The Riverview Nursing Facility, LLC d/b/a The Riverview Care Center

372 NLRB No. 67 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. The Riverview Nursing Facility, LLC d/b/a The Riverview Care Center and SEIU Healthcare MO and KS, a Division of SEIU Healthcare Illi- nois/Indiana, affiliated with the Service Employ- ees International Union (SEIU). Cases 14–CA– 265341 and 14–CA–265900 April 4, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On September 6, 2022, Administrative Law Judge Paul Bogas issued the attached decision. The Charging Party filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order. 1 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We note that, in adopting the judge’s credibility determinations that underpinned his finding that the General Counsel failed to prove that the Respondent had knowledge of employee Devora Harris’s union activity, we do not rely on the judge’s finding that Harris contradicted herself on the stand with respect to whether she had discussed the Un- ion with Manager Denise Thordsen. In addition, to the extent there is a discrepancy in the testimony of the Respondent’s interim administrator, Denise Thordsen, and the Respondent’s social services director, Letitia Parker, regarding the location and timing of when they reviewed video footage of an em- ployee sleeping during a shift at the facility, we find that such a dis- crepancy would not undermine the judge’s determination, based on the record evidence, including the credited testimony of Thordsen and Parker, that the video showed Harris resting or sleeping under a blanket for approximately 5 hours during an 8-hour shift when she was respon- sible for providing care to residents. 2 In the absence of exceptions, we adopt the judge’s dismissal of the allegations that the Respondent violated Sec. 8(a)(3) and (1) by sus- pending and discharging Mikayla Wilson and by discharging Lana Edwards and Danyaile Taylor because of their union activities. In addition, we note that, applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 ORDER The recommended Order of the administrative law judge is adopted, and the complaint is dismissed. Dated, Washington, D.C. April 4, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD The Board’s decision can be found at www.nlrb.gov/case/14-CA-265341 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. Bradley A. Fink, Esq., for the General Counsel. Robert A. Kaiser, Esq., (Armstrong Teasdale LLP) of St. Louis, Missouri, for the Respondent. DECISION STATEMENT OF THE CASE PAUL BOGAS, Administrative Law Judge. I heard this case remotely using videoconferencing technology on January 4 and (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the judge dismissed the complaint allegations that the Respondent unlawfully discharged Harris and employee Louis Brown. In adopting the dismissal of these allegations, we do not rely on the judge’s observations regarding when evidence of timing and discipli- nary discrepancies can be used to establish both the knowledge and animus elements under the General Counsel’s initial Wright Line bur- den or his statement that, here, “the General Counsel by relying on the same evidence of timing and discrepancies to establish two out of the three elements of [her] initial [Wright Line] burden is asking that evi- dence to do some very heavy lifting.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 5, 2022. SEIU Healthcare MO and KS, a Division of SEIU Healthcare Illinois/Indiana, affiliated with the Service Employ- ees International Union (the Charging Party or the Union), filed the initial charge in Case 14–CA–265341 on August 27, 2020, and the first amended charge in that case on September 2, 2021. The Charging Party filed the initial charge in Case 14–CA– 265900 on September 10, 2020, and amended charges on Sep- tember 2, 2021, and September 9, 2021. The Director of Re- gion 14 of the National Labor Relations Board (the Board) issued the Consolidated Complaint on September 14, 2021. The Complaint alleges that The Riverside Nursing Facility, LLC, d/b/a The Riverview Care Center (the Respondent or the Em- ployer) discriminated in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (Act or NLRA) on various dates in August 2020 by suspending employee Mikayla Wilson, and discharging employees Devora Harris, Louis Brown,Lana Edwards, Danyaile Taylor, and Wilson, because those employ- ees assisted the Union and engaged in concerted activities for mutual aid and protection. The Respondent filed a timely an- swer in which it denied committing any of the violations al- leged. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing Findings of Fact and Conclusions of Law. FINDINGS OF FACT I. JURISDICTION The Respondent is a limited liability corporation with an of- fice and place of business in St. Louis, Missouri, that operates a nursing home that provides assisted living and long-term care. In conducting these operations, the Respondent annually de- rives gross revenues in excess of $100,000 and has purchased and received at its St. Louis, Missouri, location products, goods, and materials valued in excess of $5000 from points directly outside the State of Missouri. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.31 1 In its answer the Respondent asserts, as an affirmative defense, that the Complaint was the product of “action by an Acting General Counsel who was not properly appointed to the position and the unlaw- ful termination of the General Counsel,” Peter Robb. The Respondent does not discuss this argument in its post hearing brief. To the extent the Respondent is still maintaining this argument, I note that the Board has already rejected the same argument. The Board stated that such “challenges to the authority of the Board's General Counsel based upon the President's removal of former General Counsel Peter Robb have no legal basis.” Hospital Menonita De Guayama, 371 NLRB No. 108, slip op. at 1 fn. 1 (2022), Wilkes-Barre General Hosp., 371 NLRB No. 55, slip op. at 1 fn.2 (2022); see also Park Central Care & Rehabilitation. Ctr., 371 NLRB No. 46, slip op. at 1–2 (2021). That conclusion has been approved by the U.S. Court of Appeals for the 5th Circuit. Exela Enterprise Solutions, Inc. v. NLRB, 32 F.4th 436, 441-442 (5th Cir. 2022). II. BACKGROUND The Respondent operates the Riverview nursing facility in St. Louis, Missouri (the facility or the St. Louis facility), where it provides care to between 70 and 88 residents. The facility is staffed around-the-clock and at the time of the alleged viola- tions had approximately 75 employees. A portion of the facili- ty’s population is severely impaired and unable to toilet, show- er, eat, drink, move between a bed and chair, or reposition themselves in bed, without assistance. (Tr. 137, 285-286, 429– 430.) Mealtimes pose a particular challenge because some of the residents are at-risk for choking on food or are required to take medication with the meal. (Tr. 166, 429–430.) The record evidence shows that during the time period lead- ing up to the alleged violations, the operation of the St. Louis facility was under unusual stress due to the ongoing Corona- virus Disease (COVID) epidemic. This was the case both be- cause the pandemic necessitated additional care and precau- tions, and also because it became difficult to retain healthcare staff. The pandemic-heightened care included more frequently checking residents’ vital signs and feeding residents one or two at time while they were isolated in their rooms, rather than in larger groups in a dining hall. (Tr. 138, 167.) In addition, the residents and the staff members themselves were routinely screened for COVID. During this period, the Respondent’s difficulties retaining staff extended to all levels.2 On July 6, 2020, the facility’s licensed nursing home administrator and the facility’s director of nursing both abruptly resigned. The State of Missouri re- quires that a licensed nursing home administrator be responsi- ble for the facility. When the St. Louis facility’s licensed ad- ministrator resigned on July 6, Denise Thordsen, the licensed administrator at another nursing facility operated by the same company, assumed interim administrator duties at the St. Louis facility, while also continuing to serve as the administrator of the facility where she was regularly assigned.3 The Respondent attempted to find a permanent replacement for the administrator who had previously resigned from the St. Louis facility. On August 3, 2020, a new licensed administra- tor started at the facility. However, that administrator quit on August 5 – after only 3 days on the job – and Thordsen stepped back in as interim administrator. Subsequently, the Respondent named Letitia Parker, the facility’s incumbent social services director, to serve as temporary emergency administrator under Thordsen’s supervision. Parker was not a qualified nursing home administrator, but on August 25, 2020, the State of Mis- souri granted her a license to serve as administrator on a “tem- porary emergency” basis. When Parker was temporary emer- 2 The positions at the facility include licensed nursing home admin- istrator, director of nursing, nurse, certified nursing assistant (CNA), certified medication technician (CMT), and housekeepers. 