Design Technology Group LLC dba Bettie Page Clothing

National Labor Relations Board - Administrative Judge Opinions

Apr 27, 2012

20-CA-035511 (N.L.R.B. Apr. 27, 2012)

JD(SF)–21–12
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DESIGN TECHNOLOGY GROUP, LLC
d/b/a BETTIE PAGE CLOTHING
and DTG CALIFORNIA MANAGEMENT, LLC
d/b/a BETTIE PAGE CLOTHING, a Single Employer
and Case 20-CA-35511
VANESSA MORRIS, an Individual
Christy J. Kwon and Yasmin Macariola, Esqs.,
for the General Counsel.
David R. Koch, Esq. (Koch & Scow, LLC)
Henderson, Nevada, for the Respondent.
David A. Rosenfeld and Nina A. Fendel, Esqs.
(Weinberg, Roger & Rosenfeld)
Alameda, California, for the Charging Party.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in San Francisco,
California, on February 1-3, 2012. Vanessa Moore, an individual, filed the charge on
April 5, 20111 and the General Counsel issued the complaint on October 25, 2011. The
complaint as amended at the hearing alleges that Design Technology Group, LLC d/b/a Bettie
Page Clothing and DTG California Management, LLC, d/b/a Bettie Page Clothing, a single
employer (herein Bettie Page) violated Section 8(a)(1) by maintaining a rule in its handbook
prohibiting the disclosure of wages or compensation to any third party or other employee, and
by discharging employees Vanessa Morris, Brittany Johnson, and Holli Thomas. Bettie Page
filed a timely answer which, combined with a joint stipulation of facts, admits the allegations in
the complaint concerning interstate commerce, jurisdiction, and agency and supervisory status.
Bettie Page denied that it had violated the Act.
At the hearing I granted the General Counsel’s motion to amend the complaint to allege
that Design Technology Group, LLC d/b/a Bettie Page Clothing and DTG California
Management, LLC, d/b/a Bettie Page Clothing is a single employer and Bettie Page admitted
that allegation.

1 All dates are in 2010 unless otherwise indicated.
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On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Charging Party, and Bettie Page,
I make the following.
Findings of Fact
I. JURISDICTION
Bettie Page, a corporation, is a wholesale and retail clothing sales company with
facilities in the states of California, Nevada, and Minnesota, including at store located in San
Francisco, California, where it annually derives gross revenues in excess of $500,000 and
purchased and received goods and services valued in excess of $5000 directly from points
located outside the State of California.. Bettie Page admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2 Prior to the trial counsel for the Charging Party, David Rosenfeld, Esq., filed a motion for a
more definite statement and a notice for request for remedy; both are frivolous and simply waste
time and resources. Also, Bettie Page served a subpoena on Vanessa Morris, the charging
party, and David Rosenfeld, Esq., counsel for the Charging Party, filed a motion to quash. At
the trial the following ensued.
JUDGE KOCOL: Mr. Rosenfeld, please listen to me. The – in your petition to revoke, you
agree to turn over certain items. Please turn those items over.
MR. ROSENFELD: It will take me a month or so, Your Honor. I’ve got to talk with the client
and see where they are. I don’t know whether they are here or not. Your honor, she was
served late. Fine, I’ll go look. I don’t care. Your Honor was late, I’ll be late.
MR. KOCH: We’re talking about Facebook postings that can be pulled off the computer and
printed out.
MR. ROSENFELD: I’ll have to talk with the client.
JUDGE KOCOL: No, that won’t do, Mr. Rosenfeld.
MR. ROSENFELD: Then I can’t do anything until I talk to the client and find out where they
are.
JUDGE KOCOL: Mr. Rosenfeld, when a subpoena is served and you agree to turn over
certain documents; you’re expected to be prepared with those documents.
MR. ROSENFELD: I’m not prepared now.
JUDGE KOCOL: Is there an explanation why you are not?
MR. ROSENFELD: No, other than the fact that I haven’t talked to her about it, because I
was under … .
JUDGE KOCOL: Okay. Mr. Rosenfeld, I’m thinking now of excluding you from this hearing
for not being cooperative. Now, I’m putting you on notice of that. We will take a – aside
from other possible repercussions from your inability to perform your legal obligations here,
so we’re going to take a five-minute break, for the record, and you will tell how quickly those
documents will be here.
(Off the record at 1:57 p.m.)
JUDGE KOCOL: Mr. Rosenfeld?
MR. ROSENFELD: She has nothing in response to the subpoena.
So much for Rosenfeld’s representation on the record that it would take him “a month or so” to
provide the documents! Indeed, in its brief Bettie Page asserts that by the above conduct the
Charging Party “flippantly” defied the subpoena power of the Board and therefore does not have
“clean hands” in this proceeding.
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II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Bettie Page runs an upscale women’s clothing store in San Francisco in the Haight-
Ashbury district. Jan Glaser and his wife Tatyana Khomyakova own Bettie Page. They opened
the San Francisco store on about July 2; Hayley Griffin is the manager of that store. Bettie
Page also has a store located in Las Vegas, Nevada; Carla Avila is the manager of that store.
Avila also assists managers at other Bettie Page stores with any managerial issues they might
have. Jan Hutto provides services to Bettie Page, including advising Glaser on human
resources matters. Holli Thomas, Vanessa Morris, and Brittany Johnson worked at the San
Francisco store as sales personnel.
