Ashley Furniture Industries

National Labor Relations Board - Board Decisions

Dec 31, 2008

353 N.L.R.B. 649 (N.L.R.B. 2008)

ASHLEY FURNITURE INDUSTRIES
353 NLRB No. 71
649
Ashley Furniture Industries, Inc. and Voces de la
Frontera. Case 18–CA–18737
December 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 17, 2008, Administrative Law Judge
James M. Kennedy issued the attached decision, which
he subsequently corrected in an October 6 Errata. The
Respondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board1 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,2 and conclusions and to adopt the recommended
Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ashley
Furniture Industries, Inc., Arcadia, Wisconsin, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its plant in Arcadia, Wisconsin, copies of the attached

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 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.
We agree with the judge that the Respondent failed to establish a le-
gitimate and substantial confidentiality justification for its unlawful
prohibition against employee discussion of the no-match letters. To the
extent, however, that the judge’s rejection of the Respondent’s defense
is based on the absence of evidence of any anti-immigrant violence in
the Arcadia community, we do not rely on that finding. Rather, we
conclude that the Respondent’s confidentiality defense fails because, on
balance, none of the reasons underlying the Respondent’s asserted need
for maintaining the confidentiality of the no-match letters outweigh the
employees’ Sec. 7 right to discuss them.
3 We have modified the notice-posting provision of the judge’s rec-
ommended Order to reflect July 3, 2007, as the date of the Respon-
dent’s first unfair labor practice, and to delete extraneous language.
notice marked ‘Appendix.’7 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted, in English, Spanish, and any
other foreign language the Regional Director deems ap-
propriate, by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since July 3, 2007.”
Joseph Bornong, for the General Counsel.
Thomas R. Trachsel (Felhaber, Larson, Fenlon & Vogt), of
Minneapolis, Minnesota, and Justin H. Silcox of Kostner
(Koslo & Brovold), of Arcadia, Wisconsin, for the Respon-
dent.
John M. Loomis and Mark A. Sweet, of Milwaukee, Wisconsin,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Whitehall, Wisconsin, on June 17, 2008,1 based
upon a complaint issued February 15, 2008, by the Regional
Director for Region 30 and amended by the Regional Director
for Region 18 on May 22, 2008, subsequent to the case being
transferred to Region 18 by an order of the General Counsel.
The unfair labor practice charge was filed by Voces de la
Frontera, on October 2, 2007,2 and amended thereafter. The
complaint as amended alleges that Ashley Furniture Industries,
Inc. (Respondent) committed certain violations of Section
8(a)(1) of the National Labor Relations Act (the Act). Respon-
dent denies that its conduct, essentially undisputed, violated the
Act and/or to the extent it may have, its conduct was permissi-
ble as a “legitimate and substantial” business reason.

1 Respondent’s motion, made at the hearing and reiterated in its
brief, to strike material extraneous to the Charging Party’s name is
granted. Voces de la Frontera (Voices from the Border) as described by
counsel is a “community-based organization” whose offices are located
in Milwaukee. The parties are agreed that it is not a labor organization
as defined in Sec. 2(5) of the Act. Accordingly, Respondent’s motion
to modify the caption by striking the Charging Party’s addendum to its
name (“On Behalf of employees of Ashley Furniture Industries, Inc.”)
is granted. Since it is not a labor organization, wording in a Board
caption should not suggest that its purpose is employee representation.
It is a communitywide assistance group targeting Hispanics in need, not
an employee group.
2 All dates are 2007, unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD650
Issues
The principal issue(s) is/are whether Respondent was privi-
leged to tell its employees that they were not to discuss certain
matters with fellow employees, including their immediate su-
pervisors, instead limiting their communications to a single
member of its human resources department, although an ad hoc
exception may have been made for the affected employee’s
spouse. The issues which were not to be discussed were: (1) a
warning for an assembly error; (2) Respondent’s receipt of “no-
match” letters from the Social Security Administration as it
named between 40 and 50 employees; and (3) telling an em-
ployee not to discuss the expiration of his work permit.
