Long Island Association for AIDS Care, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 26, 2015

29-CA-149012 (N.L.R.B. Aug. 26, 2015)

JD(NY)–38–15
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES
LONG ISLAND ASSOCIATION
FOR AIDS CARE, INC.
and Case 29-CA-149012
MARCUS ACOSTA, an Individual
Brent Childerhose, Esq.,
for the General Counsel.
David Ehrlich, Esq.,
(Stagg, Terenzi, Confusione & Wabnik, LLP)
for the Respondent.
DECISION
Statement of the Case
KENNETH W. CHU, Administrative Law Judge. This case was tried in Brooklyn, New
York, on July 27, 2015 pursuant to a complaint issued by Region 29 of the National Labor
Relations Board (NLRB) on May 26, 2015.1 The Long Island Association for AIDS Care, Inc.
(Respondent) timely filed an answer denying the material allegations in the complaint (GC Exh.
1).2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, a not-for-profit and non-union organization, has been engaged in
providing services for HIV/AIDS prevention and care at its facility in Hauppauge, New York,
where it annually derive revenues valued in excess of $250,000 in the course and conduct of its
operations and has purchased and received goods and services at its facility valued in excess
of $250,000. The Respondent admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

1 All dates are in 2015 unless otherwise indicated.
2 The exhibits for the General Counsel are identified as “GC Exh.” and Respondent’s
exhibits are identified as “R Exh.” The closing briefs are identified as “GC Br.” and “R Br.” for
the General Counsel and the Respondent, respectively. The hearing transcript is referenced as
“Tr.”
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II. Alleged Unfair Labor Practices
The complaint alleges that the Respondent promulgated and maintained a confidentiality
statement that required employees to sign that restricts their rights to discuss wages and other
terms and conditions of employment in violation of Section 8(a)(1) of the National Labor
Relations Act (Act). The complaint states that the Respondent threatened employee Marcus
Acosta for refusing to agree with the terms of the confidentiality statement and discharged him
on March 24 for asserting his rights under the Act. The General Counsel maintains that the
following portions of the confidentiality statement (GC Exh. 2 and 3) restrict the Section 7 rights
of employees in violation of the Act
Para 3: Employees must regard all non-public information intended for internal purposes
to be an agency trust. This includes, but is not limited to, administrative information such
as salaries, contents of employment contracts, identities of agency contributors, staff
addresses and phone numbers, internal budgets, and information discussed at internal
meetings. The disclosure or personal use of such information or the removal from the
agency of documents containing this information is strictly prohibited.
Para 4: No employee will agree to be interviewed by any media source, or answer any
questions from any media source regarding their employment at LIAAC, the workings
and conditions of LIAAC, or any client, volunteer or staff member, either on or off the
record, unless specifically requested to do so by the President/CEO or any of the Vice
Presidents. All requests for interviews must be referred to the President/CEO or any of
the Vice Presidents.
Employees will be instructed in the following situations. Staff shall not:
 Discuss the content of such documents or computer data with any person
unless that person has authorized access and the need to know the
information discussed…
Marcus Acosta (Acosta) was hired on February 24, 2014 as an outreach specialist and
was responsible, among other job duties, for conducting surveys and speaking with people in
select communities regarding drug use and mental illness. Shortly after being hired, Acosta
was selected as a CDC prevention specialist, and was responsible for outreaching to men
having sex with other men and high risk heterosexuals and drug users. He conducted HIV
testing, counseling and referral on his job. Acosta’s supervisor was Sophia Noel and her
supervisor was Michelle Keogh (Tr. 11-13, 37, 38).
Acosta testified that when he was hired, the Respondent requested that he read, agree,
and abide by the confidentiality statement with the portions noted above and to sign at the
bottom of the statement. Acosta signed the policy statement on March 14, 2014 without protest.
