DirectTV Home Services

National Labor Relations Board - Administrative Judge Opinions

Aug 4, 2010

20-CA-034858 (N.L.R.B. Aug. 4, 2010)

JD(SF)–32–10
Sacramento, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DIRECTV, INC., d/b/a DIRECTV Home Services1
and CASE 20-CA-34858
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 340,
AFL-CIO
Curtis Mack and T. Warren Jackson, McGuireWoods, LLP,
of Atlanta, Georgia, for the Respondent
Halima Horton and Brennan W. Bolt (on brief)
Matthew C. Peterson of San Francisco, California,
for the General Counsel
Danielle Leonard, Altshuler Berzon, of San Francisco,
California, for the Charging Party
DECISION
Mary Miller Cracraft, Administrative Law Judge: This case was tried in Sacramento,
California on May 17, 2010,2 pursuant to the Amended Complaint and Notice of Hearing issued
April 303 alleging that Respondent, DirecTV, Inc. d/b/a DirecTV Home Services (Respondent)
unlawfully enforced its facially lawful no-solicitation, no-distribution rule by discharging quality
control technician Timothy Coddington (Coddington) for discussing the International
Brotherhood of Electrical Workers, Local 340 (the Union) while on work time in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act (Act).4 Respondent timely filed its
Answer admitting and denying certain allegations.
All parties were afforded full opportunity to appear, to introduce relevant evidence, to
examine and cross-examine witnesses, and to argue the merits of their respective positions.

1 Pursuant to General Counsel’s post-hearing motion to amend the pleadings (GC Brief
fn. 1), no party objecting in response to a Show Cause Order issued July 16, 2010,
Respondent’s name is corrected from DIRECTV Home Services, Inc. to DIRECTV, Inc. d/b/a
DIRECTV Home Services.
2 All dates are in 2010 unless otherwise referenced.
3 The original charge was filed by International Brotherhood of Electrical Workers, Local 340,
AFL-CIO, on January 19, and amended on April 30. The original Complaint and Notice of
Hearing issued March 10.
4 29 U.S.C. § 158(a)(1) and (3) provides, inter alia, that it is an unfair labor practice to
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights and to
discriminate in order to encourage or discourage membership in a union.
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On the entire record, including my observation of the demeanor of the witnesses,5 and after
considering the briefs of counsel for the General Counsel, Charging Party and Respondent, I
make the following findings of fact and conclusions of law.
Jurisdiction
Respondent is a California corporation with offices and a place of business in
Sacramento, California where it is in the retail business of installing and repairing satellite
television equipment and providing satellite television service. During the twelve-month period
ending December 31, 2009, Respondent derived gross revenues in excess of $500,000 and
purchased and received at its Sacramento, California facility goods valued in excess of $5,000
which originated from points outside the State of California. Respondent admits and I fine that
at all material times it was an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.6
Labor Organization Status
Respondent admits and I find that the International Brotherhood of Electrical Workers,
Local 340, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.7
Findings of Fact
Respondent maintains a facially valid policy regarding solicitation and distribution of literature.
Respondent’s solicitation and distribution of literature policy, which all parties agree is
facially valid, states, inter alia,
[Respondent] respects the right of its employees to express and share their
beliefs, ideas and opinions among each other. Such communications, however,
should never interfere with job responsibilities or disrupt the work environment.
Therefore, solicitation by employees on [Respondent’s] property is prohibited
when any person involved in the solicitation is on working time. Working time is
the time employees are expected to be performing their duties; it does not
include break or meal periods or time before and after work.
In addition, distribution of literature by employees on [Respondent’s] property in
work areas is prohibited at all times. Employees may distribute material only in
non-work areas such as, break rooms; cafeterias; elevator areas or kitchens, and
only during their non-work time.

