Andronaco, Inc. d/b/a Andronaco Industries

National Labor Relations Board - Board Decisions

Nov 4, 2016

364 NLRB No. 142 (N.L.R.B. 2016)

364 NLRB No. 142
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Andronaco, Inc. d/b/a Andronaco Industries and
Lindsey Johnston. Case 07–CA–160286
November 4, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On April 20, 2016, Administrative Law Judge Sharon
Levinson Steckler issued the attached decision. The Re-
spondent and the General Counsel both filed exceptions
and supporting briefs, and the General Counsel filed an
answering brief to the Respondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions, to amend the remedy,2 and to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s dismissal of the
allegation that the Respondent violated Sec. 8(a)(1) by interrogating
employee Lindsey Johnston. Also in the absence of exceptions, we
adopt the judge’s findings that the Respondent violated Sec. 8(a)(1) by
maintaining several overly broad handbook rules regarding confidenti-
ality, solicitation and distribution, clothing restrictions, and email and
internet usage.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by discharging Johnston, we agree that, under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), the General Counsel met his initial burden and
that the Respondent failed to meet its rebuttal burden because its prof-
fered reasons for the discharge were pretextual. Regarding the General
Counsel’s initial burden of proving the existence of Johnston’s protect-
ed activity, we find it unnecessary to pass on the judge’s finding that
Johnston actually engaged in protected concerted activity. Instead, we
rely on her finding that the Respondent believed that Johnston engaged
in protected concerted activity by associating with and assisting a for-
mer coworker in his defense of an employment-related lawsuit filed
against him by the Respondent. See, e.g., Bowling Transportation,
Inc., 336 NLRB 393, 394 (2001), enfd. 352 F.3d 274 (6th Cir. 2003).
Chairman Pearce would adopt the judge’s additional finding that
Johnston engaged in protected concerted activity.
Unlike his colleagues, Member Miscimarra would decline to find
that the Respondent separately violated Sec. 8(a)(1) of the Act by tell-
ing Johnston that she was being terminated for disloyalty. “Merely
advising employees of the reason for their discharge is ‘part of the res
gestae of the unlawful termination, and is subsumed by that violation.’”
Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 9 fn. 2
(2014) (Member Miscimarra dissenting in part, citing former Chairman
Hurtgen’s partial dissent in Benesight, Inc., 337 NLRB 282, 285
(2001)), affd., 629 Fed.Appx. 33 (2d Cir. 2015).
adopt the recommended Order as modified and set forth
in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Andronaco, Inc. d/b/a Andronaco Indus-
tries, Kentwood, Michigan, its officers, agents, succes-
sors, and assigns shall
1. Cease and desist from
(a) Maintaining an overly broad handbook rule prohib-
iting “[d]isclosure of confidential Company infor-
mation.”
(b) Maintaining an overly broad handbook rule prohib-
iting solicitation “of any kind . . . in working areas” and
prohibiting distribution of “any and all non Company
literature.”
(c) Maintaining an overly broad handbook rule prohib-
iting employees from wearing clothing with words, slo-
gans, and/or pictures that may be offensive to other em-
ployees or guests.
(d) Maintaining an overly broad handbook rule regard-
ing internet and email usage that prohibits internet usage
during company time, defines “spam” to include solicita-
tions, prohibits emails including “copyright infringing
material,” and directs employees to report any emails in
violation of the rule to their supervisor and the company
president.
(e) Informing employees that they are disloyal to the
company for participating in protected concerted activi-
ties.
(f) Discharging employees because they engaged in
protected concerted activities.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

2 In accordance with our recent decision in King Soopers, 364 NLRB
No. 93 (2016), we amend the remedy to provide that the Respondent
shall compensate Lindsey Johnston for her search-for-work and interim
employment expenses regardless of whether those expenses exceed
interim earnings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). For the reasons stated in his separate opinion
in King Soopers, supra, slip op. at 9–16, Member Miscimarra would
adhere to the Board’s former approach, treating search-for-work and
interim employment expenses as an offset against interim earnings.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, and in accordance with our deci-
sion in Excel Container, Inc., 325 NLRB 17 (1997) (holding that the
contingent notice-mailing date in the order’s notice-posting paragraph
should correspond with the date of the earliest unfair labor practice).
We shall substitute a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Rescind the rules set forth in paragraphs 1(a)
through 1(d) of this Order, above.
(b) Furnish all employees with inserts for the current
employee handbook that (1) advise that the unlawful
provisions have been rescinded, or (2) provide lawfully
worded provisions on adhesive backing that will cover
the unlawful provisions; or publish and distribute to em-
ployees revised handbooks that (1) do not contain the
unlawful provisions, or (2) provide lawfully worded pro-
visions.
(c) Within 14 days from the date of this Order, offer
Lindsey Johnston full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(d) Make Lindsey Johnston whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, in the manner set forth in the remedy
section of the judge’s decision as amended by this deci-
sion.
(e) Compensate Lindsey Johnston for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Lindsey Johnston, and within 3 days thereafter, notify
Johnston in writing that this has been done and that the
discharge will not be used against her in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Kentwood, Michigan copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent and maintained

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if Respondent customarily com-
municates with employees through those means. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by Respondent at any time
since March 18, 2015.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. November 4, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 3
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain an overly broad handbook rule
prohibiting “[d]isclosure of confidential Company in-
formation.”
WE WILL NOT maintain an overly broad handbook rule
prohibiting solicitation “of any kind . . . in working are-
as” and prohibiting distribution of “any and all non
Company literature.”
WE WILL NOT maintain an overly broad handbook rule
prohibiting employees from wearing clothing with
words, slogans, and/or pictures that may be offensive to
other employees or guests.
WE WILL NOT maintain an overly broad handbook rule
regarding internet and email usage that prohibits internet
usage during company time, defines “spam” to include
solicitations, prohibits emails including “copyright in-
fringing material,” and directs employees to report any
emails in violation of the rule to their supervisor and the
company president.
WE WILL NOT tell you that you are disloyal to the com-
pany because you engaged in protected concerted activi-
ties.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unlawful rules described above.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful provi-
sions have been rescinded, or (2) provide lawfully word-
ed provisions on adhesive backing that will cover the
unlawful provisions; or WE WILL publish and distribute
revised employee handbooks that (1) do not contain the
unlawful provisions, or (2) provide lawfully worded pro-
visions.
WE WILL, within 14 days from the date of the Board’s
Order, offer Lindsey Johnston full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Lindsey Johnston whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest, plus reasona-
ble search-for-work and interim employment expenses.
WE WILL compensate Lindsey Johnston for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 7, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all reference to the unlaw-
ful discharge of Lindsey Johnston, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
ANDRONACO, INC. D/B/A ANDRONACO
INDUSTRIES
The Board’s decision can be found at
www.nlrb.gov/case/07–CA–160286 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Room 5011,
Washington, DC 20570, or by calling (202) 273–1940.
Colleen Carol, Esq., for the General Counsel.
Timothy J. Ryan, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
This case was tried before me in Grand Rapids, Michigan, on
March 3, 2016. Charging Party Lindsey Johnston (Johnston)
filed the charge against Respondent Andronaco, Inc. d/b/a An-
dronaco Industries (Respondent) on September 18, 2015,1 and
the General Counsel issued the complaint on November 24.
Respondent filed a timely answer on December 7.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by maintaining several overly broad hand-
book rules. These rules include disclosure of confidential com-
pany information, solicitation and distribution, dress code, and
an internet/email rule. Also alleged are two violations of Sec-
tion 8(a)(1): interrogating an employee about concerted activi-
ties; and accusing an employee of disloyalty because of pro-

1 All dates are in 2015 unless otherwise indicated.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tected concerted activities. Lastly, the complaint alleges that
Respondent terminated Johnston because she engaged in pro-
tected concerted activities. Respondent admits to maintaining
the rules and terminating Johnston, but denies any wrongful
conduct.
I find that the handbook rules and accusation of disloyalty
violate Section 8(a)(1). I do not find that Respondent violated
the Act by interrogating an employee. I ultimately find that
Johnston’s discharge also violated Section 8(a)(1).
The parties were given a full opportunity to participate in the
hearing, to introduce relevant evidence, to examine and cross-
examine witnesses, and to file briefs. On the entire record,
including my observation of the demeanor of the witnesses, and
after considering the briefs filed by General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT2
I. JURISDICTION
Respondent admits, and I find, that it has been a corporation
with an office and facility in Kentwood, Michigan and has been
engaged in the manufacture and nonretail sale of specialty sys-
tems for the pharmaceutical, chemical, steel, wastewater, and
energy markets. During the past 12 months, in conducting its
business, Respondent purchased and received at its Kentwood
facility, goods valued in excess of $50,000 directly from points
outside the State of Michigan.
II. BACKGROUND
Respondent maintains manufacturing facilities in Kentwood,
Michigan, and in France. Ron Andronaco is the owner and
chief executive officer (CEO). Kaila Schweda,3 the executive
assistant, worked as the human resources person from March
until mid-July. Cheryl Sarver took over the human resources
function in mid-July. Schweda reports to Scott Palmittier, the