B. Credibility
There were five main witnesses in this case: the alleged discriminates Thomas, Morris, and
Johnson, and Bettie Page management officials Glaser and Griffin. The facts that follow are
largely based on documentary evidence and the testimony of Thomas, Morris, and Johnson.
Their testimony was mutually corroborative and their demeanor was entirely convincing. They
impressed me with both their ability to recall the events and relate them as accurately as they
could. The demeanor of Glaser and Griffin, on the other hand, was entirely unconvincing; it
seemed they were prone to exaggerate, stretch the truth, and simply fabricate testimony to suit
the situation. I give more specific examples below why I have decided generally not to credit
their testimony unless it stands as an admission of a party opponent.
C. Handbook
Bettie Page’s employee handbook stated:
Wage and Salary Disclosure
Compensation programs are confidential between the employee and [Bettie Page.]
Disclosure of wages or compensation to any third party or other employee is prohibited
and could be grounds for termination.
Analysis
Section 7 protects the right of employees to discuss the wages and other benefits with
each other and with nonemployees. Mobile Exploration & Producing U.S., 323 NLRB 1064
(1997), enfd. 156 F.3d 182 (5th Cir. 1998). An employer may not forbid employees from doing
so. Hyandai American Shipping Agency, Inc., 357 NLRB No. 80 (2011); Double Eagle Hotel &
Casino, 341 NLRB 112 (2004). By maintaining a rule that forbids employees from disclosing
wages and compensation to each other or to any third party, Bettie Page violated Section
8(a)(1).
Bettie Page claims, and the General Counsel concedes, that after the complaint issued
in this case, Bettie Page omitted this section from its employee handbook, but there is no
evidence that employees were informed of the change. And as the General Counsel points out,
another provision in the handbook that remains in effect states as follows:
Commercial Information Security
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As a matter of course employees of [Bettie Page] will have access to confidential and
proprietary information. This information includes, but is not limited to, personnel
information, pricing client lists, contractual agreement, intellectual property and
marketing/sales strategies. It is a condition of employment that you not disclose
this information to third parties during or after employment. Disclosure of [Bettie
Page] confidential information without express written approval is prohibited.
(emphasis added).
This provision, although not alleged to be unlawful in the complaint, continues to forbid
employees from disclosing wages and compensation, which are subsumed within the ban on
disclosure of personnel information. I conclude that a full remedy is required. Passavant
Memorial Area Hospital, 237 NLRB 138 (1978).
D. Facts
On July 14, shortly after the store opened, Thomas sent Glaser a message with a few
ideas to make the store “the best it could possibly be.” Griffin selected an employee of the
month for special attention. Griffin twice selected Morris as the employee of the month,
including for the month of November. As will be seen below Morris as well as Thomas was fired
on November 10.
Store Manager Griffin and the employees socialized together outside of work. In late
August while Griffin and another employee were partying together after work, Griffin tore her
dress. Griffin then told the employee to repair the dress and that if the employee did not Griffin
would cut her hours at the store. This event, among others, did not sit well with the other
employees. Thomas began calling Avila on behalf of herself and the other employees
complaining about the way Griffin managed the store and other personnel3 matters. Avila told
Thomas to write down the issues as they occurred and send them to her. On September 12
Thomas sent a message to Avila that was also signed by Morris, Johnson, and two other
employees. The message indicated that the “management situation in our store has become
extremely unstable, unsafe, and unprofessional.” The message contained a long description of
Griffin’s alleged shortcomings, including that Griffin “used her position to bully, manipulate, and
intimidate” the workers. In response to the message Glaser and Avila visited the store and
spoke to Griffin and the employees, including Thomas, Morris, and Johnson. None of the
employees were disciplined by Glaser concerning the message they sent about Griffin.
However, after the letter was sent Griffin tearfully told Thomas that someone was trying to get
her fired and had written a letter to top management complaining of the all the bad things she
was doing. Griffin asked Thomas if she had sent that letter and Thomas untruthfully answered
that she had not. Griffin told Allison Jones, also employed by Bettie Page as a sales employee,
that she suspected that Thomas and Morris had sent the letter.
During monthly meetings at the store, employees asked Griffin whether the store could
close at 7 p.m. instead of at 8 p.m. The employees explained to Griffin that other stores in the
area were closing earlier and that the employees working late sometimes were harassed late at
night by the street people after the tourists had left the neighborhood. Griffin’s reply was that
she would raise the issue with corporate, but nothing was resolved.
On November 4 Thomas and Morris were working together; Griffin was out of town at
the time. After speaking by telephone with Jan Hutto, Bettie Page’s human resources

3 I correct the transcript at p. 384, line 13, to substitute “personnel” for “personal.”
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consultant, about a computer issue, Thomas and Hutto began speaking about sales for the day.