3 The other facility where Thordsen served as licensed administrator is called Parklane Care and Rehabilitation. Thordsen described Park- lane Care and Rehabilitation as “part of the same company” as River- view’s St. Louis facility. Tr. 85–86. THE RIVERVIEW NURSING FACILITY 3 gency administrator, Thordsen still came to the St. Louis facili- ty three or four times a week to manage the operation and train Parker. Tr. 201-202. Management assistance was also provid- ed to the St. Louis facility by an outside nursing home consult- ant, Nancy Stevens.4 Parker testified that during the time she was emergency administrator she reported to Thordsen and Stevens, and that she viewed Thordsen as the one who was really “in charge” of the facility. Ibid. During the time Parker was temporary emergency administrator, Parker also continued performing the duties of her previous position as social services director. The evidence shows that in addition to losing two successive licensed administrators and a director of nursing during the 2- month period from July to August 2020, the Respondent also saw dramatic turnover among its other staff. A document enti- tled “Summary of Riverview Attrition,” which was received without objection at trial, shows that during the period from July 1 to August 28, 2020, a total of 43 staff members left the Respondent. Respondent Exhibit (R Exh.) OO.5 That is a star- tling number when one considers that the total workforce of the facility was approximately 75 individuals in August 2020. During this time period, it was often the case that a floor at the facility was understaffed. (Tr. 350, 400.) The work burden on the remaining aides was very heavy, which created conflict between them. Staff morale at the facility was described by one witness as “kind of low” and by another as “horrible.” (Tr. 202–203, 261.) III. THE UNION CAMPAIGN In July 2020, Devora Harris, a CNA at the facility, contacted an organizer with the Union, Paula Jones, about representation for a bargaining unit of employees. Harris started at the facility in October 2018 and was working a part-time schedule on the night shift. Approximately 7 to 10 years earlier, Harris had “done some organizing” for the Union.6 Subsequent to her employment with the Respondent, including at the time of her testimony, Harris was being paid by the Union as a contractor on an intermittent basis. (Tr. 293. ) On August 7, some of the Respondent’s employees met with Jones outdoors in a public park.7 Harris was the one who invit- 4 At some points in the record, Stevens is incorrectly identified with the name “Stevenson.” The parties agree that all mentions of Steven- son in the record in fact refer to Stevens. Tr. 298. 5 Of those, 20 were listed as having abandoned their jobs, 13 as hav- ing been involuntarily separated, and 10 as having resigned voluntarily. 6 Harris did not list her work with the Union on her application for employment with the Respondent, Tr. 260–261, and there was no evi- dence that the Respondent was aware of it. 7 I accept the testimony of Harris that the park was some distance away from the Respondent’s facility and not ”next” to it, Tr. 296–297, over Jones’ testimony that the park was “across the street from where Riverview is,” Tr. 230. Harris’ testimony on this score was more spe- cific than Jones’ in that Harris provided the names of the cross streets for each location. In addition, Harris’ testimony was more plausible given that the Union was trying to keep the Respondent from finding ed employees to this meeting. She approached coworkers in the breakroom and during phone conversations. Harris invited 10 to 12 employees, of whom 5 or 6 attended, and all of those who attended signed cards authorizing the union to represent them. The attendees also received blank union authorization cards to share with coworkers. Among those who signed a union card subsequent to the first meeting was Louis Brown, a housekeeper. Brown was first approached about the Union on August 18, when Harris—his mother—presented him with an authorization card. Brown signed at that time. Jones conducted a second meeting at the same park on Au- gust 21. Harris invited employees by phone, and 11 employees attended. Among those present were Harris, Brown, Lana Ed- wards (a CNA), and Danyaile Taylor (a CMT)—four of the five alleged discriminatees. At the meeting, Edwards told the others that Mikayla Wilson (a CNA)—the fifth alleged discrimi- natee—planned to sign up with the Union as well. (Tr. 387.)8 At the meeting, Jones announced that the organizers had enough signed authorization cards to file for a representation election with the NLRB. Brown testified that, shortly after the August 21 meeting, an- other housekeeping employee, Terrance Prater, approached him and said: “Hey, what’s up brother. I heard they had a union meeting. Do you know where I can get a card from?” Brown responded, “I don’t know. I can’t tell you.” Brown testified that the reason he chose not to provide information was that he suspected Prater would share information with the Respondent. (Tr. 312–313.)9 Parker testified that in August there was “speculation . . . that employees might try to organize,” and that, at some point in the latter part of August but prior to the 23, she advised Thordsen about this speculation. (Tr. 211– 212.) Thordsen testified, however, that at that time she did not know, or herself suspect, that employees had begun an effort to unionize. Tr. 146. Harris gave conflicting—and I believe biased and self- serving—testimony on the subject of whether the Respondent knew about her union activity prior to her discharge. First, Harris testified that she did not want management to find out about the organizing effort before the Union had enough signed authorization cards to petition for an election and that, as a out about the organizing effort by, for example, taking care not to leave authorization cards out where they could be seen by management. Tr. 265–267. Given that, I find it unlikely that Harris or Jones would choose to hold a union meeting out in the open and directly across the street from the Respondent. 8 Wilson testified that she had already signed a union card – a week earlier on August 13. Tr.401–402. 9 Prater was a housekeeping employee. Tr. 63-64. Brown testified that, on August 21, Prater was acting as housekeeping supervisor, but the General Counsel has not alleged, and the evidence does not show, that Prater was either a statutory supervisor for purposes of Sec. 2(11) of the Act or an agent of the Respondent. See GC Exh. 1U at Par. 3(a) (Complaint does not include Prater among alleged statutory supervi- sors). In addition, based on my review, the record does not provide a basis for finding that Prater was antiunion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 result, she did not leave authorization cards out in view at the facility and did not discuss union organizing with managers or supervisors. (Tr. 266–267, 291.) She testified that she did not distribute union literature and that all the employees she talked to about the Union knew that the information was “for them and not management.” Tr. 291. Not only did she state that she had not discussed the Union with management, but she also stated that no one from management had approached her about the subject. Tr. 292. Harris then gave directly contradictory testimony. She testified that prior to her discharge, she had, in fact, told Parker, the emergency administrator, about the union organizing campaign, but had not talked about it with Thord- sen. (Tr. 292.) Then Harris contradicted her prior testimony further, stating that Thordsen was present when Harris dis- cussed the union campaign with Parker. (Tr. 292–293.)10 On August 28, 2020, the Union filed a petition to represent a bargaining unit of employees at the facility.11 The petition states that there are 60 employees in the proposed unit. (GC Exh. 11.) The NLRB sent the petition to Parker by email on the evening of August 28. The next day, Parker shared that email with Thordsen, Stevens, and the Respondent’s owner, Adele Daake. Thordsen and Stevens both testified that they did not know that a unionizing effort was underway prior to that time. (Tr. 157, 424, 430–431.) IV. DISCHARGES A. Discharge of Harris Harris was scheduled to work from 10:30 pm on the night of August 19 to 7 a.m. on the morning of August 20, on the facili- ty’s 3rd floor. As a CNA, her duties included helping residents with activities of daily living such as showering, toileting, eat- ing, and repositioning in bed. Prior to that shift, the Respond- ent had not disciplined Harris during the approximately 22 months of her employment at the facility. The Respondent cited Harris’ performance during her final shift as the basis for discharging her on August 23. On August 20, starting at approximately 4 a.m., Thordsen and Parker visited the facility and went on inspection “rounds.” Tr. 139. During the inspection, Thordsen noticed a chair with blankets on it, next to a table with snacks, outside of the 3rd floor dining room. Ibid. Thordsen considered this unusual. Later that day, Thordsen reviewed security camera footage and that footage showed a woman, who Thordsen concluded was Harris, sitting motionless under a blanket, usually with her head 10 Harris refers to being in the office with “Letitia and Denise” for this discussion. Thordsen is the only last name associated with “Den- ise” in the transcript, and the only individual who Harris refers to as “Denise” elsewhere in her testimony. See, e.g., Tr. 257. 11 The proposed unit included: “All full-time and regular part-time cooks, activity assistants, dietary aides, licensed practice nurses (LPNs), graduate practical nurses (GPNs), certified medication techni- cians (CMTs), restorative aides (RAs), certified nursing assistants (CNAs), housekeepers, laundry aides, and maintenance employees employed by the Employer.” down, in a chair outside the 3rd floor dining room from 11:00 pm on August 19 to 4:15 a.m. on August 20. (R. Exh. A;12 Tr. 93, 140–141.) In addition the video showed that when a resi- dent approached her, the seated individual interacted with the resident without wearing a facemask. The Respondent’s policy required staff to wear facemasks when interacting with resi- dents, however, staff did not always do so and Parker stated that her experience was that the Respondent reacted to such failures by “reminding” employees rather than disciplining them. (Tr. 204–205.) Parker also reviewed the camera footage. Parker testified at trial that the footage showed Harris sleeping in a chair with a blanket around her. (Tr. 215.) During the review of security camera footage, Thordsen discovered that a second employee, Tonya Johnson, had been sleeping on the shift. Johnson was assigned to the fourth floor. Contrary to the testimony of Thordsen and Parker, Harris testified that she did not sleep during her August 19 to 20 shift. Tr. 269. There is, however, substantial evidence that Harris was, in fact, the one seen sleeping and/or resting under a blan- ket in the video of that shift. I note that even the General Counsel’s own witness—Parker—testified that she viewed the security camera footage firsthand and that it showed Harris sleeping during her shift.13 The original security camera video footage was not available for presentation at the trial, but the Respondent did introduce multiple, time stamped, still photo- graphs of the relevant video footage.14 Those images are grainy, but I find that the appearance of the person pictured in those images was generally consistent with Harris’ appearance at trial. Moreover, no witness named another employee whose appearance was consistent with that of the person pictured in the security footage. At trial, Harris herself was shown images of the footage that purportedly showed her resting or sleeping. Offered the opportunity, Harris did not identify an employee other than herself who she believed those images showed. (Tr. 269–270.) As noted above, Parker, the General Counsel’s own 12 Thordsen testified that Respondent’s Exhibit A was a report that she made close in time to the events it describes and that she wrote and maintained the report in the regular course of business. The General Counsel did not object to its admission. Tr. 153–154. 