5 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding. Witness demeanor and inherit probability of the testimony have
been utilized to assess credibility. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or documents or because it
was inherently incredible and unworthy of belief.
6 29 U.S.C. §152(2), (6), and (7).
7 29 U.S.C. § 152(5).
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Respondent Maintains a Safety and General Liability Progressive Discipline Policy
Pursuant to Respondent’s progressive disciplinary policy, certain vehicle safety
violations are subject to disciplinary action including verbal warning (informal counseling
session), written warning (written document placed in employee file), final written warning –
formal counseling (written document placed in employee file), suspension, and termination.
Termination is required when the vehicle safety policy mandates termination and when an
employee has repeatedly violated or broken a guideline or rule for which only one violation may
be tolerated.
Respondent also maintains personal safety progressive discipline policy applicable to
such matters as wearing a hard hat, using safety eye protection, wearing work boots, using
reflective traffic vests, securing ladders, and placing traffic cones and other traffic control
devices while working near a roadway. Pursuant to the personal safety progressive disciplinary
policy, failure to place traffic cones, for instance, results in a written warning for the first
violation, a suspension for the second, and termination for the third occurrence.
There is no rule which prohibits employees from engaging in social conversation while they are
on work time.
As Respondent’s rule regarding solicitation and distribution of literature states,
Respondent “respects the right of its employees to express and share their beliefs, ideas and
opinions among each other.” Human Resources generalist Brannan testified that Respondent
requires its employees to be professional and respectful in their communications. No specific
written rule was referenced although Brannan thought this might be included under professional
conduct – especially when employees were dealing with customers. Brannan testified that there
are no rules regarding what employees can talk about with coworkers while on the job.
During work time on August 6, 2009, employee Tim Coddington handed out cards announcing a
union meeting. Coddington received a verbal warning for violation of the solicitation and
distribution of literature policy by “distributing of Union Materials on company time and company
property.”
Utilizing his home computer, quality control technician Tim Coddington created a small
card which advertised a meeting with the Union to be held on August 7, 2009. The card was
approximately two inches by three inches in size and stated the time, date and location of the
meeting. The stated purpose of the meeting was to “attempt to organize workers.” While
checking the odometers of company vehicles, a work assignment, Coddington handed out these
cards to other employees.
On August 6, 2009, Coddington was verbally warned8 that he was not allowed to
distribute the cards during company time or on company property because it was a violation of
Respondent’s solicitation and distribution of literature policy. Coddington was given a copy of
Respondent’s policy at the time of the verbal warning. A written note was placed in his
personnel file memorializing the verbal warning stating that the reason for the reason for the
discipline was “distributing of Union Materials on company time and company property.” The
legality of this verbal warning is not at issue herein.