Thomas indicated that the season seemed to be winding down as the tourists were not there as
much and sales were declining. Hutto asked if that was the case for other stores in the area
and Thomas indicated that the other stores were closing as 6 or 7 p.m. and Bettie Page was the
only store that remained open until 8 p.m. Hutto said that management was unaware of that
fact and said that she would talk to Glaser about the matter. Glaser then called and Thomas
again reported about sales. Then Thomas explained how typically Griffin opened the store and
she, Thomas, typically closed the store. She told Glaser what the employees had expressed to
Griffin during the store meetings about closing the store earlier. Thomas explained to Glaser
that the employees had expressed their concerns about safety because Bettie Page was the
only store open late in the area and street people occasionally harassed the employees from
outside the store - even came into the store - and the store had no alarm or security system to
assist the young women who were working until 8 p.m.. Glaser told Thomas that Griffin had
never raised the subject with him and they were unaware of the fact that the other stores were
closing earlier. Glaser gave his approval to close the store at 7 p.m. Contrary to what Bettie
Page later claimed, Thomas did not indicate that Griffin had agreed that the store should close
earlier. As she was walking home that evening after closing the store at 7 p.m. Thomas
received a call from Griffin; Griffin, as mentioned, was out of town. Griffin angrily asked why
Thomas was not answering the phone at the store. Thomas explained that Glaser had agreed
that the store should close at 7 p.m. going forward. Griffin replied that she did not believe
Thomas and would call Glaser. Thomas then called Glaser and told him of the call from Griffin;
Glaser said that Thomas should not worry and that he would handle Griffin. Continuing, Griffin
then again called Thomas and indicated that she had just spoken with Glaser and the store
would again close at 8 p.m. Griffin said that she could not believe that Thomas had spoken with
Glaser about the matter. Thomas then called Morris and informed her of the turn of events.
Later that evening Morris, Thomas, and Johnson posted the following messages on Facebook.
Holli Thomas needs a new job. I’m physically and mentally sickened.
Vanessa Morris It’s pretty obvious that my manager is as immature as a person can be
and she proved that this evening even more so. I’m am (sic) unbelievably stressed out
and I can’t believe NO ONE is doing anything about it! The way she treats us in NOT
okay but no one cares because everytime we try to solve conflicts NOTHING GETS
DONE!!
Holli Thomas bettie page would roll over in her grave.
Vanessa Morris She already is girl!
Holli Thomas 800 miles away yet she’s still continues our lives miserable. Phenomenal!
Vanessa Morris And no one’s doing anything about it! Big surprise!
Brittany [Johnson] “bettie page would roll over in her grave.” I’ve been thinking the
same thing for quite some time.
Vanessa Morris hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s
Rights book to work. My mom works for a law firm that specializes in labor law and BOY
will you be surprised by all the crap that’s going on that’s in violation 8) see you
tomorrow!
The next day or so Morris brought the book about worker’s rights to the store and placed it in
the break room where other employees looked through it. The book covered matters such as
benefits, discrimination, the right to organize, safety, health and sanitation.
Brynn Michel, sales employee at Bettie Page and a friend of Griffin’s, told Griffin of the
Facebook postings described above. Griffin then accessed Michel’s Facebook page and
viewed the postings. Griffin then called Avila who then called Hutto. On November 6 Hutto sent
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Glaser the following message entitled “Facebook comments by Vanessa Morris and Holli
Thomas San Francisco”:
I screen printed these so you could see them. Carla (Avila) gave me the heads up.
I guess she also stated that her mom picked up a California employment book and that
we are doing all kind of things wrong. I didn’t see that post. Maybe ask Carla about it.
I think we need to take action right away. Also I don’t k now if Hayley (Griffin) is the right
person to do it.
Attached to this message were copies of some of the Facebook postings described above.
Later Hutto also sent Glaser a copy of the Facebook posting wherein Thomas indicated her
intention to bring the worker’s rights book to work.
On November 10 Thomas arrived at work and observed that Griffin had returned early
from her trip. Griffin immediately directed Thomas to her office and summoned Morris from the
work floor to join them. Also present was Ashley Cunningham a/k/a Doris Mayday, who had
been flown in by Bettie Page to assist Griffin in the termination process that follows. Griffin
stated that they were being fired because things were not working out. Griffin gave them their
paychecks, stated that they were paid until 3 p.m. that day, told them to leave the premises
immediately and that they were not allowed on Bettie Page premises again.
Griffin testified that after she fired Thomas and Morris:
[T]hey started giggling and smiling and [Thomas] looked at me and said so we don’t
have to work today? And I said nope and they were so happy and they gave each other
hugs and [Morris] ran to the back and grabbed the new dress she just bought which I
checked the bag to make sure she had the receipt. Just so ecstatic, ran out to the store
and gave the other girls hugs and high fives. And said we’ll be back. I don’t remember
who said that. But just absolutely thrilled that they got to leave.
I conclude Griffin’s testimony concerning the happiness of Morris and Thomas at being fired is
exaggerated to say the least; to the contrary, I conclude this uncorroborated testimony was
created to fit neatly in with the Facebook posting described below. Instead, I credit Thomas’
testimony denying that she and Morris laughed, giggled, and hugged each other after they were
fired and Morris’ testimony that admitted only that they may have hugged each other outside the
store as they were leaving.
After they were fired the following comments were posted on Facebook by Morris and
her Facebook friends:
VANESSA MORRIS OMG the most AMAZING thing just happened!!!! 8D
ANNA GARCIA What?!
VANESSA MORRIS Oh just the best thing came happen at the job!!
SHANNON IMPERO did they fire that one mean bitch for you?
VANESSA MORRIS Nooooo they fired me and my assistant manager because “it just
wasn’t working out” we both laughed and said see yaaaaah and hugged each other
while giggling
ANNA GARCIA Hahaha
VANESSA MORRIS Muhahahahaha!!! “So they’ve fallen into my crutches”
Although Bettie Page contends that this posting shows it was setup by the employees to be
discharged Morris credibly explained at trial that she and her sister were big fans of "The
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Monkees", a popular band with a television program in the 60’s; this sentence is something they
said on that program.4
I now describe several incidents that Bettie Page claims caused it to fire Thomas and
Morris. A day or so after November 5 Thomas was outside the store during a break period
talking with Johnson on her mobile phone. Thomas and Johnson were discussing the early
closing matter and Thomas was stating how she felt Griffin had been unprofessional and
incompetent. Then Thomas discovered that she had accidentally dialed Griffin’s number.