13 By the time of the trial, Parker was no longer working for the Re- spondent, having been terminated by Thordsen for insubordination. Tr. 213–214, 222–223. I do not believe that the record provides any reason to believe that, at the time of her testimony, Parker was biased in favor of the Respondent. 14 At the trial, the Respondent and the General Counsel both intro- duced cellphone photos that Thordsen had taken of the video. GC Exh. 24(a); R. Exh. F. Moreover, both Thordsen and Parker had viewed the original camera footage and reached the conclusion that the person shown was Harris. Unfortunately, the original video could not be pre- served. Documentary and testimonial evidence shows that, due to the COVID restrictions, the Respondent’s information technology provider was unable or unwilling to enter the facility to preserve the camera footage, which management did not have the capability to preserve on its own. Instead the technology provider suggested that Thordsen take photos of the video footage – which is what she did. Tr. 95–96, 141– 144; R. Exh. G. THE RIVERVIEW NURSING FACILITY 5 witness, had the opportunity to review the original security camera footage and confidently testified that the person pic- tured was Harris. I find that the evidence shows that, during the August 19 to 20 shift, Harris rested or slept under a blanket for approximately 5 hours during an 8-hour shift when she was responsible for providing care to residents. Even if I did not find that the evidence established that this was in fact the case, I would find that, based on their review of the security footage, Thordsen and Parker had a reasonable basis for believing that Harris had been sleeping or resting for approximately 5 hours of that shift. The Respondent’s written rules and regulations provide that “sleeping during work or sitting idle” with “head down” “or in any other way giving the appearance of being asleep or resting” is an infraction that “warrant[s] immediate suspension, and/or discharge . . . even though no prior counseling [is] in effect.” R Exh. C at pages 3 to 4 (Infraction A22). Thordsen, Parker, and Stevens discussed the matter, and agreed that Harris should be discharged for sleeping and/or resting during a substantial por- tion of her shift. (Tr. 90–91, 92–93, 206, 214–215, 216–217.)15 Prior to Harris’ next shift Thordsen communicated the dis- charge decision to Harris during a phone call.16 Stevens and Parker were also on the line for this call. (Tr. 207–208.) Dur- ing the call, Parker told Harris that the reason she was being terminated was that she had appeared to sleep during 4 to 5 hours of her shift. (Tr. 94.) 17 Harris responded, “you’re going to be hearing from my lawyer.” (Tr. 278–279.) The uncontroverted testimony at trial showed that Harris was not the only individual who suffered repercussions based on conduct during the August 19–20 overnight shift. Johnson, who was assigned to the fourth floor, was found to have slept during that shift. (Tr. 444-445.) Johnson was confronted about this infraction, and responded by resigning her employment. Ibid. In addition, the Respondent terminated the night shift 15 Harris’ misconduct is sometimes described in the transcript as sleeping and sometimes as resting. I do not consider this a meaningful discrepancy. It would be difficult to discern from a video recording whether an individual sitting under a blanket with her head down was resting or had actually fallen asleep. At any rate either resting or sleep- ing in this manner violate the same employer rule and, as noted above, both “warrant immediate suspension, and/or discharge.” 16 Harris testified that this phone call took place on the evening of August 23, Tr. 275–276, but Thordsen says the call took place on Au- gust 20, Tr. 90, 92–93. I credit Harris’ recollection over Thordsen’s recollection regarding the date of the call. The separation form, which Thordsen herself completed, reports the date of the termination as Au- gust 23, not August 20. In addition, documentary evidence introduced at trial showed that Harris received a call from Thordsen on the evening of August 23. GC Exh. 12. Although the fact that Thordsen called Harris on August 23 does not preclude the possibility that Thordsen called Harris on both August 20 and August 23, there was no testimony from Thordsen or anyone else stating that Thordsen made two calls to Harris about the termination. 17 Harris testified that Thordsen did not tell her why she was being terminated, Tr. 280, but she did not contradict the testimony that Parker had communicated a reason for the termination. supervisor, Delores Haynes, because she had failed to supervise Harris and Johnson adequately to prevent them from sleep- ing/resting on the shift. (R. Exh. LL.) The record includes documentary evidence that four other employees were found to have slept on the job during the period between February 2020 and April 2021 and all four of those employees were terminat- ed. (R. Exh. HH.) The General Counsel did not identify any instances in which the Respondent issued lesser discipline to an employee who was found to have engaged in the same miscon- duct as Harris. B. Discharge of Brown On April 23, 2020, Louis Brown interviewed for a position with the Respondent. The interview was conducted by the housekeeping supervisor, Roxanne Felton, whose report of the interview describes Brown as a “very nice young man” with a “very good personality.” Brown is Harris’ son, but Felton did not find that out during the hiring process or, for that matter, at any time during Brown’s employment with the Respondent. Tr. 81. Brown was hired as a housekeeper and his duties in- cluded cleaning resident’s rooms, sweeping, mopping, and dusting. By June 2020, the working relationship between Brown and his supervisor Felton had soured. (Tr. 331.) This was before any demonstrated union activity at the Respondent. According to Brown, the negative turn in his relationship with Felton was marked by Felton “bullying” him by coming “every day and say[ing] you’re going to do this,” telling him “you’re not doing that right, you don’t do this, you don’t do that,” complaining that he was spending too much time socializing with CNAs, and directing him to return to his work area. (Tr. 332–333.) Brown complained to Parker and Thordsen about Felton. (Tr. 333–334.) Felton’s account of her interactions with Brown is generally consistent with his, except that what Brown calls “bullying,” Felton presents as an effort to get Brown to do his job. Felton testified that she had “an issue with [Brown] just about every other day about leaving his cart, not doing what he was sup- posed to . . . , not being where he was supposed to be.” (Tr. 70.) She stated that Brown reacted disrespectfully when she addressed him about these problems. On multiple occasions, Felton complained to Parker that Brown would refuse to follow her directions and tell her that she was “acting like a man” “in- stead of female.” (Tr. 221–222, 225.) Felton testified that, in early August, she told Brown that she was going to write him up for being late to work, and that Brown responded by using foul language and stating that he was “sick of” her. (Tr. 79.) Thordsen issued disciplinary paperwork for Brown on August 5, in which she referenced this incident. (Tr. 446; GC Exh. 2.) On August 10, when Brown arrived late for his shift, Felton criticized him for “being . . . constantly late,” (Tr. 66–67), and told him that she would not permit him to work that day, (Tr. 304–306). Brown responded that he was “scheduled to work” and would not follow her direction to leave. Then, Brown, by his own account, told Felton “At the end of the day I am a man, and you are a woman, and you should not be in my face.” (Tr. 306.) In one instance, on August 12, Brown was late returning DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 from lunch. Tr. 308. Employees were allowed 30 minutes for lunch, (Tr. 105, 382–383, 436), but Brown testified that he was at lunch for “an hour and some change,” (Tr. 308.) On August 12, Thordsen issued a verbal warning to Brown for returning late from lunch. (GC Exh. 3; Tr. 447.) At one point in August 2020, Parker met with Felton and Brown about the friction between the two. (Tr. 67.) It was not until about August 18—6 days after being disci- plined on August 12—that Brown was first asked to sign a union card. He was one of the last employees to find out about the effort. (Tr. 309.) Brown signed a union authorization card and came to the August 21 union meeting. After that meeting, Prater approached Brown and asked how he could obtain a union card. As previously discussed, Brown did not trust Prater and declined to provide information to him. The Respondent terminated Brown on August 24, citing im- proper conduct. Felton testified that the final incident that led to Brown’s termination began