they had never seen this Staff Note (Tr. 306, 315). The Board has long held, consistent with Section 901(b)(3) of the Federal Rules of Evidence that a judge may determine the genuineness of signa- tures on authorization cards by comparing them to W-4 records from the employer’s records. See Traction Wholesale Center Co., 328 NLRB 1058, 1059 (1999), enfd. 216 F.3d 92 (D.C. Cir. 2000). Although this matter does not concern authorization cards, I find that in a similar vein GC Exh. 3 (errors within original)). When Garcia provided the Staff Note to Padilla, the signature lines by Luis (Cordova), Ve- ronica (Garcia), and Celia (Prieto) were already signed.27 Padilla told Garcia she would not sign the Staff Note because she did not think it was fair, Williams is her friend, and the employees had not been given enough time for meals (Tr. 43–44, 111; GC Exh. 3). Padilla testified that Garcia laughed and said she would place the document on Brar’s desk (Tr. 44).28 Padilla testified that she spoke to Cordova about his signature on the Staff Note. Padilla testified that Cordova told her to sign the document, “you don’t want to cause problems. You see what happened to Akilah [Wil- liams]” (Tr. 102).29 At approximately 6:30 p.m. that day, Padilla testified that Brar asked her to come into his office to sign the same document Gar- cia provided to her earlier in the day (Tr. 46–47). Padilla told Brar that she was not comfortable signing the Staff Note and wanted to bring up the subject of lunches and overtime. Brar asked her why she would not sign the Staff Note. Padilla re- sponded regarding clocking out for lunch breaks, “How can I do that if I’m only one at reception” (Tr. 46–47). Brar told her to clock in and out as needed as he needed to “cover” himself (Tr. 47). Padilla responded that he is supposed to give the employees a break of 30 consecutive minutes. Brar told Padilla he did not want to argue and only needed her signature. Padilla refused and Brar told her that he would have to say goodbye to her (Tr. 47, 231). Padilla then asked if he was firing her, and Brar said, “Yes, if you don’t want to sign, then I’ll need your key and you need to leave” (Tr. 47). Again, Padilla asked if Brar was firing her, and Brar confirmed he was (Tr. 47). Padilla then asked for her payroll records to prove that she was not paid for her lunches and for overtime but Brar refused to provide these records to her and told her that they would need to go to court to deal with the rec- ords (Tr. 46–48).30 Padilla then turned to leave, and Cordova was standing in the doorway. Padilla said goodbye to Cordova, took her bag from the break room, and gave Cordova her facility key (Tr. 48). Padilla left the facility at approximately 7 p.m.31 The following morning, on Tuesday, October 22, at approxi- mately 9 a.m., Padilla went back to the facility to retrieve her jacket and a cell phone charger she had left behind (Tr. 50–51).32 the W-4 signatures of Prieto and Cordova match their signatures on the Staff Note, and thus their signatures have been authenticated. Regardless of whether the signatures may be authenticated, as discussed further, I credit Padilla’s testimony that Brar told her to sign this Staff Note later that evening of October 21. 28 Garcia did not testify. 29 Again, Cordova did not testify, and this testimony is uncorroborated hearsay to which I give little weight. 30 Brar inconsistently testified that he first learned from his CPA that Padilla wanted her payroll records the day after her termination, and then later Brar testified that he did not learn Padilla wanted her payroll records until November 7 when she asked for her payroll records (Tr. 276–278). Again, Brar’s inconsistent testimony reinforces my determination that he is not a credible witness. 31 Padilla’s timecard report indicates that she clocked out at 7:03 p.m., on October 21 (GC Exh. 7). In addition, Padilla’s photo of her timecard, which she took on October 22, shows that she clocked out at 7:03 p.m. (GC Exh. 8). 32 Brar learned Padilla came back into the facility from Garcia (Tr. 279). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 After speaking briefly with Garcia about her termination, Padilla told Garcia that she wanted to take a picture of her timesheet hours. Thereafter, Padilla walked from the reception area to the break room, took her cell phone charger, took a picture of her work hours which were displayed on the computer next to the break room, went to the treatment room to get her jacket, and went through the x-ray room to Brar’s office (Tr. 50–51). In Brar’s office, Padilla took a picture of the same document, lo- cated on his desk, he told her to sign the prior day (Tr. 51; GC Exh. 19). Padilla also noticed on Brar’s desk another document like the one he asked her to sign the day before, but this version did not have lines for employees’ signatures (Tr. 51–52; GC Exh. 4).33 Padilla took a picture of this document as well (Tr. 51– 52).34 Padilla then went to Respondent’s certified professional accountant’s (CPA) office to obtain her payroll records (Tr. 51– 54). The CPA’s office informed Padilla she would need to ob- tain the payroll records directly from Respondent or with a court order (Tr. 58). Padilla then went to the NLRB office. Between approximately 11 a.m. and 11:30 a.m., Padilla re- ceived a phone call from the Alameda County Sheriff’s Depart- ment (Tr. 58). The officer informed Padilla that Brar had ac- cused Padilla of stealing $200 from the facility on October 21, after his daily transactions came up short, as he had caught her stealing money and told her to put the money back (Tr. 58–59). Police records indicate that Brar called the Alameda County Sheriff’s Department first on October 22 at 11:12 a.m. (GC Exh. 6). According to the police incident report, Brar only wanted Padilla contacted and advised not to return to the facility (GC Exh. 6). Padilla denied stealing the money (Tr. 50, 59). The officer told Padilla that they were not taking the allegation seri- ously but that she should not return to the facility (Tr. 58–59). Padilla testified that when Brar fired her on October 21, he never accused her of stealing money. Following her conversation with the officer from the Alameda County Sheriff’s Department, Padilla sent Brar text messages be- ginning at 11:35 a.m. (GC Exh. 5). Padilla confronted Brar with his accusation that she stole money from the cash drawer. Pa- dilla wrote, “You know damn well that no cash was stolen. [. . .] im very disappointed in the behavior you’re taking, to go so far as lying about cash. I have never been a thief and was always a good employee. It’s unfortunate we will have to be going through court [. . . .]” (GC Exh. 5). Brar did not respond to Pa- dilla’s text messages (GC Exh. 5). On November 7, Padilla sent Brar another text message, ask- ing again for her payroll records. Brar responded to Padilla’s text message telling her not to contact him directly, that he re- ported her “case” to the authorities already, and to contact his 33 Brar claimed that he never saw the following document which Pa- dilla testified was also found on his desk (Tr. 284). This document states: Staff Note Every time you want to eat some things – it’s food / snack /lunch break. You are required to clock out. So far it was just going openly. As I did not mind, even any of the team members are actually on paid time and clocked in but sitting in break room and enjoying their meal. You are required to clock out at least once before reaching 5 hours on your clock in window (GC Exh. 4). attorney directly. Brar further wrote, “Any direct contact / com- munication to me will be taken as threatening message and we are reporting to police immediately” (GC Exh. 5). Padilla re- sponded to Brar’s text message asking for his attorney’s contact information. Padilla further told Brar that she knew that there was no “case” against her, she had made no threats, and only requested her own payroll information. Brar responded with a series of text messages insulting Padilla, chiding her for going to his CPA, claimed that he had reported her to the “authorities” and filed a police report on the “same day of incident,” and told her to find his attorney’s contact information herself (GC Exh. 5). Brar wrote that he would be blocking her cell phone number. Later the night of November 7, between 10 p.m. and 11:00 p.m., Padilla received another phone call from an officer from the Alameda County Sheriff’s Department. The officer informed her that they were receiving claims from Brar that Padilla was calling and texting Brar and sending threatening messages to Brar and his family. Padilla denied these accusations and offered her cell phone records to the officer. The officer told Padilla that the accusations were not being taken seriously but that she should not contact Brar again (Tr. 64).35 b. Brar’s Version of Events As for Brar’s version of events, Brar testified that Prieto, Dav- ich and another employee told him that Padilla was telling em- ployees not to clock out for lunch (Tr. 232).36 Thus, on October 21 at 6:30 p.m., Brar, who was in his office, asked Padilla to sign a document (a warning letter) which was still on his computer screen. Brar testified that Padilla refused and would not look at the document on his computer screen (Tr. 232–233, 285–286). Brar claimed that the warning letter he wanted to show Padilla, addressed only to her, advised her about several of her alleged actions in the workplace including: eating in the breakroom im- mediately after arriving at work, not clocking out for lunch, en- couraging other employees to eat lunch or leave the facility to buy and eat lunch without clocking out, talking on her cell phone while clocked in, rude behavior towards customers and cowork- ers, and arriving late for her shift (R. Exh. 1); Brar denied ever seeing the Staff Note Padilla testified that Garcia showed her and asked her to sign (Tr. 251, 283–284; GC Exh. 3). Brar testified that after Padilla refused to sign this warning letter, she went back to work for 40 to 50 minutes in the treatment room (Tr. 234). Brar testified that he never threatened to terminate Padilla for not signing the warning letter and only sought to give her a warning about telling employees to not clock out for lunch (Tr. 244, 357). Thereafter, Brar claimed that he saw Padilla come into his 34 The time stamp on these two screenshots show the photos were taken on October 22 at 8:50 a.m. and 8:51 a.m. (GC Exh. 19). 35 The police records indicate the Brar and Padilla were advised not to contact one another (GC Exh. 6). 36 Inconsistently, Brar testified that no employees came to him ex- pressing any concerns or issues Padilla had with her meal breaks (Tr. 348). Furthermore, when asked, Davich testified that she did not have any conversations with anyone about clocking in and out for lunch breaks (Tr. 306). Thus, Brar’s testimony that employees informed him that Pa- dilla was telling employees not to clock out for lunch is not corroborated by other employees as well as being contradicted by himself. CASTRO VALLEY ANIMAL HOSPITAL, INC. 11 office at approximately 7:30 p.m., take money from the cash drawer and place “bills” in the right-side pocket of her scrubs (Tr. 234–235). Brar testified that he did not question Padilla, but instead told her to put the money back into the cash drawer (Tr. 235). According to Brar, Padilla put the money back and went into the reception area while Brar sat at his desk in his office, thinking about what he should do (Tr. 236–237). Brar testified that he then counted the money Padilla placed back into the cash drawer and decided that Padilla removed $450 as she had re- moved $100 and $50 bills (Tr. 379).37 Brar called Padilla back into his office and told her to leave the facility (Tr. 236). Brar testified that Padilla simply said “okay” and left the facility (Tr. 237). Afterwards, Brar counted the cash drawer and alleged he was $200 short based on his logbook, and decided to call the po- lice (Tr. 238, 377).38 Brar testified he called the police at 10 p.m. on October 21 (Tr. 239).39 The following morning, on October 22, the police came to the facility to speak to Brar about his al- legation against Padilla (Tr. 239). Brar testified that the sole reason for terminating Padilla on October 21 was because she stole money from the facility (Tr. 231, 284–285).40 Brar claimed that he was giving a warning let- ter to Padilla on October 21 for telling coworkers not to clock out for lunch breaks, and that he did not terminate her for this action (Tr. 244). Brar testified that on that same day, October 21, after Padilla took money from the cash drawer, he decided to terminate her employment (Tr. 237). Then, Brar decided to call the police because his cash drawer was short $200 (Tr. 238). On about October 29, Brar created identical statements for the employees to sign regarding Padilla (GC Exh. 16).41 The state- ments state, in part, “I have seen her multiple times sitting in break room, even though she is clocked in and on paid time. I have also seen her on multiple times eating her meals even when she is clocked in and on paid time” (GC Exh. 16).42 Brar also testified that Padilla threatened his family on No- vember 7 which caused him to call the police. He justified his accusation by explaining that he fired Padilla one day and the next day, October 22 she came into the office which amounted to threatening behavior (Tr. 268). c. Credibility I do not adopt Brar’s testimony and rely upon Padilla’s ver- sion of events in their entirety. I credit Padilla’s testimony that 37 Brar’s sworn statement to the Board, provided on December 11, provides yet another version of events. In the December 11 statement, Brar stated that after he accused Padilla of stealing, she placed $250 back into the cash drawer (Tr. 242–243). Brar’s inconsistent testimony un- dermines his credibility. 38 Brar testified that he, along with Garcia, used the logbook twice daily. Brar testified that he used the logbook to determine that the cash drawer was short money when he alleged to the police that Padilla stole money, but he did not provide the logbook in response to the General Counsel’s subpoena duces tecum request for all documents relied upon when making the decision to terminate Padilla (Tr. 374–376). As Re- spondent failed to produce the logbook per the subpoena request, I draw an adverse inference that such evidence does not support Brar’s testi- mony. See Metro-West Ambulance Service, 360 NLRB 1029, 1030 and fn. 13 (2014) (employer’s unexplained failure to produce subpoenaed ac- cident reports over the previous 3½ years warranted an adverse inference that they would not have supported the employer’s position that it treated Brar wanted her to sign the Staff Note she was shown by Garcia, not the document he claimed was a warning letter for her. Brar’s testimony simply cannot be credited. In addition to the specific footnotes above where Brar’s testimony is shown to be incon- sistent with the credited evidence, most glaring in Brar’s testi- mony is his incredible behavior when he claimed Padilla stole money from the cash drawer: After Padilla refused to look at the warning letter he wanted to issue to her, she went back to work for 40 to 50 minutes. Then after he claimed he saw her take money from the cash drawer, he told her to put it back. She then went back to work. Brar then counted the money he testified she placed back in the cash drawer and decided to tell her to leave. Padilla responded, “Okay.” Thereafter, he decided to reconcile the cash drawer and decided that money was missing which prompted him to call the police approximately 2 hours later. The amount of missing money varied from what Brar reported to the police in October, his Board affidavit in December, and his March 2020 hearing testimony. In addition, the police inci- dent report indicates that Brar called the police the following morning, not the night of the alleged incident as he testified. Fur- thermore, the timing of events is inaccurate as Padilla’s time- sheets show that she clocked out at around 7 p.m., whereas Brar’s testimony is that he fired Padilla at 7:30 p.m. Brar also claimed that Padilla did not deny stealing the money and did not make any protest of the accusation against her. This alleged reaction by Padilla on October 21 is inconsistent with Padilla’s text mes- sage to Brar on October 22 when she sent him an angry text mes- sage denying that she stole any money, to which he did not even reply. I find it more likely than not that Brar called the police after Padilla returned to the facility on October 22 to pick up her personal belongings as well as to take photos of her timesheet, as she told Garcia. Shortly after Brar called the police, the police called Padilla informing her of the allegation and not to return to the facility. Such timing does not support Brar’s claim that he saw Padilla steal money, fired her and then called the police, all within a few hours. Furthermore, to support my finding that Brar lacked candor, Brar alleged that Padilla threatened his family but cites to her return to the workplace on October 22 as the basis for his claim. Brar provided no evidence that Padilla threatened him or his family and appeared to contact the police with the threat allegation only after Padilla sent him a text message on Novem- ber 7, asking for her payroll records. Hence, I do not credit the discriminatee the same as other similarly situated employees). Even if I decline to draw an adverse inference, I would not credit Brar’s testi- mony as Padilla, Williams, Swart and Prieto all testified that to their knowledge there was no procedure such as a logbook for tracking money in the cash drawer (Tr. 59–60, 199–200, 299, 325). 