During the course of his employment with the Respondent, Acosta engaged in
discussions with coworkers about their wages and the conditions of employment. Acosta
testified that a newspaper article he noticed in the employees’ break room in November 2014
perked his attention. Acosta stated that the news article mentioned the findings of an
investigation regarding the misappropriation and financial improprieties of funds and
expenditures by the Respondent’s director (Gail Barouh). Acosta testified that his coworkers
were discussing the article in the break room because the allegations of financial improprieties
by the organization have been on-going for years. Acosta recalled discussing with one
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employee who mentioned to him that the Respondent had misappropriated the cost-of-living
adjustment (COLA) benefits. Acosta said that when he returned to his office, he noticed a letter
from Barouh, which was placed on the desks of all employees, explaining what had occurred
and that the Respondent had resolved all the issues mentioned in the news article. A
fundraising packet was placed alongside with the Barouh letter which Acosta understood was
his assigned task to raise money in the community for the organization. Based upon his reading
of the news article, Acosta said he was uncomfortable asking community people for money
when he was uncertain that the money would actually go back to the community. Acosta
approached his supervisor, Noel, and told her that he was uncomfortable asking people for
money. Acosta had not fundraised for the Respondent prior to this request. He also stated he
wanted to make sure the money raised would be used in the community. According to Acosta,
Noel told him not to worry about it. Acosta, dissatisfied with this response, then approached
Keogh with the same concern. It is unclear from Acosta’s testimony as to what occurred when
he met with Keogh (Tr. 13-18). Acosta was not required to fundraise and was never disciplined
by the Respondent for his discussion with Noel regarding his refusal to fundraise (Tr. 49, 50).
Acosta testified to a CDC group meeting in February or early March 2015 with Noel and
Keogh.3 At the end of the meeting, Acosta approached the two supervisors and wanted to know
how wage increases are allocated by the Respondent and whether employees are entitled to
COLA benefits. According to Acosta, the supervisors did not know the answers and directed
him to talk with Robert Nicoletti, the former director of the human resources department (Tr. 18,
19). Acosta met with Nicoletti and told him that other employees were concerned and emotional
about not receiving a pay raise for years and he wanted to know how raises are allocated.
Acosta testified that the employees were reluctant to discuss their wages with management for
fear of retaliation. Acosta was told by Nicoletti that wage increases were based upon
performance evaluations by the supervisors and upon a change in job titles. Nicoletti also told
Acosta that he was a good employee and “he could go far” if he did his work. Acosta was not
informed by Nicoletti as to how and when COLA benefits were allocated (Tr. 19-21; 49-51).
In March, the employer requested all employees to again read, agree, abide and sign
the confidentiality policy statement. Acosta stated he was more cognizant this time of the
contents of the confidentiality statement prohibiting the disclosure of wages after discussing
wages and COLAs with other employees. Acosta did not object to the first paragraph of the
statement policy regarding the maintenance of confidential health information but was upset
with paragraphs three and four that prohibited employees from discussing wages or speaking to
the media about wages. He stated he would not be silenced about discussing salaries with
other employees or being prohibited from talking to the media. This time, Acosta signed the
statement, but highlighted and underlined the sections that he found offensive and wrote the
words “under duress” three times next to his signature4 (Tr. 21-28).
On March 20, Acosta attended a regularly scheduled meeting with supervisor Noel.
During this meeting, Acosta mentioned that other employees had requested and received
raises. Acosta inquired of Noel about getting a raise since the timing was at his 1 year
anniversary date of employment. According to Acosta, Noel laughed and responded, “Oh now
you’re asking for a raise? It seems that everyone is asking for a raise.” According to Ascosta,
Noel also said that his job performance was a “big improvement since November” and she

3 The transcript mistakenly identified the Centers for Disease Control (CDC) as CVC.
4 Acosta testified that he requested a copy of his signed confidentiality statement with the
highlighted portion and his remark “under duress” but was refused a copy by his supervisor.
Neither the original nor a copy was made available during the hearing.
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would look into giving him a raise (Tr. 29, 30). On March 24, Acosta attended another
scheduled meeting with Noel to discuss his work plans. Acosta testified that towards the end of
their meeting, he was summoned to meet with Nicoletti. Acosta was not informed as to the
purpose of the meeting. Acosta attended the second meeting and, with trepidation, asked
Nicoletti if everything was alright and whether he was being terminated (Tr. 31). According to
Acosta, Nicoletti responded “No, why would you get fired?” (Tr. 31). During this time, another
official from human resources and the chief program officer, Ray Ward (Ward), joined the
meeting with Acosta and Nicoletti.
According to Acosta, Nicoletti began the meeting by asking Acosta, “Marcus, this is a
yes or no conversation, there is no room for discussion” (Tr. 31, 32). Acosta was then handed
the confidentiality statement by Nicoletti and was asked if there was anything that Acosta did not
understand about the statement. Acosta testified
I said yes, I don’t understand why I have to sign a form that says that I cannot speak
about employee wages and executive salaries or speak to the media when I believe that
I have those rights (Tr. 32).
