Hyundai America Shipping Agency, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2011

357 N.L.R.B. 860 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 80
860
Hyundai America Shipping Agency, Inc. and Sandra
L. McCullough. Case 28–CA–022892
August 26, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On October 18, 2010, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Acting General Counsel filed exceptions, a supporting
brief, an answering brief, and a reply brief. The Re-
spondent filed cross-exceptions, a supporting brief, an
answering brief, and a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order as
modified and set forth in full below.2
For the reasons stated by the judge, we adopt his find-
ings that the Respondent violated Section 8(a)(1) of the
Act by maintaining or enforcing the following rules in its
employee handbook: (1) a provision stating that “em-
ployees should only disclose information or messages
from these[ ] systems [including the Respondent’s email,
instant messaging, and phone systems] to authorized per-
sons”; (2) a provision stating that “[a]ny unauthorized
disclosure of information from an employee’s personnel
file is a ground for discipline, including discharge”; (3) a
provision reading, “Voice your complaints directly to
your immediate superior or to Human Resources through
our ‘open door’ policy. Complaining to your fellow em-
ployees will not resolve problems. Constructive com-
plaints communicated through the appropriate channels
may help improve the workplace for all”; and (4) a pro-
vision threatening employees with disciplinary action for
“[p]erforming activities other than Company work during

1 The Acting General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
There are no exceptions to the judge’s finding that the complaint al-
legation that the Respondent unlawfully interrogated employees about
their concerted activities was time barred by Sec. 10(b) of the Act.
2 We shall modify the judge’s conclusions of law and substitute a
new Order and notice to conform to the violations found. Our Order
shall also modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010).
working hours.” We also adopt the judge’s finding that
the Respondent violated Section 8(a)(1) by promulgat-
ing, maintaining, or enforcing an oral rule prohibiting
employees from discussing with other persons any mat-
ters under investigation by its human resources depart-
ment.
In addition, we adopt the judge’s dismissal of the
complaint allegation that the Respondent violated Sec-
tion 8(a)(1) by discharging Charging Party Sandra
McCullough. We agree that the Respondent has shown
by a preponderance of the evidence that it would have
discharged McCullough even in the absence of her pro-
tected activity.
The Respondent established that, in the weeks leading
up to McCullough’s discharge, she engaged in a number
of actions—unrelated to any protected, concerted con-
duct—that significantly troubled both management and
her coworkers. For example, the Respondent cited as a
reason for McCullough’s discharge her decision to give
her own personal refund to a customer whom she be-
lieved had been charged an excessive “demurrage fee.”
Not only was such an action unprecedented, but when
McCullough sought reimbursement from the Respond-
ent, she deceptively stated that she was seeking the re-
fund for the customer. That the Respondent viewed this
incident as significant is demonstrated by the fact that the
Respondent disciplined McCullough’s supervisor for his
role in accepting McCullough’s personal check.
The Respondent’s decision to terminate McCullough
was also based on complaints from several employees
that McCullough had created “a hostile work environ-
ment by encouraging employees to go to HR with all
complaints and exaggerate if necessary,” and that, when
she thought they were not doing so, she left them
“threatening voice mails.” As the judge found, this re-
ferred to an incident where two employees complained to
the Respondent that, while they were at work,
McCullough had entered their apartment without permis-
sion and had telephoned them to say where she was. The
judge found that McCullough intended her actions to
upset the two employees, and they did: both employees
sought and received permission from management to
leave work immediately upon receiving McCullough’s
messages, and one of the employees was so disturbed
that she experienced medical problems. Yet another ba-
sis for the Respondent’s termination was an inappropri-
ate sexual comment that McCullough had made to a
coworker, prompting the coworker to file a complaint.
Last, the Respondent also relied on the reports of
“[s]everal employees” that McCullough had used mariju-
ana while at work, and the judge found that the Respond-
ent’s managers believed it was true.
HYUNDAI AMERICA SHIPPING AGENCY, INC.

861
In sum, we agree with the judge that the Respondent
established that it would have terminated McCullough
even in the absence of her protected activity.3
Contrary to the judge, however, we dismiss the com-
plaint allegations that the Respondent violated Section
8(a)(1) by maintaining or enforcing the two rules in its
employee handbook that threaten employees with disci-
plinary action for: (1) “indulging in harmful gossip” and
(2) “exhibiting a negative attitude toward or losing inter-
est in your work assignment.” The judge found that the
first of those rules was “imprecise, ambiguous, and sub-
ject to different meanings, including a reasonable belief
that it would include protected activity.” Regarding the
second rule, the judge found that the phrase “negative
attitude” was ambiguous and, accordingly, that employ-
ees could reasonably view such a prohibition to cover
any attitude that is in any way critical of the Respondent.
For the reasons explained below, we find that those rules
do not violate the Act.

3 Contrary to his colleagues, Member Pearce would reverse the judge
and find that the Respondent violated Sec. 8(a)(1) by discharging em-
ployee Sandra McCullough. As detailed by the judge, McCullough
engaged in substantial protected concerted activity, including meeting
with coworkers to discuss various workplace issues, helping employee
Hamilton prepare a formal sexual harassment complaint against a su-
pervisor, and repeatedly voicing these concerns directly to various
management officials. The Respondent demonstrated animus against
McCullough’s protected activity by interrogating her and disciplining
her because of it. Further, as found by the judge, McCullough’s pro-
tected concerted activity was a motivating factor in her discharge.
Contrary to the judge and his colleagues, however, Member Pearce
would find that the Respondent failed to show that it would have dis-
charged McCullough even in the absence of her protected activity.
Initially, he notes that a basis given by the Respondent for
McCullough’s discharge was her violation of the Respondent’s em-
ployee conduct policy by sending to other employees blind copies of e-
mails concerning “confidential information.” As the judge found and
the Board unanimously agrees, this policy was itself unlawful. For this
reason alone, Member Pearce would find the discharge unlawful. See
NLS Group, 352 NLRB 744 (2008), incorporated by reference in 355
NLRB 1154 (2010), enfd. 645 F.3d 475 (1st Cir. 2011); Double Eagle
Hotel & Casino, 341 NLRB 112, 112 fn. 3 (2004), enfd. 414 F.3d 1249
(10th Cir. 2005), cert. denied 546 U.S. 1170 (2006). Further, as ex-
plained below in fn. 4, Member Pearce would find that a second basis
cited by the Respondent in discharging McCulloch rested on another
unlawful rule—that prohibiting “harmful gossip.” Finally, yet a third
of the six reasons listed by the Respondent when discharging
McCullough directly related to her protected activity, that is, that she
“creat[ed] a hostile work environment by encouraging employees to go
to Human Resources with their complaints.”
Given McCullough’s extensive protected activity, the Respondent’s
clearly demonstrated animus toward that activity, and the fact that her
protected activity and the Respondent’s unlawful rules factored promi-
nently in the Respondent’s reasons for discharging her, Member Pearce
finds that the Respondent failed its burden of establishing that it would
have discharged her even in the absence of her protected activities and
its unlawful rules. Accordingly, Member Pearce would find that the
Respondent’s discharge of McCullough violated Sec. 8(a)(1).
In determining whether a work rule violates Section
8(a)(1), the appropriate inquiry is whether the rule would
reasonably tend to chill employees in the exercise of
their Section 7 rights. Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). If
the rule explicitly restricts Section 7 rights, it is unlawful.
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646
(2004). If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would
reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to un-
ion activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id. at 647.
Here, neither the Respondent’s “harmful gossip” rule
nor its “negative attitude” rule explicitly restricts activity
protected by Section 7. Moreover, there is no evidence
that either rule was promulgated in response to union
activity or was applied to restrict the exercise of Section
7 rights. Accordingly, the only question is whether the
Respondent’s employees would reasonably construe the
two rules to prohibit Section 7 activity. Id. For the rea-
sons explained below, we find, contrary to the judge, that
they would not.
In Claremont Resort & Spa, 344 NLRB 832, 832
(2005), cited by the judge, the Board found that a rule
prohibiting “negative conversations about associates
and/or managers” violated Section 8(a)(1). The Board
found that employees would reasonably construe the
prohibition to bar them from discussing concerns about
their managers that affect working conditions, which
would thereby cause them to refrain from engaging in
protected activities. Id.
Unlike the rule at issue in Claremont Resort, however,
the Respondent’s “harmful gossip” rule does not mention
managers. Moreover, although the rule in Claremont
Resort dealt with employee conversations generally,
which would implicitly include protected concerted ac-
tivity, the Respondent’s rule merely prohibits gossip,
which Merriam-Webster’s Collegiate Dictionary (10th
ed. 1999) defines as “rumor or report of an intimate na-
ture” or “chatty talk.” Given all of the circumstances, we
find that employees would not reasonably construe the
Respondent’s rule against “indulging in harmful gossip”
to prohibit Section 7 activity.
In finding that the Respondent violated Section 8(a)(1)
by maintaining the rule regarding “exhibiting negative
attitude,” the judge again cited the “negative conversa-
tions about associates and/or managers” finding in
Claremont Resort. But, in contrast with that rule, the
Respondent’s rule prohibits “exhibiting a negative atti-
tude toward or losing interest in your work assignment”
(emphasis added). Moreover, the rule in Claremont Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

862
sort expressly encompassed concerted activity by pro-
scribing “conversation” in contrast to the rule at issue
here. That distinction is further emphasized by the in-
stant rule’s application only to displaying a negative atti-
tude toward or losing interest in “your work assignment”
(singular). In our view, the wording of the Respondent’s
rule is thus significantly less likely to be construed by
employees as prohibiting concerted, protected activity.
In the absence of any evidence that the Respondent ever
applied the rule to protected activity, we find that it did
not violate Section 8(a)(1).4
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusions of Law 2(d) and (f) and
reletter the remaining paragraphs accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Hyundai America Shipping Agency, Inc.,
Scottsdale, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing a provision in its employ-
ee handbook under the heading Electronic Communica-
tions and Information Systems that contains the follow-
ing language: “Finally, employees should only disclose
information or messages from theses [sic] systems to
authorized persons.”
(b) Maintaining or enforcing a provision in its employ-
ee handbook under the heading Personnel Files that con-
tains the following language: “Any unauthorized disclo-
sure of information from an employee’s personnel file is
a ground for discipline, including discharge.”
(c) Maintaining or enforcing a provision in its employ-
ee handbook under the heading, “Employee Conduct”

4 Contrary to his colleagues, Member Pearce would adopt the
judge’s findings that the Respondent’s rules prohibiting employees
from “indulging in harmful gossip” and from “exhibiting a negative
attitude toward . . . your work assignment” violated Sec. 8(a)(1). Re-
garding the former, Member Pearce agrees with the judge that “the term
‘harmful gossip’ is imprecise, ambiguous, and subject to different
meanings, including a reasonable belief that it would include protected
activity.” Member Pearce agrees with the judge that the latter rule is
overly broad “because a ‘negative attitude’ is one that could reasonably
be assumed by employees to [include] an attitude that is in any way
critical of the employer” and, thus, “the rule would reasonably inhibit
employees from discussing controversial topics at work, including the
terms and conditions of their employment.” He does not view the rule
declared unlawful in Claremont Resort as materially distinguishable
from the present rules. Accordingly, as employees would reasonably
construe the language of both rules to prohibit Sec. 7 activities, Mem-
ber Pearce would adopt the judge’s findings that they violated Sec.
8(a)(1).
that contains the following language: “Voice your com-
plaints directly to your immediate superior or to Human
Resources through our ‘open door’ policy. Complaining
to your fellow employees will not resolve problems.
Constructive complaints communicated through the ap-
propriate channels may help improve the workplace for
all.”
(d) Maintaining or enforcing a provision in its employ-
ee handbook under the heading Employee Conduct that
contains the following language threatening disciplinary
action for: “Performing activities other than Company
work during working hours.”
(e) Promulgating, maintaining, or enforcing an oral
rule prohibiting employees from discussing with other
persons any matters under investigation by its human
resources department.
(f) In any like or related manner, interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the Board’s Order, revise or re-
scind the rules in its employee handbook under the head-
ing Electronic Communications and Information Systems
that contains the following language: “Finally, employ-
ees should only disclose information or messages from
theses [sic] systems to authorized persons.”
(b) Within 14 days of the Board’s Order, revise or re-
scind the rules in its employee handbook under the head-
ing Personnel Files that contains the following language:
“Any unauthorized disclosure of information from an
employee’s personnel file is a ground for discipline, in-
cluding discharge.
(c) Within 14 days of the Board’s Order, revise or re-
scind the rules in its employee handbook under the head-
ing, “Employee Conduct” that contains the following
language: “Voice your complaints directly to your im-
mediate superior or to Human Resources through our
‘open door’ policy. Complaining to your fellow employ-
ees will not resolve problems. Constructive complaints
communicated through the appropriate channels may
help improve the workplace for all.”
(d) Within 14 days of the Board’s Order, revise or re-
scind the rules in its employee handbook under the head-
ing, “Employee Conduct” that contains the following
language threatening disciplinary action for: “Performing
activities other than Company work during working
hours.”
(e) Within 14 days after service by the Region, post at
its Phoenix facility, located in Scottsdale, Arizona, cop-
HYUNDAI AMERICA SHIPPING AGENCY, INC.

