Cy-Fair Volunteer Fire Department

National Labor Relations Board - Board Decisions

Jul 15, 2016

364 NLRB No. 49 (N.L.R.B. 2016)

364 NLRB No. 49
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cy-Fair Volunteer Fire Department and Robert
Berleth.
Cy-Fair Volunteer Fire Department and Craig Arm-
strong. Cases 16–CA–107721, 16–CA–120055,
and 16–CA–120910
July 15, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On October 22, 2015, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Charging
Party filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the Charging Par-
ty filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the judge’s recommended Order as modified and
set forth in full below.2

1 The Charging Party 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.
No exceptions were filed to the judge’s findings regarding the Re-
spondent’s handbook policies and Social Networking Guideline; the
threat allegations; or employee Craig Armstrong’s discipline, transfer,
and discharge.
We find it unnecessary to pass on the judge’s finding that the Gen-
eral Counsel failed to sustain his burden of proving that union activity
was a motivating factor in the Respondent’s decision to discharge em-
ployee Robert Berleth. Even assuming the General Counsel sustained
his burden in this regard, we agree with the judge’s finding that the
Respondent demonstrated it would have discharged Berleth even in the
absence of his union activity based on the extent and nature of Berleth’s
disciplinary history, much of which raised serious safety concerns. We
also find it unnecessary to pass on the Charging Party’s exception to the
judge’s failure to find that the Cy-Fair Volunteer Fire Department EMS
Employees Association is a labor organization under the Act or to the
judge’s finding that Berleth sent disrespectful emails because doing so
would not affect our disposition of this case.
2 We shall amend the judge’s conclusions of law to conform to his
unfair labor practice findings. We shall modify the judge’s recom-
mended Order in accordance with our decisions in Guardsmark, LLC,
344 NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d 369 (D.C.
Cir. 2007), and Excel Container, Inc., 325 NLRB 17 (1997). Addition-
ally, we shall modify the judge’s Order and substitute a new notice to
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2.
“2. By maintaining portions of the following provi-
sions and rules in its handbook and Social Networking
Guideline, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and has violated Section
8(a)(1) of the Act: Overview (page 8), Essential Behav-
ioral Expectations (page 9), Blogging (page 20), Social
Media (page 20), Proprietary Information/Confidentiality
(page 22), No Solicitation/Distribution (page 23), Em-
ployee Records and Privacy (pages 26–27), and Objec-
tive (regarding the use of Respondent’s logos, name or
pictures) and Item 6 of the Social Networking Guide-
line.”
ORDER
The Respondent, Cy-Fair Volunteer Fire Department
(CFVFD), Houston, Texas, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining a provision in the Overview section of
its employee handbook prohibiting inappropriate disclo-
sure and/or misuse of employees’ personal information.
(b) Maintaining a provision in the Essential Behavior-
al Expectations section of its employee handbook stating
that employees are expected to maintain confidentiality
of business knowledge and member/employee infor-
mation.
(c) Maintaining provisions in the Blogging section of
its employee handbook prohibiting employees from (i)
posting or discussing information about the Respondent’s
confidential and/or proprietary information, (ii) using
confidential/proprietary information concerning the De-
partment, or (iii) using embarrassing, insulting, demean-
ing or damaging information about the Respondent, its
products, customers or employees.
(d) Maintaining a provision in the Proprietary Infor-
mation/Confidentiality section of its employee handbook
stating that information gathered in conversations,
emails, and meetings is confidential and proprietary and
may not be discussed with anyone outside the Depart-
ment.
(e) Maintaining a provision in the Employee Records
and Privacy section of its employee handbook stating
that inappropriate disclosure and/or misuse of other em-
ployees’ personal information will result in disciplinary
action up to and including termination of employment.
(f) Maintaining a provision in the Social Media sec-
tion of its employee handbook prohibiting certain activi-

conform to the judge’s findings and the Board’s standard remedial
language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ties that have the effect of harming the goodwill and rep-
utation of CFVFD among its partners, vendors or in the
community at large.
(g) Maintaining a rule in the Social Networking Guide-
line that prohibits employees from referencing or citing
Department members, employees or vendors without
their express consent.
(h) Maintaining a rule in the Social Networking Guide-
line that prohibits the use of the Respondent’s name, log-
os or trademark without the Respondent’s consent.
(i) Maintaining a provision in the No Solicita-
tion/Distribution section of its employee handbook pro-
hibiting solicitation and distribution even when not on
work time if such activity takes place in an area fre-
quented by customers or otherwise interferes with work
being performed by other employees.
(j) Threatening employees with discharge for violating
its No Solicitation/Distribution rule.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
or revise the unlawful provisions set forth above in para-
graphs 1(a) through (i).
(b) Furnish employees with inserts for the current em-
ployee handbook and Social Networking Guideline that
(1) advise that the unlawfully worded provisions have
been rescinded or (2) provide lawfully worded provisions
on adhesive backing that cover the unlawful provisions,
or publish and distribute to employees a revised employ-
ee handbook and Social Networking Guideline that (1)
do not contain the unlawful provisions or (2) provide
lawfully worded provisions.
(c) Within 14 days after service by the Region, post at
its Houston, Texas-area facilities copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-

3 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.”
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 Re-
spondent at any time since January 19, 2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 16 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. July 15, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
CY-FAIR VOLUNTEER FIRE DEPARTMENT 3
WE WILL NOT maintain a provision in the Overview
section of our employee handbook that prohibits inap-
propriate disclosure and/or misuse of employees’ person-
al information.
WE WILL NOT maintain a provision in the Essential
Behavioral Expectations section of our employee hand-
book stating that employees are expected to maintain
confidentiality of business knowledge and mem-
ber/employee information.
WE WILL NOT maintain provisions in the Blogging sec-
tion of our employee handbook that prohibit employees
from (i) posting or discussing information about our con-
fidential and/or proprietary information, (ii) using confi-
dential/proprietary information concerning the Depart-
ment, or (iii) using embarrassing, insulting, demeaning or
damaging information about us, our products, customers
or employees.
WE WILL NOT maintain a provision in the Proprietary
Information/Confidentiality section of our employee
handbook stating that information gathered in conversa-
tions, emails, and meetings is confidential and proprie-
tary and may not be discussed with anyone outside the
Department.
WE WILL NOT maintain a provision in the Employee
Records and Privacy section of our employee handbook
stating that inappropriate disclosure and/or misuse of
other employees’ personal information will result in dis-
ciplinary action up to and including termination of em-
ployment.
WE WILL NOT maintain a provision in the Social Media
section of our employee handbook that prohibits certain
activities that have the effect of harming the goodwill
and reputation of CFVFD among its partners, vendors or
in the community at large.
WE WILL NOT maintain a rule in our Social Networking
Guideline that prohibits employees from referencing or
citing Department members, employees or vendors with-
out their express consent.
WE WILL NOT maintain a rule in our Social Networking
Guideline that prohibits the use of our name, logos or
trademark without our consent.
WE WILL NOT maintain a provision in the No Solicita-
tion/Distribution section of our employee handbook that
prohibits solicitation and distribution even when not on
work time if such activity takes place in an area fre-
quented by customers or otherwise interferes with work
being performed by other employees.
WE WILL NOT threaten you with discharge for violating
our No Solicitation/Distribution rule.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind or revise the unlawful provisions de-
scribed above.
WE WILL furnish you with inserts for the current em-
ployee handbook and Social Networking Guideline that
(1) advise that the unlawful provisions have been re-
scinded or (2) provide lawfully worded provisions on
adhesive backing that cover the unlawful provisions, or
WE WILL publish and distribute a revised employee hand-
book and Social Networking Guideline that (1) do not
contain the unlawful provisions or (2) provide lawfully
worded provisions.
CY-FAIR VOLUNTEER FIRE DEPARTMENT
The Board’s decision can be found at
www.nlrb.gov/case/16-CA-107721 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Frederic Roberson, Esq., and Laurie Duggan, Esq., for the
General Counsel.
David Barron, Esq., and Norasha Williams, Esq. (Cozen
O’Connor, P.C.), counsel for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Houston, Texas, on August 12, 13, and 14,
2015. The amended consolidated complaint, which issued on
February 9, 2015, was based upon unfair labor practice charges
and amended charges that were filed by Robert Berleth and
Craig Armstrong on June 21, 2013,1 July 19, January 6 and 21,
2014. The amended consolidated complaint initially alleges
that numerous provisions of the Cy-Fair Volunteer Fire De-
partment Employee Handbook (the Handbook), and its Social
Networking Guidelines (the Guidelines), violate Section 8(a)(1)
of the Act. It is next alleged that the Respondent further violat-
ed Section 8(a)(1) of the Act in the following manner:2

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2013.
2 By motion to withdraw complaint allegations, dated October 9,
2015, counsel for the General Counsel, without objection from the
Respondent, withdrew the allegations contained in pars. 9(a) and 9(c)
of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(b) On about May 17, by Kenneth Grayson, distributed an
email to its employees that threatened discipline up to and in-
cluding discharge for violating the Respondent’s No Solicita-
tion/Distribution policy.
