Brighton Retail, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 19, 2008

28-CA-020323 (N.L.R.B. Jun. 19, 2008)

JD(SF)–25–08
Scottsdale, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
BRIGHTON RETAIL, INC.
and Case 28-CA-20323
RONDA SADOWSKY, an Individual
Christopher J. Doyle, Esq.,
of Phoenix, Arizona, for the General Counsel.
Jeffrey A. Berman Esq.,
(Sidley, Austin, Brown & Wood, LLP),
of Los Angeles, California, and
Gary A. Freedman, Esq. of Santa Monica, California,
for the Respondent.
SUPPLEMENTAL DECISION
Statement of the Case
JAY R. POLLACK, Administrative Law Judge: I issued my original Decision in this case
on June 7, 2006 finding that Respondent violated Section 8(a)(1) of the Act by promulgating and
maintaining rules prohibiting employees from discussing their salaries and compensation;
promulgating and maintaining rules limiting employee discussions concerning terms and
conditions of employment; and maintaining an overly-broad no-solicitation/no distribution rule.
I further found that Respondent violated Section 8(a)(1) of the Act by coercively interrogating
employees about their protected concerted activities. Finally, I found that Respondent violated
Section 8(a)(1) of the Act by discharging employees Ronda Sadowsky and Wanda Hill and by
issuing a written warning to employee Brenda Reed because of their protected concerted
activities. On May 30, 2008, the Board remanded the case to me to prepare a supplemental
decision.
I heard this case in trial at Phoenix, Arizona on February 21-23 and March 22-23, 2006.
On June 9, 2005, Ronda Sadowsky (Sadowsky) filed the charge alleging that Brighton Retail,
Inc. (Respondent or the Employer) committed certain violations of Section 8(a)(1) of the
National Labor Relations Act (the Act). Sadowsy filed an amended charge on July 19, 2005.
The Regional Director for Region 28 of the National Labor Relations Board issued a complaint
and notice of hearing on July 28, 2005, against Respondent alleging that Respondent violated
Section 8(a) (1) of the Act. The complaint was amended on August 18 and August 25, 2005.
Respondent filed timely answers to the complaints, denying all wrongdoing.
All parties have been afforded full opportunity to appear, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my
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observation of the demeanor of the witnesses,1 and having considered the post-hearing briefs of
the parties, I make the following.
Findings of Fact
I. Jurisdiction
Respondent, a California corporation, operates Brighton Collectibles retail stores
nationwide, which sells women’s fashion merchandise. Respondent annually derives gross
revenues in excess of $500,000 and purchases and receives goods and materials valued in
excess of $5000 from outside the State of Arizona. Accordingly, Respondent admits and I find
that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. The Alleged Unfair Labor Practices
A. Background and Issues
Respondent operates Brighton Collectibles retail stores nationwide, which sells women’s
fashion merchandise. Rhonda Sadowsky, Wanda Hill and Brenda Reed were employed as
part-time sales persons at Respondent’s Kierland Commons Mall store in Scottsdale, Arizona.
General Counsel contends that Sadowsy, Hill and Reed were engaged in protected concerted
activities in complaining about Amanda Crossland, the store manager of the Kierland Commons
store. General Counsel alleges that Sadowsky and Hill were discharged and that Reed was
issued a warning because these employees engaged in protected concerted activities. Further
General Counsel alleges that Respondent independently violated Section 8(a)(1) of the Act by
interrogating employees about their protected concerted activities, and by threatening
employees with discharge if they discussed working conditions with other employees .
Respondent denies the commission of any unfair labor practices. Further, Respondent
contends that Sadowsky, Hill and Reed were disciplined because they “treated their co-workers
with disrespect, creating a disruptive and hostile working environment.” Respondent contends
that the same disciplinary action would have occurred regardless of any alleged protected
activity.
B. Facts
Sadowsky worked as a sales partner (a part-time sales person) at the Kierland
Commons store from November 2002, until January 2005. In the summer of 2003, several of
Respondent’s sales partners including Sadowsky, Hill and Reed began discussing their
complaints about the store manager Amanda Crossland.2 The employees complained that
Crossland favored certain employees in the allocation of hours; did not post the work schedule

1 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence
or because it was in and of itself incredible and unworthy of belief.
2 Crossland’s title was Store Managing Partner. Crossland and the two Assistant Store Managing
Partners were full-time employees. The sales partners were all part-time employees.
