Georgia Auto Pawn

National Labor Relations Board - Board Decisions

Feb 8, 2017

365 NLRB No. 26 (N.L.R.B. 2017)

365 NLRB No. 26
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.
Georgia Auto Pawn and Cynthia Johnson. Cases 10–
CA–132943 and 10–CA–142161
February 8, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On October 21, 2015, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Charg-
ing 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 considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified.3

1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by maintaining certain overly broad rules and
policies.
2 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 incor-
rect. 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.
The Board adopts the judge’s findings that both the disciplinary
warning and discharge of Cynthia Johnson were lawful. With regard to
the warning, Member Pearce and Member McFerran note, however,
that one of the two stated reasons for the June 17, 2014 warning to
Johnson, “failure to follow procedure,” referred to Johnson’s protected
concerted activity of speaking to coworkers about pay increases, and
that discipline for such conduct demonstrated animus. They nonethe-
less agree with the judge’s finding that Johnson would have been disci-
plined for the other stated reason in the warning: her insubordinate
behavior towards Area Manager Samantha Murillo during their June 9,
2014 telephone conversation. With regard to the discharge, Member
Pearce and Member McFerran do not rely on the judge’s finding that
the General Counsel failed to prove that Johnson’s protected concerted
activity was a motivating factor in her discharge. Instead, they agree
with the judge’s alternative finding that, even assuming the General
Counsel met his initial burden, the Respondent proved it would have
discharged Johnson for her behavior during the meeting with Regional
Manager Larry Smith on July 7, 2014. For these reasons, they adopt
the judge’s findings that both Johnson’s disciplinary warning and her
discharge were lawful.
Member Pearce and Member McFerran do not agree with Acting
Chairman Miscimarra’s protected concerted activity analysis, which
they note is not reflective of Board law.
Even if one assumes that Johnson engaged in protected concerted ac-
tivity, Acting Chairman Miscimarra agrees with his colleagues that the
Respondent lawfully disciplined Johnson for insubordination. Accord-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Georgia
Auto Pawn, Atlanta, Georgia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its Atlanta, Georgia facilities copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 10, after
being signed by the Respondent’s authorized representa-
tive, 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. 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 customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by

ingly, he finds it unnecessary to reach or pass on the judge’s finding
that Johnson’s conversations with coworkers about performance evalu-
ations and pay increases constituted protected concerted activity. He
disagrees, however, with Aroostook County Regional Ophthalmology
Center, 317 NLRB 218 (1995), cited by the judge, in which the Board
held that conversations about wages are inherently concerted. As he
explained in Hoodview Vending Co., 362 NLRB No. 81, slip op. at 5–7
(2015) (the former Member Miscimarra, dissenting), the notion that
conversations about certain subjects are inherently concerted cannot be
reconciled with Meyers Industries, 281 NLRB 882 (1986) (Meyers II),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988), in which the Board required that a con-
versation have an object of group action in order to qualify as concerted
activity. Meyers II distinguishes between conversations that look to-
ward group action, which are concerted, and mere griping, which is not.
In Acting Chairman Miscimarra’s view, to deem a conversation inher-
ently concerted based solely on its subject matter erases this distinction
and thus contravenes Meyers II. In addition, the courts of appeals have
uniformly rejected the theory of inherently concerted activity; see
Trayco of South Carolina, Inc. v. NLRB, 927 F.2d 597 (4th Cir. 1991),
and Aroostook County Regional Ophthalmology Center v. NLRB, 81
F.3d 209 (D.C. Cir. 1996), and the Court of Appeals for the District of
Columbia Circuit has criticized the theory as “nonsensical,” “limitless,”
and having “no good support in the law,” Aroostook County, 81 F.3d at
214. See Hoodview Vending, 362 NLRB No. 81, slip op. at 5–6 (the
former Member Miscimarra, dissenting).
3 We will modify the recommended Order to correct the date of the
contingent notice-mailing remedy.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
any other material. If the Respondent has gone out of
business or closed a facility involved in these proceed-
ings, 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 17, 2014.”
Dated, Washington, D.C. February 8, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Sally R. Cline, Esq., for the Government.1
Jonathan J. Spitz, Esq., for the Company.2
Cynthia Johnson, Pro Se3
DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. This
case involves the Company’s issuing the Charging Party a dis-
ciplinary warning on June 17, 2014,4 and discharging her on
July 7, and, its promulgating and maintaining, since June 18,
2012, alleged unlawful rules in its employee handbook restrict-
ing employees’: social media usage; oral and electronic com-
munication; and, solicitation on company property. It is also
alleged the Company, by Area Manager Murillo, during a tele-
phone conversation on July 9 prohibited employees from dis-
cussing wages. The cases originate from charges filed by John-
son on July 17 (10–CA–132943) and December 3 (10–CA–
142161). The prosecution of the cases was formalized on
March 4, 2015, when the Regional Director for Region 10 of
the National Labor Relations Board (the Board), acting in the
name of the Board’s General Counsel, issued an Order consoli-
dating cases, consolidated complaint and notice of hearing
(complaint) against the Company. I heard the cases in trial in
Atlanta, Georgia, on July 9, 2015.

1 I shall refer to counsel for General Counsel as counsel for the Gov-
ernment and the General Counsel as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and shall refer to the Respondent as the Company.
3 I shall refer to the Charging Party as the Charging Party or John-
son.
4 All dates are 2014 unless otherwise indicated.
The Company in its answer to the complaint, and at trial, de-
nies having violated the Act in any manner alleged in the com-
plaint.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. The parties entered into a one page
written stipulation of facts which was received into the record
as a joint exhibit. The Government called one witness and the
Company called two witnesses. I carefully observed the de-
meanor of the three witnesses as they testified and I rely on
those observations here. I have studied the whole record, and,
based on the detailed findings and analysis below, I conclude
and find the Company violated the Act only as indicated.
FINDINGS OF FACT
I. JURISDICTION AND SUPERVISORY AND/OR AGENCY STATUS
The Company, which is a corporation with a principal office
and place of business located in Atlanta, Georgia, has been, and
continues to be, engaged in the business of automobile title
pawn lending. In the past 12 months ending July 31, a repre-
sentative period, the Company derived gross revenues in excess
of $500,000 and purchased and received at its Atlanta, Georgia
facility products, goods, and materials valued in excess of
$5000 directly from suppliers located outside the State of
Georgia. The parties stipulate, and I find, the Company is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties admit, and I find that Company Area Manager
Samantha Murillo (Murillo or Area Manager Murillo), Region-
al Manager Larry Smith (Smith or Regional Manager Smith),
and Branch Managers Quinnience Williams, Ben Raimondi,
and Tameka Williams have been, and continue to be, supervi-
sors and agents of the Company within the meaning of Section
2(11) and (13) of the Act.
II. ALLEGED UNFAIR PRACTICES
Facts
A. The Government’s Evidence
Charging Party Johnson worked for the Company for ap-
proximately 2 years as a sales representative processing loan
applications and performing marketing duties from May 2012
until her termination on July 7. Johnson’s immediate supervi-
sor was Mableton, Georgia,5 store manager, Tameka Williams
who reports to Area Manager Samantha Murillo who reports to
Regional Manager Larry Smith.
Johnson testified that on May 30, 2 days after her second
year with the Company, Area Manager Murillo telephoned
instructions on how to repossess a car, something Johnson had

5 It is stipulated that in 2013 Johnson worked at the Company’s Ful-
ton Industrial Boulevard (Atlanta) location. Johnson raised safety
concerns regarding criminal activity at that location. After Johnson
raised these issues, she and Branch Manager Quinnience Williams
experienced interpersonal problems. The parties mutually agreed John-
son would be transferred to the Mableton location, where she would
work for a different supervisor. That branch was nearer to her home
and she perceived it was a safer area.
GEORGIA AUTO PAWN 3
not done before. Johnson testified her immediate store manag-
er could not help her with that because her manager “was out
again.” Johnson testified that near the end of the conversation
Murillo told her about her (Johnson’s) annual raise. Johnson
said Murillo told her she had worked really hard to get Johnson
a .03-percent raise and wanted Johnson to know that. Johnson
said that because Murillo emphasized the .03-percent amount
“something just said, you know, just go have a look at what you
got before.” Johnson looked and she had received a .05-percent
raise the year before. Johnson looked at the Company’s hand-
book and learned she was to be given a yearly performance
review which she never had.
Johnson testified she thereafter told Store Manager Williams,
who was returning from sick leave, that Area Manager Murillo
had informed her that her (Johnson’s) raise would be .03 per-
cent. Johnson asked Williams why she had not been getting
performance evaluations. Williams did not know.
Johnson testified she spoke by telephone with a couple of
unnamed nonsupervisory employees about the handbook.
Johnson testified she told them she had been reading the com-
pany handbook and they were to receive performance evalua-
tions on which their pay increases were to be determined.6
Johnson testified she asked the two employees if they knew
anything about that, and was told no. Johnson stated one of the
two employees told her that he/she had received a .03-percent
raise. The employee believed that was the maximum any em-
ployee could receive. Johnson told the employee, no, they
could get more. Johnson said she also spoke with Store Man-
agers Tameka and Quinnience Williams, as well as, with a store
manager named Frank. Johnson testified, “I called them, and I
said, you know I read in the handbook that we’re supposed to
be receiving performance evaluations and that’s how our pay is
determined.” Johnson asked the managers if they knew any-
thing about this. The managers did not know. She also asked if
they gave performance evaluations.
Johnson testified she thereafter tried to contact Area Manag-
er Murillo but they missed each other’s calls or texts. Murillo
ended up calling Johnson asking if someone had called. John-
son responded: “I’m like yes. I said I just need to go over my
performance with you, my raise or whatever.” According to
Johnson, Murillo said okay. Johnson asked Murillo how her
evaluation was determined. Johnson testified Murillo told her
she did “real good” and was a “good employee.” Johnson stat-
ed, “I sta[r]ted asking her questions” and “can you explain it.