(d) On about September 5, by Mark Habelow, threatened an
employee with discharge because the employee assisted the
Union and engaged in concerted activities.
It is further alleged that the Respondent violated Section
8(a)(1)(3) by discharging Berleth on May 20, by issuing written
warnings to Armstrong on August 5 and September 5, by issu-
ing a written warning to, and suspending, Armstrong on August
19, by transferring him to another station on August 27, by
suspending him on October 8 and discharging him on Decem-
ber 18, all because they assisted Cy-Fair Volunteer Fire De-
partment EMS Employees Association, (the Union), and en-
gaged in concerted activities.
I. JURISDICTION
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION STATUS
The complaint alleges that the Union has been a labor organ-
ization within the meaning of Section 2(5) of the Act. In its
answer, Respondent denies this allegation, and no testimony
was adduced at the hearing on this issue.
III. THE FACTS OF THE HANDBOOK AND GUIDELINES
Although the Respondent’s name is Cy-Fair Volunteer Fire
Department, it is actually a fire department and an ambulance
service, and it employs paid employees, as well as volunteers,
in both operations.
It is alleged that since about June 1, 2011, the Respondent
has promulgated and maintained in its Handbook, which in-
cludes the following provisions, which violate Section 8(a)(1)
of the Act:
[Irrelevant paragraphs omitted]
Overview [at page 8]
Options for discipline that the Department may elect to use
include verbal corrections, written warnings, suspensions, fi-
nal written warnings, and/or termination of employment. The
Department may, at its sole and absolute discretion, apply
whatever form of discipline deemed appropriate under the cir-
cumstances, up to and including immediate termination of
employment. The Department's disciplinary policy in no way
limits or alters the at-will employment relationship. The fol-
lowing is only an illustrative list of reasons for disciplinary ac-
tions. Reasons for disciplinary actions are not limited to this
list.
[Irrelevant paragraphs omitted]
• Inappropriate disclosure and/misuse of employees' personal
information.
• Violation of the No Solicitation/Distribution Policy.
[Irrelevant paragraphs omitted]
Essential Behavioral Expectations [at page 9]
All members/employees are expected to use professional
courtesy, discretion and sound judgment when engaging in
any contact with co-workers, members of the public,
vendors, visitors and/or other members/employees. Mem-
bers/employees are also responsible for but not limited to, the
following behavioral expectations: maintaining confidentiality
of business knowledge and member/employee information,
maintaining professional relationships while engaging in job-
related tasks, cooperating with others to resolve conflict and
achieve goals, maintaining a pleasant attitude while leaving
personal business or issues/problems outside the workplace.
[Irrelevant paragraphs omitted]
Department Systems [at page 19]
CFVFD does not permit its employees to post messages on
their personal web log, i.e. blogs, which are considered by the
Department to be discriminatory, harassing, defamatory or a
violation of CFVFD's policy on Proprietary Infor-
mation/Confidentiality.
[Irrelevant paragraphs omitted]
[at page 19] In addition, employees are not allowed to blog,
on-line instant message, play games or visit chat rooms while
at work.
[Irrelevant paragraphs omitted]
Blogging: [at page 20] Employees are prohibited from post-
ing or discussing information about the Department's confi-
dential and/or proprietary information (including
nonapproved client lists) and nonpublic financial information
in any online blog.
[Irrelevant paragraphs omitted]
o The use of confidential/proprietary information concern-
ing the Department is expressly prohibited
o The use of embarrassing, insulting, demeaning or dam-
aging info about the Employer, its products, customers
or employees is expressly prohibited
[Irrelevant paragraphs omitted]
Social Media [at page 20]
While the Department encourages employees to enjoy and
make good use of their off-duty time, certain activities on the
part of employees may become a problem if they have
the effect of impairing the work of any employee; harassing,
demeaning or creating a hostile working environment for any
employee; disrupting the smooth and orderly flow of work
within the CFVFD; or harming the goodwill and reputation of
CFVFD among its partners, vendors or in the community at
large. In the area of social media (print, broadcast, digital and
online), employees may use such media during their off-duty
time in any way they choose as long as such use does not pro-
duce the adverse consequences noted above.
The Department does not allow employees to utilize social
networks (Facebook, My Space, LinkedIn, etc.) for outside
business related purposes. No employee may use
Department equipment or facilities for the furtherance of non-
work related activities or relationships without the express
CY-FAIR VOLUNTEER FIRE DEPARTMENT 5
permission of the Fire Chief or Board President.
Should you decide to create a personal blog, be sure to pro-
vide a clear disclaimer that the views expressed in the blog are
the authors alone and do not represent views of CFVFD.
[Irrelevant paragraphs omitted]
Proprietary Information/Confidentiality [at page 22]
The protection of confidential business information is vital to
the interests and success of CFVFD. Information gathered in
conversations, e-mails and meetings is confidential and pro-
prietary and may not be discussed with anyone outside the
Department. Employees shall not release information regard-
ing CFVFD operations, property, policies, or affairs to any
person not connected with CFVFD unless authorized by the
Fire Chief or Board President, or use such information to ad-
vance the personal interests of any employee. Employees
shall not release any information regarding an emergency in-
cident to any person not connected with CFVFD unless spe-
cifically authorized by the Incident Commander.
[Irrelevant paragraphs omitted]
No Solicitation/Distribution [at page 23]
CFVFD recognizes that employees may have interest in
events and organizations outside the workplace. However, so-
licitation and distribution of literature by an employee for
funds, membership, or individual commitment to outside or-
ganizations and causes is prohibited on the premises during
work time. These topics may be addressed during off-duty
time, provided it does not disturb working employees. Solici-
tation and distribution of literature is also prohibited even
when not on work time if such activity takes place in an area
frequented by customers or otherwise interferes with work be-
ing performed by other employees. Solicitation or distribution
of literature by non-employees for any purpose without writ-
ten consent of the Human Resource Office is prohibited on
Department premises at all times. If an employee has a mes-
sage of interest to the workplace, he/she may submit it to the
Human Resource Office for approval and posting on the bul-
letin board. Station Captains, District Chief or the Chief Of-
ficer may remove any harassing or offensive literature placed
on Department premises or sites where Department work is
performed.
[Irrelevant paragraphs omitted]
Employee Records and Privacy [at page 26–27]
All information contained in a personnel file is the property of
CFVFD and is not available for review by anyone other than
the employee, his/her Immediate Supervisor and the
Human Resources Department. The collection of employee
information will be limited to that needed for business and le-
gal purposes, and all employees involved in recordkeeping
will be required to protect the confidentiality of personal in-
formation. You have the right to examine your own employee
record with regard to evaluations, benefits, records and educa-
tional achievements by contacting the Human Resource Of-
fice to schedule an appointment; however, documents may
not be removed from CFVFD's premises or photocopied
without specific authorization of the Fire Chief or Board Pres-
ident. Inappropriate disclosure and/or misuse of other em-
ployees' personal information will result in disciplinary action,
up to and including termination of employment and notifica-
tion of the proper law enforcement authorities.
It is further alleged that since about May 1, 2010, Respond-
ent promulgated, and at all material times since that date has
maintained, a "Social Networking Guideline." This policy
includes the following work rules:
Objective: Employees and members of the Department using
social networking sites must do so in an appropriate manner.
The use of Department logos, name, pictures or accounts of
activities is strictly prohibited without prior board approval.
All views and comments are the author's alone and do not rep-
resent the views of the Department. Members and employees
may be subject to disciplinary actions up to and including
termination of employment/membership for violation or as a
result of postings or comments made on these sites.
[Irrelevant paragraphs omitted]
[Item 6]: Do not reference or site [sic] Department members,
employees, or vendors without their express consent. In all
cases, do not publish any information regarding a member,
employee or vendor during the engagement.
[Irrelevant paragraphs omitted]
[Item 8]: Department name, logos and trademarks may not be
used without written consent.
[Irrelevant paragraphs omitted]
[Item 11]: Comments, postings or pictures may cause individ-
uals or the Department to have issue with your actions. You
can be disciplined for your actions, comments or postings if it
violates Department policies. Claims of harassment or hostile
work environment caused by your actions, comments or post-
ings will result in disciplinary action up to and including ter-
mination of employment.
[Item 14]: Disciplinary action- violation of this policy can re-
sult in disciplinary action, up to and including termination of
employment or membership. Think before you post. Are the
comments or postings offensive or detrimental to the Depart-
ment or persons that will be reading what is written or posted?
Employees/members must remember they have a duty to the
Department not to embarrass the members/employees of the
Department by their comments or postings.
The Respondent revised its Handbook effective December
2014, and its Guidelines about a month later. These revisions
will not be considered herein.