I. JURISDICTION
Respondent admits it is a corporation operating in Wisconsin
and other States and having its headquarters and principal fac-
tory in Arcadia, Wisconsin, where it manufactures household
furniture. It further admits that it annually sells and ships
goods and materials to customers outside Wisconsin valued in
excess of $50,000. Accordingly, Respondent admits that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICE EVIDENCE
A. Background
In addition to the Arcadia plant involved here, Respondent
has a smaller plant in nearby Whitehall, Wisconsin, about 15
miles northeast. Both towns are in rural west central Wiscon-
sin. Arcadia is about 145 miles southeast of Minneapolis and
245 miles northeast of Milwaukee. Testimony disclosed that
Respondent also has plants in Colton, California; Ecru, Missis-
sippi; Ripley, Mississippi; and Leesport, Pennsylvania. It is a
large company which employs 10,000 people in total; half, or
about 5000, work in Arcadia. Respondent’s employee com-
plement in Arcadia is double the population of that town which
has a census of only about 2500. In recent years, this area of
Wisconsin has experienced an influx of immigrants and Re-
spondent’s Arcadia employee demography has changed mark-
edly as well. At the time of the events here, the summer of
2007, Respondent employed in Arcadia and Whitehall about
800 people of Hispanic heritage, most of whom Respondent has
recruited. In addition, it has recruited Hmong and Somali im-
migrants as well. Both of the General Counsel’s witnesses
testified with the assistance of a translator.
The facts are in large part undisputed. During the spring of
2007 Respondent’s human resources department had become
aware that the Federal Department of Homeland Security had
determined to modify the rules concerning an employer’s duty
to enforce the provisions of the Immigration Reform and Con-
trol Act of 1986 (IRCA). Although I will discuss below in
passing what the DHS was attempting to do, it suffices to note
here that Respondent was putting in place a procedure to handle
the expected annual “no-match” letters from the Social Security
Administration. For the past few years it had become accus-
tomed to receiving such letters as its complement of immigrant
employees had expanded. The DHS rules had not previously
imposed enforcement duties upon employers concerning the
employees’ eligibility to work in United States beyond requir-
ing new hires to fill out an I-9 form and presenting the appro-
priate documentation. The new rules imposed additional re-
sponsibilities upon employers. It was for that reason that Re-
spondent’s human resources department began modifying its
internal procedures.
Two of the allegations, however, do not deal with issues
raised by the no-match letters. The first deals with a statement
made to an alien employee named Demetrio Martinez after he
had received some internal discipline. The other deals with
another statement made to Martinez after his work permit had
expired. I shall deal with the Martinez issues first.
B. Statements to Martinez
Martinez is a sofa assembler. On July 3 Martinez had some
trifling dispute with his trainer, someone named Jeff concerning
who was responsible for an error in assembling a furniture item.
As a result, he was called to an office where an HR employee
asked him what had happened. Martinez gave his side of the
story and was told to go back to work. Shortly thereafter he
was recalled to the office where a superintendent was present.
The HR employee told Martinez he had been found guilty of an
infraction and issued him a written warning. He testified on
direct without contradiction that the HR official told him,
“[W]e have come to the conclusion you are the guilty one with
a majority of the votes” and “[W]e’re going to give you a warn-
ing” and “[D]on’t say this to anyone.” He did not waver during
cross-examination. Respondent called no witness on the point.
As a result, his direct examination stands unrebutted.
On September 24, Martinez was again summoned to the HR
office. The meeting was conducted by Amy Neubauer.
Neubauer is a human resource manager normally having re-
sponsibility over office employees, not production employees.
She was the one who had been selected to handle the “no-
match” letters. Although the expiring work permits of produc-
tion employees was not her usual responsibility, given the “no-
match letters” close connection to the work permit issue, it fell
upon her to deal with Martinez’ situation.
Martinez testified that she asked him if he had a current work
permit or “green card.” He told her that his work permit was
no longer current. Martinez says Neubauer responded to this
disclosure saying: “. . . she was going to give me 45 days to
bring a current work permit. If I wanted to continue working,
that she was going to give me those 45 days, and if I didn’t
submit that, then I was going to be fired—terminated, and not
to say this to anybody.”
Neubauer did testify concerning the “no-match” letters but
gave no testimony about her meeting with Martinez concerning
the expiration of his work permit. Accordingly, as above, Mar-
tinez’ testimony stands unrebutted.