Acosta testified that Nicoletti became upset and said “sign or get fired, sign or get fired”
(Tr. 32). Acosta said he signed the form without any portions being highlighted or underlined as
he did earlier, but did hand-wrote “under duress” three times near his signature (GC Exh. 2; Tr.
31). Acosta stated that Nicoletti yelled “…you just terminated yourself!” after seeing the words
“under duress” on the confidentiality statement (Tr. 32).
DISCUSSION AND ANALYSIS
a. Credibility
The credibility resolutions herein have been derived from a review of the entire
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, and the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001). Credibility findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, above.
Nicoletti did not testify at the hearing and the General Counsel argues that an adverse
inference should be drawn (GC Br. at 6).5 It is unnecessary to draw an adverse inference for
his non-appearance inasmuch as the credible testimony provided by Acosta stands
uncontradicted by the Respondent and I would accept as to what had occurred consistent with
that testimony and the corroborating evidence of record. Ward testified on behalf of the
Respondent and supported the fact that Acosta was discharged for writing the words “under
duress” three times near his signature. Ward stated that when Acosta wrote “under duress” on
the confidentiality statement, “…Robert (Nicoletti) told him he just terminated his own
employment” (Tr. 88). Ward insisted that Acosta terminated his own employment (by writing the
words “under duress” next to his signature) and was not discharged (Tr. 92, 93).

5 Nicoletti was no longer employed by the Respondent at the time of the hearing.
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b. Applicable Legal Standard
An employer violates Section 8(a)(1) when it promulgates and maintains a work rule that
reasonably tends to chill employees in the exercise of their Section 7 rights. Lutheran Heritage
Village-Livonia, 25 343 NLRB 646, 646–647 (2004); Lafayette Park Hotel, 326 NLRB 824, 825
(1998). Where the rule is likely to have a chilling effect on Section 7 rights, the maintenance of
the rule is an unfair labor practice, even absent evidence of enforcement. In determining
whether a challenged rule is unlawful, however, the rule must be given a reasonable reading;
particular phrases must not be read in isolation, and improper interference with employee rights
must not be presumed. The Board’s analytical framework for determining whether the
maintenance of a work rule violates Section 8(a)(1) of the Act was set forth in Lutheran Heritage
Village-Livonia
In determining whether a challenged rule is unlawful, the Board must, however, 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. Consistent with the
foregoing, our inquiry into whether the maintenance of a challenged rule is unlawful
begins with the issue of whether the rule explicitly restricts activities protected by Section
7. If it does, we will find the rule unlawful. If the rule does not explicitly restrict activity
protected by Section 7, 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 union activity; or (3) the rule has
been applied to restrict the exercise of Section 7 rights.
The General Counsel argues that employees would reasonably construe the language in
the confidentiality statement to prohibit Section 7 activity (GC Br. at 4, 5). The Respondent
argues that none of the policies explicitly restrict protected, concerted activities and could not be
reasonably construed by employees to restrict their rights to discuss wages and working
conditions (R Br. at 13).
c. The Respondent’s Confidentiality Statement
Violates Section 8(a)(1) of the Act
Section 7 of the Act guarantees employees the right “to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection . . . .” In turn, Section 8(a)(1) of the Act makes it unlawful for an
employer to “interfere with, restrain, or coerce employees in the exercise of [those] rights.” See,
Brighton Retail Inc., 354 NLRB 441, 447 (2009).
The test for evaluating if the employer’s rule violate Section 8(a)(1) is “whether the
statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or
protected activates.” Hills & Dales General Hospital, 360 NLRB No. 70 at slip op. at 5. As with
all alleged Section 8(a)(1) violations, the judge’s task is to “determine how a reasonable
employee would interpret the action or statement of her employer…and such a determination
appropriately takes account of the surrounding circumstances.” The Roomstore, 357 NLRB No.
143, slip op. at 1 fn. 3 (2011).
The confidentiality statement at issue prohibits employees from making an unauthorized
disclosure of
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All non-public information intended for internal purposes to be an agency trust. This
includes, but is not limited to, administrative information such as salaries, contents of
employment contracts (emphasis added), identities of agency contributors, staff
addresses and phone numbers, internal budgets, and information discussed at internal
meetings.