IV. ANALYSIS OF HANDBOOK AND GUIDELINES
An analysis of these allegations begins with Lafayette Park
Hotel, 326 NLRB 824 (1998), and Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). Lafayette Park stated, at 825:
“The appropriate inquiry is whether the rules would reasonably
tend to chill employees in the exercise of their Section 7 right.
Where the rules are likely to have a chilling effect on Section 7
rights, the Board may conclude that their maintenance is an
unfair labor practice even absent evidence of enforcement.” In
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Lutheran Heritage Village, supra, the Board was more specific:
Our inquiry into whether the maintenance of a challenged rule
is unlawful begins with the issue of whether the rule explicitly
restricts activities protected by Section 7. If it does, we will
find the rule unlawful. If the rule does not explicitly restrict
activities protected by Section 7, the violation is dependent
upon the showing of one of the following: (1) employees
would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union ac-
tivity; or (3) the rule has been applied to restrict the exercise
of Section 7 rights.
The Handbook restricts employees from discussing or dis-
closing personal information of other employees in a number of
places: under Overview, at page 8, it prohibits “Inappropriate
disclosure and/misuse of employees’ personal information;”
under Essential Behavioral Expectations, at page 9, it states that
the employees are expected to maintain “confidentiality of
business knowledge and member/employee information;” under
Blogging, at page 20, the Handbook states that employees are
prohibited from posting or discussing information about the
Respondent’s “confidential and/or proprietary information” and
that “The use of confidential/ proprietary information concern-
ing the Department is expressly prohibited;” under Proprietary
Information/Confidentiality, at page 22, it states: “Information
gathered in conversations, emails and meetings is confidential
and proprietary, and may not be discussed with anyone outside
the Department;” and under Employee Records and Privacy, at
pages 26–27, it states: “Inappropriate disclosure and/or misuse
of other employees personal information will result in discipli-
nary action, up to and including termination of employment”.
The Guidelines, under Item 6, states: “Do not reference or site
Department members, employees or vendors without their ex-
press consent.”
Without a doubt, the rights guaranteed by Section 7 of the
Act includes the right to discuss terms and conditions of em-
ployment with fellow employees and others, including union
representatives and, at times, the news media. These discus-
sions with union representatives can include not only the em-
ployees’ terms and conditions of employment, but those of
other employees, as well as their telephone number, address
and email address, if known, as part of an organizational drive.
As employees could reasonably interpret these restrictions as
limiting their right to discuss terms and conditions of employ-
ment with others, I find that they violate Section 8(a)(1) of the
Act. Lafayette Park, supra; NLS Group, 352 NLRB 744
(2008).
The provision on blogging, at page 20, states: “The use of
embarrassing, insulting, demeaning or damaging info about the
Employer, its products, customers or employees is expressly
prohibited.” The Social Media provision, also contained at page
20, prohibits “certain activities” that have the effect of “harm-
ing the goodwill and reputation of CFVFD among its partners,
vendors or in the community at large.” In Karl Knauz Motors,
Inc., 358 NLRB 1754 (2012) and Costco Wholesale Corp., 358
NLRB 1100 (2012), the Board found that similar provisions
violate the Act stating, in Karl Knauz Motors, that such lan-
guage encompasses “Section 7 activity, such as employees
protected statements- whether to co-workers, supervisors, man-
agers, or third parties who deal with the Respondent- that object
to their working conditions and seek the support of others in
improving them.” Employees have a right to engage in these
discussions, even if they include criticism of their employer, its
product or others, and I therefore find that these provisions
violate the Act.
Under Objectives of the Social Media Guideline, there is a
prohibition against the use of the Respondent’s name, logos or
trademark, without the Respondent’s consent. This rule could
also be reasonably understood by the Respondent’s employees
to limit them, or a union, from seeking support from other em-
ployees, or publicizing a dispute that they have with the Re-
spondent, by using its name or logo on their clothing or litera-
ture. Boch Imports, Inc., 362 NLRB No. 83 (2015); Pepsi Cola
Bottling Co., 301 NLRB 1008 (1991).
The No Solicitation/Distribution restriction contained on
page 23 states:
Solicitation and distribution of literature by an employee for
funds, membership, or individual commitment to outside or-
ganizations or causes is prohibited on the premises during
work time. These topics may be addressed during off-duty
time, provided it does not disturb working employees. Solici-
tation and distribution of literature is also prohibited even
when not on work time if such activity takes place in an area
frequented by customers or otherwise interferes with work be-
ing performed by other employees. Solicitation or distribution
of literature by non-employees for any purpose without writ-
ten consent of the Human Resource Office is prohibited on
Department premises at all times.
The initial sentence of this restriction prohibits solicitation
and distribution by employees “for outside organizations or
causes . . . on the premises during working time,” further stat-
ing that it may be done “during off-duty time, provided it does
not disturb working employees.” In Barney’s Club, 227 NLRB
414, 416 (1976), the administrative law judge stated:
The right of employees to self-organization has often come
into conflict with the right of employers to maintain discipline
in their establishments and to control the use of their property.
Over the years, the Board and the courts have attempted to
reconcile these conflicts through the formulation of rules of
law which attempt to maximize the scope of the rights of each
to the extent that they do not unduly diminish the rights of the
other…In attempting to reconcile the legitimate interests of
both employers and unions, the Board has looked at the nature
of the business. Thus, the rules which have evolved relating to
industrial establishments have not been applied to retail stores.
[citations omitted]
I find that the first and second sentence of the Respondent’s
restrictions on solicitation are lawful. The first sentence refers
to “work time” so it is presumptively lawful, Our Way, Inc.,
268 NLRB 394, 395 (1983); Beverly Enterprises, 287 NLRB
158 (1987). As Respondent operates an ambulance service and
a fire department, the restriction contained in the second sen-
tence, “provided it does not disturb working employees” is a
rational restriction, and a lawful one. The next sentence pro-
CY-FAIR VOLUNTEER FIRE DEPARTMENT 7
hibits solicitation and distribution, “even when not on work
time” if it takes place “in an area frequented by customers or
otherwise interferes with work being performed by other em-
ployees.” Although the Board has permitted restrictions such
as this in selling areas in retail stores and in casino gambling
areas because of the possible disruption to the employer’s oper-
ation, the instant situation is different. The nature of the Re-
spondent’s operations makes it unclear who their “customers”
are and how it could affect its operation. I therefore find that
this prohibition violates the Act. Crowne Plaza Hotel, 352
NLRB 382, 385 (2008). The final sentence prohibits solicita-
tions by nonemployees on department premises for any purpose
without the consent of the Respondent’s human resource office.
The Board and the Courts have recognized a distinction be-
tween the rights of employees as compared to nonemployees to
be on the employer’s property. NLRB v. Babcock & Wilcox
Co., 351 U.S. 105, 113 (1956). The theory is that employees
are already rightfully on the employer’s property pursuant to
their employment relationship. In United States Postal Service,
339 NLRB 1175, 1176 (2003), the Board, citing Lechmere, Inc.
v. NLRB, 502 U.S. 527, 533–534 (1992), stated: “In contrast to
employees, nonemployees may be treated as trespassers. An
employer’s refusal to allow nonemployee organizers onto its
property to solicit will not violate Section 8(a)(1) unless the
organizers have no reasonable nontrespassory means to com-
municate their message or the employer discriminates against
the union by allowing other solicitation,” and the union has the
burden of showing that there was no other reasonable means of
communicating with the employees. NLRB v. Southern Mary-
land Hospital Center, 916 F.2d 932 (4th Cir. 1990). Consider-
ing the facts herein, I find that the Union has not satisfied this
burden and that the final sentence of this rule does not violate
the Act.
V. FACTS REGARDING BERLETH AND ARMSTRONG
Respondent employed a total of approximately 600 employ-
ees, paid and volunteers in both operations; Berleth and Arm-
strong were emergency medical technicians (EMT) employed
by the Respondent in its emergency medical service (EMS)
operation. At the time of the events to be described (mid to late
2013), the individual in charge of the EMS operation was Ken-
neth Grayson, the EMS Assistant Chief over the EMS Division.
He reported to the fire chief, who reported to the Respondent’s
Board of Directors. The Respondent has 12 stations for both
EMS and fire suppression and each employee is assigned to a
specific station. Each station contains a room about ten by ten,
with two beds, a chair, a television set, and alarm system with
speakers. The EMT employees report for work at 6 a.m. and
work 24 hours on, 24 hours off, and 24 hours on followed by 5
days off. Each shift has a junior and a senior supervisor. In
addition, EMS employees who are recommended by their su-
pervisors can become field training officers (FTOs); they are
paid more than the other employees and train new employees.
A. Union Activity
Berleth, who began working for the Respondent in August
2008, as a paramedic, testified that the first organizing cam-
paign that he was involved in while there began in about early
2011, when he discussed organizing the employees with some
other employees. As a result of these discussions, he contacted
the International Association of Fire Fighters, (IAFF), but this
movement petered out by the Fall of 2011. However, he later
testified that he handed out “a handful of cards” in early 2011,
and “then we really started collecting in the Fall of 2012” for
IAFF. In answer to questions from me, he testified that it start-
ed “very loosely” in early 2010, but it was in 2011 that they
met with IAFF and conducted meetings. He testified that he
resumed his union activity in about September or October
2012, when he spoke to other employees about getting a union.