2 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case. My findings of fact
encompass the credible testimony, evidence presented, and logical
inferences. The credibility analysis may rely upon a variety of factors,
including, but not limited to, the context of the witness testimony, the
weight of the respective evidence, established or admitted facts, inher-
ent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303,
303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing
Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any
witness are not likely to be an all-or-nothing determination and I may
believe that a witness testified credibly regarding one fact but not on
another. Daikichi Sushi, 335 NLRB at 622.
When there is a witness who may reasonably be assumed to be fa-
vorably disposed to the party, an adverse inference may be drawn re-
garding any factual question on which the witness is likely to have
knowledge. International Automated Machines, 285 NLRB 1122, 1123
(1987), enfd. 861 F.2d 720 (6th Cir. 1988). This is particularly true
where the witness is the Respondent’s agent. Roosevelt Memorial
Medical Center, 348 NLRB 1016, 1022 (2006).
3 Schweda married after the events in this matter. All relevant doc-
uments are signed in her maiden name instead of her married name.
chief financial officer (CFO), except when performing human
resources work. When performing HR work, Schweda reports
to CEO Andronaco.
Also reporting to Andronaco are CFO Palmittier, Plant Man-
ager Colin Cruttenden, and the director of engineering. (Tr.
195.)
III. HANDBOOK RULES
Respondent maintains a handbook for its employees. (GC
Exh. 2.) In Section IV, Employee Conduct, Part A, Employee
Conduct Subject to Discharge states that Respondent retains the
right to evaluate what employee conduct is disruptive. If Re-
spondent determines the conduct is unacceptable, it has the sole
right to give disciplinary action, up to and including termina-
tion. The rules at issue involve confidentiality, solicita-
tion/distribution, dress code, and internet and email usage.
A. Applicable Standard for Reviewing Rules
“In determining whether a work rule violates Section 8(a)(1),
the appropriate inquiry is whether the rule would reasonably
tend to chill employees in the exercise of their Section 7
rights.” Hyundai America Shipping Agency, 357 NLRB 860
(2011). “Where the rules are likely to have a chilling effect on
Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998)
(footnote omitted), enfd. 203 F.3d 52 (D.C. Cir. 1999). “In
determining whether a challenged rule is unlawful, the Board
must, however, give the rule a reasonable reading. It must re-
frain from reading particular phrases in isolation.” Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004).
If the rule explicitly restricts Section 7 rights, it is unlawful.
(Id. at 646.) If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would reasona-
bly construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7
rights.” (Id. at 647.) Ambiguous rules are construed against
the drafter of the rule. Flex Frac Logistics, LLC, 358 NLRB
1131, 1132 (2012), remanded on other grounds, 360 NLRB No.
120 (2014), enfd. 746 F.3d 205 (5th Cir. 2014).4
Here, none of the rules were promulgated in response to un-
ion activity or applied to restrict Section 7 rights. In addition,
Respondent presented no evidence regarding any rationale for
these rules. Therefore, all rules are examined to determine
whether an employee could reasonably construe the language to
prohibit Section 7 activities. Lily Transportation Corp., 362
NLRB No. 54 (2015).
B. Confidentiality
In the handbook’s Section IV A., Employee Conduct Subject