In both cases a management official told Martinez that he
was not to discuss what transpired in those meetings with any-
one. In each case the implication was that if he did discuss
those matters with other people, he would be subject to some
sort of discipline for failing to follow the instruction. The Gen-
eral Counsel argues these words not only interfered with Marti-
nez’ right to seek the mutual aid and protection of other em-
ASHLEY FURNITURE INDUSTRIES 651
ployees, they also constituted a threat—either way it violated
Section 8(a)(1).
C. The Threats Prohibiting Revelation of the
“No-Match” Letters
The evidence concerning Respondent’s statements to em-
ployees concerning their receipt of “no-match” letters comes
not only from the General Counsel’s employee witness, Veron-
ica Jimenez, it also comes from Respondent’s witnesses Amy
Neubauer and her superior, Executive Vice President James
Dotta. Indeed, it is in large part supported by a neutral third
party, a community translator named Joyce Stellick.
Dotta explained that the Company was concerned about the
impact any public revelation the “no-match” letters might have.
He cited three things which concerned the corporation. They
were: confidentiality concerning the social security numbers
themselves; the allegedly real possibility that employees receiv-
ing “no-match” letters would be subject to harassment or re-
taliation; and the Company did not want misinformation or
false rumors which might scare its Hispanic work complement
into leaving the area.
As a result, he consulted with legal counsel about the best
way to approach the upcoming DHS rules. After consultation,
he settled on a three-stage procedure. In the first, the Company
would give the employee 30 days to contact the Social Security
Administration to rectify whatever problem social security had
identified. This instruction was to be delivered to the employee
by a letter read to him or her by an HR officer. If, at the end of
the first 30 days the matter had not been cleared up, a second
30-day letter was to be issued. If that did not resolve the issue,
then the employee would be given an additional 3 days as a
firm deadline. If the deadline was not met, the employee was
to be fired. Pattern letters were prepared to that effect and read-
ied for the expected arrival of the “no-match” notifications.
Dotta believed that in order to obtain the confidentiality re-
sult he sought, he needed to limit the number of HR officials
handling the expected letters. In fact, Respondent at Arcadia
had approximately 14 HR people, 7 managers, and 7 general-
ists. Each of these was assigned to a specific area of the plant
or the headquarters. In keeping with his concept of limiting
knowledge of the issue to only the affected employee, Dotta
decided to select an experienced HR manager who did not
normally work with production employees and who would be
seen as a neutral. To that end, he selected Neubauer who pri-
marily worked with finance, computer engineers, and purchas-
ing department employees. He testified he gave her the follow-
ing instructions on July 19 concerning the confidential nature of
her work:
[WITNESS DOTTA] I told her it was very, very impor-
tant, the confidentiality was of utmost concern to me, and
that therefore she was supposed to talk to me if she had
any issues with the process.
. . . .
A. And that she should give instruction when she
talked to the employees that they’re to contact the Social
Security Administration, that’s the people that could help
them, and if they had any further concerns, they should
contact her.
Whatever Dotta may have instructed Neubauer to do, Veron-
ica Jimenez’ testimony describes what actually happened. She
is a production employee who builds headboards. In late July,
she was one of 40 or 50 employees who had become the subject
of “no-match” letters. Neubauer summoned her to the office
and advised her that her name and social security number did
not match. Using an interpreter from one of the Mississippi
plants, she gave Jimenez the newly-styled warning letter which
the Company had created providing for the first 30-day period.
As the discussion was ending and as Jimenez stood to leave,
Jimenez testified, Neubauer pointed at her and said, “This is
confidential. You cannot talk about this to your coworkers or
your supervisor and, if possible, not even to your husband.”
As the first 30-day period began to end, the second round
began. According to a company position statement,3 about
thirty employees’ situations remained unresolved. Jimenez
testified that Neubauer, through a translator, told her that if she
didn’t get this issue settled within another 30 days, she would
be terminated. Indeed, the second letter, read by the translator,
explicitly says in reference to the final 3-day period, that if at
the end of the 3-day final deadline Respondent “cannot verify
your work authorization and identity, your employment with
Ashley will be immediately terminated.” Jimenez further testi-
fied, “I was told again that this meeting was confidential, that I
could not talk about it, neither with my supervisor nor my co-
workers.” She also said that she was never given the letter; that
it was never in her hands, only read to her.