One of those that he spoke to was Armstrong, whom he asked
to help him in contacting other employees. In an affidavit that
he gave to the Board he stated that he started obtaining signed
authorization cards from employees on April 4.3 Prior to that
date he was careful about his union activity, but after April 4 he
became more open about it. On Friday, May 17, the Union,
filed a petition with the Board, signed by Berleth as Union
President, to represent the employees. It was faxed to the Re-
spondent that same day, apparently, by the Union or its counsel.
Monday, May 20, was the date when Berleth was to appear
before the Respondent’s Board where they were to consider the
final appeal of his suspension pending termination.
Nathaniel Blue, a paramedic who has been employed by the
Respondent for in excess of 8 years, testified that at an ice
cream social that he attended sometime during the Spring of
2013, Armstrong approached him, gave him a union authoriza-
tion card and asked him if he was in favor of the Union. “A
couple of weeks or so” later, he and the other employees were
called to the office for a meeting (which his affidavit to the
Board states was about May 15) that was attended by Grayson.
He testified that at this meeting Grayson said that employees
were not permitted to distribute union cards on Respondent’s
premises, and Blue said that he was given a union card by Arm-
strong.
David Tilbury, who had been employed by the Respondent
for about 5 years as a paramedic, until January 2014, testified
that after the petition was filed he attended two meetings lead
by Grayson and Hannah, although he was uncertain of the date
of the meetings. At the first meeting they said that somebody
was passing out flyers for the Union and, “they reminded us
that, when you’re on duty, you can’t do these things, that it’s
against policy and you can be terminated for it.” Blue stood up
and pointed to Armstrong and said: “One of them is sitting right
here.” At the second meeting Grayson said that they were get-
ting closer to the election and reminded them that they could be
terminated for union activities while they were on duty. Some
employees asked questions or made negative comments about
the Union, and Tilbury asked if a union would be good for the
department, and got dirty looks.
Armstrong testified that he heard rumors of union activity in
2011, but there was nothing definite about it until 2013. On
May 3, Berleth spoke to him about starting up a union and gave
him cards to distribute. He was asked by counsel for the Re-
spondent:

3 That is the date that he received his suspension pending termina-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Q And prior to that meeting in May with Mr. Berleth at the
HEB, you were not aware of any union activity going on at
the department, were you?
A That is not true4.
Armstrong testified that at some point, about a month prior to
his May 3 meeting with Berleth, while he was having breakfast
at a restaurant with Jerry Justice, the B shift junior supervisor,
Justice “was discussing Robert Berleth’s involvement in start-
ing up a union.” Justice said that he was in favor of a union and
that it might be the only way to get “a regime change at the
top.” Justice testified that this is “absolutely not true.” In the
affidavit that Armstrong gave to the Board, he did not state
anything about Justice saying that Berleth started a union, but
he testified that Justice told him that the Union would not hap-
pen because it would put an end to Grayson’s nepotism. Arm-
strong testified further that the meeting where Blue identified
him as a union organizer occurred about a week after he asked
Blue to sign a union authorization card at the ice cream social5.
Grayson testified that a couple of days prior to the date that
the petition was filed, May 17, an employee at station 3, who
found a union authorization card on the windshield of his car,
reported it to a supervisor, Denise Grayson, a shift senior su-
pervisor, and Grayson’s wife, who reported it to him. Grayson
told her to tell Martha Hannah, HR manager about it and they
contacted counsel. In addition, he was informed that an em-
ployee of the Cy-Fair Hospital, Bram Duffee, was handing out
cards to the Respondent’s employees while they were dropping
off patients. On the evening of May 14, he sent an email to
Hannah and two supervisors, stating, inter alia:
I was contacted this morning by an employee about a postcard
that was left on the windshield of another employee’s vehicle.
The postcard was asking them to sign up to become a member
of “Cy-Fair EMS Employee Association.” Not knowing any-
thing about the attempt to form this association, I notified HR,
Board President and the Fire Chief…
I understand that several members have asked some of you on
what is going on and what is their intent. I can only speculate
that there is an attempt to start some type of union. I would
caution each of you to watch what you say on this subject to
your staff. I would suggest that you advise them to direct their
questions or concerns to the HR department.
On the morning of May 17, Grayson sent an email to all of
Respondent’s EMS employees stating: “I was asked to send this
Memo out to all by the HR Department.” Attached was the
Respondent’s Department Policies and Standards and a list of
rules the violation of which could result in discipline. The list
of rules is preceded by an Overview, which states: “Failure to
follow these guidelines may result in disciplinary action, up to
and including termination of employment.” This is followed by
a discussion of discipline, which is followed by 23 possible
causes for discipline, the final one on the list, highlighted, was

4 Armstrong’s Board affidavit states that prior to this May 3 meeting
with Berleth at HEB, he was not aware of any union activity at the
Respondent.
5 The affidavit that Armstrong gave the Board states that the ice
cream social occurred on May 10.
“Violation of the No Solicitation/ Distribution Policy,” without
any further specificity. In addition, Grayson asked all of the
supervisors if they had heard anything about attempts to organ-
ize the employees and each reported that this was the first they
heard of it. Subsequently, the Respondent conducted a meeting
in May and one in June for each shift at which time Grayson
answered questions that the employees had and informed the
employees that the Union had filed a petition and was attempt-
ing to organize them. He does not believe that at these meet-
ings he told the employees what they could and could not do on
company property. In answer to a question as to whether Blue
identified any employee who was distributing union literature,
he testified: “I do not believe I know of any during the meeting.
I know there was an email that I believe insinuated there were
some people.” He believes that there were three names in the
email, John Johnson and Bram Duffee, an employee of Cy-Fair
Medical Center. He did not testify who the third named em-
ployee was.
John Flemmons, Jr., who was employed by the Respondent
as a paramedic until he resigned in May 2012, testified that in
about the Spring of 2011, he spoke to Berleth about organizing
the Respondent’s employees; about a day or two later, Grayson
asked him to come into his office and with just the two of them
there, Grayson said, “I heard there was talk of a union” and
Flemmons said that he didn’t know anything about it. Grayson
told him that it was not in his best interest to get involved with
a union and he again denied having any involvement with a
union. Grayson testified that he never met with Flemmons in
his office and never spoke to him about the Union. After this,
Flemmons told Berleth that he didn’t mind helping out with the
Union, but to keep his name out of it. He also testified that at
an ATV rally in about February 2013, when he met Keith
Kercho, an employee of the Respondent, whose wife Stephanie
Littrell Kercho is a supervisor for the Respondent, Kercho told
him “don’t back off,” that everyone wanted to see what his next
step was, and Flemmons said that he shouldn’t worry about it,
that he and Berleth were in touch with a union and were talking
about putting a union together. Ms. Littrell Kercho was not
participating in the conversation, although she was listening to
it. Littrell Kercho testified that she was present at an ATV rally
where her husband and Flemming spoke, but she does not recall
what the discussion was about or whether there was a discus-
sion about the Union.
Courtney Johnson, who is the Interim Assistant Chief, EMS
for the Respondent, testified that the first time that she was
aware of any union activity was after Berleth “was gone,” alt-
hough she was not certain whether that was after his suspension
or after it was converted to a final termination on May 20. She
learned of it from a telephone call from Grayson, who asked if
she knew anything about union activity; she responded that she
didn’t and was not aware of any union activity on the part of
Armstrong.
B. Robert Berleth
Berleth worked for the Respondent as a paramedic from Au-
gust 2008 to May 20, when his suspension with recommenda-
tion for termination was approved by the Respondent’s Board
of Directors. With the exception of the final 30 days of his
CY-FAIR VOLUNTEER FIRE DEPARTMENT 9
employment when he was on A shift supervised by Denise
Grayson and Littrell Kercho, he was employed on C Shift su-
pervised by Jeff Low and Cindy King. Berleth was involved in
numerous incidents that resulted in warnings or counseling:
The Respondent has had a sexual harassment policy since at
least February 2009 and employees are required to sign a sexu-
al harassment acknowledgement form. On November 9, 2009,
Berleth was issued a Disciplinary Report and a 24-hour suspen-
sion for making inappropriate comments about a coworker. He
admitted making the statements and apologized.
On December 14, 2010, Berleth was given a written warning
for walking into a patient’s room at North Cypress Hospital,
with no prior contact. Berleth testified that he walked into a
patient’s room, which he should not have done, and an instruc-
tor in the room complained to his supervisor, which resulted in
the discipline.