Thomas hung up and returned to the store. Griffin then called Thomas and announced she had
heard what Thomas had said about her and that she could not believe Thomas was talking to
the other employees about her. Thomas credibly denied describing Griffin as a “bitch.” The
foregoing facts are based on the credible testimony of Thomas, Johnson, and Allison Jones.
Their testimony was mutually corroborative and their demeanor was convincing. Griffin, on the
other hand, testified that after receiving the call “I heard noise and then I heard [Thomas’] voice
and it sounded like maybe three or four other girls’ voices and I heard other noises, I heard my
store, customers . . . .” She also claimed that she heard Thomas calling her a “bitch.” I do not
credit this testimony and I also do not believe that Griffin’s hearing was such that she could hear
the voices of other employees and hear and distinguish them from the voices of customers and
at the same time hear the noises that indicated that Thomas was inside the store as she was
talking. Importantly, in the affidavit that Griffin provided during the investigation of the charge in
this case she made no mention of hearing any customers during this incident. Based on
testimony such as this5 and on my observation of Griffin’s demeanor I hesitate to credit any of
her testimony.
On November 5 Hutto was sent messages from a service that monitors the emails sent
from Bettie Page’s computers. The messages indicated the following three emails were sent by
Morris from those computers:
Vanessa Morris – Seeking Sales Associate Position!!!
Hello, My name is Vanessa Morris and I am seeking a full time position but I will take
part time if there are no full time positions available. I love customer service and retail
because I love the constant interactions with different types of people on an everyday
basis. I currently work for a 1950’s reproduction dress boutique in the city.
Vanessa Morris – Craig’s List POSTING!!!!!!!!
Hello my name is Vanessa Morris and I am inquiring about your post. I love
reproduction clothing and I love working retail. I have open availability and can start
immediately. Attached is my resume.
Thanks you for your time.
V. Morris
Vanessa Morris – Job Resume

4 In his brief that General Counsel states that Bettie Page’s “conspiracy theory is
nonsensical.” I agree and give in no more consideration.
5 Other examples are Griffin’s testimony during cross-examination by the General Counsel
concerning why she did and did not make certain markings on tardiness records, concerning
when Griffin began to more strictly enforce the tardiness policy, and concerning usage of the
company computer for personal use.
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The record is unclear when Morris sent those messages and what prompted the monitoring
service to send the messages to Hutto. On November 9 Bettie Page was sent message from
the email monitoring service that showed that Johnson had used the company’s computer to
send two resumes seeking employment elsewhere.
With those events in mind, I now describe the reasons Bettie Page has given for its
termination of Thomas and Morris. Glaser made the decision to fire Thomas. In his pretrial
affidavit, given under penalty of perjury, Glaser stated:
My decision to terminate . . . Thomas was because while Griffin was out of town . . .
Thomas did things. Thomas called me to change operating hours and close early. She
told me that she had spoken with Griffin and that Griffin agreed to close early. The next
day I spoke with Griffin and she told me that she had never talked to her. Soon after we
hired the employees in late June 2010, Thomas sent me a long letter about how she
thought the store should be run. She was not complaining about Griffin, but about what
she thought Griffin should be doing at the store. I told her to talk to Griffin. It appeared
from the beginning that there was a competing issue for manager between them. The
behavior manifested into insubordination in November 2010 with Thomas contravening
Griffin’s decisions. The conflicts continued, finally resulting in her termination.
At the trial Glaser testified that he fired Thomas for two instances of insubordination. The first
was for calling him on his mobile phone and telling him that “we” decided that since there are no
customers in the store after 7 p.m. “we” are going to permanently close the store one hour early.
Glaser explained that the insubordination “was unilaterally deciding to close the store while
giving me the impression she had (the) consent (of) the manager to do so, which she did not.”
Glaser explained that Thomas gave him the impression that Griffin, the store manager, had
agreed to the early closing time when Thomas used the word “we” in the phone conversation.
Glaser admitted, however, that Thomas never specifically mentioned the manager during that
conversation. Glaser claims that he also spoke with Jan Hutto about closing the store early.
According to Glaser, Hutto told him that Thomas had called her and they discussed the matter
of closing the store at 7 p.m. Hutto suggested that Thomas call Glaser first to get his
permission. According to Glaser, Hutto said that she too was “under the impression” that
Thomas had discussed the matter with Griffin. However, I have concluded above as a matter of
fact that Thomas never indicated that Griffin had agreed to close early to either Glaser or Hutto;
on the contrary, Thomas indicated that Griffin was passively resistant to that suggestion. And if
Griffin had wanted to close the store early, Glaser must have wondered why she did not raise
the matter directly with him instead of having that suggestion come from a subordinate. The
second instance of insubordination, according to Glaser, occurred when Thomas referred to
Griffin “as a bitch while on the sales floor of our store in the presence of customers and other
employees.” He learned of this from Griffin. Glaser admitted, however, that Griffin was not
present on the sales floor during this incident. Rather, Griffin was in San Diego and the heard
the remarks over her mobile phone. According to Glaser, Griffin “heard customers and talking
and the cash register and other people.” Glaser also claimed that Thomas had called Griffin a
bitch in his presence and in front of other people in the past, but he did not discipline her for
using that language. However, on the unemployment insurance claim form for Thomas, Bettie
Page indicated that:
Holli Thomas was fired for not performing her duties as an assistant manager by
working against her manager at all times and taking too many days off after
being written up for it.