And we went back and forth.” Johnson testified Murillo told
her about some areas she had never heard of and then “I don’t
know if she got frustrated, but she was like, well, you chose to
move to that location making less.” Johnson responded she
never chose that location that the Company moved her there
because she complained about safety. Johnson told Murillo
“and furthermore, I said, they told me that you were moving me
over here to help with the sales.” Johnson then named all the
things she thought improved sales at that location. Johnson

6 The employee handbook states, after addressing employee perfor-
mance reviews that “wage and salary adjustments are based on merit
alone, not length of service or the cost of living.”
testified Murillo “got frustrated and she said, well, it seems to
me that you have a sense of entitlement.” Johnson told Murillo
she did not feel she had a sense of entitlement that she just did
not feel proper protocol was followed. Johnson said she told
Murillo she had spoken to other employees asking them about
performance evaluations and added some of the managers
didn’t know about the evaluations. Johnson did not tell Murillo
which employees she had spoken with. Johnson testified Mu-
rillo told her “you’re not supposed to be talking to anybody
about anything about wages or anything” Johnson explained
she believed Murillo was in Macon, Georgia, in a meeting at
the time of the call. Johnson told Murillo she was recording
their conversation. Murillo responded Johnson was “not sup-
pose to be recording [their] conversation.” Johnson told Muril-
lo she had been reading the laws of Georgia and she was al-
lowed to record their conversation because she was a party to it.
Johnson testified that near the end of the conversation Murillo
told her she was getting off the telephone and for Johnson to
“go back to doing your sales job.” Johnson said, “I felt like she
was trying to demean—just put me down or whatever” and
Johnson told Murillo “well, you know, you need to do your
job.” When Murillo asked what she meant Johnson told Muril-
lo, “you need to do your job. I mean, we have —we’re trying
to call you when we’re doing sales, and you don’t answer or
anything like that.” Johnson said Murillo told her she would be
over there the next week to write her up for insubordination.
Johnson testified that after she went home she researched the
definition of “insubordination,” and prepared, before her meet-
ing with Murillo on June 17, a letter captioned “To Whom This
May Concern.” The letter, received by the Company on June
18, reads as follows:
General Counsel’s Exhibit-4
June 17, 2014
To whom this may concern:
On (date) 6-17-14, Samatha Murillo which is the area manag-
er of Georgia Auto Pawn presented me with a write up “titled
first warning.” The write up was a reprimand for insubordi-
nation. However, I strongly disagree with the charge and con-
test the false charges against me.
On the day in question, I never disobey an [sic] direct order
given by Samatha nor did I ever use any language that the
Company or courts would consider vulgar or profane, which
are grounds for misconduct and/or insubordination.
I’m requesting that this letter be included in my personel [sic]
file along with the formal write up.
Thanks You!
Best Regard
Cynthia Johnson 6/17/14
Johnson said she met with Murillo, along with Store Manag-
er Tameka Williams, and a gentlemen named Ben at the store
on June 17. According to Johnson, Murillo asked Williams “to
look out for the store” while Johnson and Murillo talked in the
back area of the store. Johnson testified Murillo “was already
hyped” and wanted to talk about their earlier conversation.
Johnson testified Murillo told her “you’re not going to be disre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
spectful towards me.” Johnson denied she was disrespectful
stating she “didn’t understand how you got the pay that you
gave me.” Johnson testified Murillo and Ben “pulled up” on
the computer numbers for Johnson to review regarding pay.
Johnson said she thought the meeting was going to be about
insubordination so at that point she pulled out the letter she had
written on insubordination the day before. Johnson testified
Murillo had an employee counseling form for Johnson with her.
Johnson read the form and asked for a copy. Murillo told her
she would have to get a copy from payroll. Johnson faxed a
written request to payroll for a copy.
The Employee Counseling Form reads as follows:
Employee Counseling Form
Location: GA1486 Date: 6/17/2014 RECEIVED
JUN 18 2014
Supervisor’s Name: Samantha Murillo, Area Manager
PAYROLL
Employee’s Name: Cynthia Johnson, Sales Representative
Warning: X Probation
Purpose and Reason for counseling
Insubordination and Failure to Follow Procedure.
On 06/09/2014 at 12:44pm the Area Manager spoke with the Sales Representative mentioned above, Cynthia Johnson.
During this conversation the Sales Representative informed the Area Manager that she had spoken with a few other employees
Of Georgia Auto Pawn re: her raise being 3% vs the 5% she received the year before. She also informed the Arena Manager
That she was recording this conversation. As the conversation was being ended due to the Sales Reps tone becoming agitated
And aggressive, she informed the Area Manager that maybe she should do her job and that she should also answer her phone.
Job Expectations and Desired Results
*Employees are expected to speak to their supervisors with a reasonable, respectful, and professional tone and attitude.
*The company’s telecommunication systems are to be used for business purposes only. Recording any conversations, in
Person or on the phone, will be strictly prohibited. This includes but is not limited to, conversations between co-workers,
Customers, or supervisors.
*All employees are required to adhere to company policy for resolving issues by following the proper chain of command.
As discussed, the behavior has negatively impacted the morale of other employees, led to lower productivity,
And even loss of customers by our company. This is not acceptable and will not be tolerated any longer.
Any further incidents of insubordination, not following company policy, or company procedures will result in termination.
The employees-handbook can be found on the Start Page>Employee Services>Employee Services Support.
EMPLOYEE TO COMPLETE THE FOLLOWING SECTION
Do you feel your supervisor’s expectations are reasonable? YES or NO
If NO, please explain: please refer to letter given to Area Manager.
I DO NOT AGREE with Finding /s/ CJ
Employee Signature: employee refused signature
Supervisor Signature: /s/Samantha Murillo GC Exhibit 5
/s/_____________________________________ 6/17/14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Johnson stated she was away from the store from approxi-
mately June 17 until July at which time she tried to speak with
someone about the writeup she had been given. Johnson testi-
fied she sent an email to Regional Manager Smith on July 7
stating in part: “Please accept this as a request for a one on one
meeting with you.” Johnson indicated she wanted to discuss
the disciplinary action taken against her by Area Manager Mu-
rillo on June 17. Johnson testified Smith telephoned her on
Monday, July 7, and told her he had been informed by corpo-
rate that she had sent an email and he would be over to speak
with her that Friday. Johnson testified she told Smith she
would like his boss, Hulse, to also be present. She said Smith
told her, “no,” that he would be the one coming. Johnson testi-
fied she told Smith:
Well, you know, I feel like that we came down this avenue,
and I’ve spoken with you regarding this, you know, incident
before, and I would really like Mr. Hulse to come with you?
Johnson said Smith told her, “the chain of command stops with
me.” She said she would be there on Friday.
Johnson testified Smith came to her store that same day, July
7, but she was at lunch when he arrived. When Johnson re-
turned from lunch Store Manager Williams told her Smith was
in the back of the store wanting to speak with her in the manag-
er’s office. When Smith saw Johnson he asked if they could
speak, which they did.
Johnson testified Smith then told her he had talked to Store
Manager Williams about a folder that was on Johnson’s desk.
Johnson testified Smith told her that Manager Williams had
said Johnson had just finished with a customer and went for
lunch and would finish with the folder when she came back.
Smith asked Johnson if she knew what the policy was for fold-
ers. Johnson told Smith she understood folders were to be
completed and put away before leaving work. Smith told John-
son she was to finish with a folder before she left at any time,
“and going forward that’s what you’re expected to do.” John-
son testified she did not know that was the policy, she thought
securing a folder at the end of the day was the policy but going
forward she would do as he had instructed.7
Johnson testified she asked Smith if they were going to talk
about the email she had sent that morning. According to John-
son, Smith said he had read the writeup and he agreed with it.
Johnson responded that if they were not going to go over her

7 Johnson acknowledged there had been a previous issue with a fold-
er being left on her desk on July 3. She had an employee counseling
form from Area Manager Murillo; however, she said she thought it was
just an audit to make sure employees were in compliance with company
policy. Johnson explained that on July 3, “I had been working by my-
self, and I got really busy, so I, like I normally do for a year-and-a-half,
I put the folder in my desk so that I could complete it the following day.
When I came in that morning, However, Ms. Murillo was already
there.” Johnson’s written protest to the employee counseling reflects
she had “never been told that files have to be completed before the end
of the day” and she did not agree with the counseling because she had
never been told about the Company’s system of filing of documents.
Johnson acknowledged no mention was made of this incident by Re-
gional Manager Smith in their meeting.
email what was the point of the meeting and asked if Smith had
a copy of the writeup. Johnson testified, “that’s when he got
frustrated . . .” and repeated he had read and agreed with the
write-up and stated, “If you don’t like it, get out.” Johnson said
she was “shocked because I thought that was the point of the
meeting.” She testified:
I said, so Larry, you’re going to tell me that you can’t—were
suppose to have a meeting to discuss the email I sent you—
and I said, you’re not even going to let me talk. I said I feel
like you’re being unfair and the meeting is pointless. And I
said as a matter of fact, I even feel like you’re violating my
rights.”
Johnson stated Smith, “got frustrated” opened the door and
said, “You can get out.”
Johnson testified Smith then went and sat at her desk. She
asked if he was firing her. She said Smith did not respond.
Johnson asked for, and received, her purse; shook Smith’s
hand; thanked him for the opportunity to have a job and left.
Johnson said that as she was leaving Regional Manager Smith,
“stuck his head out the door” and asked if there was anything
she did not understand. Johnson responded she did not know
what had just happen, but was he firing her. She said Smith
responded he was.
That same evening, July 7, Johnson sent an email to Hulse
explaining her work record and how she viewed the Company’s
treatment of her. Johnson requested to meet with Hulse. In an
email to Hulse of July 8, Johnson pointed out the Company was
required to provide her a separation notice on the date of her
separation or by mail within 3 days of her separation. Johnson
requested a separation notice.
Regional Manager Smith provided Johnson a July 8 separa-
tion notice reflecting she had been employed by the Company
from May 29 to July 7, 2012. The separation notice states
Johnson was terminated for “Insubordination [and] failure to
follow manager’s instructions.”