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in a timely fashion; did not properly enforce the dress code; was insensitive and used
inappropriate language and showed a lack of concern for the theft of employee property.
On January 14, 2004, Sadowsky, Hill, Reed and three other sales partners met at a
restaurant and discussed their complaints about Crossland. The employees decided to write a
letter to Jerry Kohl , Respondent’s owner. On January 15, Sadowsky wrote a letter to Kohl
complaining about Crossland. The letter did not indicate that Sadowsky was acting on behalf of
the other employees. Sadowsky stated:
I’m writing this letter for two reasons. The first is quite honestly to give me the
opportunity to vent some of the anger and frustration I find myself dealing with.
The second, also quite honestly, is because I believe that as a Brighton
employee I have a responsibility to bring these issues to your attention.
Sadowsky then proceeded to discuss complaints about Amanda Crossland not following
the open door policy; showing favoritism in scheduling; not posting the schedule in a timely
manner; using inappropriate language; not taking care to protect employees’ private property;
and not following security measures regarding bank deposits.
Upon receipt of this letter, Kohl asked Robin Boyd, director of retail operations3, to look
into the matter. Boyd called Sadowsky and on January 20, they discussed the letter paragraph
by paragraph. Boyd stated that she would discuss these matters with Crossland.4 Boyd also
told Sadowsky that if the other sales partners wanted to discuss these matters they should e-
mail her as she would be out of town. Sadowsky later informed her fellow employees of her
conversation with Boyd.
Boyd testified that she discussed the issues raised by Sadowsky with Crossland. Boyd
told Crossland that she had to conduct herself in a calm and professional manner. Boyd
discussed all the topics raised by Sadowsky but did not mention the letter to Kohl or show the
letter to Crossland. Boyd instructed Crossland to purchase locks for the employee lockers.
Boyd also told Crossland that it was wrong for Crossland to have sent Sadowsky to make bank
deposits unaccompanied by another employee.
Notwithstanding Boyd’s conversation with Crossland, Sadowsky and her fellow
employees continued to complain to each other about Crossland. In the winter of 2004,
Sadowsky, Hill and three other employees met at a coffee shop and discussed their work
complaints. They even discussed a possible class action based on age discrimination. The
sales partners continued to complain about Crossland throughout the year.
In December Nikki Wride, Respondent’s district manager, visited the Kierland Commons
store. Assistant store managers Lori Westerkamp and Kim Shaffer, complained about
Crossland. On December 8, 2004, Crossland told Wride that she was “threatened and scared
for her job” because she feared that Sadowsky and Hill would “write another letter to Jerry Kohl
or have her job.” 5 On December 28, Hill sent an e-mail to Wride, stating that she wanted to
discuss “some concerns that I and others have regarding the store.’ In an attempt “to get to the

3 Boyd is responsible for the overall operation of Respondent’s retail stores nationwide.
4 It should be noted that on January 14, Crossland warned Sadowsky for alleged
insubordination.
5 The record does not reveal how Crossland obtained knowledge about the January 2004
letter to Kohl.
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bottom” of the problem, Wride decided to interview all of the store employees separately during
the second week of January 2005, and to take detailed notes of what she was told.
On January 13, 2005, Wride met with the employees individually at her hotel room.
Wride told Sadowsky that their meeting was confidential. Wride asked questions about what
Sadowsky liked and disliked about working at the store. Wride asked if Sadowsky planned on
suing Respondent. Sadowsky said she did not but that former employee Connie Robinson had
discussed a lawsuit. Wride asked if Sadowsky would be celebrating that evening because
Crossland was in trouble. Sadowsky answered that she was going out to dinner that evening
with her husband. According to Wride, Sadowsky stated several times that “Amanda
[Crossland] will not mess with her” or “ Amanda knows not to tussle with me.”
On January 13, Wride also met with Hill. Wride told Hill that the meeting was
confidential and then asked Hill what she liked and disliked about working at the store. Hill told
Wride that morale was better when Crossland was not present at the store. Hill said that she
hoped Crossland would improve her people skills with employees and with customers. Wride
asked about a potential lawsuit and Hill said she had heard something but thought the matter
had been dropped because the employee had left the store. Wride asked if there was a dinner
planned that night to celebrate Crossland’s termination. Hill said that she was not aware of
such a thing and that she did not want to see anyone get fired.