863
ies of the attached notice marked “Appendix.”5 Copies
of the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at its Phoenix facility at any time
since August 5, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

5 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.”
WE WILL NOT maintain or enforce a provision in our
employee handbook under the heading, “Electronic
Communication and Information Systems” that contains
the following language: “Finally, employees should only
disclose information or messages from theses [sic] sys-
tems to authorized persons.”
WE WILL NOT maintain or enforce a provision in our
employee handbook under the heading Personnel Files
that contains the following language: “Any unauthorized
disclosure of information from an employee’s personnel
file is a ground for discipline, including discharge.”
WE WILL NOT maintain or enforce a provision in our
employee handbook under the heading Employee Con-
duct that contains the following language: “Voice your
complaints directly to your immediate superior or to
Human Resources through our ‘open door’ policy. Com-
plaining to your fellow employees will not resolve prob-
lems. Constructive complaints communicated through
the appropriate channels may help improve the work-
place for all.”
WE WILL NOT maintain or enforce a provision in our
employee handbook under the heading Employee Con-
duct that contains the following language threatening
disciplinary action for: “Performing activities other than
Company work during working hours.”
WE WILL NOT promulgate, maintain, or enforce an oral
rule prohibiting you from discussing with other persons
any matters under investigation by our human resources
department.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Federal labor law.
WE WILL revise or rescind the provision in our em-
ployee handbook under the heading Electronic Commu-
nications and Information Systems that contains the fol-
lowing language: “Finally, employees should only dis-
close information or messages from theses [sic] systems
to authorized persons.”
WE WILL revise or rescind the provision in our em-
ployee handbook under the heading Personnel Files that
contains the following language: “Any unauthorized dis-
closure of information from an employee’s personnel file
is a ground for discipline, including discharge.”
WE WILL revise or rescind the provision in our em-
ployee handbook under the heading Employee Conduct
that contains the following language: “Voice your com-
plaints directly to your immediate superior or to Human
Resources through our ‘open door’ policy. Complaining
to your fellow employees will not resolve problems.
Constructive complaints communicated through the ap-
propriate channels may help improve the workplace for
all.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

864
WE WILL revise or rescind the provision in our em-
ployee handbook under the heading Employee Conduct
that contains the following language threatening discipli-
nary action for: “14—indulging in harmful gossip.”
WE WILL revise or rescind the provision in our em-
ployee handbook under the heading Employee Conduct
that contains the following language threatening discipli-
nary action for: “Performing activities other than Com-
pany work during working hours.”

HYUNDAI AMERICA SHIPPING AGENCY, INC.

Eva Shih Herrera, Esq. and Paul R. Irving, Esq., for the Gen-
eral Counsel.
Thomas A. Lenz, Esq., of Cerritos, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Phoenix, Arizona, from June
29 to July 1, 2010. Sandra L. McCullough, an individual (the
Charging Party or McCullough), filed an unfair labor practice
charge in this case on February 5, 2010.1 Based on that charge,
the Regional Director for Region 28 of the National Labor Re-
lations Board (the Board) issued a complaint and notice of
hearing (the complaint) on March 31, 2010. The complaint
alleges that Hyundai America Shipping Agency, Inc. (the Re-
spondent, the Employer, or Hyundai) violated Section 8(a)(1)
of the National Labor Relations Act (the Act). The Respondent
filed a timely answer to the complaint denying the commission
of the alleged unfair labor practices.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based upon the record, my consideration
of the briefs filed by counsel for the General Counsel and coun-
sel for the Respondent, and my observations of the demeanor of
the witnesses,2 I now make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent, a California corporation, with an office and place
of business located in Scottsdale, Arizona (the Respondent’s
Phoenix facility), has been engaged in the business of shipping

1 The Respondent’s answer admits the filing and service of the
charge, as alleged in the complaint. All pleadings reflect the complaint
and answer as those documents were finally amended at the hearing.
2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 US 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
freight containers. Further, I find that during the 12-month
period ending February 5, 2010, the Respondent, in conducting
its business operations, performed services valued in excess of
$50,000 in States of the United States other than the State of
Arizona.
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
It is the General Counsel’s contention that the Respondent
discharged its employee Sandra McCullough because she en-
gaged in protected concerted activity. Allegedly that activity
included complaining to the Employer about working condi-
tions, specifically the sexual harassment of employee Kaitlin
Hamilton by Supervisor Justin Bozarth and regarding the way
supervisors treated employees in general. It is also alleged that
the Respondent’s supervisors unlawfully interrogated
McCullough about her protected concerted activity.
The complaint further alleges that the Respondent has main-
tained an unlawful, overly-broad and discriminatory rule pro-
hibiting employees from discussing matters under investigation
by the Respondent, and threatening them with discipline if they
did so. Additionally, it is alleged that the Respondent has
maintained a number of unlawful provisions in its employee
handbook that restrict the right of employees to engage in pro-
tected concerted activity, including those provisions captioned:
Electronic Communications and Information Systems; Person-
nel Files; Employee Conduct; and certain enumerated infrac-
tions of the Employer’s rules that may lead to termination. It is
the position of the General Counsel that the Respondent unlaw-
fully terminated the Charging Party not only because she en-
gaged in protected concerted activity, but also because in en-
gaging in that activity, she was in violation of the Respondent’s
unlawful rules.3
The Respondent denies that its termination of McCullough
was unlawful, or was in any way related to any concerted activ-
ity in which she may have engaged. According to the Re-
spondent, McCullough was terminated because she engaged in
deceptive business practices, was untruthful in her dealings
with her supervisors, created dissension with fellow employees,
disclosed confidential information, and was a substance abuser.
The Respondent contends that it had good cause to fire
McCullough. Further, the Respondent disputes the General
Counsel’s claim that the rules in its employee handbook or its
employment practices were in any way restrictive of employee
Section 7 rights.4

3 While the complaint does not explicitly allege that the enumerated
rules are per se (on their face) unlawful, in response to a question from
me, counsel for the General Counsel stated on the record that the Gen-
eral Counsel was taking that position.
4 Prior to the commencement of the hearing in this case, the Re-
spondent filed a Motion to Strike Complaint Allegations, contending
that the complaint paragraphs dealing with the employee handbook
language and its employment practices should be stricken from the
complaint as unrelated to the allegations of misconduct directed to-
HYUNDAI AMERICA SHIPPING AGENCY, INC.

865
B. Background Facts and Resolution of
Disputed Facts
The Respondent is engaged in the International shipping in-
dustry. Its import and export operations are headquartered in
Irving, Texas. The Respondent transports cargo from all over
the world to end destinations around the world including to and
from the United States. Its customers include some of the larg-
est International companies, such as Target, Wal-Mart, Sam-
sung, Sony, and many others. To facilitate its operations, the
Respondent has three regional customer service centers in the
United States, including one in Phoenix, Arizona.5 The Phoe-
nix facility is responsible for coordinating the import and ex-
port of goods for customers through ports on the Pacific coast.
Specifically, it is responsible for customer service, export book-
ings, export documentation, export traffic, rebilling and collec-
tions, freight cashiering, accounting, inbound documentation,
inbound custom service, and inbound cargo release for all cus-
tomer cargo transiting the west coast ports.
Dianne Gunn is the Respondent’s assistant vice president of
national logistics, located at its headquarters in Texas. She is
responsible for the operation of the Respondent’s three regional
customer service centers, including the Phoenix facility, as well
as setting policy with regard to the movement of cargo. Brandi
Andrews is the Respondent’s assistant human resources man-
ager, and also is located at the headquarters in Texas. Andrews
is responsible for employee relations and consultations, includ-
ing at the Phoenix facility. She reports directly to Charles Sar-
torius, human resources manager. Larry Marvin is the general
manager of the Respondent’s Phoenix facility, and is responsi-
ble for overseeing the entire operation of that facility, which
employs approximately 63 employees.
Sandra McCullough began her employment at the Respond-
ent’s Phoenix facility on June 1, 2004, in its document depart-
ment. Two years later she transferred to customer service in
the import department, where she was employed until her ter-
mination on August 5, 2009.6 The import department at the
Phoenix facility is comprised of smaller departments, including

wards the Charging Party. (GC Exh. 1(f).) That motion having been
denied, counsel for the Respondent, with leave from me, has renewed
the motion in its posthearing brief. However, I shall once again deny
the motion for the reasons originally given. These collective matters
are both factually and legally “closely related,” as it is alleged by the
General Counsel that the Respondent was discharged not only because
she engaged in protected concerted activity, but also because in the
course of engaging in that concerted activity, she was in violation of
certain of the Respondent’s employee handbook language and its em-
ployment practices. Such handbook language and employment practic-
es are also alleged by the General Counsel to be unlawful. All these
allegations certainly “relate back” to the timely filed charge in this case,
and, thus, timeliness is not an issue. See Redd-I, Inc., 290 NLRB 1115,
1118 (1988); WGE Federal Credit Union, 346 NLRB 982, 983 (2006);
Seton Co., 332 NLRB 979, 985 (2000); Nickles Baker of Indiana, 296
NLRB 927 (1989). Further, although these rules have apparently been
in effect for some time, as these rules are presumably still in effect, and
allegedly constitute an ongoing violation of the Act, they are not time
barred by Sec. 10(b).
5 Technically, the facility in question is physically located in Scotts-
dale, Arizona.
6 All dates are in 2009, unless otherwise indicated.
documentation, customer service, and cargo release.
McCullough’s job as a customer service representative consist-
ed primarily of answering calls from customers and in assisting
them in getting their cargo released. Her immediate supervisor
was Linda Tomko, import customer service supervisor. Tomko
supervised between six and eight customer service representa-
tives.
McCullough was, by any measure, very socially active at
work. She had a number of coworker friends and kept in regu-
lar communication with them during the workday by sending
emails, instant messages (IMs), and by verbal communication,
and also through lunches and dinners after work. Further, it is
undisputed that McCullough was concerned with certain work-
ing conditions and the way employees were treated by manag-
ers, and she had numerous discussions with coworkers about
these matters. McCullough and fellow employees Debbie Ru-
scher, Colleen Bender, Bobbi Lewison, and Jolie Davis first
discussed their concerns in February when they got together
after work to discuss what they felt was the unfair discharge of
a coworker, Marianne Culpepper. Other such discussions be-
tween McCullough and fellow employees followed.
In mid-May, McCullough called Charles Sartorius in human
resources and said that she wanted to make a complaint about
the working atmosphere in Phoenix being extremely hostile and
intimidating, with management exhibiting favoritism among
employees. She told Sartorius that as she feared retaliation, she
wanted to remain anonymous. It does not appear that an inves-
tigation was launched, as the Respondent’s human resources
department will not commence an investigation unless a com-
plaining party files a “formal complaint” in writing. This, the
Charging Party declined to do.
On June 12, McCullough and several coworkers, including
Ruscher, Brian Coberly, Kristen Cortelyou, Kaitlin Hamilton,
and Brianne Flake, met at an Applebee’s restaurant7 to discuss
certain concerns about management. One of the matters dis-
cussed was Hamilton’s allegation that Justin Bozarth, supervi-
sor of the cargo release department, was sexually harassing her.
The two had been romantically involved for some time.
McCullough reported these concerns to Brandi Andrews in a
telephone conversation on June 15, specifically about work-
place hostility and the tension created by the romantic relation-
ship between Bozarth and Hamilton. Shortly thereafter, Hamil-
ton filed a formal complaint against Bozarth alleging sexual
harassment. McCullough had helped Hamilton prepare that
complaint.
The Charging Party contends that around this time she began
to receive “retaliation” from management. About June 22 a
series of messages were sent by the Phoenix facility managers
to all the import department employees warning them that it
was a violation of the Respondent’s policy to use the company
computers to send email and IMs for nonbusiness-related pur-
poses. McCullough felt that these warnings may have issued
with her specifically in mind, and, so, she sent an email mes-
sage to Dan Fetters, a supervisor, questioning him as to when it
was appropriate to use email or IMs. (GC Exh. 15.) However,
a copy of this email was sent by McCullough, she alleges inad-