B. The Company’s Evidence
Area Manager Murillo, a 5-year employee, manages 13 of
the company locations in Georgia including the Fulton Indus-
trial, Atlanta, Georgia, and Mableton, Georgia locations. Mu-
rillo reports to Regional Manager Smith. Murillo explained
that all locations provide short-term consumer loans on vehicles
using the vehicle title as collateral and have two employees at
each location; namely, a branch manager and a sales repre-
sentative. Murillo said Charging Party Johnson, a sales repre-
sentative, started and first worked at the Fulton Industrial loca-
tion until December 2013 when she moved to the Mableton
location. Murillo met Johnson at the Fulton Industrial location.
Murillo testified that at the end of May she telephoned John-
son at the Mableton location to inform her of a wage increase.
Murillo testified: “we discussed the numbers [sales] and the
location [Mableton] and what warranted the increase and what
her increase [.03 percent] was, and she thanked me for that, and
that was the gist of the conversation.” Murillo described the
conversation, during which nothing else was discussed, as
pleasant.
Area Manager Murillo had a second conversation with John-
GEORGIA AUTO PAWN 7
son about Johnson’s wage increase in early June. After return-
ing from a “mini-vacation.” Murillo telephoned Johnson in
response to a voicemail of Johnson’s.
Murillo testified:
“Ms. Johnson was upset that her increase was only .03% that
year as opposed to the previous year, which she had informed
me it was 5 percent that year. During the conversation, we
reviewed the numbers again at her location, and she became
angry. As the conversation went on, she became louder and
was yelling to the point where at the end of the conversation I
had to end it because it just wasn’t going anywhere. She in-
formed me that she was recording that phone call.”
According to Murillo, Johnson did not mention the Georgia
Code when she told her she was recording their conversation.
Murillo testified Johnson told her she had asked, “other people”
what their raise was and felt she deserved better than average.
Murillo said Johnson did not, however, say anything about the
other people’s pay increases. Murillo testified Johnson did not
say anything about the Company’s pay system. Murillo stated
Johnson continued to get louder and “informed me that I should
do my job, that I should answer my phone.” Murillo told John-
son she was disrespecting the work place and they would talk
later after Johnson cooled down. Murillo denied telling John-
son that Johnson had a sense of entitlement.
Murillo testified she spoke again with Johnson at Johnson’s
location on June 17. Because their prior telephone conversa-
tion had not “gone well” Murillo was hopeful an in-person
conversation would go better. Murillo asked a fellow area
manager (Ben Raimondi) to go with her and “our hopes were to
re-explain again the process in which her raise came about and
to discuss how she spoke to me.” Murillo testified she did not
feel comfortable going alone because of “how defiant she
[Johnson] seemed over the phone.” Murillo took an employee
counseling form with her because she intended to write Johnson
up for insubordination during their prior telephone call. Muril-
lo could not recall mentioning her intention to write Johnson up
to anyone, but, added; “I may have mentioned it to my boss,
Larry Smith, but I don’t recall:”
Murillo and Area Manager Ben Raimondi met with Johnson
off the sales floor so as to allow Mableton Store Manager Wil-
liams to continue to operate the store. Murillo said she did not
immediately mention or present the employee counseling form
to Johnson because she wanted to talk with her about proper
conduct and working well with her coworkers and supervisors.
Murillo said, however, that as the conversation progressed
Johnson became “rebellious” towards anything I said,” “roll-
ing” her eyes and raising her voice so much that Area Manager
Raimondi interrupted Johnson telling her she needed to calm
down and pull back a little bit. At that point Murillo said she
gave Johnson the employee counseling form, allowed her to
read it, and, asked if she had anything to say. According to
Murillo, Johnson said she was not going to sign it and handed it
back to her and asked that her response be submitted with the
employee counseling form. Murillo described the tenor of the
meeting as “aggressive” explaining “she was yelling,” “rolling
[her] eyes,” “crossing the arms,” “lip smacking,” and “inter-
rupting my sentences.”
Murillo conducted a standard branch audit at the Mableton
store on July 3. During the audit Murillo said she discovered
incomplete files on Charging Party Johnson’s and Mableton
Store Manager Williams’ desks and gave both of them a coach-
ing form outlining how a file should be put together and what
the Company’s expectations were regarding the files. Murillo
testified that counseling forms are not disciplinary. According
to Murillo, Johnson was not happy with the coaching but not
nearly as aggressive as she had been during their previous con-
versations. Johnson made written responses on the counseling
form at that time.
Regional Manager Smith, a 12-year employee, is responsible
for the Company’s operations in Georgia. Six Georgia area
managers, including Murillo, report directly to him. Smith has
known Charging Party Johnson since a robbery incident oc-
curred at the Company’s Fulton Industrial (Atlanta) store.
Smith testified Johnson, told store customers and others she did
not feel safe after the incident and did not feel the Company
was doing enough for her. Smith visited the Fulton Industrial
store and asked Johnson “what can I do to make this an envi-
ronment you can work in?” Smith testified the Company in-
stalled lights; a buzzer system on the entrance door; gave em-
ployees a medallion to “buzz” people in and out of the store;
and, hired a security guard for 2 to 3 weeks at the store. Smith
testified the Company was able to satisfy Johnson by transfer-
ring her to the Mableton store location, which was closer to her
home “and she was happy with that.”
Regional Manager Smith testified he next visited with John-
son on July 7. Before Smith visited with Johnson on that occa-
sion he said he received a telephone call from Area Manager
Raimondi in which Raimondi told him that he and Area Man-
ager Murillo had visited with Johnson and that Murillo gave
Johnson a written counseling form for insubordination. Rai-
mondi told Smith that Johnson had gotten “very loud” and “bel-
ligerent” and if he had been her supervisor he would have fired
Johnson. Smith said he did not speak with anyone else about
going to visit Johnson’s store location. Smith specifically testi-
fied he did not speak that morning with his supervisor, Hulse,
about going to visit with Johnson. Smith also testified that
prior to his visiting with Johnson he was not aware she had sent
an email to Hulse that morning; in fact, Smith said he was una-
ware of Johnson’s email to Hulse until the trial of this case.
Smith further testified he did not speak with Johnson prior to
his visit, explaining, “I normally don’t tell people I’m going to
swing by. I just kind of swing by.”
Regional Manager Smith testified he visited the Mableton
store at around 3 p.m. on July 7, intending to speak with John-
son about getting along and working with her fellow workers
and supervisor. Smith said he wanted to talk with Johnson to
inform her he had gotten notice she had been written up, “and
that I wanted to make sure . . . we could keep her as a good
employee.” Smith did not; however, bring with him the June
17 writeup Johnson had been given. Smith explained his visit
was not about Johnson’s writeup; but, “It was about getting
along . . . because . . . she was loud and belligerent to [Murillo]
and [Raimondi] had witnessed it and . . . we’ve got a job to do.
Let’s try to get along, and let’s see what we can do.” Smith
said he did not intend to take any personnel action that day, nor,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
specifically, did he intend to terminate Johnson. Smith testified
it was his regular practice prior to terminating an employee that
he would prepare a State of Georgia separation notice and
“hand” it to the employee so the employee could take it when
he/she left the store. Smith took none of those steps before
visiting with Johnson on July 7.
Smith testified that when he arrived at the store Johnson was
not there; however, he noticed an incomplete file on her work
desk with “personal” and “confidential” information including
“a customer’s personal financial information.” Smith was con-
cerned that with “privacy laws nowadays” nothing should be
left out on a desk especially where, as here, the desk was acces-
sible to anyone visiting the store. Smith acknowledged he
probably was aware of a July 3 audit Area Manager Murillo
had conducted at that store at the time he visited.
According to Smith, Johnson returned to the store. Smith
asked to meet with Johnson in a private office so they could
talk about a matter; specifically, he wanted to talk with her
about leaving a file on her desk with personal information in it.
According to Smith, Johnson responded in a “short” “tart”
manner stating, “I’m not discussing that file.” Smith told John-
son they needed to discuss it. Smith said Johnson “got really
loud and belligerent” that she was not going to discuss it that
she wanted to talk about Area Manager Murillo and about
Smith’s supervisor, Hulse. Smith continued to say he and
Johnson needed to talk. Smith testified he again told Johnson
to “hold on a second” “we need to discuss this because this
information was left out in the lobby, and we can’t have that.
We need to discuss this.” Smith said Johnson responded that
she was not going to talk about it, that she only wanted to talk
about Murillo and Hulse. Smith testified:
And I said, Cynthia, this—I’m telling you we need to discuss
this file. And she said, no, I want to talk about Samatha Mu-
rillo. And I want to talk about Don Hulse. And I go, Saman-
tha [sic], we need to talk about this file. I’m not discussing
this file. And then we—that went on for 30 seconds to the
point she says I’m not talking to you at all.
Smith said the matter was at a stalemate and he told Johnson “if
you choose not to talk about this file, Cynthia, . . . if you’re not
going to speak, I think you need to leave.” Smith said Johnson
was “yelling and refused to speak” “crossed her arms and just
refused to speak.” As Johnson was leaving, Smith asked if she
needed anything from her desk. According to Smith, Johnson
responded, “No, I’ve got my shit.” Smith asked if there was
anything she needed before she left. Johnson asked “Are you
firing me?”
Smith specifically testified that nothing was said about Hulse
in this conversation other than Johnson’s saying she wanted to
talk about him. Smith testified Johnson made no comments
about complaining to Hulse and made no mention about her
wage increase or her prior writeup. Smith said they never
talked about insubordination.
After Johnson left Smith asked Alex Reiss, who was in an-
other office, if she heard what had just transpired. Reiss had,
and, Smith asked her to prepare a statement which she did.
Smith placed Reiss’ statement in Johnson’s personnel file.