Reed also met with Wride that same day. Reed complained about Crossland. Reed
stated that Crossland lacked management skills and needed training. She also stated that
Sadowsky and Hill were stirring up problems. Reed explained that Sadowsky and Hill
discussed their complaints about Crossland with other employees. Wride asked about Reed’s
friendship with Sadowsky and Hill. Reed answered that she was friendly with them at the store
but did not socialize with them outside of work. Wride said that there would be changes at the
store but did not say what the changes would be.
Wride also interviewed six other sales partners, the two assistant store managing
partners and Crossland.. Wride’s notes of these interviews show that several employees and
the assistant managers complained about Crossland’s management style. The notes also show
that employees indicated that Sadowsky and Hill did the most complaining about Crossland. An
assistant store manager told Wride that Sadowsky was the “ringleader” and that Hill and Reed
were followers. Wride was also told that Sadowsky, Hill and Reed were engaging in intimidating
behavior towards other sales partners.
On January 14, Wride met with Crossland. Crossland complained that Sadowsky and
Hill were damaging her career. Wride asked why the personnel files of Sadowsky and Hill did
not reflect Crossland’s problem’s with these two employees. Crossland stated that she feared
the employees would write a letter to get her fired. Wride stated that Crossland had the
responsibility of managing these employees. Wride said that Crossland had lost control of the
employees. Crossland said that if she were fired, Sadowsky and Hill would have won. Wride
ended the meeting by saying that she would discuss the matter with Respondent’s management
and that changes would be made.
On January 20, Boyd and Wride met with Sadowsky to give Sadowsky her letter of
termination. Boyd read the following letter to Sadowsky:
You have engaged in insubordinate behavior in your dealings with your Store
Manager, which violates Brighton’s Standards of Business Conduct.
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Brighton Collectibles is committed to providing all employees with a work
environment that is free of hostility. You have created a hostile working
environment by undermining both management and fellow sales partners. Your
attitude in your dealings with other employees has been confrontational, negative
and threatening, and has been disruptive of store operations.
You have been counseled regarding these matters, beginning in January 2004,
yet the conduct has continued.6
Boyd read the letter but gave no further explanation for Sadowsky’s termination. Wride
observed but said nothing at the termination interview. Later that same date Boyd and Wride
discharged Hill. Except for the name, Hill’s termination letter was the same as Sadowsky’s.
Boyd read the letter and Wride observed. Hill had not received a warning in January 2004.
Wride and Boyd then met with Reed. Wride told Reed that she had fired Sadowsky and
Hill, and then gave Reed a written warning. Wride assured Reed that things would be better
because Sadowsky and Hill were no longer working at the store. Hill was placed under a
performance action plan which stated:
I expect you as a Sales Partner to:
Not participate in any gossip, negative talk, back-biting or conversation that
could be disruptive to the team or management.
Maintain a level of professionalism with all Partners that is free from hostility,
disruption or antagonism.
Foster a sense of community and cooperation in the workplace.
Reed signed the performance action plan and wrote, “Disagree with the antagonistic
remark. Feel there is a difference in being aggressive/assertive sales. Not intended to be
cruel.”
On the evening of January 20, Wride held a meeting with sales partners at her hotel.
Wride told the employees that Sadowsky and Hill had been discharged and that the attitude at
the store had to change. Wride told the employees that any negative talk, back-biting, gossip or
conversation that could be misconstrued or disruptive would not be tolerated and would be
grounds for termination. Wride also stated that the employees were not to discuss any working
matters with anybody, and if they did, that would be considered grounds for termination.
On January 21, Wride issued a “final written warning” to Crossland, “because she had
not effectively managed the partners in her store.” Crossland was warned that she would be
terminated if her performance issues did not improve.
Respondent’s “Partner Guide” issued to all employees, in effect in 2005, contained the
following rule: “ No one may solicit, distribute, or receive non-company documents, materials or
products during their work time or on company premise.” Respondent’s Partner Guide in effect
in 2005 also contained the rule “Salaries are confidential.” In January 2006, Respondent

6 Sadowsky had received a warning for insubordination in January 2004. In her letter to
Kohl, Sadowsky contended that she was not insubordinate and that Crossland claimed
insubordination whenever an employee questioned her.
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revised its Partner Guide. The current Partner Guide does not contain either of the rules set
forth above. There is no evidence that any employee was disciplined for violating the no
solicitation rule or the confidentiality rule.
