Riverview Care Center (14-CA-265341)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

August 16, 2021

TO:

William B. Cowen, Acting Regional Director

Region 14

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: Riverview Care Center

Cases 14-CA-265341 and 14-CA-265900

524-0183-6712-2500

524-0183-6725-0000

524-0183-6789-0000

524-1783-7533-0000

524-8387-5450-0000

524-8387-7050-0000

524-8387-7850-0000

737-2850-2233-0000

737-4267-2200-0000

These cases were submitted for advice as to whether: (1) the Region should issue

complaint over allegations that the Employer unlawfully terminated five employees

based on circumstantial evidence to satisfy the knowledge and animus elements of the

Wright Line prima facie case; and (2) the Region should seek to exclude still photos

and testimony that are the Employer’s basis for terminating an employee, where the

Employer failed to preserve the underlying video footage that purported to show the

employee sleeping during their shift and not wearing a face mask. We conclude that

there is sufficient circumstantial evidence to demonstrate knowledge and animus for

all five terminated employees and the Employer will not be able to meet its Wright

Line rebuttal burden. Therefore, the Region should issue complaint, absent

settlement. We further conclude that there is insufficient evidence for formal

spoliation sanctions so as to fully exclude the Employer’s still photos and testimony

asserting an employee was sleeping during their shift. Instead, the Region should

seek to discredit the Employer’s proffered evidence and reasons for failing to provide

the lost video.1

1 The Region also sought advice as to whether it may discredit testimony of a witness

based on clear, objective factual inaccuracies with the witness’s recollection of when

key events occurred. We conclude that the Region should use its discretion on

whether to use the witness’s testimony

the Employer’s proffered evidence and reasons for failing to provide

the lost video.1

1 The Region also sought advice as to whether it may discredit testimony of a witness

based on clear, objective factual inaccuracies with the witness’s recollection of when

key events occurred. We conclude that the Region should use its discretion on

whether to use the witness’s testimony. The analysis presented herein presupposes

that the Region is not relying on the testimony in question.

Cases 14-CA-265341 and 14-CA-265900

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FACTS

Riverview Care Center (the “Employer”) operates a four-story assisted living

facility in St. Louis, Missouri. It employs over 75 employees, including Certified

Nursing Assistants (“CNA”), Certified Medication Technicians (“CMT”), and

housekeeping staff. In July 20202, SEIU Healthcare of Missouri/Kansas, a division of

SEIU Healthcare Illinois/Indiana (the “Union”), began an organizing campaign at the

Employer’s facility, which was initially kept secret by employees.

A. The Employee Who Initially Contacted the Union is Terminated

for Allegedly Sleeping During Her Shift

Employee A began working for the Employer in October 2018 as a night-shift

CNA. Prior to being terminated, she had never been written up or disciplined and did

not receive regular evaluations or performance appraisals. Before working for the

Employer, Employee A had worked in other nursing care facilities for approximately

33 years.

In mid-July, Employee A contacted the Union about organizing the Employer. On

July 20, Union representatives, Employee A, and approximately six other employees

met and distributed authorization cards among themselves to take back to the

Employer’s facility. The employees initially collected authorization cards from others

in secret.

On the night of August 19, from 10:30 p.m

years.

In mid-July, Employee A contacted the Union about organizing the Employer. On

July 20, Union representatives, Employee A, and approximately six other employees

met and distributed authorization cards among themselves to take back to the

Employer’s facility. The employees initially collected authorization cards from others

in secret.

On the night of August 19, from 10:30 p.m. until 7:30 a.m., Employee A worked

an overnight shift on the third floor of the Employer’s facility and was one of only two

or three employees working on the third floor that night. According to the Employer’s

administrator, who has remote access to the facility’s video surveillance cameras via

her mobile phone, the administrator observed Employee A sitting at a table, wrapped

in a blanket and sleeping on the job for approximately five hours. During that time,

the Employer claims that Employee A was also not wearing a face mask, which was

required of all employees because of the ongoing COVID-19 pandemic. However,

Employee A denies sitting for an extended period of time or sleeping at work during

the August 19–20 overnight shift and did not observe any other employee sitting for

an extended period or sleeping.

The next day, August 20, the administrator and the Employer’s administrative

consultant, whose duties include assisting the administrator because the

administrator was newly appointed, together reviewed the video surveillance footage

2 All dates hereinafter are in 2020 unless otherwise stated.

id not observe any other employee sitting for

an extended period or sleeping.

The next day, August 20, the administrator and the Employer’s administrative

consultant, whose duties include assisting the administrator because the

administrator was newly appointed, together reviewed the video surveillance footage

2 All dates hereinafter are in 2020 unless otherwise stated.

Cases 14-CA-265341 and 14-CA-265900

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and claim to have verified that Employee A had been sleeping during her shift and

was not wearing a face mask. However, according to the Employer, because the

administrator was new to the position, the administrator did not know what actions

were necessary to preserve video surveillance footage, and the video of Employee A

was overwritten. The Employer and its information-technology contractor later

claimed that the process for retaining video surveillance, which would otherwise be

recorded over if not preserved, required the Employer to contact the information-

technology contractor, who would dispatch a service technician to the Employer’s

facility to manually download the footage and save it. Although the Employer’s

administrative consultant allegedly requested a technician, the contractor declined to

send one due to safety concerns from the ongoing COVID-19 pandemic. Instead, the

contractor suggested that the Employer take screen shots or pictures of the

surveillance material as a means of preserving still photos of the footage. The

administrator took photos of the video surveillance monitor displaying Employee A

allegedly sleeping. However, the photos are not clear, appear to be only partial

pictures of the full video frame, and do not contain any date or time stamp.3

On August 21, the Union held a meeting at an offsite city park, attended by

approximately nine employees, including Employee A. At the meeting, the Union

announced that employees had collected enough signed authorization cards to file for

an election with the Board

hotos are not clear, appear to be only partial

pictures of the full video frame, and do not contain any date or time stamp.3

On August 21, the Union held a meeting at an offsite city park, attended by

approximately nine employees, including Employee A. At the meeting, the Union

announced that employees had collected enough signed authorization cards to file for

an election with the Board. It was Employee A’s impression that following this

meeting, employees began to discuss the Union more openly while at the Employer’s

facility.