7 This restaurant has also been referred to as Carlsbad Taverns.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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vertently, to all the employees at the Phoenix facility. Fetters
considered McCullough’s email to constitute insubordination,
and she was given a verbal reprimand by Fetters in the presence
of Larry Marvin.8 Further, it is alleged by McCullough that
during this conversation she was questioned as to whether she
had been complaining to the human resources department. She
responded that she had made complaints, along with other em-
ployees. She contends that the managers asked her for the
names of those other employees who had complained and the
subjects over which they had complained, which information
she refused to furnish. McCullough did, however, allegedly
volunteer that she considered the atmosphere at the Phoenix
facility to constitute a “hostile” work environment.
It is important to mention that the complaint does not allege
this verbal reprimand to constitute an unlawful adverse em-
ployment action. While counsel for the General Counsel did
not discuss the absence of such an allegation, I can only sur-
mise that as the incident alleged occurred on June 22, 2009, and
the unfair labor practice charge in this case was filed on Febru-
ary 5, 2010, more than 6 months later, there was a serious 10(b)
issue. However, what is puzzling to me is the General Coun-
sel’s allegation in paragraph 4(k) of the complaint that during
that same conversation, the Respondent’s managers engaged in
unlawful interrogation of the Charging Party. As both incidents
occurred during the same conversation on June 22, more than 6
months before the charge was filed, I fail to understand the
apparent inconsistency where one incident is alleged as a viola-
tion of the Act, and the other is not. Either way, both incidents
would seem to be untimely under Section 10(b) of the Act.9
Immediately following her meeting with Marvin and Fetters,
McCullough called Brandi Andrews to complain. She followed
up with an email to Andrews dated June 22 wherein she stated
that she feared she would be terminated, and, therefore, could
“no longer communicate regarding the work conditions” at the
facility. Interestingly, in that same email she mentioned that
the Respondent might “be in violation of the rights afforded to
me under the Wagner Act,” by the managers’ interrogation of
her. (GC Exh. 18.) Also, on June 22 she sent another email to
Andrews. In this rather rambling message, McCullough men-
tions the sexual harassment of Hamilton by Bozarth, an “unsta-
ble and hostile” environment, “aggressive and intimidating
behavior,” verbal abuse, and discrimination. McCullough clos-
es the message by saying that she “will assist [with an investi-
gation] when I really do feel protected.” (GC Exh. 12.) On the
following day, June 23, McCullough sent Andrews still another
email stating that she believes a “campaign has begun to termi-
nate me.” Andrews immediately responded saying, “I’m con-
cerned, what have you heard?” (R. Exh. 10.)

8 It is significant to note that the complaint does not allege either Fet-
ters or Marvin as a statutory supervisor or agent, and the Respondent
has made no such admission.
9 While par. 4(k) of the complaint, which I permitted the General
Counsel to add as an amendment over the Respondent’s objection,
alleges interrogation in June and July 2009, with “more precise dates
being unknown” to the General Counsel, from the record evidence it
would appear that the only such alleged incident of unlawful interroga-
tion occurred on June 22, at the time McCullough was also allegedly
orally reprimanded for insubordination. (GC Exh. 1(g).)
McCullough did not feel that Andrews and human resources
were doing enough, fast enough to investigate the complaints
that she had raised, and, so, she sent a long, very detailed email
message to Dianne Gunn, the assistant vice president for na-
tional logistics, dated June 29.10 (GC Exh. 6.) In this rather
rambling message, the Charging Party raised a whole host of
issues and complaints, including: demurrage, hostility, and
negativity by managers, male employees being favored, em-
ployees abusing the Respondent’s policy on emails and IMs,
verbal abuse of employees, firing employees for complaining
about offensive instant messages, high turnover of temporary
employees, and the generally hostile environment that existed
in Phoenix. There are literally so many complaints listed in this
long, single-spaced document that it is hard to know when
McCullough transitions from one subject to the next. However,
clearly the thrust of the message was that the Phoenix facility
was very poorly run, with a myriad of serious problems.
One of the primary issues raised by McCullough in her mes-
sage to Gunn concerned a customer who was allegedly charged
an excessive demurrage fee. As explained by Gunn when testify-
ing, demurrage is the term used for the storage of cargo contain-
ers remaining at a facility longer than allowed by the port. There
may be any number of reasons why a customer would incur a
demurrage fee, such as: not surrendering the proper documenta-
tion; not having received the appropriate customs clearances;
freight charges owed; or just not having picked up the cargo con-
tainer. It is the port authority that determines the demurrage
charges, but the shipping entity decides how to bill its customer
and for how much. Hyundai can waive all or part of the demur-
rage charges and just not bill its customer. In that event, Hyundai
would pay the demurrage fee directly to the port, which would
release the cargo upon being paid. In the alternative, Hyundai
can direct the customer to pay the fee directly to the port, and,
again, the cargo would be released. As I understand the process,
the port authority simply wants to be paid the demurrage fee for
storage, and will not release the cargo until it is paid. However,
the port does not really care who pays the fee, only that it is paid.
It is up to the shipper to decide how much if any demurrage will
be paid by the customer.
Following her receipt of McCullough’s letter of complaint,
Gunn felt the situation was serious enough to warrant a trip to
Phoenix, and on July 2 she arrived at the Phoenix facility and
interviewed McCullough. Gunn testified that she spent about 1
hour talking with McCullough about the complaints that she
had raised in her letter of June 29. However, according to
Gunn, despite her many complaints, McCullough was not able
to offer any suggestions as to how the situation might be im-
proved. Gunn mentioned to McCullough that with her desire to
see that conditions at the facility improved, McCullough should
consider going into supervision. McCullough testified that she
did not believe that Gunn was serious, but Gunn testified that
her comment about supervision was genuine. Following their
meeting, Gunn announced some “job reshuffling” at the Phoe-
nix facility. (R. Exh. 19.) However, it does not appear that

10 This actually followed a first draft that was sent to Gunn by
McCullough a number of hours earlier.
HYUNDAI AMERICA SHIPPING AGENCY, INC.

867
Gunn immediately addressed any of McCullough’s complaints.
In any event, subsequent events subsumed those complaints.
McCullough’s relationships with fellow employees seemed
to be mercurial. While she made many friends at work, a sig-
nificant number of those friendships did not last. McCullough
had a habit of making caustic comments to coworkers, which
they found offensive. Further, she displayed the attitude that if
fellow workers did not support some position that she advocat-
ed, that they were adversaries. Her relationships had a “soap
opera” quality to them. McCullough’s actions towards fellow
employees, some of whom had been personal friends, began to
affect her working relationship with those employees and the
atmosphere generally at the Phoenix facility.
One such fellow employee with whom McCullough had a
falling out was Julie Kersey. McCullough and Kersey had been
friends. However, that all ended when on July 22 McCullough
sent out an email to a number of employees claiming that she
had seen Kersey on television partying in Las Vegas. In fact,
Kersey was at home recuperating from an illness, and had so
informed her supervisor. According to McCullough, she in-
tended this email as simply a joke, which was why she closed
the email with the note, “Love my JuJuRex,” allegedly her
friendly nickname for Kersey. (GC Exh. 10.)
Kersey certainly did not view this email as a friendly joke.
In fact, she sent an email to her supervisor in which she asked
to file a complaint against McCullough. She characterized
McCullough’s email as an “attack on [her] honesty and integri-
ty” that may cause her fellow employees to question her work
ethic. Kersey stated that she had done nothing to provoke
McCullough’s attack, which had “upset and hurt” her. She
contended that McCullough’s false claim had created a “work
environment [that] has become very hostile.” (R. Exh. 11.)
Later, even McCullough thought her own email a mistake,
characterizing it in her testimony as that “stupid message.”
However, by that time the damage had been done.
Another incident that occurred at about the same time in-
volved a newly appointed supervisor, Joanne Cassidy. Accord-
ing to McCullough, she and Cassidy had been friends, although
Cassidy does not characterize their relationship as other than
coworkers. Cassidy testified that in July while at work, she
approached McCullough, who proceeded to say, “Wow, you
have massive boobs.” This was followed immediately by
McCullough saying, “Please don’t call HR. I can’t believe I
just said that.” Cassidy did immediately call Brandi Andrews
in human resources and complained about McCullough’s com-
ment. Sometime shortly thereafter, McCullough apologized to
Cassidy, who then sent an email to Andrews informing her of
McCullough’s apology. (R. Exh. 5.) McCullough did not deny
the substance of the remark attributed to her, but merely
claimed that it was intended as a complement as made in con-
junction with a comment regarding how good Cassidy looked
in a sweater she was wearing.
The most contentious relationship that McCullough had with
coworkers and former friends involved Kristin Cortelyou and
Kaitlin Hamilton. These women were much younger than
McCullough and after hearing their testimony, I got the impres-
sion that initially McCullough acted as a mentor or “older sis-
ter” to the other two women. All agree that the three were
friendly, with an especially close relationship between Cor-
telyou and McCullough. In fact, McCullough and Cortelyou
were so friendly that in May, after Cortelyou lost an apartment
mate, McCullough agreed to cosign Cortelyou’s apartment
lease so that Cortelyou could remain in the apartment. Of
course, this meant that McCullough, who did not live in the
apartment, was legally responsible for the rent, if Cortelyou
failed to make payments. At some point between May and
July, Hamilton moved into the apartment, although she did not
sign the lease.
There is no doubt that McCullough had a falling out with
Cortelyou and Hamilton, although the precise reason is not all
that clear to the undersigned. It was on June 12 at the Apple-
bee’s’ restaurant that McCullough assisted Hamilton in prepar-
ing her complaint accusing Justin Bozarth of sexual harass-
ment. While Hamilton filed the complaint with human re-
sources, both she and Cortelyou subsequently indicated to
Brandi Andrews and Dianne Gunn that McCullough was un-
happy with them, apparently for not pursuing the complaint
with vigor. In any event, the relationship had soured. During
July, in an effort to get back at her former friends, McCullough
told the two women that Hamilton needed to vacate the apart-
ment since McCullough now suddenly needed a place to live,
and either had to move into the apartment or have her name
removed from the lease. However, it appears that this sudden
need was fallacious, and was intended only to upset Hamilton
and Cortelyou. It had the desired effect, as both women were
concerned that McCullough might appear at their apartment
uninvited. That is exactly what happened, as in mid-July both
McCullough and her boyfriend, despite not having a key, suc-
ceeded in convincing the apartment complex manager to allow
McCullough into the apartment as she was still a cosigner on
the lease. Once inside the apartment, McCullough called Ham-
ilton and Cortelyou, who were both still at work, to tell them
she was inside.
Upon learning that McCullough was in their apartment unin-
vited, Hamilton and Cortelyou were apparently too upset to
work, and they informed the Respondent’s Phoenix general
manager, Lawrence Marvin, as to what had transpired. Marvin
suggested they call the police about McCullough’s unauthor-
ized entry, and he allowed both women to leave work early so
that they could return to their apartment. Upon their return to
the complex, they found that McCullough and her boyfriend
were still in the apartment, with McCullough demanding that
they either give her a key or have her name removed from the
lease. Subsequently, she did manage to convince the apartment
complex manager to release her from the lease.
Thereafter, McCullough placed a number of calls to Cor-
telyou’s cell phone, which were recorded in voice mail. While
I sustained counsel for the General Counsel’s objection to the
admission of these messages into evidence, from the credible
testimony of Hamilton and Cortelyou there is little doubt that
these messages were intended to further harass Cortelyou. As I
noted, McCullough’s conduct succeeded in upsetting both
Hamilton and Cortelyou. They credibly testified that their
work suffered as a result, and Cortelyou was especially dis-
traught, developing stress and other related medical problems.
When they testified, it appeared to me that both women were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