when she observed that he had not cleaned the rooms he was supposed to clean and that he was away from the hallway where he was assigned to work. (Tr. 71–73.) Felton testified that Brown had left his cart unattended and was socializing with other staff. (Tr. 74.) She told him, “Louis, can you return to your side . . . where you are assigned to work.” Felton states that Brown responded by “cursing” and then “took his time” returning to his assigned work. (Tr. 75.) Felton told Parker about this interaction with Brown, and Par- ker informed Thordsen. (Tr. 159, 220–222.) Thordsen at- tempted to discuss the issue with Brown, but Brown walked away from her. (Tr. 160.) Thordsen inspected some of the rooms that Brown was responsible for cleaning and observed that “[t]he floors had not been mopped, beds had not been changed, trash had not been emptied, and furniture had not been dusted.” (Tr. 161.) Thordsen testified that Parker and herself made the decision to terminate Brown’s employment based on “his not performing his job duties of cleaning and his previous insubordination issues during that prior couple of weeks.” (Tr. 162.) The General Counsel argues that I should completely dis- credit the testimonies of Felton and Thordsen regarding the incident that they say precipitated Brown’s termination because they reported that the incident occurred on August 24, whereas Brown’s testimony, supported by documentary evidence, was that Friday August 21 was the last day that Brown and Felton worked together. Brief of the General Counsel at Pages 10 to 11. I agree that the documentary evidence supports finding that, more likely than not, the last day that Felton and Thordsen worked together was Friday, August 21. Therefore, the events described by Felton and Thordsen would have taken place, if at all, no later than August 21. The following Monday, August 24, was the day when Brown’s termination was effected, but not the day of the incident. However, I disagree that the dis- crepancy regarding the date of the incident warrants rejecting the testimony about the incident Felton and Thordsen de- scribed. I note, first, that Felton made clear during her testimo- ny that she was not certain of the exact date when the incident occurred or that it happened on Brown’s last day with the Re- spondent.18 Similarly, Thordsen readily acknowledged during her testimony that she “could have been mistaken about the date,” but she confidently stood by her account of the incident in other regards. (Tr. 447–448.)19 Based on my observation of the demeanor of the witnesses and the record as a whole, I credit the testimonies of Felton, Parker, and Thordsen about Brown’s conduct on his last shift, over his denial that there was any issue about his performance that day. (Tr. 309.) The three witnesses who testified that Brown was criticized about his performance that day included Parker, a witness for the General Counsel. Moreover, Felton, Parker, and Thordsen gave generally consistent, and mutually corroborative testimony regarding Brown’s conduct. Indeed, Brown himself confirmed much of what the Respondent’s offi- cials had to say about his performance. Although he denied that Felton raised any issues about his performance on his last shift with her, Ibid., elsewhere in his testimony he says she was “criticizing me every day.” (Tr. 332.) This criticism included correcting his performance and telling him to return to the area where his work duties were. He also confirmed that he balked at direction from Felton, testifying that in one instance he told her “[a]t the end of the day I am a man, and you are a woman and you should not be in my face.” (Tr. 306.) I find that, after Felton’s last exchange with Brown, she talked to Parker about what had transpired. (Tr. 75–76.) Parker informed Thordsen, who inspected the areas that Brown was responsible for and found that he had not cleaned them. (Tr. 161.) Brown’s uncon- tradicted testimony was that he worked at the facility on Satur- day August 22 and Sunday 23, although Felton did not work over those weekend days. (Tr. 312, 314.) He was terminated the next weekday—Monday, August 24. Parker and Thordsen made the decision to terminate Brown (Tr. 162), and Thordsen prepared the termination report. (GC 18 Tr. 69–70 (Counsel for the General Counsel asks Felton if she had the issues with Brown’s performance on Friday, August 21, and Felton answers, “I don’t know what day it was. ”); Tr. 71 (Counsel for the General Counsel posits “On Monday August 24th, Brown did not clean the rooms he was assigned to clean that day,” and Felton responds, “Man. If that is the day I had came to him about his room.”); Tr. 72 (Counsel for the General Counsel asks “[H]is last day of work. The day that he was terminated; did you confront him at work that day? And Felton responds, “I don’t about his last day.”). 19 If witness uncertainty or confusion about exact dates completely undermined their testimony, it would also undermine Brown’s inas- much as he attempted to bolster his testimony about the length of his relatively brief tenure with the Respondent by testifying that he started at the facility in March 2020, but the documentary evidence shows that he was not even interviewed for the job until April 23, 2020. Tr. 329; GC Exh. 20. Likewise, in one instance the Respondent’s counsel asked when an event that Brown relied upon happened and Brown responded, “I can’t give you the exact date when it happened.” Tr. 329. When counsel followed up by asking “Can you give me an approximate?” – Brown still demurred, stating “I’m really not sure . . . .” Ibid. THE RIVERVIEW NURSING FACILITY 7 Exh. 4, Tr. 104.) The report sets forth a termination date of Monday, August 24, and states that the report was completed on August 24. On the report form, Thordsen stated that the basis for the decision was “improper conduct,” and explained that Brown’s “assigned area was not cleaned” and that he “was not in assigned areas completing work.” In addition, Thordsen wrote that “[w]hen supervisor addressed [Brown],” he “became verbally aggressive toward supervisor and used foul language.” The termination decision was communicated to Brown by Fel- ton during a phone call on August 24. (Tr. 318–319.) C. Discharges of Edwards, Reese, Taylor, and Wilson On August 27, four of the facility’s employees – Edwards, Reese, Taylor and Wilson – were on break, and out of the facil- ity, at the same time. These employees were all assigned to the facility’s fourth floor. This left the floor understaffed, with only one aide present. The Respondent terminated all four of these employees—three of whom are alleged discriminatees in this case, and one who is not—citing deficiencies relating to that break. The separation reports for Taylor and Edwards were signed by Thordsen and dated August 28. The separation report for Taylor explained the basis for the decision as follows: “Em- ployee left facility without clocking out during res[ident] lunch time, leaving residents unattended and without assistance and to receive their noon meds if needed. Also did not clock out when leaving which is a violation of policy.” (GC Exh. 7.)20 Taylor asked the Respondent for the paperwork regarding her separa- tion, but the Respondent declined to provide the paperwork. (Tr. 365–366.) The separation report for Edwards states: “On 8/27/20 employee left during res[ident] lunch time without clocking out or notifying supervisor. This left residents unat- tended and without assistance needed at meal time placing their safety at risk.” (GC Exh. 9.) The record does not contain a 20 The record shows that at the St. Louis facility the Respondent does not, in fact, require employees to clock out before leaving the facility for lunch breaks. Tr. 118, 203–204, 258, 297, 384. see also Tr. 203 (the Respondent’s system automatically deducts for the employee’s 30- minute lunch break from his or her hours without the employee clock- ing out). Thordsen asserted, contrary to the weight of the evidence, that employees had to clock out if they left the facility for their lunch break, Tr. 107, but even she conceded the Respondent had not disciplined anyone else for doing so during the period from March 1 to October 1, 2020. Tr. 118. Moreover, neither Thordsen nor the Respondent ex- plained how the Respondent would handle the fact that employees already had 30 minutes automatically deducted from their hours for lunch breaks, if those employees also clocked out for another 30 minutes for lunch. The Respondent does have a written rule that pro- hibits employees from “leaving the premises during break time,” R. Exh. C, Rule A37, but that rule was not enforced by the Respondent. Tr. 68–69, 118, 205. Based on my review of the record, I find employ- ees were permitted to leave the facility during their lunch break, and did not have to clock out to do so. They were, however, required to obtain their supervisors’ approval and alert their coworkers to ensure that residents would not be left without adequate care. Tr. 348, 376– 377, 383–384. separation report for Reese, who is not an alleged discriminatee in this case, or for Wilson, who the Respondent maintains re- signed voluntarily, but who the record shows the Respondent terminated.21 Approximately 30 to 32 residents live on the fourth floor of the facility. Full staffing for a shift on that floor is 5 individu- als. (Tr. 349–350, 400.)22 Those staffers include CNAs as well 21 The Respondent contends that Wilson was not suspended and ter- minated, but rather resigned on August 27 after being confronted about leaving the facility for her break. Brief of Respondent at Page 40. That contention is supported by Thordsen’s testimony that she overheard Wilson telling Parker that she quit. Tr. 114–115. Wilson, on the other hand, testified that she never told the Respondent that she was quitting. Tr. 408-409. I credit the testimony of Wilson over the contrary testi- mony of Thordsen in this regard. Wilson gave uncontradicted testimony that, when she returned from her break, Waltman told her, in a raised voice, that “the owners were riding his ass” and then directed her to “clock the f-k out.” Tr. 392–393, 