39 Police records indicate that Brar complained to the Alameda County Sheriff’s Department on October 22 at 11:12 a.m., not on October 21 at 10 p.m. as he claimed (GC Exh. 6). Brar’s failure to recall the day on which he called the police is another example of his lack of credibility. 40 Prieto, who was working the night of October 21, testified that she did not see Padilla steal money, nor did she hear anyone accuse Padilla of stealing money (Tr. 298–299). 41 These statements reference Respondent’s termination of Padilla in January for allegedly denying appointments to clients but Brar rehired her soon thereafter (Tr. 337). 42 However, Garcia’s statement does not contain this claim. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Brar’s version of events. d. Padilla’s Timecards On November 27, Brar’s attorney provided Padilla with her timecard report covering the period of her employment (GC Exh. 7). Padilla testified that her clock in and out times did not accu- rately reflect her actual clock in and out times when she was em- ployed by Respondent; the report indicated that she clocked in and out for lunch breaks during each shift. Padilla testified con- sistently that she did not clock out for lunch, except on rare oc- casions, while she was employed (Tr. 67, 119). Padilla provided screenshots of her online timeclock for various weeks of her em- ployment (GC Exh. 8); these screenshots do not show clock in and out times for lunch breaks except for her last week of em- ployment where she is shown twice to take lunch at 1 a.m.43 One example of a discrepancy is on August 27: Padilla’s screenshot of her timeclock shows that she clocked in at 10:14 a.m. and clocked out at 8:40 p.m. with no lunch break (GC Exh. 8). How- ever, the timecard report submitted by Respondent shows that on August 27, Padilla clocked in at 10:14 a.m., clocked out for lunch at 3 p.m., clocked back in at 4 p.m., and clocked out at 9 p.m. (GC Exh. 7). In contrast, Brar testified that Padilla clocked out for lunch every day for 30 minutes to 1 hour, depending on how long she chose (Tr. 245, 271). But Brar also claimed that he observed Padilla eating her lunch on numerous occasions without clocking out and then she would clock out for another lunch break (Tr. 245–246). Brar claimed that he told Padilla to clock out for lunch on at least 50 occasions (Tr. 246–247). Brar speculated that the time clock on the time and attendance software could be manipulated based on the computer used (Tr. 274–275). Brar admitted that if an employee does not clock out for lunch before working 5 hours, he will go into the employee’s timesheet and clock them out himself whether the employee takes a lunch break or not (Tr. 267). Brar also claimed he would tell the employee to take a lunch break (Tr. 267–268). Specifically, regarding Pa- dilla, Brar admitted that he would clock out Padilla for lunch breaks when she did not do so herself and monitored Padilla’s lunch breaks almost every day (Tr. 268, 271–272). Brar testified he would clock out Padilla for lunch before she completed 5 hours of work (Tr. 272). Again, Brar’s testimony is jumbled, and I do not credit his tes- timony that Padilla clocked out for lunch every day. Brar testi- fied that he sought to warn Padilla on October 21 about numer- ous problems he had with her in the workplace; one of these al- leged problems was not clocking out for lunch. Yet, Brar claims that Padilla did clock out for lunch every day, and that she knew to clock out for lunch every day. However, Brar then admitted that he would clock out Padilla for lunch when she did not clock out herself. Assuming Brar had to frequently add these lunch breaks to the timecards, as he claims, it would seem logical that Brar would speak to Padilla about the need to clock in and out for lunch breaks. Brar’s lack of candor and clear alteration of Padilla’s timecards completely obliterates any hope for my 43 Padilla also submitted her transportation receipts to support her claim that Brar fabricated the hours on her timesheets (GC Exh. 10). I do not rely upon these transportation receipts in determining whose crediting any of his testimony. The inconsistencies demon- strated by the timecard screenshots when compared to the time- card report provided by Respondent lends credence to Padilla’s claim that Brar fabricated her clocking in and out for lunch. B. Analysis Padilla and Williams Engaged in Protected Concerted Activity for the Purpose of Mutual Aid and Protection and Respondent Had Knowledge Before discussing whether Respondent’s conduct towards Pa- dilla and Williams violated the Act as alleged, I must first ad- dress the issue of whether they engaged in protected concerted activity. Section 7 of the Act protects the right of employees to engage in “concerted activity” for the purpose of collective bargaining or other mutual aid or protection. For an employee’s activity to be “concerted” the employee must be engaged with or on the au- thority of other employees and not solely on behalf of the em- ployee himself. Meyers Industries (Meyers I), 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 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). The statute requires the activities to be “con- certed” before they can be “protected.” Bethany Medical Center, 328 NLRB 1094, 1101 (1999). The Board has held that activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self. Meyers I, supra; Meyers II, supra; Quicken Loans, Inc., 367 NLRB No. 112, slip op. at 3 (2019) (citations omitted) (profanity laced statement by single employee concerning customer call routed to him was not protected or concerted as employees as a group had no preexisting concerns about customer calls, and no evidence that employee sought to initiate or induce group ac- tion); Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 2 (2019) (employees’ complaint about airline passengers’ tip- ping habits not concerted). The question of whether an employee has engaged in concerted activity is a factual one based on the totality of the circumstances. National Specialties Installations, Inc., 344 NLRB 191, 196 (2005). The Act protects discussions between two or more employees concerning their terms and con- ditions of employment. Whether an employee’s activity is con- certed depends on the way the employee’s actions may be linked to those of his coworkers. Fresh & Easy Neighborhood Market, 361 NLRB 151, 153 (2014). “[W]hether an employee’s activity is ‘concerted’ depends on the manner in which the employee’s actions may be linked to those of his coworkers…. The concept of ‘mutual aid or protection’ focuses on the goal of concerted activity; chiefly, whether the employee or employees involved are seeking to ‘improve terms and conditions of employment or otherwise improve their lot as employees.” Id. Concertedness is analyzed under an objective standard. Fresh & Easy Neigh- borhood Market, supra at 154. Employees act in a concerted manner for a variety of reasons, some altruistic and some selfish. testimony to credit. These records are not sufficiently specific, and thus, I decline to give them any weight in this decision. CASTRO VALLEY ANIMAL HOSPITAL, INC. 13 Id. citing Circle K. Corp., 305 NLRB 932, 933 (1991), enfd. mem. 989 F.2d 498 (6th Cir. 1993). Respondent argues that Padilla was not engaged in protected concerted activity for the purpose of mutual aid or protection when she refused to sign the Staff Note because she was not “part of a group that refused to sign, or that she raised the issues about the document jointly with other employees, or that she did any- thing other than decline to sign the document on her own” (R. Br. at 15). Respondent also argues that Padilla and Williams only sought to benefit themselves and did not bring a group com- plaint to Respondent (R. Br. at 16). Respondent attempts to nar- rowly view Padilla and Williams’ actions without considering the entire situation. Based on Board precedent, I disagree with Respondent’s arguments as discussed below. Padilla and Wil- liams’ activity cannot be viewed in a vacuum but rather viewed under a totality of the circumstances. Both Padilla and Williams clearly engaged in concerted activ- ity which is protected. Padilla, in June 2018, 1 month after being employed by Respondent, first asked Brar whether employees clock out for meal breaks and earn overtime. Brar responded that Respondent’s policy was that she should not clock out for meal breaks and would not earn overtime as policies vary by an- imal hospitals and clinics. Padilla did not question Brar, as he was her supervisor, and followed his direction. Thus, she did not clock out for her meal breaks and was never told to do so, as Brar claims. As for Williams, when she was hired in September, she