Alexandra Reiss, in a separate affidavit given to the Board,
indicated she is employed by Automotive Remarketing, Inc.,
which is engaged in the business of selling repossessed vehi-
cles. Reiss has been employed since March 2014 and has
known Johnson during that time. Reiss described her duties as
sending and receiving titles, working hand-in-hand with auc-
tions, mailing titles, and other such duties. Reiss stated in her
Board affidavit that she worked at the Company’s Mableton,
Georgia location in an office separate from the Company’s sale
floor. Reiss is supervised by Paul Keel and not by any supervi-
sors or managers of the Company. Reiss explained in her affi-
davit that the door to her office is “usually shut” and that in
performing her duties she does not have access to the Compa-
ny’s (Georgia Auto Pawn’s) customer files. Reiss, in her Board
affidavit, states she was present at, and overheard portions of a
conversation between Regional Manager Smith and Johnson.
Reiss estimated the conversation last approximately 10
minutes. In her Board affidavit Reiss states, “I heard Johnson
yelling, but not Smith.” Reiss continued, “I heard Johnson
curse.” In a separate unsworn statement, solicited by the
Company while investigating this matter, Reiss stated:
07/05/2014
Today, July 7, 2014, Larry Smith came to Georgia Auto Pawn
around 3:00pm. He began having a conversation with Cyn-
thia Johnson, to what regards I’m not entirely sure. The week
prior Samantha Murillo, the area manager had been by to
speak with Cynthia also. That conversation was clearly audi-
ble through the door separating us. Cynthia turned very loud
and heated in her dealings with Samantha. I myself was un-
der the impression that Ms. Johnson would no longer be with
the company after that day. Though the following day she re-
turned to work. Today her conversation with Mr. Smith was
no different; she displayed an attitude of refusal and insubor-
dination. She neglected to answer any questions asked or
comply enough to have effective communication. That is all I
witnessed.
Reiss recalled in her affidavit that Smith asked Johnson
something to the effect that if she willing to do something, with
Johnson continually saying, “are you firing me.” Reiss stated
in her Board affidavit that she “did not hear Johnson or Smith
say anything about an email.” Reiss did not hear Smith say
anything about the chain of command stopped with him, nor,
did she hear Smith say anything to the effect that he agreed
with a writeup, and if Johnson did not like it she could get out.
Reiss stated she could not recall Johnson saying anything to the
effect she did not want to discuss a file, but did state, “It sounds
familiar Johnson saying that she did not want to discuss some-
thing, or wanting to discuss something else, but I can’t recall
any specifics.”
After leaving the Mableton store, Smith went to his office
and prepared the paperwork, a separation notice, for corporate
to send Johnson. Smith said that when he visited the store on
July 7, he did not intend to take any personnel action that day,
nor, did he intend to terminate Johnson’s employment. Smith
said Johnson’s employment with the Company was, however,
terminated on July 7.
GEORGIA AUTO PAWN 9
C. Discussion of Credibility Resolutions
It is necessary to make certain credibility resolutions.8
Whether Charging Party Johnson engaged in concerted activity
protected by the Act, and, whether concerted activity protected
by the Act motivated the Company to issue Johnson a discipli-
nary warning on June 17, and, to discharge Johnson on July 7,
requires credibility determinations.
In making my credibility resolutions I was impacted by im-
pressions I formed while watching the three witnesses; Charg-
ing Party Johnson, Regional Manager Smith, and Area Manag-
er Murillo testify. The impressions I gathered were based on a
combination of the witnesses overall bearing on the witness
stand, as well as, their mannerisms and how they responded to
questions they were asked both on direct and cross-
examination. I applied my observations as one, among other
factors, in deciding whether the witnesses’ testimony impressed
me as candid, fair, and believable. I note crediting certain tes-
timony will automatically discredit testimony of other witness-
es without having to so state. Although I have not commented
on every bit of testimony, nor resolved every possible credibil-
ity conflict, I have considered all the testimony and made the
necessary credibility resolutions. I am not unmindful that
sometimes the resolution of credibility conflicts are difficult
requiring the trial judge (or a jury) to rely upon a sixth sense
and/or instinct in arriving at a resolution of some conflicts leav-
ing open the possibility, small or significant, that the determina-
tions are erroneous. I have no doubt here. I do not need to rely
on a sixth sense, or instinct in making the credibility resolutions
I make.
I credit the testimony of the Company’s two witnesses. Re-
gional Manager Smith, in particular, impressed me as a very
credible witness. He answered all questions asked of him and
did not have to explain, walk back, or attempt to justify his
answers. Simply stated, as I watched him testify and listened to
his responses, I was persuaded he was attempting to testify
truthfully and candidly. I credit his testimony. Area Manager
Murillo also impressed me. She testified in a straight forward
and credible manner. I credit her testimony.
A number of places in Charging Party Johnson’s testimony,
particular on cross-examination, and at other points, in her nar-
ration of events, raised concerns as to the reliability of her tes-
timony. For example, Johnson, on cross-examination, testified
she told Area Manager Murillo that she (Johnson) was record-
ing their telephone conversation and she (Johnson) had re-
searched Georgia law and knew she was permitted to do so.
Johnson however, acknowledged that nowhere in the first affi-
davit she gave to an agent of the Board did she mention she had
told Murillo she was recording their conversation. Johnson
acknowledged, on cross-examination, that although she told
Murillo she was recording their telephone conversation she
really was not. Johnson’s explanation was not persuasive that
she thought she was recording the conversation in that she held

8 No credibility resolutions are necessary regarding the allegations
related to certain of the Company’s work rules as the language of the
rules is not in dispute.
her mobile telephone to the land line she was speaking on
thinking it was recording but it was not.
Johnson acknowledged, again on cross-examination, her tes-
timony, that Regional Manager Smith had, on July 7, tele-
phoned her earlier that day to say he was coming to visit with
her was not in her pretrial Board affidavit given within 3 weeks
of her termination. Charging Party Johnson also acknowledged
she did not mention anything in her first pretrial Board affidavit
about Regional Manager Smith telling her, on July 7, he had
discussed with Hulse an email Johnson had sent to Hulse before
Smith and Johnson met that day.
Johnson stated on cross-examination that after Regional
Manager Smith spoke with her on July 7, about the safekeeping
of a folder left out on her desk, she asked to talk about the
email she had sent to corporate. When Johnson was confronted
with one of her pretrial Board affidavits in which she had said
Smith was the first one who raised talking about the email sent
to corporate (Hulse) she explained; “but again, you’re right, it
[the affidavit] says he raised it right here [her affidavit], and
then now I’m saying that I raised it. So it was raised.” Johnson
then testified “that part” of her Board affidavit, “may not be
accurate.” Johnson also acknowledged there was nothing in her
first pretrial Board affidavit about she and Smith discussing the
email. Johnson explained, on cross-examination, that when she
gave her second pretrial Board affidavit 6 months after her
termination, she remembered more than she recalled in her first
pretrial Board affidavit given closer to the time of her termina-
tion. Johnson explained she did not include certain information
in her first pretrial Board affidavit, “Because the first time I
mean, I didn’t think it was relevant”, but, she added, “The sec-
ond time I wanted to make sure that I put everything in there.”
I find Johnson’s acknowledgments and attempts to explain
everything unfavorable to her away detracted from my being
able to rely on her testimony. Johnson’s testimony that she
remembered more details of events critical here, as additional
time lapsed, defies logic.
Johnson’s testimony on cross-examination, that she was not
frustrated with Area Manager Murillo when Murillo did not
return her telephone calls regarding her wage increase does not
ring true viewed in the light of Johnson telling Murillo that she
should do her job and answer her telephone. Johnson’s expla-
nation she was frustrated with Murillo for not returning previ-
ous business telephone calls is not persuasive.
Johnson’s testimony that Murillo told her that she (Johnson)
should not even be talking to her (Murillo) about her (John-
son’s) 3-percent wage increase is not persuasive as being truth-
ful because on cross-examination, Johnson acknowledged Mu-
rillo was the one that first telephoned Johnson and talked with
her about the wage increase. Stated differently, Johnson’s con-
tention that Murillo told her she should not even be talking to
Murillo about her wage increase defies logic because it was
Murillo who raised the wage increase with Johnson in the first
place.
The examples above, considered with my observation of her
demeanor as she testified, persuades me that I can not, and, I do
not, credit her testimony that conflicts with the testimony pro-
vided by the Company’s two witnesses. Simply stated, John-
son’s changes to, in-and-about, her testimony cast grave doubt
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
about the accuracy and truthfulness of her testimony.
D. Analysis, discussion and conclusions
1. Discussing wages
It is alleged at paragraph 6 of the complaint that about June
9, Area Manager Murillo, during a telephone conversation,
prohibited employees from discussing wages.
Murillo telephoned Charging Party Johnson at the end of
May at Johnson’s Mableton, Georgia, work location to inform
her of her wage increase.9 The telephone call occurred 2 days
after Johnson’s second year of employment with the Company.
Murillo discussed with Johnson sales numbers for the Mableton
location and explained what formed the basis of, or, warranted
the amount of the increase Johnson was being given in her an-
nual raise. Murillo told Johnson her increase would be .03-
percent. Johnson thanked Murillo. . The exchange was pleas-
ant with nothing else discussed.
After arriving at home that evening (May 30) Johnson re-
viewed her pay records and determined she had received a 5-
percent annual raise the previous year. Johnson, in an effort to
determine how her annual raise was lowered, reviewed the
Company’s employee handbook and noted employees were to
be given an annual performance evaluation. Johnson had not
previously been given an annual review. When Johnson’s su-
pervisor, Mableton Store Manager Tameka Williams, returned
from sick leave, Johnson asked why she had not received annu-
al reviews. Williams did not know. Johnson said she thereafter
spoke, by telephone, with two employees about the Company’s
handbook telling them the handbook indicated they were to
receive annual performance evaluations on which their pay
increases were based. Johnson asked the two employees if they
knew anything about evaluations and they did not. Johnson
said one of the two employees told her she had received a 3-
percent annual raise and thought that was the maximum an
employee could receive. Johnson told the employee they could
get more. Johnson said she spoke with two store managers in
addition to her store manager and they each told her they did
not know about the performance evaluations or how the evalua-
tions related to determining employees’ annual raises.