8 Pursuant to Respondent’s progressive disciplinary policy, a verbal warning and an informal
counseling are synonymous terms.
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While working outside a customer’s home on January 4, 2010¸ Coddington asked another
employee if he had signed a union card and spoke to the employee about the advantages of
joining a union.
On January 4, 2010, while on his route, Coddington came upon a DirecTV van parked at
the curb of a residence where Coddington was assigned to conduct a quality check. Service
technician Dale Winebrinner (not the original installer) had already arrived at this location to fix
problems resulting from initial installation, i.e., the installation that Coddington was supposed to
evaluate.
Coddington noted that Winebrinner’s service van was parked at the curb without the
requisite safety cones. Coddington called his supervisor for direction about the missing cones
and was told to document the situation. Taking the company-issued camera which he used for
documenting quality control inspections, Coddington exited his van, started taking notes, and
began photographing the van. Dale Winebrinner approached his van from the customer’s
house. Coddington asked Winebrinner if he had safety cones in the van. Winebrinner affirmed
that he did. Coddington told Winebrinner to put out his cones and Winebrinner did so while
Coddington continued photographing the van.
According to Coddington, he concluded his photography at the curb and went into the
customer’s house. Winebrinner stayed outside to work on the dish. After concluding his interior
quality control check, Coddington went outside to the customer’s driveway where he
encountered Winebrinner. Coddington asked Winebrinner if he had signed a union card.
Winebrinner did not respond so Coddington asked again if he had signed a union card.
Winebrinner said that he had not and asked what the benefits of signing would be. Coddington
said that a union might be able to help Winebrinner in situations such as this, and gestured
toward the van. Neither Coddington nor Winebrinner testified that Coddington gave Winebrinner
a union authorization card at any time during the conversation. After the brief exchange,
Winebrinner said that he thought they were not supposed to be talking about the Union.
Coddington agreed. All conversation about the Union ceased and both employees carried on
with their work. After training the customer on how to work the DirecTV system, Coddington left
the location and continued his route.
According to Winebrinner, he came out of the customer’s house and Coddington
approached him asking if he had safety cones. Winebrinner responded affirmatively.
Coddington then asked Winebrinner if he had signed a union card yet. Winebrinner said he had
not. Coddington began taking pictures of the van and of Winebrinner putting the cones out.
Coddington said “he wasn’t sure what kind of trouble I was going to get into for not having my
safety cones out and that if I had union representation that I would probably be in a better
situation . . . .” According to Winebrinner, Coddington then took some more pictures and then,
according to Winebrinner, repeated the same statement: he didn’t know what kind of trouble I
was going to get into, but some disciplinary action was probably going to happen because I
didn’t have my safety cones out . . . .” Finally, in response to the question, “And did he say, do
you recall his saying anything about whether your employment would continue?” Winebrinner
responded, “Well, he did say that he, you know, knew that this could be up to a terminating
disciplinary action but if I had a union representation, it probably wouldn’t be as harsh.” Then
according to Winebrinner, Coddington again said that Winebrinner would probably be better off
if he had a union representative to help him “in this kind of situation.” Winebrinner responded
that employees were not supposed to discuss the union on company time and Coddington
agreed.
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The log of pictures taken by Coddington indicates that four pictures were taken at the
curb over, at most, a two-minute period. Two were taken of the van. Two others showed the van
and Winebrinner.
After leaving the jobsite, Winebrinner called his supervisor Erick Lutz and reported that
he felt that Coddington was trying to coerce him into signing a union card. Winebrinner testified
that he told Lutz that whenever he said he had not made up his mind about signing a card,
Coddington took more pictures. Lutz told Winebrinner that he should talk to operations manager
Varnell the following day. Ultimately, Winebrinner was informally counseled about putting out
safety cones and he was given a verbal warning for failure to comply with the safety policy. As
mentioned above, the personal safety progressive discipline policy mandates a written warning
for the first failure to use traffic cones.
On January 5, Coddington was suspended pending investigation. The behavior cited for the
suspension was that Coddington “spoke about the advantages of joining a union to a service
technician while working at a customer’s home.”
At 2 p.m. on January 5, Coddington’s supervisor, Sean Brown, called him and told him to
report back to the facility. When Coddington arrived, he was escorted to the conference room by
Brown. Operations Manager Varnell and Human Resources generalist Brannan were waiting.
During the meeting, Varnell explained that Coddington had been reported for talking about the
Union during working hours. Coddington admitted that he had asked another employee if he
had signed a union card. Varnell discussed the solicitation and distribution of literature policy
and told Coddington that he was being placed on a non-disciplinary suspension while
Respondent investigated the incident.
Respondent investigated the incident from January 5 through January 13
Prefatory to discussing the investigation, it is important to note that the investigatory
reports and statements were admitted not to prove the truth of the matters asserted in the
documents but rather to show that certain statements were made. Moreover, some of the
statements include subjective feelings regarding the events. Such subjective characterizations
do not constitute a basis for my findings.
Brannan interviewed Winebrinner on January 5. Her written report indicates that after
Coddington asked Winebrinner whether he had any safety cones, Coddington then asked
Winebrinner if he had signed a union card. Winebrinner replied no. Then, according to
Brannan’s report, Coddington told Winebrinner that in a situation like this, a union might be a
benefit. Brannan’s report continues that Winebrinner stated that he felt “that by how Tim
phrased his words that if he signed a Union card, the issue of the safety cones would
disappear.”
Brannan and Varnell interviewed Coddington thereafter. Coddington agreed that he had
asked Winebrinner whether he had signed a union card.
Respondent’s investigation included a statement from Winebrinner as follows:
I, Dale Winebrinner, while on a service call, was returning from a
customer’s house to my work van and was approached by our QC technician Tim
Coddington and asked if I had safety cones on my vehicle. I replied yes and
started to place my cones out, at which time the QC tech asked me if I had
signed my union card yet, I told him no. The QC tech then said that would be one
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of the benefits of having a union negotiator to speak on my behalf in a situation
like this because he didn’t know what kind of trouble would come down on me for
not having placed my cones out upon arrival. He then took pictures of my van
while I proceeded to go to work. After he took pictures he then again approached
me and said that having a union rep could help me in a situation like this. I then
told him he was not supposed to be talking about the union on company time.
Coddington gave the following statement as part of the investigation:
The stress of having found a tech (for the first time) without his cones properly
protecting his van put me in a state where I was very upset about the possibility
of this tech being terminated for what seems like a minor mistake. It is my
understanding that after having been found in such a position once, then if he is
found again, it is an automatic termination. I asked the tech if he had filled out a
union card to request union representation. He replied by saying no, sounding as
if he was upset by the question, and by asking me what the advantage would be.
I told him it might be protection against “things like this,” and that ended any
union conversation.
Respondent questioned five other employees asking them, “Has QC Tech, Timothy
Coddington spoken to you about an unusual topic while at work or a topic that shouldn’t be
talked about during work hours?” All five employees responded without mentioning any union-
related work time conversation with Coddington.
Thus, Respondent’s investigation revealed that Coddington spoke to one employee
about the benefits of a union while on working time. There is absolutely no evidence that
Respondent’s investigation uncovered any evidence that Coddington did anything other than
talk with Winebrinner. Coddington and Winebrinner continued working throughout the
conversation. The investigation did not reveal that Coddington proffered a union card or any
other document to Winebrinner for signature. Thus, in this respect, Respondent’s investigation
and the testimony before me is identical in indicating that no union authorization or other written
materials were involved in the conversation between Coddington and Winebrinner.
Brannan testified that after conducting the investigation, she and Varnell concluded that
the incident had been “fairly egregious” and therefore she presented the report to, Nocita9,
director of human resources, and consulted legal counsel. Brannan testified that, generally with
terminations, human resources provides advice, but management ultimately decides whether to
terminate an employee. After consulting Brannan’s report and speaking with Brannan and
Varnell, Nocita made the decision to terminate Coddington.10 In making this decision, Brannan
testified that she, Varnell and Nocita considered the events that were reported on January 4 as
well as Coddington’s violation of the solicitation and distribution of literature policy in August
2009.