868
still genuinely fearful of McCullough. On the other hand, I did
not believe that McCullough was truly concerned with having
her name on the lease, and I am convinced that she was threat-
ening to evict Hamilton simply to harass the two women. Even
after all the time that had elapsed, her anger towards Hamilton
and Cortelyou was palpable.
One way or another, the complaints about McCullough from
Kersey, Cassidy, Hamilton, and Cortelyou all made their way
to Gunn and Andrews. On July 23 and 24, both Gunn and An-
drews were in Phoenix to investigate these collective com-
plaints. But in addition, certain issues regarding McCullough’s
work performance had surfaced. Among others, whether
McCullough had paid a customer’s demurrage fees.
This issue arose when McCullough sought the refund of
$120 for a demurrage charge paid on behalf of a customer,
Orient Express Corporation (OEC). Normally, the Respond-
ent’s managers decide whether to charge demurrage, how much
demurrage to charge, and whether to waive demurrage. A cus-
tomer service representative, such as McCullough, has no au-
thority to set or waive demurrage charges. However,
McCullough apparently felt that one of her customers had been
charged an excess demurrage fee, which she was unsuccessful
in getting management to waive. For some reason, she then
decided to pay the demurrage fee herself. The only reason she
ever offered for this action was, “To prove a point.” But, she
never explained in any kind of a coherent fashion just what
point she was trying to prove. In any event, she wrote a per-
sonal check for $120 and submitted it to Derek Vincent Moore,
a supervisor in the Respondent’s billing and collections de-
partment. She did ask Moore whether she was permitted to pay
demurrage, and was told that anyone could do so. After writing
her personal check, the customer’s cargo was released.
McCullough’s check was processed and cashed. That likely
would have been the end of the matter, except that McCullough
then sought a refund of the fee on behalf of the customer. The
issue then came to the attention of upper management.
Still another issue that had come to the attention of Gunn and
Andrews was McCullough’s habit of “blind copying” (BCC)
parties on email correspondence with management that was
considered confidential by management. When blind copying
is used the sender of the email sends copies to persons who are
not listed on the document as receiving the correspondence, and
where the named recipient of the correspondence would be
unaware that others were receiving the correspondence. It is
obviously intended by the sender to provide certain unnamed
persons with the correspondence without the named recipient’s
notice.
During her testimony, McCullough stated that “[t]here was
[sic] a lot of emails and I did BCC on quite a few.” When
pressed during cross-examination about which emails, she re-
sponded, “The ones that had to do with the issues that we were
having at work.” Further, she named the following employees
as being blind copied by her on correspondence with manage-
ment: Bobbi Lewison, Colleen Bender, Debbie Rusher, Calvin
Hardy, Kaitlan Hamilton, and Kristin Cortelyou. While Brandi
Andrews testified that she learned from a complaining employ-
ee that McCullough had a practice of using blind copying in her
correspondence with management, neither she nor Gunn were
able to testify as to how many emails McCullough sent that
were blind copied to others, what the content of those emails
were, or to whom they were sent.
In any event, it is the Respondent’s position that when
McCullough complained to human resources about the conduct
of managers, such as Justin Bozarth sexually harassing Kaitlan
Hamilton, these were confidential matters, which should not
have been disclosed to fellow employees through blind copy-
ing. The General Counsel argues that to the contrary,
McCullough was engaged in protected concerted activity when
she blind copied her fellow workers regarding complaints that
she was making about management, and to prohibit such con-
duct constituted an unfair labor practice.
These were the issues that Andrews and Gunn were aware of
regarding McCullough’s alleged conduct when they went to
Phoenix on July 23 and 24 to conduct an investigation. During
that investigation, they interviewed a number of employees,
including McCullough, Hamilton, Cortelyou, Cassidy, Kersey,
Chian Ma, and various managers. Further, they learned certain
information while interviewing some of those employees that
ultimately related to their decision regarding McCullough’s
conduct.
During the course of their interview with McCullough, Gunn
raised the issue of the $120 demurrage payment. By that time
Gunn and Andrews were aware that McCullough had personal-
ly paid the customer’s demurrage fee, and Gunn had in her
possession a company check made payable to McCullough as a
refund of the fee. As the request for the refund made by
McCullough did not specifically indicate to whom the refund
was to go, Gunn specifically asked McCullough. According to
the testimony of both Gunn and Andrews, McCullough initially
indicated the refund was for the customer. However,
McCullough testified that when directly confronted by the
managers, she told them that the refund was for herself.
It is really not necessary to resolve this dispute. Whether
McCullough directly lied to her managers or merely intention-
ally concealed the truth, it is clear that she did not want to dis-
close to Gunn and Andrews that she had paid the demurrage
fee. She had initially so informed the Respondent’s billings
and collections supervisor, Derek Vincent Moore, at the time
she wrote her personal check, but since that time had not fur-
ther noted her payment. If nothing else, she was intentionally
vague about where the refund was to go. She was obviously
not anxious for Gunn and Andrews to know the refund was for
her. So, I will give McCullough the benefit of the doubt and
conclude that she did not directly lie to Gunn and say that the
refund belonging to the customer, but that does not alter the
fact that, at a minimum, her conduct towards her supervisors
was deceptive.
In any event, Gunn handed the refund check to McCullough,
which check was made payable to the Charging Party, signaling
to her that the Responded knew she had paid the demurrage fee.
At that point further deception was fruitless. McCullough
acknowledged that she had paid the fee. Gunn asked
McCullough why she had seen fit to pay the customer’s demur-
rage fee, to which McCullough replied, “To prove a point.”
However, the Respondent’s managers were apparently as un-
clear as to what that meant as is the undersigned. Gunn in-
HYUNDAI AMERICA SHIPPING AGENCY, INC.

869
formed McCullough that her actions were a violation of com-
pany policy.
While the Respondent does not have a specific policy pro-
hibiting employees from paying a customer’s demurrage fee, it
would seem that such a policy was never previously necessary
as the Respondent’s managers testified that no employee had
ever done so. Dunn displayed an attitude of surprise that
McCullough, or any employee, would have done such a thing,
and with displeasure that McCullough had attempted to conceal
that fact from her. She testified that for an employee to pay a
customer’s demurrage fee would raise questions regarding that
employee’s relationship with the customer, specifically as to
whether a conflict of interest existed that might compromise the
employee’s relationship with the Respondent. So far as Derek
Vincent Moore’s conduct was concerned, Dunn testified that
the Respondent concluded this manager had acted improperly
in accepting McCullough’s personal check for the customer’s
demurrage fee, and he was issued a written letter of reprimand.
(R. Exh. 15.)
Still another matter that arose during Gunn’s and Andrews’
visit to the Phoenix facility in late July was McCullough’s al-
leged drug use. As early as July 10, Kaitlan Hamilton had re-
ported to management that she had observed McCullough
smoking marijuana in the parking garage while at work on June
16. Of course, it should be noted that by the middle of July
Hamilton and McCullough were embroiled in their dispute over
the apartment lease. Allegedly, during their July 23 and 24
visit to the Phoenix facility, the managers were also told by
employees Kristen Cortelyou, Chian Ma, and Brian Coberly
that they had observed McCullough smoking marijuana. While
the managers indicated that they were told the drug use was
observed on the Respondent’s property, the evidence does not
support that assertion, with the exception of Hamilton’s conten-
tions. Cortelyou testified at the hearing that she never saw
McCullough smoke marijuana during work hours, but only at
McCullough’s home. However, Cortelyou did say that
McCullough had told her that she smoked marijuana before
coming to work and while on her lunchbreak. Further, neither
employee Chian Ma nor Brian Coberly was called by the Re-
spondent to testify, and, accordingly, I will draw an adverse
inference that had they been so called, neither would have testi-
fied that they observed McCullough using illegal drugs while at
work. McCullough denied any use of marijuana while on the
Respondent’s property. When questioned about this alleged
drug use, McCullough offered to take a drug test, which offer
was declined by management. While not entirely clear to the
undersigned, management apparently took the position that the
observed use of marijuana was too distant in time to have made
the use of drug testing dispositive of the issue.
The decision to terminate McCullough was made by Gunn.
She testified that she made this decision after considering the
results of her investigation, which allegedly disclosed multiple
instances of misconduct on the part of McCullough. According
to Gunn, she had never before encountered a situation with an
employee where there was such a confluence of misconduct
warranting termination. Before issuing the termination, Gunn
consulted with her immediate supervisors, as well as with An-
drews in human resources.
Gunn testified at length as to the specific reasons for her de-
cision to terminate McCullough. Also, those reasons are set
forth in detail in an internal document prepared by Gunn and
signed off on by her immediate supervisors dated August 4 and
entitled, “Termination of Sandra McCullough—Phoenix RCSC
Inbound Customer Service Representative.” (GC Exh. 2.)
According to this document, there were five specific reasons
for the termination.
Reason number one is, “Dishonesty regarding issuance of a
personal check for an import shipment and stating customer is
requesting a refund—When confronted with the issue, Ms.
McCullough did not tell the truth about what occurred, until I
prompted her with a copy of her personal check.” The termina-
tion document indicates that McCullough’s action was a direct
violation of the Respondent’s employee conduct and dishonesty
policies.
The second reason listed is, “Blind carbon copying third par-
ties on confidential emails concerning investigations—Ms.
McCullough admitted doing this on several occasions, howev-
er, was not honest as to the parties actually sent the BCC of this
confidential information-HMM IT Department discovered Ms.
McCullough’s emails were being sent to numerous addresses,
including personal addresses.” It is stated that this conduct
violates the Respondent’s employee conduct policy.
Reason number three is, “E-mail sent by Ms. McCullough
regarding another employees absence—Harmful Gossip—On
July 22, 2009, Ms. McCullough sent an email from her work
account to the entire Freight Cashier Department stating she
had observed an employee on television, which was untrue,
when that employee has called in ill portraying her in an unfa-
vorable manner. This employee felt this would place her job in
question and filed complaint.” While Gunn does not name the
employee, clearly she is referring to Julie Kersey. The docu-
ment states that McCullough’s conduct violates the Respond-
ent’s employee conduct policy.
The fourth listed reason is, “Complaints from several em-
ployees stating Ms. McCullough was creating a hostile work
environment by encouraging them to go to HR with all com-
plaints and exaggerate if necessary. When Ms. McCullough
began to think that these employees were not following through
on their complaints she bagan [sic] to leave threatening voice
mails. Second issue regarding harassment is regarding a sexual
comment made to an employee regarding the appearance of
part of her body. The employee was offended and felt
Ms. McCullough’s conduct was completely inappropriate in the
workplace and filed a complaint.” Although Gunn does not
name the employees involved, she is obviously referring to
Kaitlan Hamilton and Kristen Cortelyou as having received the
threatening voice mails and complaining about McCullough’s
having created a hostile work environment. Similarly, Joanne
Cassidy is obviously the employee referenced as being offend-
ed when McCullough commented about the size of her breasts.
Once again, the document alleges that McCullough’s “actions
of threats, retaliation and harassment” violated the Respond-
ent’s employee conduct policy.
The fifth and final reason listed in the termination document
is, “Reports of substance abuse during work hours. Several
employees have alleged McCullough uses marijuana during
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

870
work hours on a daily basis and often smokes the substance
during meal period or work breaks near the office or in the
parking structure. These employees have witnessed Ms.
McCullough at work, most recently on June 15 on the top of the
office parking structure during lunch. When confronted Ms.
McCullough stated she last used marijuana in 2001 or some-
time thereafter, [p]erhaps after a Hyundai holiday party. Ms.
McCullough denies using the substance on the parking garage
on June 15.” Apparently, Gunn was referring to employees
Hamilton, Cortelyou, Chian Ma, and Coberly. However, as I
noted earlier, at the hearing only Hamilton testified to actually
seeing McCullough smoking marijuana on company property.
In the document, Gunn alleges McCullough as being in viola-
tion of the Respondent’s alcohol or drug abuse policy.
Following the decision to terminate McCullough, Gunn flew
to Phoenix and met with McCullough on August 5. Pamela
Rosales, a manager at the Phoenix facility, was present with
Gunn for the meeting, and Andrews participated by telephone.
Gunn informed McCullough of the specific reasons for her
termination, which, according to Gunn’s testimony, were those
listed in the internal company termination document. Further,
Gunn testified that each of the listed reasons played a factor in
her decision to terminate McCullough, and those reasons had a
cumulative effect on her decision making.
C. Analysis and Conclusions
1. Handbook provisions and oral rules
It is undisputed that at all material times, the Respondent has
maintained an employee handbook, which is made available to
the Phoenix facility employees. Certain of these handbook
provisions as set forth in complaint paragraphs 4(d) through (g)
are alleged by the General Counsel to constitute per se (on its
face) violations of Section 8(a)(1) of the Act.
In general, the Board and the courts have held that if a rule
specifically restricts Section 7 activities, the rule is invalid.
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
See Waco, Inc., 273 NLRB 746, 748 (1984) (rule explicitly
prohibiting employees from discussing wages with each other
constitutes a clear restraint on Section 7 activity). In determin-
ing whether a rule or policy is on its face a violation of the Act,
it is necessary to balance the employer’s right to implement
rules of conduct in order to maintain discipline with the right of
employees to engage in Section 7 activity. Even in the absence
of a specific prohibition of participation in Section 7 activities,
a rule may still be unlawful if employees would reasonably
understand the language to prohibit Section 7 Activity.11 Longs
Drug Stores California, Inc., 347 NLRB at 500–501; Lutheran
Heritage, 343 NLRB at 646. As the Board stated in Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), “In determining
whether the mere maintenance of rules . . . violates Section
8(a)(1), the appropriate inquiry is whether the rules would rea-
sonably tend to chill employees in the exercise of their Section
7 rights. Where the rules are likely to have a chilling effect on