Shortly thereafter, she had a third meeting with Neubauer
and another translator. At this meeting the translator told her
she could continue working, but gave no explanation for the
change of heart. The translator told her she could forget about
what had been said in the previous meetings.
Neubauer did give testimony regarding the procedure she
followed in delivering the letters, but gave virtually no evi-
dence concerning what she told Jimenez. She did deny telling
Jimenez that she could not speak to her spouse about what was
happening.
Finally, on September 28, a community translator named
Joyce Stellick (under contract with the county) was approached
by one of Respondent’s male employees who spoke only Span-
ish. He had lost the business card of the person to whom he
was supposed to report his work eligibility status and his social
security information. He asked Stellick if she could contact
Respondent on his behalf and find out who the individual was
that he should be getting in touch with. Unable to find the HR
number in the phone directory (only the retail store’s number
was in the book), Stellick went to the public library where the
librarian had the number to hand and dialed it for her.
A woman named Amy (presumably Neubauer) answered and
the two had a conversation. Stellick:

3 This statement is in evidence as GC Exh. 4. Although statements
prepared by counsel are admissible, I do not rely upon it except as
general background. While counsel may have been attempting to be
entirely accurate when drafting it, letters of this sort are at least second-
hand and subject to imprecision, given that the attorney authoring the
document is not percipient to the event itself.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
I proceeded to explain to her that a gentleman had come to my
office, supposedly had a card with a name and a phone num-
ber, he had lost it, and I was just trying to assist him to get that
information for him. And at that point in time she said, ‘Who
are you again?’ which I repeated again I was an interpreter.
And she asked me, ‘With whom?’ I told her what I did. So it
went back and forth, that conversation.
Q. Okay. Keep going. Was there more of the conver-
sation?
A. Yes, there was. She also asked me how come this
gentleman had come to me, and I said, ‘Well, because I
am an interpreter,’ of course, and all he wanted to know
was who to contact at Ashley and I was trying to assist
him. She told me that it was her understanding that
the employees at Ashley were not supposed to go out-
side the Company to talk to anyone. And at that point in
time I repeated my question and I said, ‘Well, is he sup-
posed to come to see you or someone else?’ And she said,
‘Me.’ And I asked her again for her name. As she gave it
to me, I wrote it down on a piece of paper in front of me.
[Bolding added.]
Stellick gave the information to the gentleman and he, pre-
sumably, found it useful.
Under the circumstances, I find that it was Respondent’s pol-
icy to insist that the employees who had received a “no-match”
letter say nothing about it to anyone other than a single HR
representative—specifically Neubauer. Neubauer says that she
did tell employees who objected that they could speak about it
with their spouse or an attorney. Assuming that is so, it is clear
that they were not to speak of the matter to coworkers, supervi-
sors, managers, or to any outsiders. As evidenced by her dis-
cussion with Stellick, Neubauer well understood that require-
ment. She was carrying out Dotta’s instructions to the letter.
III. LEGAL ANALYSIS
Any analysis, of course, starts with Section 7 of the Act.
That section states in pertinent part: “Employees shall have the
right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or
all such activities.” (Emphasis added.) This section, therefore,
protects employees and guarantees their right to engage in con-
certed activity for their mutual aid and protection. Concerted
activity, self-evidently, means employees can communicate to
one another about common problems they are having at the
workplace and such communications are protected by Federal
law. Furthermore, the Board and the courts have given it an
expansive meaning, reaching beyond workers simply discuss-
ing workplace matters among themselves. It is an unfair labor
practice under Section 8(a)(1) to prohibit employees from en-
gaging in such activity.
Indeed, for it to be a violation of Section 8(a)(1), an em-
ployer’s conduct does not even need to rise to the level of a
specific threat. The statute states: “It shall be an unfair labor
practice for an employer to—interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7.”
Thus, prohibiting employees from speaking to one another
about common concerns in the workplace or speaking to out-
siders about those concerns are both interdicted by the statute.