Disclosure of such information could subject an employee with disciplinary action to
include suspension and termination for violating the confidentiality statement.
Upon my review, I find that the confidentiality statement is facially invalid. The legitimate
interest of an employer in protecting its confidential business, the privacy of its clients, and
health-related and customer information has long been recognized under Board law. However,
an employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits
employees, without justification, from discussing among themselves their wages and other
terms and conditions of employment. See Hyundai America Shipping Agency Inc. 357 NLRB
No. 80, slip op. at 21 (2011) (employer violated Sec. 8(a)(1) by maintaining a provision in its
employee handbook stating that "any unauthorized disclosure of information from an
employee’s personnel file is a ground for discipline, including discharge"); Blue Cross-Blue
Shield of Alabama, 225 NLRB 1217 (1976) (employer violated Sec. 8(a)(1) of the Act by
promulgating and maintaining a rule forbidding employees from discussing their wages at any
time under penalty of dismissal); Jeannette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976)
(employer violated Sec. 8(a)(1) by maintaining an unqualified rule prohibiting employees from
discussing their wage rates); Highland Superstores, 301 NLRB 191 (1991)(“An employer
violates Section 8(a)(1) by forbidding employees to discuss wages with other employees”); Love
Culture Inc., 362 NLRB No. 145 (2015).
While I find that the Respondent apparently sought to prevent the disclosure of health-
related, proprietary and financial information, I also find that the Respondent went beyond to
include “salaries and contents of employment contracts,” which would mean that disclosure of
various kinds of information about employees, such as wages, would also be prohibited. In Flex
Frac Logistics, 358 NLRB No. 127 (2012), affd. in relevant part, 198 LRRM 2789 (5th Cir. 2014),
the Board restated established precedent that “…nondisclosure rules with very similar language
are unlawfully overbroad because employees would reasonably believe that they are prohibited
from discussing wages or other terms and conditions of employment…an activity protected by
Section 7 of the Act,” citing Hyundai America Shipping Agency, Inc., 357 NLRB No. 80, slip op.
at 12 (2011); also Lily Transportation Corp., 362 NLRB No. 54, slip op. at 6 (2015).
I also find no exceptions to the confidentiality statement which would permit employees
to discuss wages, compensation or any other specific terms and conditions of employment. It
serves little comfort to the Respondent to argue that wages are public information and the
confidentiality statement only prohibits the disclosure of non-public information. The second
sentence of that paragraph states “..but is not limited to, administrative information such as
salaries, contents of employment contracts..” The confidentiality statement therefore allows
employees to reasonably assume that it pertains to -- among other things --certain protected
concerted activities, such as communications about wages and contents of employment
contracts that are critical of the Respondent’s treatment of its employees. By including non-
disclosure of “wages and contents of employment contracts” in its confidential policy, the
Respondent leaves to the employees the task of determining what is permissible and
“…speculate what kind of information disclose may trigger their discharge.” Flex Frac, above at
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slip op. at 10.6
Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining a rule prohibiting employees to discuss wages among themselves
and to speak with the media that has a reasonable tendency to inhibit employees’ protected
activity.7
d. The Respondent Threatened and Discharged Acosta
in Violation of Section 8(a)(1) of the Act
Discipline imposed pursuant to an unlawfully overbroad company policy violates the Act
in those situations in which an employee violated the policy by (1) engaging in protected
conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7
of the Act. Continental Group, Inc., 357 NLRB No. 39, slip op. at 3-6 (2011); Double Eagle
Hotel & Casino, 341 NLRB 112 at fn. 3 (2004). The General Counsel alleges that the
Respondent violated Section 8(a)(1) threatening Acosta and discharging him on March 24
because he asserted his rights under the Act.
In March, Acosta was instructed to sign the confidentiality statement. Acosta highlighted
and underlined the sections of the statement that he found offensive and signed with the remark
“under duress.” Apparently, the Respondent found this inappropriate and Nicoletti summoned
Acosta to a meeting on March 24 to discuss the confidentiality statement. Nicoletti told Acosta
that this was a “yes or no conversation” and proceeded to ask Acosta what he did not
understand about the statement. After Acosta explained that the statement prohibited him and
other employees from discussing wages and benefits among themselves and with the media,
Nicoletti demanded at least two times that Acosta “sign or get fired.”