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So the name calling incident not only did not occur but was not even mentioned as a reason for
termination in the unemployment insurance claim and had been tolerated in the past if it had
occurred. Finally, at trial Respondent’s counsel asserted still other reasons for Thomas’
termination. Among them were that Thomas had decided to take off the week of Thanksgiving
to go on vacation with her mother. Of course, that event had not yet occurred because Thomas
was fired two weeks before Thanksgiving.
According to Glaser, he fired Morris for insubordination after she disobeyed specific
requests from Griffin to perform expected functions as a sales associate “(c)ontinually since her
employment began, but it accelerated while Ms. Griffin was in San Diego.” At trial Glaser
explained:
She was told not to text from the salesroom floor, personal texting. She did so. She
was told not to eat on the salesroom floor behind the register. She would do so. She
was told not to change the displays without talking to the manager. She would do so.
And, most specifically, she signed a specific document to not use company computers
for personal purposes, and instead she used company computers to send out her
resume looking for jobs with our competitors.
I can tell you that the proximate cause of firing her was using the computer, the company
computer to send out her resume to competitors.
Glaser admitted that Brittany Johnson also used the company computer to send out her
resumes and that Jan Hutto was aware of this but Johnson was not fired for this conduct.
According to Glaser, Griffin told him that she would see Morris “constantly texting” and Griffin
would be “constantly telling her to stop it.” On one occasion in around August or September
Glaser waited outside the store while his wife Tatyana went inside to act as a secret shopper.
They discovered that Morris was eating potato chips behind the counter. On the unemployment
insurance claim form for Morris, Bettie Page indicated that Morris:
[H]as been written up for a few different things and caused an overall negative work
environment. Her overall attitude towards the company was not acceptable. She stated
on many occasions that she hated her job and Bettie Page store and sent out resumes
from the company computer.
On an appeal form contesting Morris’ unemployment insurance claim Bettie Page indicated:
Attached are documents of postings on Facebook and proof that Vanessa Morris was
using the company computer after signing documents stating it was not to be used for
personal use. She not only was undermining [illegible] the Bettie Page company. Her
attitude was affecting all staff.
Attached to the appeal form were copies of the Facebook postings described above. At Morris’
unemployment compensation hearing Glaser testified that the reasons Morris was fired were:
Insubordination, defamation on public media regarding our personnel and our company,
tardiness to her job, personal use of company equipment in direct violation of the
employee handbook and the specific document prohibiting the same.
At the trial in this case Glaser explained the reference to Morris’ use of the public media in his
testimony at the unemployment compensation hearing as follows:
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She was fired – the proximate cause was because of her personal computer use. The
reason the defamation was referred to in [the transcript of the unemployment
compensation hearing] is probably – it’s my fault. But after she was fired, I noticed on
Facebook that she wrote that I fell into her trap, fell into her clutches
And I was really upset. I said that I was setup, that it was entrapment and I was just
livid. And so, when I went to this hearing, that was on my mind. And it’s the only reason
I threw in this defamation as part of a number of reasons, which were the real reason,
she was dismissed.
Yet at the unemployment compensation hearing the judge asked Glaser why Morris was fired
and he testified, in part, referring to the Facebook postings described above:
Mr. Glaser: I don’t know if this would warrant discharge, but there’s a comment prior to
that, hey dude, totally cool; tomorrow I’m bringing a California Worker’s Rights Book to
work.
My mom works for a law firm that specializes in labor laws and, boy, will you be
surprised by all the crap that’s going on in violations.
See you tomorrow.
I conclude that Bettie Page’s and particularly Glaser’s explanations concerning the reasons for
the discharges of Morris and Thomas morphed as needed based on the exigencies of the
situation.
Bettie Page’s handbook permitted use of its computers for personal reasons only during
break or lunch time, and then only to “an absolute minimum.” Employees were also required to
sign a lengthy computer use policy in October that restricted use of company computers for
personal matters to “minimal and incidental use.” The evidence, however, shows that
employees and especially Griffin used the work computers for personal matters such as viewing
online dating, shopping and Facebook. Indeed, on August 17, 2011, employee Brynn Michel
used the work computer for personal use, including sending her resumes to another employer.
She was given a first warning for this conduct. The evidence also shows that other employees,
including Griffin, ate food on the salesroom floor without being disciplined.
Analysis of the Terminations of Thomas and Morris
For over three-quarters of a century Section 7 of the Act has given employees the right
to act together (“concerted activity”) to improve their working conditions. Concerted activity is
activity that is “engaged in, with or on the authority of other employees, and not solely by and of
the employee himself.” Meyers Industries, 281 NLRB 882, 885 (1986), aff’d. sub nom Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1986), cert. denied, 487 U.S. 1205 (1988). Likewise, “It is well-
settled Board law that concerted protests of supervisory conduct are protected under Section 7
of the Act where such protective conduct affects employees’ working conditions.” Rhee Bros.,
Inc., 343 NLRB 695 (2004, at fn. 3, quoting Trampler, Inc., 335 NLRB 478, 479 (2001) enfd. 338
F.3d 747 (7th Cir. 2003). Thomas and Morris engaged in protected, concerted activity when
they presented the concerns of the employees about working late in an unsafe neighborhood to
Griffin and then when Thomas presented those concerns on behalf of the employees to Glaser.