9 The record does not reference Mr. Nocita’s first name.
10 Varnell testified that he made the recommendation to terminate Coddington
approximately four to five days after Winebrinner submitted his written report.
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On January 14, Coddington was discharged for violating the solicitation and distribution of
literature policy on two occasions within 4 months.
On January 14, Brown and Coddington met with Varnell and Brannan in the conference
room. Varnell said that there had been an investigation as to whether Coddington had been
soliciting on company time. Varnell asserted that the investigation showed that Coddington had
been soliciting on company time and because Coddington had been warned on August 6, 2009,
for distributing leaflets, he was being terminated. Coddington asked if he was being terminated
just because of the question he asked Winebrinner. Varnell told Coddington that it was because
of the question and the surrounding circumstances. The Employee Consultation Form states:
Within the last 4 months, on two separate occasions, Mr. Coddington engaged in
misconduct in violation of the company’s no-solicitation/distribution policy by
distributing literature in working areas (August 6, 2009) and soliciting during
working time (January 4, 2010). The decision has been made that based on Mr.
Coddington’s repeated violation, despite receiving corrective counseling in
August, 2009, will result in his termination effective January 14, 2010.
Coddington was presented with and refused to sign a separation notice. Coddington
was then escorted off the premises.
Credibility Resolution
As between Coddington and Winebrinner’s testimony, I credit Coddington. Not only was
Coddington direct and straight forward while testifying, he also rendered a plausible account of
the events with genuine spontaneity. Moreover, the log of pictures taken by Coddington
indicates that the four pictures of Winebrinner and his van were taken in at most 2 minutes. This
tends to support Coddington’s recollection that he took the pictures and afterwards had a
conversation. On the other hand, Winebrinner’s testimony was rigid and appeared rehearsed.
Moreover, it is implausible that in such a vacuum of other conversation, a statement would be
repeated as often as Winebrinner testified. It also appears unlikely that such a limited amount of
conversation could have taken 15 minutes, as Winebrinner testified it did. Further, I note that
Winebrinner never stated at any time during the investigation that Coddington mentioned
discharge. When prompted at the hearing, Winebrinner testified that Coddington mentioned that
failure to place safety cones was up to a dischargeable offense. Thus, I find that Coddington
told Winebrinner that a union might save him from “this,” meaning getting in trouble for failure to
use safety cones. I find that Coddington did not tell Winebrinner that discharge was possible.
Conclusions of Law
By Enforcing its Solicitation and Distribution of Literature Policy to Prohibit Work Time
Discussion of the Union, Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
Although Respondent’s solicitation and distribution of literature policy is facially valid, I
find that it was unlawfully enforced regarding the Coddington/Winebrinner conversation on
January 4 to preclude employee discussion of the Union during work time. The record reflects
that Coddington merely asked Winebrinner if he had signed an authorization card.
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A no-solicitation rule is not violated when an employee merely asks a coworker if he has
signed a union authorization card. In Wal-Mart Stores, 340 NLRB 637, 639 (2003), enfd. 400
F.3d 1093 (8th Cir. 2005), the Board stated:
Once again, our analysis turns on the distinction between union
solicitation and other employee activity in support of organizing. “’[S]olicitation’ for
a union is not the same thing as talking about a union or a union meeting or
whether a union is good or bad.” [footnote citing W. W. Grainger, 229 NLRB 161,
166 (emphasis added)]. In recognition of this distinction, the Board found that an
employee did not engage in conduct lawfully proscribed by no-solicitation rules
when she merely asked a coworker if she had a union authorization card.
[footnote citing Lamar Industrial Plastics, 281 NLRB 511, 513 (1986)].
There is absolutely no evidence that Coddington gave Winebrinner a union authorization
card or any other document during their conversation on January 4. In fact, Coddington’s
uncontroverted testimony is that he did not have any authorization cards at the time. Further,
there is no evidence that Coddington’s actions required an immediate response from
Winebrinner. Accordingly, I find that Coddington’s question was not solicitation and therefore did
not violate Respondent’s facially valid no-solicitation policy.
Moreover, I note that an employer may not ban discussions about a union or other
protected, concerted activities during work time when it allows employees to engage in general
non-work conversation during work time. See, e.g., M. J. Mechanical Services, 324 NLRB 812,
814-15 (1997), enfd. mem. 772 F.3d 920 (DC Cir. 1998) (citing Willamette Industries, 306 NLRB
1010 fn. 2, 1017 (1992)).
By Discharging Quality Control Technician Timothy Coddington, Respondent violated Section
8(1) and (3) of the Act.
Based upon the record as a whole, I conclude that Respondent unlawfully terminated
quality control technician Coddington in violation of Section 8(a)(1) and (3) of the Act for
“soliciting during working time.” The evidence establishes that by “soliciting” Respondent refers
to Coddington’s conversation with Winebrinner. Nothing more than conversation occurred.
There is no evidence that either Coddington’s or Winebrinner’s production was affected. There
is no evidence that employees were not allowed to engage in social discourse while on work
time. Thus, Coddington was discharged for engaging in the protected activity of talking with a
coworker about the Union while on work time.
In NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964),11 the Court held
In sum, §8(a)(1) is violated if it is shown that the discharged employee at the time
was engaged in a protected activity, that the employer knew it was such, that the
basis of the discharge was an alleged act of misconduct in the course of that
activity, and that the employee was not, in fact, guilty of that misconduct.