405–406. Wilson told Parker what had transpired with Waltman and Wilson testified that Parker said that the Respondent would investigate and let Wilson know what happened next. Tr. 408–409. Wilson gave clear, detailed and, I find, credible testimony that she never told Parker she was quitting. Ibid. In addition to relying on Wilson’s credible testimony on that score, I also rely on the testimony of Parker that Thordsen and Stevens made the decision to terminate Wilson. Tr. 210. If Wilson had quit, as Thordsen claims, then it should not have been necessary for Thordsen and Stevens to make a decision to terminate her. Indeed, it is undisputed that when Stevens found out that the employees had been out of the facility at the same time, she recommended that all four of them (including Wilson) be terminated. Tr. 424–425. Also although Parker summarily stated that Wilson resigned during their conversation, Tr. 211, when she was questioned about what exactly Wilson said, Parker reported that Wilson told her she was upset by the interaction with Waltman and would not “deal with it anymore,” Tr. 213, not that she said she was resigning. Finally, Wilson’s actions during the days immediately after August 27 are consistent with her testimony that she had not resigned. On August 28, the day after she supposedly resigned, Wilson called the Respond- ent multiple times and asked about her work schedule for the weekend. Tr. 410–411. When the staffing coordinator responded that Wilson had quit, Wilson immediately informed her that was false. Ibid. The fol- lowing Monday, Wilson went to the facility and tried unsuccessfully to talk to Parker about her schedule Tr. 412. These actions by Wilson are not what one would expect from an employee who had voluntarily ended her employment. For these reasons, I find that, as Wilson testi- fied, she left the facility on August 27 because her supervisor, Waltman, had directed her to clock out, and that she did not work after that because the Respondent would not permit her to do so. I conclude that Wilson was suspended on August 27 when Waltman told her to clock out, and was effectively discharged on August 28 when the em- ployer responded to Wilson’s query about her work schedule by taking the position that Wilson’s employment had ended. 22 I do not credit Stevens’ testimony that each of the four aides was assigned to take care of 10 to 12 residents, Tr. 429–430, which is in- consistent with the uncontradicted evidence that there were five aides attending to 30 to 32 residents—or about one aide for every 6 to 7 residents. I note that Stevens was not a full-time manager at the facili- ty, but rather a consultant, and that the Respondent was just one of approximately 200 facilities to which she was providing services. Tr. 415. Thus, it would be unlikely that Stevens would have a precise DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 as a CMT – the latter of whom is authorized to dispense medi- cation to residents in addition to performing CNA tasks. The staff also includes a charge nurse, who acts as a supervisor on the shift, and often has obligations on multiple floors at the same time.23 During August 2020, the residents on the facili- ty’s fourth floor generally received their lunches starting somewhere between 12:15 p.m. and 1:15 p.m. (Tr. 352, 374– 375.) Under typical conditions, the residents were served their lunch together in a dining room. However, during the time relevant to this case, the COVID pandemic necessitated that the residents remain in their own rooms for lunch, and that they be served one or two at a time. Resident lunch time is a particular- ly labor intensive time for floor staff because of the level of assistance some residents require, the necessity of monitoring residents for choking, and the fact that some residents must take medication with their food. (Tr. 166–167.) During the shift in question, charge nurse Joe Waltman, who was not called to testify, was the supervisor for both the fourth floor and the second floor staff. The staff members assigned to the fourth floor were Edwards, Shontrell Reese, Taylor,24 Car- olyn Welch, and Wilson. Close in time to when the fourth floor residents were due to receive their lunches, Edwards, Reese, Taylor and Wilson were simultaneously out of the building on breaks. This left Welch as the only aide remaining to attend to the needs of the 30 to 32 residents on the fourth floor. As discussed below, there was contradictory testimony re- garding whether the four employees left the facility at the same time and how long they were out of the building. On behalf of the Respondent, Thordsen testified that she was standing out- side the facility with the Respondent’s owner (Adele Daake) at approximately 11:30 a.m. when she saw Edwards, Taylor, Reese and Wilson all leave the facility together. (Tr. 165– recollection regarding the staffing on various floors of the Respondent. Moreover, based on Stevens’ demeanor, testimony, and the record as a whole, I find that she was a biased witness who was inclined to exag- gerate her knowledge of the events at issue and who strained to provide testimony supportive of the Respondent. For example, Stevens insisted that she “knew” that none of the four aides notified their supervisor before leaving the facility, even though she was not even at the facility at the time in question. Tr. 431–433. Indeed, she continued to insist that she “knew” that they had left without notifying their supervisor, even after counsel for the Respondent allowed that her testimony was hearsay and only presented to show course of conduct. Ibid. See also Tr. 431–435 (Stevens states that she recommended termination because the employees had walked off without informing their supervisor, but then says she would have made the same recommendation even if an employee had, in fact, informed the supervisor). 23 The parties agree that Waltman, the charge nurse responsible for the floor at the time in question, was a supervisor within the meaning of Section 2(11) of the Act. See GC Exh. 1(U) at Par. 3 and GC Exh. 1(Y) at Par. 3. 24 Taylor had previously been the Respondent’s staffing coordinator, with responsibilities for staffing the entire operation. However, in the summer of 2020, the Respondent removed her from that position and as of August 27 Taylor was employed as a part-time CMT. 166.)25 She stated that it was unusual to see four employees leave at the same time, but that she did not immediately know that this created a staffing problem because she was unaware that all four were assigned to the same floor. (Tr. 167–168.) Thordsen stated that before leaving the facility on their break, staff members had to obtain the permission of the charge nurse/supervisor so that the Respondent could ensure that there was enough staff to care for the residents and respond to any emergency. Ibid. Edwards confirmed that if she wanted to take a break, but could not find the charge nurse/supervisor, she would have to wait to take her break. (Tr. 383.) Thordsen testi- fied that, after seeing the four employees leave, she entered the building and told Parker what she had seen. Thordsen and Parker made inquiries and determined that Edwards, Reese, Taylor, and Wilson were all assigned to the same floor. Thord- sen and Parker discussed whether the four employees had “abandoned their job[s],” as many had done during the pan- demic.26 (Tr. 167–168.) Thordsen testified that, on August 27, Waltman told her that none of the four employees had informed him they were leaving the facility, except for Taylor, who he had given permission to do so. (Tr. 195–196.) Thordsen testi- fied that from inside her office she saw the four employees re- enter the facility at 1:30 p.m. (Tr. 175, 194–195.) Given her testimony that she saw them leave at about 11:30 a.m., this would, if credited, mean that the four were gone for approxi- mately 2 hours. Thordsen testified that she called Stevens and told her that Edwards, Reese, Taylor, and Wilson had left the facility for breaks at the same time. (Tr. 174, 426–427.) This was prior to when the employees returned. Stevens called the director of nursing, who Stevens testified, told her that he did not know where the four had gone. (Tr. 427.) Stevens said that during this call, she also overheard a charge nurse tell the director of nursing that he did not know where the four had gone. Ibid. Stevens recommended that all four of the staff members who had gone on break be terminated. (Tr. 424–425.) She testified that her recommendation was based on the information provid- ed to her that four employees had “walked out on us without letting either of their supervisors know where they were going,” (Tr. 431), but she also testified it would not have changed her advice to find out that one of those employees had told the charge nurse she was leaving (Tr. 434–435.) Stevens further stated that her termination recommendation was not based on the fact that the employees had not “clocked out.” (Tr. 437.) The decision to terminate the four employees was made by 25 There was witness testimony about rumors that Daake had gotten into her car and followed the staff members when they left the facility. However, there was no credible, non hearsay, evidence to that effect. See Tr. 209, 218 (Parker was aware of rumors that Daake had followed the four staffers who were terminated, but she did not see Daake follow them.); Tr. 391 (Wilson testifies that another employee called to tell her that the owner was following her); and Tr. 110–111 (Thordsen was standing with Daake, and saw Taylor leave the facility, but states that she had no knowledge of Daake following Taylor.). 