Johnson, who was upset with the amount of her annual raise,
attempted to telephone and/or text Murillo several times be-
tween the end of May and June 9. The two missed each other’s
calls and texts until Murillo, after returning from a short vaca-
tion, telephoned Johnson on June 9 in response to a Johnson
voice mail. They spoke. Johnson told Murillo she needed to
go over with her Johnson’s job performance and the raise
amount she had been given. Johnson was upset that her annual
raise was only 3-percent rather than the 5-percent increase she
received for the previous year. Murillo told Johnson she was a
good employee that performed well. Johnson told Murillo she
had spoken with other people about their raise and felt she de-
served better than average.

9 As noted elsewhere here I do not rely on the testimony of Johnson
if it is contradicted by other testimony. I have, however, set forth and
rely on portions of Johnson’s account of events, or actions she took,
that are not contradicted or disputed.
Johnson’s testimony that Murillo at that point told her she
should not be discussing wages with anyone, not even Murillo,
was credibly denied by Murillo.
Murillo went over the numbers with Johnson for Johnson’s
location. Johnson became angry and “became louder and was
yelling to the point where at the end of the conversation I [Mu-
rillo] had to end it because it just wasn’t going anywhere.”
Murillo told Johnson that they would talk again when Johnson
had a chance to cool down. Johnson informed Murillo she was
recording their conversation.
Johnson’s testimony that she told Murillo she had been read-
ing the laws of Georgia and she was allowed to record their
conversation was credibly denied by Murillo. In fact, Johnson
never actually recorded the conversation.
Murillo told Johnson that she (Johnson) needed to go back to
doing her sales job. Johnson felt that Murillo’s emphasizing
her “sales job” was an attempt by Murillo to demean or put
Johnson down. Johnson told Murillo, “well you know, you
need to do your job.” Murillo asked Johnson what she meant
and Johnson told Murillo; “I said you needed to do your job. I
mean we have—we’re trying to call you when we’re doing
sales, and you don’t answer or anything like that.” Johnson
continued to get louder. Murillo told Johnson she would be
back later to write her up for insubordination.
In light of the above-outlined facts, I dismiss the complaint
allegation that Murillo, on June 9, in a telephone conversation,
prohibited employees form discussing wages because no credi-
ble evidence was presented to substantiate the allegation.
2. Johnson’s June 17 discipline
It is alleged at paragraph 9 of the complaint that the Compa-
ny issued Charging Party Johnson a disciplinary warning on
June 17, because Johnson had engaged in concerted activities
with other employees for the purpose of mutual aid and protec-
tion by discussing wages, and by protesting the amount of her
wage increase.
After work on June 9, Johnson went home and researched
the word “insubordination.” She then prepared, before the June
17 meeting with Murillo, a “To Whom This May Concern”
letter. In the letter Johnson explains that Murillo on “6-17-14”
(an inked-in date) presented Johnson a writeup “titled first
warning” and Johnson noted it was for insubordination. John-
son strongly disagreed in her letter and asserted the charges
were false. Johnson wrote she did not refuse a direct order nor,
use profanity which she wrote are grounds for insubordination.
Johnson requested her letter be included in her personnel file.
Murillo’s credited testimony establishes she and Area Man-
ager Ben Raimondi met with Johnson at Johnson’s work loca-
tion on June 17. The purpose of the meeting was twofold; to
re-explain the process that resulted in Johnson’s raise and the
amount of the raise, and to address how Johnson had spoken to
Murillo in their earlier telephone conversation. Murillo took an
employee counseling form with her to give to Johnson for in-
subordination. Murillo did not immediately mention or present
the employee counseling form to Johnson because she wanted
to talk with Johnson about proper conduct and working well
with coworkers and supervisors.
Johnson said Murillo told her she (Johnson) was not going to
GEORGIA AUTO PAWN 11
be disrespectful towards her (Murillo). Johnson contended she
was not disrespectful. As the conversation progressed, Murillo
credibly testified Johnson became “aggressive,” “rebellious,”
“yelling,” “rolling [her] eyes,’ “interrupting [her] sentences,”
“lip smacking” and “crossing [her] arms.” Murillo credibly
testified Johnson raised her voice so much that area manager
Raimondi told Johnson to calm down and pull back a bit. Al-
exandra Reiss, an employee of Automotive Remarketing, pro-
vided a pretrial affidavit to the Board, as well as, an unsworn
statement to the Company during the investigation of this case.
In her statement to the Company Reiss described Johnson as
“very loud and heated in her dealing with [Murillo]. I myself
[Reiss] was under the impression that Ms. Johnson would no
longer be with the Company after that day.” Murillo gave
Johnson the employee counseling form at that time, allowing
Johnson to read it. Murillo asked Johnson if she had anything
to say. Johnson returned the employee counseling form back to
Murillo and stated she was not going to sign it. The employee
counseling form, set forth in full elsewhere here, reflected the
purpose and reason for the counseling was “Insubordination
and Failure to Follow Procedure.” More specifically, the em-
ployee counseling form refers to the early June telephone con-
versation between Murillo and Johnson noting that Johnson had
told Murillo that she had spoken to a few other employees
about her annual raise being .03 percent instead of the same as
the previous year’s .05-percent raise. The employee counseling
form indicates Johnson had said she was recording the early
June telephone conversation. The employee counseling form
also reflects the telephone conversation had to be ended be-
cause Johnson’s tone became agitated and aggressive and that
Johnson told Murillo she should do her job and that she should
also answer her telephone. On the employee counseling form
Murillo set forth certain job expectations and desired results
which were:
Employees are expected to speak to their supervisors with a
reasonable, respectful, and professional tone and attitude
The Company’s telecommunication systems are to be used
for business purposes only. Recording any conversations, in
person or on the phone, will be strictly prohibited. This in-
cludes but is not limited to, conversations between co-
workers, customers, or supervisors.
All employees are required to adhere to Company policy for
resolving issues by following the proper chain of command.
As discussed, the behavior has negatively impacted the moral
of other employees, led to lower productivity, and even loss
of customers by our Company. This is not acceptable and
will not be tolerated any longer.
Any further incidents of insubordination, not following com-
pany policy, or company procedures will result in termination.
The employees-handbook can be found on the Start
Page>Employee Services>Employee Services Support.
It is helpful to review certain guidance of the Board and
courts regarding concerted activity to include, under what cir-
cumstances, it will or will not be protected under the Act. Sec-
tion 7 of the Act guarantees employees the right to engage in
concerted activity for the purpose of collective bargaining or
other mutual aid or protection. Section 8(a)(1) of the Act
makes it an unfair labor practice “for an employer to interfere
with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7.” For an employee’s activity to be
“concerted” the employee must be engaged with or on the au-
thority of other employees and not solely on behalf of the em-
ployee him/herself. Meyers Industries (Myers I), 268 NLRB
493 (1984), and Meyers Industries (Meyers II), 281 NLRB 882
(1986). The statue requires the activity under consideration be
“concerted” before it can be “protected.” Bethany Medical
Center, 328 NLRB 1094, 1101 (1999). As the Board observed
in Meyers I “Indeed, Section 7 does not use the term ‘protected
concerted activities” but only “concerted activity.” It goes,
without saying, the Act does not protect all concerted activity.
In Meyers Industries (Meyers II), 281 NLRB 882 (1986), enfd.
sub. nom. Prill v. NLRB, 835 F.23d 1481 (D.C. Cir. 1987), the
Board made it clear that under proper circumstances a single
employee could engage in concerted activity within the mean-
ing of Section 7 of the Act. The question of whether an em-
ployee has engaged in concerted activity is a factual one based
on the totality of the record evidence. See, e.g., Ewinc v.
NLRB, 861 F.2d 353 (2d Cir. 1988). It is clear the Act protects
discussions between two or more employees concerning terms
and conditions of employment. Few topics are of such imme-
diate concern to employees as the level of their wages. Eastex,
Inc. v. NLRB, 437 U.S. 556, 559 (1978). Communications are
concerted even if one employee is the speaker and the other
employee is merely a listener. The discussion of wages is pro-
tected concerted activity because wages are vital, and perhaps
the most critical, of terms and conditions of employment and
the grist on which concerted activity feeds. Aroostook County
Regional Ophthalmology Center, 317 NLRB 218, 220 (1995),
and the cases cited there. The Board has long held, however,
that for conversations between employees to be found protected
concerted activity, they must look toward group activity, and
mere griping is not protected. See Mushroom Transportation
Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964). Once the activity is
found to be concerted activity an 8(a)(1) violation of the Act
will be found if, in addition, the employer knew of the concert-
ed nature of the employees activity, the concerted activity was
protected by the Act and the adverse employment action at
issue (here discipline) was motivated by the employee’ protect-
ed concerted activity.
Here Johnson discussed her annual wage raise with other
employees, as well as some managers. In arriving at this con-
clusion, I am not unmindful no employees, or for that matter
managers, were called to support Johnson’s testimony on this
point. Nevertheless, Murillo recognized as much by writing in
Johnson’s employee counseling form that Johnson had told her
she had spoken with a few other employees about her annual
raise. Johnson said she told at least one of the employees she
(the employee) was not limited to a .03% raise. I find Johnson
engaged in concerted activity, protected by the Act, and that
management, in fact Murillo, was aware of Johnson’s activity.
I am, however, persuaded that, on this record, the disciplinary
action Murillo took was not unlawfully motivated. Here the
discipline was given to Johnson as a result of a telephone con-
versation with Murillo in early June in which Johnson “became
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
louder and was yelling to the point” where Murillo had to end
the conversation. However, before the conversation ended
Johnson became offended that Murillo told her to “go back to
work doing your sales job.” Johnson found Murillo’s return to
work instruction to be demeaning and a put down so she told
Murillo, “well, you know, you need to do your job” and contin-
ued that Murillo needed to answer her telephone, and “you need
to do your job. I mean, we have—we’re trying to call you
when we’re doing our sales, and you don’t answer or anything
like that.” During the meeting, Murillo discussed with Johnson
her annual raise and reviewed the numbers for Johnson at that
location which numbers determined the amount of Johnson’s
raise. Johnson became upset because her raise was .03 percent
rather than .05 percent. That is understandable. Johnson’s
outburst, however, is not understandable and was not provoked
by any unfair labor practices on the part of the Company.