On February 22, 2011, Berleth was given a CQI Occurrence
Report, which is counseling, rather than discipline, for an inci-
dent with a patient. Berleth testified that the patient was having
a panic attack and he administered a three lead electrocardio-
gram, which gives a general look at the heart. Low came in and
told him that he should use a twelve lead, which gives a more
detailed look. After this incident, Berleth met with Low, who
instructed him about the twelve lead electrocardiogram.
On March 28, 2011, Berleth was given an Employee Disci-
plinary Report for an Inaccurate Run record, for which he was
suspended for twelve hours. Berleth testified that in late 2010
or early 2011 the Respondent established a rule of mandatory
suspensions for employees who enter incorrect run or incident
numbers. He entered 04557 rather than 04457 and was sus-
pended. Other employees, including Armstrong, were also sus-
pended for violating this rule.
On April 21, 2011, Berleth was issued an Employee Disci-
plinary Report for an incident that occurred on April 5. The
incident involved a child who was taken to a hospital that did
not provide a high enough standard of care that was required
and had to be transported by helicopter to a Level 1 Trauma
Center. King testified that Berleth had turned over the patient
to a lower skilled level employee who made the incorrect de-
termination of the patient’s needs and he was given a 36-hour
suspension that was reduced to 24 hours.
On June 20, 2011, Berleth and Matt Fletcher allowed a
nonfire department employee to drive their ambulance while
they cared for the patient in the rear of the ambulance. The
initial punishment was a 60-day suspension, but Grayson re-
duced it to time served (2 days), plus an additional 24 hours.
Berleth testified that the patient was in such a critical condition
that he requested the civilian to drive the ambulance a short
distance, but not on a public road, because both he and Fletcher
were needed to care for the patient; he was sunctioning blood
out of the airway and Fletcher was attempting to stop the arteri-
al bleeding. Berleth’s notes about the incident state that he
made the decision based upon what he thought was best for the
patient and that Fletcher followed his order. Fletcher’s notes
state that he asked Berleth if he was sure that they needed the
civilian to drive the ambulance, and he said that he was.
Littrell Kercho testified that she was dispatched to a traumatic
injury that was going to involve a helicopter taking the victim
to the hospital, and when she approached the area she saw
Berleth and Fletcher’s ambulance, but she did not recognize the
driver. She told them that it was not appropriate to have a civil-
ian drive the ambulance for safety and insurance purposes.
Berleth stated that he was concerned about the patient and
whether the helicopter would be able to locate the ambulance,
although he understood that he was wrong in having the civil-
ian drive the ambulance. Denise Grayson, the senior supervisor
for the shift on that day, testified that was the first time that she
knew of an instance where a crew allowed a civilian to drive an
ambulance.
Berleth received a promotion and increase in pay when he
was promoted to an FTO position on August 21, 2011.6
On March 26, 2012, Berleth was given a written warning for
not being at work on time. He testified that he did not know
that he was supposed to work that day. He arrived at 7:20 a.m.
On September 14, 2012, Berleth was given a verbal warning
for disrupting the sleep of volunteers. He came into the room
where they were sleeping, turned on the lights and loudly yelled
for them to wake up. He was counseled about this.
December 17, 2012: The Respondent received a report from
a motorist that Berleth’s ambulance was driving in the wrong
direction on the Interstate 290 Service Road. Although Berleth
was not driving the ambulance, the evidence established that he
instructed the driver, Anthony Carpenter, to drive against the
traffic flow. In addition, Berleth was the FTO in charge on the
ambulance. As a result of this written warning, Berleth’s FTO
status was removed for 6 months, at which time it would be
reevaluated.
On January 28, 2013, Carpenter sent an email to supervisors
King and Low in which he stated that “with great hesitation and
reluctance” he was resigning, stating that “the hostile work
environment that Robert Berleth had created has left me no
choice,” stating:
I would like to give you a snapshot of Robert’s actions of the
past several weeks. Robert has taken every possible chance to
belittle me in front of the other staff members, volunteers and
students. Cindy was witness to one of these episodes while at
training last Friday. He told me to stand up, quit asking ques-
tions and let’s leave. The whole time he never stated where
we were going or why we were deviating from what every-
body else was doing. Later that same shift he told a patient
that had been involved in a domestic dispute and had been as-
saulted that he hoped that he used a baseball bat next time.
While he was trying to get the patient to press charges against
her boyfriend, it was still highly unprofessional and several of
the officers on the scene gave him a look. Robert rarely assists
in station duties and looks for every opportunity to not wash
his truck…He frequently refers to Cindy King as a “worthless
cunt.” In general, he rarely says anything positive about any-
body…He frequently makes innuendos to staff members at

6 Counsel for the General Counsel’s brief contains a typographical
error when it states (at p. 31): “The evidence shows that Respondent
did not treat Berleth’s three disciplinary actions between March 28,
2013 and June 21, 2013, as an impediment when it recommended and
approved his position to a training position with more responsibility
and more pay.” It was actually 2011.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
the hospitals. Because of his attitude and actions, I spend the
entire shift trying to avoid being in the same room with him.
On January 29, EMT Paramedic Reinhold Haussecker wrote
an email to Hannah in HR stating that while working with
Berleth on one shift, Berleth used obscenities to refer to King,
Grayson, Denise Grayson, and the Respondent generally. As a
result of these statements, Grayson, King, and Low met with
Berleth and told him to keep negative statements about
coworkers and supervisors to himself, and he was given a ver-
bal warning. Berleth testified that he was spoken to about these
allegations, but he was not aware that he was written up and
given a warning for them. As regards the language that he
used, he testified that King used equally colorful language to-
ward him: during a training meeting in 2010, while he was
texting or looking at his cell phone, she came up behind him
and slapped the back of his head and said, “pay attention, ass-
hole.” King testified that after the January 29 incident, Berleth
was transferred to a different shift because “it wasn’t a good
working environment, when you’ve got people calling you
names.” Denise Grayson testified that she has been friendly
with employee Lydia Garza for about 25 years. When Garza
was promoted to a paramedic position, she sent Garza an email
saying, “Way to go, ho.” Garza was not offended by it, but
Denise Grayson was spoken to by the fire chief about the email.
Flemmons testified that he was disciplined for making inappro-
priate statements to a nurse (no date given) and Tilbury testified
that the employees engage in “immature discussions” at times;
whether they are appropriate, depends upon the context.
There was an incident on March 28, when Armstrong, who
was scheduled to relieve Berleth, called in sick. Supervisor
Courtney Johnson sent an email to Denise Grayson about the
incident:
The morning of March 28th Craig Armstrong called in sick. I
called Station 1 to tell Robert Berleth he was being held be-
cause he did not have relief. He told me “that’s not going to
work, I have a meeting at 9 and I can’t stay.” I told him that
he had to stay and we would try to find someone to come in
and he proceeded to tell me that I needed to call other people
and hold someone else because he couldn’t stay. I told him
that I would let Habelow know and that he needed to stay.
When I hung up, I sent messages to see if anyone else wanted
to stay but was very upset with Robert for…the abrasiveness
of telling me what I needed to do and basically that he said he
wasn’t staying.
The Disciplinary Report for this incident states that he was
suspended, but without any specific period of time, for insubor-
dination. Berleth testified that he had a meeting to attend on
March 28, but he did remain on duty and missed the meeting.
He did tell Johnson that she should call somebody else to cover
for Armstrong, which is “pretty common.” He also suggested
that Fletcher would stay if they would agree to use an interme-
diate truck rather than a regular ambulance, which would mean
that they would not be able to provide the same level of care.
Johnson testified that the Respondent’s policy is that you have
to remain on duty for up to 12 hours if your relief doesn’t come
to work. Berleth remained at work that day to cover the shift.
March 30, 2013: After a drop off at North Cypress Hospital,
Berleth and his partner, Omar Dar, went to Starbucks to get
coffee for staff members at the hospital, a couple of miles
away. Littrell Kercho testified that on that date as she was
driving she saw their ambulance out of their responding territo-
ry. She attempted to contact them by telephone and radio, and
asked the dispatcher to do so, but they failed to respond. As
she drove to their vehicle, she saw Berleth coming out of Star-
bucks with coffee, and he told her that he was buying coffee for
the nurses at the hospital as they had requested. She testified
that although there were no emergency calls to respond to at
that time, the Starbucks location was about 10 to 15 miles out-
side of their designated territory which would have necessitated
a longer time for them to respond to a call. The other problem
was that they didn’t have permission to be outside their territo-
ry and didn’t respond to her calls. When she approached
Berleth on that day he told her that he didn’t see any problem
because he got coffee for the nurses all the time when he was at
Station 9. She told him that it was in Station 9 territory, but not
in Station 1, where he was presently stationed.