4 The first Flex Frac decision was issued by a Board panel whose
members included two persons whose appointments to the Board were
considered invalid. NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
Before Noel Canning issued, the United States Court of Appeals for the
Fifth Circuit enforced the Board’s Order and no question exists regard-
ing the validity of the court’s judgment. See Lily Transportation Corp.,
362 NLRB No. 54, slip op. at 1, fn. 2 (2015).
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 5
to Discharge (GC Exh. 2), Respondent’s rule provides a non-
exclusive list of employee offenses subject to termination. One
of the terminable offenses listed is: “Disclosure of confidential
Company information . . . .”
This particular rule violates Section 8(a)(1) of the Act. An
employer may legitimately require confidentiality rules in ap-
propriate circumstances. However, the employer must attempt
to minimize the impact of such a rule upon protected activity.
Boeing Co., 362 NLRB No. 195, slip op. at 1 (2015).
This rule does not define what confidentiality is. When the
rule fails to present “accompanying language that would tend to
restrict its application,” employees reasonably could assume
that protected concerted activities, such as discussing wages,
hours and terms and conditions of employment, are included in
the prohibition. Lily Transportation, 362 NLRB No. 54, slip
op. at 1 and fn. 3. Nothing in this rule minimizes the impact
upon employees’ Section 7 rights and therefore Respondent’s
rule violates Section 8(a)(1).
C. Solicitation/Distribution Rule
Section IV, Part B, Solicitation and Distribution, states:
No employee solicitation of any kind is permitted in working
areas of the Company. In addition, the distribution of any and
all non Company literature is prohibited.
Solicitation and distribution are not the same in the legal
sense. Traditionally “solicitation and distribution of literature or
different organizational techniques and their implementation
pose[d] different problems both for the employer and for em-
ployees.” Stoddard-Quirk Mfg. Co., 138 NLRB 615, 619
(1962) (emphasis in original). Solicitation is viewed as an oral
request; distribution is considered handing out literature. (Id. at
617–618.) Because of the difference in legal concepts, the
solicitation sentence is analyzed separately from the distribu-
tion sentence.
An employee may solicit for Section 7 concerns outside of
working hours. Cooper Tire & Rubber Co. v. NLRB, 957 F.2d
1245, 1249, reh’g denied 968 F.2d 18 (5th Cir. 1992), cert.
denied 506 U.S. 985 (1992). Rules prohibiting solicitation
during working time are presumptively lawful because “. . . that
term denotes periods when employees are performing actual
job duties, periods which do not include the employee’s own
time such as lunch and break periods.” Our Way, 268 NLRB
394, 394–395 (1983).
An employer may ban solicitation in working areas during
working time; however, the ban cannot be extended to working
areas during nonworking time. UPS Supply Chain Solutions,
Inc., 357 NLRB 1295, 1296 (2011). A solicitation rule is pre-
sumptively invalid when solicitation is prohibited during the
employee’s own time. Our Way, 268 NLRB at 394.
Respondent’s no-solicitation rule prohibits solicitation in the
working areas of the company, without regard to whether em-
ployees are taking breaks in the area. Because the rule does not
extend to nonworking time in work areas, the solicitation rule is
overly broad and violates Section 8(a)(1). UPS Supply Chain,
supra.
The distribution portion of the rule also is overly broad. A
rule that prohibits distribution literature on employees’ own
time and in nonworking areas is presumptively invalid. Id.,
citing TeleTech Holdings, Inc., 333 NLRB 402, 403 (2001). In
Trus Joist MacMillan, 341 NLRB 369, 372 (2004), a rule that
prohibited distribution of literature in all working areas and all
areas of plant property violated Section 8(a)(1). At this point,
Respondent must show that the rule was communicated or ap-
plied the rule to convey “a clear intent to permit distribution of
literature in nonworking areas during nonworking time.” Trus
Joist MacMillan, 341 NLRB at 372, citing Ichikoh Mfg., 312
NLRB 1022 (1993), enfd. 41 F.3d 1507 (6th Cir. 1994).
Respondent’s distribution rule prohibits distribution of any
literature, at any time, at any place, unless it is Respondent’s
literature. It has no exception for distribution in break areas or
on the employees’ own time. As Respondent provided no evi-
dence of any attempts to clarify this rule or show it permitted
distribution in nonworking areas during nonworking time, em-
ployees could reasonably construe the language to prohibit all
permissible distribution of Section 7 materials.
D. Dress Code
Respondent’s Dress Code for Shop Employees, Section V,
Part H, includes dress codes separately for shop employees and
nonshop employees. However, both dress codes include the
following language:
As per our policy, clothing with words, slogans and/or pic-
tures that may be offensive to other employees or guests of
the company may not be worn. We are all concerned about
our team members’ personal comfort while working, but un-
derstandably, we are all concerned about, and must give pref-
erence to, personal safety.
The Dress Code restrictions are impermissibly broad. Under
Section 7 of the Act, employees have the right to wear and
display union insignia while at work. Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 801–803 (1945). Insignia related to
Section 7 rights are necessarily included. “The test is whether
the insignia prohibition reasonably tends to interfere with the
free exercise of employee rights under the Act.” Lily Transpor-
tation Corp., 362 NLRB No. 54, slip op. at 6 (2014), quoting,
inter alia, St. Luke’s Hospital, 314 NLRB 434 fn. 4 (1994).
When restricting employees’ dress, a rule that limits employ-
ees’ Section 7 rights must be narrowly tailored to the circum-
stances. Boch Honda, 362 NLRB No. 83, slip op. at 2 (2015).
Respondent has the burden of proof to show that special cir-
cumstances permit the restrictions and that the rule is narrowly
tailored to those special circumstances. W San Diego, 348
NLRB 372 (2006) (special circumstances demonstrated to limit
wearing union pins if in the hotel’s public areas, but not while
in private areas of the property). Circumstances that could justi-
fy dress code restrictions include jeopardizing employee safety,
potential damage to machinery or products, exacerbation of
employee conflicts, or unreasonably interfering with the Re-
spondent’s public image. Lily Transportation, 362 NLRB No.
54, slip op. at 6, and cases cited therein.
Although the two dress codes differentiate between office
workers and line workers, both apply the same restrictions on
content. Respondent’s rule is directed towards the possibility
of offending someone. Although the rule cites safety concerns,
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
none are apparent from the face of the rule and Respondent
presented no supportive evidence to show such concerns. Re-
spondent also does not demonstrate that any conflicts existed
between employees or any interference with Respondent’s im-
age. Respondent presents no information about employees in
the public eye, where a restriction on message might be valid,
versus those working in production, where a restriction on mes-
sage is likely invalid.
The dress code is not narrowly tailored and is broadly ap-
plied. An employee reasonably would consider that the dress
code prohibited messages about a union or other protected con-
certed statements. The rule therefore is overly broad and vio-
lates Section 8(a)(1) of the Act. Boch Honda, 362 NLRB No.
83, slip op. at 2.
E. Internet/Email Rule
Respondent’s internet and email use policy, in relevant part,
states:
As the use of the internet and email becomes a great business
tool for our company it can also be a potential threat to the
company. It can lead to system viruses, legal liabilities, confi-
dentiality breaches, lost productivity, and network congestion
and could cause damage to our reputation. Because of this we
are instituting written corporate rules and guidelines on the
use of the organization’s email and internet systems.
1. Internet use is strictly limited to business during business
hours. The company will allow you to use the internet when
you are not on company time (before or after work or on your
lunch period). However, you are prohibited from visiting
sites which are offensive about race, gender, age, sexual ori-
entation, pornography, religious or political beliefs, national
origin or disability and downloading data or signing up on
websites that would cause spam (solicitations) to be sent to
our systems.
2. Email use is strictly limited to business use and should
always be written in a professional manner. The company
will allow you personal use of the email system for brief
communications between work and your home or in the case
of ·personal emergencies. You are strictly prohibited from
creating or distributing any offensive, or disruptive messages,
including messages containing offensive comments about
race, gender, age, sexual orientation, pornography, religious
or political beliefs, national origin, disability or copyright in-
fringing material.
3. Reporting. If you should receive any emails with any of
the above content you should report the matter to your super-