Johnson simply did not want to be told to return to her sales job
work. Instead, Johnson gave Murillo a procedure for Murillo to
improve her (Murillo’s) job performance in that she (Murillo)
should do her own job and answer Johnson’s telephone calls. I
find Johnson’s comments were not just mere disrespect for
Murillo’s authority when Murillo asked Johnson to return to her
sales job but were a willful rebuke, and, a defiant disregard for
Murillo’s job-related directive to Johnson and interfered with
the constituted industrial authority necessary for Murillo to
maintain discipline and direct her work force. I find Murillo’s
disciplinary warning was not unlawfully motivated and dismiss
that portion of the complaint.
Although the disciplinary warning given Johnson on June 17
was directed toward Johnson’s conduct during the early June
telephone conversation between she and Murillo their June 17
face-to-face meeting provides further insight into Johnson’s
conduct and actions and Murillo’s responses thereto.
Murillo and fellow Area Manager Raimondi met with John-
son at the Mableton store location on June 17. Murillo asked
Raimondi to go with her because of “how defiant [Johnson]
seemed over the phone when they spoke in early June.” The
credited evidence establishes that Murillo attempted to cover
with Johnson proper conduct and working well with her
coworkers and supervisors; however, as the conversation pro-
gressed, Johnson became “rebellious” toward anything Murillo
said raising her voice and “rolling” her eyes. Johnson became
so loud that Area Manager Raimondi interrupted Johnson tell-
ing her she needed to calm down and pull back a little bit. Mu-
rillo described the tenor of the meeting as aggressive stating
Johnson was “yelling,” “rolling her eyes,” “crossing [her]
arms,” “lip smacking” and “interrupting [Murillo’s] sentences.”
Automotive Remarketing, Inc. employee Alex Reiss, whose
work location, is at the Mableton store, but, in a separate area
of the store overheard the conversation, which she described as,
“clearly audible” and provided a statement to the Company
during the investigation of these matters and reported Johnson
“turned very loud and heated in her dealings with [Murillo]”
and continued, “I, myself, was under the impression that Ms.
Johnson would no longer be with the company after that day,”
but added, “the following day she returned to work.”
At this point, Murillo gave Johnson the Employee Counsel-
ing Form, described fully elsewhere, to read, and, if she had
anything to say about it. Johnson responded she was not going
to sign it and gave it back to Murillo. Johnson asked that her
written response to the employees counseling form be accepted
and submitted to the Company which it was.
3. Johnson’s July 7 discharge
It is alleged at paragraph 11 of the complaint that the Com-
pany discharged Charging Party Johnson on July 7 because
Johnson engaged in concerted activities with other employees
by discussing wages and by protesting the amount of her wage
increase and because she protested the discipline she was given
on June 17.
While the facts are set forth in detail elsewhere here, it is
necessary to summarize the pertinent facts at this point. Re-
gional Manager Smith’s credited testimony establishes he visit-
ed the Mableton store location on July 7. Smith did so because
he had received a telephone call form Area Manager Raimondi.
Raimondi told Smith he and Area Manager Murillo visited with
Johnson at the Mableton store, at which time Murillo gave
Johnson an employee counsel form for insubordination and that
Johnson had gotten very loud and belligerent and if he had been
her supervisor he would have fired Johnson at that time. Smith
visited the store that afternoon to speak with Johnson about
getting along and working with her coworkers and supervisors.
Smith intended to explain to Johnson he knew she had been
written up for insubordination and he wanted to make sure they
could keep her as a good employee. Smith did not speak that
day with his immediate supervisor, Don Hulse, about Smith’s
plans to visit with Johnson nor was he aware that Johnson had
sent an email to Hulse that day, in fact, Smith was not aware of
the email until the trial here. Smith did not speak with Johnson
prior to his visit because it was not his practice to tell employ-
ees he was going to visit their work place on a given day but
rather just visited. Smith did not intend to discuss Johnson’s
prior write-up but planned to ask Johnson to try to get along
with others and see if that could be done.
Smith credibly testified it is his practice, if he planned to
terminate an employee, to prepare a State of Georgia separation
notice and hand it to the employee at the time. Smith made no
such preparation here.
Regional Manager Smith credibly testified that upon arriving
at the Mableton store Johnson was not there but, he noticed an
uncompleted file on Johnson’s work desk with personal and
confidential information including “a customer’s personal fi-
nancial information.” Smith was concerned about privacy laws
and that the file was left on the work desk accessible to anyone
visiting the Mableton store. Smith was aware that Johnson had
been given a counseling on July 3 regarding Johnson’s leaving
a file folder on her work desk while she was away from the
store.
Smith asked Johnson to meet with him in a private office
when she returned to the store so they could talk about Johnson
leaving a file on her work desk while she was away from the
store. Smith credibly testified Johnson responded in a short tart
manner that she was not discussing the file. Smith insisted they
needed to talk about it resulting in Johnson becoming really
loud and belligerent that she was not going to discuss it, that
she wanted to talk about Area Manager Murillo and Smith’s
GEORGIA AUTO PAWN 13
supervisor Hulse. Smith asked Johnson to hold on they really
needed to discuss this confidential information left out in the
lobby area while Johnson was away from the store. Johnson
again told Smith she was not going to talk about it she only
wanted to talk about Murillo and Hulse. Smith again asked
Johnson to talk about the file and Johnson told Smith she was
not going to talk with him at all.
Smith credibly testified he recognize the matter was at a
stalemate and told Johnson if she chose not to talk about the
file, and if she was not going to speak at all, he thought she
should leave. Johnson yelled, crossed her arms and refused to
speak at all.
As Johnson left the store, Smith asked if Johnson needed an-
ything from her desk and Johnson told Smith, “no, I’ve got my
shit.” Johnson wanted to know if she was being fired.
No mention was made at the meeting about Johnson com-
plaining to Hulse regarding her prior discipline or about her
wage increase, only that she wanted to talk about Hulse.
Alex Reiss, an employee of Automotive Remarketing, Inc.
stated in a pre-trial Board affidavit she overheard portions of
the exchange between Smith and Johnson on July 7. Specifi-
cally she overheard Johnson “yelling” and “heard Johnson
curse,” but, not Smith. Reiss in her pretrial Board affidavit said
she did not hear anything mentioned about an email.
In considering and deciding whether the Company violated
Section 8(a)(1) of the Act when it discharged Johnson on July
7, I apply the Board’s analytical framework for mixed or dual
motive cases as outlined in Wright Line, 251 NLRB 1803
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). To determine whether an
employer’s adverse employment action violates Section 8(a)(1)
of the Act the Government must establish or show, by a pre-
ponderance of the evidence, that an employees protected con-
certed activity was a motivating factor in the employer’s ad-
verse action against the employee. If the Government makes
the required showing the burden shifts to the employer to
demonstrate that it would have taken the same action in the
absence of the employee’s protected concerted activity.
It is established, as set forth elsewhere here, that Johnson en-
gaged in protected concerted activity when she discussed wag-
es, and, her annual wage increase in particular, with some of
her co-workers. It is likewise established the Company, Area
Manager Murillo in particular, was aware of Johnson’s protect-
ed concerted activity. However, I am persuaded, on this record,
the government has failed to establish the Company harbored
animus towards Johnson’s protected concerted activity. For
example the evidence establishes that the discipline on the Em-
ployee Counseling Form given Johnson on June 17, prior to her
discharge on July 7, was for insubordination and not based on
Johnson’s concerted activity of protesting her annual wage
increase or discussing wages with coworkers. Johnson’s im-
mediate supervisor, Murillo, in discussions with Johnson, did
not tell or instruct Johnson she should not discuss wages with
co-workers or even with management. There is no credible
evidence that Regional Manager Smith harbored animus against
Johnson’s protected concerted activities. I conclude and find
the government has not established that Johnson’s protected
concerted activity was a motivating factor in her discharge and
I dismiss that allegation.
Even if I conclude the Government established the elements
of a prima facia case under Wright Line, I would nonetheless
conclude the Company met its burden of establishing it would
have taken the same action even in the absence of Johnson’s
protected concerted activity
The credible evidence establishes that Area Manager Smith
went to Johnson’s work location, unannounced, on July 7, to
talk with Johnson about getting along with her coworkers and
supervisors. After he had been alerted by an area manager of
Johnson’s earlier insubordination toward Area Manager Muril-
lo; Smith simply intended to explain to Johnson he knew she
had been written up for insubordination and wanted to see if the
Company could keep her on as a good employee. Smith did not
know of, nor considered, an email, Johnson had sent to Smith’s
supervisor Hulse earlier that day about her discipline. When
Smith arrived at Johnson’s work location site, Johnson, was not
there. Smith observed a file on Johnson’s desk that contained
confidential and financial information about a customer. That
resulted in Smith’s desire to discuss with Johnson the safekeep-
ing of customers files containing confidential information by
securing the files when she was not present at her desk or work
area that was open to the public visiting that store. Smith re-
peatedly asked Johnson to speak with him about the safekeep-
ing of confidential files, but, Johnson in a “loud” and “belliger-
ent” manner refused to do so saying she only wanted to talk
about Murillo and Hulse. Smith continued to ask Johnson to
discuss files being left on her desk unsecured when she was not
at her desk nor in her work area. Johnson yelled, crossed her
arms and refused to even speak with Smith at all. It was at this
point that Smith told Johnson if she was not going to speak at
all she should just leave. I am persuaded Smith terminated
Johnson because she refused to even speak with him about a
matter critical to her job duties. This was a defiant disregard
for a job-related directive by Smith to Johnson. Perhaps John-
son did not want to discuss leaving customer files on her desk
when she was not there because she, admittedly, had been
counseled on that very issue less than a week before this inci-
dent. There was no mention between Smith and Johnson of
Johnson’s complaining to Hulse about her prior discipline, or,
her wage increase, only that she wanted to talk about Hulse.