On August 23, after not working for two days, Employee A received a phone call

from an unrecognized phone number. When Employee A answered, the Employer’s

administrative consultant responded;4 it did not seem to Employee A that any other

manager was on the call. The administrative consultant told Employee A that there

was a night shift investigation taking place and that her services were no longer

needed. When Employee A asked what the administrative consultant was talking

about, the consultant responded that Employee A did not need to return to the

Employer’s facility because she was terminated. Employee A informed the

administrative consultant that the Employer would hear from her lawyer.

3 According to the Employer, its video surveillance system is critical because it often

exculpates employees from allegations of abuse by residents. It is unknown if the

Employer has had to rely on still photos of video surveillance during the pandemic for

any allegations of resident abuse because the contractor declined to send a technician

for those incidents.

4 The phone number used to call Employee A is associated with the administrative

consultant’s personal mobile phone.

xculpates employees from allegations of abuse by residents. It is unknown if the

Employer has had to rely on still photos of video surveillance during the pandemic for

any allegations of resident abuse because the contractor declined to send a technician

for those incidents.

4 The phone number used to call Employee A is associated with the administrative

consultant’s personal mobile phone.

Cases 14-CA-265341 and 14-CA-265900

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The Employer asserts a different series of events on August 23. According to the

Employer, its administrator phoned Employee A, while the administrative consultant

listened. During the call, the administrator recounted to Employee A what she and

the administrative consultant witnessed in the video surveillance footage, stated that

Employee A could be terminated for her actions, and then gave Employee A an

opportunity to explain what happened. Employee A did not deny the administrator’s

assertions or try to explain but merely thanked them for the call and stated that the

Employer would hear from her lawyer.

B. Second Employee is Terminated for Allegedly Cursing at His

Supervisor

Employee B began as a housekeeping employee around April 24. Employee B

admits he did not get along well with his supervisor but never received discipline

prior to his termination. Employee B is also the son of Employee A.

According to the Employer, Employee B was consistently late to work. On August

5, the Employer alleges that Employee B’s supervisor commented on his tardiness

and Employee B responded by yelling, “F**k you, I am tired of this sh*t, just because

you’re playing the role of the man, I am going to show you.”5 The supervisor reported

the incident to the administrator, who then met with Employee B. At the meeting, the

administrator disciplined Employee B, telling him that his conduct was unacceptable

and could have resulted in his termination. However, the administrator decided to

give Employee B a second chance

of this sh*t, just because

you’re playing the role of the man, I am going to show you.”5 The supervisor reported

the incident to the administrator, who then met with Employee B. At the meeting, the

administrator disciplined Employee B, telling him that his conduct was unacceptable

and could have resulted in his termination. However, the administrator decided to

give Employee B a second chance. The administrator then executed a discipline form

of the incident, although not all fields on the form were completed and the employee

signature line states that Employee B refused to sign the form. The form was signed

by the administrator with a witness signature provided by the administrative

consultant.

The Employer further alleges that on August 12, Employee B was disciplined for

returning to work 25 minutes late from lunch. The discipline form documenting the

incident was again only partially completed and noted that Employee B refused to

sign, but was otherwise signed by the administrator with a witness signature from

the administrative consultant.6

5 The supervisor is a lesbian and claims that Employee B did not like her because of

her sexual orientation.

6 As noted above, Employee B maintains that he has never received any formal

discipline.

Cases 14-CA-265341 and 14-CA-265900

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Employee B also attended the Union’s August 21 meeting. At that meeting,

Employee B told those in attendance that they should not talk about the Union to a

particular housekeeping employee because that employee would likely inform the

Employer. According to Employee B, the housekeeping employee is close with

Employee B’s supervisor. The housekeeping employee has also boasted to many

employees that he is close with the Employer’s owners.

On August 22, the same housekeeping employee asked Employee B for a Union

card and claimed that he knew that Employee B attended the Union’s August 21

meeting

would likely inform the

Employer. According to Employee B, the housekeeping employee is close with

Employee B’s supervisor. The housekeeping employee has also boasted to many

employees that he is close with the Employer’s owners.

On August 22, the same housekeeping employee asked Employee B for a Union

card and claimed that he knew that Employee B attended the Union’s August 21

meeting. Because Employee B did not trust the housekeeping employee, Employee B

denied he was at the meeting.

Employee B worked on August 23, but was asked by another employee to change

upcoming shifts so that the other employee could work on August 24 and Employee B

would work instead on August 25. Employee B sent a text message to his supervisor

and received permission to change shifts.

On August 24, Employee B was not working because of the shift change with a

fellow employee. Employee B noticed he missed a phone call from the management-

aligned housekeeping employee’s personal mobile phone. Two voicemails were left

from that phone number, but the voice in the message was Employee B’s supervisor

asking him to call. Soon after, Employee B received another phone call from the

housekeeping employee’s phone, but when Employee B answered it was his

supervisor on the line, who told Employee B he was no longer needed at the

Employer’s facility. When Employee B asked the reason for his termination, the

supervisor told him to not ask any questions and ended the call.7

The Employer, however, claims Employee B was working on August 24 and his

supervisor approached him to talk about his poor work performance. When the

supervisor began to speak about his work performance, Employee B became verbally

aggressive, repeatedly yelling “f**k this.” The supervisor reported the incident to the

administrator, who instructed the supervisor to terminate Employee B because he

had been previously warned that if he cursed again at the supervisor he would be

terminated

him to talk about his poor work performance. When the

supervisor began to speak about his work performance, Employee B became verbally

aggressive, repeatedly yelling “f**k this.” The supervisor reported the incident to the

administrator, who instructed the supervisor to terminate Employee B because he

had been previously warned that if he cursed again at the supervisor he would be

terminated.

7 Although the housekeeping employee denies allowing the supervisor use of his

personal mobile phone, phone and voicemail records show that the supervisor did

indeed call Employee B from the housekeeping employee’s personal phone.

Cases 14-CA-265341 and 14-CA-265900

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C. The Employer Terminates Three Employees for Leaving the

Premises During Lunch

During a typical day shift on the fourth floor at the Employer’s facility, there are

three to four CNAs assigned to the floor along with a CMT and a supervisory charge

nurse. Employees do not regularly clock out for lunch; instead, their lunch period is

automatically deducted from their paychecks. The informal lunch practice is for

employees to notify the supervisory charge nurse on the floor that they are leaving for

lunch. For residents on the fourth floor of the Employer’s facility, lunch is scheduled

to be served between 12:30 p.m. and 1:00 p.m. However, because of the ongoing

COVID-19 pandemic and the necessary additional safety procedures for meals, lunch

on the fourth floor typically has not been served on time and, instead, has been served

around 1:00 p.m. or 1:15 p.m.

i.