11 The rule may also be invalid if it was promulgated in response to
union activity or was applied to restrict Sec. 7 activity. Longs Drug
Stores California, Inc., 347 NLRB at 500–501 (2006); Lutheran Herit-
age, 343 NLRB at 647.
Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” See NLRB v. Vanguard Tours, 981 F.2d 62, 67 (2d
Cir. 1992) (citing Republic Aviation Corp. v. NLRB, 324 U.S.
793, 803 fn. 10 (1945)).
Additionally, “in determining whether a challenged rule is
unlawful, the Board must . . . give the rule a reasonable reading.
It must refrain from reading particular phrases in isolation, and
it must not presume improper interference with employee
rights.” Lutheran Heritage, 343 NLRB at 646. Another rule of
construction that the Board has developed is that even if the
suspect rule could be considered ambiguous, any ambiguity in
the rule must be construed against the employer as the promul-
gator of the rule. Lafayette Park Hotel, 326 NLRB at 828 (cit-
ing Norris/O’Bannon, 307 NLRB 1236, 1245 (1992)).
a. Electronic communications and information systems
Counsel for the General Counsel indicated at the hearing that
it is the General Counsel’s position that the Respondent’s rule
prohibiting employee use of the Employer’s Electronic Com-
munications and Information Systems found in the Employer’s
employee handbook (GC Exh. 4, p. 6.) and as forth in para-
graph 4(d) of the complaint is unlawful on its face. However,
in her posthearing brief, counsel for the General Counsel limits
her legal challenge to the last line of that provision, which reads
as follows: “Finally, employees should only disclose infor-
mation or messages from theses [sic] systems to authorized
persons.”
It does appear that in general, an employer has the right to
restrict the use of its electronic communications systems for
company purposes only. In Register Guard, 351 NLRB 1110
(2007), the Board held that employees do not have a statutory
right to use the employer’s email system for Section 7 purpos-
es. The Board said that “an employer may draw a line between
charitable solicitations, between solicitations of a personal na-
ture—and solicitations for the commercial sale of a product—
and between business-related use and non-business related
use.” Id. at 1118. Therefore, an employer’s policy prohibiting
the use of a system for “non-job related” purposes would not by
itself violate Section 8(a)(1) of the Act.
While the system in Register Guard involved the employer’s
computers, there are similar holdings for other types of office
equipment and for many types of employer owned property.
See Mid-Mountain Foods, 332 NLRB 229 (2000), enfd. 269
F.3d 1075 (D.C. Cir. 2001) (no statutory right to use the televi-
sion in employer’s break room to show a prounion campaign
video); Eaton Technologies, 322 NLRB 848, 853 (1997) (no
statutory right of employees or a union to use an employer’s
bulletin board); Champion International Corp., 303 NLRB 102,
109 (1991) (stating that an employer has “a basic right to regu-
late and restrict employee use of company property” such as a
copy machine); Churchill’s Supermarkets, 285 NLRB 138, 155
(1987) (an employer has a right to restrict use of company tele-
phones to “business-related” conversations); Health Co., 196
NLRB 134 (1972) (employer may bar a prounion employee
from using the public address system to respond to antiunion
broadcasts).
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871
In the rule before me, the Respondent has restricted the use
of its company property (the communications systems) for
work purposes only. The Respondent’s employees do not have
a statutory right to use the Respondent’s property for non-work
purposes and the Respondent lawfully promulgated and main-
tained such a rule. However, counsel for the General Counsel
has now limited her objection to the last sentence in the rule in
question. That last sentence requires a somewhat different
analysis.
The sentence in question reads, “Finally, employees should
only disclose information or messages from theses [sic] sys-
tems to authorized persons.” I agree with counsel for the Gen-
eral Counsel that the prohibition in this sentence is written too
broadly. As written it prohibits employees’ disclosure of any
information exchanged on company email, instant messages,
and phone systems, which could reasonably include discussions
of wage and salary information, disciplinary actions, perfor-
mance evaluations, and other kinds of information that are of
common concern among employees, and which they are enti-
tled to know and to discuss with each other. The Respondent
has failed to limit the prohibition on the disclosure of infor-
mation to those matters that are truly “confidential,” and which
do not involve terms and conditions of employment. The Re-
spondent’s employees should not have to decide at their own
peril what information is not lawfully subject to such a prohibi-
tion. This prohibition is per se invalid as overly broad and
ambiguous, and, as such, would reasonably chill employee
Section 7 rights.
The final sentence of the provision is on its face unlawful as
a violation of Section 8(a)(1) of the Act. See Double Eagle
Hotel & Casino, 341 NLRB 112, 114 (2004) (finding a viola-
tion of the Act by maintenance of a rule stating: “You are not,
under any circumstances permitted to communicate any confi-
dential or sensitive information concerning the Company or any
of its employees to any nonemployee without approval from the
General Manager or the President”); Iris USA, Inc., 336 NLRB
1013 (2001) (maintaining a handbook rule instructing employ-
ees to keep information about other employees strictly confi-
dential was a violation). Accordingly, I find the last sentence
of the Respondent’s handbook provision as set forth in com-
plaint paragraph 4(d) to constitute a violation of the Act.
b. Personnel files
The General Counsel alleges that the provision in the Re-
spondent’s handbook entitled Personnel Files and set forth in
complaint paragraph 4(e) is on its face a violation of the Act.
Once again, it appears that it is the last sentence of this hand-
book provision that the General Counsel finds objectionable.
The provision first describes the kind of information found in
an employee’s personnel file, and states that such personnel
files are the Respondent’s “confidential business information.”
Then, the last sentence in the provision reads, “Any unauthor-
ized disclosure of information from an employee’s personnel
file is a ground for discipline, including discharge.”
In her posthearing brief, Counsel for the General Counsel ar-
gues that the rule is unlawful as it is written so broadly as to
prohibit employees’ disclosure of any information contained in
personnel files. The case law supports this conclusion. The
Board has repeatedly held that “confidentiality” rules, which
expressly prohibit employees from discussing among them-
selves, or sharing with others, information relating to wages,
hours, or working conditions, or other terms and conditions of
employment such as disciplinary actions, restrain and coerce
employees in violation of Section 8(a)(1) of the Act, regardless
of whether the rule was unlawfully motivated or ever enforced.
See Lutheran Heritage Village-Livonia, supra at 646; Double
Eagle Hotel & Casino, supra at 115; Kinder-Care Learning,
299 NLRB 1171, 1172 (1990); Iris USA, Inc., supra; Flamingo
Hilton-Laughlin, 330 NLRB 287, 288 fn. 3, 291 (1999) (hand-
book provision prohibiting employees from disclosing “confi-
dential information regarding . . . fellow employees” was a
violation).
In the rule before me, employees are prohibited from “[a]ny
unauthorized disclosure of information from an employee’s
personnel file.” Such a broadly worded prohibition would rea-
sonably include discussions of wages and salary information,
disciplinary actions, performance evaluations, and other infor-
mation that employees are entitled to know and to share with
coworkers. Much of this information involves matters concern-
ing the wages, hours, and working conditions of the Respond-
ent’s employees, which information is precisely the type that
may be shared by employees, provided to unions, or given to
governmental agencies. Certainly, by expressly threatening
“discipline, including discharge” for violating the prohibition,
the Respondent is chilling employees in the exercise of their
Section 7 rights. This language may reasonably interfere with,
restrain, or coerce those employees in the exercise of their
rights. Accordingly, I find the last sentence of the Respond-
ent’s handbook provision as set forth in complaint paragraph
4(e) to constitute a violation of Section 8(a)(1) of the Act.12
c. Employee conduct
As reflected in complaint paragraph 4(f), it is the General
Counsel’s contention that the provision in the Respondent’s
employee handbook entitled Employee Conduct is a per se
violation of Section 8(a)(1) of Act. However, it now appears
from counsel for the General Counsel’s brief that it is only the
second half of that provision that is claimed to be unlawful.
That language reads as follows: “Voice your complaints direct-
ly to your immediate superior or to Human Resources through
our ‘open door’ policy. Complaining to your fellow employees
will not resolve problems. Constructive complaints communi-
cated through the appropriate channels may help improve the
workplace for all.”
In my view, the quoted language of the rule is overly broad
and restricts employees from complaining about any work re-
lated matters, including wages, hours, or working conditions, to
fellow employees or to interested third parties, such as unions
or governmental agencies. It directs employees to bring their

12 Should the Respondent desire to prohibit the disclosure of “confi-
dential business information” from personnel files, it is the responsibil-
ity of the Respondent to specifically define such information in a fash-
ion that will clearly not include those matters that employees are enti-
tled under the Act to discuss among themselves and with interested
third parties. If the Respondent fails to do so, it may subject itself to
further legal challenge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

872
complaints only to immediate supervisors or to the human re-
sources department. Implicit in this direction is the warning
that if employees fail to follow the provision, they will be in
violation of the Respondent’s rules and may be subject to disci-
pline.
As counsel for the General Counsel noted in her posthearing
brief, it is a long, well-established principle that an employer
violates Section 8(a)(1) of the Act when it prohibits employees
from speaking to coworkers about discipline and other terms
and conditions of employment. See SNE Enterprises, Inc., 347
NLRB 472 (2006) (Board affirmed the administrative law
judge’s finding that the employer violated Section 8(a)(1) of the
Act by prohibiting an employee from speaking with coworkers
about a disciplinary incident and then discharging the employee
for violating that prohibition); See also Kinder-Care Learning
Centers, 299 NLRB at 1172; Guardsmark, 344 NLRB 809
(2005).
While the Respondent’s policy does not expressly say that an
employee will be disciplined for making complaints outside the
approved chain of command, the Respondent’s rule goes be-
yond merely stating a preference, as shown by the directive,
“Voice your complaints directly to your immediate supervisor
or to Human Resources.” This directive, by expressly stating to
whom employees should voice complaints, implicitly prohibits
employees from making complaints to other employees or enti-
ties. As the Board held in Kinder-Care, Id., such a requirement
“reasonably tends to inhibit employees from bringing work-
related complaints to, and seeking redress from, entities other
than the Respondent and restrains the employees’ Section 7
rights to engage in concerted activities for collective bargaining
or other mutual aid or protection.”
Further, the Board has long held employee communication
with third parties to be protected under Section 7. For example,
the Board has found employee communications regarding their
working conditions to be protected when directed to an em-
ployer’s customers, Greenwood Trucking, 283 NLRB 789
(1987), its advertisers, Sacramento Union, 291 NLRB 540
(1988), enfd. 889 F.2d 210 (9th Cir. 1989), its parent company,
Oakes Machine Corp., 288 NLRB 456 (1988), enfd. 897 F.2d
84 (2d Cir. 1990); Mitchell Manuals, Inc., 280 NLRB 230, 232
fn. 7 (1986), a news reporter, Auto Workers Local 980, 280
NLRB 1378 (1986), enfd. 819 F.2d 1134 (3d Cir. 1987); Roure
Bertrand DuPont, Inc., 271 NLRB 443 (1984), and the public
in general, Cincinnati Suburban Press, 289 NLRB 966 (1988).
As the cases well establish, the Board has protected a vast array
of employee communications with each other and with third
parties regarding their working conditions, and, of course, the
Respondent’s employees enjoy these same protections.
That portion of the Respondent’s employee conduct provision
as set forth in complaint paragraph 4(f), which unlawfully re-
stricts employees from discussing the conditions of their em-
ployment in the form of complaints violates those employees’
Section 7 rights. Accordingly, I find that the second half of the
provision that directs employees to “[v]oice your complaints
directly to your immediate superior or to Human Resources. . . .”
constitutes a violation of Section 8(a)(1) of the Act.
d. Employee action subject to discipline
Counsel for the General Counsel argues in her posthearing
brief that certain provisions in the Respondent’s employee
handbook, which threaten disciplinary action for specific em-
ployee conduct, as set forth in complaint paragraph 4(g), consti-
tute per se violations of the Act. The handbook provision lists
21 separate items that may be cause for disciplinary action.
(GC Exh. 4, p. 11–12.) Of those items, only three are alleged
by the General Counsel to be unlawful on their face, namely
numbers 14, 16, and 21.
Number 14 reads as follows: “Threatening, intimidating, co-
ercing, harassing or interfering with the work of fellow em-
ployees or indulging in harmful gossip.” However, it appears
from counsel for the General Counsel’s posthearing brief that it
is specifically the phrase “harmful gossip” that is objectionable.
Counsel argues that the phrase “harmful gossip” is ambiguous,
and one person’s harmful gossip may well be another person’s
concerted activities. I agree.
The Board found a violation of the Act in Lafayette Park Ho-
tel, 326 NLRB 824 (1998), where a rule prohibited “[m]aking
false, vicious, profane or malicious statements toward or con-
cerning [the employer] or any of its employees.” In finding the
violation, the Board reasoned that the rule failed to define the
areas of permissible conduct in a manner clear to employees,
which failure would cause employees to refrain from engaging
in protected activity. Id. at 828. The Board found that an em-
ployee could reasonably construe the rule as prohibiting Sec-
tion 7 activity and, therefore, the rule was unlawful. Id.
Similarly, the Board has found a rule prohibiting “negative
conversations” about associates or managers violates the Act.
See Claremont Resort & Spa, 344 NLRB 832 (2005). In that
case, the Board applied the three-part test in Lutheran Heritage
Village-Livonia, 343 NLRB 646 (2004), to find that “the rule’s
prohibition of ‘negative conversations’ about managers would
reasonably be construed by employees to bar them from dis-
cussing with their coworkers complaints about their managers
that affect working conditions, thereby causing employees to
refrain from engaging in protected activities.” Claremont Re-
sort, 344 NLRB at 832.
In my view, the term “harmful gossip” is imprecise, ambigu-
ous, and subject to different meanings, including a reasonable
belief that it would include protected activity. However, the
rest of the sentence, “threatening, intimidating, coercing, har-
assing or interfering with the work of fellow employees,”
would, I believe, be read and interpreted by a reasonable em-
ployee merely as a code of conduct and decorum, rather than as
a prohibition on Section 7 activities. It is the term “harmful
gossip” that makes the sentence unlawful as restrictive of pro-
tected activities. Accordingly, I find that the use of the phrase
“harmful gossip” in the Respondent’s handbook, as set forth in
complaint paragraph 4(g) constitutes a violation of Section
8(a)(1) of the Act.
The second employee handbook rule (number 16) set forth in
complaint paragraph 4(g), which counsel for the General Coun-
sel alleges is unlawful on its face, is the prohibition against
“[p]erforming activities other than Company work during
working hours.” This rule is facially invalid as it is overly
broad. It is well established by the Board that rules that prohib-
HYUNDAI AMERICA SHIPPING AGENCY, INC.