In a union context, an easy example is the ejection of a union
official, who has a contractual right to be there, from an em-
ployer’s premises. The ejection of their representative has the
direct effect of inhibiting employees from speaking to their
union about workplace issues. See, for example, Frontier Ho-
tel & Casino, 309 NLRB 761, 766 (1992), enfd. 71 F.3d 1434
(9th Cir. 1995). But it is congruently true in a nonunion con-
text, as well. The seminal case, of course, is NLRB v. Washing-
ton Aluminum Co., 370 U.S. 9 (1962), where the Court found
protected the walkout of employees who concertedly left work
to protest extremely cold conditions.
Then, in the context of finding activity “concerted” within
the meaning of Section 7, the Court in Eastex, Inc v. NLRB, 437
U.S. 556 (1978), held that employees had the protection of
Section 7 when they sought to distribute literature in nonwork-
ing areas during nonworktime which, among other things,
urged a State legislature to oppose “right to work” language in
a constitutional revision. Here, the employees were making an
appeal to the drafters of a modified constitution, people clearly
outside the workplace, but who had the power to affect condi-
tions of labor as a whole.
And, of course, the steps preliminary to actual concerted ac-
tivity are also protected. See Whittaker Corp., 289 NLRB 933
(1988). After all, if an employer acted swiftly enough to pre-
vent the initial steps leading to concerted activity which would
become clearly protected by Section 7, it could obviously pre-
vent that activity entirely and never have to deal with its em-
ployees over such issues. That result is clearly contrary to the
Congressional intent found in Section 7’s wording. Moreover,
when an employer lumps employees together and treats them as
a group the employer is treating them collectively. Enterprise
Products, 264 NLRB 946, 949 (1982). So, whatever they may
do within that group for mutual aid and protection may be re-
garded as Section 7 concerted conduct. What, then, of an em-
ployer’s gag rule intended to prevent a workplace issue from
gaining traction?
Clearly, insofar as a gag rule prohibiting the discussion of
wages is concerned, it has long been held that such rules im-
pinge upon Section 7 rights and are unlawful. E.g., NLRB v.
Main Street Terrace Care Center, 218 F.3d 531, 537 (6th Cir.
2000), enfg. 327 NLRB 522 (1999); Waco, Inc., 273 NLRB
746, 748 (1984) (rule explicitly prohibiting employees from
discussing wages among themselves is a clear restraint of Sec.
7 rights and violates §8(a)(1)); also Jeannette Corp., 217 NLRB
653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976).
The General Counsel has presented here three different gag
rule or confidentiality scenarios. I shall take them in the same
order as discussed in the previous section.
First is the direction to Martinez concerning the discipline
which had been levied upon him as a result of the sofa assem-
bling incident. After the warning was issued to him, he was
told he was not to say anything about it to anyone. As one can
readily see from his testimony, however, he believed the disci-
pline to be unwarranted; the assembling mistake, in his view,
had been committed by another employee. Once he was told
ASHLEY FURNITURE INDUSTRIES 653
not to talk about it to anyone, he was rendered to a position of
no recourse. There was no one to whom he could go to try to
set it right. He couldn’t discuss it with his fellow employees
without running afoul of the instruction. If he did breach the
instruction he would have been committing an act of insubordi-
nation. Respondent’s imposition of this gag rule clearly inter-
fered with his ability to ever discuss his circumstances with a
friendly confidante. This record does not reflect whether Re-
spondent has in place any appeal procedure, so it is unclear
whether he could even have gone to a higher-level HR official.
Martinez, of course, had no understanding of Respondent’s
hierarchy.
The General Counsel correctly cites Verizon Wireless, 349
NLRB 640, 658–659 (2007), for the proposition that prohibit-
ing employee discussion of workplace concerns, particularly if
they relate to discipline or potential discipline, violates Section
7. One caveat to this rule is that an employer may be insulated
from liability under the Act if it can demonstrate a legitimate
and substantial interest in the confidentiality outweighs the
rights of employees under Section 7. See generally NLRB v.
Great Dane Trailers, 388 U.S. 26 (1967); NLRB v. Fleetwood
Trailer Co., 389 U.S. 375 (1967); Caesar’s Palace, 336 NLRB
271, 272 fn. 6 (2001); Jeannette Corp., supra; Waco, Inc., su-
pra.