Employee C

Employee C is a CMT who began working for the Employer in December 2019

and was an early supporter of the Union along with Employee A. Employee C

attended the August 21 Union meeting with Employees A, B, and others

ional safety procedures for meals, lunch

on the fourth floor typically has not been served on time and, instead, has been served

around 1:00 p.m. or 1:15 p.m.

i.

Employee C

Employee C is a CMT who began working for the Employer in December 2019

and was an early supporter of the Union along with Employee A. Employee C

attended the August 21 Union meeting with Employees A, B, and others. On August

25, while riding the elevator with the housekeeping employee whom Employee B had

warned fellow Union-supporters about, the housekeeping employee told Employee C

that he heard Employee C and others had attended a Union meeting. Employee C

simply confirmed that she had.

Around noon on August 27, Employee C told the supervisory charge nurse and a

CNA on the fourth floor that she was going to lunch; neither objected to Employee C

leaving at that time. Employee C did not clock out for lunch because that was not

normal practice. Employee C left in her car for lunch along with Employee D.

Approximately five minutes later, when the two employees arrived at Employee C’s

home, the supervisory charge nurse phoned Employee C asking where she was and

who was with her. Employee C said that she was on her lunch break as she had

previously told the supervisor and that Employee D was with her. The supervisory

charge nurse stated that there were no CNAs present on the fourth floor and that the

Employer’s owner was very angry about it.8 Employee C told the supervisory charge

nurse that she would immediately return to the facility. Shortly thereafter, the CNA

who had remained on the fourth floor also called Employee C asking where she was

and claimed that the Employer’s owner tried to follow Employee C from the facility.

8 The supervisor’s statement to Employee C appears to be inaccurate or a

misstatement as several employees state that there was at least one CNA present on

the fourth floor.

facility. Shortly thereafter, the CNA

who had remained on the fourth floor also called Employee C asking where she was

and claimed that the Employer’s owner tried to follow Employee C from the facility.

8 The supervisor’s statement to Employee C appears to be inaccurate or a

misstatement as several employees state that there was at least one CNA present on

the fourth floor.

Cases 14-CA-265341 and 14-CA-265900

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When Employee C returned to the facility, the supervisory charge nurse also

claimed the Employer’s owner had tried to follow Employee C upon seeing her leave,

but the owner ended up following the wrong employee.9 According to another

employee, after Employees C and D returned, the supervisor remarked that the

Employer was trying to terminate all the employees who had left the facility.

The next day, August 28, Employee C received a call from the administrator, who

told her the owners had told the administrator that Employee C and others had left

the facility without clocking out. Employee C explained that employees were not

required to clock out for lunch, but the administrator responded that Employee C was

terminated. The administrative consultant was also on the call.

The Employer asserts a different series of events. According to it, the director of

nursing recognized that staff on the fourth floor were having difficulty seeing to the

needs of residents. When the director of nursing asked the supervisory charge nurse

what the issue was, the supervisor claimed that Employees C and others had failed to

tell the supervisor they left for lunch and failed to clock out, leaving the fourth floor

understaffed for the residents’ lunch period. The separation form provided by the

Employer states only that Employee C was terminated for failing to clock out for

lunch.

ii.

Employee D

Employee D is a CNA who began working for the Employer in June. Employee D

signed a Union authorization card and attended the Union’s August 21 meeting

and failed to clock out, leaving the fourth floor

understaffed for the residents’ lunch period. The separation form provided by the

Employer states only that Employee C was terminated for failing to clock out for

lunch.

ii.

Employee D

Employee D is a CNA who began working for the Employer in June. Employee D

signed a Union authorization card and attended the Union’s August 21 meeting.

On August 27, Employee D told a co-worker, but not the supervisory charge

nurse, that she was leaving for lunch with Employee C. When Employees C and D

received phone calls from their supervisor and a fellow employee asking where they

were, they returned to the facility. Employee D worked the remainder of her shift but

was later told by her supervisor that the Employer decided to terminate the

employees who left for lunch, although the supervisor fought hard to retain the

employees. That evening, the administrator phoned Employee D informing her that

because she had failed to clock out for lunch that day, the owner wanted her

terminated. The Employer’s separation form stated that Employee D was terminated

for failing to clock out for lunch and for failing to notify her supervisor when leaving

the premises.

9 The Employer denies the owner attempted to follow any employees.

Cases 14-CA-265341 and 14-CA-265900

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iii.

Employee E

Employee E is a CNA who began working for the Employer in July. Although

Employee E signed a Union authorization card, she did not attend the Union’s August

21 meeting; however, her name was read aloud at the meeting as a Union supporter.

On August 27, Employee E left the Employer’s facility around noon when her

daycare phoned saying she needed to bring more diapers for her child

E

Employee E is a CNA who began working for the Employer in July. Although

Employee E signed a Union authorization card, she did not attend the Union’s August

21 meeting; however, her name was read aloud at the meeting as a Union supporter.

On August 27, Employee E left the Employer’s facility around noon when her

daycare phoned saying she needed to bring more diapers for her child. Employee E

did not tell the supervisory charge nurse when she left and, like Employee D, told

only a coworker.10 When Employee E returned, she got into a verbal altercation with

the supervisory charge nurse about her departure and failure to inform a supervisor.

The supervisor told Employee E to clock out early for the day.

Employee E then informed the administrator of the verbal altercation with the

supervisor. The administrator stated she would contact Employee E later to let her

know what would happen next and that Employee E should leave for the rest of the

day. Employee E did not hear back from the administrator, and follow-up calls and

text messages to the administrator went unanswered. Because she did not hear from

the administrator, Employee E did not go to the facility for her scheduled shifts for

the next two days. On the third day, Employee E returned to the Employer’s facility

and spoke to the administrator, who informed Employee E that she had been

terminated for leaving early on August 27. Although Employee E reminded the

administrator that she was told to leave early by her supervisor and, indeed, the

administrator herself, the administrator would not reconsider Employee E’s

termination.

The Employer asserts a different series of events. According to the Employer,

when Employee E returned to the facility, she had a verbal altercation with her

supervisor and then told the administrator she no longer wanted to work for the

Employer. Two hours later, Employee E returned and asked the administrator if she

could retract her resignation, which was denied

ee E’s

termination.