Berleth testified that because he sees the staff at North Cy-
press Hospital often, he has driven to get them coffee “very
commonly.” The reason: “If you keep them happy with you,
when you get into the hospital, you can get in, get out, and get
on with your life.” Otherwise, the hospital staff could make
your day difficult. When he went to Starbucks he had his radio
and phone, but never received a call. As he left Starbucks, he
saw Littrell Kercho standing by his ambulance, speaking to
Dar. In an email to Denise Grayson dated April 2, Dar stated
that the nurses wrote out their order on a piece of paper and
gave it to Berleth and after they got into the ambulance, he
asked Berleth if he was actually going to get coffee for the
nurses and he said, “heck no.” Although he considered it un-
professional to tell the nurses that he would get them coffee and
not do so, he was relieved that they would be headed back to
their territory. A few minutes later he realized that Berleth was
stopping at Starbucks for the coffee as promised.7 Tilbury testi-
fied that while employed by the Respondent he was friendly
with a lot of the hospital employees, but he never drove his
ambulance to pick up snacks for them, although he heard that
other employees have done so. He also testified that even when
they weren’t responding to a call or transporting a patient, they
were required to keep their radios on.
For the last 4 or 5 years the Respondent has had a policy of
allowing the crew members to take up to an hour to work out,
but they are required to keep their radio with them during this
period, in case they are needed for a call. Later in the day on
March 30, Berleth requested to be out of service for an hour to
work out, and Littrell Kercho told him that he could do so, but
that he should keep his radio with him in case he was needed.
A call came in and she attempted to contact Berleth and Dar,
but they did not answer. She responded to the call and while
she was en route, Berleth called her back and she told him of

7 While the Respondent allows its employees to eat at facilities ad-
joining their response areas, if not in them, Armstrong, Denise Gray-
son, and Jennifer Walls, vice president of the Board of Directors, testi-
fied that each vehicle has a map designating the areas that the employ-
ees are allowed to travel to.
CY-FAIR VOLUNTEER FIRE DEPARTMENT 11
the call, that Ambulance 5 was responding, but she needed him
to return to service and he said that he would. When she met
Berleth at the location of the call, he was “very abrupt and
rude” to her and the patient. Berleth testified that he regularly
took the hour of workout time and always kept his radio with
him. Very rarely have these workouts been interrupted by a
call and, on the day in question, he did not receive a call.
At the conclusion of work that day, the crew taking over
their ambulance reported that the heart monitor (Lifepack 15)
was not on the truck and that Berleth said that he had no idea
where it was. Littrell Kercho called him and she asked where
the monitor was and he was rude in answering, saying that it
was probably at Willowbrook, where their last call was. He
told her that Dar was taking care of it and the phone then dis-
connected. She checked their call times and found that their
last call was 8-1/2 hours prior to the shift change so the monitor
was missing from the truck for that length of time without their
knowledge. As Dar was caring for the patient, Berleth was
responsible for the monitor. She then called Dar who told her
that he was getting it, which he did and returned it to the ambu-
lance. Both Berleth and Dar were written up for this incident.
Dar’s email to Denise Grayson of April 2 states that after their
call to Willowbrook Hospital that day, he returned to their ve-
hicle to complete his report, Berleth got in, asked if he asked if
he was ready to go, he said he was and they left. They received
no other calls and went to bed. The following morning, after
completing his checkout routine, he got into his car to go home
when Berleth knocked on the car window and asked, “where is
the monitor?” He said that the oncoming crew said that the
monitor was missing and Dar reminded him that their last call
was at Willowbrook Hospital. Berleth tapped Dar’s automobile
and said, “go, go” and he drove to the hospital where he found
the monitor on a wheelchair near the ambulance entrance. The
Disciplinary Report dated April 4 states: “Due to multiple inci-
dents of insubordination and policy/procedure violations, I am
suspending Robert Berleth for 30 days with recommendation of
termination.”
Berleth testified that he believes that this incident with the
monitor was the first time that he had left equipment behind.
He didn’t realize that it was missing until the new shift came on
and said that it was missing. He asked Dar to retrieve it because
he was driving his motorcycle that day, and it was too big to
carry on the motorcycle. Flemmons, who was employed by the
Respondent for about 12 years until 2012, testified that it was
common for employees to leave equipment behind, because
they are often in a rush while performing their work. On some
of those occasions he discovered his error during the shift and
returned to the site to retrieve it. He has left stretchers, monitors
and computers at the hospital and was told, “Go pick it up and
don’t do it again,” but was never disciplined for it.
The Respondent has a procedure whereby employees can
appeal Disciplinary action. The supervisor’s recommended
disciplinary action would first go to the Respondent’s Board of
Directors, meeting in executive session to discuss the case.
They will decide whether to uphold or overrule the discipline.
If it is upheld, the employee can then appeal to the entire Board
of Directors, which meets once a month. By letter dated April
16, Berleth notified Grayson that he wanted to appeal the sus-
pension with recommendation for termination of April 4; on
April 24, Hannah notified him that his appeal would be heard
on April 29. After a hearing, Hannah notified him by letter
dated April 30 that the appeals committee upheld his termina-
tion, but that he could appeal that decision to the Board of Di-
rectors. On May 6, Berleth showed up for work stating that his
30-day suspension expired on May 4. Because of this, he was
given another disciplinary report extending his suspension,
pending termination, to 6 months. By letter dated May 13,
Berleth appealed his suspension pending termination to the
Board of Directors, which was meeting on Monday, May 20.
By letter to Berleth dated May 22, Hannah stated, inter alia:
“Based on the disciplinary actions you received on April 4,
2013, and prior disciplinary actions, the Board of Director’s
decision is to terminate your employment with Cy-Fair Volun-
teer Fire Department.” At both stages of his appeals, there was
no mention of union activity.
C. Craig Armstrong
Armstrong was employed by the Respondent as a paramedic
from 2008 to December 2013. As with Berleth, the Respondent
introduced numerous disciplinary actions involving him.
On July 26, 2010, Armstrong was issued a disciplinary report
because his vehicle and the station had not been cleaned and
that it lacked certain equipment and supplies. The relieving
crew told Littrell Kercho that they couldn’t believe the condi-
tion of the truck and the station. Armstrong testified that he
was one of three crew members at the time, but was the only
one disciplined. The write up states first offense, verbal warn-
ing. In addition, there was a further disciplinary report for
Armstrong that day for oversleeping at the shift change and for
punching out at 7 a.m. rather than 6 a.m.
On October 25, 2011, Armstrong was given counseling for
missing an excessive number of work days. The counseling
report states that he will receive a formal disciplinary report for
any future absences over the next 6 months.
On January 31, 2012, Armstrong was given a written warn-
ing for being slow in leaving for a cardiac arrest call. The poli-
cy is that the crew has to be on their way within 1–2 minutes;
his ambulance did not leave for 4 minutes. Armstrong testified
that he was unaware of the call. Justice testified that he called
them twice, but they did not respond and he had to send another
truck.
On February 8, 2012, Armstrong was given a written warn-
ing for failing to sign the narcotic checkoff form. All ambu-
lances are required to maintain up to date lists of narcotics
maintained on the ambulance, and he failed to do that on Feb-
ruary 8, 2012. The Respondent’s procedure is that each morn-
ing, the paramedic on the leaving and the incoming crew, to-
gether, inventory the narcotics on the truck. On the following
day he received another written warning and a 48-hour suspen-
sion for not waking up in time to sign the narcotic checkoff
form.
On March 9, 2012, Armstrong was given a written warning
and a 12-hour suspension for listing an incorrect date on a run
record. Armstrong testified that after he received this write up,
Habelow told him that he was receiving too many write ups and
that if they continued, it could jeopardize his job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
On March 12, 2013, Armstrong received a written warning
for leaving a box of clean dishes in front of the captain’s door.
Armstrong testified that when he reported for work that day, he
found a lot of clean dishes on the rack by the sink: “And I fol-
lowed the instructions of the captain of the fire station. I put
them in a box and I left them by his door, I knocked on the
door, and I left them there for him to see what was left behind
for us to take care of.” As a result of this incident, Armstrong
was assigned extra duties during periods that would have oth-
erwise been free time.
On March 30, 2013, Armstrong was given a written warning
for not awakening in the morning in time to perform the re-
quired tasks. The alarm goes off at 5:45, but Armstrong testi-
fied that he is hard of hearing and the volume was turned down
so he couldn’t hear it. Habelow testified that the Respondent
had a policy that employees are to be out by 6:05 and that this
was a recurring problem with Armstrong.
On May 15, 2013, Armstrong received counseling from
Habelow about his bedside manner. The counseling report
states that some of Armstrong’s crew members complained
about it and Habelow told him to listen to what the patients say
and to speak to them in a caring manner. On June 8, 2013,
Armstrong was counseled after he lost the fuel card for his
ambulance.
On July 31, 2013, Armstrong received a written warning and
a 12-hour suspension for leaving an oxygen bag at a patient’s
home. Armstrong testified that his partner that day, Roberto
Diaz, is the one who left the oxygen bag; however, the investi-
gation concluded that as Diaz is an EMT and Armstrong, as a
paramedic, Armstrong was in charge. In addition, the investi-
gation found that he was responsible:
Though Armstrong stated that he was doing patient care, on
further review of the call, the oxygen would not have been left
on the scene if he had appropriately treated the patient and
applied oxygen to the unconscious, unresponsive overdose
patient.