C. Respondent’s Defense
Respondent’s “Partner Guide” issued to all employees states that the Employer’s
mission is “to create an unexpected, warm, and wonderful shopping experience with unique
Brighton Accessories and happy helpful sales partners to exceed our customer’s expectations
and inspire them to come back often.” In support of this mission, Respondent has a set of
“Brighton Values.” These values emphasize the importance of “respect for all individuals” and
“teamwork.” Respondent contends that Sadowsky, Hill and Reed were disciplined because
they “treated their colleagues with disrespect, creating a disruptive and hostile working
environment” at the Kierland Commons store.
Secondly, Respondent contends that it had no knowledge of any protected activity and
that it was unaware that any other employee was involved in Sadowsky’s January 2004 letter to
Kohl. 7 Respondent argues that the January 2004 letter had nothing to do with the discipline
which took place one year later. Third, Respondent argues that even if the employees engaged
in concerted activity it would have taken the same action because of lack of respect for fellow
employees and lack of teamwork at the Kierland Commons store.
D. The Discipline of Sadowsky, Hill and Reed
Pursuant to Section 7 of the Act, employees have the right to engage in concerted
activities for their mutual aid and protection. Employees having no bargaining representative
and no established procedure for presenting their grievances may take action to spotlight their
complaint and obtain a remedy. NLRB v. Washington Aluminum Co., 370 U.S. 9, 12–15 (1962).
Accordingly, an employer may not, without violating Section 8(a)(1) of the Act, discipline or
otherwise threaten, restrain, or coerce employees because they engage in protected concerted
activities.
In this case, the critical issue is whether Sadowsky and Hill were engaged in protected
concerted activities when they discussed their dissatisfaction concerning Crossland’s
supervisory methods with other employees. Where employees seek to protest the selection or
termination of a supervisor or other management officials, an analysis of whether the
employees’ activities are protected under the Act is fact-based and depends on whether “such
facts establish that the identity and capability of the supervisor involved has a direct impact on
the employees own job interests and on their performance of the work they are hired to do.”
Dobbs Houses, 135 NLRB 885, 888 (1962), enfd. denied 325 F.2d 531 (5th Cir. 1963). See
also Hoytuck Corp., 285 NLRB 904, 907 (1987). In the instant case, the employees were
complaining about Crossland’s management of the store but the facts do not support a finding
that they were seeking her termination.
In January 2004, the six part-time sales employees decided that Sadowsky would write
Kohl complaining about Crossland. Their complaints went beyond Crossland’s personality and
concerned working conditions. Sadowsky raised issues of retaliation for using the open door
policy, posting schedules in a timely fashion, favoritism in scheduling, inappropriate language,

7 In its exceptions to the Board Respondent conceded that Sadowsky, Hill and Reed
engaged in protected concerted activities and that Respondent knew of that activity at least by
December 2004.
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security concerns and an allegedly unfair warning. However, the letter and Sadowsky’s
subsequent conversation with Boyd failed to alert Respondent that Sadowsky was acting in
concert with other employees.
However, in December 2004, and January 2005, Respondent was aware of employee
complaints about Crossland. Crossland indicated to Wride a fear that Sadowsky and Hill would
attempt to have her terminated. Wride conducted interviews with employees and discovered
that employees had complaints about Crossland’s management of the store including their
perceived favoritism in scheduling, lack of timeliness in scheduling and conflicting or
inconsistent information. Wride also learned that Sadowsky and Hill, and Reed to a lesser
extent, were the ringleaders. Wride learned that the complaints about Crossland created a
tension in the store. In its exceptions to the Board, Respondent conceded that it had knowledge
of the protected concerted activities at least by December 2004.
The employee complaints and discussions occurred in an effort to protest and change
the working conditions of employees working for and with Crossland. The Respondent's
subjective evaluation of the merits of the complaints is not controlling. The complaints do not
have to be "earth shattering" in order to be protected by the Act so long as they arise from the
employees' conditions of employment. Fair Mercantile Co., 271 NLRB 1159, 1162. The
employees complained that Crossland had a bad attitude and gave instructions which interfered
with their productivity on the job. Those complaints reveal their "concerns over their working
conditions and the impact of the supervisor on those working conditions.". Avalon-Carver
Community Center, 255 NLRB 1064, fn. 2 (1981). Here, I find that Sadowsky, Hill, Reed, and
other employees were engaged in protected concerted activities in complaining about
Crossland’s treatment of employees and customers. The protection of the protected activity
does not depend upon the merit or lack of merit of the grievance. Skrl Die Casting, Inc., 222
NLRB 85, 89 (1976).