11 The traditional discharge framework set forth in Wright Line, Wright Line Div., 251
NLRB 1083 (1980), enfd. on other grounds 662 F.2d 889 (lst Cir. 1988), cert. denied, 455 U.S.
989 (1982), affirmed in NLRB v. transportation Management Corp., 462 U.S. 393 (1983), is not
applicable herein because Coddington was discharged for conduct which occurred at a time
when he was engaged in the protected activity of discussing the union with a coworker. See,
e.g., White Electrical Construction Co., 345 NLRB 1095, 1096 (2005).
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Applying the Burnup & Sims framework to the facts of this case, I find that Coddington
was discharged for talking with Winebrinner about the Union. I find that Respondent knew that
Coddington was talking about the Union as evidenced by its language utilized in suspending
and discharging Coddington. As I have found no other misconduct was involved in the
conversation, Coddington was not guilty of any misconduct. Thus, his discharge violated
Section 8(a)(1) and (3) of the Act.
Citing Chicago Metallic Corp., 273 NLRB 1677 (1985), enfd. 794 F.2d 527 (9th Cir.
1986) and Classe Ribbon Co., 227 NLRB 406, 410 (1976), Respondent argues that Coddington
was guilty of misconduct because he threatened Winebrinner with loss of employment. In
Classe Ribbon Co., supra, the Board affirmed the judge’s finding that an employee who
threatened employees that they would be discharged if they failed to sign a union card, was
guilty of misconduct. Id., 227 NLRB at 410. Thus the Board affirmed the judge’s conclusion that
the discharge of the employee was not a violation of the Act.
In Chicago Metallic Corp., supra, the administrative law judge found that an employee
who, in the course of discussing the union, made unambiguous threats of violence and
statements that job loss would result from failure to support the union was guilty of misconduct.
Id. 273 NLRB at 1702. Thus, under the judge’s Burnup & Sims analysis, the employer did not
violate the Act in discharging the employee. Id. 273 NLRB at 1703.12
The record reflects that Respondent had absolutely no evidence of any threat of
discharge at the time it made its decision to terminate Coddington. The record reflects that
discharge was first introduced at the hearing in this matter and I have discredited that testimony.
Moreover, the record indicates that Respondent’s investigation showed no threat of discharge
and a threat of discharge was not mentioned in terminating Coddington. Respondent’s
investigatory statement given by Winebrinner states that Coddington statement said he didn’t
know what kind of trouble Winebrinner would get into for not placing safety cones by his van
(Winebrinner’s statement to Respondent). Respondent also had a report from Brannan after she
interviewed Winebrinner stating, “Mr. Coddington then said that in a situation like this a union
may be a benefit.” Finally, the discharge consultation form states in relevant part, “ . . . Timothy
Coddington spoke about the advantages of joining a union to a service technician while working
at a customer’s home.” No threat of discharge is mentioned. Thus, I find that the alleged threat
of discharge is pretextual.
Moreover, were I to credit Winebrinner’s statement that Coddington mentioned that “this
could be up to a terminating disciplinary action” in connection with urging Winebrinner to support
the union, my conclusion would not be altered. The discussion of Administrative Law Judge
William J. Pannier III in Twilight Haven, Inc., 235 NLRB 1337, 1342 (1978), is relevant:
Misconduct, however, will not be found readily, for both the Board and the
courts have granted considerable latitude to employees for argument and
counterargument in preelection situations, recognizing the “strong emotions”
generated by union activity. Id. [NLRB v. Burnup & Sims, Inc., 379 U. S. 21
(1964)] at 23. Thus, failure to exercise “finesse and gentility” in campaigning for
or against representation will not serve to divest employees of their statutory