873
it union solicitation or activities on “company time” or during
“working hours” are overly broad and presumptively invalid as
they could reasonably be construed as prohibiting solicitation at
any time, including an employee’s break times or other non-
working periods. Moeller Aerospace Technology, Inc., 347
NLRB No. 76 fn. 8 (2006) (not reported in Board volumes). In
that case, the Board held that the phrase “working hours” con-
notes periods from the beginning to the end of work shifts,
periods that include the employees’ own time, such as lunch
and break periods. Id. at fn. 7.
Conversely, the Board has held that “rules using ‘working
time’ are presumptively valid because the term signifies periods
when employees are performing actual job duties, periods
which do not include the employees’ own time such as lunch
and break periods.” Our Way, Inc., 268 NLRB 394, 395
(1983). However, in Standard Motor Products, 265 NLRB
482, 483 (1982), the Board allowed an overly broad rule, which
prohibited “nonjob-related activities during working hours” to
be cured by an oral communication to employees that the rule
did not apply to lunch periods. An employer can only over-
come a facially invalid rule by showing that the rule was com-
municated to employees in such a way as to clearly convey an
intent to permit solicitation during periods and in places where
the employees are not actually working. Moeller Aerospace
Technology, Inc., supra.
In the case before me, the Respondent has made no such
showing. While the rule in question does not define “working
hours,” Brandi Andrews testified at the hearing that she under-
stands the term to exclude employees’ breaks and lunch. How-
ever, no evidence was offered at the hearing that employees
have the same understanding, or that the Respondent made any
attempt to communicate to employees that the rule was limited
to periods during which employees are actually performing
work. Accordingly, the rule in question is overly broad and
presumptively invalid on its face because employees would
reasonably believe their Section 7 activity was prohibited even
during breaks and lunches. Therefore, I find rule number 16, as
set forth in paragraph 4(g) of the complaint, to constitute a per
se violation of Section 8(a)(1) of the Act.
The third employee handbook rule (number 21), set forth in
complaint paragraph 4(g), which counsel for the General Coun-
sel alleges is unlawful on its face, is the prohibition against
“[i]nefficiency, lack of productivity or not meeting perfor-
mance standards of the Company; exhibiting a negative attitude
toward or losing interest in your work assignment.” However,
it appears from counsel for the General Counsel’s post-hearing
brief that it is specifically the phrase, “exhibiting a negative
attitude toward or losing interest in your work assignment,”
which is objectionable. I agree with counsel, as the phrase
“negative attitude” is ambiguous, and while one employee may
view the phrase as relating solely to work performance, another
employee may view a negative attitude as relating to concerted
activity.
The Board has held that a rule prohibiting “negative conver-
sations” about associates or managers of a company violates the
Act. Claremont Resort & Spa, 344 NLRB 832. In so holding,
the Board reasoned that the rule would be “reasonably con-
strued by employees to bar them from discussing with their co-
workers complaints about their managers that affect working
conditions, thereby causing employees to refrain from engaging
in protected activities.” Id. at 832.
The Respondent’s rule 21 is overly broad because a “nega-
tive attitude” is one that could reasonably be assumed by em-
ployees to prohibit an attitude that is in any way critical of the
employer. As such, the rule would reasonably inhibit employ-
ees from discussing controversial topics at work, including the
terms and conditions of their employment. Of course, it is well
established that “[n]o restrictions may be placed on employees’
right to discuss self-organization among themselves unless the
employer can demonstrate that a restriction is necessary to
maintain production or discipline.” NLRB v. Babcock & Wilcox
Co., 351 U.S. 105, 113 (1956).
In the matter before me, the Respondent has failed to define
what constitutes a “negative attitude,” and in failing to do so,
the rule would reasonably be construed to prohibit employees
from discussing the terms and conditions of their employment,
particularly if they had any complaints about those terms and
conditions of employment. Employees should not have to
guess as to whether something they wish to discuss regarding
their employment may be construed by the Respondent to con-
stitute a “negative attitude.” When employees are forced to act
at their peril in making such a determination, they likely will be
reluctant to engage in otherwise lawful concerted activity.
Therefore, the language in question is likely to chill employee
Section 7 activity. Accordingly, I find that the use of the
phrase “exhibiting a negative attitude toward or losing interest
in your work assignment” in rule number 21, as set forth in
complaint paragraph 4(g), constitutes a per se violation of Sec-
tion 8(a)(1) of the Act.
e. Oral rules
It is alleged in complaint paragraphs 4(b) and (c) that the Re-
spondent has maintained an overly broad and discriminatory
rule prohibiting employees from discussing matters under in-
vestigation by the Respondent, and has threatening employees
with discipline if they violate that rule. It is undisputed that one
of the reasons leading to McCullough’s termination was the use
of “blind copy” emails to alert coworkers to communication
between McCullough and management regarding matters under
investigation by the Respondent. While it is not entirely certain
exactly which emails were blind copied, it is clear that the Re-
spondent was investigating and communicating with
McCullough regarding matters involving possible sexual har-
assment, creation of a hostile work environment, and drug
abuse. Further, it is also undisputed that as a matter of course,
human resources personnel, such as Brandi Andrews, routinely
cautioned employees orally not to disclose matters that were
under investigation. The General Counsel alleges such conduct
to constitute a violation of Section 8(a)(1) of the Act.
However, in his post-hearing brief, counsel for the Respond-
ent argues that, to the contrary, the Respondent has legitimate
business justifications in keeping investigations confidential.
Those allegedly include the desire to protect the victim, wit-
nesses, and accused harasser in the investigation; to preserve
confidentiality consistent with the Equal Employment Oppor-
tunity Commission guidelines and state and federal courts; and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

874
to avoid potential liability from accused harassers in defama-
tion and other causes of action.
In Caesar’s Palace, 336 NLRB 271 (2001), the Board re-
versed an administrative law judge and found that the employ-
er’s need to maintain the confidentiality of an on-going drug
investigation was a “substantial business justification” that
justified the intrusion on its employees’ exercise of Section 7
rights. The Board emphasized that employees have a Section 7
right to discuss discipline or disciplinary investigations involv-
ing fellow employees. Further, the Board agreed that the em-
ployer’s rule prohibiting discussion of the on-going drug inves-
tigation adversely affected employees’ exercise of the right.
However, the Board still found the employer’s rule lawful, and
concluded that it could be enforced. The Board concluded that
the interest of the employees in discussing the drug investiga-
tion was outweighed by the employer’s legitimate and substan-
tial business justification. In this case, the employer sought to
impose the confidentiality rule to ensure that witnesses were
not put in danger, that evidence was not destroyed, and testi-
mony was not fabricated. According to the Board, the employ-
er met its burden of demonstrating a legitimate and substantial
business justification for its conduct. The Board cited Jean-
nette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976), and held that
the employer’s action in maintaining and enforcing the confi-
dentiality rule, or by discharging employees for breaching said
rule, did not violated the Act.
The Board reached a different conclusion in Phoenix Transit
Systems, 337 NLRB 510 (2002), finding in agreement with the
administrative law judge that the employer violated the Act by
maintaining a confidentiality rule prohibiting employees from
discussing their sexual harassment complaints among them-
selves. The Board held that the employer had failed to estab-
lish a legitimate and substantial justification of its rule. In this
case, the events at issue occurred approximately one and a half
years after the employer concluded its investigation of the al-
leged sexual harassment. The Board distinguished this remote
time frame from the Caesar’s Palace case where the enforce-
ment of the confidentiality rule in question was more immedi-
ate, and was needed to prevent a coverup, including to ensure
that witnesses were not put in danger, evidence was not de-
stroyed, and testimony was not fabricated.
In light of the Phoenix Transit and Desert Palace cases, it
seems obvious that the Board is attempting to strike a balance
between the employees’ Section 7 right to discuss among them-
selves their terms and conditions of employment, and the right
of an employer, under certain circumstances, to demand confi-
dentiality. The burden is clearly with an employer to demon-
strate that a legitimate and substantial justification exists for a
rule that adversely impacts on employee Section 7 rights.
I am of the view that in the matter at hand, the Respondent
has failed to meet its burden. It is undisputed that the Respond-
ent’s managers and human resource supervisors routinely in-
struct employees involved in investigations not to talk with
other employees about the substance of those investigations.
Such admonitions are apparently given in every case, without
any individual review to determine whether such confidentiality
is truly necessary. Under the Board’s balancing test, it is the
Respondent’s responsibility to first determine whether in any
give investigation witnesses need protection, evidence is in
danger of being destroyed, testimony is in danger of being fab-
ricated, and there is a need to prevent a cover up. Only if the
Respondent determines that such a corruption of its investiga-
tion would likely occur without confidentiality is the Respond-
ent then free to prohibit its employees from discussing these
matters among themselves. There is no evidence that the Re-
spondent conducts any such preliminary analysis. To the con-
trary, it seems that the Respondent merely routinely orders its
employees not to talk about these matters with each other.
The Respondent has failed to demonstrate that a legitimate
and substantial justification exists for a rule that adversely im-
pacts on employee Section 7 rights. It has failed to meet its
burden of proof. Accordingly, I conclude that the Respondent
has unlawfully maintained an overly broad and discriminatory
oral rule prohibiting employee from discussing matters under
investigation and by implicitly threatening employees with
discipline if they violate that rule. By such conduct, the Re-
spondent has interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights in violation of Section
8(a)(1) of the Act, as alleged in complaint paragraphs 4(b), (c),
and 5.
2. Alleged interrogation
At the hearing, over counsel for the Respondent’s objection,
I permitted the General Counsel to amend the complaint to
allege in paragraph 4(k) that in June and July 2009, on more
precise dates being unknown to the General Counsel, the Re-
spondent interrogated its employees about their concerted activ-
ity. (GC Exh. 1(g).) As I noted in the fact section of this deci-
sion, from the record evidence, the only incident which could
conceivably constitute unlawful interrogation occurred on June
22, 2009, when McCullough was issued a verbal reprimand for
insubordination by Phoenix Facility Manager Dan Fetters, in
the presence of Phoenix General Manager Lawrence Marvin.
However, this allegation is legally flawed.
The complaint does not allege, there has been no admission
by the Respondent, and no evidence has been offered for the
purpose of establishing that either Fetters or Marvin are super-
visors or agents of the Respondent as defined by the Act.
Without any allegation and evidence that these two individuals
were either agents or supervisors of the Respondent, their con-
duct, even if it could be considered interrogation of the Charg-
ing Party, would not bind the Respondent.
In any event, I agree with counsel for the Respondent’s ar-
gument as set forth in his posthearing brief that any incident
that occurred on June 22, 2009, would be time barred by Sec-
tion 10(b) of the Act. See United Kiser Services, LLC, 355
NLRB 319 (2010). The unfair labor practice charge in this case
was filed by McCullough on February 5, 2010, and, therefore,
an incident occurring on June 22, 2009, took place more than 6
months prior to the filing of the charge. Accordingly, since
under Section 10(b) of the Act, the charge would be untimely
so far as the June 22 incident, I hereby recommend that com-
plaint paragraph 4(k) be dismissed.
HYUNDAI AMERICA SHIPPING AGENCY, INC.