Respondent argues that the employees were not discharged for criticizing or
complaining about Crossland. Rather, Respondent contends that the employees were
disciplined because of their conduct towards their fellow employees. I found the hostility and
animosity which Respondent found offensive to be inextricably intertwined with Sadowsky’s and
Hill’s protected activities. These employees engaged in protected concerted activities which,
may indeed, have created a negative atmosphere at the store which was in conflict with
Respondent’s mission statement and values. However, those activities were protected by
Section 7 of the Act. I found that the law is well established that when it is once made to
appear from the primary facts that an employer has engaged in conduct which operates to
interfere with an employee’s statutorily protected right, it is immaterial that the employer was not
motivated by antiunion bias or ill intentions.” Fabric Services, Inc., 190 NLRB 540, 543 (1971).
See also NLRB v. Burnup and Sims, Inc., 379 U.S. 21 (1964) and Time-O-Matic, Inc. v. NLRB,
264 F.2d 96 (7th Cir. 1959). The test is whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of employee rights under the Act.
Continental Chemical Co., 232 NLRB 705 (1977), and American Lumber Sales, 229 NLRB 414
(1977). The Board in its remand decision rejected this finding as inconsistent with an analysis
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
Respondent contends that it would have disciplined these employees even in the
absence of their concerted activities. The Board found that Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) applies. Under
Wright Line the General Counsel must show, by a preponderance of the evidence, that
protected conduct was a motivating factor in the employer’s adverse action. The General
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Counsel meets this initial burden by demonstrating that the employee engaged in protected
activity, the employer knew of that activity, and the employer harbored animus against the
protected activity. The burden of persuasion then shifts to the employer to show that it would
have taken the same adverse action in the absence of the protected activity. United Rentals,
350 NLRB No. 76, slip op. at 1 (2007) (citing Donaldson Bros. Ready Mix, Inc., 341 NLRB 958,
961 (2004). The employer’s burden on rebuttal is not met by a showing merely that it had a
legitimate reason for its action. Rather, the employer “must persuade by a preponderance of
the evidence that the same action would have taken place even in the absence of the protected
conduct.” Roure Bertrand Dupont, Inc.,271 NLRB 443, 443 (1984).
The Board ordered that I must consider whether the General Counsel has met his initial
burden by showing that the Respondent’s animus against the employees’ protected acts was a
motivating factor in the decision to discipline and discharge them. For the following reasons, I
find that General Counsel has made a prima facie showing that Respondent was motivated by
unlawful considerations in disciplining Sadowsky, Hill and Reed. First, the employees were
engaged in protected concerted activities. Second, Respondent was clearly aware of such
activities, at least by December 2004. Respondent disciplined these employees to stop the
tension in the store, at least in part, caused by the protected concerted activities. The burden
shifts to Respondent to establish that the same action would have taken place in the absence of
the employees’ protected concerted activities. In my original decision I found that the “hostility
and animosity” Sadowsky and Hill allegedly created in the workplace were “inextricably
intertwined” with their protected activities. The Board rejected that finding. The Board stated
that I must consider whether the respondent proved, by a preponderance of the evidence, that it
would have discharged Sadowsky and Hill and disciplined even in the absence of their
protected activity.
Respondent’s “Partner Guide” issued to all employees states that the Employer’s
mission is “to create an unexpected, warm, and wonderful shopping experience with unique
Brighton Accessories and happy helpful sales partners to exceed our customer’s expectations
and inspire them to come back often.” In support of this mission, Respondent has a set of
“Brighton Values.” These values emphasize the importance of “respect for all individuals” and
“teamwork.”
In December, Wride visited the Kierland Commons store. Assistant store managers Lori
Westerkamp and Kim Shaffer complained about Crossland. On December 8, 2004, Crossland
told Wride that she was “threatened and scared for her job” because she feared that Sadowsky
and Hill would “write another letter to Jerry Kohl or have her job.” On December 28, Hill sent an
e-mail to Wride, stating that she wanted to discuss “some concerns that I and others have
regarding the store.’ In an attempt “to get to the bottom” of the problem, Wride decided to
interview all of the store employees separately during the second week of January 2005, and to
take detailed notes of what she was told. On January 13, 2005, Wride met with the employees
individually at her hotel room.