The Employer asserts a different series of events. According to the Employer,

when Employee E returned to the facility, she had a verbal altercation with her

supervisor and then told the administrator she no longer wanted to work for the

Employer. Two hours later, Employee E returned and asked the administrator if she

could retract her resignation, which was denied. The Employer claims that Employee

E could have been terminated for leaving without permission that day, but Employee

E resigned before the administrator learned of her absence.

ACTION

We conclude the Region should issue complaint, absent settlement, for all five

terminated employees. Although there is no direct evidence of Employer knowledge of

employees’ Union support and activities, or of the Employer’s antiunion animus, there

10 The coworker does not recall whether Employee E told her she was leaving.

Cases 14-CA-265341 and 14-CA-265900

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is sufficient circumstantial evidence to infer knowledge and animus such that the

Region will be able to make a prima facie case of unlawful discrimination under

Wright Line. Further, the Employer’s proffered justifications for terminating the

employees are pretextual, and, therefore, the Employer cannot satisfy its rebuttal

burden. We further conclude that the Region will not be able to obtain formal

spoliation sanctions that would prevent the Employer’s photos purporting to show

Employee A sleeping during her shift or its claimed termination justification from

being offered into evidence. Instead, the Region should seek to discredit the

Employer’s termination evidence and its proffered assertions as to why it failed to

preserve or produce the video.

A. Wright Line Analysis of the Terminations

Under Wright Line, the General Counsel must make an initial showing that (1)

the employee engaged in Section 7 activity, (2) the employer knew of that activity, and

into evidence. Instead, the Region should seek to discredit the

Employer’s termination evidence and its proffered assertions as to why it failed to

preserve or produce the video.

A. Wright Line Analysis of the Terminations

Under Wright Line, the General Counsel must make an initial showing that (1)

the employee engaged in Section 7 activity, (2) the employer knew of that activity, and

(3) the activity was a substantial or motivating reason for the employer’s adverse

employment actions—i.e., employer animus.11 If the General Counsel satisfies the

initial showing, the burden shifts to the employer to prove it would have taken the

same action even in the absence of the Section 7 activity.12 If the employer’s proffered

reasons are pretextual—i.e., either false or not in fact relied upon—the employer

cannot show that it would have taken the same action absent the employee’s Section 7

activity, and, by definition, the employer fails to meet its rebuttal burden under

Wright Line.13

Direct evidence of employer knowledge of protected activities is not required, and

the Board has not hesitated to infer knowledge where circumstantial evidence

reasonably warrants such an inference.14 The Board has inferred knowledge based on

circumstantial evidence such as: (1) the timing of the alleged discriminatory action;

(2) the employer’s general knowledge of union activities; (3) animus; (4) disparate

treatment; (5) delay between conduct cited by the employer as a basis for the

discharge and the actual discharge; (6) the simultaneous discharge of multiple

discriminatees; and (7) that the reason given for the discipline is so baseless,

unreasonable, or contrived as to itself raise a presumption of wrongful motive or, even

11Manor Care Health Services–Easton, 356 NLRB 202, 204, 225–26 (2010), enforced,

661 F.3d 1139 (D.C. Cir. 2011) (citations omitted).

12 Id. at 225.

13 Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).

14 Matthews Industries, 312 NLRB 75, 76 (1993)

discipline is so baseless,

unreasonable, or contrived as to itself raise a presumption of wrongful motive or, even

11Manor Care Health Services–Easton, 356 NLRB 202, 204, 225–26 (2010), enforced,

661 F.3d 1139 (D.C. Cir. 2011) (citations omitted).

12 Id. at 225.

13 Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).

14 Matthews Industries, 312 NLRB 75, 76 (1993).

Cases 14-CA-265341 and 14-CA-265900

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if the reason is not patently contrived, the weakness of the reason can be a factor

raising suspicion of unlawful motive.15 However, the factors do not exist in isolation;

rather, they often coexist and therefore must be considered together.16

Further, the same circumstantial evidence to infer employer knowledge may also

be used to infer an employer’s antiunion animus in the absence of direct evidence.17

Critically, the pretextual nature of the employer’s proffered reasons for the adverse

employment action, along with other circumstantial evidence, is often sufficient to

satisfy the General Counsel’s initial burden of showing the employer’s antiunion

animus.18 Recently, in BS&B Safety Systems, LLC, the Board found animus based on

the timing of an employee’s discharge and evidence of pretext.19 There, animus was

inferred from the relatively close timing between the employee’s protected concerted

activity and discipline, where the employee was engaged in protected activities right

up until he was terminated, despite the employer’s assertions to the contrary.20

Animus was also found in BS&B based on pretext, where the employer had shifting

explanations for the employee’s termination, it failed to conduct a meaningful

investigation of the employee’s alleged production error, and it disparately treated the

employee for committing the error.21

Here, there is no direct evidence of Employer knowledge or animus for any of the

discharged employees

20

Animus was also found in BS&B based on pretext, where the employer had shifting

explanations for the employee’s termination, it failed to conduct a meaningful

investigation of the employee’s alleged production error, and it disparately treated the

employee for committing the error.21

Here, there is no direct evidence of Employer knowledge or animus for any of the

discharged employees. Although Employee A believes that employees may have

become more open about discussing the Union following the August 21 meeting, there

is no evidence to corroborate her belief. Further, the housekeeping employee who

talked to both Employees B and C about their Union activities appears to be aligned

with management, given his boasting of connections to the Employer’s owners, and

15 Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enforced mem. per curiam,

97 F.3d 1448 (4th Cir. 1996).

16 Id.

17 Overnite Transportation Co., 335 NLRB 372, 375 (2001) (Board has long recognized

that direct evidence of unlawful motive is seldom attainable and unlawful motive may

be inferred from surrounding circumstances).

18 Id. (“Circumstantial evidence includes animus, timing, and disparate treatment.”).

19 370 NLRB No. 90, slip op. at 1–2 (2021).

20 Id., slip op. at 16.

21 Id., slip op. at 1–2.

Cases 14-CA-265341 and 14-CA-265900

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may be an informant for management; however, there is no direct evidence of him

being an informant sufficient to impute knowledge to the Employer.22 Instead, there

is sufficient circumstantial evidence to allow the Board to make a reasonable

inference of Employer knowledge and animus, and there is no countervailing evidence

to refute the inference.

i.