Ward was present at the March 24 meeting and testified that the purpose of the meeting
was to have Acosta signed the confidentiality statement (Tr. 86). Ward said that the
confidentiality statement was to protect the organization from employees disclosing sensitive
HIV information of patients and financial information from donators and sponsors of the
organization’s programs (Tr. 87). According to Ward, Acosta insisted that he would talk with
whomever he wants to, but agreed to sign the document (Tr. 87, 88). However, Acosta again
signed the confidentiality statement with the penned in remark “under duress.” Ward said that
Nicoletti then told Acosta that he “…just terminated his own employment” (Tr. 88).
The Respondent argues that Acosta was not engaged in protected, concerted activity
through his objection to the confidentiality statement. The Respondent states that Acosta did
not speak to any other employee about the confidentiality statement and no evidence was
presented that other employees objected to the confidentiality statement or even knew that
Acosta had objected to the statement. The Respondent relied on the Board’s findings in Meyers
I and II for the proposition that an employee acting alone in complaining about safety issue,
without discussing the issue with, or enlisting the support of the other employees did not engage

6 “Board law is settled that ambiguous employer rules-rules that reasonably could be read to
have a coercive meaning-are construed against the employer.” Flex Frac, above, at 2.
7 The Board has also consistently held that company rules prohibiting employees from
communicating with the media is also a violation of the Act. HTH Corp. 356 NLRB No. 182 at
25, 26 (2011); Double Eagle, above at 115 (The Board held that a communication rule that
prohibits the dissemination of confidential information concerning the company by any of its
employees to non-employees without the respondent’s approval violated the Act).
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in concerted activities (R. Br. at 6-9) (Myers Indus. Inc., v. Prill [Myers I], 268 NLRB 493, 497
(1984); Myers II, 281 NLRB 883 (1986).
I find that Acosta had engaged in concerted activity, though the General Counsel did not
specifically argue this contention in his brief. Contrary to the Respondent’s assertions, I credit
Acosta’s unrebutted testimony that he held a reasonable belief that federal and local grants to
the Respondent, a not-for-profit organization, were being improperly diverted and misused by a
management official according to a news article he read in November 2014. Acosta discussed
the contents of the article with coworkers and they also expressed the same concerns,
especially since their wages and cost-of-living increases are dependent on the grants and the
same money was allegedly being used for excessive and improper expenditures. Acosta
brought their concerns to his supervisors, Noel, Keogh and Nicoletti. Acosta specifically did not
want to identify the employees regarding their wage complaints, but did act as their
spokesperson. Acosta’s performance evaluation also noted that Acosta often spoke about
wages being unfair to the employees and wanted to know how raises are doled out (R. Exh. 6).
As such, I find that Acosta by seeking to initiate or induce group action with coworkers and by
bringing group complaints to the attention of management engaged in concerted activities
consistent with Meyers Industries, Inc., above.
Moreover, I also find that since the confidentiality statement is facially invalid in
prohibiting discussion amongst employees about compensation, the comments made by Acosta
to his supervisors regarding his wages and a request for a raise are protected, even if not
shown to be concerted. Double Eagle Hotel & Casino, 341 NLRB 112 (2004). Since the
aforesaid policy was invalid on its face, it was not necessary for the General Counsel to
demonstrate that it was illegally motivated, discriminatorily enforced, or even enforced at all.
Congoleum Industries, 197 NLRB 534, 539 (1972); Lexington Metal Products Co., 166 NLRB
878 (1967); Farah Manufacturing Co., 187 NLRB 601, 602 (1970). The Board has long adhered
to and applied the principle that discipline imposed pursuant to an unlawfully overbroad rule is
unlawful (the “Double Eagle rule”). See, e.g., Double Eagle, 341 NLRB at 112 fn. 3; Saia Motor
Freight Line, 333 NLRB 784, 785 (2001); Opryland Hotel, 323 NLRB 723 (1997); A.T. & S.F.