Wride interviewed nine sales partners, the two assistant store managing partners and
Crossland.. Wride’s notes of these interviews show that several employees and the assistant
managers complained about Crossland’s management style. The notes also show that
employees indicated that Sadowsky and Hill did the most complaining about Crossland. An
assistant store manager told Wride that Sadowsky was the “ringleader” and that Hill and Reed
were followers. Wride was also told that Sadowsky, Hill and Reed were engaging in intimidating
behavior towards other sales partners.
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On January 14, Wride met with Crossland. Crossland complained that Sadowsky and
Hill were damaging her career. Wride asked why the personnel files of Sadowsky and Hill did
not reflect Crossland’s problem’s with these two employees. Crossland stated that she feared
the employees would write a letter to get her fired. Wride stated that Crossland had the
responsibility of managing these employees. Wride said that Crossland had lost control of the
employees. Crossland said that if she were fired, Sadowsky and Hill would have won. Wride
ended the meeting by saying that she would discuss the matter with Respondent’s management
and that changes would be made.
On January 20, Boyd and Wride met with Sadowsky to give Sadowsky her letter of
termination. Boyd read the following letter to Sadowsky:
You have engaged in insubordinate behavior in your dealings with your Store
Manager, which violates Brighton’s Standards of Business Conduct.
Brighton Collectibles is committed to providing all employees with a work
environment that is free of hostility. You have created a hostile working
environment by undermining both management and fellow sales partners. Your
attitude in your dealings with other employees has been confrontational, negative
and threatening, and has been disruptive of store operations.
You have been counseled regarding these matters, beginning in January 2004,
yet the conduct has continued.
Boyd read the letter but gave no further explanation for Sadowsky’s termination. Wride
observed but said nothing at the termination interview. Later that same date Boyd and Wride
discharged Hill. Except for the name, Hill’s termination letter was the same as Sadowsky’s.
Boyd read the letter and Wride observed.
Wride and Boyd then met with Reed. Wride told Reed that she had fired Sadowsky and
Hill, and then gave Reed a written warning. Wride assured Reed that things would be better
because Sadowsky and Hill were no longer working at the store. Hill was placed under a
performance action plan which stated:
I expect you as a Sales Partner to:
Brighton Collectibles is committed to providing all employees with a work
environment that is free of hostility. You have created a hostile working
environment by undermining both management and fellow sales partners. Your
attitude in your dealings with other employees has been confrontational, negative
and threatening, and has been disruptive of store operations.
Reed signed the performance action plan and wrote, “Disagree with the antagonistic
remark. Feel there is a difference in being aggressive/assertive sales. Not intended to be
cruel.”
On the evening of January 20, Wride held a meeting with sales partners at her hotel.
Wride told the employees that Sadowsky and Hill had been discharged and that the attitude at
the store had to change. Wride told the employees that any negative talk, back-biting, gossip or
conversation that could be misconstrued or disruptive would not be tolerated and would be
grounds for termination. Wride also stated that the employees were not to discuss any working
matters with anybody, and if they did, that would be considered grounds for termination.
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On January 21, Wride issued a “final written warning” to Crossland, “because she had
not effectively managed the partners in her store.” Crossland was warned that she would be
terminated if her performance issues did not improve.
Respondent contends that the decision to discipline the employees was solely because
of their conduct towards their fellow employees. Based on the Board’s remand, I find that
Respondent was motivated by its desire to end the “negative talk, back-biting, gossip or
conversation that could be misconstrued or disruptive.” Respondent that the Employer’s
mission is “to create an unexpected, warm, and wonderful shopping experience with unique
Brighton Accessories and happy helpful sales partners to exceed our customer’s expectations
and inspire them to come back often.” In support of this mission, Respondent has a set of
“Brighton Values.” These values emphasize the importance of “respect for all individuals” and
“teamwork.” I find that Wride was motivated by a desire to end the tension in the store. She
believed that Sadowsky and Hill were the ringleaders. The termination letters make reference a
work environment that is free of hostility. They further state “You have created a hostile working
environment by undermining both management and fellow sales partners.” Finally they state
“Your attitude in your dealings with other employees has been confrontational, negative and
threatening, and has been disruptive of store operations.” The warning letter to Reed states the
Employer “ is committed to providing all employees with a work environment that is free of
hostility. “ “ You have created a hostile working environment by undermining both management
and fellow sales partners. Your attitude in your dealings with other employees has been
confrontational, negative and threatening, and has been disruptive of store operations.”