Employee A, the key employee leader of the Union’s organizing

campaign, was unlawfully terminated

Although there is no direct evidence that the Employer knew of Employee A’s

Union activities, it is reasonable to infer Employer knowledge

allow the Board to make a reasonable

inference of Employer knowledge and animus, and there is no countervailing evidence

to refute the inference.

i.

Employee A, the key employee leader of the Union’s organizing

campaign, was unlawfully terminated

Although there is no direct evidence that the Employer knew of Employee A’s

Union activities, it is reasonable to infer Employer knowledge. First, the timing of

Employee A’s discharge suggests Employer knowledge. Employee A was allegedly

sleeping while on duty and not wearing a face mask the night of August 19–20, and

the administrator and administrative consultant allegedly reviewed the surveillance

video footage on the morning of August 20. However, they did not inform Employee A

of any investigation or confront her about the footage until August 23, the date of

termination. Critically, the Union’s August 21 meeting occurred between these two

events. The Employer has provided no evidence or explanation as to why, allegedly

armed with photo and video evidence of Employee A sleeping for five hours of her

eight-hour shift, it waited three days to terminate Employee A without conducting a

bona fide investigation. Instead, the timing of Employee A’s discharge suggests the

Employer learned of her attendance at the Union’s August 21 meeting and then

sought to fabricate a reason for her termination.

Second, the Employer’s reasons for terminating Employee A are sufficiently weak

that they warrant an inference that the Employer knew of her protected activities and

contrived a reason to terminate her

on. Instead, the timing of Employee A’s discharge suggests the

Employer learned of her attendance at the Union’s August 21 meeting and then

sought to fabricate a reason for her termination.

Second, the Employer’s reasons for terminating Employee A are sufficiently weak

that they warrant an inference that the Employer knew of her protected activities and

contrived a reason to terminate her. The weakness is initially shown by the

Employer’s shifting reasons for not producing the video of Employee A’s alleged

infraction: the Employer initially justified its nonproduction on the fact that the

administrator was new to the position and lacked knowledge of how to preserve video,

although there was an experienced administrative consultant present whose job

ostensibly was to assist the newly appointment administrator; then, the Employer

suggested that its video retention processes require the physical presence of an

outside technician to manually download the surveillance footage, which was

impossible in this instance due to the contractor’s refusal to send a technician because

of the ongoing pandemic. These shifting reasons tend to show that there is, in fact, no

video of Employee A sleeping or not wearing a mask and, instead, the alleged

22 The American League, 189 NLRB 541, 549 (1971) (whether alleged informant

relayed discriminatees’ protected activities to employer requires direct evidence and

may not be based on inference).

technician because

of the ongoing pandemic. These shifting reasons tend to show that there is, in fact, no

video of Employee A sleeping or not wearing a mask and, instead, the alleged

22 The American League, 189 NLRB 541, 549 (1971) (whether alleged informant

relayed discriminatees’ protected activities to employer requires direct evidence and

may not be based on inference).

Cases 14-CA-265341 and 14-CA-265900

- 12 -

infraction was fabricated by the Employer simply trying to come up with reasons to

discharge a Union supporter, conveniently accusing her of misconduct. Further, the

still photos provided by the administrator of the video surveillance monitor are poorly

focused, show only a portion of the viewing screen, and do not include any date or

time stamp. Indeed, it is not clear from the photos who is pictured or if the individual

is even sleeping.

The Employer’s antiunion animus can also be inferred from the timing of the

discharge and the pretextual nature of the alleged reasons for terminating Employee

A. As described above, the Employer did not terminate Employee A until

approximately three days after the alleged infraction occurred—and only after the

Union held a meeting for employees where it announced sufficient support to file a

representation petition. Further, the Employer’s reasons for terminating Employee A

are pretextual. There is no evidence the Employer conducted any meaningful

investigation of the alleged infraction other than viewing video surveillance footage,

which it failed to preserve. And it did not give Employee A an opportunity to respond

to the allegations before terminating her

ent support to file a

representation petition. Further, the Employer’s reasons for terminating Employee A

are pretextual. There is no evidence the Employer conducted any meaningful

investigation of the alleged infraction other than viewing video surveillance footage,

which it failed to preserve. And it did not give Employee A an opportunity to respond

to the allegations before terminating her. Although the Board does not require

employers to conduct disciplinary investigations, the lack of any real investigation for

a serious allegation of employee misconduct shows that the Employer either

fabricated an incident to create an opportunity to terminate a Union supporter, or at

the very least, did not possess a good faith belief Employee A was actually sleeping on

the job.23 The Employer’s primary evidence of the alleged infraction—grainy and

unfocused still photos of part of a video surveillance monitor purporting to show

someone, ostensibly Employee A, sleeping during her shift without wearing a face

mask—is insufficient to corroborate its assertions.24

The Employer will also not be able to meet its rebuttal burden to show that it

would have terminated Employee A even in the absence of protected activity because,

as discussed above, its reasons for terminating her are pretextual.25 Accordingly, the

Region should allege the Employer unlawfully terminated Employee A.

23 See BS&B Safety Systems, 370 NLRB No. 90, slip op. at 2 n.6; Doctors’ Hospital of

Staten Island, Inc., 325 NLRB 730, 730 n.3 (1998).

24 See Section B infra further addressing the Employer’s alleged evidence of Employee

A sleeping while on duty.

25 See Austal USA, LLC, 356 NLRB 363, 404, 407 (2010) (employee’s termination for

allegedly sleeping while working was “[f]rom start to finish . . . based on a

fabrication”).

70 NLRB No. 90, slip op. at 2 n.6; Doctors’ Hospital of

Staten Island, Inc., 325 NLRB 730, 730 n.3 (1998).

24 See Section B infra further addressing the Employer’s alleged evidence of Employee

A sleeping while on duty.

25 See Austal USA, LLC, 356 NLRB 363, 404, 407 (2010) (employee’s termination for

allegedly sleeping while working was “[f]rom start to finish . . . based on a

fabrication”).

Cases 14-CA-265341 and 14-CA-265900

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ii.

Employee B’s termination for allegedly cursing at his supervisor was

unlawful

Although there is no direct evidence that the Employer knew of Employee B’s

Union activity, there is sufficient circumstantial evidence of Employer knowledge.