In the conversation with Glaser, Thomas explained those concerns were shared by other
employees who also wanted the store to close early. Their Facebook postings were a
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continuation of that effort culminating in the employee rights handbook being brought to work for
the employees to peruse.6 Clearly Bettie Page knew of the concerted nature of these activities.
I now apply the shifting burden analysis required by Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)7 to determine whether the
General Counsel has met his initial burden of showing that Thomas and Morris were fired
because of those activities. See also T & J Trucking Co., 316 NLRB 771 (1995). Stripped of its
fabricated patina, Glaser’s testimony amounted to an admission that he fired Thomas because
she raised the concerns of the employees about safety and the store closing time. And Bettie
Page’s presentations to the unemployment insurance department are admissions that the
Facebook postings were a reason Bettie Page terminated Morris. Remember also that Avila
advised Glaser that “I think we need to take action right away” concerning discharging Thomas
and Morris for their Facebook postings. These admissions alone easily satisfy the General
Counsel’s burden. The element of timing strengthens the case, inasmuch the terminations
came quickly on the heels of the protected concerted activity by Thomas and Morris. Finally, as
explained above the shifting and specious reasons given by Bettie Page for the terminations
further strengthen the General Counsel’s case.
I now examine whether Bettie Page has met its burden of showing that it would have
fired Thomas and Morris even if they had not engaged in protected concerted activity. Where,
as here, the General Counsel makes a strong showing of discriminatory motivation, an
employer’s rebuttal burden is substantial. See Eddyleon Chocolate Co., 301 NLRB 887, 890
(1991); see also Van Vlerah Mechanical, 320 NLRB 739, 744 (1996). I have already noted the
shifting and specious nature of the reasons for discharge and I therefore conclude that Bettie
Page has failed to meet its burden. By discharging Vanessa Morris and Holli Thomas for
engaging in protected concerted activity Bettie Page violated Section 8(a(1).
Bettie Page claims that Thomas is not entitled to reinstatement because she gave an
incorrect social security number on her employment application. However, Morris credibly
explained that when she filled out that application she had just moved to San Francisco from
Los Angeles away from her parents’ house for the first time and she did not have credentials
such as her birth certificate or social security card with her. So she called her mother to obtain
her social security number who gave Thomas the number based on her memory. Well, it turned
out that the last four digits were incorrect. Thomas discovered this in the course of her
application for unemployment compensation and she then sent Hutto a message advising her of
the error. Moreover, on June 29 Bettie Page did a background check on Thomas; the report it
received had Thomas’ correct social security number. Under these circumstances I conclude
that this was nothing more than an isolated, inadvertent error and Bettie Page would have
viewed it as such. I conclude Bettie Page has failed to show that it would have fired Thomas
had it known of this mistake.

6 The General Counsel urges that I consider the September 12 message, described above,
as part of the protected, concerted activity of Thomas and Morris. To be sure, it was. But
I discount the role that activity played in the discharges of the employees because there is no
evidence that Glaser harbored any animus towards the employees because of that activity.
Remember it was Glaser who decided to fire Thomas and Morris.
7 In its brief, Bettie Page cites Western Exterminator, Co., v. NLRB, 565 F.2d. 1114, 1118
(9th Cir. 1977) for the proposition that the General Counsel must establish that the unlawful
motive was the “dominant” motive. But this and similar cases were implicitly overruled by the
Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
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Turning to the discharge of Brittany Johnson, shortly after Thomas and Morris were fired
on November 10 Griffin told Johnson that she could not tell Johnson who Johnson could be
friends with, but she was tempted to put a gag order on Johnson so she would not be able to
talk about work. Griffin made this comment after she noticed that Johnson had received a text
message from Thomas.
Griffin posted a schedule for the employees, but she would change the schedule and
sometimes forget to tell employees she had done so. On December 11 Johnson believed she
was scheduled to start work at 2 p.m. However, shortly after 12 p.m. she received a call from
Griffin asking where she was and that she was supposed to start at 12. Johnson explained that
she thought she was scheduled to start at 2 p.m. but she would get to the store as soon as
possible. When she arrived Griffin terminated Johnson’s employment. Griffin made the
decision to fire Johnson and informed Glaser of it after the fact. The termination form indicated
that Johnson “was supposed to be @ work @ 12 pm. I called Brittany she thought she worked
@ 2 pm. Brittany didn’t show up until 1:10 pm” and “also Brittany was obviously hung over.”
Brynn Michel, a sales employee for Bettie Page who was working the day that Johnson was
fired noticed that Johnson was wearing sunglasses when she arrived to work that day but that
Johnson in the past had frequently admitted to being hung over when she arrived to work. On
the unemployment insurance claim form for Johnson, Bettie Page indicated that Johnson “had
been written up 2 times over a 4-month period for being late but continued to be late. Almost
everyday.” In its statement of position submitted during the investigation of the charge filed in
this case, Bettie Page indicates that Johnson was fired for “for chronic tardiness and
insubordinately challenging her supervisor Griffin when she was reprimanded for being over an
hour late to work in December.”
Bettie Page has the following provision in its employee handbook:
ATTENDANCE
Punctual attendance is mandatory for efficient job performance. … [H]abitual tardiness
will be subject to appropriate disciplinary action, up to and including termination.