was informed by Padilla as well as other employees that she should not clock out for meal breaks and would not earn over- time. Padilla, who had prior concerns about Respondent’s lunch break and overtime policies, informed Williams that she had asked Brar about these policies when she began her employment, but Brar told her that these were the policies of Respondent: do not clock out for meal breaks and no employees earn overtime pay. Thus, Padilla and Williams, at that time, admittedly did not pursue the issues of meal breaks and overtime pay with cowork- ers or with Brar. However, approximately 1 month after she was hired by Re- spondent, Brar offered Williams a raise and more hours of work. Upon learning that she would not earn overtime pay, Williams declined Brar’s offer. When Williams told Padilla about Brar’s offer, the two employees then complained to one another about Brar’s policies. Padilla articulated concerns during this conver- sation that Brar’s policies were not fair and expressed skepticism if the policies were legal. Again, after their discussion, Padilla and Williams did not discuss these concerns with any coworkers or with Brar. But, a couple weeks later, during a particularly difficult work shift, Williams complained to Swart, with whom she had never worked, about the lack of meal breaks as well as intense tasks Respondent asked her to perform that night. Swart encouraged Williams to talk with Brar about her concerns. Swart and Wil- liams’ conversation concluded, and eventually the work shift ended. Before Williams could take Swart’s advice and discuss her concerns regarding her lunch breaks with Brar, Brar removed her from the work schedule. Williams was informed that she would be placed back on the schedule when they could find time for her “needed breaks and lunch times.” Williams challenged Brar with his lack of scheduled lunch breaks to which he told Williams to leave the other employees out of the issue because they were satisfied with his policies and procedures. Once Williams told Padilla that she had been effectively ter- minated, Padilla began complaining to Swart, Cordova and Gar- cia about Brar’s treatment of Williams as well as the unfairness of Respondent’s policies on meal breaks and overtime. Moreo- ver, when Brar told Padilla to sign the Staff Note, she refused, directly informing him that she wanted to discuss overtime and meal breaks with him, and his claim, according to the Staff Note, that employees received meal breaks was inaccurate. Ulti- mately, Padilla’s actions led to her termination when she refused to sign the Staff Note. The evidence in this matter is clear that Padilla and Williams engaged in protected concerted activity for mutual aid and pro- tection. Padilla and Williams’ actions to complain about their working conditions with one another in early October may not be considered to be protected concerted activity for mutual aid or protection as there is no evidence at that time that the employ- ees had a goal of seeking to improve the terms and conditions of employment. However, once Williams complained to Swart, and Padilla complained to Swart, Cordova and Garcia, their dis- cussions shifted to a goal of improving their terms and conditions of employment, even if no other employees agreed or experi- enced the same working conditions. Under Board precedent, concertedness “. . . is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.” Fresh & Easy Neighborhood Market, supra at 153–154. Thus, Padilla and Williams engaged in protected concerted activity to improve their working conditions for mutual aid and protection. See Chromalloy Gas Turbine Corp., 331 NLRB 858, 863 (2000), enfd. 262 F.3d 184 (2d Cir. 2001) (concerted activity found where discriminatee did not raise “purely personal concerns” but rather “espoused the cause of the hourly shop employees” and sought to have the new break policy applied “fair[ly] to all em- ployees.”). Contrary to Respondent’s argument that Padilla and Williams only discussed their own situation for their personal benefit, Pa- dilla and Williams’ complaints were not personal gripes, which defeat a finding of protected concerted activity, but were com- plaints that applied to the employees. Moreover, Padilla and Williams complained to other employees about Respondent’s policies regarding meal breaks and overtime. In Alstate Mainte- nance, supra, cited by Respondent, the Board found that under Meyers II, “[w]here a statement looks forward to no action at all, it is more than likely mere griping.” See also Mushroom Trans- portation Co., Inc., 330 F.2d 683, 685 (1964) (“Activity which consists of mere talk must, in order to be protected, be talk look- ing toward group action . . . [i]f it looks forward to no action at all it is more likely to be mere ‘griping’.”); Quicken Loans, supra (Board found that an employee’s profanity laced statement re- garding a customer call routed to him in the presence of another employee and supervisor did not amount to protected concerted activity as there was no evidence that the employee had any preexisting concerns on the matter and did not seek to initiate or induce group action). Here, when reviewing the totality of the circumstances it is apparent that Padilla and Williams discussed with one another on at least one occasion as well as with multiple employees the “unfair[ness]” of not receiving meal breaks. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 Swart even advised Williams to speak with Brar about her lack of meal breaks but before she could do so she was removed from the schedule. The requirement that activity must be engaged in with an object of initiating group action does not disqualify the preliminary discussions one would expect employees to have from protection under Section 7. Since every concerted action for mutual aid or protection must start with some communication between employees, it would essentially void the rights of organ- izing and collective bargaining by Section 7 if such communica- tions were denied protection due to lack of realization. Mush- room Transportation Co., supra. Even thereafter, Williams, when asking why she was no longer on the schedule, replied that Respondent did not schedule meal breaks like other employers. Brar told Williams to leave other employees out of their discus- sion because the other employees are “very happy with the pol- icy and procedures.” Williams’ conduct, even after being re- moved from the schedule, demonstrates that she engaged in pro- tected concerted activity seeking mutual aid or protection to “im- prove their lot as employees.” Eastex Inc. v. NLRB, 437 U.S. 556, 567 (1978). As for Padilla, she also was not griping when she discussed the lack of meal breaks with Williams and others. In that same vein, Padilla refused to sign the Staff Note where she would be denying her claim that she was not given meal breaks. Thus, Padilla, also engaged in protected concerted activ- ity seeking mutual aid or protection. Furthermore, despite Respondent’s denials, Brar had knowledge of Padilla and Williams’ protected concerted activi- ties (R. Br. at 17–18). An employer’s knowledge of protected conduct can be inferred from the timing of its actions against the employees who engaged in the conduct and the pretextual nature of its defenses. See Coastal Sunbelt Produce, Inc., 362 NLRB 997, 998 (2015). The record contains ample evidence through direct and indirect evidence that Brar, who was the decision maker in these actions, knew about Padilla and Williams’ pro- tected concerted activities—specifically, Williams’ discussion with Swart, and Padilla’s discussion with several of her cowork- ers about Respondent’s unfair policy on meal breaks as well as her refusal to sign the Staff Note. Beginning with Williams, when she went to pick up her paycheck on Friday, October 18, Dr. Nitu told Williams that they would be providing her with an additional check for her lunch breaks. Thereafter, Williams sent a text message to Brar, asking why she was removed from the work schedule. Brar wrote that Respondent was trying to deter- mine where they could place her on the work schedule so she could take her “needed breaks and lunch time.” Williams never claimed that she complained to Brar about the lack of lunch breaks, but she did complain to Swart 2 days prior, on her last work shift. When Williams challenged Brar about his lack of scheduled lunch breaks, causing her to work and eat at the same time without an uninterrupted break, Brar told Williams that other employees were “very happy” with the policies and proce- dures and only she wanted paid lunches. Brar’s written word is proof that he knew Williams complained to Swart about her lack of lunch breaks. Thus, Brar had knowledge of Williams’ pro- tected concerted activity. As for Padilla, indirect evidence shows that