First, Employee B is the son of Employee A and was terminated the day after

Employee A and three days after attending the August 21 Union meeting. Thus,

timing tends to show that the Employer knew of Employee B’s activities. Second, and

most importantly, the Employer’s alleged motives for terminating Employee B are

unreasonable, baseless, and contrived. Indeed, the Employer’s pay records show that

Employee B did not work on August 24, the day the Employer claims the in-person

termination occurred, because Employee B had changed work schedules with a fellow

employee. Further, the Employer asserts that Employee B’s supervisor terminated

Employee B in person despite Employee B’s phone records showing phone calls from

the management-aligned housekeeping employee’s mobile phone, which the

supervisor used to call Employee B and leave him voicemails. Additionally, the

Employer claims that Employee B was terminated because he had been given a final

warning on August 5 when Employee B allegedly cursed at his supervisor in front of a

resident. However, the discipline report of the August 5 incident provided by the

Employer is incomplete and is not signed by Employee B.

Third, the pretextual nature of Employee B’s termination supports inferring

Employer knowledge

claims that Employee B was terminated because he had been given a final

warning on August 5 when Employee B allegedly cursed at his supervisor in front of a

resident. However, the discipline report of the August 5 incident provided by the

Employer is incomplete and is not signed by Employee B.

Third, the pretextual nature of Employee B’s termination supports inferring

Employer knowledge. The Employer claims that Employee B was a poor performing,

habitually late employee whom it opted to give a second-chance after Employee B

allegedly cursed at a supervisor in front of a resident while making a homophobic

remark and threat—an infraction the Employer admits is one it considers most severe

and would normally result in termination. However, even after such a severe

infraction, the Employer gave Employee B yet another chance on August 12 when

Employee B was allegedly late returning from lunch. And then, on August 24, without

an apparent reason and on a day that Employee B was not even working, the

Employer claims the supervisor, unprompted, decided to approach Employee B, in

person, about his poor performance, and Employee B allegedly began a tirade of

curses that led to the Employer’s decision to terminate. The shifting, unsubstantiated

details of the Employer’s narrative show it to be a pretext. Thus, the Employer’s

entire story regarding Employee B’s purported disciplinary issues and the

circumstances surrounding his termination appears wholly fabricated. Accordingly, it

can be reasonably inferred that the Employer knew of Employee B’s Union activity.

Likewise, the same circumstances can be used to infer the Employer’s animus.

Thus, Employee B’s termination occurred soon after the Union’s meeting with

employees and just one day after Employee A—the lead employee organizer and

Employee B’s mother—was unlawfully terminated, and the reason given for Employee

B’s termination, as described above, is pretextual. For the same reasons, the

y.

Likewise, the same circumstances can be used to infer the Employer’s animus.

Thus, Employee B’s termination occurred soon after the Union’s meeting with

employees and just one day after Employee A—the lead employee organizer and

Employee B’s mother—was unlawfully terminated, and the reason given for Employee

B’s termination, as described above, is pretextual. For the same reasons, the

Cases 14-CA-265341 and 14-CA-265900

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Employer will not be able to meet its rebuttal burden to show that it would have

terminated Employee B even in the absence of union activity: its proffered reasons for

his discharge are entirely fabricated. Accordingly, the Region should allege the

Employer unlawfully terminated Employee B.

iii.

Employee C’s termination for failing to clock out during lunch was

unlawful

Although there is no direct evidence that the Employer knew of Employee C’s

Union activities, there is sufficient circumstantial evidence to demonstrate Employer

knowledge.

First and foremost, Employee C’s termination appears baseless and contrived

because the separation form states the termination was only for failing to clock out for

lunch, even though employees do not regularly clock out.26 Indeed, the Employer

automatically deducts employees’ lunch period from their working time. Instead,

there exists only an informal system wherein employees typically notify their

supervisor when they plan to leave for lunch, which Employee C did on August 27.

Second, even assuming clocking out for lunch is an Employer policy, the fact that

several employees stated it was not a common practice shows the disparate nature of

the Employer’s enforcement of any alleged policy against Employee C. Were it

enforced as the Employer claims, employees would daily fail to clock out and there

should be ample evidence of employee discipline for this infraction; however, the

Employer produced no evidence that any employees were disciplined for failing to

clock out for lunch prior to August 27

ice shows the disparate nature of

the Employer’s enforcement of any alleged policy against Employee C. Were it

enforced as the Employer claims, employees would daily fail to clock out and there

should be ample evidence of employee discipline for this infraction; however, the

Employer produced no evidence that any employees were disciplined for failing to

clock out for lunch prior to August 27. Third, the Employer’s shifting reasons for

Employee C’s termination also establish pretext. The Employer claims Employee C

was terminated for failing to tell a supervisor she left for lunch and for failing to clock

out even though the separation form provided by the Employer shows the failure to

clock out as the sole reason for Employee C’s termination. The Employer also claims

that the various employees’ absences hindered residents’ lunch service. However,

Employee C left around noon that day and returned within approximately 30

minutes, well before fourth floor lunch service began at 1:00 p.m. or 1:15 p.m. Finally,

the termination took place only six days after the Union’s August 21 meeting, and

Employees C, D, and E were terminated the same day. Accordingly, it can be

reasonably inferred that the Employer knew of Employee C’s protected activities.

26 See Toll Mfg. Co., 341 NLRB 832, 834 (2004) (employer unlawfully disciplined

employee for failing to clock back in for lunch where no evidence that employees

regularly required to clock in or out for lunch breaks).

d

Employees C, D, and E were terminated the same day. Accordingly, it can be

reasonably inferred that the Employer knew of Employee C’s protected activities.

26 See Toll Mfg. Co., 341 NLRB 832, 834 (2004) (employer unlawfully disciplined

employee for failing to clock back in for lunch where no evidence that employees

regularly required to clock in or out for lunch breaks).

Cases 14-CA-265341 and 14-CA-265900

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The above evidence showing that the Employer’s stated reason for discharging

Employee C was pretextual also supports an inference of the Employer’s antiunion

animus. The Employer’s sole documented reason for Employee C’s termination—

failure to clock out for lunch—appears entirely fabricated and pretextual as it was not

common practice for employees to clock out.

The pretext evidence above also prevents the Employer from meeting its rebuttal

burden that it would have terminated Employee C even in the absence of her Union

activity. Because the Employer’s proffered reason is fabricated, it is not the actual

reason for terminating Employee C and therefore the Employer cannot meet its

burden. Accordingly, the Region should allege Employee C was unlawfully

terminated.

iv.