visor immediately. You should also write the alleged act im-
mediately (within 24 hours) and give a copy to the company
President.
By publishing these rules, Respondent has put in issue
whether employees have access to the internet and email. Re-
spondent did not contend that employees do not have access to
the computer systems. Employee Johnston had access to her
personal email during this time. Johnston also had a company
email address.
1. Internet rule
Regarding internet access, the test is whether an employee
would reasonably interpret the rule to encompass protected
activities. Triple Play Sports Bar & Grille, 361 NLRB No. 31,
slip op. at 6 (2014). I find three particular areas in which em-
ployees could not reasonably discern whether their Section 7
rights were undermined. However, the portion of the list ad-
dressing limiting access to offensive sites, including political
sites, appears lawful.
First, regarding the unlawful areas, the rule would be confus-
ing to an employee because it states that employee cannot use
the internet on company time, then parenthetically defines non-
company time as before or after work or during lunch. It says
nothing about breaks. The rule does not identify working time,
which is lawful, instead of company time, which is unlawful.
Because an employee reasonably would not know when access
to the internet would be permissible, the rule is overly broad.
Secondly, the rule defines “spam” as solicitations. The ref-
erence to solicitations is troublesome. One man’s spam is an-
other man’s updates promoting employees’ Section 7 rights and
encouraging participation in those activities.
Because the term “solicitation” is not defined further, Sec-
tion 7 information and activities are included as spam. Re-
spondent provided no evidence of special circumstances to
support this restriction. As employees are permitting internet
access and Respondent provides no evidence of special circum-
stances, the spam restriction and its definition as solicitation are
overly broad. UPMC, 362 NLRB No. 191, slip op. at 4–5
(2015).
Thirdly, the internet rule also limits usage by “copyright in-
fringement.” In UPMC, 362 NLRB No. 191, slip op. at 2 fn. 5
and at 25, and cases cited there, provisions that prohibited
employees from using Respondent’s trademarks, or post copy-
righted information in documents containing its name, trade-
mark, or logo, on any personal blogs or other online sites, were
overbroad. The restriction on copyright infringement also vio-
lates the Act.
The list of offensive sites is otherwise lawful. Respondent
cites to Palms Hotel & Casino, 344 NLRB 1363 (2005). The
rule in that case banned employee conduct that had the effect of
being “injurious, offensive, threatening, intimidating, coercing
or interfering with team Members or patrons.” Id. at 1367–
1368. That case further provided a reminder not to read the
rule without context. I concur. Because the term “offensive” is
further defined by a list that generally does not interfere with
Section 7 rights, this particular portion of the rule did not vio-
late Section 8(a)(1).
2. Email rule
Email systems usage is not treated as just solicitation or dis-
tribution due to their unique features. It may defy classification
as a work or nonwork area. Employees who have “rightful”
access to their employer’s email system for work purposes also
have the right to use that system for Section 7 communications
during nonworking time. Purple Communications, 361 NLRB
No. 126, slip op. at 14 (2014).
To rebut the presumption that employees have a right to ac-
cess the employer’s email system during nonworking time, an
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 7
employer justifies restricting these rights by demonstrating that
special circumstances are necessary to maintain production or
discipline. The employer’s restrictions should be based upon
the nature of its business. The restrictions also should be nar-
rowly tailored to meet the employer’s special circumstances
and still balance with employees’ Section 7 rights. Further, the
restriction must be uniform and consistently enforced. Purple
Communications, supra.
Respondent’s limitations upon email usage are overly broad.
The limitations give personal use only for emergencies. An
employee would not reasonably know that he could use email
during nonworking times for Section 7 communications. Re-
spondent presents no special circumstances to limit use to per-
sonal emergencies only. Therefore, the email rule violates
Section 8(a)(1).
3. Reporting requirement
Because the email and internet sections are unlawful, the re-
porting requirement also is unlawful. UPMC, 362 NLRB No.
191, slip op. at 5. In UPMC, the reporting requirement was
even more narrow—limited to solicitation from an email. Be-
cause the rules already could reasonably be interpreted to limit
Section 7 activities, requiring employees to report such activity
also infringes upon their Section 7 rights and violates Section
8(a)(1). (Id.)5
IV. JOHNSTON’S TERMINATION AND ALLEGED
SECTION 8(A)(1) STATEMENTS
Johnston, an administrative assistant and receptionist, was
terminated on August 14. She was supervised by Schweda, the
executive assistant who also completed accounts payable and
sometimes filled in as human resources director. Johnston
began working for Respondent in December 2012. Johnston’s
duties included sitting at the reception desk, greeting people as
they arrived, answering the telephone and entering data for bills
and accounts receivable. She also maintained a stock of office
supplies.
A. Johnston in the Middle Between Respondent and Former
Employee Nate Barrett
During the spring and summer of 2015, Johnston planned her
wedding. She asked another employee, Nate Barrett, to assist
her with the invitations. Barrett worked for Respondent from
October 2011 until his resignation, effective May 29. (Tr. 28.)
At the time he left employment there, he worked in graphic
design and information technology (IT). He was supervised by
Rick Vining. (Tr. 28.)
Johnston testified without contradiction that, after Barrett left
employment, Vining asked her several times if she was still in
touch with Barrett. Johnston learned that Barrett had not re-
ceived his last paycheck. At some point, Vining told Johnston
to text Barrett about the paycheck. Johnston could not recall
exactly when Vining told her to text Barrett about his final
check.
Barrett testified without contradiction that Vining repeatedly
contacted him in June and July. The problems with the last

5 If Respondent promulgates a lawful policy, the reporting require-
ment would then be lawful. UMPC, supra, slip op. at 5 fn. 14.
paycheck arose because of events on Barrett’s next to last day
of work. Barrett maintained that, in 2014, another IT employee
told him the salaries and wages of other employees, including
CEO Andronaco and Schweda. On May 24, Barrett told anoth-
er employee, Scott Cascaden, about wage information he said
he received from another IT employee in the previous year.
The information included Cascaden’s own wages, but Barrett
denied having any documentation.6 Cascaden immediately
reported the conversation to his supervisor, who then told An-
dronaco. That same day, Andronaco called Barrett into his
office. With Vining, Schweda and Plant Manager Colin
Cruttenden present, Andronaco questioned him about whether
he had access to the administrative password to obtain such
confidential information. (Tr. 179–180.) Barrett denied having
any other information, including the password. Andronaco
demanded that he sign an affidavit saying so, but Barrett de-
clined. (Tr. 182.) When Barrett was no longer employed by
Respondent, Vining telephoned him again and again about the
other discussions of wages and asking for an affidavit. Barrett
declined to do so.
On July 21, almost 2 months after he left Respondent’s em-
ploy, Barrett, by email, contacted Schweda and Johnston about
trying to make arrangements to receive his final paycheck. He
requested that the paycheck be mailed to him due to his work
schedule. An email exchange ensued between Schweda and
Barrett, but excluded Johnston. Schweda, by email, said that he
needed to come in to the office to sign a release. Barrett replied
to Schweda that he contacted the Michigan Department of La-
bor, which informed him that he was not required to sign any
documents to receive his final paycheck. Schweda advised
Barrett that he violated Respondent’s confidentiality agreement
and Respondent had the right to pursue legal action against
him. Schweda again insisted that Barrett needed to come to the
office to obtain his check and Respondent would be flexible in
scheduling with him. (GC Exh. 4.) Instead of continuing the
discussion with Schweda, on July 21, Barrett filed a final
paycheck recovery charge against Respondent with Michigan’s
Labor department, Wage and Hour division. (GC Exh. 5.)7
On about August 7, Respondent filed a lawsuit and demand-
ed injunctive relief against Barrett. (GC Exh. 7.) The suit
maintained that Barrett violated Respondent’s confidentiality
agreement and specified Barrett had wage information for Re-
spondent’s employees.8 Notably, the suit maintained irrepara-
ble harm would come from release of wage information “when
disclosed to other employees.” Barrett testified he was served
after August 7, but probably no later than August 13. He fur-
ther testified that he “probably” told two people about the suit:

6 Respondent, using Barrett’s words, says the discussion with Cas-
caden was “water cooler talk.” However, Barrett’s terminology does
not bind me to that legal conclusion.
7 On July 22, Barrett also filed an unfair labor practice charge, alleg-
ing Respondent maintained and enforced rules that prohibited employ-
ees from discussing wages.
8 Barrett filed a second unfair labor practice charge, alleging Re-
spondent’s action was filed in retaliation for discussing wages. Both
charges were withdrawn when the lawsuit was settled and Barrett
signed an affidavit.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Johnston and another employee, Robert Zurida.9
B. Johnston Returns from Her Honeymoon and Learns
Respondent is Suing Barrett
Johnston was married on Friday, July 31. Andronaco and the
CFO granted her request to take off 3 additional days after her
wedding and she returned to work the following Thursday.
After Johnston returned from her honeymoon and returned to
work, Barrett sent Johnston a text message, stating that Re-
spondent was suing him. Respondent’s documentation shows
that on Friday, August 7, Johnston approached Vining, Bar-
rett’s former supervisor, and asked him if he knew what was
happening with Barrett. According to Schweda’s subsequent
email, Johnston apparently told Vining she was upset about the
suit, was thinking about quitting, and said she would call Bar-
rett that night to find out what was happening. (GC Exh. 11.)
According to Johnston, on about August 12, Vining asked
Johnston, while she was working at the front desk, if she spoke
with Barrett. She said she had. According to Johnston, Vining
asked if she knew what was going on with Barrett and Re-
spondent. She said Barrett told her something and it was above
her head. Vining said ok and walked into Andronaco’s office.
Johnston also admitted, during cross-examination, that she
asked Vining whether she could take Barrett’s check to him.
At some point, Johnston said she thought Barrett was in trouble
for discussing wages. (Tr. 109.)
According to Schweda, Vining told her that Johnston was
“gossiping.” Schweda’s email notes, dated August 18, state:
Vining approached [Johnston] on Monday, August 10th to
find out how she was in contact with Nate. [Johnston] said
Nate asked her to meet up with him for drinks. She was with
her mother at the time [on] the phone and her mother advised
her NOT to meet up with Nate. Lindsey was no longer mad
at Andronaco Industries and changed her mind about her de-
sire to quit.
(GC Exh. 11.)
C. Respondent Decides to Terminate Johnston
On August 12 or 13, Schweda and Human Resources Man-
ager Sarver spoke with Andronaco about reasons to terminate
Johnston. In his testimony, Andronaco said that gossiping was
one of the reasons Schweda and Sarver gave him to justify
terminating Johnston. Andronaco said other reasons included
working on personal items at work, not showing up on time,
and absenteeism, although he said these may have not been all
the reasons. (Tr. 194.) Schweda’s testimony did not mention
that she discussed the termination with Andronaco and Human
Resources Manager Sarver was not called to testify.

9 General Counsel contends that Respondent’s treatment of Barrett
as well as another employee, Zurida, also shows animus. Zurida is a
long-time friend of Barrett who also worked for Respondent until the
same week as Johnston. Zurida testified he was fired for talking about
Barrett’s lawsuit, which Respondent disputes. Without deciding
whether Respondent terminated Zurida, I agree with General Counsel
that Respondent’s discussions with Zurida show Respondent was in-
tensely concerned whether Barrett released information about pay and
whether other employees learned of the suit.
Although Sarver and Schweda intended to terminate John-
ston at the end of the work day on August 14, other circum-
stances intervened. Johnston, who was aware she had attend-
ance issues, asked Sarver if she could leave early because her
grandfather was dying. Sarver said she would check with
Schweda because Schweda was her supervisor. Johnston re-
turned to her post at the front desk. Sarver and Schweda then
decided to terminate Johnston earlier in the day so she could
leave.
Johnston testified that Sarver called Johnston back to her of-
fice. Schweda was present. According to Johnston, Schweda
said that they knew she was talking with Nate Barrett and
“[W]e can’t trust your loyalty with the Company. We’re going
to have to let you go.” (Tr. 87.) Schweda stated she “maybe”
said something about loyalty and then denied it. Johnston pro-
tested that she told Vining that she did not know anything about
it and did not want to talk about it at work.
Sarver then said, “Well, there may be performance-based is-
sues leading up to this as well.” Johnston denied the problems
and pointed out she had just added her husband to her benefits.
Neither Schweda nor Sarver said anything. Johnston said,
“What do I do now?” Sarver said she would take her back to
the front desk to collect her belongings and walk her to the time
clock.
Schweda testified that, after Johnston came to the office,
Schweda started the conversation. Schweda told her that they
intended to terminate her at the end of the day, but because
Johnston needed to be with her family, they were terminating
her at that time. Schweda said, “I understand you’ve been gos-
siping about a lawsuit. That’s not ok. You know, we can’t
trust you. We’ve had trust issues in the past. This just is kind
of one more thing.” Johnston started crying. Schweda said
Johnston then asked if it was because of what she said to Rick
Vining or because she was friends with Barrett. Sarver said she
was not terminated because she was friends with Nate, but be-
cause of consistently bad performance. Schweda testified,
because Johnston was crying, she never reached the perfor-
mance issues, including that Johnston was working on personal
work during working time. Schweda also testified that she
maybe used a term like “disloyal” but then denied it. (Tr. 154.)
However, her email report of the termination, dated August 18,
reported that, because of Johnston’s involvement with Barrett’s
suit:
[S]he lost our trust and we didn’t feel that she was loyal to the
company. We felt that she was acting as an advocate for Nate
and attempting to get information out of Rick Vining to pass
along to Nate. Lindsey should have contacted a supervisor
and/or Ron Andronaco when Nate contacted her regarding
this issue, rather than trying to get information from Rick Vin-
ing.
(GC Exh. 11.)
D. Respondent Contends Johnston Was Terminated Due to
Performance Issues
Schweda testified that she had been trying to get Johnston
fired for a year due to attendance and performance issues.
Johnston had attendance problems in 2014 and 2015. For ex-
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 9
ample, Johnston did not come to work because, post-tornado,
she had to clean up the flooded basement and caved-in roof of
the house where she lived and the following day could not go to
work because the cars were blocked. On July 8, 2014,
Schweda, by email, documented that she discussed the attend-
ance issue with Johnston. Schweda concluded: “This meeting
was not to tell Lindsey it was her last straw. It was to reiterate
how important her position is and to ask that she makes being
at work more of a priority.” (R. Exh. 1.)
In January 2015, Schweda started a list of brief anecdotal
notes on Johnston’s conduct. The first anecdotal note reflects
that Johnston did not punch out on January 6. Johnston re-
ceived no discipline.
The attendance and performance concerns were noted in
Johnston’s performance reviews. For her last performance
appraisal, dated February 19, Schweda marked Johnson as
“poor” on willingness to take more responsibility as well as
reliability. The reliability marks were due to attendance prob-
lems. Schweda rated Johnston as average in skill in planning
and organizing, related to personal work, communication and
adeptness at analyzing facts and problem-solving. She received
“exceeded” rating for possessing the knowledge and skill to
perform work, which included a comment about “great person-
ality.” She also had “exceeded” ratings for keeping work area
clean and “consistently produces product that meets the com-
pany’s high quality standards.” None of the categories were
marked at the highest level, outstanding. At the conclusion of
the appraisal, Schweda noted that Johnston needed to improve
her attendance and “no personal matters on business time.” (R.
Exh. 5.)
In late winter or early spring of 2015, Respondent permitted
Johnston to use leave for family issues without any conse-
quences to her attendance requirements. On May 1, the anecdo-
tal notes reflect that Schweda gave Johnston an email “friendly
reminder” about forgetting to clock in and out.
In May, Andronaco gave Johnston an additional raise. An-
dronaco called Johnston into his office after discovering her
resume on the internet. He asked what the company could do
to keep her there. She replied that she had no further responsi-
bilities coming to her and she thought she had hit a plateau.
Andronaco told her to let him know what he could do. After
lunch, Johnston returned to Andronaco’s office and asked for a
raise, which she received. Her pay went from $13 to $14.50
per hour. (Tr. 77–78; GC Exh. 10.)
Schweda testified that she told Andronaco she did not agree
with the pay raise. She further testified that Andronaco said he
gave the raise because, if Johnston left, Schweda would need to
perform additional duties.
After she received her raise in May, Johnston also received
discussions about her conduct. On June 5, she received a warn-
ing for failing to clock in. (R. Exh. 2.) On another occasion,
Johnston parked her car by the front entrance, ran in and
clocked in, and then parked her car. Plant Manager Cruttenden
observed Johnston and discussed her conduct with her. Had
Johnston parked in the first place where she should have before
she clocked in, she would have been tardy. Schweda made an
anecdotal note of the incident.
Within 2 weeks before her wedding, Johnston had two visi-
tors at her reception area. The first visitor, on July 17, was a
former employee who Johnston hired to be her wedding vide-
ographer. Plant Manager Cruttendon recognized the former
employee at Johnston’s reception desk and estimated he was
present for 20 to 30 minutes. On the same day, Cruttendon told
Johnston that she needed to limit her nonwork business and get
back to work. Schweda entered a note to her anecdotal list.
On July 23, Cruttendon and Schweda saw that Johnston had
another guest at her reception desk for approximately 30
minutes. Johnston said the visitor was her sister-in-law, who
was trying to sell cleaning services.
On July 28, Schweda spoke with Johnston about have more
than one personal visitor per week and clocking in early. Re-
garding clocking in early, Johnston received 30 minutes of
unapproved overtime. (R. Exh. 3.)10 However, Schweda did
not discipline Johnston.
Respondent also contends that Johnston’s conduct of August
12 was the proverbial straw that broke the camel’s back. On
August 12, Johnston worked on a single-spaced document on
her computer screen in the computer program Word. The let-
ter, to a bridal dress company, discussed Johnston’s problems
with receiving her wedding dresses and inconveniences to her-
self and the bridesmaids. Johnston contended that she wrote
the letter on about August 11, emailed the letter to her mother
on August 11 or during her lunch hour on August 12. Her
mother supposedly emailed back the letter with a few changes.
Johnston said she saved her letter to the work computer on
August 12.
Walking by Johnston’s work area several times during the
day to deal with invoices and paperwork related to her position,
Schweda saw a long document on Johnston’s computer screen.
Although Schweda could not precisely discern what the docu-
ment was, she noticed that Johnston was working on the letter
instead of her assignment, matching purchase orders to a stack
of invoices. Schweda spoke with Cheryl Sarver, who was new
to the organization. They agreed that the proper course of ac-
tion was to terminate Johnston on August 13. Schweda testi-
fied that the letter, which she did not see until after Johnston
was terminated, was the “last straw.”
On the day of hearing, Respondent instructed Vining to
search Johnston’s Word and email files. Vining then presented
at hearing documents that reflect that Johnston’s mother did not
send an email to her that day. It also reflects that, on August
12, the bridal dress company sent Johnston an email asking for
a recommendation. (R. Exh. 11.)
E. Analysis
In examining the situation here, I will first discuss the credi-
bility of witnesses, the alleged 8(a)(1) violations, and then
Johnston’s termination itself.
1. Credibility of the witnesses
Johnston denied that Schweda was her supervisor. Regard-