In this case, however, Respondent offers no defense whatso-
ever. Martinez’ testimony is unrebutted. Accordingly, I find
that Respondent’s instruction to him to the effect that he was
barred from speaking about the discipline which had been im-
posed is a violation of Section 8(a)(1).
Similarly, when Amy Neubauer told him he could not dis-
cuss with anyone the fact that his work permit had expired,
Respondent also violated Section 8(a)(1). Neubauer was cer-
tainly within her rights to ask Martinez for a current work per-
mit, even if only to assist him to obtain a renewal. What she
could not do was to tell him he couldn’t talk about it with any-
one. It is quite common for Hispanic workers working in
United States to be in close contact with community organiza-
tions who assist with immigration issues. Indeed work permits
are a common subject for such groups. Many have become
quite expert in providing accurate and timely assistance to em-
ployees in exactly Martinez’ situation. While there is no evi-
dence on the point, it is quite likely that the Charging Party has
such expertise, or if it does not, it knows how to find it. If Mar-
tinez did not already know about assistance sources, speaking
with a coworker would be a normal and routine way for him to
start the process. Respondent’s instruction prohibited him from
doing so, thereby depriving him of the ability to exercise his
Section 7 right to obtain from his fellow employees information
relating to their mutual aid and protection.
As I noted before, it is the instruction alone which tends to
interfere with or restrain an employee from engaging in con-
certed activity and is sufficient to support such a violation. It
need not rise to a specific threat since interference and restraint
is all the statute requires. Even so, a threat is usually implied if
such instructions are given. See Westside Community Mental
Health Center, 327 NLRB 661, 666 (1999), cited by the Gen-
eral Counsel. Westside also supports the general proposition
that gags of confidentiality are overbroad regardless of whether
the rule was enforced or discriminatorily motivated. See also
Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004) (If
a company rule does not expressly restrict the Sec. 7 rights of
employees, it will still violate Sec. 8(a)(1) of the Act if employ-
ees would reasonably construe it to prohibit activity protected
by Sec. 7 or if it has been applied to prohibit protected con-
duct.). The gag order here is unlawful for the same reason as
the gag order concerning company discipline failed to pass
muster.
The more interesting legal question is the injunction given by
Neubauer pursuant to Dotta’s plan, to each of the employees
who had received a “no-match” letter. Jimenez’ testimony,
together with the admissions made by Neubauer and Dotta (and
supported by Stellick) clearly falls into the same general cate-
gory as the other two. The principal distinction is that the in-
struction was given concerning something the Social Security
Administration had triggered—to correct some irregularity
perceived by that agency, rather than coming from employee
ranks. Nonetheless, rather clearly, Respondent had determined
to treat as a group all of those whose names were provided by
the Social Security Administration. This was the “lumping”
which the Board perceived in Enterprise Products, supra. And,
the observation I made concerning Martinez’ inability to obtain
assistance applies equally to Jimenez and the other persons
named in the “no-match” letters. The instruction allowed them
no place to obtain advice or assistance—not their fellow em-
ployees, not family, not an attorney and not even a community
assistance group such as the Charging Party.
In some respects this interdiction was worse than that im-
posed by the employer in Eastex. There, the employees sought
favorable treatment from the State legislature. Here, the em-
ployees only would have sought the assistance of fellow em-
ployees, spouses, or a community group, although legal assis-
tance might have been sought as well. I think it is fair to say
that absent some legitimate defense, Respondent committed an
8(a)(1) violation closely tracking those already found.
Respondent asserts that it had a substantial business justifica-
tion for its instruction. As noted above, there were three com-
ponents of that purported justification: (1) Maintaining the
privacy and security of the employees’ social security numbers
in order to prevent identity theft; (2) The possibility that em-
ployees who were the subject of “no-match” letters would be
subject to harassment and/or retaliation by community mem-
bers who harbored xenophobic tendencies; and (3) To prevent
false information and misinformation which might have the
effect of scaring away the Hispanic employees it had recruited.
These reasons were all given by vice president for human re-
lations Dotta. To prove that there were harsh anti-immigrant
feelings in the community, Respondent offered in evidence a
number of newspaper articles (including some online reprints)
published in the newspapers of nearby cities.