Diaz testified that he had been employed by the Respondent for
about 2 months when he went on that shift with Armstrong; it
was his only assignment with Armstrong. When Armstrong
completed taking care of the patient, he handed the bags to
Diaz, who handed them to the fire department employees as-
suming that they would put them in the ambulance. As they
were exiting the home, he asked one of the fire fighters if all
the bags got on the truck and he said yes. On the following
morning King called him and asked what happened to the oxy-
gen bag. He said that it should be on the truck, but she said that
it wasn’t, it must have been left on the scene, and Diaz offered
to get it. He was not disciplined for the missing oxygen bag.
Habelow testified that the crew is supposed to check their truck
after every call to be certain they are not missing any items. If
they catch it early enough, discipline is not warranted. In this
situation, it was warranted. In her write up about the incident,
she stated that it was Armstrong’s third written warning in
2013, in addition to two counseling sessions, all for the lack of
attention to details of the job, warranting a 12-hour suspension.
On August 3, 2013, Armstrong was given a verbal warning
for being late and was told that the next time he was late he
would be suspended. On August 27, he was given a written
warning for being late to work. He originally called to say that
he would not be in because his daughter was ill, but called
shortly thereafter to say that he would be in late as he found
somebody to take care of her. Habelow and Justice met with
Armstrong and Habelow told him that he had been written up
and counseled numerous times for attendance, poor bedside
manner and other issues and that the next time he is disciplined,
he would be suspended pending termination.
On October 8, Armstrong received an Employee Discipli-
nary Report stating that neither his ambulance nor the reserve
ambulance had been washed, the inventory had not been
checked and the ambulance would not start, and therefore had
not previously been checked, and that he was found in bed.
Paramedic, Jessica Cooper, who was part of the crew that re-
lieved Armstrong, wrote an email to Denise Grayson dated
October 7, stating that numerous supplies were missing from
the truck and that so many supplies were missing that it appears
that the prior crew never checked off the items when they went
into service. Justice testified that he regularly inspects the
trucks for cleanliness and supplies, performing about 150– 200
inspections yearly. He inspected Armstrong’s truck on October
8, and found that both the inside and outside of the truck were
dirty and that it was missing some equipment. The inspection
rating was unacceptable. When he went to the station to dis-
cuss it with Armstrong, he was sleeping. Habelow wrote: “This
is repeated offenses. It is recommended that due to work ethic
and repeated disciplinary issues that he be suspended with rec-
ommendation for termination” Armstrong appealed this deci-
sion, which was upheld by the appeals committee. However, at
the Board of Directors meeting on October 21, the termination
recommendation was overturned and was revised to provide a
48-hour suspension and a requirement of no write ups over the
following 6 months. The Board also determined that he should
be transferred to a different shift.
On November 13, Armstrong received a written warning for
providing an improper dose of medicine. He was working with
Supervisor Courtney Johnson that day with a patient in cardiac
arrest. She asked him to give her a vial of forty milligrams of
Vassopressin, but by mistake, he gave her 20 milligrams. John-
son testified that after he gave her the syringe, she felt that it
did not have the proper amount of Vassopressin so she asked
him if it was 40 units and he said yes. She asked him again and
he again said yes. She administered the medicine to the patient
and when she returned to the truck she found a full vial of
Vassopressin and realized that the patient had only been given
20, rather than 40 milligrams. She called Grayson and told him
what had occurred and that Armstrong appeared very nervous
during the call and that she felt that retraining, rather than ter-
mination, would be appropriate, and that is what they did.
On December 15, Armstrong did not report for work at 6
a.m. as scheduled. The crew and his supervisor called him on a
number of occasions, but he didn’t respond. He called in at
6:47 a.m. and said that he had taken medicine the prior evening
and had overslept. He was told that they had found relief and
that he should stay home. He came in that evening and Johnson
told him that due to the previous disciplinary actions, the matter
of what disciplinary action should be taken would be decided
CY-FAIR VOLUNTEER FIRE DEPARTMENT 13
by the Board of Directors. By letter dated December 19, Han-
nah notified Armstrong that the Board of Directors, at a meet-
ing on December 16, voted to terminate his employment.
Toward the conclusion of the hearing, the Respondent intro-
duced into evidence some disciplinary records of other employ-
ees to establish that Berleth and Armstrong were not “targeted”
because of their union activity. Among others, these records
show that four employees were disciplined from November
2011 to May 2013, for leaving equipment; one resulted in a
verbal warning, two, in written warnings, and one in a 12-hour
suspension. Four employees were disciplined from April 2011
to March 2012, for incorrect run records resulting in suspen-
sions of 12 or 24 hours. One employee was given a 24-hour
suspension in June 2012, for sleeping through an assignment,
and one received a written warning in October 2011, for not
cleaning his truck.
VI. ANALYSIS
It is initially alleged that on about May 17, Grayson distrib-
uted an email to its employees that threatened discipline up to
and including discharge for violating the No Solicitation/ Dis-
tribution Rule contained in the Handbook. I have previously
found that one portion of this No Solicitation/Distribution Rule
violates the Act and therefore, by threatening employees with
discipline up to and including discharge for violating this rule,
the Respondent violated Section 8(a)(1) of the Act. Finally, it
is alleged that on about September 5, Habelow threatened em-
ployees with discharge because they assisted the Union and
engaged in concerted activities. As I can find no record evi-
dence to support this allegation, I recommend that it be dis-
missed.
It is next alleged that Berleth was discharged and that Arm-
strong received written warnings, a transfer and suspensions
because of their union and concerted activities, in violation of
Section 8(a)(1)(3) of the Act. Obviously, a discharge can vio-
late the Act even when, as here, the alleged discriminatees have
numerous warnings and disciplines so long as the union or
protected activities, rather than their work record, prompted the
discharge. Under Wright Line, 251 NLRB 1083, 1089 (1980),
in Section 8(a)(1) or 8(a)(3) cases turning on employer motiva-
tion, the General Counsel must first make a prima facie suffi-
cient to support the inference that protected conduct was a “mo-
tivating factor” in the employer’s decision. If that is establish-
es, the burden shifts to the employer to demonstrate that the
same action would have been taken even in the absence of the
protected conduct. In Berleth’s case, I find that counsel for the
General Counsel has not satisfied its initial burden. Berleth and
Armstrong’s testimony regarding their union activity, is very
confusing. Berleth initially testified that the initial organizing
campaign began in early 2011 and ended in the Fall of 2011,
although he later testified that he distributed some cards in
early 2011, but really started collecting authorization cards for
IAFF in the Fall of 2012. However, he also testified that he
resumed his union activity in September or October 2012, alt-
hough it is not clear if these solicitations were for the IAFF or
the Union. The affidavit that he gave to the Board states that he
started obtaining authorization cards from the employees on
April 4, when he became more open about his union activities;
this is also the date that he was suspended pending termination
although that did not become final until the Board meeting on
May 20.
The only evidence that the Respondent was aware of
Berleth’s union activity is Flemmons testimony about his con-
versation with Keith Kercho at the ATV rally and Armstrong’s
testimony that while having breakfast with Justice, Justice told
him about Berleth’s involvement in starting up a union. How-
ever, as stated above, I do not credit Armstrong’s testimony
about this meeting with Justice. Further, even were I to credit
this testimony, as Justice said that he was in favor or the Union,
I find it unlikely that he would have reported this information to
the Respondent. Flemmons testified that Kercho told him (in
the presence of his wife, Supervisor Littrell Kercho) not to back
off, that everyone wanted to see what his next step was, and
that he responded that he shouldn’t worry about, it that he and
Berleth were talking about putting a union together. In addition
to the fact that this conversation would have occurred about 2
months before Berleth began soliciting cards for the Union,
Littrell Kercho did not participate in the discussion and testified
that she does not recollect the subject of the conversation. I
find this evidence too tenuous to establish that the Respondent
had knowledge of Berleth’s union activities at that time. Fur-
ther, Grayson’s May 14 email to Hannah and supervisors (the
veracity of which there is no reason to doubt) states that he
knew nothing about the Union’s organizational drive. Finally,
although the Respondent was aware of Berleth’s union activity
on May 17, when it received the petition, there was no mention
of his union activity at the Board of Director’s meeting on May
20, concurring with the termination decision. I therefore find
that there is no credible evidence establishing that the Respond-
ent was aware of Berleth’s union activity prior to May 17, and
recommend that this allegation be dismissed. I should also
state that even if I had found that the General Counsel had sus-
tained his initial burden herein, because of the lack of union
animus and the extent of the disciplinary actions against him8, I
would have found that the Respondent has sustained its burden
that it would have terminated him even absent his union activi-
ty.