Based on the Board’s remand, I find that Respondent has sustained its burden of
showing that Sadowsky, Hill and Reed would have been disciplined even in the absence of their
protected activity.
1. Independent 8(a)(1) Allegations: Rules Restricting Protected Concerted Activity
As set forth above, Respondent’s “Partner Guide” issued to all employees, in effect in
2005, not only prohibited the discussion of salaries but also contained the following rule: “No
one may solicit, distribute, or receive non-company documents, materials or products during
their work time or on company premise.” There is no evidence that any employee was
disciplined for violating the no solicitation rule or the confidentiality rule.
It is well settled that restrictions on union solicitation in nonworking areas during
nonworking time are presumptively invalid. It is equally well settled that in the case of retail
establishments an employer may prohibit solicitation in the selling areas of a retail store even
when employees are on their own time. J.C. Penny Company, 266 NLRB (1983). Thus, since
Respondent operates a retail store, it lawfully could have restricted all solicitation on the selling
floor. Respondent's rule, however, prohibits solicitation "on company premise" and therefore is
not specifically limited to the selling floor. Thus, I find that Respondent’s former no-solicitation/
no-distribution rule violated Section 8(a)(1) of the Act.
The Respondent’s Partner Guide in effect in 2005 also contained the rule “Salaries are
confidential.” The Board has held that discussion of wages is part of organizational activity and
employers may not prohibit employees from discussing their own wages or attempting to
determine what other employees are paid. Mediaone of Greater Florida, 340 NLRB 277 (2003);
citing Pontiac Osteopathic Hospital, 284 NLRB 442, 465 (1987); Waco, Inc., 273 NLRB 746,
747-748 (1984); and International Business Machines, 265 NLRB 638 (1982). Thus, when an
employer prohibits its employees from inquiring as to the wages paid fellow employees, the
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employer unlawfully inhibits its employees from exercising their Section 7 rights. Accordingly, I
find that Respondent’s former rule prohibiting employees from discussing salaries violated
Section 8(a)(1) of the Act.
On January 20, Wride issued a warning to Reed which instructed Reed, “not to
participate in any gossip, negative talk, back-biting or conversation that could be disruptive of
the team or management.” Wride further stated, “If you ever again engage in conduct that could
be construed as disruptive or antagonistic to a co-worker you will be terminated immediately.”
When Wride met with the store employees in the evening on January 20, Wride told the
employees that any negative talk, back-biting, gossip or conversation that could be
misconstrued or disruptive would not be tolerated and would be grounds for termination. Wride
also stated that the employees were not to discuss any working matters with anybody, and if
they did, that would be considered grounds for termination.
An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends
to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824,
825 (1998) enfd. Mem. 203 F. 3d (D.C. Cir. 1999). . A rule that prohibits, inter alia, unprotected
behavior may be unlawful if it also contains prohibitions so broad that they can reasonably be
understood as encompassing protected conduct. Lutheran Heritage Village-Livonia, 343 NLRB
No. 75 (2004). As the Board stated therein, in determining whether a challenged work rule is
unlawful, the rule must be given a reasonable reading, phrases should not be read in isolation,
and improper interference with employees' rights is not to be presumed. Lutheran Heritage
Village-Livonia, supra, slip opinion at page 1.
Here the issue, is whether an employee would reasonably read the rule as covering
protected activity—in this case complaints and grievances against Crossland I find that an
employee simply cannot be sure what conduct the employer might consider "disruptive". The
ambiguity of this admonition gives the employer great discretion in defining it and in deciding
when to impose discipline--enough discretion to invalidate the rule under established law. See,
e.g., Advance Transportation Co., 310 NLRB 920, 925 (1993). Indeed, it is well-established that
any ambiguity in a rule should be construed against the employer. See, e.g., Lafayette Park
Hotel, supra, 326 NLRB at 828, citing Norris/O'Bannon, 307 NLRB 1236, 1245 (1992).
In the context of this case, it would appear to employees that Wride’s admonition about
conversations that would be disruptive reasonably interfered with Section 7 activity, were
promulgated in response to employees complaining about Crossland and were applied to halt
such activity. Accordingly, I find Respondent violated Section 8(a)(1) of the Act.