Automotive Remarketing employee Alex Reiss, who overheard
portions of Smith’s and Johnson’s exchange, heard Johnson
yelling and cursing. I am fully persuaded the total record evi-
dence demonstrates the Company met its burden of establishing
it would have discharged Johnson even in the absence of any
protected concerted activity on her part. Finally, I note that if
Johnson’s discharge had been preplanned by Smith, he would
have, as was his practice, brought with him to his meeting with
Johnson, a State of Georgia termination notice, which he did
not.
In summary, I dismiss the complaint allegation that the
Company discharged Johnson in violation of Section 8(a)(1) of
the Act.
E. The Company Rules
It is admitted the Company, on or about, June 18, 2012,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
promulgated, issued, and since then has maintained an employ-
ee handbook that, among other rules, contains the following: (a)
COMMUNICATION: Employees are not to participate in the
spreading of malicious gossip or rumors, creating general dis-
cord, interfering with the work of another Employee(s), willful-
ly restricting work output or encouraging others to do so. (b)
SOLICITATION ON COMPANY PROPERTY:. . .Solicitation
by Employees on Company property is prohibited. Distribution
of literature by Employees is also prohibited. (c)
ELECTRONIC COMMUNICATION: The Compa-
ny’s…email…[is] part of the Company’s business equipment
and should be used for Company purposes only. (d) SOCIAL
MEDIA POLICY:. . . Social media should never be used in a
way that:—defames or disparages the Company, its affiliates,
officers, employees, customers, business partners, suppliers,
vendors, etc.—harasses other employees or customers. (e) …
Beyond the profile information described above, you may not
mention anything else in a social networking environment
about the Company, or its business operations, finances, prod-
ucts or services, relationships with customers, third parties, or
agencies. (f) . . . You should not post any photographs of com-
pany property, interior or exterior.
The Government contends each, or portions of each of these
rules, interferes with employees Section 7 rights and violate
Section 8(a)(1) of the Act.
Section 7 of the Act states; “Employees shall have the right
to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities, for the purpose
of collective bargaining or other mutual aid or protection.”
Section 8 of the Act states; “It shall be an unfair labor practice
for an employer—’(1) To interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section
7’.”
First, in determining whether the maintenance of a work rule
violates Section 8(a)(1) of the Act the Board’s analytical
framework set forth in Crowne Plaza Hotel, 352 NLRB 382,
383 (2008), quoting from Lutheran Heritage Village-Livonia,
343 NLRB 646 (2004), is utilized:
[A]n employer violates Section 8(a)(1) when it maintains a
work rule that reasonably tends to chill employees in the ex-
ercise of their Section 7 rights. Lafayette Park Hotel, 326
NLRB 824, 825 (1998). In determining whether a challenged
rule is unlawful, the Board must, however, give the rule a rea-
sonable reading. It must refrain from reading particular
phrases in isolation, and it must not presume improper inter-
ference with employee rights. Id at 825, 827. Consistent with
the foregoing, 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 activity protected by Sec-
tion 7, the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights. Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004).
Where a rule is ambiguous regarding its application to Sec-
tion 7 activity and no examples of violative conduct or limita-
tion language is set forth that would clarify to employees the
rule does not restrict Section 7 rights such a rule is unlawful
under the Act.
The Board noted in Flex Frac Logestics, LLC, 358 NLRB
1131, 1132 (2012); enfd. 746 F.3d 205 (5th Cir. 2014).
Board law is settled that ambiguous employer rules—rules
that reasonably could be read to have a coercive meaning—
are construed against the employer. This principle follows
from the Act’s goal of preventing employees from being
chilled in the exercise of their Section 7 rights—whether or
not that is the intent of the employer—instead of waiting until
that chill is manifest, when the Board must undertake the dif-
ficult task of dispelling it.
1. The Communication rule
The first rule does not explicitly reference Section 7 activity.
As noted elsewhere here, the rule states:
“Employees are not to participate in the spreading of mali-
cious gossip or rumors, creating general discord, interfering
with work of another employee[s], willfully restricting work
output or encouraging others to do so.”
As already noted, an employer rule is unlawfully overbroad
when employees would reasonably interpret it to encompass
protected activities. An employee would reasonably interpret
the Company’s rule “creating general discord” as proscribing
employees from complaining about working conditions or can-
didly expressing any dissatisfaction with working conditions or
rules. Additionally, employees could reasonably interpret
“willfully restricting work output or encouraging others to do
so” to prohibit them from legitimately discussing the values, or
drawbacks, from engaging in a lawful strike. Simply stated,
employees would reasonably understand these restrictions to
interfere with their rights protected by Section 7 of the Act.
Stated differently, when an employer blanketedly bans negative
or inappropriate discussions among its employees without clari-
fication, employees will reasonably read such rules to prohibit
discussion, interaction, vigorous debate or intemperate com-
ment, rights, protected by Section 7 of the Act. See Triple Play
Sports Bar & Grille, 361 NLRB No. 31, slip op. at 7 (2014);
and, First Transit, Inc., 360 NLRB No. 72, slip op. at 2–3. See
also Hills & Dales General Hospital, 360 NLRB No. 70, slip
op. at 1 (2014). I find this rule interferes with employees Sec-
tion 7 rights and violates Section 8(a)(1) of the Act.
2. Solicitation and distribution rule
The rule “solicitation by employees on Company property is
prohibited. Distribution of literature by employees is also pro-
hibited” explicitly restricts Section 7 rights and is unlawful.
Stated differently, this blanket prohibition against soliciting and
distributing on Company property is unlawful because employ-
ees have a Section 7 right to solicit on nonworktime and to
distribute in nonwork areas. Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945).
GEORGIA AUTO PAWN 15
3. The email rule
Whether this rule, “The Company’s . . . email . . . [is] part of
the Company’s business equipment and should be used for
Company purposes only,” interferes with employees Section 7
rights in violation of Section 8(a)(1) of the Act is determined by
the analytical framework for evaluating employees’ use of their
employer’s email systems outlined in Purple Communications,
Inc., 361 NLRB No. 126 at slip op. 1 (2014). Excerpts from
Purple Communications follows:
At issue in this case is the right of employees under Section 7
of the National Labor Relations Act to effectively communi-
cate with one another at work regarding self-organization and
other terms and conditions of employment.1 The workplace
is “uniquely appropriate” and “the natural gathering place” for
such communications,2 and the use of email as a common
form of workplace communication has expanded dramatically
in recent years. Consistent with the purposes and policies of
the Act and our obligation to accommodate the competing
rights of employers and employees, we decide today that em-
ployee use of email for statutorily protected communications
on nonworking time must presumptively be permitted by em-
ployers who have chosen to give employees access to their
email systems. We therefore overrule the Board’s divided
2007 decision in Register Guard3 to the extent it holds that
employees can have no statutory right to use their employer’s
email systems for Section 7 purposes.4 We believe, as schol-
ars have pointed out,5 that the Register Guard analysis was
clearly incorrect. The consequences of that error are too seri-
ous to permit it to stand. By focusing too much on employ-
ers’ property rights and too little on the importance of email as
a means of workplace communication, the Board failed to ad-
equately protect employees’ rights under the Act and abdicat-
ed its responsibility “to adapt the Act to the changing patterns
of industrial life.”6
Our decision is carefully limited. In accordance with
longstanding Board and Supreme Court precedent, it seeks
to accommodate employees’ Section 7 rights to communi-
cate and the legitimate interests of their employers.7 First,
it applies only to employees who have already been grant-
ed access to the employer’s email system in the course of
their work and does not require employers to provide such
access. Second, an employer may justify a total ban on
nonwork use of email, including Section 7 use on non-
working time, by demonstrating that special circumstances
make the ban necessary to maintain production or disci-
pline. Absent justification for a total ban, the employer
may apply uniform and consistently enforced controls over
its email system to the extent such controls are necessary
to maintain production and discipline. Finally, we do not
address email access by nonemployees, nor do we address
any other type of electronic communications systems, as
neither issue is raised in this case.
_________________
1) Employees’ exercise of their Sec. 7 rights “necessarily encom-
passes the right effectively to communicate with one another re-
garding self-organization at the jobsite.” Beth Israel Hospital v.
NLRB, 437 U.S. 483, 491–492 (1978)
2) NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322, 325
(1974), Eastex, Inc. v. NLRB, 437 U.S. 556, 574 91978); Beth
Israel, 437 U.S. at 505.
3) Register Guard, 351 NLRB 1110 (2007), enfd in relevant part
and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d
53 (D.C. Cir 2009).
4) The Respondent maintained an electronic communications poli-
cy limiting employee use of its email and other electronic sys-
tems to “business purposes only” and “specifically prohibit[ing]
certain uses by employees. Acknowledging that the Respond-
ent’s policy comports with current law, the General Counsel and
the Charging Party ask the Board to overrule Register Guard
and find that the Respondent’s policy violates the Act.
5) See, e.g., Jeffrey M. Hirsch, communication Breakdown: Riviv-
ing the role of Discourse in the Regulations of Employee Collec-
tive Action, 44 U.C. Davis L. Rev. 1091, 1151 (2011) (“[T]he
regulation of workplace discourse has become so far adrift that
the NLRB now views email as an affront to employer interests,
rather than a low-cost, effective means for employees to exer-
cise their right to collective action.”); William R. Corbett,
Awakening Rip Van Winkle: Has the National Labor Relations
Act Reached a Turning Point?, 9 Nev. L.J. 247, 252 (2009)
(Register Guard “elevated employers’ property interests over
employees’ rights, and interpreted the NLRA in a restrictive
way that threatens to make it irrelevant and obsolescent”);
Christine Neylon O’Brien, Employees On Guard: Employer
Policies Restrict NLRA-Protected Concerted Activities On E-
Mail, 88 Ore. L. Rev. 195, 222 (2009) (Register Guard’s over-
emphasis on the employer’s property interests at the expense of
the employees’ section 7 rights undermines the credibility of the
majority opinion”); Dube, Law Professors Speaking at ABA
Conference Criticize NLRB’s Register-Guard Decision, BNA
Daily Labor Report (May 6, 2008).