Employee D’s termination for failing to clock out and failing to tell a

supervisor was unlawful

Although there is no direct evidence that the Employer knew of Employee D’s

Union activities, there is sufficient evidence to infer knowledge. First, the Employer’s

reasons for terminating Employee D appear baseless and contrived. One of the

reasons given was that Employee D failed to clock out, but, as stated above,

employees do not regularly clock out for lunch nor is there evidence that the Employer

has previously disciplined employees for failing to clock out. Second, the policy that

employees are required to notify a supervisor before leaving for lunch appears to be

informal at best

appear baseless and contrived. One of the

reasons given was that Employee D failed to clock out, but, as stated above,

employees do not regularly clock out for lunch nor is there evidence that the Employer

has previously disciplined employees for failing to clock out. Second, the policy that

employees are required to notify a supervisor before leaving for lunch appears to be

informal at best. Critically, there is no evidence that, prior to Employee D’s

termination, the Employer had ever disciplined an employee for such an infraction.

Indeed, it was Employee D’s understanding that the informal policy required her to

tell her supervisor or a coworker, the latter of which she did prior to leaving for lunch

on August 27. Indeed, the fact that Employee D believes it sufficient to inform only a

coworker implies that she had followed this understanding previously without being

disciplined. Accordingly, the Employer’s failure to maintain or enforce a specific

lunchbreak notification policy until after a Union meeting tends to show the

Employer knew of Employee D’s Union activities and contrived a reason to terminate

her.27

27 See Ozburn-Hessey Logistics, LLC, 362 NLRB 1532, 1532, 1548–49 (2015)

(employee unlawfully terminated for stepping over conveyer line despite absence of

any written rules or evidence he received relevant safety training, and others engaged

in same conduct without discipline or discharge), enforced per curiam, 689 F. App’x

639 (D.C. Cir. 2016); Hays Corp., 334 NLRB 48, 48–50 (2001) (employee unlawfully

terminated for failing to fill out employer’s informal “early out” lunch form that was

not uniformly enforced).

nveyer line despite absence of

any written rules or evidence he received relevant safety training, and others engaged

in same conduct without discipline or discharge), enforced per curiam, 689 F. App’x

639 (D.C. Cir. 2016); Hays Corp., 334 NLRB 48, 48–50 (2001) (employee unlawfully

terminated for failing to fill out employer’s informal “early out” lunch form that was

not uniformly enforced).

Cases 14-CA-265341 and 14-CA-265900

- 16 -

Third, as stated above, the Employer claims that the various employees’ absences

hindered residents’ lunch service. However, employees had returned to the facility in

time to serve lunch under the modified schedule. Accordingly, this reason appears

fabricated. Finally, the termination took place only six days after the Union’s August

21 meeting, and Employees C, D, and E were terminated the same day. Therefore, it

can be reasonably inferred that the Employer knew of Employee D’s protected

activities.

The above evidence showing that the Employer’s stated reason for discharging

Employee D was pretextual and contrived also supports an inference of the

Employer’s antiunion animus. The documented reasons for Employee D’s

termination—failure to clock out for lunch and failure to notify a supervisor—stem

from nonexistent or otherwise previously unenforced policies. Indeed, even assuming

the need to tell a supervisor is a legitimate policy, there is no evidence it was ever

enforced in any way. Instead, the Employer seized an opportunity to rid itself of

Union-supporting employees by suddenly enforcing an otherwise informal rule days

after employees attended a Union meeting.

Because the Employer’s reasons for terminating Employee D are pretextual, it

will not be able to meet its rebuttal burden under Wright Line. Accordingly, the

Region should allege that the Employer unlawfully terminated Employee D.

v

an opportunity to rid itself of

Union-supporting employees by suddenly enforcing an otherwise informal rule days

after employees attended a Union meeting.

Because the Employer’s reasons for terminating Employee D are pretextual, it

will not be able to meet its rebuttal burden under Wright Line. Accordingly, the

Region should allege that the Employer unlawfully terminated Employee D.

v.

Despite the Employer’s contention, Employee E did not voluntarily

resign and instead was unlawfully terminated

As an initial matter, contrary to the Employer’s assertions, Employee E did not

voluntarily quit and instead was terminated. Indeed, she was terminated for leaving

early despite being instructed by her supervisor and the Employer’s administrator to

leave early on August 27. Even when Employee E returned to work and learned of her

termination for leaving early, she reminded the administrator that the administrator

had instructed Employee E to do so, yet the administrator still claimed she was

terminated.

Next, although Employee E was not present at the August 21 Union meeting, her

name was read aloud at the meeting, identifying her as a Union supporter. It is

reasonable to infer that the Employer knew of Employee E’s identity as a Union

supporter because the Employer asserts that had Employee E not quit—as the

Employer erroneously claims—she would have been terminated for failing to tell a

supervisor she left the premises. As described above, this is a contrived, baseless, and

pretextual reason for terminating an employee, which in these circumstances

demonstrates the Employer knew of her Union activities and harbored anti-Union

animus. Further, the Employer’s assertion that Employee E voluntarily quit on

r erroneously claims—she would have been terminated for failing to tell a

supervisor she left the premises. As described above, this is a contrived, baseless, and

pretextual reason for terminating an employee, which in these circumstances

demonstrates the Employer knew of her Union activities and harbored anti-Union

animus. Further, the Employer’s assertion that Employee E voluntarily quit on

Cases 14-CA-265341 and 14-CA-265900

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August 27 is pretextual. The fact that she was terminated by the Employer, despite

following its instructions to leave early, shows the real reason for the discharge was

because she was a Union supporter and was swept up in the wave of terminations on

August 27.28 Thus, the Employer’s reason for no longer employing Employee E is

baseless and contrived, which allows a reasonable inference that the Employer knew

of her Union sympathies and fabricated a story about her supposedly quitting of her

own volition. The Region will therefore be able to make its prima facie case of

unlawful discrimination under Wright Line.

Finally, the Employer will not be able to meet its Wright Line rebuttal burden

because its reasons for terminating Employee E are pretextual. Although the

Employer claims that Employee E voluntarily quit after an altercation with her

supervisor, Employee E testified that she returned to work on August 31 and was told

by the administrator that she had been terminated as of August 27 for leaving early,

despite being instructed by her supervisor and the administrator to leave early on

that day. Therefore, the Employer’s erroneous claim that Employee E voluntarily quit

cannot serve as a basis to rebut the prima facie case. Similarly, the Employer’s claim

that Employee E would have been terminated even if she had not allegedly quit is

also not sufficient to rebut the prima facie case because, as described above, such a

basis is also a pretext. Accordingly, the Region should allege that the Employer

unlawfully terminated Employee E.