Brar learned from the employees that Padilla complained about the unfairness of the lunch break policy when she dis- cussed with coworkers the circumstances surrounding Brar’s removal of Williams from the work schedule. Three days later, Garcia presented Padilla with a Staff Note that Brar wanted Pa- dilla and the employees to sign. This Staff Note told employees that they were required to clock out when they ate and clock out at least once before working for 5 hours. Furthermore, the Staff Note stated that employees had been given enough time for meals during each of their shifts. Padilla vehemently disagreed with the contents and told Garcia her reasons. That evening, Brar told Padilla to sign the Staff Note, and when she refused, explain- ing that Brar’s policy of not permitting employees to take an un- interrupted lunch break was not appropriate, Brar terminated her employment. Padilla kept pursuing her claims of inadequate meal breaks by requesting her payroll records from Brar and then Respondent’s CPA; her requests were denied until she ultimately received them from Respondent’s counsel. Brar’s knowledge of Padilla’s protected concerted activity is unmistakable. Respondent Violated Section 8(a)(1) When Brar Terminated Williams on October 18 and Padilla on October 21, Threatened Padilla With Termination on October 21, and Falsely Reported Padilla to the Police on October 22 and November 7 Now that I have found that Padilla and Williams engaged in protected concerted activity of which Respondent was aware, I will evaluate the General Counsel’s theory that animus towards this activity was a substantial or motivating factor in Respond- ent’s subsequent treatment of the two women. When more than one motive exists for the alleged discrimina- tory action for protected concerted activity, a mixed motive anal- ysis applies. Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the General Counsel has the initial burden to show that an employee’s protected activities were a motivating factor in the employer’s actions against him. The requisite elements to support a finding of discriminatory motiva- tion are union or other protected concerted activity by the em- ployee, employer knowledge of the activity, and animus on the part of the employer. Electrolux Home Products, 368 NLRB No. 34, slip op. at 2–3 (2019). To support its initial burden under Wright Line, “the General Counsel must prove by a preponder- ance of the evidence that union animus was a substantial or mo- tivating factor in the adverse employment action.” Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). “Motivation is a question of fact that may be inferred from both direct and circumstantial evidence.” NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013) (internal quotations omitted). Circumstantial evidence of dis- criminatory motivation may include evidence of: suspicious tim- ing; false or shifting reasons provided for the adverse employ- ment action; failure to conduct a meaningful investigation of al- leged employee misconduct; departures from past practices; tol- erance of behavior for which the employee was allegedly fired; and/or disparate treatment of the employee. See Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 4, 8 (2019); Medic One, Inc., 331 NLRB 464, 475 (2000). The evidence must be enough to establish a causal relationship exists between the employee’s protected concerted activity and the employer’s adverse action against the employee. Tschiggfrie Properties, CASTRO VALLEY ANIMAL HOSPITAL, INC. 15 supra at slip op. at 8. If the General Counsel makes the required showing, the bur- den of persuasion then shifts to the employer to demonstrate, as an affirmative defense, that it would have taken the same action even absent the employees’ protected conduct. Wright Line, su- pra at 1089; see also Electrolux Home Products, supra at slip op. at 3; National Hot Rod Association, 368 NLRB No. 26, slip op. at 4 (2019) (citations omitted) (an employer need not prove the disciplined employee had committed the alleged misconduct but only needs to show it had a reasonable belief that the employee committed the alleged offense and then it acted on that belief). The General Counsel may offer proof that the employer’s rea- sons for its decision are false or pretextual. When an employer’s stated reasons are found to be pretextual, discriminatory motive may be inferred but such an inference is not compelled. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (“if [a trier of fact] finds that the stated motive for discharge is false, he certainly can infer that there is another mo- tive. More than that, he can infer that the motive is one that the employer desires to conceal—an unlawful motive—at least where … the surrounding facts tend to reinforce that inference). An employer’s defense does not fail simply because not all the evidence supports its defense or because some evidence refutes it. Electrolux Home Products, supra at slip op. at 3. Ultimately, the burden of proof as to the employer’s motivating factor lays with the General Counsel. 1. Respondent’s Termination of Williams Before conducting an analysis under Wright Line, I must first determine whether Respondent terminated Williams or whether she voluntarily resigned. Respondent argues that Williams re- signed from employment because she refused to perform as- signed tasks without an increase in pay (R. Br. at 20–21). The fact of a termination does not depend on the use of formal words of firing. Lance Investigation Service, 338 NLRB 1109, 1110 (2003); North American Dismantling Corp., 331 NLRB 1557 (2000), enfd. in relevant part and remanded 35 Fed.Appx. 132 (6th Cir. 2002). “It is sufficient if the words or action of the employer ‘would logically lead a prudent person to believe his [or her] tenure has been terminated.” North American Disman- tling Corp., supra (quoting NLRB v. Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir. 1964)). Applying this tenet, Williams clearly reasonably believed that she had been terminated. When Williams went back to the facility on October 18 to pick up her paycheck, Dr. Nitu asked her for her facility key because Re- spondent had found someone else to cover her shifts. Dr. Nitu also told Williams that Respondent would be providing a check to compensate her for her lunch breaks. When Williams asked when she would be put back on the schedule, Dr. Nitu told her that Respondent may call her on October 21 to let her know when she would be working again. Later, Williams sent a text message to Brar asking why she was not on the work schedule. Brar told her that they were looking where to place her on the schedule so she could take her breaks and lunch breaks. At no time thereafter did Brar place Williams back on the schedule. Furthermore, dur- ing this entire text message exchange, Brar never confronted Williams with his claim that she was supposed to inform him as to whether she would perform the work duties as assigned for the pay she currently received or what pay rate she wanted. This subject of work duties and pay rate never came up when Wil- liams picked up her paycheck nor when she asked Brar why she was no longer on the schedule. Brar did not respond by telling Williams that she had voluntarily quit. In addition, on the Staff Note, Williams’ name was not included on one of the signature lines, which also indicates that Respondent terminated her em- ployment. Based upon the facts, I can only conclude that Re- spondent’s words and actions would lead a “logically prudent person” to believe she was terminated; the facts do not support Respondent’s claim that Williams voluntarily resigned. As set forth above, Williams engaged in protected concerted activity for the purpose of mutual aid or protection, and Re- spondent was aware of Williams’ activity. Next, following the analysis in Wright Line, animus must be proven. Animus or dis- criminatory motive may be proven by direct evidence or inferred by circumstantial evidence. Tschiggfrie Properties, Id.; Robert Orr/Sysco Food Services, LLC, 343 NLRB 1183, 1184 (2004); Medic One, supra (noting that “[e]vidence of suspicious timing, false reasons given in defense, failure to adequately investigate alleged misconduct, departures from past practices, tolerance of behavior for which the employee was allegedly fired, and dispar- ate treatment of the discharged employees all support inferences of animus and discriminatory motivation”); Electrolux Home Products, supra; Temp Masters, Inc., 344 NLRB 1188, 1193 (2005); Promedica Health Systems, Inc., 343 NLRB 1351, 1361 (2004). The record is clear that Respondent demonstrated animus to- wards Williams’ conduct in speaking with Swart regarding Re- spondent’s policy for employees not to clock out for lunch breaks. The timing of events is suspicious and supports an infer- ence