10 Johnston hedged on whether Schweda spoke with her on July 28.
Johnston then testified she was never told that overtime needed to be
pre-approved and she did not think a half-hour of overtime would be an
issue because of her attendance problems. (Tr. 115–116.) I credit
Schweda and the email.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing the four-page letter, Johnston testified it came from her
mother, almost completed, and she worked very little on it over
the two days. However, the documents Respondent provided
showed Johnston received the letter from the bridal company
and not from her mother. The computer history of documents
also showed that Johnston made some changes in the letter, but
the search does not show what changes were made.
On the other hand, Schweda testified credibly about the ter-
mination interview in which she first said Johnston was “gos-
siping.” Schweda’s notes in (GC Exh. 11) all turn upon John-
ston’s interest in Respondent’s suit against Barrett as well as
Respondent’s interest in what Johnston knew.
I also credit that Schweda sincerely wanted to terminate
Johnston all year. Her tone of voice was consistent with her
frustration with Johnston’s conduct. Respondent did not ask
Vining any questions about his role in reporting his conversa-
tions with Johnston to Andronaco and I must assume that his
testimony would not support Respondent’s cause.
General Counsel points out that Schweda’s documentation
regarding the August 7 conversation between Vining and John-
ston is not likely as the suit was not filed until August 7 and
Barrett received service sometime thereafter. In addition, no
one testified about that conversation and that, as a result, the
conversation likely did not take place. (GC Br. at 8, fn. 5.)
Vining, who was called to discuss other issues, was not asked
anything about speaking with Barrett or Johnston. I agree that
the conversation was unlikely, yet the documentation demon-
strates animus, as discussed below.
Andronaco testified that he was concerned that Barrett had
access to confidential information but unconcerned about the
wage information. Andronaco’s voice became a little steely
when he denied that the lawsuit was related to discussion of
wages. Andronaco’s denial is also undermined by the contents
of the pleadings in Respondent’s suit, which discussed for
about a page that the confidential information allegedly ac-
cessed included wages, salaries, and bonuses.
I cannot credit Andronaco regarding the discussion with
Schweda and the list of reasons for terminating Johnston. First,
Schweda intimated that she and Sarver were solely responsible
for deciding to terminate Johnston, but Andronaco himself said
they presented reasons for termination. As Vining did not testi-
fy regarding his conversations with Johnston, he did not deny
that immediately after questioning Johnston, he went to An-
dronaco’s office. Further, despite Schweda’s protest about
Johnston’s performance problems, Andronaco gave Johnston a
raise only 3 months before her termination. However, when the
lawsuit coincidentally was at issue, he agreed to terminate
Johnston. In contradiction to the testimony provided by
Schweda and Andronaco, Schweda’s email notes, dated August
18, also only discuss what was relevant to Johnston’s involve-
ment with Barrett’s suit and nothing about her performance
issues.
2. Analysis of alleged 8(a)(1) violations: interrogation and dis-
loyalty
Respondent contends that the alleged interrogation was not
included in the charge and therefore not a matter of the hearing.
General Counsel contends that the statement is included in the
facts leading up to Johnston’s termination, making the state-
ment closely related to the termination and therefore properly
included.
a. 8(a)(1) allegations are properly included in
the complaint
Respondent contends the 8(a)(1) allegations are not properly
included in the complaint because they were not included in the
charge. Respondent relies upon Nickles Bakery of Indiana, 296
NLRB 927 (1989). To be properly litigated, the complaint
allegation should “be related to and arise out of the same situa-
tion as the conduct alleged to be unlawful in the underlying
charge, although it need not be limited to the specific violations
alleged in the charge.” (Id.) To be considered if not specifical-
ly in the charge, 8(a)(1) complaint allegations must be closely
related to the allegations or subject matter in the underlying
charge. (Id. at 929.)
The facts here are closely related to the allegations and sub-
ject matter of Johnston’s termination. The alleged interrogation
led up to Johnston’s termination; the statement of disloyalty
occurred during the termination itself. Both are closely related
and part of the subject matter of the termination. Therefore, I
will determine whether these allegations violated Section
8(a)(1).
b. Interrogation
Respondent’s own documentation (GC Exh. 11) shows Vin-
ing’s alleged conversation for August 10 with Johnston. John-
ston reported a somewhat similar conversation on August 12. I
rely upon Respondent’s presentations of Vining’s August 10
questioning of Johnston, rather than Johnston’s version. John-
ston’s version was somewhat vague.
Questioning an employee turns into a Section 8(a)(1) inter-
rogation violation when “under all of the circumstances the
interrogation reasonably tends to restrain, coerce, or interfere
with” Section 7 rights. Rossmore House, 269 NLRB 1176,
1177 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). Among the factors that may be consid-
ered are the background of the questioning, the position of the
questioner within the employer’s hierarchy, the place and
method of questioning, the nature of the information sought,
and the truthfulness of the employee’s reply. See Holiday Inn-
JFK Airport, 348 NLRB 1, 4 (2006). Other factors include
whether the employer gives assurances against reprisal or pro-
vides a reason for questioning the employee. (Id.) See generally
Bourne Co. v. NLRB, 332 F.2d 47, 48 (2nd Cir. 1964) (setting
forth relevant factors for determining if questioning is coer-
cive). Respondent contends that Johnston did not find the con-
versation coercive and therefore the questioning was lawful.
However, the standard is not subjective but objective.
The background of this particular questioning is part of a se-
ries in which Vining questioned Johnston about whether she
was still in touch with Barrett throughout the summer of 2015.
Vining was not Johnston’s own supervisor. Vining, as usual,
questioned Johnston at her work station. The information Vin-
ing sought was about “how” Johnston was keeping in touch
with Barrett. Johnston replied honestly, particularly regarding
whether she intended to meet Barrett for drinks. Vining appar-
ently gave no reasons for his questioning and gave no assuranc-
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 11
es against reprisal. Although Respondent’s failure to give rea-
sons or assurances support finding coercive interrogation, the
remainder of the factors support a finding that it was not coer-
cive. I therefore recommend dismissal of the allegation of in-
terrogation.
c. The accusation of disloyalty in Johnston’s
termination meeting
I find that the accusation of disloyalty violated Section
8(a)(1). Schweda vascillated on whether she called Johnston
“disloyal” during the termination meeting. I do not credit
Schweda’s ultimate denial.
Statements equating protected activity with disloyalty are
generally evaluated with an employer’s unlawful interference
and coercion related to protected rights. Carrier Corp., 336
NLRB 1141, 1148 (2001), and cases cited therein; Ferguson-
Williams, Inc., 322 NLRB 695, 699 (1996). As discussed in
more detail below, I find that Johnston was engaged in protect-
ed concerted activities, or perceived to be so, and stated that
someone is disloyal for doing so violates the Act.
3. Analysis of Johnston’s termination
a. Parties’ positions
General Counsel contends that Respondent terminated John-
ston as a pre-emptive strike, consistent with Parexel Int’l, LLC,
356 NLRB 516 (2011). Respondent knew about Johnston’s
relationship with Barrett and used her as a pawn to retaliate
against Barrett and remove “a potential source of future pro-
tected concerted activity.” (GC Br. at 15), citing Amptech, Inc.,
341 NLRB 1131, 1133 (2004), Dawson Carbide Industries,
273 NLRB 382, 389 (1984), and Parexel, supra).
Respondent contends that Barrett was not engaged in pro-
tected activities and instead was sued for possible conversion of
confidential materials; his activities with Johnston therefore
were not protected. Respondent characterizes the relationships
as a game of leap frog because Barrett was not involved in
protected concerted activity and Respondent’s focus was that
he had unauthorized access to the computer system, not be-
cause Barrett told Cascaden he knew about wages.11
Regarding Respondent’s concerns that a confidential em-
ployee possibly released confidential information, which was
not concerted activity, Respondent cites Joseph Schlitz Brewing
Co., 211 NLRB 799 (1974). It also references Flex Frac Logis-
tics, LLC, 360 NLRB No. 120 (2014). Respondent further
maintains that Johnston historically was a poor worker and she
was ultimately terminated due to her activities of August 12—
working on a personal letter.