Memorial Hospitals, 234 NLRB 436 (1978); Miller’s Discount Dept. Stores, 198 NLRB 281
(1972), enfd. 496 F.2d 484 (6th Cir. 1974). The Board has made clear under the Double Eagle
rule where an employee is discharged for violating an unlawful rule, the conduct is protected,
even if not concerted. As the Board stated in Continental Group, above, slip op. at 4
Finally, there are situations in which an employer disciplines an employee pursuant to an
overbroad rule for conduct that touches the concerns animating Section 7 (e.g., conduct
that seeks higher wages) but is not protected by the Act because it is not concerted. In
such situations, it cannot be said that the employee’s conduct would be protected in the
absence of a lawful employer rule… However, in comparison to the situation involving
employee conduct that is neither for mutual aid and protection nor concerted (e.g.,
sleeping on the employer’s premises while off duty), there is a much greater risk that
employees would be chilled in the exercise of their Section 7 rights. That is, the “chilling
effect” rationale for the Double Eagle rule applies to a greater extent when an employee
is disciplined for conduct that is “protected” but not “concerted.” For this reason, we
are convinced that application of the Double Eagle rule in such instances is appropriate
and necessary to fully effectuate the rights guaranteed by Section 7 of the Act.
According to Ward, when Nicoletti saw that Acosta signed the confidentiality statement
with the penned in remark “under duress,” Acosta was immediately discharged. Since I have
concluded that the confidentiality statement for which Acosta was discharged was unlawful, it
follows that his discharge was also unlawful as alleged in the complaint.
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An employer can nevertheless avoid liability for discipline imposed pursuant to an
overbroad rule if it can establish that the employee’s conduct actually interfered with the
employee’s own work or that of other employees or otherwise actually interfered with the
employer’s operations, and that the interference, rather than the violation of the rule, was the
reason for the discipline. The employer bears the burden of asserting this affirmative defense
and establishing that the employee’s interference with production was the actual reason for the
discipline. Continental Group, above slip op. at 4.
The Respondent asserts two affirmative defenses in its answer for Acosta’s discharge,
to wit: 1) Acosta resigned his employment and was not discharged; and 2) Acosta would have
been otherwise discharged due to his erratic conduct prior to and during the alleged incident of
March 24, including his irrational call to the police (see, answer pars.16 and 17). The
Respondent also argues that Acosta was discharged when he insisted on signing the
confidentiality statement with the remark “under duress” (R Br. at 12).
The Respondent’s first defense is without merit. The record shows and the Respondent
conceded and I find that Acosta was discharged (see, R Br. at 5). The Respondent next argues
that Acosta had performance problems and that his constant “pricking” of management was
degrading the morale of the workplace (Tr. 34, 35, 68). Ward testified that Acosta stated that he
was being hampered in his work because the Respondent refused to provide him with more
information regarding a recently reported financial audit of the organization (R Exh. 7). Ward
said that the contents of the audit did not affect Acosta’s ability to perform because he was
already having performance problems prior to the issuance of the audit report. The record
shows that Acosta had time management issues in completing his assigned tasks and for not
submitting his work reports. His performance evaluations also noted an incident of
insubordination for refusing an assignment (R Exhs. 1-6). Ward said that he noticed “negativity”
in Acosta’s performance since November 2014 and that Acosta was very difficult to supervise,
but it was not his place to recommend Acosta’s dismissal (Tr. 84-86). Ward further testified that
Acosta acted erratic and irrational in calling 911 after he had asked for his job back and Nicoletti
refused to rescind his termination. When the 911 operator answered if the call was an
emergency, Acosta responded “no” and terminated the call (Tr. 33, 67, 88, 89).
In my opinion, Ward’s testimony regarding Acosta’s poor performance and negative
attitude towards his job is inconsistent with the record. Noel suggested that Acosta focus on his
work and told him to try and “…weed out negativity that he is absorbing amongst certain peers”
(R Exh. 6 at 2). Noel did not state in her evaluation of Acosta that his insistence on discussing
wages, COLA benefits and raises was disruptive to the organization’s operations. Rather, Noel
believed that it was Acosta’s work performance that has been adversely affected from the
negativity of his coworkers. Obviously, this statement by Noel is inconsistent with Ward’s
assertion that Acosta was the employee who had the negative attitude. Ward’s belief that
Acosta was disruptive and negative is also inconsistent with Acosta’s credible testimony that
Noel thought his work performance had improved by late February and that Noel would consider
him for a raise (Tr. 31).