of animus and discriminatory motive. During the particu- larly tough work shift on Wednesday, October 16, Williams complained to Swart, with whom she had never worked, that she was uncomfortable with participating in an animal euthanasia as well as the lack of breaks. Hearing Williams’ complaints, Swart advised her to speak to Brar. At the end of her shift, rather than giving her paycheck that day as usual, Brar told Williams to come back on Friday, October 18. When Williams came to the facility that Friday, she was asked to return her facility key as someone else would be taking her work shift. When Williams asked Brar why she was removed from her work shift, the focus of Brar’s text messages to Williams was her need for scheduled breaks and lunches, and that everyone else at the facility was sat- isfied with Respondent’s policy and procedures. Removing Wil- liams from the work schedule only 2 days after she complained to Swart, among other complaints, about the lack of breaks is suspicious and indicates animus on the part of Respondent. Mondelez Global, LLC, 369 NLRB No. 46, slip op. at 2 (2020) (temporal proximity between employee’s protected concerted activity and the employer’s adverse employment action provides some evidence of causal link); McClendon Electrical Services, 340 NLRB 613, 613 fn. 6 (2003) (finding discharge that occurred a day after protected concerted activity supported a finding of unlawful motivation); Mira-Pak, Inc., 147 NLRB 1075, 1081 (1964), enfd. 354 F.2d 525 (5th Cir. 1965) (finding termination unlawful where discharge occurred 2 days after protected con- certed activity); Corn Brothers, Inc., 262 NLRB 320, 325 (1982) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 (timing of discharge within a week of union organizing meeting evidence of antiunion animus). Moreover, Brar expressed hos- tility to Williams’ emphasis to him that she could not take her lunch breaks because Respondent did not schedule lunch breaks like other employers do. Williams mentioned to Brar that other employees eat at the reception desk as well and Brar immediately told her not to discuss other employees. Furthermore, Brar’s claim that Williams’ voluntarily resigned because she did not receive a pay raise to perform assigned tasks is simply not true. Brar alleged that Williams stopped perform- ing most of her assigned tasks soon after she started employment. Respondent uses Williams’ admissions that she declined to assist in several matters on her last day of employment as proof that Williams was not performing her job duties. However, the cred- ited evidence shows that receptionists’ job functions vary de- pending on their desired interests. In addition, during this work shift, Swart told Williams that she does not perform tasks such as euthanasia and surgeries. Moreover, on her last day of em- ployment, Brar never told Williams that she must perform the duties that Cordova and he asked her to perform. Nevertheless, Brar provided false testimony that for several weeks Williams refused to perform many of her assigned duties in the workplace; he never disciplined her or even spoke to her to clarify what du- ties she had been assigned to perform. Brar provided several shifting explanations for what he expected from Williams after her last workplace shift—Williams was to inform him whether she was willing to perform her assigned duties and what pay rate she wanted, and whether she would perform assigned duties at the same pay rate. Brar provided at least three different varia- tions as to what he expected Williams to do when she returned to the facility on October 18. Brar’s text messages to Williams on October 18 and 19 indicate that his focus of not placing Wil- liams on the schedule was her complaint over the lack of lunch breaks. Brar never reminded Williams that she was supposed to respond with her answer as to whether she would perform as- signed tasks. Brar did not do so because his explanation that Williams resigned is false. GATX Logistics, Inc., 323 NLRB 328, 335–336 (1997) (inconsistent rationales and failure to ad- dress asserted problem underlying discharge indicate pretext), enfd. 160 F.3d 353 (7th Cir. 1998). Brar’s story about Williams’ voluntary resignation becomes ever more implausible when coupled with his report to the labor department that Williams always clocked out for her lunches, and he still paid her additional money for her lunches. Brar claimed that he paid Williams for her lunch breaks to “continue working with her,” but why would Brar make such a claim when he also claimed that she was tardy, rude to her coworkers, and would not perform her assigned job duties without more money? Looking at the entire circumstances, the evidence clearly shows that Brar learned of Williams’ discussion of the lack of lunch breaks in the workplace, removed her from the schedule, told her not to talk about other employees, and paid her lunch breaks to silence her. His claims that she resigned because she did not want to perform all the duties is false, or pretextual, as supported by the contemporaneous documentation. See Cincinnati Truck Center, 315 NLRB 554, 556–557 (1994) (evidence of discrimi- natory motive or animus includes evidence that employer’s prof- fered explanation for adverse action is a pretext, including whether the employer proffers a non-discriminatory explanation that is not true). Under all the circumstances of this matter, Re- spondent’s termination of Williams is pretextual. In sum, the General Counsel has met its initial burden required by Wright Line. See Humes Electric, Inc., 263 NLRB 1238, 1239–1240 (1982) (despite employer having legitimate concerns over em- ployee’s productivity prior to his protected conduct, discharge violated Section 8(a)(3) based upon pretext of the asserted reason and timing of the discharge). Despite a finding of pretext, for the sake of argument, I will address Respondent’s argument as stated in its amended answer, but not addressed in its post hearing brief, that Williams would have been terminated for refusal to perform her required job du- ties even absent her protected concerted activity. Terminating an employee for the failure to perform her required job duties would be a legitimate basis for termination. However, Respond- ent provided no evidence that Williams was not performing her required job duties. Williams admitted that during her last work shift she declined to assist in several difficult matters. But Brar never mentioned these concerns in his text messages to Williams after he removed her from the work schedule. Brar attempts to support his claims that Williams had many deficiencies as an em- ployee including tardiness, rude behavior, and refusal to perform assigned duties in his email to the labor department. However, Brar provided no evidence of such problems, and no witness tes- tified to observing such issues. In fact, every employee who tes- tified described the receptionist position as one in which employ- ees decided what they wanted to perform, and some receptionists assisted more than others with the animals. Accordingly, even if the shifting burden of Wright Line applied, Respondent did not meet its burden in showing it would have terminated Williams absent her protected conduct. Thus, Respondent violated Sec- tion 8(a)(1) when unlawfully terminating Williams on October 18. 2. Respondent’s Threat of Termination and Termination of Padilla As for Padilla, as set forth above, she engaged in protected concerted activity which was known by Brar, the decision maker. Next, the General Counsel has also proven animus regarding Pa- dilla. Like Williams, the timing of events is suspicious. On Oc- tober 18, after learning that Brar removed Williams from the work schedule, Padilla complained to both Cordova and Swart about Brar’s actions. Thereafter, Garcia presented Padilla with the Staff Note that Brar wanted the employees to sign; this Staff Note listed requirements for meal breaks during each shift and made employees acknowledge that they have always had time for meal breaks. Padilla refused, and reiterated her position that employees had not been given enough time for meal breaks. Again, Padilla spoke to Cordova about the Staff Note. Later that shift, Brar told Padilla to sign the Staff Note but she refused be- cause she did not agree with the contents. Padilla explained to Brar that she could not sign out for meal breaks due to lack of coverage at the front desk and should have 30 minutes of an un- interrupted break during her shift. Because Padilla would not sign the Staff Note, Brar terminated her on October 21, only 3 days after she complained to her coworkers about Brar’s termi- nation of Williams, which arose due to their complaints about CASTRO VALLEY ANIMAL HOSPITAL, INC. 17 the lack of lunch breaks. Furthermore, before Brar terminated Padilla on October 21 for not signing the Staff Note, he threatened her with termination if she did not sign. If Padilla signed this Staff Note, she would be conceding that Brar had always given her adequate time for her meal breaks. The Board has held that threatening employees with reprisals for engaging in protected concerted activities is coercive to the exercise of their Section 7 rights under the Act. Baddour, Inc., 303 NLRB 275 (1991) (an employers’ threats of discipline or job loss for participation in protected concerted ac- tivities constitute violations of the Act). This theory applies to explicit or implicit threats to employees, including the loss of their jobs or other adverse work consequences. Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069, 1091–1096 (2004) (employer violated Section 8(a)(1) of the Act by threat- ening loss of benefits, loss of jobs, and closure of the facility if the employees supported the union). Threats of termination for engaging in protected concerted activity violates Section 8(a)(1). Central Valley Meat Co., 346 NLRB 1078 (2006). Brar’s threat to terminate Padilla if she did not sign the Staff Note, which would effectively deny her claim of protected activity, is an in- dependent violation of Section 8(a)(1). Moreover, Brar’s threat is also proof of animus towards Padilla’s advocacy for her work- ing conditions. The most significant indicator of animus in this matter is that Respondent’s alleged non-discriminatory reason for terminating Padilla is simply not true. “At least where [. . . ] the surrounding facts tend to reinforce that inference” of animus, the Board may infer such animus from the pretextual nature of the employer’s proffered justification for its action. Electrolux Home Products, supra, slip op. at 4 (citing Shattuck Denn Mining Corp., supra (emphasis added)). Here, the entire circumstances surrounding Respondent’s removal of Padilla reinforce this inference. Re- spondent claims that Padilla was terminated for “unlawful and disloyal acts” when she stole money from the cash drawer in Brar’s office on the evening of October 21. However, Respond- ent’s explanation is premised on implausible reactions and in- consistent claims. Respondent alleges that after three employ- ees, one of whom he could not recall, informed him that Padilla was telling employees not to clock out for meals, he decided to have her sign a warning letter. This warning letter notified Pa- dilla of a myriad of infractions including not clocking out for lunch and encouraging other employees to eat without clocking out. According to Brar, Padilla refused to sign the warning letter and went back to work; Brar claims he never threatened to ter- minate her. Forty to fifty minutes later, Brar claims that he saw Padilla come into his office and take money from the cash drawer. Oddly, Brar testified that he did not question Padilla but only told her to put the money back and she went back to work. Then Brar called her back into his office and told her to leave the facility. Padilla only said “okay.” Brar then claimed that he counted the cash drawer and realized money was missing—this amount changed throughout this proceeding, from the amount he told the police, the amount he stated in his December 11 Board affidavit, and the amount he testified was missing at this hearing. Brar insisted he called the police the same night he saw Padilla take the money, but the police records show that he called the following morning. The timing of when he called the police coincides with the time Padilla left the CPA’s office after the CPA refused to provide her payroll records. After Padilla re- ceived the phone call from the police department, she sent a text message to Brar. This text message denied stealing money from Brar and that she had never been a thief. Brar never responded to Padilla’s text message. However, on November 7, after Pa- dilla again asked Brar via text message for her payroll records, Brar told Padilla never to contact him again as any contact would be seen as a threat to him, chided her for going to his CPA, and told her he had reported her to the police. Later Padilla received a second call from the police, informing her that Brar alleged she threatened him and his family. Brar’s version of events the night Padilla was terminated are simply unbelievable. Brar claims that after Padilla would not sign the warning, he prepared for her, she went back to work without any further discussion. Then after he allegedly caught her stealing money, he only asked her to put the money back and let her go back to work. Such conduct makes no logical sense. Brar claims that he then told her to leave but did not tell her she was terminated; Padilla again did not say anything more than “okay.” Brar also did not call the police immediately as he claimed rather than later the next morning. The next day, how- ever, after Padilla received the phone call from the police, Padilla suddenly became irate as evidenced in her text message. Brar never responded to this text message. Brar called the police again when Padilla asked for her payroll records. Brar’s story defies belief. Moreover, Brar created statements for employees to sign that had nothing to do with Padilla’s allegedly stealing of money, which he says is the reason for her termination, but affirming that Padilla was seen sitting in the breakroom while clocked and eat- ing when she is clocked in. These statements support Padilla’s claim that she was told by Brar not to clock out for meal breaks but to eat during downtime. The record is clear that when Padilla pursued her claim of protected activity on October 21, Brar re- acted by fabricating that Padilla stole money. In fact, the record supports Padilla’s testimony that Brar terminated her employ- ment when she would not sign the Staff Note, waiving her pro- tected activity. Since the General Counsel has made its prima facie case showing sufficient evidence that Padilla’s protected conduct was a “motivating factor” in Brar’s termination of her, the burden shifts to Respondent to establish by a preponderance of the evidence that the same action would have taken place even in the absence of Padilla’s protected concerted activity. Again, since I have determined that the reasons provided for Respondent’s termination of Padilla are false, I do not need to consider Respondent’s affirmative defense. But for the sake of completeness, I will consider Respondent’s argument that Brar had an honest belief that Padilla stole money from the cash drawer. But Brar’s claim of honest belief is belied by his conduct after Padilla sent him a text message denying stealing money from him. Brar never responded to Padilla’s text message the following day denying that she stole money. Brar’s silence speaks volumes as to this fabricated event. In addition, the state- ments created by Brar for the employees to sign, if created to support his termination of Padilla, do not mention her stealing money or hearing about Brar’s allegation that she stole money. Thus, even if the shifting burden of Wright Line applied, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 Respondent did not meet its obligation to show Padilla would have been terminated absent her protected conduct. Thus, Re- spondent violated Section 8(a)(1) by unlawfully terminating Pa- dilla on October 21. 3. Respondent’s Falsely Reporting Padilla to the Police on October 22 and November 7 Furthermore, Section 8(a)(1) provides that it is an unfair labor practice to “interfere with, restrain, or coerce employees in the exercise” of the rights guaranteed in Section 7. For purpose of Section 8(a)(1), the motive for the employer’s action is irrele- vant; if the action, or sequence of actions, reasonably tends to interfere with the free exercise of rights under the Act, it is un- lawful. Naomi Knitting Plant, 328 NLRB 1279, 1280 (1999). In Dickens, Inc., 355 NLRB 255, 255 (2010), the Board affirmed the administrative law judge’s decision finding that the employer violated Section 8(a)(1) when falsely accusing the employee of theft to harass the employee due to his prior protected concerted activity. Here, the record is clear that on October 22, Brar called the police and falsely accused Padilla of stealing money after she sought to obtain her payroll records to support her claim that Re- spondent did not permit her to clock out for meal breaks; Padilla continued to pursue her protected activity despite her termina- tion. Again, on November 7, Brar called the police falsely alleg- ing threatening behavior by Padilla after Padilla sent Brar a text message asking for her payroll records. Brar’s conduct cannot be mistaken as an honest belief but can only be understood as his attempts to interfere with Padilla’s protected activity by intimi- dating her with these illegitimate reports to the police. Padilla’s