875
3. The termination of Sandra McCullough
a. The protected concerted activity
Section 7 of the Act guarantees employees “the right to self-
organization, to form, join, or assist labor organizations . . . and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection. . . .” Employ-
ees are engaged in protected concerted activities when they act
in concert with other employees to improve their working con-
ditions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14 (1962). An em-
ployer may not retaliate against an employee for exercising the
right to engage in protected concerted activity. Triangle Elec-
tric Co., 335 NLRB 1037, 1038 (2001); Meyers Industries, 268
NLRB 493, 497 (1984). An employer violates Section 8(a)(1)
of the Act when it discharges an employee, or takes some other
adverse employment action against him, for engaging in pro-
tected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975).
The Board, with court approval, has construed the term
“concerted activities” to include “those circumstances where
individual employees seek to initiate or to induce or to prepare
for group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers
Industries, 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988); See Mushroom
Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)
(observing that “a conversation may constitute a concerted
activity although it involves only a speaker and a listener” if “it
was engaged in with the object of initiating or inducing or pre-
paring for group action or . . . it had some relation to group
action in the interest of employees”). See also NLRB v. City
Disposal Systems, Inc., 465 U.S. 822, 831 (1984) (affirming the
Board’s power to protect certain individual activities and citing
as an example “the lone employee” who “intends to induce
group activity”).
In the matter before me, there is no doubt that McCullough
was engaged in protected concerted activity. Around mid-May
2009, McCullough called Charles Sartorius in human resources
and said that she wanted to make a complaint about the work-
ing atmosphere in Phoenix being extremely hostile and intimi-
dating, with management exhibiting favoritism among employ-
ees. It is undisputed that McCullough had for some time been
concerned with certain working conditions and the way em-
ployees were treated by managers. She had previously had
numerous discussions with coworkers about these matters.
McCullough and fellow employees Debbie Ruscher, Colleen
Bender, Bobbi Lewison, and Jolie Davis discussed their con-
cerns about what they felt was the unfair discharge of a
coworker, Marianne Culpepper, and other such conversations
followed.
On June 12, McCullough and several coworkers, including
Ruscher, Brian Coberly, Kristen Cortelyou, Kaitlin Hamilton,
and Brianne Flake, met at an Applebee’s restaurant to discuss
certain concerns about management, including the allegation
that Hamilton was being sexually harassed by supervisor Justin
Bozarth. McCullough helped Hamilton prepare a sexual har-
assment complaint against Bozarth, and verbally complained
about this matter to Brandi Andrews in the human resources
department. Around June 22, McCullough complained to An-
drews about harassment she was allegedly receiving from man-
agers in Phoenix as retaliating for having previously made
complaints.
Because she did not feel that Andrews and human resources
were doing enough, fast enough to investigate the complaints
that she had raised, she sent a long, very detailed email message
to Dianne Gunn, the assistant vice president for national logis-
tics, dated June 29. In her message, the Charging Party raised a
whole host of issues and complaints, including: demurrage,
hostility and negativity by managers, male employees being
favored, employees abusing the Respondent’s policy on emails
and IMs, verbal abuse of employees, firing employees for com-
plaining about offensive instant messages, high turnover of
temporary employees, and the generally hostile environment
that existed in the Phoenix facility. Clearly, the trust of the
message was that the Phoenix facility was very poorly run, with
a myriad of serious problems.
Management apparently thought McCullough’s complaints
serious enough to warrant a trip to Phoenix by Gunn on July 2
to investigate these issues. Subsequently, complaints against
McCullough by fellow employees required a follow-up trip by
both Gunn and Andrews on July 23 and 24, and the investiga-
tion ultimately culminated in McCullough’s discharge.
In any event, there can be no doubt that from at least May
through July 2009, McCullough was engaged in significant
concerted activity with numerous fellow employees, as well as
through direct contacts with management on behalf of both
herself and fellow employees where she complained about the
working conditions at the Phoenix facility. In his posthearing
brief, counsel for the Respondent does take the position that
McCullough’s actions were purely personal, and that the Re-
spondent had no knowledge of any concerted activity. Howev-
er, the evidence of concerted activity and the Respondent’s
knowledge of that activity is so obvious that I find it difficult to
believe that counsel is offering a serious denial. Regardless,
the Respondent does vigorously deny that it took any adverse
action against McCullough because of any concerted activity in
which she may have engaged. This is the gravamen of the case.
b. Analysis of the termination
McCullough was employed by the Respondent for approxi-
mately 5 years. The Respondent does not contend that for most
of that period of time McCullough’s work performance was
unsatisfactory. It was only in the last two months of
McCullough’s employment that the Respondent claims her
conduct was so egregious as to warrant her termination. Of
course, the General Counsel contends that McCullough was not
terminated for any work related deficiencies, but, rather, be-
cause she engaged in protected concerted activity. According-
ly, it is necessary for me to determine the Respondent’s true
motivation in discharging McCullough.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

876
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer’s decision. This showing must be by a preponder-
ance of the evidence. Then, upon such a showing, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct. The Board’s Wright Line test was approved by the
United States Supreme Court in NLRB v. Transportation Corp.,
462 U.S. 393 (1983).
In the matter before me, I conclude that the General Counsel
has made a prima facie showing that McCullough’s protected
concerted activity was a motivating factor in the Respondent’s
decision to terminate her. In Tracker Marine, L.L.C., 337
NLRB 644 (2002), the Board affirmed the administrative law
judge who evaluated the question of the employer’s motivation
under the framework established in Wright Line. Under the
framework, the judge held that the General Counsel must estab-
lish four elements by a preponderance of evidence. First, the
General Counsel must show the existence of activity protected
by the Act. Second, the General Counsel must prove that the
Respondent was aware that the employee had engaged in such
activity. Third, the General Counsel must show that the alleged
discriminatee suffered an adverse employment action. Fourth,
the General Counsel must establish a link, or nexus, between
the employee’s protected activity and the adverse employment
action. In effect, proving these four elements creates a pre-
sumption that the adverse employment action violated the
Act.13 To rebut such a presumption, the Respondent bears the
burden of showing that the same action would have taken place
even in the absence of the protected conduct. See Mano Elec-
tric, Inc., 321 NLRB 278, 280 fn. 12 (1996); Farmer Bros. Co.,
303 NLRB 638, 649 (1991).
It is axiomatic that Section 7 of the Act gives employees the
right to communicate with each other regarding their wages,
hours, and working conditions. Further, the Board has consist-
ently held that communication between employees “for nonor-
ganizational protected activities are entitled to the same protec-
tion and privileges as organizational activities.” Phoenix Trans-
it Systems, 337 NLRB 510 (2002); citing Container Corp. of
America, 244 NLRB 318, 322 (1979).
As I have already found, there is no doubt that McCullough
was engaged in protected concerted activity. She had numer-
ous discussions with significant numbers of fellow employees
about concerns with their working conditions. At least several
of these discussions occurred in group meetings, with one spe-
cifically held at Applebee’s restaurant. She helped a coworker
prepare a sexual harassment complaint against a supervisor.
Most significant, she complained about her working conditions
and those of fellow employees to Charles Sartorius, human
resources manager, Brandi Andrews, assistant human resources
manager, and Dianne Gunn, assistant vice president for national
logistics.

13 More recently, the Board has indicated that, “Board cases typically
do not include [the fourth element] as an independent element.” Wal-
Mart Stores, Inc., 352 NLRB at 815, 815 fn. 5 (2008); citing Gelita
USA, Inc., 352 NLRB 406, 407 fn. 2 (2008); SFO Good-Nite Inn,
L.L.C., 352 NLRB 268, 269 (2008).
The many conversations that McCullough had with fellow
employees and with managers regarding working conditions,
beyond question constituted protected concerted activity. See
Champion Home Builders Co., 343 NLRB 671, 680 (2004).
Further, there is no doubt that management officials at the cor-
porate level, specifically Sartorius, Andrews, and Gunn, were
aware of that activity as McCullough directly communicated
with each of them regarding what she perceived to be poor
working conditions at the Phoenix facility that were so bad as
to constitute a “hostile work environment.” She related to them
a myriad of complaints, including alleged preferential treatment
towards male employees, sexual harassment, and managers
addressing employees in a disdainful and disrespectful manner.
Not only were the corporate managers acutely aware of her
complaints, but they addressed them, with Gunn making a spe-
cial trip to Phoenix on July 2 to meet with McCullough and
look into her complaints. Management’s knowledge of
McCullough’s concerted activity cannot be seriously denied.
Obviously, the discharge of McCullough on August 5 consti-
tuted an adverse employment action. But, was the discharge
retaliation for McCullough’s protected concerted activities? I
believe that in part it was. McCullough’s protected activity was
a “motivating factor” in the Respondent’s decision to fire her.
In Gunn’s internal document entitled “Termination of Sandra
McCullough-Phoenix RCSC Inbound Customer Service Repre-
sentative” dated August 4 and signed off on by her superiors,
Gunn listed the reasons for terminating McCullough, one of
which reads, “Divulging of confidential information to unrelat-
ed employees/parties.” (GC Exh. 2.) This conduct concerned
McCullough’s habit of “blind carbon copying” to fellow em-
ployees those documents that the Respondent considered confi-
dential, such as emails regarding the investigation into allega-
tions of sexual and other types of harassment.
As noted earlier in this decision, I have found that the provi-
sion in the Respondent’s employee handbook entitled “Em-
ployee Conduct,” which reads in part, “Complaining to your
fellow employees will not resolve problems,” constitutes an
unlawful attempt to restrict its employees into making com-
plaints only to employees’ immediate supervisors or to human
resources personnel, and not to coworkers. I concluded that
such language is on its face unlawful, as an attempt to restrain
employees from engaging in protected concerted activity by
discussing among themselves complaints regarding their wages,
hours and working conditions.
Further, I also found that the Respondent’s routine practice
of orally admonishing employees involved in investigations not
to disclose such information to fellow employees to constitute
an unlawful attempt to restrain such employees from engaging
in concerted discussions with coworkers about their work relat-
ed concerns. As I concluded above, such written and oral re-
strictions on the right of employees to engage in Section 7 ac-
tivity constitute violations of Section 8(a)(1) of the Act. They
also establish animus by the Respondent’s managers towards
any employees who would have the temerity to ignore such
rules and engage in concerted activity.
In my view, such animus was directed towards McCullough
by Gunn when she decided to fire McCullough, in part, because
McCullough had been active over the past 2 months in discuss-
HYUNDAI AMERICA SHIPPING AGENCY, INC.

877
ing with fellow employees matters of joint concern regarding
their working conditions, and by "blind copying” certain fellow
employees with correspondence sent to the Respondent’s man-
agers regarding work related investigations, which the Re-
spondent considered “confidential.” Certainly, the Respond-
ent’s supervisors, Gunn and Andrews, had direct knowledge
that McCullough had violated these rules on numerous recent
occasions, not the least of which was McCullough’s discussions
with and assistance to Kaitlan Hamilton in filing her sexual
harassment complaint against supervisor Justin Bozarth. The
Respondent’s presumed unhappiness with McCullough’s disre-
gard for its written and oral rules was, I believe, at least a “mo-
tivating factor” in Gunn’s decision to terminate her. While it
may not be essential to establish, as an independent element, a
direct link or nexus between the protected concerted activities
engaged in by McCullough and her discharge, I believe that
counsel for the General Counsel has done so by showing ani-
mus.
Having found that the General Counsel has established a
prima facie case that the Respondent was motivated to dis-
charge McCullough, as least in part, because of her protected
concerted activity,14 the burden now shifts to the Respondent to
show that it would have taken the same action absent the pro-
tected conduct. Senior Citizens Coordinating Council of River-
bay Community, 330 NLRB 1100 (2000); Regal Recycling,
Inc., 329 NLRB 355 (1999). The Respondent must persuade by
a preponderance of the evidence. Peter Vitalie Co., 310 NLRB
865, 871 (1993). I am of the view that the Respondent has met
this burden.
McCullough was far from a model employee. She had seri-
ous relationship problems with coworkers that adversely affect-
ed those employees’ work environment. She was also decep-
tive in her dealings with corporate managers. Finally, there
was some limited evidence that she had used illegal drugs while
at work. These serious deficiencies would have resulted in her
discharge, even absent the Charging Parties protected concerted
activity.
Further, I find McCullough a less than credible witness. In
material ways, her testimony was at variance with coworkers
Julie Kersey, Joanne Cassidy, Kaitlan Hamilton, and Kristen
Cortelyou, and with Managers Brandi Andrews and Dianne
Gunn. Her testimony was confusing, seemed uncertain regard-
ing significant issues, and was generally hostile towards man-
agement and various fellow employees. McCullough’s testi-
mony displayed a superficial attitude of innocent indignation

