# NLRB Division of Advice Memorandum, Case No. 14-CA-265341 (Riverview Care Center): Riverview Care Center (14-CA-265341)

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_14-CA-265341

## Section

- **Citation:** NLRB Division of Advice Memorandum, Case No. 14-CA-265341 (Riverview Care Center)
- **Heading:** Riverview Care Center (14-CA-265341)
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** NLRB Division of Advice Memoranda (rolling 10-year window) / Riverview Care Center (14-CA-265341)

## Text

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.

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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.

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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).

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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.

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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

- 13 -

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

- 14 -

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

- 15 -

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

- 17 -

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_14-CA-265341. Check the current official text before relying on it. Not legal advice.