Habitual tardiness, regardless of how minor, reflects negatively on the employee and the
company. … Late is late. 1 incident is cause for verbal warning. 2 incidents earn a
written warning, at management’s discretion. Multiple incidents are cause for further
action.
Despite this provision in the handbook, employees regularly arrived late for work and
were not disciplined, although the length of their tardiness was, for the most part, in the range of
ten minutes or less. More specifically, on August 23 Griffin gave Morris a verbal and written
warning for tardiness and on September 17 Griffin gave Thomas a verbal and written warning
for tardiness, both warnings indicated that if it happened again it could lead to a suspension or
termination. However, notwithstanding the written policy in the handbook and the comments on
the warnings, Griffin told employees that so long as someone is present to open the store on
time, it did not matter much if employees arrived 10 minutes or so late. After receiving the
warnings Thomas and Morris continued to be late but were not disciplined. Allison Jones
worked for Bettie Page as a sales employee. One day Griffin called Jones and told her that she
was supposed to be at work. Jones told Griffin that she did not realize the schedule had been
changed, but she lived nearby and quickly came to work. Jones was not disciplined for arriving
late.
I now examine Johnson’s tardiness record. On August 28 Griffin gave Johnson a verbal
and written warning for arriving 40 minutes late to work that day. The warning indicate “if
happens again - will be suspended, and if happens a third time can result in termination.”
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Johnson continued to be tardy on a regular basis but was not warned or disciplined until
December 6, when Griffin issued Johnson another written warning, this time for being fifteen
minutes late for work. This warning indicated that Johnson “has been late to work multiple times
in the last month” and that “If happens again – possible termination.” The only other written
discipline given to employees relating to tardiness before or near the time Johnson was fired
was given to employee Jennifer Townsend on October 2.
Analysis of Johnson’s Termination
Johnson engaged in protected concerted activity when she joined the Facebook
postings of Morris and Thomas by posting “’bettie page would roll over in her grave.’ I’ve been
thinking the same thing for quite some time.”8 Although viewed alone this was a rather
innocuous comment, at least compared to the postings of Morris and Thomas. But other
evidence shows that Griffin more strongly connected Johnson with Morris and Thomas than a
more disinterested observer might think. Shortly after the terminations of Morris and Thomas
Griffin warned Johnson that she would like to place a “gag order” on Johnson so that she would
not be able to talk about working conditions; this was after Griffin observed that Johnson was
reading a text message from Thomas. I take into consideration my conclusion that Bettie Page
unlawfully terminated Thomas and Morris thereby showing its hostility towards the fact that
those employees made those Facebook postings. In sum, the evidence shows that Johnson
engaged in protected concerted activity and Bettie Page knew this. Bettie Page continued to
link Johnson with the protected concerted activity of Morris and Thomas and expressed a desire
to disrupt that link. Bettie Page had unlawful animus towards that protected concerted activity.
I conclude that General Counsel has met his initial burden under Wright Line.
I now determine whether Bettie Page has met its burden of showing that it would have
fired Johnson anyway. To be sure, Johnson had been late on the day she was fired and she
had been warned about tardiness just days before. But the record shows that no employee had
ever before been fired for tardiness despite the widespread, continuing tardiness of employees.
Remember, Bettie Page cannot merely point to employee misconduct to meet its burden; rather,
it must show that it would have terminated the employee based on the misconduct. Cardinal
Home Products, 338 NLRB 1004, 1008 (2003). I conclude it has failed to do so. It follows that
by terminating Brittany Johnson, Bettie Page violated Section 8(a)(1).
Bettie Page claims that Johnson is not entitled to reinstatement because of comments
she made after she was fired. According to Brynn Michel, the sales employee who was working
the day that Johnson was fired, after she had been terminated Johnson said that she always
knew that Griffin was “a horrid bitch from the moment I met you.” According to Griffin, Johnson:
[W]as pissed off. She was very, very mad. She stormed out of the store. She maybe
ran and grabbed like her, you know, something maybe a CD she had and something
else and came behind the counter and stormed out and when she left, she said “Hayley,
now I can finally tell you, I’ve always thought that you were a horrid bitch. Screamed it
through my store in front of customers. Huge scene.

8 Johnson also engaged in protected concerted activity when she signed the September 12
message. However, there is no evidence that Griffin knew that Johnson signed that message.
Rather, as described above, Griffin concluded that Thomas and Morris had sent the message.
And while Glaser knew that Johnson signed the message, there is no evidence that Glaser was
angry at the employees for sending that message. I therefore discount the impact this activity
had in the decision to terminate Johnson.
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Although Johnson did not deny this event, I do not entirely credit Griffin’s testimony that the
name calling occurred in front of customers or caused a “huge scene.” Rather, I attribute this
part of her testimony to her propensity to exaggerate. I do conclude, however, that Johnson did
call Griffin a “bitch.” But this inappropriate outburst was triggered directly by Bettie Page’s
unlawful termination of Johnson. I have concluded that there is no credible evidence that this
occurred in front of customers and that the comment was brief and isolated. Remember that
Glaser himself admitted that an employee called Griffin a “bitch” in his presence and he did not
even discipline, much less terminate, that employee. Under these circumstances, I conclude
that Johnson’s intemperate outburst is not sufficient to deprive her of an offer of reinstatement.