12 I note that no exceptions were taken to the judge’s finding. It is well settled that the
Board’s adoption of a portion of a decision to which no exceptions are filed, does not constitute
precedent for any other case. See, e.g., ESI, Inc., 296 NLRB 1319 fn. 3 (1989).
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protection. Cement Transport, Inc., 200 NLRB 841, 845-846 (1972), enfd. 490
F.2d 1024 (C.A. 6, 1974); see also NLRB v. Efco Manufacturing, Inc., 227 F.2d
675, 676 (C.A. 1 1955). “Meaningful protection in this situation must require that
relatively minor incidents of misconduct, such as name-calling or somewhat
ambiguous or veiled threats, do not remove the Act’s protection from the
perpetrator, or suffice to legitimize his discharge.” Corriveau & Routhier Cement
Block, Inc., 171 NLRB 787, 788 (1968), enforcement denied in circumstances
presented 410 F.2d 347 (C.A. 1 1969). (footnote omitted).
The statement that failure to place safety cones could be up to a terminating disciplinary
action was true according to Respondent’s rules. Moreover, the statement falls far short of an
explicit threat of discharge. It is an ambiguous statement at best and does not warrant loss of
the Act’s protection. Thus, were Winebrinner’s testimony in this regard credited, I would
nevertheless find that the statement did not constitute misconduct.
THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily enforced its solicitation and distribution of literature rule to
prohibit work time discussion among its employees of union or other protected, concerted
activities while allowing all other nonwork-related discussion, Respondent must cease
maintaining and giving effect to the rule in this manner. The General Counsel argues that
Respondent’s solicitation and distribution of literature rule must be rescinded due to unlawful
enforcement of the rule to discharge Coddington, relying on Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004) (maintenance of a rule which does not specifically restrict Section 7
activity may nevertheless constitute a violation if it is enforced to restrict Section 7 rights).
However, the rules discussed in that case are open to interpretation and do not include a facially
valid no-solicitation rule. In this case, a more meaningful remedy for unlawful enforcement of
this facially valid rule is the Notice.13
Having discharged its quality control technician Timothy Coddington based upon its
discriminatory enforcement of its solicitation and distribution of literature policy and because of
his support for the Union, Respondent must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Further, Respondent must remove all documents from
Coddington’s personnel file regarding his discharge and investigation of his discharge and
inform him in writing that these documents have been removed and will not be used as a basis
for further personnel actions against him in the future.