2. Alleged Interrogation
During her conversations with employees on January 14, Wride asked Sadowsky
whether the employee intended to sue Respondent. Sadowsky answered that she did not but
that a former employee had mentioned a suit. However, since that employee no longer worked
for the Respondent, Sadowsky did not know whether the matter would be pursued. Wride also
asked whether Sadowsky planned to celebrate Crossland’s termination that evening and
Sadowsky answered that she was having dinner with her husband.
Similarly, Wride asked Hill about a potential lawsuit and Hill said she had heard
something but thought the matter had been dropped because the employee had left the store.
Wride asked if there was a dinner planned that night to celebrate Crossland’s termination. Hill
said that she was not aware of such a thing and that she did not want to see anyone get fired.
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General Counsel contends that by such action, Respondent coercively interrogated the
employees about their protected concerted activities. The Board has held that an interrogation
is unlawful if, in light of the totality of the circumstances, it reasonably tends to interfere with,
restrain, or coerce employees in the exercise of their Section 7 rights. Matthews Readymix, Inc.,
324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309
NLRB 185, 186 (1992); Liquitane Corp., 298 NLRB 292, 292-293 (1990). Relevant factors
include whether proper assurances were given concerning the questioning, the background and
timing of the interrogation, the nature of the information sought, the identity of the questioner,
and the place and method of the interrogation. Stoody Co., 320 NLRB 18, 18-19 (1995);
Rossmore House Hotel, 269 NLRB 1176, 1177-1178 (1984), affd. 760 F.2d 1006 (9th Cir.
1985).
The Board has viewed the fact that an interrogator is a high-level supervisor as one
factor supporting a conclusion that questioning was coercive. See, e.g., Stoody, supra. The
Board generally does not consider whether an interrogation actually coerced employees in the
exercise of their rights under the Act, but whether the interrogation would reasonably tend to
have that effect. See Williamhouse of California, 317 NLRB 699, 713 (1995); El Rancho Market,
235 NLRB 468, 471 (1978), enfd. 603 F.2d 223 (9th Cir. 1979); American Freightways Co., 124
NLRB 146, 147 (1959). See also Delta Gas, 282 NLRB 1315 (1987)) (Board affirmed the
administrative law judge’s finding that the respondent violated the Act by interrogating
employees about the purpose of their meeting at an attorney’s office.) Wride was a high level
supervisor. In addition, the individuals being questioned were part-time employees who did not
report directly to Wride. Employee participation was mandatory. Although the subject matter of
the interviews was working conditions at the store, the questions about the lawsuit and the
alleged employee celebration went beyond that subject matter. For these reasons, I conclude
that the Respondent violated Section 8(a)(1) on January 14, by coercively interrogating
employees about protected concerted activities.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining rules
prohibiting employees from discussing their salaries and compensation; promulgating and
maintaining rules limiting employee discussions concerning terms and conditions of
employment; and maintaining an overly-broad no-solicitation/no distribution rule.
3. Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees
about their protected concerted activities.
4. The above unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not otherwise violate the Act.
Remedy
Having found that Respondent engaged in unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.8
ORDER
Respondent, Brighton Retail, Inc., Scottsdale, Arizona, its officers agents, successors,
and assigns, shall:
1. Cease and desist from
(a) Promulgating and maintaining rules prohibiting employees from discussing their
salaries and compensation; promulgating and maintaining rules limiting employee
discussions concerning terms and conditions of employment; and maintaining an
overly-broad no-solicitation/no distribution rule.
(b) Coercively interrogating employees about their protected concerted activities.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its Kierland Commons store in
Scottsdale, Arizona, copies of the attached notice marked “Appendix.”10 Copies
of the notice, on forms provided by the Regional Director for Region 28, after
being signed by Respondent’s authorized representative, shall be posted for 60
consecutive days in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
Respondent to ensure the notices are not altered, defaced or covered by other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy
of the attached notice to all current employees and former employees employed
by the Respondent at any time since January 2005.
(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 Respondent has taken to comply.
Dated, Washington, D.C. June 19, 2008
_______________________
Jay R. Pollack
Administrative Law Judge

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT promulgate or maintain rules prohibiting employees from discussing their
salaries and compensation; promulgate or maintain and maintain rules limiting employee
discussions concerning terms and conditions of employment; or maintain in an overly-broad no-
solicitation/no distribution rule.
WE WILL NOT coercively interrogate employees about their protected concerted activities.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
Brighton Retail, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 602-640-2146.