I have no doubt that the appearance of these articles was in
Dotta’s mind as he cast about for a way to efficiently address
what seemed to be coming from the Department of Homeland
Security.
Both the Charging Party and Respondent have, in their
briefs, supplied an informative discussion about the impact of
DHS’ proposed rule in 2007. Prior to 2007, employers, while
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
subject to both administrative and criminal sanctions for know-
ingly employing undocumented workers, were not considered
to be part of the enforcement procedures set forth in IRCA. In
general, an employer’s obligation to comply with that statute
simply required them to have an employee fill out an I-9 form,
reviewing certain listed documents which established both the
employee’s identity and his/her right to work in United States.
The change proposed by DHS related to the portion of the stat-
ute which criminalized an employer’s behavior if he “know-
ingly” employed individuals who did not have the right to work
in the United States. In the past, the DHS and its predecessor
agency had had difficulty proving that such improper employ-
ment was “knowing” where the employer had relied on spuri-
ous documentation presented by an employee. The new rule
removed that hurdle by declaring that “no-match” letters from
the Social Security Administration were prima facie evidence
that an employer knew the employee was undocumented. It
stated that “no-match” letters created an evidentiary presump-
tion that the employer had knowingly hired undocumented
employees and that such letters could be used to find the hiring
to be criminally unlawful. The proposed rule also set forth
certain “safe harbor” practices which would insulate an em-
ployer from that kind of prosecution. The rule was scheduled
to go into effect on September 14, 2007.
On August 31, the ACLU Immigrant’s Rights Project ob-
tained a nationwide temporary restraining order against DHS
prohibiting enforcement of that new rule from the United States
District Court for the Northern District of California. That
temporary restraining order was converted to a preliminary
injunction on October 10. The August 31 TRO was the reason
that Respondent ceased its efforts to require the employees to
clear up whatever issues they had with the Social Security Ad-
ministration and for that reason employees such as Jimenez
were relieved of any further obligation, at least until the court
made its final ruling.
I have reviewed the newspaper accounts and while I agree
that there had been some level of public discussion in 2006
about the arrival of immigrants in the Arcadia-Whitehall area
(some had been hired by a large chicken processor also located
in Arcadia), much of the vituperation seems to have come from
the then mayor of Arcadia. He had proposed certain anti immi-
grant city ordinances and there had been vigorous pro and con
discussions at city council meetings. Eventually the mayor
withdrew his proposals.
Dotta also mentioned, in support of his third reason, that the
Company wished to reduce negative rumors about its employ-
ment of immigrants, two different incidents which seem to have
occurred. The first involved a rumor that Immigration and
Customs Enforcement (ICE), the investigative branch of DHS
that enforces the Immigration and Nationality Act, had made
some sort of appearance in nearby Winona, Minnesota (25
miles southwest), and was poised to make a raid on employers
in Arcadia. The second was a rumor that Respondent was not
deducting payroll taxes from its employees’ pay, allegedly
because it thought it could get away with not paying taxes be-
cause its employees were illegal aliens. Respondent took im-
mediate steps to counter both of these issues, but nevertheless
remained on the lookout for additional incidents. Essentially,
Dotta feared that information concerning the “no-match” letters
would lead to more of the same.
While I think there is some validity to Respondent’s anxiety,
I think the concerns about privacy and the protection of social
security numbers is overblown. Respondent is not the guardian
of such matters, except to the extent they are maintained in its
own files. In a real sense this is nothing more than unnecessary
paternalism. The employees are well aware of the need to keep
these numbers confidential. Silencing them for that purpose is
a clear overreach. Moreover, such an instruction would not
resolve the problem of identity theft which is more likely to
come from repositories of such numbers, not from individuals.
I do not find this reason, even if taken in good faith, to warrant
the deprivation of rights guaranteed to employees by Section 7.
The next reason, the possibility that the employees would be
subject to xenophobic misbehavior by the general public, might
actually be valid had there been any violent incident to deal
with. Nothing of that kind had occurred in 2006 and the entire
matter had begun to cool by the summer of 2007. In this sense
I think Respondent’s speculation about what might happen was
premature. It had successfully defended two other rumors, one
of which actually focused on the question of special treatment
of illegal aliens, the false claim by uninformed people in the
community that Respondent was not withholding payroll taxes
on the aliens working for it.