B

ee E voluntarily quit

cannot serve as a basis to rebut the prima facie case. Similarly, the Employer’s claim

that Employee E would have been terminated even if she had not allegedly quit is

also not sufficient to rebut the prima facie case because, as described above, such a

basis is also a pretext. Accordingly, the Region should allege that the Employer

unlawfully terminated Employee E.

B. The Region Should Seek to Discredit the Employer’s Photo

Evidence Regarding Employee A’s Termination Because a Formal

Spoliation Sanction is Not Available

Generally, parties have a common law duty to preserve evidence within their

“possession, custody, or control” that is potentially relevant to “specific, predictable,

and identifiable litigation.”29 Failure to comply with that duty results in spoliation,30

28 See Cherry Hill Convalescent Center, 309 NLRB 518, 524 (1992) (credibility

determinations by fact finder critical to determine whether employer’s proffered

justification for termination was in fact real reason).

29 Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521–38 (D. Md. 2010)

(internal quotation marks omitted).

30 THE SEDONA CONFERENCE, THE SEDONA CONFERENCE GLOSSARY: E-DISCOVERY &

DIGITAL INFORMATION MANAGEMENT (5th ed. 2020), available at

https://thesedonaconference.org/publication/The_Sedona_Conference_Glossary

(Spoliation is “[t]he destruction of records or properties . . . that may be relevant to

Inc., 269 F.R.D. 497, 521–38 (D. Md. 2010)

(internal quotation marks omitted).

30 THE SEDONA CONFERENCE, THE SEDONA CONFERENCE GLOSSARY: E-DISCOVERY &

DIGITAL INFORMATION MANAGEMENT (5th ed. 2020), available at

https://thesedonaconference.org/publication/The_Sedona_Conference_Glossary

(Spoliation is “[t]he destruction of records or properties . . . that may be relevant to

Cases 14-CA-265341 and 14-CA-265900

- 18 -

which prevents other parties to the litigation from obtaining relevant evidence and

undermines the integrity of the judicial process.31 Consequently, adjudicatory bodies

have the inherent power to impose sanctions for spoliation.32 Those sanctions may

include a presumption that the lost information was unfavorable to the party,

instructing a jury that it may or must presume the information was unfavorable, or

dismissing the action entirely.33

In Queen of the Valley Medical Center, the Board implicitly approved of the

Sedona Conference’s definition of spoliation and the three-part conjunctive test used

by the ALJ to determine whether there was spoliation of evidence by the union in that

case.34 There, the ALJ explained that the employer, as the party seeking spoliation

sanctions, had the burden to prove the following criteria: (1) the party having control

over the evidence had an obligation to preserve it at the time it was destroyed; (2) the

records were destroyed with a culpable state of mind; and (3) the evidence was

relevant to the party’s claim or defense such that a reasonable trier of fact could find

that it would support the claim or defense.35

However, if spoliation sanctions are not available because the three-part test

cannot be satisfied, a party can still seek to discredit the factual assertions that the

destroyed evidence purported to demonstrate

able state of mind; and (3) the evidence was

relevant to the party’s claim or defense such that a reasonable trier of fact could find

that it would support the claim or defense.35

However, if spoliation sanctions are not available because the three-part test

cannot be satisfied, a party can still seek to discredit the factual assertions that the

destroyed evidence purported to demonstrate. In that case, the party should instead

seek to show the ALJ that the evidence, had it been produced, would not corroborate

the other party’s assertions.36

ongoing or anticipated litigation, government investigation, or audit.”) (last visited

August 16, 2021).

31 See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590–91 (4th Cir. 2001).

32 Id. at 590.

33 FED. R. CIV. P. 37(e)(2). See, e.g., Wilmoth v. Murphy, 2019 WL 3728280, at *4 (W.D.

Ark. 2019) (defendant’s bad faith in failing to preserve photos warranted sanction

that defendant not be allowed to call particular individuals as witnesses).

34 368 NLRB No. 116, slip op. at 1 n.4, 41–42 (2019).

35 Id., slip op. at 41–42 (citations omitted).

36 See Domsey Trading Corp., 310 NLRB 777, 803–04 (1993) (employer admitted it

had video of event but failed to produce it, indicating that video would not have

corroborated witness testimony), enforced, 16 F.3d 517 (2d Cir. 1994).

Cases 14-CA-265341 and 14-CA-265900

- 20 -

implausible that over the entire course of the pandemic, the Employer has never

needed video downloaded. Nor is it plausible that still photos would be sufficient to

exonerate an employee from claims of abuse. Instead, the inference the Region should

persuade the ALJ to adopt is that there never was any video surveillance of the night

of August 19–20 showing Employee A sleeping on the job or failing to wear a mask.

As to the Employer’s photos of the alleged video footage, they are simply not

probative

plausible that still photos would be sufficient to

exonerate an employee from claims of abuse. Instead, the inference the Region should

persuade the ALJ to adopt is that there never was any video surveillance of the night

of August 19–20 showing Employee A sleeping on the job or failing to wear a mask.

As to the Employer’s photos of the alleged video footage, they are simply not

probative. Although they do appear to show a person not wearing a face mask, they

are grainy, making it difficult to determine the identity of the person in the pictures

or if that person is even sleeping. The pictures also have no date or time stamp, which

is typically displayed on video surveillance monitors, so it is unclear if the photos

provided are even of the night in question. Even if the photos are of August 19–20,

they cannot demonstrate the passage of time to corroborate the Employer’s assertion

that Employee A was asleep for five hours.37

Accordingly, for the foregoing reasons, the Region should issue complaint, absent

settlement, as to the terminations of Employees A, B, C, D, and E. Further, the

Region should seek to discredit the Employer’s proffered reasons for failing to provide

the surveillance video as well as the photo evidence regarding Employee A.

/s/

R.A.B.

H: ADV.14-CA-265341.Response.Riverview.

.doc

37 The Region should feel free to use additional arguments that would aid it in

discrediting the Employer’s evidence regarding the termination of Employee A.

(b) (6), (b) (7