Additionally, the timing of Acosta’s discharge immediately after Nicoletti saw the signed
confidentiality statement with the remark “under duress” is strong circumstantial evidence that
Acosta was discharged for not abiding with an unlawful policy, as well as a discriminatory
motive on the part of Nicoletti. See, e.g., Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1283
(D.C. Cir. 1999); Hall v. NLRB, 941 F.2d 684, 688 (8th Cir. 1991). The fact that Acosta’s
insistence on signing the confidentiality statement with the remark “under duress” annoyed
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management officials or coworkers does not render his action unprotected. Ryder
Transportation Services, 341 NLRB 761 (2004).
I find that the Respondent’s vague and pretextual explanation that Acosta was negative
and lowering the morale of coworkers is inconsistent with Noel’s assessment that Acosta’s job
performance had improved by March and it was the negativity of his coworkers that adversely
affected his performance provides even stronger evidence of discriminatory motivation. See All
Pro Vending, 350 NLRB 503, 508 (2007); Rood Trucking Co., 342 NLRB 895, 897 (2004); Laro
Maintenance Corp. v. NLRB, 56 F.3d 224, 230 (D.C. Cir.1995) (pretextual explanation warrants
inference that employer desires to conceal an unlawful motive) (quoting Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966)). Although the Respondent supervisors gave
Acosta some indication that they were unsatisfied with his work in late February, they did not
recommend his discipline or discharge. On March 24, Acosta was informed of his improved job
performance at his supervisory meeting with Noel, but discharged moments later at his meeting
with Nicoletti, further illuminating the fact that the proffered reason for discharge as pretextual
and actually attributable to Acosta’s complaints regarding compensation.8
For all these reasons, I find and conclude that the Respondent’s discharge of
Acosta violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent has violated Section 8(a)(1) by:
(a) Since March 2015, promulgating and maintaining an overbroad confidential policy
statement prohibiting employees from discussing wages or other terms and conditions of
employment with employees or non-employees and the media.
(b) Threatened and discharged Marcus Acosta on March 24, 2015, for violating its
overbroad and unlawful confidential policy statement prohibiting employees from
discussing their wages and other terms and conditions of employment with employees or
non-employees and the media.
(c) By the conducted described in paragraphs (a) and (b), the Respondent has been
interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act.
3. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(2),
(6), and (7) of the Act.

8 With regard to the alleged erratic call to 911, I find Acosta’s action not unreasonable under
the circumstances. I would credit Acosta’s testimony that he was extremely upset with his
discharge and acted on impulse. Acosta then realized calling 911 was against his better
judgment and informed the 911 operator that it was not an emergency and ended the call (Tr.
66, 67).
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REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I shall order the Respondent to offer Marcus
Acosta full reinstatement to his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other employee
emoluments, rights or privileges previously enjoyed, and to make him whole for any loss of
earnings and other benefits suffered as a result of the discrimination against him. Backpay shall
be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). In addition, the Respondent must
compensate Acosta for the adverse tax consequences, if any, of receiving a lump-sum backpay
award and to file a report with the Social Security Administration allocating the backpay award
to appropriate calendar quarters. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No.
10 (2014).9
I also shall order the Respondent to remove from its files any references to the unlawful
discharge of Acosta and to notify him in writing that this has been done and that the unlawful
discharge will not be used against him in any way.

9 The General Counsel’s brief argues that Acosta be reimbursed for search-for-work and
work-related expenses regardless of whether he received interim earnings in excess of these
expenses, or at all, during any given quarter, or during the overall backpay period. The General
Counsel makes a strong argument that reimbursement is appropriate under the Act for such
search-for-work and work related expenses. I would note that all remedial relief flows from the
simple premise that a victim of discrimination should be as nearly as possible be placed in the
position he or she would have been in but for the prohibited discrimination. Albemarle Paper
Co. v. Moody, 422 U.S. 405 (1975). Compensatory damages consist of a wide variety of relief
including pecuniary and nonpecuniary damages. Pecuniary damages are intended
compensation for out-of-pocket expenses incurred as a result of the employer’s unlawful action
and may include job-hunting, stationary and postage, telephone expenses, resume services,
fees referral, costs of transportation interviewing for jobs and other job search fees. The 1991
Civil Rights Act made available compensatory damages in employment discrimination cases
and such damages are intended to compensate a victim of discrimination for losses or suffering
caused by the discriminatory act. Carey v. Piphus, 435 U.S. 247, 254 (1978). Compensation
for similar out-of-pocket work related expenses for victims of unfair labor practices under the Act
would not be unreasonable, and I would note that the backpay remedy under Title VII of the
Civil Rights Act of 1964 was in fact modeled on the backpay provisions of the NLRB Act and its
backpay remedy is a “make whole” remedy. Albemarle at 419, above. Nevertheless, such a
change must come from the Board. In Katch Kan, 362 NLRB No. 162 (2015) at fn. 2, the Board
stated “…because the relief sought (out-of-pocket work related expenses) would involve a
change in Board law, we believe that the appropriateness of this proposed remedy should be
resolved after a full briefing by the affected parties, and there has been no such briefing in this
case. Accordingly, we decline to order this relief at this time. See, e.g., Ishikawa Gasket
America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and cases cited
therein.”