6) Hudgens v. NLRB, 424 U.S. 507, 523 (1976) (citing NLRB v. J
Weingarten Inc., 420 U.S. 251, 266 (1975)).
7) Hudgens v. NLRB, 424, U.S. at 521 (“Accommodation between
employees’§ 7 rights and employers’ property rights. . . . ‘must
be obtained with as little destruction of one as is consistent with
the maintenance of the other’”) (quoting NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 112 (1956)). See also Republic Avia-
tion, 324 U.S. 793, 803 fn. 10 (1945) (quoting Peyton Packing
Co., 49 NLRB 828, 843–844 (1943)).
Applying the above extended guidance I note employees
here already have access to the Company’s email system for
work purposes. From that I conclude the employees have a
right to use the email system to engage in Section 7 protected
communications on nonworking time. The Company presented
no evidence demonstrating that special circumstances existed in
order to maintain production or discipline that would justify
restricting its employees’ rights. Accordingly, I find the Com-
pany’s rule limiting the use of its email system to company
purposes only infringes upon employees’ Section 7 rights and
violates Section 8(a)(1) of the Act.
4. Social media policies
I next consider the various portions of the Company’s social
media policy namely: “. . . Social Media should never be used
in a way that: defames or disparages the Company, its affiliates,
officers, employees, customers, business partners, suppliers,
vendors, etc.; [and/or that] harasses other employees or cus-
tomers.” The social media policy continues further “. . . be-
yond the profile information described above, you may not
mention anything else in a social networking environment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
about the Company, or its business operations, finances, prod-
ucts or services, relationships with customers, third parties, or
agencies, [and] you should not post any photographs of compa-
ny property, interior or exterior.
It is clear employees would reasonably construe the rule lan-
guage here to prohibit Section 7 activity. Rules that can rea-
sonably be read, as here, to prohibit protected concerted criti-
cism of an employer will be found unlawfully overbroad. A
rule that prohibits employees from engaging in disrespectful,
negative, rude or even somewhat inappropriate language to-
wards an employer or management, absent sufficient clarifica-
tion or context, will usually be found unlawful. See, e.g., Casi-
no San Pablo, 361 NLRB No. 148, slip op. at 3 (2014). Em-
ployees here would reasonably conclude that the rule requires
them to refrain from engaging in certain protected communica-
tions such as those critical of the employer or its agents. The
Company’s instruction that its employees not mention anything
else in a social networking environment about the Company, its
business operations, finances, products or services, relation-
ships with customers, third party or agencies would be inter-
preted as prohibiting employees from discussing and/or disclos-
ing information regarding their own conditions of employment,
as well as the conditions of employment of employees other
than themselves—activities clearly protected by Section 7. The
Company’s social media policy that “you [employees] should
not post [on social media] any photographs of Company prop-
erty, interior or exterior” reasonably tends to chill employees in
the exercise of their Section 7 rights. Employees could reason-
ably believe that photographing concerted protected activities
such as unsafe working conditions inside the property or pro-
testing working conditions outside of, but next to, company
property are prohibited. This facially overly broad rule would
tend to chill employees in the exercise of their Section 7 rights
and, consequently, violate Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Georgia Auto Pawn is, and has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Company by, since on/or about June 18, 2012, re-
stricting its employees’ Section 7 rights, has violated Section
8(a)(1) of the Act by maintaining the following overly broad
work rules:
(a) That prohibits employees from participating in the spread
of gossip or rumors, creating general discord, interfering with
the work of another employee(s), willfully restricting work
output or encouraging others to do so.
(b) That prohibits all solicitation and distribution by employ-
ees on Company property.
(c) That unlawfully interferes with employees’ use of the
Company’s email system for Section 7 purposes.
(d) That prohibits use of social media in a way that defames
or disparages the Company, its affiliates, officers, employees,
customers, business partners, suppliers, vendors and that pro-
hibits mentioning anything else in a social networking envi-
ronment about the Company, or its business operations, financ-
es, products or services, relationships with customers, third
parties, or agencies and that prohibits the posting of any photo-
graphs of company property, interior or exterior.
3. The unfair labor practices of the Company affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that certain rules in the Company’s employee
handbook infringes on its employees’ Section 7 rights, I rec-
ommend the Company be ordered to rescind the following rules
identified here in abbreviated form but described fully else-
where in this decision that addresses; (1) gossip and general
discord; (2) solicitation and distribution; (3) use of company
email for Section 7 purposes; and, (4) use of social media that
defames or disparages the Company and that prohibits the post-
ing of any photographs of company property. The Company
may comply with this order by furnishing employees with in-
serts for the current employee handbook that (1) advises that
the unlawful provisions have been rescinded, or (2) provides
lawfully worded provisions on adhesive backing that will cover
the unlawful provisions; or publish and distribute to employees
revised employee handbooks that (1) do not contain the unlaw-
ful provisions, or (2) provide lawfully worded provisions. Ad-
ditionally, I recommend the Company be ordered, within 14
days after service by the Region, to post an appropriate “Notice
to Employees” in order that employees may be apprised of their
rights under the Act and the Company’s obligation to remedy
its unfair labor practices.
ORDER
The Company, Georgia Auto Pawn, Atlanta, Georgia, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an overly broad Communication rule that
prohibits employees from “participating in the spreading of
malicious gossip or rumors, creating general discord, interfer-
ing with the work of another employee(s), willfully restricting
work output or encouraging others to do so” that interferes with
the Section 7 rights of employees to engage in union and/or
protected concerted activity.
(b) Maintaining an overly broad solicitation on company
property rule that prohibits all solicitation and distribution by
employees on Company property.
(c) Maintaining an overly broad electronic communication
policy rule that unlawfully interferes with employees’ use of
the Company’s email system for Section 7 purposes.
(d) Maintaining an overly broad social media policy rule that
prohibits use of social media in a way that defames or disparag-
es the Company, its affiliates, officers, employees, customers,
business partners, suppliers, vendors and that prohibits men-
tioning anything else in a social networking environment about
the Company, or its business operations, finances, products or
services, relationships with customers, third parties, or agencies
and that prohibits the posting of any photographs of company
property, interior or exterior, that interferes with the Section 7
rights of employees to engage in union and protected concerted
activity.
(e) 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.
GEORGIA AUTO PAWN 17
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s Order rescind or revise the
overly broad rules contained in its employee handbook listed in
1 (a), (b), (c), and (d) of this Order.
(b) Furnish employees with inserts for the current employee
handbook that (1) advises that the unlawful provisions (listed in
1 (a), (b), (c), and (d) of this Order) have been rescinded, or (2)
provide lawfully worded provisions on adhesive backing that
will cover the unlawful provisions; or publish and distribute to
employees revised employee handbooks that (a) do not contain
the unlawful provisions, or (b) provide language of lawful pro-
visions.
(c) Within 14 days after service by the Region, post at its At-
lanta, Georgia facilities copies of the attached notice marked
“Appendix.”10 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other
electronic means, if the Company customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Company to ensure that the notices are not altered,
defaced, or covered by any other material. If the Company has
gone out of business or closed a facility involved in these pro-
ceedings, the Company shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Company at any time since
June 18, 2012.
(d) 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
Company has taken to comply.
Those allegations of the complaint not found to violate the
Act are dismissed.
Dated, Washington, D.C October 21, 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

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.”
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 maintain an overly broad rule that prohibits
employees from participating in the spreading of gossip or ru-
mors, creating general discord, interfering with the work of
another employee(s), willfully restricting work output or en-
couraging others to do so that interferes with the Section 7
rights of employees to engage in union or protected concerted
activity.
WE WILL NOT maintain an overly broad rule that prohibits all
solicitation and distribution by our employees on our property.
WE WILL NOT maintain an overly broad rule that unlawfully
interferes with our employees’ use of the Company’s email
system for Section 7 purposes.
WE WILL NOT maintain an overly broad rule that prohibits the
use of social media that defames or disparages the Company, its
affiliates, officers, employees, customers, business partners,
suppliers, vendors and that prohibits mentioning anything else
in a social networking environment about the Company, or its
business operations, finances, products or services, relation-
ships with customers, third parties, or agencies and that prohib-
its the posting of any photographs of company property, interi-
or or exterior that interferes with the Section 7 rights of em-
ployees to engage in union or protected concerted activity.
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 our overly broad rule that prohibits em-
ployees from participating in the spreading of gossip or rumors,
creating general discord, interfering with the work of another
employee(s), willfully restricting work output or encouraging
others to do so that interferes with the Section 7 rights of em-
ployees to engage in union or protected concerted activity.
WE WILL rescind our overly broad rule that prohibits all so-
licitation and distribution by our employees on our property.
WE WILL rescind our overly broad rule that interferes with
our employees’ use of the Company’s email system for Section
7 purposes.
WE WILL rescind our overly broad rule that prohibits the use
of social media that defames or disparages the Company, its
affiliates, officers, employees, customers, business partners,
suppliers, vendors and that prohibits mentioning anything else
in a social networking environment about the Company, or its
business operations, finances, products or services, relation-
ships with customers, third parties, or agencies and that prohib-
its the posting of any photographs of company property, interi-
or or exterior.
WE WILL furnish you with inserts for our current Employee
Handbook that (1) advises that the overly broad rules found to
be unlawful have been rescinded, or (2) provide lawfully word-
ed rules on adhesive backing for those rules found unlawful; or
WE WILL publish and distribute to you revised employee hand-
books that (1) do not contain the rules found unlawful, or (2)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
that provides lawfully worded rules.
GEORGIA AUTO PAWN
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/10-CA-132943 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.