Bettie Page also contends that Johnson is not entitled to reinstatement because on her
employment application she indicated that she had not been convicted of a crime yet in fact she
had. Bettie Page has an employee handbook that contains the following provision:
CRIMINAL CONVICTIONS
Criminal convictions are taken very seriously by [Bettie Page.] We reserve the right to
disqualify any applicant for employment that has been convicted of a criminal offense.
Furthermore, conviction of a crime may result in automatic termination. [Bettie Page] will
make every effort to evaluate the nature and circumstances of the conviction. With
safety and well being of co-workers at stake, convicted employees may be subject to
appropriate disciplinary action, up to and including termination.
Johnson’s conviction was a misdemeanor DUI that occurred in 2005. Johnson was required to
attend classes on Thursday evenings as part of her probation. Johnson told Griffin that she
needed to have those evenings off to attend the classes, specifically mentioning that they were
DUI classes. Moreover, Griffin herself admitted to Johnson that she had spent 6 months in jail
in Georgia for involvement with crystal meth, although there is no evidence concerning whether
Griffin listed this conviction on her employment application. There is no evidence in the record
concerning how Bettie Page learned that Johnson had not listed the conviction on her
employment application. I do not read the “after-acquired” evidence cases as allowing an
employer to troll through an unlawfully discharged employee’s work record in search for
something that might serve to deprive the employee of reinstatement; to do so would allow the
employer to continue to subject the employee to negative employment consequences that the
employee would not have otherwise suffered had the employee not engaged in protected
activity and been unlawfully discharged.
Conclusions of Law
1. By discharging Vanessa Morris, Holli Thomas, and Brittany Johnson for engaging in
protected concerted activity Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By maintaining a rule that forbids employees from disclosing wages and
compensation to each other or to any third party Respondent violated Section 8(a)(1) and
Section 2(6) and (7) of the Act..
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent, having discriminatorily discharged
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employees, must offer them reinstatement and make them whole for any loss of earnings and
other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB
No. 8 (2010), enf. denied on other grounds sub. nom. Jackson Hospital Corp. v. NLRB, 647
F.3d 1137 (D.C. Cir. 2011).
The General Counsel seeks two additional remedies. For reasons that follow I grant
both of them. Section 10(c) of the Act gives the Board the power to devise remedies for unfair
labor practices that will “effectuate the policies of the Act.” The discriminatees here will receive
lump sum payments of backpay. This may result in higher State and Federal income taxes than
they would have paid had they not been unlawfully fired. To this extent the unlawfully
discharged employees will not have been made whole. To more fully remedy the violations
I have described above and therefore to more fully effectuate the policies of the Act, I shall order
Respondent to reimburse the unlawfully discharged employees for the amounts equal to the
difference in taxes they owe upon receipt of the lump sum payment and the amount of taxes
they would have owed had they not been unlawfully terminated. Next, the General Counsel
points out that the Social Security Administration generally credits backpay to an individual’s
earnings record in the year reported by the employer. Here the unlawfully discharged
employees will likely receive backpay several years after they were fired. In some cases this
may result in lower benefits or even the failure to qualify for any benefits due to a lack of the
required credits. Again, to the extent that this happens an unlawfully discharged employee will
not have been made whole for the unlawful discharge. Again, to more fully remedy the
violations I have described above and therefore to more fully effectuate the policies of the Act,
I shall order Respondent to complete the paperwork needed to properly notify the Social
Security Administration so that it may properly allocate the backpay to the appropriate periods.
Having found that Respondent maintained an unlawful rule in its handbook, I shall
require it to revise or rescind the unlawful rule and advise employees in writing that the rule has
been rescinded or revised.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.9
ORDER
The Respondent, Design Technology Group, LLC d/b/a Bettie Page Clothing and DTG
California Management, LLC, d/b/a Bettie Page Clothing, a single employer, San Francisco,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging in
protected concerted activity.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(b) Maintaining a rule that forbids employees from disclosing wages and
compensation to each other or to any third party.
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, revise or rescind the unlawful
rule and advise employees in writing that we have done so.
(b) Within 14 days from the date of the Board’s Order, offer Vanessa Morris, Holli
Thomas, and Brittany Johnson full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(c) Make Vanessa Morris, Holli Thomas, and Brittany Johnson whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not be used against them in any
way.
(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in San Francisco,
California, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since October 5, 2010.

10 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(g) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C., April 27, 2012.
____________________
William G. Kocol
Administrative Law Judge
JD(SF)–21–12
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected
concerted activity
WE WILL NOT maintain a rule that forbids employees from disclosing wages and compensation
to each other or to any third party
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of this Order, revise or rescind the unlawful rule and advise
employees in writing that we have done so.
WE WILL, within 14 days from the date of this Order, offer Vanessa Morris, Holli Thomas, and
Brittany Johnson full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Vanessa Morris, Holli Thomas, and Brittany Johnson whole for any loss of
earnings and other benefits resulting from their discharge, less any net interim earnings, plus
interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharges of Vanessa Morris, Holli Thomas, and Brittany Johnson, and WE WILL,
within 3 days thereafter, notify each of them in writing that this has been done and that the
discharges will not be used against them in any way.
JD(SF)–21–12
DESIGN TECHNOLOGY GROUP, LLC d/b/a
BETTIE PAGE CLOTHING and DTG CALIFORNIA
MANAGEMENT, LLC d/b/a BETTIE PAGE
CLOTHING, a Single Employer
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 415-356-5139.