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER
The Respondent, Long Island Associating for AIDS Care, Inc., Hauppauge, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining any rule prohibiting employees from discussing their
wages and other terms and conditions of their employment with employees or non-employees
and the media.
(b) Threaten discharge or discipline employees due to a violation of an overbroad and
unlawful confidentiality policy statement prohibiting employees from discussing their wages and
other terms and conditions of employment with employees or non-employees and the media.
(c) Discharge employees due to a violation of an overbroad and unlawful confidentiality
policy statement prohibiting employees from discussing their wages and other terms and
conditions of employment with employees or non-employees and the media.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind paragraphs 3 and 4 from the Respondent’s Confidentiality Statement
prohibiting employees from discussing their wages and other terms and conditions of
their employment with non-employees and the media.
(b) Remove from its files and records all references to the Confidentiality Statement
prohibiting employees from discussing wages and other terms of employment with
non-employees and the media and notify employees that this had been done and
that the prohibition in discussing wages and other terms and conditions of their
employment with non-employees and the media is no longer in force.
(c) Within 14 days from the date of this Order, offer Marcus Acosta full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other employee emoluments, rights or
privileges he previously enjoyed.
(d) Make Marcus Acosta whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the remedy section
of this decision.

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(e) Compensate Marcus Acosta for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quarters.
(f) Within 14 days from the date of this Order, remove from its files any references to
the unlawful discharge of Marcus Acosta, and, within 3 days thereafter, notify him in
writing that this had been done and that his unlawful discharge will not be used
against him in any way.
(g) Within 14 days after service by the Region, post at Respondent’s facility at 60 Adams
Avenue, Hauppauge, New York, copies of the attached notice marked “Appendix.”11
Copies of the notice, on forms provided by the Regional Director for Region 29, after
being signed by the Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 days in conspicuous places including all places
were notices to employees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or internet site, and/or other electronic means, if the Respondent
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 Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondent in the position employed by the Respondent at any time since March 1,
20115.
(h) Within 21 days after service by the Region, file with the Regional Director for Region
29 a sworn certification of a responsible official on a form provided by the Regional
Director attesting to the steps the Respondent has taken to comply.
Dated: Washington, D.C. August 26, 2015
Kenneth W. Chu
Administrative Law Judge

11 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–38–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT promulgate and maintain a Confidentiality Statement that prohibits you from
discussing their wages and other terms and conditions of employment with employees or non-
employees and the media.
WE WILL NOT require and coerce you to sign a Confidentiality Statement as described above.
WE WILL NOT threaten to discipline or discharge or otherwise discriminate against you
because you engage in protected concerted activities or to discourage you from engaging in
these or other concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, rescind paragraphs 3 and 4 from our
Confidentiality Statement.
WE WILL, within 14 days from the date of this Order, offer Marcus Acosta full reinstatement
to his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other employee emoluments, rights or privileges he previously
enjoyed.
WE WILL make Marcus Acosta whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him.
WE WILL compensate Marcus Acosta for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters.
JD(NY)–38–15
WE WILL, within 14 days from the date of this Order, remove from our files any references to
the unlawful discharge of Marcus Acosta, and WE WILL, within 3 days thereafter, notify him in
writing that this had been done and that his discharge will not be used against him in any way.
LONG ISLAND ASSOCIATION FOR AIDS
___________Care, Inc.___________________
(Employer)
Dated__________________ By____________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Two Metro Center, 100 Myrtle Avenue, 5
th
Floor, Brooklyn, New York 11201
(718) 330-7713, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-149012 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330-2862.