conduct to obtain her payroll records was a continuation of her protected activity in complaining about Brar’s policy of not providing meal breaks. See JMC Transport, 272 NLRB 545, 546 fn. 2 (1984), enfd. 776 F.2d 612 (6th Cir. 1985) (employee’s complaint about a payment discrepancy in his paycheck was a continuation of employee’s protected concerted activity in pro- testing, a month earlier, the employer’s change in the way em- ployee wages were calculated). Thus, I find that Respondent vi- olated Section 8(a)(1) when Brar falsely reported Padilla to the police on October 22 and November 7 to interfere with her Sec- tion 7 rights. In sum, the General Counsel met its burden to show that Re- spondent terminated Williams and Padilla for discriminatory rea- sons. I therefore find that Respondent violated Section 8(a)(1) of the Act by terminating Williams and Padilla in response to protected concerted activity. In addition, Respondent violated Section 8(a)(1) when Brar threatened Padilla with termination if she did not sign the Staff Note, and falsely reported Brar to the police on October 22 and November 7. CONCLUSIONS OF LAW 1. Respondent, Castro Valley Animal Hospital, Inc., has been an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act by: (a) Threatening Padilla with termination on October 21 if she would not waive her group complaint regarding meal breaks; (b) Falsely reporting Padilla to the police on October 22 and November 7 by accusing her of theft and threatening behavior because of her protected activities; (c) Terminating Williams on October 18; and (d) Terminating Padilla on October 21. 3. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. Specifically, having found that Respondent vio- lated Section 8(a)(1) by terminating employees Christine Ari- anna Padilla and Akilah Williams, Respondent must offer them full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), 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). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), Respondent shall compensate Padilla and Williams for their rea- sonable search-for-work and interim employment expenses re- gardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be cal- culated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), Respondent shall compensate Padilla and Williams for the adverse tax consequences, if any, of receiving a lump-sum backpay awards, and, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), Respond- ent shall, within 21 days of the date the amount of backpay is fixed, either by agreement or Board Order, file with the Regional Director for Region 32 a report allocating backpay to the appro- priate calendar year(s) for each of them. Respondent shall re- move from its files any reference to terminations of Padilla and Williams and to notify them in writing that this has been done and that the terminations will not be used against them in any way. I will order that the employer post a notice at the facility in the usual manner, including electronically to the extent mandated in J. Picini Flooring, 356 NLRB 11, 15–16 (2010). In accordance with J. Picini Flooring, the question as to whether an electronic notice is appropriate should be resolved at the compliance phase. Id. supra at 13. The General Counsel requests that I order that the notice be read aloud to employees by Gurbinder Brar or a Board Agent in the presence of Gurbinder Brar (GC Br. at 62–63). The Board has recognized that notice reading is an extraordinary remedy, and I decline to order such a remedy in this matter. Although there are several violations of the Act, including two employee terminations, I do not find this matter to be widespread and egre- gious to rise to the level of requiring a notice reading. The CASTRO VALLEY ANIMAL HOSPITAL, INC. 19 General Counsel also requests a broad remedial order requiring Respondent to cease and desist from violating the Act in any other manner (GC Br. at 64). A broad cease-and-desist order is warranted when a respondent has shown to “have a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employ- ees’ fundamental statutory rights.” Hickmott Foods, 242 NLRB 1357, 1357 (1979). Here, the General Counsel has not proven that Respondent is a recidivist, and the violations found here are not so egregious or widespread to warrant such a remedy. Thus, I decline to order a broad cease-and-desist order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended44 ORDER Respondent, Castro Valley Animal Hospital, Inc., Castro Val- ley, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening any employee with termination if she refuses to waive group complaints regarding meal breaks. (b) Falsely reporting any employee to the police by accusing the employee of theft and threatening behavior due to the em- ployee’s protected activities including raising complaints about meal breaks. (c) Terminating any employee because of her protected activ- ities including complaints about meal breaks. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Within 14 days of the date of the Board’s Order, offer Christina Arianna Padilla and Akilah Williams full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Christina Arianna Padilla and Akilah Williams whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (c) Compensate Christina Arianna Padilla and Akilah Wil- liams for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 32, 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(s) for each of them. 44 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 adopted by the Board and all objections to them shall be deemed waived for all purposes. 45 If the facility is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have re- turned to work, and the notices may not be posted until a substantial (d) Within 14 days of the date of the Board’s Order, remove from its files any reference to the unlawful terminations, and within 3 days thereafter, notify Christina Arianna Padilla and Akilah Williams in writing that this has been done and that the terminations will not be used against them in any way. (e) 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 records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (f) Within 14 days after service by the Region, post at its fa- cility in Castro Valley, California, copies of the attached notice marked “Appendix.”45 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by Respondent’s authorized representative, shall be posted by Re- spondent and maintained 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, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. If, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Re- spondent at any time since October 18, 2019. (g) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. Dated, Washington, D.C. July 27, 2020 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. complement of employees have returned to work. Any delay in the phys- ical posting of paper notices also applies to the electronic distribution of the notice if Respondent customarily communicates with its employees by electronic means. Danbury Ambulance Service, Inc., 369 NLRB No. 68, slip op. 4 (2020). If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 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 threaten you with termination if you refuse to waive group complaints regarding meal breaks. WE WILL NOT falsely report you to the police by accusing you of theft and threatening behavior due to your protected concerted activities including raising complaints about meal breaks. WE WILL NOT terminate you because of your protected activi- ties including complaints about meal breaks. WE WILL NOT in any like or related manner interfere with, re- strain, 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 Christina Arianna Padilla and Akilah Williams full rein- statement to their former jobs or, if those jobs no longer exist, to a substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILLmake Christina Arianna Padilla and Akilah Williams whole for any loss of earnings and other benefits resulting from their termination, less any net interim earnings, plus interest, and WE WILL also make them whole for reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Christina Arianna Padilla and Akilah Williams for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 32, 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 years for each of them. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful terminations of Christina Arianna Padilla and Akilah Williams, and WE WILL, within 3 days thereafter, notify them in writing that we have done so and that we will not use the terminations against them in any way. CASTRO VALLEY ANIMAL HOSPITAL,INC. The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/32-CA-251642 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.