13 I note that in Wal-Mart Stores, supra, the Board did not require that a facially valid no-
solicitation be rescinded even though it was unlawfully applied to prohibit an off-duty employee
from entering the selling floor wearing a union T-shirt.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
ORDER
Respondent DIRECTV, Inc., d/b/a DIRECTV Home Services, its officers, agents,
successors, and assigns,
1. Shall cease and desist from
(a) Interpreting and maintaining its solicitation and distribution of literature
policy to preclude work time discussion of International Brotherhood of
Electrical Workers, Local 340, AFL-CIO, or any other union or of any
other protected, concerted activity;
(b) Discharging or otherwise discriminating against any employee for work
time discussion of a union or of protected, concerted activity or for
supporting International Brotherhood of Electrical Workers, Local 340,
AFL-CIO, or any other union.
(c) In any like or related manner, interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days from the date of the Board’s Order offer Coddington full
reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed. Respondent shall also make
Coddington whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him in the manner set forth in the
Remedy section of this decision.
(b) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful discharge of Timothy Coddington and
within 3 days thereafter notify Coddington in writing that this has been
done and that the discharge will not be used against him in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all payroll
records and reports, and all other records, including payroll records,

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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social security payment records, timecards, personnel records and
reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of
backpay due under this Order.
(d) Within 14 days after service by the Region, post at its facility in
Sacramento, California, copies of the attached notice marked
“Appendix.”15 Copes of the Copies of the notice, on forms provided by
the Regional Director for Region 20, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since January 14,
2010.
(e) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. August 5, 2010

Mary Miller Cracraft
Administrative Law Judge

15 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(SF)–32–10
Sacramento, CA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain or discriminatorily enforce our solicitation and distribution of literature
policy to prohibit discussion of the International Brotherhood of Electrical Workers, Local 340,
AFL-CIO, or any other union.
WE WILL NOT discharge you or otherwise discriminate against you because you discuss the
International Brotherhood of Electrical Workers, Local 340, AFL-CIO, or any other union or
because you support the International Brotherhood of Electrical Workers, Local 340, AFL-CIO,
or any other union.
WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Timothy Coddington, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
WE WILL offer Timothy Coddington full reinstatement to his former job or, if that job not longer
exists to a substantially equivalent position, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
WE WILL make Timothy Coddington whole for any loss of earnings and other benefits suffered
as a result of his discharge, less any interim earnings, plus interest.
DIRECTV, Inc. d/b/a DIRECTV HOME SERVICES
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
JD(SF)–32–10
Sacramento, CA
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE COMPLIANCE
OFFICER, 415-356-5139.