11 Respondent contends that because the complaint did not specify
General Counsel’s theory about Johnston’s protected concerted activity,
particularly her relationship with Barrett, it cannot be litigated. Re-
spondent primarily relies upon two cases: George Banta v. NLRB, 686
F.2d 10, 17 (D.C. Cir. 1982), cert. denied 460 U.S. 1082 (1983); and,
United Parcel Service Inc. v. NLRB, 706 F.2d 972 (3rd Cir. 1983). The
standard is stated in Banta: The Board is precluded from making find-
ings and orders if the alleged violations are not in the complaint “or
litigat[ed] in the subsequent hearing.” Id. at 17 (internal quotes and
citations omitted). The “Barrett connection” was fully litigated in the
hearing.
b. Applicable law
Terminating an employee for protected concerted activity is
unlawful. Citizens Investment Services Corp. v. NLRB, 430
F.3d 1195, 1197 (D.C. Cir. 2005), enfg. 342 NLRB 316 (2004).
Where arguably more than one motive exists for discharge, the
mixed motive analysis is applied. The analysis is set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Under Wright Line, the General Counsel must
first demonstrate, by a preponderance of the evidence, that the
worker’s protected conduct was a motivating factor in the ad-
verse action. The General Counsel satisfies this initial burden
by showing: (1) the individual’s protected activity; (2) employ-
er knowledge of such activity; and (3) animus. If the General
Counsel meets his initial burden, the burden shifts to the em-
ployer to prove that it would have taken the adverse action,
even absent the protected activity. See, e.g., Mesker Door, 357
NLRB 591, 592 (2011). The employer cannot meet its burden,
however, merely by showing that it had a legitimate reason for
its action; rather, it must demonstrate that it would have taken
the same action in the absence of the protected conduct. Bruce
Packing Co., 357 NLRB 1084, 1086–1087 (2011); JCR Hotel,
Inc. v. NLRB, 342 F.3d 837, 841 (8th Cir. 2003).
If the employer’s proffered reasons are pretextual (i.e., either
false or not actually relied on), the employer fails to show that
it would have taken the same action for those reasons regard-
less of the protected conduct. Metropolitan Transportation
Services, 351 NLRB 657, 659 (2007). An employer fails to
meet its rebuttal burden when the evidence shows that it toler-
ated an employee’s shortcomings until the employee engaged
in protected activity. Global Recruiters of Winfield, 363 NLRB
No. 68 (2015) (Hirozawa, concurrence), citing Diversified Bank
Installations, 324 NLRB 457, 476 (1997).
c. Prima facie case of termination for protected
concerted activity
I find that Johnston was engaged in protected concerted ac-
tivity and even if she was not, Respondent perceived that she
was engaged in protected concerted activity. When an employ-
er takes an adverse action based upon its belief, even a mistak-
en belief, that an employee was engaged in protected concerted
activity, it also violates Section 8(a)(1). Parexel Int’l, 356
NLRB 516, 519 (2011), and cases cited; also see NLRB v.
RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013).
Employee activity is protected under Section 7 of the Act
when it is both concerted and for the purpose of mutual aid or
protection. Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op. at 3 (2014); Holling Press, Inc., 343 NLRB
301, 302 (2004). Although these elements are closely related,
they are analytically distinct. Fresh & Easy Neighborhood
Market, supra.
i. Concerted activity
The Act protects discussions between two or more employ-
ees concerning their terms and conditions of employment. A
conversation constitutes concerted activity when “engaged in
with the object of initiating or inducing or preparing for group
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
action or [when] it [has] some relation to group action in the
interest of the employees.” Meyers Industries (Meyers II), 281
NLRB 882, 887 (1986) (quoting Mushroom Transportation Co.
v. NLRB, 330 F.2d 683, 685 (3rd Cir. 1964)), enfd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
The question of whether an employee has engaged in con-
certed activity is a factual one based on the totality of the cir-
cumstances. National Specialties Installations, 344 NLRB 191,
196 (2005). Also see, e.g., Ewing v. NLRB, 861 F.2d 353 (2d
Cir. 1988). Concertedness is analyzed under an objective
standard. Fresh & Easy Neighborhood Market, 361 NLRB No.
12, slip op. at 4. An employee’s subjective motivation for tak-
ing action is not relevant to whether that action was concerted.
Id. Employees act in a concerted fashion for a variety of rea-
sons, some altruistic and some selfish. Id., citing Circle K
Corp., 305 NLRB 932, 933 (1991), enfd. mem. 989 F.2d 498
(6th Cir. 1993). Solicited employees do not have to share an
interest in the matter raised by the soliciting employee for the
activity to be concerted. Id. at 6, citing Mushroom Transporta-
tion Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964), Circle K
Corp., 305 NLRB at 933; Whittaker Corp., 289 NLRB 933,
934 (1988); and El Gran Combo, 284 NLRB 1115, 1117 (1987)
enfd. 853 F.2d 996 (1st Cir. 1988). Further, the concerted na-
ture of an employee’s complaint is not dependent on the merit
of the complaint. Id., citing Spinoza, Inc., 199 NLRB 525, 525
(1972), enfd. 478 F.2d 1401 (5th Cir. 1973).
Contemplation of group action is not required in all circum-
stances. For example, it need not be part of the conversation to
invoke the Act’s protection when the discussion is about wages.
See, e.g., Trayco of S.C., Inc., 297 NLRB 630, 634–635 (1990),
enf. denied mem. 927 F.2d 597 (4th Cir. 1991). Indeed, the
Board stated that wage discussions are “inherently concerted.”
See Automatic Screw Products Co., 306 NLRB 1072, 1072
(1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992). Because
wages are a “vital term and condition of employment” and the
“grist on which concerted activity feeds,” discussions of wages
are often preliminary to organizing or other action for mutual
aid or protection. Aroostook County Regional Ophalmology
Center, 317 NLRB 218, 220 (1995), enf. denied in part on other
grounds, 81 F.3d 209, 214 (D.C. Cir. 1996); see also Triana
Industries, 245 NLRB 1258, 1258 (1979) (discussion of wages
“is clearly concerted activity”).
The activity between Barrett and Johnston was concerted.
As noted in Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op at 6:
“[M]ak[ing] common cause with a fellow workman over his
separate grievance” is a hallmark of such solidarity, even if
“only one of them . . . . has any immediate stake in the out-
come.” NLRB v. Peter Callier Kohler Swiss Chocolates, Co.,
130 F.2d 503, 505 (2nd Cir. 1942). By soliciting assistance
from coworkers to raise his issues to management an employ-
ee is requesting that his coworkers exercise vigilance against
the employer’s perceived unjust practices. See El Gran Com-
bo de Puerto Rico v. NLRB, 853 F.2d 996, 1005 fn. 4 (1st Cir.
1988), quoting J. Weingerten, 420 U.S. at 260–261. The so-
licited employees have an interest in helping the aggrieved in-
dividual—even if the individual alone has an immediate stake
in the outcome—because “next time it could be one of them
that is the victim.” Id. “An injury to one is an injury to all” is
one of the oldest maxims in the American labor lexicon.
A former employee, such as Barrett, is still considered an
employee under Section 2(3) of the Act and retains the full
protection of the Act. Redwood Empire, Inc., 296 NLRB 369,
391 (1989); Little Rock Crate Co., 227 NLRB 1406 (1977).
Section 2(3) of the Act defines an employee as “any employee,
and shall not be limited to the employees of a particular em-
ployer, unless this Act explicitly states otherwise, and shall any
individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other regu-
lar and substantially equivalent employment . . . .”
An employee is a member of the working class generally,
which includes former employees of an employer. Thomas
Steel Co., 281 NLRB 389, 392 (1986), citing Little Rock Crate
Co., supra. Employees are not protected merely for activity
within the scope of their employment relationship, but may
engage in other activities for mutual aid or protection. Eastex,
Inc. v. NLRB, 437 U.S. 556 (1978). Although Barrett was em-
ployed at the time Respondent filed suit against him, the lan-
guage of the Section 2(3) does not exclude Barrett from the
definition. Because Barrett and Johnston both fall within the
definition of employee, their discussions about the suit were
concerted.
(ii.) Protected activity
The concerted activity was protected, or at least perceived so
by Respondent. The terminating offense is Johnston’s in-
volvement with Respondent’s lawsuit against Barrett. Mohave
Elec. Co-op., Inc. v. NLRB, 206 F.3d 1183 (D.C. Cir. 2000),
enfg. 327 NLRB 13 (1998), is persuasive. Employees filed
against their employer a civil suit regarding safety concerns.
The employer contended the employees were disloyal by filing
suit. The court, affirming the Board, found the employees were
engaged in protected concerted activity in filing a civil action.
Mohave, 206 F.3d at 1189–1190.
Although the suit here was filed by Respondent, Respondent
believed Johnston was assisting Barrett in defending his suit.
However, Respondent states its focus on Barrett was due to
“the potential that he had unauthorized access to confidential
data.” (R. Br. at 14). Respondent’s claim that Barrett was not
involved with a protected issue rings hollow when the lawsuit
maintains he potentially had information about wages and Bar-
rett already denied any personal access to such information. As
previously noted, discussions about wages are inherently con-
certed. Ironically, Respondent was able to pull information
from its computers on the day of hearing about Johnston’s ac-
tivities, but never presented any information about Barrett’s
alleged access.
The actions were also concerted as Respondent might simi-
larly target Johnston or another employee in a suit. See general-
ly Fresh & Easy Neighborhood Market, supra.12 Surely em-