Respondent is the principal employer in the community and
must be considered a large employer wherever it might be lo-
cated. It is, no doubt, subject to the same scrutiny that other
large employers routinely face. Large companies with big pay-
rolls are unlikely to be routinely cheating the tax authorities,
particularly in the numbers employed here, around 5400 in this
area of Wisconsin. A rumor as far-fetched as this one is
unlikely to have much traction, particularly when it is promptly
scotched. Besides, coworkers often discuss their paychecks
with one another and sometimes show their pay stubs to each
other. Ordinary revelation of that information would put to rest
any such concerns from the Hispanic employees’ coworkers.4
Likewise, the rumor about an immigration raid by ICE
turned out to be unfounded. In fact, this kind of rumor occurs
in all areas of the country where there are large numbers of
immigrant employees. West central Wisconsin is not unique in
this regard and Dotta’s fears are not exceptional. Employees
come and go for all sorts of reasons. Fear of ICE is not likely
high on the list. Again, I do not see the factual validity of this
assessment. In my opinion an ICE raid is so unlikely that
Dotta’s fears are not well founded. Even if a raid were to oc-
cur, Respondent would not be the cause and employees would
know that, for it is not in Respondent’s interest to report itself
to ICE. It is certainly not a reason for employees with valid
work permits to flee from Wisconsin.5 There is no reason to

4 If an employer is in such financial straits that it decides to stop pay-
ing its quarterly payroll taxes, it will likely be a problem common to all
employees, not just immigrants.
5 I make no brief here one way or the other for undocumented fami-
lies of legal immigrants who may share quarters with their breadwinner
who holds a valid work permit.
ASHLEY FURNITURE INDUSTRIES 655
think that Respondent could not have dealt with no-match letter
misinformation in an equally effective manner.
Therefore, I do not find Respondent’s second and third justi-
fications for imposing the confidentiality requirement on the
issue of an employee’s name appearing in a Social Security
Administration “no-match” letter to have persuasive weight.
They simply do not rise to a level where they can be regarded
as legitimate and substantial reasons for depriving employees
of their statutory rights under the National Labor Relations Act.
The connections are simply too tenuous. Respondent’s legiti-
mate and substantial business justification defense fails as in-
adequately supported.
Accordingly, I conclude that in each of the instances alleged
by the General Counsel, Respondent interfered with and re-
strained its employees in the exercise of their Section 7 rights
and therefore violated Section 8(a)(1) as alleged.
THE REMEDY
Having found Respondent to have engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Additionally, it shall be directed to post a
notice to employees advising them of their rights and describ-
ing the steps it will take to remedy the unfair labor practices
which have been found.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
an industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. On July 3, and various dates in July and August 2007, Re-
spondent violated Section 8(a)(1) of the Act when it prohibited
its employees from speaking to any other person about matters
affecting their employment, including disciplinary proceedings,
instructions concerning Social Security no-match letters and
connected employment eligibility issues, and the updating of
work permits.
Having found Respondent to have engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Additionally, it shall be directed to post a
notice to employees advising them of their rights and describ-
ing the steps it will take to remedy the unfair labor practices
which have been found.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Ashley Furniture Industries, Inc., Arcadia,
Wisconsin, its officers, agents, and representatives, shall
1. Cease and desist from

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Prohibiting its employees from speaking to any other per-
son about matters affecting their employment, including disci-
plinary proceedings, instructions concerning Social Security
no-match letters and connected employment eligibility issues,
and the updating of work permits.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
plant in Arcadia, Wisconsin, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 18 after being signed by
the Respondent’s authorized representative, shall be posted, in
English, Spanish, and any other foreign language the Regional
Director deems appropriate, by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, it
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by it at any time since August 31, 2007.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 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.

7 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD656
WE WILL NOT prohibit you from speaking to any other person
about matters affecting your employment, including discipli-
nary proceedings, instructions concerning Social Security Ad-
ministration no-match letters and related employment eligibility
issues, or the updating of work permits.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the above rights guaran-
teed you by Federal law.
ASHLEY FURNITURE INDUSTRIES, INC.