Armstrong’s situation is different. The evidence establishes
that at a meeting on about May 15, Grayson told the employees
that they were not permitted to hand out cards while they were
on duty (or on the Respondent’s premises) and, as testified
credibly by Blue and Tilbury, Blue pointed to Armstrong and
said that he had given Blue a union card. The complaint alleges
that the Respondent violated Section 8(a)(3) by the following
conduct directed at Armstrong:
(a) August 5, written warning;
(b) August 19, written warning and suspension;
(c) August 27, transfer to another station;

8 In response to the discipline Berleth received for using obscenities
to refer to coworkers, supervisors and the Respondent, counsel for the
General Counsel defends that Denise Grayson was not disciplined for
her: “Way to go Ho” email to Garza. However, there is a big difference
between Berleth’s disrespectful emails, and Denise Grayson’s email to
a friend of 25 years.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
(d) September 5, written warning;
(e) October 8, suspension;
(d) December 18, discharge.
Prior to May 15, Armstrong was issued a verbal warning on
July 26, 2010, for oversleeping and because his truck had not
been cleaned and lacked some equipment and supplies; on Oc-
tober 25, he was given counseling for missing an excessive
number of work days; on January 31, 2012, he was given a
written warning for not responding promptly on a cardiac arrest
call and not answering calls from his supervisor; on February 8
and 9, he was given a written warning and a 48-hour suspen-
sion for failing to sign the narcotic checkoff list and then over-
sleeping on the following day and, again, failing to sign the
narcotic checkoff list; on March 9, 2012, he received a written
warning and a 12-hoursuspension for listing an incorrect date
on a run record; on March 12, he received a written warning for
leaving a box of dishes in front of the captain’s door; on March
30, he received a written warning for oversleeping; and on May
15, he received counseling for his bedside manner. These in-
fractions all occurred prior to, or on the same day that Grayson
learned that Armstrong had given a union card to Blue.
Post May 15 discipline: although the complaint alleges that
Armstrong was given a written warning on about August 5, he
received a verbal warning, signed by him and Habelow, for
being late on August 3. There was no written warning given to
Armstrong on about that date. As stated in the complaint, he
did receive a written warning and a suspension on August 19,
the date that it was signed by Armstrong and Habelow, for an
incident on July 31, when he and Diaz left an oxygen bag at a
patient’s home. The write up concluded that a suspension was
warranted because it was Armstrong’s third written warning, in
addition to counseling sessions, in 2013. The complaint next
alleges that Armstrong was transferred to another station on
August 27, but the evidence establishes that he was transferred
to another station after the August 3 verbal warning. He was
given a written warning on August 27, signed by Habelow on
September 6, for being late to work after first calling to say that
he wouldn’t be in because his daughter was ill; presumably, this
is the September 5 written warning alleged in the complaint.
The complaint alleges that the Respondent suspended Arm-
strong on October 8, and he was suspended pending termina-
tion on that day for not washing his truck, not checking the
inventory in his truck and being in bed when he shouldn’t have
been. Habelow wrote that the discipline was warranted due to
the repeat offenses. The Board of Directors overturned this
recommendation, revised the penalty to a transfer to a different
station and a 48-hour suspension as long as there were no fur-
ther write ups over the following 6 months. Armstrong received
a written warning on November 13, for a mistake in the amount
of medicine given to a patient and Johnson, his supervisor at
the time, recommended retraining, rather than termination and
Grayson agreed. The complaint alleges that he was discharged
on about December 18, due to the incident on December 15,
when he failed to report for work at 6 a.m. and called at 6:47 to
say that he had overslept due to some medicine that he had
taken. He was told that due to the previous disciplines, the
matter was before the Respondent’s Board of Directors, and at
a meeting on December 16, they voted to terminate him.
As the Respondent was aware of his union activities, I find
that Counsel for the General Counsel has sustained his initial
burden under Wright Line. The ultimate issue is whether the
Respondent has satisfied its burden of establishing that it would
have fired him even absent his union activities. Although there
is no evidence of animus toward him because of his union ac-
tivity, the Respondent was aware of it because of Blue’s com-
ment to Grayson at the meeting conducted on about May 15,
and issued him numerous warnings between that time and his
discharge on December 18. However, Armstrong also received
numerous warnings prior to May 15 as well, and an analysis of
the pre-May 15 warnings with the post-May 15 warnings shows
a distinct similarity. Of the discipline listed in the complaint,
the warnings of August 3, August 27, and his final warning on
December 15, are for being late and/or absent from work, the
same infraction that resulted in the warnings and counseling he
had received on that subject on July 26, 2010, October 25,
2011, and March 30 before there was any union activity. In
addition, the warning and suspension that he received on Octo-
ber 8 for not washing his truck was similar to the infraction that
resulted in the warning he received on July 26, 2010. The two
remaining post-May 15 disciplines are the July 31 incident
where he and Diaz left the oxygen bag at a patient’s home and
the November 13 incident when Johnson asked him for a vial of
40 milligrams of Vassopressin and he gave her only 20 milli-
grams. The only suspicious aspect of the warning and 12-hour
suspension that Armstrong received for the July 31 incident is
that Diaz was not disciplined for the incident. However, as the
Respondent’s witnesses credibly testified, as Armstrong was
the paramedic on the call, he was in charge. Further, Respond-
ent established that four other employees have been disciplined
for this error, one, a verbal warning, two written warnings and
one 12-hour suspension. Finally, the Vassopressin mistake that
Armstrong made was a serious mistake and could have resulted
in his immediate termination as provided by the Board of Di-
rector’s decision of October 21, in overturning his termination;
yet, instead of discharging him, they gave him retraining. It
appears to me that this, together with the Board of Director’s
decision on October 21, overturning the recommendation of
termination establishes that the Respondent was not out to get
Armstrong because of his union activities. I therefore find that
the Respondent has satisfied its Wright Line burden and rec-
ommend that the allegations regarding Armstrong be dismissed.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The following sections of Respondent’s Handbook and
Guidelines overly restrict employees in the exercise of their
Section 7 rights and violate the Act: Overview (p. 8), Blogging
(p. 20), Proprietary Information/Confidentiality (p. 22), Em-
ployee Record and Privacy (pp. 26–27), portions of the No
Solicitation/Distribution Rule (p. 23), Objective (regarding the
use of Respondent’s logo, name or pictures) and Item 6 of the
Guidelines.
3. The Respondent violated Section 8(a)(1) of the Act by
CY-FAIR VOLUNTEER FIRE DEPARTMENT 15
threatening employees with discharge for violating its No So-
licitation/Distribution rule.
4. The Respondent did not further violate the Act as alleged
in the complaint.
THE REMEDY
Having found that certain provisions of its Handbook and
Guidelines violate the Act, I recommend that Respondent re-
scind these provisions and notify all of its employees by elec-
tronic mail that this has been done and that these provisions
will no longer be enforced. There was testimony that the Re-
spondent has already revised its Handbook and I leave for a
Compliance hearing the issue of whether it must be further
revised. In addition to the above, Respondent shall post a no-
tice at each of its facilities notifying its employees about these
violations.
Upon the foregoing findings of fact, conclusions of law, and
on the entire record, I hereby issue the following recommend-
ed9
ORDER
The Respondent, Cy-Fair Volunteer Fire Department, Hou-
ston, Texas, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Enforcing the following provisions from its Handbook:
Overview, page 8, Blogging, page 20, Proprietary Infor-
mation/Confidentiality, page 22, No Solicitation/Distribution,
page 23, and Employee Record and Privacy, pages 26–27.
(b) Enforcing the Objective and Item 6 of its Guidelines.
(c) Threatening its employees with discharge for violating its
No Solicitation/Distribution Rule.
(d) 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) Notify all employees by electronic mail that these provi-
sions of the Handbook and Guidelines will no longer be en-
forced.
(b) Within 14 days after service by the Region, post at each
of its facilities in the Houston, Texas area, copies of the at-
tached notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representative,
shall be posted 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

9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
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 in-
volved 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 Respondent at
any time since June 1, 2011.
(c) 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.
IT IS FURTHER ORDERED that the remaining allegations of the
consolidated csssomplaint be dismissed.
Dated, Washington, D.C. October 22, 2015
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.
WE WILL NOT enforce the following provisions of our Hand-
book: Overview, page 8, Blogging, page 20, Proprietary Infor-
mation/Confidentiality, page 22, No Solicitation/Distribution,
page 23 and Employee records and Privacy, pages 26–27, and
WE WILL NOT enforce the following provisions in our Guide-
lines: Objective, regarding the use of Respondent’s logo, name
or pictures, and Item 6 and WE WILL NOT threaten to discharge
you for violating our No Solicitation/Distribution Rule.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL rescind the above mentioned provisions of our
Handbook and Guidelines, if we have not already done so, so
that they do not unlawfully restrict the rights guaranteed you by
Section 7 of the Act and we will notify all of our employees,
electronically that we have done so.
CY-FAIR VOLUNTEER FIRE DEPARTMENT
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/16-CA-107721 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273–
1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16