12 Also see Wynn Las Vegas, LLC, 358 NLRB 674, 679–680 (2012)
(employees joining together to pay for litigation costs of another em-
ployee was protected concerted activity).
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 13
ployees can join together “for mutual aid and protection” to
defend against an employer’s suit against an employee regard-
ing terms and conditions of employment, such as allegedly
discussing wages, as much as filing suit against an employer.
Respondent specifically cited two cases to support its posi-
tion. In examining Schlitz, 211 NLRB 799, the case is differen-
tiated on its facts. The individual who was allegedly terminated
under Section 8(a)(3) and (1) was a secretary-receptionist. The
Board agreed with the employer that the individual was unsuit-
able for the position because she screened phone calls and
questioned whether she tried to obtain confidential information
about labor relations matters. (Id.) In comparison, Johnston
did not screen any calls and only had conversation with Vining,
who apparently answered no questions but questioned her.
Respondent’s notes show that it believed Johnston was trying to
find out more information from Vining about Barrett’s suit.
However, Respondent’s evidence does not show how Johnston
attempted to obtain information to pass along to Barrett. The
notes do not reflect any access to confidential information.
(GC Exh. 11). Schweda characterized Johnston’s involvement
with the lawsuit against Barrett as “gossiping,” but said nothing
about trying to obtain confidential information.
To support its position that Johnston was correctly terminat-
ed, Respondent also cited Flex Frac Logistics, LLC, 360 NLRB
No 120 (2014). Pursuant to an analysis of the employee’s ac-
tions, the administrative law judge found and the Board af-
firmed that the employee’s termination did not violate the Act.
However, the analysis was based upon whether the discipline
was issued for a violation of an unlawfully overbroad rule. Id.,
citing Contintenal Group, 357 NLRB 409 (2011). The termi-
nated employee disclosed confidential information about client
rates. However, Johnston did not release any confidential in-
formation; discussing Respondent’s suit against Barrett was not
apparently confidential as it was filed openly in a state court
and Vining brought up the issue at least once.
(iii.) Knowledge and animus
The facts also demonstrate that Respondent had both
knowledge and animus towards the protected concerted activi-
ties. Respondent knew much about Johnston’s relationship,
and particularly about her involvement with the lawsuit. Vin-
ing repeatedly asked Johnston about trying to get in touch with
Barrett to give an affidavit. When Johnston told Vining she
had talked with Barrett about Respondent’s suit against him and
asked him questions, Respondent assumed that Johnston was
acting as Barrett’s advocate within the company.
Animus specifically directed towards Johnston is apparent.
Respondent provided specific reasons for terminating Johnston:
Schweda told Johnston her loyalty was in question for talking
with Barrett; and Schweda’s August 18 email, which described
only Respondent’s reasons for terminating Schweda as possibly
advocating for Barrett.
Timing also supports finding animus. Respondent tolerated
alleged poor performance for well over a year. However, when
it learned of Johnston’s involvement with Barrett about the
lawsuit, Respondent decided to terminate her within five days.
Alternative Entertainment, 363 NLRB No. 131, slip op. at 10
(2016); Nu Dawn Homes, 289 NLRB 554, 558 (1988).
Shifting defenses or reasons for an employer’s adverse em-
ployment action are persuasive evidence of discriminatory mo-
tive; it also serves as evidence of pretext. Lucky Cab Co., 360
NLRB No. 43, slip op. at 4 (2014); Naomi Knitting Plant, A
Division of Andrex Industries Corp., 328 NLRB 1279, 1283
(1999), citing Mastercraft Casket Co., 289 NLRB 1414, 1420
(1988), enfd. 881 F.2d 542 (8th Cir. 1989). The reasons for
termination offered at trial differed from what was set forth in
the discharge conversation with Johnston and what Schweda set
forth in her August 18 email. City Stationery, Inc., 340 NLRB
523, 524 (2003). This shift in explanation is evidence of an
unlawful motivation.
General Counsel has sustained the burden of showing that
protected concerted activity was a motivating factor in Re-
spondent’s decision to terminate Johnston. The burden now
shifts to Respondent to show, by a preponderance of evidence,
it would have terminated Johnston in the absence of her pro-
tected concerted activity. Alternative Entertainment, 363
NLRB No. 131, slip op. at 9–10.
iv. Analysis of Respondent’s reasons for terminating
Johnston
I find that Respondent’s explanations for terminating John-
ston are pretextual. Three areas point to this conclusion: Re-
spondent’s summary of events leading to the termination,
which serves as an admission and a shifting defense; minimal
discipline for Johnston’s long-term performance issues; and
lastly, Respondent’s ultimate failure to conduct a meaningful
investigation, which includes failure to talk with Johnston,
about the letter.
Respondent’s own reports about Johnston’s termination refer
only to her relationship to Barrett and nothing about her alleged
performance issues. (GC Exh. 18.) As previously noted,
Schweda’s August 18 email report of Johnston’s termination
says nothing about terminating Johnston for working on a long
document at her desk or her history of performance issues.
Although Sarver mentioned Johnston’s performance during the
termination discussion, it was lost to Schweda’s subsequent
documentation, which also demonstrated its lack of importance.
In addition, the August 18 email discusses events preceding
August 12, the date Respondent contends that Johnston started
working on the bridal letter. I therefore find that Respondent’s
true reason was stated in the August 18 email report, which
makes no mention of performance issues. Baker Elec., 317
NLRB 335, 339 (1995), enfd. 105 F.3d 647 (1997), cert. denied
522 U.S. 1046 (1998). As previously noted with animus, the
shift in Respondent’s reasons also show pretext.
Respondent also points to Johnston’s historically poor per-
formance, culminating with the August 12 letter, as the reason
for termination. The record reflects that Respondent talked to
Johnston about her troublesome behaviors but gave little disci-
pline for it. Instead it gave her a $1.50 per hour raise in May,
about 3 months before termination. Respondent’s minimal
treatment of her alleged misconduct and the raise demonstrate
Respondent did not find the behaviors as troublesome as it
claims; instead, Respondent had a high tolerance for Johnston’s
attendance and performance issues. Phillips Petroleum Co.,
339 NLRB 916, 919 (2003).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent failed to conduct a meaningful investigation and
to give Johnston an opportunity to explain, both of which
demonstrate discriminatory intent. Ozburn-Hessey Logistics,
LLC v. NLRB, 609 Fed. Appx. 656, 658 (D.C. Cir. 2015), enfg.
357 NLRB 1632 (2011); K&M Electronics, 283 NLRB 279,
291 fn. 45 (1987). Regarding the alleged conduct on August
12, Respondent conducted a late investigation into what John-
ston was doing at her desk. First, Schweda did not actually see
the document in question until after Johnston was terminated.
In addition, Respondent obtained the letter’s document and
email history on the day of hearing. Respondent’s investigation
demonstrates that Johnston was likely working on the letter
during working time. However, the computer “forensics” pre-
sented at hearing instead demonstrate that, on August 12 and
13, Respondent was not sure of what Johnston was doing on
her computer. It also shows Respondent did not perform much
of an investigation, if any, into the letter blamed as Respond-
ent’s last straw with Johnston. Respondent provided no expla-
nation for waiting 7 months to make an investigation of John-
ston’s document history. Neither Schweda nor Sarver asked
Johnston what she was doing or redirected her to perform her
work. Respondent’s reliance upon the August 12 bridal dress
letter became an afterthought for Respondent’s termination,
rather than the true reason. Signature Flight Support, 333
NLRB 1250, 1250–1251 (2001), affd. 31 Fed.Appx. 931 (11th
Cir. 2002).
Because of these pretexts, Respondent does not prove that it
would have terminated Johnston regardless of her protected
concerted activities.
d. Conclusion regarding Johnston’s termination
I find that Johnston was terminated for her protected con-
certed activity. The protected concerted activity is her in-
volvement with former employee Barrett and discussions re-
garding Respondent’s lawsuit, involving potential disclosure of
wages. Respondent believed Johnston was acting as Barrett’s
advocate and found this conduct “disloyal.” Respondent’s
stated reason for termination, Johnston’s poor performance, is
pretextual: Respondent shifted from the discussions with Bar-
rett as the sole reason mentioned for termination to perfor-
mance; Respondent failed to conduct a timely investigation into
the last action of alleged poor performance and gave little dis-
cipline for the performance issues it identified. Therefore,
Johnston’s termination violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Andronaco, Inc. d/b/a Andronaco Industries,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent admits, and I find, that the following persons
are supervisors within the meaning of Section 2(11) and/or
agents within the meaning of Section 2(13):
Ron Andronaco CEO and President
Scott Palmettier Chief Financial Officer
Colin Cruttenden Plant Manager
Cheryl Sarver Human Resources Director
Kaila Schweda Executive Assistant
Rick ViningI/T Supervisor
3. Respondent violated Section 8(a)(1) by maintaining the
following overly broad rules in its handbook:
a. Confidentiality;
b. Solicitation/Distribution;
b. Dress Code; and,
c. Internet/Email and Reporting requirements.
4. Respondent violated Section 8(a)(1) when it told Lindsey
Ball Johnston that she was disloyal for her protected concerted
activities or its perception that she engaged in protected con-
certed activities.
5. Respondent violated Section 8(a)(1) by terminating Lind-
sey Ball Johnston for protected concerted activities and its per-
ception that she was engaged in protected concerted activities.
6. Respondent did not violate the Act in any other manner
alleged in the complaint.
REMEDY
Pursuant to Guardsmark, LLC, 344 NLRB 809, 812 (2005),
enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007), Respond-
ent may comply with the Order by rescinding the unlawful
provision and republishing its employee handbook without it.
However, republishing the handbook could be costly. Accord-
ingly, the Respondent may supply the employees either with a
handbook insert stating that the unlawful rule has been rescind-
ed, or with a new and lawfully worded rule on adhesive back-
ing that will cover the unlawfully broad rule, until it republishes
the handbook either without the unlawful provision or with a
lawfully-worded rule in its stead. Any copies of the handbook
that are printed with the unlawful rule must include the insert
before being distributed to employees. See 2 Sisters Food
Group, 357 NLRB 1816, 1123 fn. 32 (2011); Guardsmark, 344
NLRB at 812 fn. 8.
Respondent shall make whole Lindsey Ball Johnston for any
losses, earnings, and other benefits that she suffered as a result
of the unlawful termination. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). Respondent shall
compensate Johnston for any adverse tax consequences of re-
ceiving a lump-sum backpay award. Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Additionally, in accordance with the Board’s decision in
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
Respondent shall be ordered, within 21 days of the dates
the amounts of backpay are fixed, either by agreement or
Board order, to submit and file the appropriate documenta-
tion allocating the backpay awards to the appropriate calendar
quarters or periods (reports allocating backpay) with the
Regional Director. Respondent will be required to allocate
backpay to the appropriate calendar years only. The Regional
Director then will assume responsibility for transmission of
the reports to the Social Security Administration at appropriate
times and in the appropriate manner.
General Counsel also seeks an order requiring that the Re-
spondent reimburse Johnston for out-of-pocket expenses she
may have incurred while searching for work regardless of
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES 15
whether she received interim earnings for a particular quarter.
Discriminatees are entitled to reimbursement for expenses in-
curred in their search for interim employment. However, at
present, Board law considers such expenses as an offset to a
discriminatee’s interim earnings, rather than calculating them
separately. West Texas Utilities Co., 109 NLRB 936, 939 fn. 3
(1954). I am obligated to follow existing Board precedent in
resolving the issues present in this case. Pathmark Stores, Inc.,
342 NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746,
749 fn. 14 (1984). Accordingly, I shall deny General Counsel’s
request for this additional remedy of expenses incurred while
searching for work.
ORDER
Respondent Andronaco, Inc. d/b/a Andronaco Industries, its
officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Maintaining a confidentiality agreement that prohibits or
may reasonably be read to prohibit employees from disclosing
information regarding wages, hours, or other terms and condi-
tions of employment.
(b) Maintaining an overly broad no-solicitation rule prohibit-
ing employees from engaging in protected solicitation during
non-work time in work areas.
(c) Maintaining an overly broad no-distribution rule prohibit-
ing employees from engaging in protected distribution during
nonworking time and in nonworking areas and permitting only
distribution of Respondent’s literature.
(d) Maintaining an overly broad dress code policy prohibit-
ing employees from wearing clothes or insignia that display a
protected message.
(e) Maintaining an overly broad internet rule that has no re-
strictions regarding place and time, “copyright infringement,”
and defines “spam” as solicitation;
(f) Maintaining an overly broad email rule;
(g) Maintaining an unlawful reporting requirement for inter-
net and email use;
(h) Threatening employees that they are disloyal for partici-
pating in protected concerted activities;
(i) Terminating employees for protected concerted activities;
and,
(j) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s Order, revise or rescind
the following policies:
i. Confidentiality;
ii Solicitation/distribution;
iii. Dress code, to the extent that it limits “offensive” mes-
sages; and,
iv. Email/Internet and its reporting requirements.
(b) Furnish all current employees with inserts for the current
employee handbook that (1) advise that the unlawful rule has
been rescinded, or (2) provide the language of a lawful rule; or
publish and distribute revised handbooks that (1) do not contain
the unlawful rule, or (2) provide the language of a lawful rule.
(c) Within 14 days from the date of this Order, offer Lindsey
Ball Johnston full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(d) Make Lindsey Ball Johnston whole for any loss of earn-
ings and other benefits resulting from her discharge, less any
net interim earnings, plus interest, pursuant to the methods in
the remedy section of this decision.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Lindsey Ball
Johnston and within 3 days thereafter notify Johnston in writing
that this has been done and that the discharge will not be used
against her in any way.
(f) Compensate Lindsey Ball Johnston for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 7, within 21
days of the dates the amounts of backpay are fixed, either by
agreement or Board order, reports allocating the backpay
awards to the appropriate calendar year(s).
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
(h) Within 14 days after service by the Region, post at its fa-
cility in Kentwood, Michigan, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. The notice will also be posted in Eng-
lish and any other languages that the Regional Director finds
appropriate. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means if Respondent regularly communicates with employees
through those means. Reasonable steps shall be taken by Re-
spondent 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, Respondent has gone out of
business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by Respondent at any time since August 13, 2015.
(i) 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 Regional Director attesting to the
steps that Respondent has taken to comply.
Dated Washington D.C., April 20, 2016
APPENDIX
NOTICE TO EMPLOYEES
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce our employ-
ees in the exercise of these rights, guaranteed to them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL NOT tell you that you are disloyal to the company
because you engaged in protected concerted activities.
WE WILL NOT maintain unlawful rules regarding confidential-
ity, solicitation, distribution, dress code, internet and email
access and reporting violations of the internet and email access
policies.
WE WILL NOT discharge you because you engaged in protect-
ed concerted activities.
WE WILL NOT, in any like or other related manner interfere
with, restrain, or coerce you in the exercise of the rights guaran-
teed to you by Section 7 of the Act.
WE WILL pay Lindsey Ball Johnston for the wages and other
benefits she lost, with interest, because of our unlawful termi-
nation of her.
WE WILL offer Lindsey Ball Johnston immediate and full re-
instatement to her former job, or if that job no longer exists, to
a substantially equivalent position, without prejudice to her
seniority or any other rights and privileges she previously en-
joyed.
WE WILL remove from our files all references to the dis-
charge of Lindsey Ball Johnston and WE WILL notify her in writ-
ing that this has been done and that the discharge will not be
used against her in any way.
WE WILL compensate Lindsey Ball Johnston for the adverse
tax consequences, if any of receiving on or more lump-sum
backpay awards covering periods longer than 1 year.
WE WILL revise or rescind our unlawful rules regarding solic-
itation/distribution, confidentiality, dress code, internet use,
email, and reporting violations of the internet and email policy
and WE WILL notify you in writing that we have done so.
ANDRONACO, INC. D/B/A ANDRONACO INDUSTRIES
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07–CA–160286 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273–
1940.