14 As an alternate theory, counsel for the General Counsel argues that
the evidence also establishes that the Respondent discharged
McCullough because she violated the Respondent’s unlawful written
and oral rules prohibiting employees from talking about terms and
conditions of employment with other employees. It is not feasible to
separate such alleged conduct from what, I have concluded was the
Respondent’s obvious discrimination based on McCullough’s having
engaged in protected concerted activity. Both theories are premised on
the same set of facts. As I have concluded that the evidence establishes
that the Respondent’s action in discharging McCullough was motivat-
ed, at least in part, because of her concerted activity, it is unnecessary
to the address the General Counsel’s alternate theory of the case, and I
will, therefore, not further do so.
and generosity, while she portrayed other employees as harbor-
ing selfish personal animosity towards her. The dislike that she
displayed towards her managers was palpable. She displayed
histrionics and a willingness to distort the facts in an attempt to
place her conduct in the best possible light. I was simply left
with the impression that she was willing to say whatever was
necessary to prevail. Finding McCullough generally incredible,
I will credit other witnesses when their testimony is at variance
with hers.
McCullough’s personal relationships at work were mercurial
and volatile. She seemed to enjoy antagonizing coworkers,
and, frankly, she displayed a mean streak. She could be highly
caustic in her comments to other employees. As I discussed in
the fact section of this decision, on July 22, she sent an email to
a number of fellow employees suggesting that Julie Kersey had
lied about being home recuperating from an illness, and instead
had been partying in Las Vegas. While McCullough attempts
to portray this incident as nothing more than a joke played on a
friend, Kersey did not view it that way. Kersey felt that her
honesty and integrity were under attack, complained to her
supervisor, and asked to file a formal complaint against
McCullough. Kersey informed her manager that McCullough
had created a “work environment [that] has become very hos-
tile.”
At about the same time, McCullough saw supervisor Joanne
Cassidy wearing a new sweater and commented to her, “Wow,
you have massive boobs.” According to McCullough, Cassidy
was also a friend, and she intended the comment as a comple-
ment. Cassidy did not view the comment that way, and imme-
diately complained to Brandi Andrews in human resources.
As insensitive as were McCullough’s comments to Cassidy
and Kersey, they pale by comparison with her conduct towards
Kaitlan Hamilton and Kristin Cortelyou. These two women
were also apparently friends of McCullough at one time. That
friendship ended when they were not as enthusiastic as
McCullough in pursuing complaints against local Phoenix facil-
ity management, including a sexual harassment complaint
against Justin Bozarth.
McCullough, as a favor to Cortelyou, had previously co-
signed her apartment lease. However, after her falling out with
Cortelyou and Hamilton, who was an apartment mate with
Cortelyou, McCullough informed the two women that Hamil-
ton would need to vacate the apartment as McCullough either
wanted to move in herself or be removed as cosigner. From the
testimony of the various witnesses, it is clear that McCullough
had no real need or intention of moving into the apartment and
no real immediate need to be removed as cosigner.
McCullough was merely using the apartment as a means of
harassing Cortelyou and Hamilton because, in her view, they
had not aggressively pursued complaints against the Phoenix
facility managers. McCullough also left voice messages on
Cortelyou’s cell phone regarding the apartment, which Cor-
telyou considered further harassment.
McCullough’s conduct regarding the apartment might not
have become a work issue if McCullough had confined her
actions to after work hours. However, in mid-July,
McCullough, who did not have a key to the apartment, man-
aged to convince the apartment manager to let her and her boy-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

878
friend into the apartment. Both Cortelyou and Hamilton were
still at work when they received a call from McCullough in-
forming them that she was in their apartment. This call was
obviously intended to upset the two women, which it did. They
immediately informed Phoenix Facility General Manager Law-
rence Marvin of what had transpired. He advised them to call
the police, and allowed them to leave work early so that they
could attend to the uninvited presence of McCullough and her
boyfriend in their apartment. At that point, this personal issue
had clearly become a work-related issue, since it had adversely
affected the work performance of Cortelyou and Hamilton.
Both women subsequently informed management that
McCullough was creating a hostile work environment for them,
and they filed a formal complaint against her.
One way or another, the complaints about McCullough from
Kersey, Cassidy, Hamilton, and Cortelyou had all made their
way to Gunn and Andrews. On July 23 and 24, both Gunn and
Andrews were in Phoenix to investigate these collective com-
plaints. But in addition, certain issues regarding McCullough’s
work performance had surfaced. Among others, whether
McCullough had paid a customer’s demurrage fee.
Earlier in this decision, I discussed at length the issue of
McCullough having paid a customer’s demurrage fee. Why she
did this remains a mystery, with her explanation that it was “To
prove a point” remaining highly cryptic. The Respondent’s
managers were similarly puzzled by McCullough’s actions, as
indicated by Gunn who testified that to her knowledge no em-
ployee had ever previously done so. Although McCullough’s
conduct was clearly unusual, I asked Gunn whether there was
something inherently improper about it. She indicated that
paying the customer’s demurrage fee would give the appear-
ance that McCullough had some kind of inappropriate relation-
ship with the customer, and that a conflict of interest might
exist.
In any event, it was not so much McCullough’s payment of
the demurrage fee that the Respondent found egregious, but,
rather, the attempt to conceal it. Much time and testimony was
taken at the hearing trying to resolve the question of whether
McCullough lied to Gunn and Andrews in late July about who
was to receive the $120 demurrage refund. Gunn and Andrews
testified that McCullough untruthfully told them it was for the
customer, which McCullough denies directly saying. I am of
the view that it does not really matter, and I am willing to give
McCullough the benefit of the doubt and conclude that she
never actually said the refund was for the customer. However,
clearly that is what she initially implied.
While McCullough wrote her personal check for the demur-
rage fee, which she submitted to Derrick Vincent Moore, su-
pervisor in billings and corrections, she did not thereafter let
her Phoenix facility managers, corporate human resource man-
agers, Andrews, or Gunn know that the refund of the demur-
rage charges were intended for her. The Respondent had every
reason to assume that as in the normal course of business, the
refund that she was seeking would be on behalf of the customer
and would be paid to the customer. McCullough rather deliber-
ately neglected to mention that she had paid the demurrage fee
herself and, so, the refund would be going to her. In this way,
she was certainly being deceptive.
Of course, by the time of their meetings on July 23 and 24,
Andrews and Gunn were aware of what had transpired, and, so,
the check Gunn carried with her was made payable to
McCullough. Gunn proceed to give the check to McCullough,
showing that she was aware McCullough had paid the demur-
rage fee and the refund was for her. Again, while McCullough
may not have directly lied to Gunn about the refund, it is obvi-
ous that she was intentionally trying not to disclose to Gunn
that the refund was for her. Only when confronted with the
check did she make that admission. In my opinion, Gunn cer-
tainly had reason to conclude that McCullough was being de-
ceptive.
As discussed above, it was during Gunn’s and Andrew’s in-
vestigation on July 23 and 24 that those managers learned about
alleged illegal drug use at work by McCullough. Although a
number of employees had allegedly mentioned McCullough’s
use of marijuana, only one employee, Kaitlin Hamilton, ulti-
mately testified at the hearing about actually seeing
McCullough use drugs while at work. According to Hamilton,
on June 16 she observed McCullough smoking marijuana in the
company parking garage during a work break. Kristen Cor-
telyou testified that while she never actually saw McCullough
using drugs at work that McCullough had told her that she fre-
quently used marijuana during her lunch break while at work.
McCullough denied ever using drugs at work, although she
testified about some past recreational use of marijuana away
from work.
I do not have to resolve credibility in this instance. Whether
McCullough ever actually used marijuana at work or not, is
really not relevant. What matters is whether Gunn and An-
drews were told that she used drugs while at work, and whether
that allegation seemed credible. It is clear to me that they were
so told, at least by Hamilton, and assumed it to be true. They
obviously did not credit McCullough’s denial, especially in
light of her deception in the demurrage matter. The combina-
tion of McCullough’s work-related conflicts with employees
Kersey, Cassidy, Hamilton, and Cortelyou, her deceptive con-
duct regarding the demurrage refund, and her alleged drug use
at work were, in my view, a sufficient basis upon which to
terminate McCullough’s employment, even in the absence of
her concerted activity.
Counsel for the General Counsel argues in her posthearing
brief that the Respondent did not conduct a valid investigation
in connection with McCullough’s complaints, and, rather, con-
ducted a “witch hunt” in connection with the complaints made
against her. The term “witch hunt” would denote an investiga-
tion devoid of any finding of actual wrong doing. How can that
be when the investigation disclosed separate legitimate com-
plaints against the Charging Party by employees Kersey, Cassi-
dy, Hamilton, and Cortelyou, as well as evidence of an obvious
deception in connection with the demurrage refund, and a drug
allegation, which at least had the appearance of credibility?
McCullough’s “soap opera” like relationships with fellow em-
ployees were causing a disruptive environment at work. She
was deceptive in her dealings with management. There was at
least some evidence that she was abusing drugs while at work.
All of these issues surfaced in approximately a 30-day period in
or about July. Collectively, they were certainly sufficient to
HYUNDAI AMERICA SHIPPING AGENCY, INC.

879
result in McCullough’s discharge, irrespective of her protected
activity.15
Accordingly, based on the above, I conclude that the Re-
spondent has met its burden of proof and established by a pre-
ponderance of the evidence that McCullough was terminated
for cause. As such, the Respondent has rebutted the General
Counsel’s prima facie case and shown that it would have dis-
charged McCullough even in the absence of her having en-
gaged in protected concerted activity. Therefore, I shall rec-
ommend that complaint paragraphs 4(h), (i), (j), and 5, but only
as it relates to McCullough’s discharge, be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Hyundai America Shipping Agency,
Inc., is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By the following acts and conduct the Respondent has vi-
olated Section 8(a)(1) of the Act.
(a) Maintaining or enforcing a provision in its employee
handbook under the heading electronic communications and
Information Systems, which in part contains the following lan-
guage: “Finally, employees should only disclose information or
messages from theses [sic] systems to authorized persons.”
(b) Maintaining or enforcing a provision in its employee
handbook under the heading personnel files, which in part con-
tains the following language: “Any unauthorized disclosure of
information from an employee’s personnel file is a ground for
discipline, including discharge.”
(c) Maintaining or enforcing a provision in its employee
handbook under the heading employee conduct, which in part
contains the following language: “Voice your complaints di-
rectly to your immediate superior or to Human Resources
through our ‘open door’ policy. Complaining to your fellow
employees will not resolve problems. Constructive complaints
communicated through the appropriate channels may help im-
prove the workplace for all.”
(d) Maintaining or enforcing a provision in its employee
handbook under the heading employee conduct, which in part

15 While counsel for the General Counsel questions the Respondent’s
failure to act on a formal complaint filed by McCullough on August 4
against Cortelyou and Hamilton, I find it rather obvious that no action
was taken as a decision had already been made by Gunn to fire
McCullough. It was the very next day that Gunn arrived in Phoenix for
the explicit purpose of terminating the Charging Party.
contains the following language threatening disciplinary action
for: “14 . . . indulging in harmful gossip.”
(e) Maintaining or enforcing a provision in its employee
handbook under the heading Employee Conduct, which in part
contains the following language threatening disciplinary action
for: “16. Performing activities other than Company work during
working hours.”
(f) Maintaining or enforcing a provision in its employee
handbook under the heading Employee Conduct, which in part
contains the following language threatening disciplinary action
for: “21 . . . exhibiting a negative attitude toward or losing in-
terest in your work assignment.”
(g) Promulgating, maintaining, or enforcing an oral rule pro-
hibiting employees from discussing with other persons any
matters under investigation by its human resources department.
3. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
As I concluded that various provisions in the Respondent’s
employee handbook are unlawful, the recommended order re-
quires that the Respondent revise or rescind the unlawful rules,
and advise its employees in writing that said rules have been so
revised or rescinded.
Further, the Respondent shall be required to post a notice
that assures its employees that it will respect their rights under
the Act.16
[Recommended Order omitted from publication.]

16 Both in the complaint and in counsel’s posthearing brief, the Gen-
eral Counsel requests that any notice to employees be posted via the
Respondent’s intranet, email, or other electronic posting procedures.
However, counsel offers no argument or evidence as to why such an
extraordinary remedy is necessary in this case. In the absence of any
such evidence, I am declining to order notice posting other than in the
traditional method. There is no reason to conclude that the Respond-
ent’s Phoenix facility employees will not have access to a posted no-
tice, which the Board has traditionally held is sufficient to assure those
employees that the Respondent will respect their rights under the Act.