26 See footnote 5, supra, and accompanying text. THE RIVERVIEW NURSING FACILITY 9 Stevens, Thordsen and Parker. (Tr. 111–114 and 437.)27 The testimonies of Edwards, Taylor, and Wilson contradict- ed that of Thordsen in a number of respects. Their testimonies indicated that only Edwards and Taylor left the facility’s grounds together, and that all were gone for a much shorter period of time than the 2 hours Thordsen claimed. Specifically, Taylor testified that she obtained Waltman’s approval to leave for her lunch break, then exited the building at about 11:50 a.m., and met Edwards in the parking lot. (Tr. 356, 363, 370, 374.) Taylor was aware that Reese had previously left for her own lunch break at about 11 a.m. (Tr. 355, 370), and Taylor told Welch that Reese would be returning to the floor soon and that Wilson was on the floor. (Tr. 357, 370.)28 Taylor conced- ed that she was aware that when Edwards and herself left the facility for their break it meant that the fourth floor would be left with inadequate staffing. (Tr. 371.) Taylor stated that staff members were not responsible for coordinating their lunch breaks to make sure the work was covered, but did have to “let the other staff on the floor know” when they were leaving. (Tr. 376–377.) Edwards’ testimony, however, indicated that she understood herself to have at least some responsibility for coor- dinating with other staff members before taking her break. Spe- cifically, Edwards testified that when she wanted to take a break the procedure was: I “let my fellow employees know. First my nurse and to make sure that the floor was covered before I left.” (Tr. 383.) I find that employees were expected to discuss their break with coworkers before leaving in order to ensure adequate staffing. Wilson testified that she left on her lunch break to perform an errand. She looked for Waltman, but could not find him and left anyway. (Tr. 404.) Wilson stated that she returned to the floor after about 15 minutes, and that when she was on her way back to the facility she encountered Edwards, who gave her a car ride the rest of the way. (Tr. 405.) Taylor testified that when she exited the building she ex- changed greetings with Thordsen, who was standing outside with a woman who Taylor did not recognize. Then Taylor met Edwards in the parking area and the two left the grounds in Edwards’ car. (Tr. 358–359.) Taylor testified that Edwards and herself had been away from the facility for about 10 minutes when she received an alarmed call from Waltman who asked 27 There are some suggestions in the record that the Respondent’s owner, Daake, was involved in the termination decisions. When Ed- wards returned from the break, Waltman stated “I just wanted to inform you all that the owner is talking about firing every last one [that] left the facility.” Tr. 392–393. Edwards testified that when she asked Par- ker how she could be terminated for failing to clock out when she had never been entered into the time clock system, Parker told her it was the owner’s decision. Tr. 394. Daake was not called to testify in this case. 28 I do not credit Taylor’s testimony that she did not know that Welch was not present on the floor when Edwards and herself went on break. Tr. 371. That testimony is contradicted by Taylor’s own, more detailed testimony, that when she left for the break she told Welch that Reese “should be returning”—meaning that she knew Reese was not then present. Tr. 357. why Welch was the only staff member available to attend to residents on the fourth floor. (Tr. 359.) Taylor told Waltman that she would return, and then she and Edwards went directly back to the facility, Ibid., stopping only to pick up Wilson, who they encountered along the way (Tr. 360–361.) Taylor testified that she and Edwards had been away for less than 20 minutes when, at between 12 noon and 12:30 p.m., they re-entered the facility and went to the fourth floor. (Tr. 361–362.) According to Edwards the entire time away from the facility was only 15 minutes. (Tr. 391.) Taylor and Wilson stated that, when they returned to the floor, the lunch they were to serve to the resi- dents had not been delivered yet (Tr. 362, 405), but Edwards stated that, to the contrary, “[w]e immediately started passing lunch trays because lunch had came up on the floor,” (Tr. 391– 392.) When Taylor returned with Edwards and Wilson, Reese was already back on the floor. After assisting the residents with their lunches, Taylor, Ed- wards, and Welch had a conversation with Waltman. (Tr. 367– 368.) According to Taylor, this conversation probably occurred at about 12:45 p.m. (Tr. 362.) Waltman stated that he knew Taylor was going to lunch. (Tr. 363.) Shortly thereafter Waltman stated that he did not know the others were also going on break, and that was why he could not cover the floor. (Tr. 363–364.) Edwards explained to Waltman that she had been helping Taylor by driving her during the break (Tr. 368), but there was no evidence that Edwards claimed to Waltman that she had notified him before leaving the facility or that she had in fact done so. During a separate conversation, Waltman told Wilson that the owners were “riding his ass” and she was to “clock the f-k out.” (Tr. 405–406.) Wilson discussed the ex- change with Waltman to Parker, then left the facility. Based on my review of the record, I conclude that while Ed- wards, Reese, Taylor, and Wilson were absent from the facility during an overlapping period of time, they did not, as Thordsen claimed, all walk out of the building together. Because of this, and based on the record as a whole, I find that that the evidence does not show that either Wilson or Reese knew that their break would overlap with that of any of the other aides on the floor. Thordsen’s testimony that they all left together (and thus would know that Welch would be the only aide left on the floor) was not corroborated by anyone else, including the Respondent’s owner, who Thordsen says was with her when the four exited and who the Respondent chose not to call as a witness. Thord- sen’s testimony that the four left together was contrary to the testimonies of Taylor and Edwards, who reported that the two met in the parking lot, not that they exited the building together. Wilson testified that after talking with Welch she left the build- ing, not that she joined up with Taylor or Edwards before leav- ing. Neither Edwards nor Wilson contradicted their supervisor Waltman’s report to the Respondent that they had left the facili- ty without notifying him. Leaving the facility on break without notifying the supervisor was a violation of the procedure at the facility. (Tr. 165, 348, 376–377, 383.) In addition, although Taylor talked to Waltman about her break before leaving, I find that she knew that both Reese and Edwards would also be on break – something she does not claim she alerted Waltman to, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 and something that she knew would mean the floor would be left understaffed close in time to, if not during, the labor- intensive resident lunch period. Lastly, the record does not provide a sufficient basis for making a finding about how long each of the four employees was outside the facility during their breaks on August 27, and in particular about whether Edwards, Taylor and Wilson were each gone for 15 to 20 minutes as they testified, or rather were gone for about 2 hours, as Thordsen testified. I found Thord- sen’s testimony in this regard unreliable both because it was based on her inaccurate report that the four aides all left the building at the same time. On the other hand, the aides’ own estimates appear improbably short given that during a purport- ed break of only 15 to 20 minutes they would have had to leave the floor, leave the building, leave the grounds of the facility, attend to an errand (in Wilson’s case an errand that involved walking to two locations), and return to the facility’s parking lot, then to the building, and then to the floor. The truth about the amount of time these individuals were out of the building might lie somewhere in between the two sides’ claims, but I do not find a basis in the record for me to arrive at an estimate of the actual duration. DISCUSSION The allegations that the Respondent discriminated in viola- tion of Section 8(a)(3) and (1) of the Act are properly analyzed using the framework set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983).29 That analytical frame- work is appropriate where, as here, motive is at issue. Under the Wright Line decision, the General Counsel bears the initial burden of showing that the Respondent's decision to take ad- verse action against an employee was motivated, at least in part, by employees’ protected activities. 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983) (Sec. 8(a)(3) and (1)); see also General Motors LLC, 369 NLRB No. 127, slip op. at 10 (2020); American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB 347, 349 (2006) (“The Board applies the Wright Line framework to alleged violations of Section 8(a)(1) that turn on employer motivation.”). The General Counsel can meet its initial Wright Line burden by showing that: (1) the employee engaged in union or other protected activity, (2) the employer knew of such activities, and (3) the employer har- bored animosity towards the union or other protected activity, and there was a causal connection between the discipline and the protected activity. General Motors LLC, supra, slip op. at 2 and 10 (2020); Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1184–1185 (2011); ADB Utility Contractors, 353 NLRB 166, 166–167 (2008), enf. denied on other grounds, 383 Fed. Appx. 29 The parties agree that this is the appropriate analytical framework. See Brief of the GC at p. 13; Brief of the Respondent at p. 14. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270, 1274–1275 (2007); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000). If the General Counsel establishes discriminatory motive, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of the protected activity. General Motors, supra; Camaco Lorain, supra; ADB Utility, supra; Intermet Stevens- ville, supra; Senior Citizens, supra. The General Counsel has met the first element of its initial burden, showing that each of the five alleged discriminatees engaged in one or more of the following types of protected union activity: signing union cards, soliciting others to sign union cards, attending one or more union meetings, and/or helping to organize union meetings. For the reasons discussed below, however, I find that the General Counsel has not shown either of the other two elements of its initial burden—i.e., that the Respondent had knowledge of the employees’ union activi- ties or that the Respondent would have borne animosity to- wards those activities had it know about them. Regarding knowledge, Thordsen, Parker, and Stevens were the three officials responsible for making the decisions alleged to be discriminatory. Thordsen and Steven both testified that they had no knowledge of the union activities until August 29 when they received the representation petition—after the disci- plinary actions were taken. Even Parker, who was the General Counsel’s own witness, did not claim that she, or the other decisionmakers, knew that any of the five employees had en- gaged in union activity at the time of the disciplinary actions.30 I find Thordsen’s and Stevens’ testimonies that they did not have knowledge of the alleged discriminatees’ protected union activities to be credible, and not particularly surprising, given that Harris—the employee-leader of the union effort—testified that she actively kept the organizing a secret from management. She testified that she did not distribute union literature or leave union cards out at the facility or discuss the union with manag- ers or supervisors. Furthermore, she testified that all the em- ployees who she approached about unionizing knew the infor- mation was “for them and not management.” None of the al- leged discriminatees claimed that they, or anyone else, dis- played union paraphernalia. Indeed, there is no credible record evidence that any supervisor or manager witnessed the alleged discriminatees engaging in union activities or was ever told about such activities by the alleged discriminatees. Nor is there evidence that a supervisor or manager said anything indicating knowledge that Harris, Brown, Edwards, Taylor or Wilson supported a union.31 30 Parker did testify to “speculation” that the Union might try to or- ganize employees, but she did not state that any of the five discharged employees were named in that speculation or that an unionizing effort was actually thought to be underway. 31 Brown stated that Prater asked questions indicating a belief that Brown would know about the union meeting and about how to obtain a union card. Prater, however, was a housekeeping coworker—not an alleged statutory supervisor or agent of the Respondent. The record THE RIVERVIEW NURSING FACILITY 11 Not only does the record fail to provide direct evidence es- tablishing that the Respondent was aware of the alleged dis- criminatees’ protected activities, but it also fails to provide any direct evidence that the Respondent would have harbored ani- mosity towards such activities had it known about them. To the contrary, the General Counsel does not assert, much less show, that the Respondent ever campaigned against unionization, made any statements opposing unionization or disparaging unions, interrogated employees about or surveilled union activi- ties, or made threats related in any way to union activity. The General Counsel contends that the evidence regarding the timing of the disciplinary actions and discrepancies regard- ing those disciplinary actions are sufficiently glaring to estab- lish two of the three elements of its initial showing—both that the Respondent had knowledge of, and animosity towards, the alleged discriminatees’ union activity—even in the absence of any direct evidence of either. Brief of General Counsel at Page 13. In support of this contention, the Respondent cites prior decisions in which the Board found either knowledge or animus based on circumstantial evidence such as timing and discipli- nary discrepancies, but none in which it found both of those elements based on the same evidence of timing and discrepan- cies. Specifically, the General Counsel cites: BS&B Safety Systems, LLC, 370 NLRB No. 90, slip op. at 1–2 (2021) (Board finds timing and discrepancies in the disciplinary process were sufficient to establish animosity towards the union activities, but only after discussing direct evidence showing that the em- ployer had knowledge of those activities); Montgomery Ward & Co., 316 NLRB 1248, 1253–1254 (1995) (Board finds em- ployer knowledge of union activities based on employer’s use of employee surveillance system, timing, and discrepancies, but finds “strong antiunion animus at its highest corporate levels” based on direct evidence of statements by managers), enfd. 97 F.3d 1448 (4th Cir. 1996); Matthews Industries, 312 NLRB 75, 76 and 77 n.13 (1993) (Boards finds that employer’s apparent surveillance, the overt nature of the employee’s displays of union support, and the timing of the decision are sufficient to establish that the employer had knowledge of union activities, but finds animus based on direct evidence that company presi- dent solicited union revocation and threatened plant closure); see also Sunbelt Produce, 362 NLRB 997, 998 (2015) (Board infers knowledge of the employee’s union activity based on timing, where there was evidence that employer had interrogat- ed employees about union, and there was direct evidence of employer’s antiunion animus.). The Board recently expressed hesitancy to infer knowledge of union activity based on timing evidence. See Amerinox Pro- cessing, 371 NLRB No. 105, slip op. at p. 1 fn. 4 (2022), citing Register Guard, 344 NLRB 1142,1145 (2004) (declining to find employer knowledge based solely on timing). In cases in provides no credible evidence that the Respondent interrogated Prater, or anyone else, about employees’ union activities, or that Prater con- veyed to the Respondent any information he might have had about union activities. which the General Counsel established knowledge based on “circumstantial” evidence, the decision often notes that the finding regarding knowledge was warranted based, in part, on the General Counsel’s success in presenting direct evidence establishing antiunion animus. See, e.g., Lucky Cab Co., 360 NLRB 271, 275 (2014) (citing Kajima Engineering & Con- struction, 331 NLRB 1604 (2000)), enfd. 818 Fed. Appx. 638 (9th Cir. 2020), and North Atlantic Medical Services, 329 NLRB 85, 85 (1999), enfd. 237 F.3d 62 (1st Cir. 2001); cf. Putnam Tool Company, 127 NLRB 1111, 1122 (1960) (Noting “hesitat[ion] to make a finding exclusively on circumstantial evidence” and relying on direct evidence of antiunion animus, even where the circumstantial evidence is “quite conclusive as to both the [employer’s] animus as well as its knowledge.”). Furthermore, as noted above, in the cases cited by the General Counsel where employer knowledge was found based on cir- cumstantial evidence, that evidence was not confined to timing and discrepancies, but also included direct evidence of surveil- lance or interrogations and/or direct evidence of antiunion ani- mus. Clearly, evidence that an employer has engaged in surveil- lance or interrogations of employees increases the likelihood that an employer would acquire knowledge of employees’ un- ion activities. I do not mean to suggest that the above caselaw forecloses the possibility that evidence of timing and disciplinary discrep- ancies could, on some record, establish both knowledge and animus. However, the General Counsel by relying on the same evidence of timing and discrepancies to establish two out of the three elements of its initial burden is asking that evidence to do some very heavy lifting. See, e.g., Queen of the Valley Medical Center, 368 NLRB No. 116, slip op. at 2–3 (2019) (Board re- verses the finding of discrimination where General Counsel relied on circumstantial evidence to establish both knowledge and animus). For the reasons discussed below, the evidence of timing and discrepancies provided by the record here is not particularly strong, and is far too weak to carry the General Counsel’s initial burden of showing that the challenged disci- plinary actions were motivated by employees’ protected union activities. Regarding evidence of suspicious timing, I am mindful that when disciplinary action follows close in time to the employ- ee’s union activity, it can be significant evidence of unlawful discrimination.32 In the instant case, the evidence of timing 32 Timing is most often seen as persuasive evidence in the context of a finding of animus, rather than knowledge, and frequently only after knowledge has already been established through other, usually direct, evidence. See, e.g., Novato Healthcare Center, 365 NLRB No. 137, slip op. at 16 (2017), enfd. 916 F.3d 1095 (D.C,. Cir. 2019); North Memorial Health Care, 364 NLRB 770, 800 (2016); Camaco, 356 NLRB at 1185; LB&B Associates, Inc., 346 NLRB 1025, 1026 (2005), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); Desert Toyota, 346 NLRB 118, 120 (2005), petition for review denied 265 Fed. Appx. 547 (9th Cir. 2008); Gaetano & Associates, 344 NLRB 531, 532 (2005), enfd. 183 Fed. App. 17 (2d Cir. 2006); Davey Roofing, Inc., 341 NLRB 222, 223 (2004); Detroit Paneling Systems, 330 NLRB 1170 (2000), enfd. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 appears, at first blush, rather strong. The Respondent dis- charged five union supporters over the course of the 7 days after the August 21 meeting at which Jones told employees that the Union had enough signed cards—from at least 18 employ- ees—to petition for a representation election.33 However, the harder one looks, the less compelling the timing evidence be- comes. Initially I note that the degree of suspicion aroused by the fact that five terminations occurred over a short period of time is diminished significantly when one considers that turno- ver at the facility was extraordinarily high. As noted earlier, during the 2-month period in which the challenged terminations occurred, 43 employees left the Respondent—out of a work- force of only about 75 employees. At a facility where, as here, employees were losing or abandoning their jobs on almost a daily basis the fact that the five terminations at-issue in this case took place during a 7-day period is less suspicious than it might otherwise be. In addition, the significance of evidence that a disciplinary action followed shortly after union activity is greatly dimin- ished where, as here, the disciplinary action occurred close in time not only to the union activity, but to employee misconduct justifying the discipline. See, e.g., Rockwell Mining, 367 NLRB No. 39, slip op. at 10 and fn. 18 (2018) (timing not suspicious where truck driver was discharged only a few days after union activity, but in the interim was at fault for a cata- strophic accident and federal safety violation), Lou’s Transport, Inc., 361 NLRB 1446, 1458 (2014) (timing of employee’s dis- charge is not suspicious even though it occurred on the same day as protected activity, where it also occurred on the same day that the employer discovered that the employee had re- sponded to an instruction to perform work by saying “f—k you”). The challenged discharges in this case occurred close in time not only to their union activity, but also close in time to the employer’s discovery of conduct that plausibly explains those discharges. This is not a case in which, after union activi- ty, the Respondent resurrected employee lapses from months earlier. Harris was discharged on August 23 based on her con- duct 2 days earlier on August 21. Brown was discharged on August 24 after misconduct during a shift 3 days earlier on August 21. Edwards, Taylor, and Wilson were discharged on or about August 28 for conduct during their shift on August 27.34 Moreover, the General Counsel’s argument that the ter- minations were suspiciously close in time to union activity is sub nom. Carolina Holdings, Inc. v. NLRB, 5 Fed. Appx. 236 (4th Cir. 2001); Bethlehem Temple Learning Center, 330 NLRB 1177, 1178 and 1185 (2000); American Wire Products, 313 NLRB 989, 994 (1994). 33 The petition states that the proposed unit had 60 employees. At least 30 percent of those—18 employees—would have to have signed cards for the representation petition to go forward. See NLRB Casehandling Manual (Part Two) Representation Proceedings Section 11023.1. 34 As discussed in the statement of facts, I find that the Respondent discharged Wilson on August 28, and reject the Respondent’s conten- tion that Wilson voluntarily resigned her employment when confronted about her conduct. based on it selectively focusing on the union activity represent- ed by the August 21 meeting. The record shows that employ- ees’ union activity had been ongoing at the Respondent since July. For the reasons discussed above, I find that the evidence re- lating to the timing of the discharges is weak. The evidence of discrepancies in the discipline is also unimpressive. It is true that, as touched upon in the above findings of fact, the Re- spondent’s officials made some incorrect statements about the disciplinary actions. For example, Felton testified (somewhat uncertainly) that Brown’s final misconduct occurred on August 24, whereas I find that the misconduct itself most likely oc- curred on August 21, and that August 24 was the date when the Respondent terminated Brown and completed the attendant paperwork. As discussed in the statement of facts, I do not find a sufficient basis on the record for finding that this discrepancy about dates is something more than an innocent mistake. Simi- larly, Thordsen stated that she told Harris she was terminated during a phone call on August 21, whereas I find that the evi- dence supports finding that the phone call took place on August 23. This discrepancy is also minor under the circumstances present here. The bottom line is that Harris was caught resting and/or sleeping under a blanket for over 5 hours during an 8 hour shift. The Respondent’s personnel rules and regulations provide that “sitting idle” with “head down” “or in any other way giving the appearance of being asleep or resting” “war- rant[s] immediate suspension, and/or discharge.” Every other employee who the record shows was disciplined for violating the same rule was, like Harris, terminated. Johnson, who was caught sleeping during the same shift as Harris, was confronted about her misconduct, and resigned before any discipline was imposed.35 Even Harris’ supervisor was terminated for not preventing Harris and Johnson from sleeping or resting when they should have been serving residents. There is no meaning- ful evidence of disparate enforcement or any other discrepancy that suggests that the decision to discharge Harris was the result of either knowledge of her union activity or animus towards it. Even the General Counsel’s own witness, Parker, testified that she agreed with the discharge decision and opined “who can work and sleep at the same time, and get paid for it.” (Tr. 216.) The other three alleged discriminates—aides Edwards, Tay- lor and Wilson—were discharged, along with Reese, after an episode on August 27 when they were out on break at the same time. This left only one aide to staff the entire fourth floor—a 35 I am aware that the separation report for Harris, in addition to dis- cussing that she rested under a blanket for 5 hours, noted that she had failed to wear a mask as required. The evidence shows that the Re- spondent’s policy was that employees were to wear masks when inter- acting with residents, but that the Respondent did not discipline em- ployees on that basis alone. This is not evidence of disparate discipline because the Respondent did not discharge Harris for the mask violation alone. The Respondent’s rules provide that resting during a shift, as Harris did, was an immediately terminable offense, regardless of whether Harris engaged in additional misconduct that would not on its own justify disciplinary action. THE RIVERVIEW NURSING FACILITY 13 circumstance of severe understaffing, especially extreme occur- ring as it did close in time to, if not (as Edwards testimony indicated) concurrent with, the labor-intensive resident mealtime. The Respondent’s employees are required to notify their supervisors before leaving the facility on break, and gen- erally discuss the timing of their break with coworkers in order to ensure adequate staffing. In this case, the supervising charge nurse, Waltman, informed the Respondent that the fourth floor was left understaffed because three aides had exited without informing him. Moreover, in the case of Taylor—who unlike the others did notify Waltman—the evidence shows that she knew she was leaving the floor understaffed because she was aware that Edwards and Reese would both be on break as well. Taylor also knew that, as a CMT, she was the only aide as- signed to the floor who could administer the medications that some residents needed to take with their meals. In reaching the conclusion that the discrepancies demonstrat- ed by the record are not compelling evidence of knowledge or animus with respect to the August 28 discharges, I also consid- ered the fact that the separation reports for Edwards and Taylor criticize their failure to “clock out.” As discussed earlier, the record shows that, at least at the Riverview facility,36 the Re- spondent did not, in fact, require employees to clock out when leaving the building for their lunch break. However, both of those separation reports also explain the termination decision by criticizing Edwards and Taylor for “leaving residents unat- tended and without assistance.” Moreover, the reports note that Edwards did this without notifying her supervisor (a criticism that was not contradicted by Edwards or anyone else), and that Taylor had left the residents without assistance to receive their medications. I find that the discrepancies presented by the record do not go to the heart of the basis for the terminations arising from the August 27 incident—that the terminated aides engaged in conduct that compromised the care provided to the Respondent’s residents. The discrepancies in the termination process regarding them were minor, and certainly not so star- tling as to raise an inference both that the Respondent must have known about the three employees’ undisclosed union activities and acted based on animosity towards those activities. For the reasons discussed above, the evidence of timing and disciplinary discrepancies is not sufficient to meet the General Counsel’s initial burdens of showing both that the Respondent had knowledge of the employees’ union activity and that the Respondent bore antiunion animosity that was connected to the disciplinary actions. The General Counsel’s argument to the contrary “rests on little more than suspicion, surmise, and con- jecture,” which is insufficient to meet the General Counsel’s initial burden. Cardinal Home Products, 338 NLRB 1004,1009 (2003). It is also worth mentioning that the imperfections in the Respondent’s handling of the disciplinary actions took place in the context of a crisis created by the COVID pandemic 36 There was no evidence regarding how this matter was handled at the site of Thordsen’s regular assignment—Parklane Care and Rehabili- tation. and at a time of extreme staff turnover that included, in rapid succession, the resignations of the licensed administrator, the director of nursing, and the licensed administrator’s replace- ment. At the time of the terminations, the Respondent was functioning with an administrator operating under a “temporary emergency” license and/or an interim administrator who was also responsible for a second nursing home. Under these cir- cumstances the imperfections in the Respondent’s administra- tion of discipline are less telling than they would be in other, more normal, circumstances. I find that the General Counsel has failed to meet its initial Wright Line burden with respect to any of the alleged discrimi- natees. Therefore, the Complaint allegations that the Respond- ent violated Section 8(a)(3) and (1) when it terminated Brown, Harris, Edwards, and Taylor, and suspended and terminated Wilson, must be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent was not shown to have violated Section 8(a)(3) and (1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended Order.37 ORDER The complaint is dismissed. Dated, Washington, D.C. September 6, 2022 The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-265341 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. 37 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes.