Schwan's Home Service, Inc. a wholly owned subsidiary of the Schwan Food Company

National Labor Relations Board - Board Decisions

Jun 10, 2016

364 NLRB No. 20 (N.L.R.B. 2016)

364 NLRB NO. 20
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Schwan’s Home Service, Inc., a wholly owned subsid-
iary of the Schwan Food Company and Patrick
K. Wardell. Case 27–CA–066674
June 10, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On June 6, 2012, Administrative Law Judge Gerald A.
Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The Respondent produces, sells, and distributes frozen
food products. It employs about 7000 employees at ap-
proximately 400 locations in the United States. Most of
the employees are route sales representatives (RSRs),
who sell and deliver these products to customers. The
Respondent pays the RSRs a base salary plus commis-
sion on their sales, as well as automatic daily bonuses for
coming to work and for meeting scheduling targets. The
Respondent also employs material handlers who work in
the Respondent’s warehouses and receive and prepare the
products for delivery to customers. Each employee is
subject to the work rules (labeled “Standards of Con-
duct”) contained in the Respondent’s employee hand-
book, and must also sign an Employment, Confidentiali-
ty, Ownership & Noncompete Agreement (ECONA) that
restricts disclosure of certain types of information.
At issue here are allegations that the Respondent un-
lawfully maintained three work rules and part of the
ECONA.2 It is well established that an employer violates

1 We shall amend the judge’s Conclusions of Law and remedy and
modify his recommended Order to conform to the violations found and
to the Board’s standard remedial language. We shall further modify the
judge’s recommended Order to provide for the posting of the notice in
accordance with J. Picini Flooring, 356 NLRB 11 (2010). We shall
substitute a new notice to conform to the Order as modified and in
accordance with our decision in Durham School Services, 360 NLRB
No. 85 (2014).
2 There are no exceptions to the judge’s findings that the Respond-
ent violated Sec. 8(a)(1) by maintaining a handbook rule prohibiting
solicitation in work areas during nonworking time, as well as a written
policy prohibiting suspended employees from discussing their em-
ployment status with coworkers or customers. There are also no excep-
Section 8(a)(1) of the Act by maintaining a work rule
that would reasonably tend to chill employees in the ex-
ercise of their Section 7 rights. Lafayette Park Hotel,
326 NLRB 824, 825 (1998), enfd. mem. 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 union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights. Id. at
647.3
Briefly stated, the allegedly unlawful handbook rules
that we now consider are: (1) restricting disclosure of
company information (Rule 12); (2) requiring preapprov-
al before disseminating information containing the com-
pany name (Rule 17); and (3) prohibiting conduct detri-
mental to the Respondent or its employees (Rule 26).
The part of the ECONA alleged to be unlawful prohibits
employees from sharing information about “wages,
commissions, performance, or identity of employees.”
With little discussion, the judge dismissed the allegations
that these directives violate the Act. He found that em-
ployees would reasonably understand the rules merely to
protect the Respondent’s legitimate business and proprie-
tary interests, and that the ECONA furthered the Re-
spondent’s interest in preventing competitors from re-
cruiting its employees. As support for these findings, the
judge invoked the Board’s decisions in Lafayette Park

tions to the judge’s dismissal of the allegation that certain language in
the Respondent’s termination letters is unlawful.
3 Our dissenting colleague would overrule the Board’s well-
established, court-approved standard for assessing facial challenges to
employer rules. We disagree for the reasons set forth fully in William
Beaumont Hospital, 363 NLRB No. 162, slip op. at 4–6 (2016). As to
the dissent’s claim that the Board’s established standard has been “ex-
ceptionally difficult to apply . . . and it has consistently produced arbi-
trary results,” we note that his proposed framework promises neither to
simplify the required analysis nor to produce more predictable out-
comes. Instead, by weighing a rule’s potential impact on employees’
rights in light of an extensive, nonexclusive list of potentially relevant
factors, the dissent would appear effectively to expand our analysis of
work rules far beyond their text to include practically every aspect of
the employment relationship. Our colleague’s analysis in this case
illustrates the uncertainty inherent in his approach: he would find the
prohibition of employee use of customer information lawful, in part
because he speculates that it would be likely to impinge upon employ-
ees’ protected conduct only “in limited circumstances.” As explained
below, we find it much more likely that this aspect of the rule would
impinge upon protected conduct. In any case, as explained in detail in
William Beaumont Hospital, the dissent’s proposed test has a weaker
analytical foundation than the Board’s established standard, is tilted
against Sec. 7 rights, and would be more difficult to apply. Here, as
there, we have no difficulty in deciding to adhere to the established
standard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Hotel, supra; Super K-Mart, 330 NLRB 263 (1999); and
Mediaone of Greater Florida, Inc., 340 NLRB 277
(2003) (“Mediaone”). The General Counsel excepts to
the judge’s findings. As explained below, we reverse in
substantial part the judge’s dismissals.4
1. Rule 12, entitled, “Security of Company Infor-
mation,” instructs employees that:
You are not permitted to reveal information in
company records to unauthorized persons or to de-
liver or transmit company records to unauthorized
persons.
Trade secret information including, but not lim-
ited to, information on devices, inventions, processes
and compilations of information, records, specifica-
tions, and information concerning customers, ven-
dors or employees shall not be disclosed, directly or
indirectly, or used in any way, either during the term
of employment or at any time thereafter, except as
required in the course of employment with Schwan.
Employees will abide by Schwan’s policies and
practices as established from time to time for the
protection of its trade secret information.
Schwan’s business shall not be discussed with
anyone who does not work for Schwan or with any-
one who does not have a direct association with the
transaction.
Excepting, the General Counsel maintains that the judge
erred by failing to find that elements of all three paragraphs
of the rule unlawfully prohibit Section 7 activity. The Gen-
eral Counsel emphasizes that the second paragraph restricts
the sharing of employee information, while references in the
first and third paragraphs to “information in company rec-
ords” and “Schwan’s business” are at least ambiguous as to
whether employees may share information about terms and

4 In its answering brief, the Respondent generally maintains that
employees freely and without punishment discuss their wages and
working conditions in the workplace and on public websites. It argues
that this purported “open culture” negates any possible coerciveness of
the rules or the ECONA. We reject this argument. The General Coun-
sel’s facial challenges to the rules and the ECONA do not depend on
evidence of enforcement. See Security Walls, LLC, 356 NLRB 596,
596 fn. 1 (2011); Lafayette Park Hotel, supra at 825. Even if the Re-
spondent’s evidence of its open culture were relevant, it has failed to
establish that this workplace atmosphere communicated to employees
that they could exercise the full range of Sec. 7 rights in spite of the
prohibitions contained in the rules and the ECONA. In any event, we
agree with the judge that the Respondent’s supporting evidence was
merely anecdotal, and therefore of little value in determining how the
Respondent’s 7000 employees (at over 400 locations) would interpret
its policies.
We also find no support for the Respondent’s argument that business
considerations generally justify any intrusion of its rules and ECONA
on employees’ Sec. 7 rights.
conditions of employment.5 We agree with the General
Counsel that the second and third paragraphs of the rule are
unlawful.6
a. The prohibition of disclosure of information concern-
ing customers, vendors, or employees in the second par-
agraph of the rule
We find that employees would reasonably understand
the part of the rule restricting disclosure of “information
concerning customers, vendors, or employees” to prohib-
it the sharing of employee information with each other or
third parties, including union representatives. The Board
has consistently held similar rules forbidding disclosure
of information about employees—which includes wages
and other terms and conditions of employment—to be
overbroad and unlawful. See, e.g., Flex Frac Logistics,
LLC, 358 NLRB 1131, 1131 (2012) (rule prohibiting
employees from disclosing “personnel information and
documents” to persons “outside the organization” unlaw-
ful), enfd. 746 F.3d 205 (5th Cir. 2014)7; Cintas Corp.,
344 NLRB 943, 943 (2005) (prohibition against releasing
“any information” about employees unlawful), enfd. 482
F.3d 463 (D.C. Cir. 2007); Flamingo Hilton-Laughlin,
330 NLRB 287, 287, 291–292 (1999) (rule prohibiting
employees from revealing confidential information about
“fellow employees” and discussing work with third par-
ties and the media unlawful).
We reject the judge’s finding that employees would
reasonably understand this part of the rule, contained in
paragraph two, to apply only to confidential proprietary
information, which they have no Section 7 right to dis-
close. Rule 12 lacks any contextual clarity that would
lead reasonable employees to conclude that the prohibi-
tion is limited to such information. The awkward con-
struction of the paragraph’s first sentence defies easy
comprehension, but appears to include three separate
categories of information, each with its own significance.
It begins with three examples of “[t]rade secret infor-
mation”—“devices, inventions, [and] processes.” It then
mentions “compilations of information, records, [and]

5 The General Counsel also argues more generally that the second
paragraph’s prohibition of disclosure of “‘information concerning cus-
tomers, vendors or employees’, is unlawful.”
6 We agree with the judge’s dismissal of the allegation regarding the
first paragraph.
7 Although Flex Frac Logistics was decided by a panel that included
one or more persons whose appointments to the Board were not valid,
see NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the United States
Court of Appeals for the Fifth Circuit enforced the Board’s Order in
Flex Frac Logistics prior to the issuance of the Supreme Court’s deci-
sion in Noel Canning. There is no question regarding the validity of the
court’s judgment. Accordingly, we find it appropriate to rely on Flex
Frac Logistics in this decision. See UPMC, 362 NLRB No. 191, slip
op. at 1–2 fn. 5 (2015).
SCHWAN’S HOME SERVICE 3
specifications,” which refer to the form in which infor-
mation may be kept, not the type of information. The
sentence next refers to several types of information
seemingly distinct from those listed at the beginning of
the sentence—including that “concerning customers,
vendors, or employees.”
Contrary to the judge and the Respondent, this rule is
unclear as to what information is prohibited from disclo-
sure. A portion of the first sentence prohibits employees
from disclosing information “concerning . . . employ-
ees,” which they would reasonably believe includes their
terms and conditions of employment. While other por-
tions of this brief paragraph, read together, could be in-
terpreted to apply only to intellectual property and relat-
ed information, as argued by the Respondent, the inclu-
sion of employee information creates an ambiguity that
makes it difficult to ascertain the nature and extent of the
information that is barred from disclosure. It is well es-
tablished that such ambiguity is construed against the
Respondent as the drafter of the rule, for employees
should not have to decide at their peril what activities a
rule prohibits. See Lafayette Park Hotel, supra at 828;
Flex Frac Logistics, supra at 1132. Faced with this am-
biguity, and fearing potential discipline, employees
would reasonably err on the side of caution and refrain
from exercising their Section 7 right to share workplace
information.8

8 We also find the rule’s near-complete prohibition of disclosure or
use of “information concerning customers” to be unlawful. See, e.g.,
Boch Honda, 362 NLRB No. 83, slip op. at 1 fn. 4 (2015). Contrary to
our colleague’s suggestion, this prohibition clearly would be under-
stood by employees to affect conduct protected by Sec. 7 of the Act.
As stated above, most of the Respondent’s employees are route sales
representatives who sell and deliver the Respondent’s products directly
to customers. For these employees, “information concerning custom-
ers” is inextricably intertwined in many aspects of their work, including
their interaction with customers, potential customer complaints about
their performance, the length and course of their delivery route, the
duration of their workday, their commission-based compensation, and
their ability to meet the Respondent’s scheduling targets. Our dissent-
ing colleague asserts that “[c]ustomers are not involved in the collec-
tive-bargaining process, nor are the terms of an employer’s customer
relationships subject to the duty to bargain.” This assertion misses the
mark; the issue is not whether a bargaining obligation exists as to cus-
tomers but whether the Respondent’s sales employees can engage in
protected conduct that might involve customer information. Our col-
league concedes that “two or more employees may sometimes concert-
edly engage in NLRA-protected conduct that implicates customer in-
formation.” But, he nevertheless would find the prohibition lawful,
because he speculates that “this is likely to occur in limited circum-
stances,” and “protecting that information will have little, if any, ad-
verse impact on NLRA-protected activity.” We disagree. Under the
circumstances of this case, we find it clear that Respondent’s sales
employees would reasonably fear discipline for many kinds of protect-
ed workplace discussions concerning their terms and conditions of
employment that happen to involve “information concerning custom-
ers.”
Mediaone, supra, relied upon by the judge and the Re-
spondent, is distinguishable. The rule there prohibited
disclosure of “proprietary information, including infor-
mation assets and intellectual property.” Id. at 278 (em-
phasis in original). The lengthy list of “proprietary in-
formation” that followed included categories of intellec-
tual assets including business plans, technological re-
search, product documentation, marketing plans, pricing
information, copyrighted work, trade secrets, financial
information, and patents, as well as the challenged “cus-
tomer and employee information, including organiza-
tional charts and databases.” Ibid. In that context, the
Board found that considering the rule as a whole, em-
ployees would reasonably understand that the rule “was
designed to protect the confidentiality of the Respond-
ent’s proprietary business information rather than to pro-
hibit discussion of employee wages.” Id. at 279. Here,
as discussed, the rule is far less clear, and does not estab-
lish lawful boundaries on the sharing of information.9
b. The prohibition of discussion of Schwan’s business in
the third paragraph of the rule
We also find the following third paragraph of Rule 12
to be ambiguous and overly broad: “Schwan’s business
shall not be discussed with anyone who does not work
for Schwan or with anyone who does not have a direct
association with the transaction.” The broad reference to
“Schwan’s business” reasonably encompasses any and
all facets of employee terms and conditions of employ-
ment. The rule prevents discussion of these topics “with
anyone who does not work for Schwan or with anyone
who does not have a direct association with the transac-
tion.” The Respondent cannot lawfully limit discussion
in this manner, as employees generally have a Section 7
right to share employment-related information with third
parties, such as the Board, the media, or union represent-
atives.10 The reference to “the transaction” at the end of
the paragraph reinforces the coerciveness of this part of
the rule. “The transaction” presumably refers to sales
transactions, which are of central importance to the Re-
spondent’s sales employees, who comprise the majority
the Respondent’s workforce. The details of their transac-
tions with customers have substantial bearing on their
terms and conditions of employment, including their
commissions and their hours of work.11 Again, any am-

9 See also Cintas Corp. v. NLRB, 482 F.3d 463, 470 (D.C. Cir.
2007) (similarly distinguishing Mediaone); Rio All-Suites Hotel &
Casino, 362 NLRB No. 190, slip op. at 3 (2015) (same).
10 See, e.g., C.S. Telecom, Inc., 336 NLRB 1193, 1193 (2001) (em-
ployee engaged in Sec. 7 activity by disclosing information about his
work locations to union).
11 Illustrating the connection between customer transactions and
hours of work, Dave Bock, the Respondent’s vice president and assis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
biguity is construed against the Respondent. For these
reasons, employees would reasonably construe this part
of the rule to unlawfully prohibit Section 7 activity.
The Respondent argues that “Schwan’s business” re-
fers only to “commercial business transactions with ven-
dors,” and that employees would recognize the necessity
of protecting this information from competitors. We find
no support for this argument. Rule 12 in no way indi-
cates that the third paragraph’s reach is limited in that
manner. We also disagree with the Respondent that this
part of the rule is akin to the rule found lawful in Super
K-Mart, 330 NLRB at 263–264, which stated that
“Company business and documents are confidential,”
and prohibited “[d]isclosure of such information.” Ra-
ther, the suggestion in this part of the rule that employees
have no right to discuss sales and orders that are the crit-
ical elements of their work distinguishes it from the Su-
per K-Mart rule, as well as the one in Lafayette Park
Hotel, supra, that prohibited employees from
“[d]ivulging Hotel-private information” to unauthorized
parties.
2. Rule 17, entitled, “Use of the Company Name,”
provides as follows:
You are not permitted to purchase any material
as a charge to the company without authorized man-
agement approval.
Any articles, speeches, records of operation, pic-
tures or other material for publication, in which the
company name is mentioned or indicated, must be
submitted, through your supervisor, for approval or
disapproval by the Corporate Communications and
Law Departments prior to release.
You are not permitted to negotiate or sign any
lease, purchase agreement, bill of sale, contract or
other legal document as a representative of the com-
pany, unless authorized to do so by management nor
are you permitted to express or imply to any vendor
the intention of the company to purchase, rent or
lease any tangible property, equipment, material,
space or services.
We find merit in the General Counsel’s exception to
the judge’s dismissal of the allegation that the second
paragraph of this rule is overly broad. Employees have a
clear right under the Act to publicize labor disputes. See
Valley Hospital Medical Center, 351 NLRB 1250, 1252
(2007), enfd. mem. sub nom. Nevada Service Employees
Local 1107 v. NLRB, 358 Fed.Appx. 783 (9th Cir. 2009).

tant general counsel, testified that RSRs work a “long day,” and may at
times need to stay overnight in hotels in order to complete all of their
scheduled customer visits.
See generally Eastex, Inc. v. NLRB, 437 U.S. 556, 565
(1978) (holding that Section 7 protection extends to em-
ployee efforts to improve terms and conditions of em-
ployment or otherwise improve their lot as employees
through channels outside the immediate employee-
employer relationship). The Board has explained that
“any rule that requires employees to secure permission
from their employer as a precondition to engaging in
protected concerted activity on an employee’s free time
and in nonwork areas is unlawful.” Brunswick Corp.,
282 NLRB 794, 795 (1987). See also Trump Marina
Casino Resort, 355 NLRB 585 (2010) (incorporating by
reference 354 NLRB 1027, 1027 fn. 2 (2009)) (finding
rule requiring employees to get prior authorization before
speaking to media unlawful), enfd. mem. 435 Fed.Appx.
1 (D.C. Cir. 2011). The Board has also found rules
against employees publicly identifying their employer to
be unlawful. See, e.g., Boch Honda, supra, 362 NLRB
No. 83, slip op. at 2 (“employees would reasonably read
the prohibition of using the Respondent’s logos ‘in any
manner’ to cover protected employee communications”).
By prohibiting employees’ dissemination of “any arti-
cles, speeches, records of operation, pictures or other
material” regarding the Respondent without its permis-
sion, the rule contravenes this well-established precedent
and is therefore unlawful.
There is no support for the Respondent’s view that
employees would reasonably conclude that this part of
the rule merely prohibits them from speaking on the Re-
spondent’s behalf. The second paragraph is worded
broadly, requiring, by its terms, preapproval of any mate-
rial intended for publication that mentions the Respond-
ent’s name. The fact that it applies only to “publication”
of materials is not significant. Even if that term is con-
strued narrowly to apply only to the placement of materi-
al in a newspaper or other document of general circula-
tion,12 it still prohibits employees from, e.g., writing let-
ters to the editor or opinion pieces regarding labor dis-
putes without preapproval. Finally, although the first and
third paragraphs of the rule only prohibit actions on be-
half of the Respondent, they apply to the purchase or
rental of goods and property—actions completely differ-
ent from the activities addressed in the second paragraph.
Thus, we find that employees would reasonably construe
the second paragraph of the rule to restrict expression of
public statements protected by Section 7.
3. Rule 26, entitled, “Conflicts of Interest,” states that:

12 “Publication” may of course reasonably be construed more broad-
ly to include other protected means of communication, such as newslet-
ters, handbills, and social media postings.
SCHWAN’S HOME SERVICE 5
Employees shall avoid activities that could ap-
pear to influence their objective decisions relative to
their company responsibilities.
Continued employment with the company is de-
pendent upon strict avoidance of:
a. Conflicts of interest or the appearance of such
conflicts.
b. Conduct on or off duty which is detrimental to
the best interests of the company or its employees.
c. Employees shall avoid activities that might ap-
pear to result in fraud or waste.
d. Employees may not engage in any activity, on
or off company premises, or be employed in any ca-
pacity at Schwan which creates an actual or per-
ceived conflict of interest (e.g. an employee may not
supervise an immediate family member or a person
with whom they have an intimate relationship; an
employee may not have a financial interest in a sup-
plier or competitor).
We agree with the General Counsel that the judge
erred by dismissing the allegation that subparagraph (b)
is unlawful. Subparagraph (b) broadly applies to any
conduct that is detrimental to the Respondent’s best in-
terests, or those of its employees. Beyond the amor-
phous reference to “best interests,” it contains no exam-
ples of conduct that it prohibits, or any language that
would confine its reach to misconduct unrelated to Sec-
tion 7 activity. Rather, it is left to the Respondent’s dis-
cretion to determine what conduct is unacceptable and –
as stated in the rule’s introduction—may be grounds for
discharge. In these circumstances, a reasonable employ-
ee would assume that the Respondent would not consider
Section 7 activity such as labor protests or public criti-
cism of its policies to be in its best interests, and might
then refrain from engaging in such activity.13 See First
Transit, Inc., 360 NLRB No. 72, slip op. at 2 fn. 5 (2014)
(unlawful rule prohibited participation “in outside activi-

13 The Respondent’s “Company Philosophy Towards Labor Un-
ions,” located earlier in the handbook, provides additional support for
this finding. That provision states that:
The company is opposed to the unionization of Schwan because the
needs of our employees are best served by retaining the ability to con-
verse one-on-one with management, avoiding third party intervention
and rewarding employees based on each employee’s individual merit.
By remaining union free, the working atmosphere between employees
and between employees and management will remain open and honest
. . . .
We must also “take into account the economic dependence of the
employees on their employers, and the necessary tendency of the for-
mer, because of that relationship, to pick up intended implications of
the latter that might be more readily dismissed by a more disinterested
ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
ties that are detrimental to the company’s image or repu-
tation, or where a conflict of interest exists,” or “conduct-
ing oneself during nonworking hours in such a manner
that the conduct would be detrimental to the interest or
reputation of the Company”). 14
We disagree with the Respondent and our dissenting
colleague that the context of the entire rule renders sub-
paragraph (b) lawful. The surrounding subparagraphs
(a), (c), and (d), which are not alleged to be unlawful,
together narrowly and specifically address what appear to
be legitimate business concerns unrelated to Section 7
activity—conflicts of interest such as fraud, waste, and
improper financial or family considerations. The rela-
tionship of subparagraph (b) to these concerns—beyond
its mere inclusion in the same rule—is attenuated. In
sharp contrast to the other parts of the rule, subparagraph
(b) does not identify the “conflict of interest” sought to
be avoided, other than the ambiguous “best interests of
the company or its employees.” Nor do we find that a
reasonable employee would construe these words as a
simple repetition of the specific conflicts of interest men-
tioned in the rest of Rule 26, rather than having a sepa-
rate meaning which, as discussed, supra, includes the
infringement of their Section 7 rights. Thus, differences
in scope and content of the surrounding subparagraphs
fail to clarify this part of the rule in the manner suggested
by the Respondent. 15

14 Cases cited by the Respondent in defense of subparagraph (b) are
distinguishable. In each case, the rules found lawful were far less
broad, and more clearly related to employee misconduct outside the
scope of Sec. 7 activity. See Lafayette Park Hotel, 326 NLRB at 826-
827 (prohibiting “[u]nlawful or improper conduct” that “affects the
employee’s relationship with the job, fellow employees, supervisors, or
the hotel’s reputation or good will in the community”); Flamingo Hil-
ton-Laughlin, 330 NLRB at 288-289 (prohibiting “off-duty misconduct
that materially and adversely affects job performance or tends to bring
discredit to the Hotel”); Palms Hotel & Casino, 344 NLRB 1363
(2005) (prohibiting conduct that is “injurious, offensive, threatening,
intimidating, coercing, or interfering with fellow Team Members or
patrons”). In contrast, the rule here is an unqualified and ambiguous
restraint on employee behavior.
15 Our dissenting colleague would read subparagraph (b) as a gen-
eral, catch-all prohibition of conflicts of interest, “intended to encom-
pass similar conflict-of-interest situations not specifically listed” in
subparagraphs (c) and (d), under the canon of construction known as
noscitur a socciis. Because the Respondent can lawfully prohibit the
conduct encompassed by subparagraphs (c) and (d), the dissent con-
tends that subparagraph (b) cannot reasonably be read to encompass
different activity that the Respondent cannot lawfully prohibit. How-
ever, on this reading, subparagraph (b) serves no function distinct from
subparagraph (a), which generally prohibits “Conflicts of interest or the
appearance of such conflicts,” and which we have found lawful. Ap-
plying an equally settled principle of construction, we assume that
subparagraph (b) is not superfluous and means what it says. See, e.g.,
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle
of statutory construction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
4. The Respondent requires employees to sign its
ECONA when hired, promoted, or otherwise changing
jobs within the company. The ECONA includes several
sections of rules governing the employment relationship.
Section 3 applies to employees’ use of so-called “Confi-
dential and Proprietary Information.” Subsection (a) of
Section 3 in part states that employees will have access
to confidential and proprietary information and that
“[s]uch information has been developed by Employer at
great expense over many years of substantial effort, and
were competitors of Employer to obtain such infor-
mation, there would result a substantial and irreparable
adverse effect upon the business of Employer.” Subsec-
tion (c) defines “Confidential and Proprietary Infor-
mation [to] include any information pertaining in any
way but not limited to” nine distinct categories of infor-
mation. One of these categories is “any information per-
taining to the wages, commissions, performance, or iden-
tity of employees of Employer.” Under the heading “Re-
strictions,” subsection (d) states that:
Employee shall neither directly nor indirectly (i) dis-
close to any person not in the employ of Employer any
Confidential or Proprietary Information, or (ii) use any
such information to the Employee’s benefit, the benefit
of any third party or [e]mployer, or to the detriment of
Employer, or (iii) use any such information to solicit
any employee of Employer to seek employment else-
where.
Section 2 of the ECONA explains that “compl[iance] with
Company’s policies and procedures . . . is a condition of
continued employment.”
We agree with the General Counsel that the ECONA is
unlawful because it explicitly restricts disclosing infor-
mation about “wages, commissions, performance, or
identity of employees” to any person not employed by
the Respondent. This would include providing such in-
formation to third parties such as union representatives—
activity clearly protected by Section 7.16 See, e.g., Dou-

be superfluous, void, or insignificant.”) (internal quotation marks and
citation omitted).
Our colleague correctly observes that Sec. 8(c) of the Act protects,
with certain limitations, an employer’s expressions of its interest in
avoiding union representation of its employees. No part of our Act,
however, authorizes an employer to prohibit employees from engag-
ing—on or off duty—in conduct that is in any way detrimental to its
interests. Because subparagraph (b), in its full context, requires em-
ployees to conform their conduct in all respects to the Respondent’s
interests, it clearly encompasses protected conduct, and accordingly
violates the Act.
16 We reject the Respondent’s argument that the ECONA is not a
unilaterally-imposed rule or a condition of employment. The Respond-
ent requires employees to sign the ECONA and comply with it on
threat of discharge.
ble Eagle Hotel & Casino, 341 NLRB 112, 113–115
(2004) (finding that rule in part prohibiting employees
from sharing performance evaluations, salary infor-
mation, salary grade, and types of pay increases explicit-
ly restricted Sec. 7 rights), enfd. 414 F.3d 1249 (10th Cir.
2005), cert. denied 546 U.S. 1170 (2006). Having found
that this part of the ECONA explicitly restricts such ac-
tivity under Lutheran Heritage, we need not address the
judge’s finding that employees would reasonably under-
stand the Respondent’s intent to be only to prohibit em-
ployees from sharing information with its competitors in
order to prevent their recruitment away from the Re-
spondent.17 See Lutheran Heritage, 343 NLRB at 646–
647. For the same reason, the judge’s reliance on
Mediaone, 340 NLRB at 278–279, is misplaced. As
discussed previously, in that case the Board construed
the meaning of a prohibition on sharing of “customer and
employee information” that was part of a list of intellec-
tual assets. Here, the explicit prohibition on Section 7
activity leaves nothing to construe. “Wages, commis-
sions, performance, or identity of employees” directly
relate to employees’ terms and conditions of employ-
ment, and sharing such information is at the heart of their
Section 7 rights.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent has violated Section 8(a)(1) of the
Act by maintaining unlawfully overbroad rules prohibit-
ing: solicitation during nonwork time in work areas; dis-
closure of information concerning employees, customers,
or the Respondent’s business; publication of material in
which the Respondent’s name is mentioned or indicated
without the Respondent’s approval; conduct that is “det-
rimental to the best interests of the company or its em-
ployees”; and in its Employment, Confidentiality, Own-
ership & Noncompete Agreement, disclosure of infor-
mation about the wages, commissions, performance, or
identity of employees to anyone not employed by the
Respondent. The Respondent has also violated Section
8(a)(1) by maintaining a suspension notice prohibiting
suspended employees from discussing their status with
anyone inside or outside the company.

17 However, we disagree with the judge’s finding that the ECONA
applies only to disclosures to competitors. While it does allude to the
threat of such disclosures, it also expressly prohibits disclosures to “any
person” not employed by the company, as well as “any third party,”
which would include union representatives and the public.
SCHWAN’S HOME SERVICE 7
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The standard affirmative remedy for maintenance of
unlawful work rules is immediate rescission of the of-
fending rules; this remedy ensures that employees may
engage in protected activity without fear of being sub-
jected to the unlawful rule. Guardsmark, LLC, 344
NLRB 809, 812 (2005), enfd. in relevant part 475 F.3d
369 (D.C. Cir. 2007). Pursuant to Guardsmark, the Re-
spondent may comply with the Order by rescinding the
unlawful handbook rules and republishing its employee
handbook without them, and rescinding the unlawful
provisions in the Employment, Confidentiality, Owner-
ship & Noncompete Agreement and the suspension no-
tice. We recognize, however, that republishing the hand-
book could be costly. Accordingly, the Respondent may
supply the employees either with handbook inserts stat-
ing that the unlawful rules have been rescinded, or with
new and lawfully worded rules on adhesive backing that
will cover the unlawfully worded rules, until it repub-
lishes the handbook either without the unlawful provi-
sions or with lawfully worded rules in their stead. Any
copies of the handbook that are printed with the unlawful
rules must include the inserts before being distributed to
employees. Id. at 812 fn. 8.18
ORDER
The National Labor Relations Board orders that the
Respondent, Schwan’s Home Service, Inc., a Wholly
Owned Subsidiary of The Schwan Food Company, Love-
land, Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining a rule in its employee handbook, under
the heading “Solicitation and Organizational Work,” that
prohibits solicitation during nonwork time in work areas.
(b) Maintaining a rule in its employee handbook, under
the heading “Security of Company Information,” that
prohibits the disclosure of information concerning em-
ployees, customers, or “Schwan’s business.”
(c) Maintaining a rule in its employee handbook, under
the heading “Use of the Company Name,” that requires
employees to obtain company approval of any material
meant for publication in which the company’s name is
mentioned or indicated.

18 Because the Respondent maintained its overbroad rules on a
companywide basis, we agree with the judge that the notices are to be
posted nationwide. Guardsmark, LLC, 344 NLRB at 812.
(d) Maintaining a rule in the employee handbook, un-
der the heading “Conflicts of Interest,” that prohibits
employees from engaging in conduct that is “detrimental
to the best interests of the company or its employees.”
(e) Maintaining a provision in its Employment, Confi-
dentiality, Ownership & Noncompete Agreement
(ECONA) that prohibits employees from disclosing in-
formation about the wages, commissions, performance,
or identity of employees to anyone not employed by the
company.
(f) Maintaining language in its standard suspension no-
tice that prohibits employees from discussing their status
with anyone, inside or outside the company, during peri-
ods of disciplinary suspension or when they are suspend-
ed pending investigation.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule in its employee handbook, under
the heading “Solicitation and Organizational Work,” that
prohibits solicitation during nonwork time in work areas.
(b) Rescind the rule in its employee handbook, under
the heading “Security of Company Information,” that
prohibits disclosure of information concerning employ-
ees, customers, or “Schwan’s business.”
(c) Rescind the rule in its employee handbook, under
the heading “Use of the Company Name,” that requires
employees to obtain company approval of any material
meant for publication in which the company’s name is
mentioned or indicated.
(d) Rescind the rule in its employee handbook, under
the heading “Conflicts of Interest,” that prohibits em-
ployees from engaging in conduct that is “detrimental to
the best interests of the company or its employees.”
(e) Furnish all current employees nationwide with in-
serts for the current employee handbook that (1) advise
that the unlawful rules have been rescinded, or (2) pro-
vide the language of lawful rules; or publish and distrib-
ute a revised employee handbook that (1) does not con-
tain the unlawful rules, or (2) provides the language of
lawful rules.
(f) Rescind the provision in its ECONA that prohibits
employees from disclosing information about the wages,
commissions, performance, or identity of employees to
anyone not employed by the company, and notify em-
ployees in writing that this has been done and that the
provision is no longer in force.
(g) Rescind the language in its standard suspension no-
tice that prohibits employees from discussing their status
with anyone, inside or outside the company, during peri-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ods of disciplinary suspension or when they are suspend-
ed pending investigation, and notify employees in writ-
ing that this has been done and that the provision is no
longer in force.
(h) Within 14 days after service by the Region, post at
its facilities nationwide copies of the attached notice
marked “Appendix.”19 Copies of the notice, on forms
provided by the Regional Director for Region 27, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed facilities involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 13, 2011.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 27 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 10, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, my colleagues find that the Respondent,
Schwan’s Home Service, Inc. (Schwan’s), violated Sec-

19 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.”
tion 8(a)(1) of the National Labor Relations Act (NLRA
or Act) by maintaining certain work rules. The work
rules at issue here are facially neutral: they do not ex-
plicitly restrict NLRA-protected conduct, there is no evi-
dence that they were adopted in response to NLRA-
protected conduct, nor were they applied to restrict
NLRA-protected conduct that had occurred. Nonethe-
less, my colleagues rely on the “reasonably construe” test
articulated in Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004) (Lutheran Heritage), which re-
quires a finding that facially neutral work rules violate
the Act if they would be reasonably construed by em-
ployees to prohibit some type of future potential NLRA-
protected activity. I respectfully disagree with the major-
ity in three respects.
First, I believe the Lutheran Heritage “reasonably con-
strue” standard should be overruled by the Board or re-
pudiated by the courts for the reasons set forth in my
dissenting opinion in William Beaumont Hospital, 363
NLRB No. 162, slip op. at 7–24 (2016) (Member
Miscimarra, dissenting).
Second, I believe the Board is required to evaluate the
rules at issue in this case by striking a “proper balance”
that takes into account (i) the legitimate justifications
associated with the disputed rules and (ii) any potential
adverse impact on NLRA-protected activity.1 Based on
this balancing—which the Supreme Court has repeatedly
required from the Board, and which is consistent with
Board decisions spanning more than 60 years2—I concur
with my colleagues’ finding that Respondent violated the
Act by maintaining (i) the portions of Rule 12, “Security
of Company Information,” that prohibit disclosure “di-
rectly or indirectly” of “information concerning . . . em-
ployees,” that prohibit the use of such information “in
any way . . . during the term of employment or at any
time thereafter,” and that prohibit the discussion of

1 See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34 (1967)
(referring to the Board’s “duty to strike the proper balance between . . .
asserted business justifications and the invasion of employee rights in
light of the Act and its policy”). In performing the balancing discussed
in the text, I believe the Board must also take into account other con-
siderations, which may involve, depending on the case, reasonable
distinctions between types of rules and justifications, evidence regard-
ing the particular industry or work setting, specific events that may bear
on the disputed rule, and the possibility that the rule may be lawfully
maintained even though future application of the rule against NLRA-
protected conduct may be unlawful. See Discussion, part B infra. See
also William Beaumont, supra, slip op. at 15, 18–20 (Member
Miscimarra, concurring in part and dissenting in part).
2 Great Dane, supra, 388 U.S. at 33–34; Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 797–798 (1945); NLRB v. Erie Resistor Corp.,
373 U.S. 221, 229 (1963). See generally William Beaumont, supra, slip
op. at 11–13, 18–21 (Member Miscimarra, concurring in part and dis-
senting in part).
SCHWAN’S HOME SERVICE 9
“Schwan’s business . . . with anyone who does not work
for Schwan or with anyone who does not have a direct
association with the transaction”; (ii) the portion of Rule
17, “Use of the Company Name,” that prohibits all “ma-
terial for publication,” unless submitted for approval or
disapproval, in which “the company name is mentioned
or indicated”; and (iii) the portion of Respondent’s Em-
ployment, Confidentiality, Ownership & Noncompete
Agreement that prohibits disclosure of “any information
pertaining to the wages, commissions, performance, or
identity of employees of Employer.” However, I re-
spectfully dissent from my colleagues’ finding that the
Respondent violated the Act by maintaining other as-
pects of Rule 12, and I dissent from their finding that the
Respondent unlawfully maintained Rule 26, “Conflicts
of Interest.”
Third, even if one applies Lutheran Heritage, I disa-
gree with the majority’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act by maintaining the por-
tions of Rule 12 that I believe are lawful (i.e., excluding
the violations described above). I likewise disagree that
Lutheran Heritage supports a finding that the Respond-
ent violated Section 8(a)(1) by maintaining Rule 26,
“Conflicts of Interest.”
Background
The Respondent has maintained a “Schwan Food
Company Employee Handbook” that contains three work
rules at issue in this case.
Rule 12, captioned, “Security of Company Infor-
mation,” states:
You are not permitted to reveal information in
company records to unauthorized persons or to de-
liver or transmit company records to unauthorized
persons.
Trade secret information including, but not lim-
ited to, information on devices, inventions, processes
and compilations of information, records, specifica-
tions, and information concerning customers, ven-
dors or employees shall not be disclosed, directly or
indirectly, or used in any way, either during the term
of employment or at any time thereafter, except as
required in the course of employment with Schwan.
Employees will abide by Schwan’s policies and
practices as established from time to time for the
protection of its trade secret information.
Schwan’s business shall not be discussed with
anyone who does not work for Schwan or with any-
one who does not have a direct association with the
transaction.3

3 Emphasis added.
Rule 17, captioned, “Use of the Company Name,”
states:
You are not permitted to purchase any material
as a charge to the company without authorized man-
agement approval.
Any articles, speeches, records of operation, pic-
tures or other material for publication, in which the
company name is mentioned or indicated, must be
submitted, through your supervisor, for approval or
disapproval by the Corporate Communications and
Law Departments prior to release.
You are not permitted to negotiate or sign any
lease, purchase agreement, bill of sale, contract or
other legal document as a representative of the com-
pany, unless authorized to do so by management nor
are you permitted to express or imply to any vendor
the intention of the company to purchase, rent or
lease any tangible property, equipment, material,
space or services.4
Rule 26, captioned, “Conflicts of Interests,” states:
Employees shall avoid activities that could appear to
influence their objective decisions relative to their
company responsibilities. Continued employment with
the company is dependent upon strict avoidance of:
a. Conflicts of interest or the appearance of such con-
flicts.
b. Conduct on or off duty which is detrimental to the
best interests of the company or its employees.
c. Employees shall avoid activities that might appear to
result in fraud or waste.
d. Employees may not engage in any activity, on or off
company premises, or be employed in any capacity at
Schwan which creates an actual or perceived conflict of
interest (e.g. an employee may not supervise an imme-
diate family member or a person with whom they have
an intimate relationship; an employee may not have a
financial interest in a supplier or competitor).
Please contact your local Human Resource representa-
tive for specifics on how the employment of relatives is
handled in your facility.
None of the above rules explicitly restricts activities protect-
ed under Section 7 of the Act, and there is no evidence that
the rules were adopted in response to protected conduct or
applied to restrict protected activities.
The judge found that all the above rules were lawful,
based on the following analysis:

4 Emphasis added.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
I conclude that an employee reading these rules would
reasonably understand that the rules were designed to
protect and insulate the Respondent from situations
which would compromise its financial, trade secret,
brand name and other proprietary interests including
the “good will” associated with the Respondent’s brand
name and the acquiring and retention of customers
which could be adversely affected by inappropriate
employee conduct “on or off duty.” I do not believe the
rules, singly or collectively, even though they prohibit
disclosure of information regarding employees and al-
so prohibit certain employee conduct, would reasona-
bly cause this Respondent’s employees to refrain from
protected activity under the Act. I shall dismiss these
allegations of the complaint.5
In addition, the Respondent also utilizes an Employ-
ment, Confidentiality, Ownership & Noncompete
Agreement (“Noncompete Agreement” or “ECONA”),
portions of which are also at issue here. The
Noncompete Agreement contains a section entitled
“Confidential and Proprietary Information; Ownership
and Assignment of Rights,” which states in part:
a. Stipulations. Employer and Employee agree
that during the course of Employee’s employment,
Employee will have access to Confidential and Pro-
prietary Information as defined below. Such infor-
mation has been developed by Employer at great ex-
pense over many years of substantial effort, and
were competitors of Employer to obtain such infor-
mation, there would result a substantial and irrepara-
ble adverse effect upon the business of Employer.
Employee agrees that the Employer owns all such
Confidential and Proprietary Information.
b. Definition. As used in this Agreement, Confi-
dential and Proprietary Information is understood to
mean information in whatever form, tangible or in-
tangible, pertaining in any manner to the sales, man-
ufacture, or distribution business of or product or in-
tellectual property development by Employer where
such information has been developed by employees,
consultants, or agents of Employer or otherwise at
Employer’s expense, and which is not generally
known in the industry in which Employer is in-
volved and gives Employer a competitive advantage.
c. Scope. Confidential and Proprietary Infor-
mation shall include any information pertaining in
any way but not limited to (i) any contract or lease

5 Judge’s decision, infra, slip op. at 24 (emphasis added) (citing
Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. mem. 203 F.3d 52
(D.C. Cir. 1999); Super K-Mart, 330 NLRB 263 (1999); and Mediaone
of Greater Florida, 340 NLRB 277 (2003)).
involving Employer and any individual, organization
or other entity; (ii) Employer’s cost and prices for its
merchandise, products, or services, as well as Em-
ployer’s pricing and costing procedures, purchasing
or accounting systems or techniques, financial per-
formance or business systems; . . . (vi) any infor-
mation not publicly available pertaining to the cus-
tomers or potential customers of Employer includ-
ing, without limitation, the identity of Employer’s
customers or potential customers; (vii) any infor-
mation pertaining to the wages, commissions, per-
formance, or identity of employees of Employer. . . .
d. Restrictions. Employee shall neither directly
nor indirectly (i) disclose to any person not in the
employ of Employer any Confidential or Proprietary
Information, or (ii) use any such information to the
Employee’s benefit, the benefit of any third party or
[e]mployer,6 or to the detriment of Employer, or (iii)
use any such information to solicit any employee of
Employer to seek employment elsewhere.
The judge upheld the legality of the Noncompete
Agreement’s confidentiality provisions, which he inter-
preted as follows:
I conclude that employees entering into the Agreement,
who make the effort to read through it, would reasona-
bly understand that the Respondent in this portion of
the Agreement is concerned with, and is attempting to
prohibit the route sales representatives from disclosing,
“confidential and proprietary” information to the Re-
spondent’s “competitors,” and that this is the thrust,
import and intent of this section of the Agreement. The
Respondent has legitimate concerns that its route sales
representatives could be more easily recruited away
from the Respondent by competitors if competitors be-
came aware of the identity, performance skills, and
earnings of particular route sales representatives. Ac-
cordingly, I find that employees would not reasonably
read this rule as prohibiting Section 7 activity.7
My colleagues apply the Lutheran Heritage “reasona-
bly construe” standard and, contrary to the judge, they
conclude that all the italicized portions of the above
rules—with one exception8—violate Section 8(a)(1) of
the Act.

6 The Noncompete Agreement capitalizes “Employer” here. Thus,
as written, the Noncompete Agreement prohibits employees from using
the Employer’s Confidential or Proprietary Information “to . . . the
benefit of . . . Employer.” This must have been an inadvertent mistake.
7 Judge’s decision, supra, slip op. at 24 (emphasis added) (citing
Mediaone of Greater Florida, supra, 340 NLRB at 279).
8 My colleagues find that Respondent did not violate Sec. 8(a)(1) by
maintaining par. 1 in Rule 12, which states: “You are not permitted to
SCHWAN’S HOME SERVICE 11
The majority finds that Rule 12, “Security of Company
Information,” “defies easy comprehension” and is “un-
clear as to what information is prohibited from disclo-
sure,” especially the “trade secret” paragraph that, in
part, prohibits the disclosure of information “concerning
. . . employees.” In particular, the majority relies on the
following considerations:
 My colleagues find that the nondisclosure obli-
gation regarding “information concerning . . .
employees” would prompt employees to “rea-
sonably believe” they cannot have discussions
with other employees about “their terms and
conditions of employment.”
 My colleagues concede that “other portions [of
Rule 12] . . . could be interpreted to apply only
to intellectual property and related information,”
but they find that (i) “the inclusion of employee
information creates an ambiguity that makes it
difficult to ascertain the nature and extent of the
information that is barred from disclosure,” (ii)
“such ambiguity is construed against the Re-
spondent as the drafter of the rule, for employ-
ees should not have to decide at their peril what
activities a rule prohibits,” and (iii) “[f]aced
with this ambiguity, and fearing potential disci-
pline, employees would reasonably err on the
side of caution and refrain from exercising their
Section 7 right to share workplace infor-
mation.”
9

reveal information in company records to unauthorized persons or to
deliver or transmit company records to unauthorized persons.” I concur
with the finding that this provision is lawful. However, consistent with
my separate opinion in William Beaumont, supra, I reach this conclu-
sion because the Respondent has legitimate confidentiality interests
associated with this rule, and a nondisclosure requirement limited to
“company records” and “information in company records” cannot
reasonably be regarded as having an adverse impact on Sec. 7 activity.
See Super K-Mart, 330 NLRB at 263–264 (employees have no Sec. 7
right to disseminate an employer’s own records, and any potential
impact on Sec. 7 rights is outweighed by the employer’s legitimate
interest in protecting the confidentiality of its private business infor-
mation).
9 Citing Boch Honda, 362 NLRB No. 83, slip op. at 1 fn. 4 (2015),
my colleagues also find “the rule’s near-complete prohibition of disclo-
sure or use of ‘information concerning customers’ to be unlawful.” The
Board in Boch Honda furnished no explanation why it found a similar
rule unlawful. However, my colleagues find that employees would
“clearly” understand a prohibition on the disclosure of “information
concerning customers” to “affect” Sec. 7 activity, since “‘information
concerning customers’ is inextricably intertwined in many aspects of
their work, including their interaction with customers, potential cus-
tomer complaints about their performance, the length and course of
their delivery route, the duration of their workday, their commission-
based compensation, and their ability to meet the Respondent’s sched-
 My colleagues find the nondisclosure require-
ment regarding “Schwan’s business” unlawful
because, in their view, the phrase “Schwan’s
business” reasonably encompasses “any and all
facets of employee terms and conditions of em-
ployment.”
 The majority also finds that prohibiting disclo-
sures regarding “the transaction” reinforces “the
coerciveness of this part of the rule” because
sales transactions “are of central importance to
the Respondent’s sales employees, who com-
prise the majority of the Respondent’s work-
force,” and the “details of their transactions with
customers have substantial bearing on their
terms and conditions of employment, including
their commissions and their hours of work.”
Again invoking the principle that “any ambigui-
ty is construed against the Respondent,” my col-
leagues find that “employees would reasonably
construe this part of the rule to unlawfully pro-
hibit Section 7 activity.”
My colleagues likewise find that the Respondent un-
lawfully maintained Rule 17, “Use of the Company
Name,” because employees “have a clear right under the
Act to publicize labor disputes,” and “employees would
reasonably construe the second paragraph of the rule to
restrict expression of public statements protected by Sec-
tion 7.”
Turning to Rule 26, my colleagues find that Respond-
ent violated the Act by prohibiting employees from en-
gaging in “[c]onduct on or off duty which is detrimental
to the best interests of the company or its employees.”
They conclude that this rule unlawfully interferes with
NLRA-protected activities because it “broadly applies to
any conduct that is detrimental to the Respondent’s best
interests, or those of its employees.” My colleagues also
observe:
Beyond the amorphous reference to “best interests,”
[Rule 26] contains no examples of conduct that it pro-
hibits, or any language that would confine its reach to
misconduct unrelated to Section 7 activity. Rather, it is
left to the Respondent’s discretion to determine what
conduct is unacceptable and–as stated in the rule’s in-
troduction–may be grounds for discharge. In these cir-

uling targets.” As explained below, I believe it strains credulity to find
that employees would reasonably construe the prohibition on disclosing
“information concerning customers” in this manner. In my view, this is
an interpretation that would only be adopted by labor lawyers and only
if their sole focus is the NLRA, which highlights one of the principal
reasons that the Lutheran Heritage “reasonably construe” standard
should be overruled. See Discussion, part A, infra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
cumstances, a reasonable employee would assume that
the Respondent would not consider Section 7 activity
such as labor protests or public criticism of its policies
to be in its best interests, and might then refrain from
engaging in such activity.10
Finally, my colleagues conclude that the Noncompete
Agreement’s confidentiality provisions (regarding “in-
formation pertaining to the wages, commissions, perfor-
mance, or identity of employees of Employer”) violate
Section 8(a)(1) of the Act because they explicitly restrict
NLRA-protected conduct.11 Here, my colleagues state
that the Noncompete Agreement “explicitly restricts dis-
closing [employee] information . . . to any person not
employed by the Respondent,” which would include
“third parties such as union representatives—activity
clearly protected by Section 7.” My colleagues observe
that “‘[w]ages, commissions, performance, or identity of
employees’ directly relate to employees’ terms and con-
ditions of employment, and sharing such information is
at the heart of their Section 7 rights.”
Discussion
A. The Board’s Lutheran Heritage “Reasonably Con-
strue” Test Should Be Overruled by the Board or Repu-
diated by the Courts
The primary problem with my colleagues’ evaluation
of Respondent’s rules stems from their reliance on Lu-
theran Heritage, under which all facially neutral em-
ployment policies, work rules and handbook provisions
violate NLRA Section 8(a)(1) if employees would “rea-
sonably construe the language to prohibit Section 7 activ-
ity.”12 Under the “reasonably construe” standard, offend-
ing work rules are deemed unlawful even though they are
facially neutral, i.e., they do not explicitly restrict Section
7 activity, they were not adopted in response to NLRA-

10 Emphasis added; fn. omitted.
11 Under Lutheran Heritage, the “reasonably construe” test applies
to facially neutral requirements that, among other things, do not explic-
itly restrict Section 7 activity. See William Beaumont, supra, slip op. at
7 fn. 3 (Member Miscimarra, concurring in part and dissenting in part).
Under my colleagues’ analysis, the Noncompete Agreement’s confi-
dentiality provision does explicitly restrict Sec. 7 activity—for exam-
ple, concerted protected conduct by two or more employees relating to
wages and commissions—and thus would directly interfere with, re-
strain, or coerce employees in the exercise of protected rights in viola-
tion of Sec. 8(a)(1).
12 Lutheran Heritage, supra, 343 NLRB at 647. This standard is
sometimes called Lutheran Heritage “prong one” because, in Lutheran
Heritage, the “reasonably construe” test is enumerated as the first item,
or “prong,” in a three-prong standard for determining whether a chal-
lenged policy, work rule or handbook provision that does not explicitly
restrict Sec. 7 activity is nonetheless unlawful. See William Beaumont,
supra, slip op. at 7 fn. 3 (Member Miscimarra, concurring in part and
dissenting in part).
protected activity, and they have not been applied to re-
strict NLRA-protected activity.
For reasons described at length in my partial dissenting
opinion in William Beaumont,13 I believe that the Luther-
an Heritage “reasonably construe” test should be over-
ruled by the Board or repudiated by the courts. The “rea-
sonably construe” standard defies common sense and is
contrary to the Act in numerous respects. Although Sec-
tion 8(a)(1) makes it unlawful for an employer to “inter-
fere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7,” the instant case does
not involve any “exercise” of NLRA-protected rights,
and—as noted above—the disputed work rules do not
expressly restrict Section 7 activity, were not adopted in
response to NLRA-protected activity, and have not been
applied to restrict NLRA-protected activity. The “rea-
sonably construe” standard entails a single-minded con-
sideration of NLRA-protected rights—even though the
risk of intruding on NLRA rights might be “comparative-
ly slight”14—without taking into account the many legit-
imate justifications associated with particular policies,
rules and handbook provisions, which may affect matters
involving life and death, the avoidance of fatal accidents,
reducing the risk of workplace violence, and preventing
unlawful workplace harassment. As I explained in Wil-
liam Beaumont:
 Lutheran Heritage is contrary to the Su-
preme Court precedent establishing that,
whenever work requirements are alleged to
violate the NLRA, the Board must give
substantial consideration to the justifica-
tions associated with the rule, rather than
only considering a rule’s potential adverse
effect on NLRA rights.15

13 William Beaumont, supra, slip op. at 8–10, 11–18 (Member
Miscimarra, concurring in part and dissenting in part).
14 Great Dane, supra, 388 U.S. at 34.
15 See Republic Aviation Corp. v. NLRB, supra, 324 U.S. at 797–798
(describing the need to balance the “undisputed right of self-
organization assured to employees” and “the equally undisputed right
of employers to maintain discipline in their establishments,” rights that
“are not unlimited in the sense that they can be exercised without re-
gard to any duty which the existence of rights in others may place upon
employer or employee,” because the “[o]pportunity to organize and
proper discipline are both essential elements in a balanced society”);
NLRB v. Erie Resistor Corp., supra, 373 U.S. at 229 (referring to the
“delicate task” of “weighing the interests of employees in concerted
activity against the interest of the employer in operating his business in
a particular manner and of balancing . . . the intended consequences
upon employee rights against the business ends to be served by the
employer’s conduct”); Great Dane, supra, 388 U.S. at 33–34 (referring
to the Board’s “duty to strike the proper balance between . . . asserted
business justifications and the invasion of employee rights in light of
SCHWAN’S HOME SERVICE 13
 Lutheran Heritage is contradicted by the
NLRB’s own cases establishing that nu-
merous work requirements and restrictions
are lawful—for example, no-solicitation
and no-distribution rules, off-duty employ-
ee access rules, “just cause” provisions and
attendance requirements—notwithstanding
the fact that each would fail the Lutheran
Heritage “reasonably construe” test.16
 The Board has engaged in a balancing of
competing interests—in the above cases
and others spanning more than six dec-
ades—without disregarding the justifica-
tions associated with particular rules and
requirements.17
 Under Lutheran Heritage, the Board has
invalidated many facially neutral work
rules merely because they are ambiguous.
However, the Board’s requirement of lin-
guistic precision when applying Lutheran
Heritage is contrary to the permissive
treatment that Congress, the Board and the
courts have afforded to “just cause” provi-
sions, benefit plans, and other employment-
related requirements throughout the Act’s
history.18 Moreover, given that many am-
biguities are inherent in the NLRA itself, it
is unreasonable to find that reasonable work
requirements violate the NLRA merely be-
cause employers cannot discharge the im-
possible task of anticipating and carving out
every possible overlap with some potential
NLRA-protected activity.
 The Lutheran Heritage “reasonably con-
strue” test stems from several false premis-

the Act and its policy”); Southern Steamship Co. v. NLRB, 316 U.S. 31,
47 (1942) (“[T]he Board has not been commissioned to effectuate the
policies of the [Act] so single-mindedly that it may wholly ignore other
and equally important Congressional objectives.”). Cf. First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 680–681 (1981) (“[T]he
Act is not intended to serve either party’s individual interest, but to
foster in a neutral manner a system in which the conflict between these
interests may be resolved.”). See generally William Beaumont, supra,
slip op. at 11–12 (Member Miscimarra, concurring in part and dissent-
ing in part).
16 See William Beaumont, supra, slip op. at 12 (Member
Miscimarra, concurring in part and dissenting in part).
17 Id., slip op. at 12–13, 20–21 (Member Miscimarra, concurring in
part and dissenting in part).
18 Id., slip op. at 8, 13–14 & fns. 29–31 (Member Miscimarra, con-
curring in part and dissenting in part).
es that are contrary to the NLRA, the most
important of which is a misguided belief
that unless employers formulate written
policies, rules and handbooks that can nev-
er be construed in a manner that conflicts
with some type of hypothetical NLRA pro-
tection, employees are best served by not
having employment policies, rules and
handbooks at all. In this respect, Lutheran
Heritage requires perfection that literally
has become the enemy of the good.19
 The Lutheran Heritage “reasonably con-
strue” test improperly limits the Board’s
discretion, contrary to the Board’s respon-
sibility to apply the “general provisions of
the Act to the complexities of industrial
life.”20 It does not permit the Board to af-
ford greater protection to those Section 7
activities that are central to the Act (as
compared to other types of activity may lie
at the periphery of the Act or rarely if ever
occur), to make reasonable distinctions
among different types of justifications un-
derlying particular rules, or to differentiate
between different industries, work settings,
and discrete events that, if considered, may
demonstrate that the justifications for cer-
tain work requirements outweigh their po-
tential impact on some type of NLRA-
protected activity.21
 If a particular work rule exists for important
reasons that require the Board to conclude
“the rule on its face is not unlawful,”22 Lu-
theran Heritage fails to recognize that the
Board may later find that the employer vio-
lates Section 8(a)(1) if it applies the rule to
restrict NLRA-protected activity.23 Here as

19 Id., slip op. at 8, 13–15 (Member Miscimarra, concurring in part
and dissenting in part).
20 NLRB v. Erie Resistor Corp., supra, 373 U.S. at 236; see also
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The
responsibility to adapt the Act to changing patterns of industrial life is
entrusted to the Board.”).
21 See William Beaumont, supra, slip op. at 9, 15 (Member
Miscimarra, concurring in part and dissenting in part).
22 Aroostook County Regional Ophthalmology Center v. NLRB, 81
F.3d 209, 213 (D.C. Cir. 1996) (emphasis added).
23 In Aroostook County Regional Ophthalmology Center, the Court
of Appeals for the D.C. Circuit stated:
In the absence of any evidence that [the employer] is imposing an un-
reasonably broad interpretation of the rule upon employees, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
well, Lutheran Heritage prevents the Board
from discharging its duty to apply the “gen-
eral provisions of the Act to the complexi-
ties of industrial life.”24
 The Lutheran Heritage “reasonably con-
strue” test has been exceptionally difficult
to apply, many Board decisions have disre-
garded important qualifications set forth in
Lutheran Heritage itself,25 and it has con-
sistently produced arbitrary results.26
As I stated in William Beaumont, our experience with
the Lutheran Heritage “reasonably construe” standard
“has revealed its substantial limitations, as well as its
departure from the type of balancing required by Su-
preme Court precedent and the Board’s own decisions.”27
For the above reasons, Lutheran Heritage should be

Board's determination to the contrary is unjustified. If an occasion
arises where [the employer] is attempting to use the rule as the basis
for imposing questionable restrictions upon employees' communica-
tions, the employees may seek review of the Company's actions at that
time. However, the rule on its face is not unlawful.
Ibid. See also Adtranz ABB Daimler-Benz Transportation v. NLRB,
253 F.3d 19, 28 (D.C. Cir. 2001) (stating that the Board cannot find a
facially neutral policy unlawful based upon “fanciful” speculation, and
the Board must “consider the context in which the rule was applied and
its actual impact on employees”). See William Beaumont, supra, slip
op. at 19–20 & fn. 60 (Member Miscimarra, concurring in part and
dissenting in part).
24 NLRB v. Erie Resistor Corp., supra, 373 U.S. at 236; NLRB v. J.
Weingarten, Inc., supra, 420 U.S. at 266–267. See generally William
Beaumont, supra, slip op. at 9 (Member Miscimarra, concurring in part
and dissenting in part).
25 See William Beaumont, supra, slip op. at 13–14 fn. 29; id., slip op.
at 18 fn. 55 (Member Miscimarra, concurring in part and dissenting in
part).
26 Compare Adtranz ABB Daimler-Benz Transportation v. NLRB,
supra, 253 F.3d at 27 (finding it lawful to maintain rule prohibiting
“abusive or threatening language to anyone on [c]ompany premises”)
and Lutheran Heritage, supra, 343 NLRB at 646–647 (finding it lawful
to maintain rule prohibiting “abusive or profane language”) with Fla-
mingo Hilton-Laughlin, 330 NLRB 287 (1999) (finding it unlawful to
maintain rule prohibiting “loud, abusive or foul language”). Also com-
pare Palms Hotel & Casino, 344 NLRB 1363, 1363 (2005) (finding it
lawful to maintain rule prohibiting “conduct which is . . . injurious,
offensive, threatening, intimidating, coercing, or interfering with” other
employees) with Lafayette Park Hotel, 326 NLRB at 825 (1998). See
generally William Beaumont, supra, slip op. at 15–18 (Member
Miscimarra, concurring in part and dissenting in part).
In part, the arbitrary results associated with Lutheran Heritage have
resulted from many Board decisions that have disregarded important
qualifications set forth in Lutheran Heritage itself. See William Beau-
mont, supra, slip op. at 18 fn. 55 (Member Miscimarra, concurring in
part and dissenting in part).
27 William Beaumont, supra, slip op. at 18 (Member Miscimarra,
concurring in part and dissenting in part).
overruled by the Board, and if not, it should be repudiat-
ed by the courts.
B. Properly Balancing NLRA Rights and Relevant Justi-
fications, Portions of Rules 12 and 17 and the
Noncompete Agreement Violate the Act, and All Other
Disputed Provisions Are Lawful
In cases that involve the assessment of facially neutral
employment policies, work rules or handbook provisions,
I believe the Board is required to do what the Supreme
Court has repeatedly required of us, which is to carry out
our “duty to strike the proper balance between . . . as-
serted business justifications and the invasion of employ-
ee rights in light of the Act and its policy.”28 Consistent
with this requirement, I believe the Board may find that
facially neutral work requirements are unlawful only if
the Board considers two things—the justifications asso-
ciated with a particular policy, work rule or handbook
provision, and its potential impact on NLRA-protected
conduct—and only if the Board reasonably finds that the
justifications are outweighed by an adverse impact on
Section 7 activity. As noted previously, when engaging
in this balancing, I believe the Board is required to con-
sider other potentially relevant factors, depending on the
case, including possible distinctions between and among
different NLRA-protected activities, different types of
rules, and different justifications; potential differences
relating to particular industries and work settings; and
discrete events that bear on particular disputed policies,
work rules and handbook provisions. The Board must
also recognize that these considerations may warrant a
conclusion that “the rule on its face is not unlawful,”29
even though the Board may later find it is unlawful to
apply the rule in a manner that restricts NLRA-protected
activity.30
Based on a balancing of justifications and NLRA
rights, I concur with my colleagues’ finding that Re-
spondent violated the Act by maintaining (i) the portions
of Rule 12, “Security of Company Information,” that
prohibit disclosure “directly or indirectly” of “infor-
mation concerning . . . employees,” that prohibit the use
of such information “in any way . . . during the term of
employment or at any time thereafter,” and that prohibit

28 NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 33–34
(emphasis added). See also NLRB v. Erie Resistor Corp., supra, 373
U.S. at 229 (quoted in fn., supra); Republic Aviation v. NLRB, supra,
324 U.S. at 797–798 (quoted in fn., supra).
29 Aroostook County Regional Ophthalmology Center v. NLRB, su-
pra, 81 F.3d at 213 (emphasis added).
30 Aroostook County Regional Ophthalmology Center, supra;
Adtranz ABB Daimler-Benz Transportation v. NLRB, supra, 253 F.3d at
28. See generally William Beaumont, supra, slip op. at 19–20 & fn. 60
(Member Miscimarra, concurring in part and dissenting in part).
SCHWAN’S HOME SERVICE 15
the discussion of “Schwan’s business . . . with anyone
who does not work for Schwan or with anyone who does
not have a direct association with the transaction”; (ii)
the portion of Rule 17, “Use of the Company Name,”
that prohibits all “material for publication” (unless sub-
mitted for approval or disapproval) in which “the com-
pany name is mentioned or indicated”; and (iii) language
in the Noncompete Agreement that prohibits disclosure
or use of “any information pertaining to the wages,
commissions, performance, or identity of employees.”
However, I respectfully dissent from my colleagues’
finding that Respondent violated the Act by maintaining
other aspects of Rule 12; I dissent from the finding that
Respondent unlawfully maintained Rule 26, “Conflicts
of Interest”; and although I agree that Respondent violat-
ed Section 8(a)(1) by maintaining the requirement in the
Noncompete Agreement that employee information be
kept confidential, I disagree with my colleagues’ finding
that this provision explicitly restricts NLRA-protected
activity.
1. Rule 12 (“Security of Company Information”).
Paragraph 2 of Rule 12 states that “[t]rade secret infor-
mation including . . . information concerning customers,
vendors, or employees shall not be disclosed, directly or
indirectly, or used in any way, either during the term of
employment or at any time thereafter, except as required
in the course of employment with Schwan” (emphasis
added). Rule 12, paragraph 3 states that “Schwan’s
business shall not be discussed with anyone who does
not work for Schwan or with anyone who does not have
a direct association with the transaction.”
I agree with the majority that the portion of Rule 12,
paragraph 2 stating that “information concerning . . . em-
ployees shall not be disclosed, directly or indirectly” or
“used in any way” interferes with NLRA-protected rights
in violation of Section 8(a)(1). Certainly, as the judge
recognized, the Respondent has a legitimate interest in
“protect[ing] and insulat[ing] the Respondent from situa-
tions which would compromise its financial, trade secret,
brand name and other proprietary interests,” which
would include, for example, situations that would expose
employment-related information to competitors. It is
also possible, as the judge found, that “even though [the
rules] prohibit disclosure of information regarding em-
ployees,” Rule 12 would not “reasonably cause this Re-
spondent’s employees to refrain from protected activity
under the Act.”31 However, as noted above, I believe the

31 The judge’s analysis of Rule 12—specifically, his finding that the
nondisclosure requirement applicable to “information concerning . . .
employees” would not reasonably cause “this Respondent’s employees
to refrain from protected activity”—highlights one of the problems with
the Lutheran Heritage “reasonably construe” test: it invites speculation
Board should evaluate whether the legitimate justifica-
tions associated with this aspect of Rule 12 are out-
weighed by the rule’s impact on Section 7 activity.
Notwithstanding Respondent’s interest in preventing
competitors from obtaining “information concerning . . .
employees,” this interest is outweighed by the impact of
the rule on Section 7 activity. This is apparent from the
breadth of the prohibition: employees are broadly pro-
hibited from disclosing or using any “information con-
cerning . . . employees.” Indeed, the rule prohibits dis-
closure of employee information “in any way” and
whether accomplished “directly or indirectly.” These
phrases preclude any reasonable finding that, in view of
its limited purpose, Rule 12 contemplates that employees
may disclose and use “information concerning . . . em-
ployees” where doing so would be protected under the
NLRA. Not only is the disclosure and use of information
about employees central to many or most types of Sec-
tion 7 activity, it is hard to fathom how any Section 7
activity can be conducted by Respondent’s employees
without having employee-related information “disclosed”
or “used” in some manner. See Victory Casino Cruises
II, 363 NLRB No. 167, slip op. at 8–9 (2016) (Member
Miscimarra, concurring in part and dissenting in part).32
The scope of Respondent’s prohibition would severely
impede, if not entirely preclude, most types of NLRA-
protected activity by its employees, and Respondent—
although justified in protecting itself against employee-
related disclosures that would present competitive
threats—has not identified any interest that justifies the
scope of this prohibition. For this reason, I concur in my
colleagues’ finding that Rule 12’s prohibition on disclos-
ing or using “information concerning . . . employees”
unlawfully interferes with, restrains or coerces employ-

regarding how an employee would “reasonably construe” particular
language, which prompted the judge to disregard the fact that Rule 12
plainly prohibits employees from disclosing or using information about
other employees—activities that are central to many if not most types
of NLRA-protected activity.
32 See also Valley Hospital Medical Center, 351 NLRB 1250, 1252
(2007), enfd. mem. sub nom. Nevada Service Employees Local 1107 v.
NLRB, 358 Fed. Appx. 783 (9th Cir. 2009):
The protection afforded by Section 7 extends to employee efforts to
improve terms and conditions of employment or otherwise improve
their lot as employees through channels outside the immediate em-
ployee-employer relationship. Thus, Section 7 protects employee
communications to the public that are part of and related to an ongo-
ing labor dispute. This includes communications about labor disputes
to newspaper reporters.
See also MCPc, Inc., 360 NLRB No. 39, slip op. at 1 fn. 4 (2014)
(Member Miscimarra, concurring) (finding unlawful a confidentiality
rule preventing the disclosure of “personal or financial information”
because it would prohibit protected discussions concerning compensa-
tion without other important justifications).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
ees in the exercise of the rights guaranteed in Section 7,
and therefore violates Section 8(a)(1) of the Act.
Similarly, I concur with my colleagues’ finding that
Rule 12, paragraph 3 violates Section 8(a)(1). This por-
tion of Rule 12 states that “Schwan’s business shall not
be discussed with anyone who does not work for Schwan
or with anyone who does not have a direct association
with the transaction.” Here as well, I believe the Re-
spondent clearly has the right to protect its trade secrets
and proprietary information from disclosure, and work
requirements reasonably calculated to provide such pro-
tection would typically be supported by justifications that
outweigh any incidental adverse impact on potential Sec-
tion 7 activity. However, Rule 12’s prohibition against
discussing “Schwan’s business” is extremely broad in its
scope: although this provision is not a model of clarity,
it arguably means employees cannot discuss any transac-
tion-related aspects of “Schwan’s business” even with
other employees (who lack a “direct association with the
transaction”), and it prohibits discussions of all other
aspects of “Schwan’s business” with any non-employees.
Again, this prohibition would likely preclude most types
of NLRA-protected activity; and although Respondent is
justified in attempting to protect many aspects of
“Schwan’s business,” it has not identified any interest
that justifies the scope of this prohibition.
I respectfully disagree, however, with the majority’s
finding that Paragraph 2 of Rule 12 also violates the Act
by restricting the disclosure of “information concerning
customers.” Section 1 of the Act states the Act’s purpose
of “encouraging the practice and procedure of collective
bargaining.” Customers are not involved in the collec-
tive-bargaining process, nor are the terms of an employ-
er’s customer relationships subject to the duty to bar-
gain.33 Conversely, Respondent clearly has substantial
justifications for protecting customer information from
disclosure. Customer information may include records
of past purchases, which may affect an employer’s deci-
sions concerning inventory and marketing, among other
things. Customers also routinely provide businesses,
including the Respondent, with their personal infor-
mation, such as credit card numbers, with the reasonable
expectation that the business will protect that information
and only use it for the purpose for which it was provided.
Employers have a compelling interest in prohibiting the

33 See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,
223 (1964) (Justice Stewart, concurring) (“Decisions concerning the
volume and kind of advertising expenditures, product design, the man-
ner of financing, and sales, all may bear upon the security of the work-
ers' jobs. Yet it is hardly conceivable that such decisions so involve
‘conditions of employment’ that they must be negotiated with the em-
ployees' bargaining representative.”).
disclosure of such information to protect their business
reputation and avoid significant legal liability.34
Although two or more employees may sometimes con-
certedly engage in NLRA-protected conduct that impli-
cates customer information, I believe this is likely to oc-
cur in limited circumstances, and in such cases, I believe
the Board can independently address whether applying
Rule 12 against such conduct violates Section 8(a)(1).
Certainly, no such circumstances are reflected in the rec-
ord here. The Respondent has a legitimate business justi-
fication for protecting customer information, and protect-
ing that information will have little, if any, adverse im-
pact on NLRA-protected activity. I therefore respectful-
ly dissent from my colleagues’ finding that Rule 12’s
prohibition on the sharing of customer information is
unlawful.
2. Rule 17 (“Use of the Company Name”). Rule 17
requires employees to seek permission from a supervisor
before “publication” of any material “in which the com-
pany name is mentioned or indicated.” The Respondent
argues the purpose of the rule is not to prevent employ-
ees from speaking about the Respondent, but to prevent
employees from speaking for the Respondent without
authorization. I agree that Respondent has a legitimate
and substantial interest in ensuring that only those indi-
viduals it has authorized to speak on its behalf do so.
But Rule 17 sweeps much more broadly than is neces-
sary to achieve this limited purpose. For example, Rule
17 does not limit the definition of “publication,” and
therefore (as my colleagues point out) the “supervisory
permission” requirement applies to all types of publica-
tion, which may include letters to the editor, opinion
pieces concerning labor disputes, newsletters, handbills,
and social media postings.35 Moreover, public state-
ments by employees about the workplace are central to
the exercise of employee rights under the Act, Valley
Hospital Medical Center, 351 NLRB at 1252, as are so-
cial media postings by employees to one another. Re-
quiring employees to obtain permission from “Corporate
Communications and Law Departments” before publish-
ing any and every type of “material” in which “the com-

34 For example, as of January 31, 2015, Target had incurred net cu-
mulative expenses of $162 million as a result of a data breach involving
customer information. See https://www.sec.gov/
Archives/edgar/data/27419/000002741915000012/tgt-
20150131x10k.htm.
35 The breadth of Rule 17 is made clear when one considers the def-
initions of relevant terms. Publication means “the act or process of
publishing,” http://www.merriam-webster.com/dictionary/publication,
and publish means “to make generally known” or “to make public
announcement of,” http://www.merriam-webster.com
/dictionary/publish. Thus, any means of making something generally
known qualifies as “publication.”
SCHWAN’S HOME SERVICE 17
pany name is mentioned or indicated” would substantial-
ly impede a broad array of Section 7 activities, give Re-
spondent the right to veto such activities, and provide an
effective means by which the Respondent could engage
in surveillance of such activity. I believe the adverse
impact of Rule 17 on NLRA-protected activity is sub-
stantial, and Respondent has not articulated a justifica-
tion that explains the breadth of its prohibition. There-
fore, I concur with my colleagues’ finding that the se-
cond paragraph of Rule 17 is unlawful.
3. The Noncompete Agreement. As noted previously,
Respondent’s Noncompete Agreement defines “Confi-
dential and Proprietary Information” and states broadly
that the employee shall “neither directly nor indirectly
. . . disclose” such information “to any person not in the
employ of Employer” or “use any such information to
the Employee’s benefit, [to] the benefit of any third party
or [e]mployer, or to the detriment of Employer.” Includ-
ed in the Respondent’s definition of “Confidential and
Proprietary Information” is “any information pertaining
to the wages, commissions, performance, or identity of
employees of Employer” (emphasis added).
I agree with my colleagues that the use and sharing of
information regarding “wages, commissions, perfor-
mance, or identity of employees” are central to many
types of NLRA-protected activities,36 and the
Noncompete Agreement prohibits each and every type of
use or disclosure of such information. It is also clear that
Respondent has a legitimate justification, in many con-
texts, for preventing competitors, customers and various
other parties from obtaining this type of information.
Nonetheless, for reasons similar to those discussed above
concerning Rule 12, paragraph 2 (prohibiting the direct
or indirect disclosure of “information concerning . . .
employees” or the use of such information “in any
way”), I believe the Noncompete Agreement’s prohibi-
tion would severely impede or altogether preclude many
types of NLRA-protected activity, and Respondent—
although justified in preventing competitors, customers
and certain other third parties from obtaining this infor-
mation—has not identified any interest that justifies the
scope of this prohibition. For this reason, I concur in my
colleagues’ finding that the Noncompete Agreement’s

36 In many cases, however, the disclosure of these types of infor-
mation does not constitute activity protected by Sec. 7, since employ-
ees, when discussing their wages, commissions or performance evalua-
tions, may be engaged in “mere griping” rather than concerted activity
for the purpose of mutual aid or protection. See, e.g., Daly Park Nurs-
ing Home, 287 NLRB 710, 710–711 (1987) (citing Mushroom Trans-
portation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)). See general-
ly Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12, slip
op. at 13–17 (2014) (Member Miscimarra, concurring in part and dis-
senting in part).
unlimited prohibition against any employee’s
“disclos[ure]” or “use” of “information pertaining to the
wages, commissions, performance, or identity of em-
ployees” violates Section 8(a)(1).
4. Rule 26 (“Conflicts of Interest”). Rule 26, “Con-
flicts of Interest,” directs employees to “avoid activities
that could appear to influence their objective decisions
relative to their company responsibilities.” The rule then
states that continued employment with the company de-
pends on strictly avoiding several such activities, includ-
ing “conflicts of interest” or “perceived conflict[s] of
interest,” such as supervising “an immediate family
member or a person with whom they have an intimate
relationship,” having a financial interest in a competitor,
and “activities that might appear to result fraud or
waste.” Paragraph (b) of Rule 26 also requires strict
avoidance of “conduct on or off duty which is detri-
mental to the best interests of the company or its em-
ployees.” Although Rule 26 lists several types of activi-
ties, the only portion that is alleged to be unlawful is the
prohibition against “detrimental conduct.”37 The Re-
spondent argues that Rule 26 is a “typical, garden variety
prohibition against usurpation of corporate opportuni-
ties” and pitting “the employee’s pecuniary gain against”
the Respondent’s. The Respondent further argues that
this is fleshed out by the rule’s specific examples, such
as the prohibition against having a financial interest in a
supplier or competitor or the injunction to avoid fraud or
waste. The General Counsel argues that paragraph (b) is
unlawful because it fails to provide any examples of
what the Respondent deems to be detrimental conduct,
and “it is possible” that the Respondent views unioniza-
tion as in conflict with its best interests and that employ-
ees would attribute this view to the Respondent. My
colleagues find paragraph (b) unlawful for essentially
these reasons.
Under the William Beaumont balancing test, I would
find Rule 26 lawful. The Respondent’s prohibition of
“conduct on or off duty which is detrimental to the best
interests of the company or its employees” is included
under the rubric “Conflicts of Interest” and surrounded
by examples of conduct that unquestionably pose a con-
flict of interest: e.g., supervising an immediate family
member, supervising someone with whom one has an
intimate relationship, fraud, and maintaining a financial
interest in a competitor. Given the concrete examples of
“detrimental conduct” in Rule 26, there is little reason to
conclude that either the aim or the result of this language

37 For ease of reference, I use the phrase “detrimental conduct” as a
shorthand reference to the Rule 26 language prohibiting “conduct on or
off duty which is detrimental to the best interests of the company or its
employees.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
is to dampen Section 7 activity. Rather, Rule 26 serves
as a commonsense guideline to employees to avoid con-
duct that could objectively create a conflict of interest
detrimental to the Respondent’s interests.
The addition of a general, “catchall” prohibition of
“conduct on or off duty which is detrimental” to Re-
spondent’s interests does not alter the rule’s focus on
genuine conflicts of interest. As I have previously noted,
“there is no law against using an understandable catchall
phrase as a general statement of policy,” particularly
where the surrounding rule illustrates the types of behav-
ior encompassed within its scope. Triple Play Sports Bar
& Grille, 361 NLRB No. 31, slip op. at 11 (2014)
(Member Miscimarra, dissenting in part), enfd. sub nom.
Three D, LLC v. NLRB, 629 Fed. Appx. 33 (2d Cir.
2015); see also William Beaumont, supra, slip op. at 13
fn. 29 (Member Miscimarra, concurring in part and dis-
senting in part). To the extent that Respondent applies
the “detrimental conduct” prohibition against protected
concerted or union activity, the Board could inde-
pendently evaluate the Respondent’s actions and, de-
pending on the circumstances, conclude that they violate
Section 8(a)(1). However, I believe the Board should
find that Respondent did not violate the Act by maintain-
ing Rule 26’s prohibition against conflicts of interest,
including “conduct . . . detrimental to the best interests of
the company.” I believe this rule serves a legitimate
purpose unrelated to NLRA-protected activity, and the
mere maintenance of this rule would not have any greater
an impact on NLRA rights than “just cause” provisions
that have existed in collective-bargaining agreements
throughout the Act’s history.38 Accordingly, applying
the balancing test that I believe is required as explained
in William Beaumont, I would find that Rule 26 is lawful.
C. Even Under the Lutheran Heritage “Reasonably Con-
strue” Test, Parts of Rule 12, and Rule 26 in Its Entirety,
Are Lawful
Even applying Lutheran Heritage, I disagree with the
majority’s finding that Respondent violated Section
8(a)(1) of the Act by maintaining the portions of Rule 12
that I believe are lawful (excluding the parts of Rule 12 I
found unlawful above). I likewise disagree that under
Lutheran Heritage, the Respondent violated Section
8(a)(1) by maintaining Rule 26.
Lutheran Heritage provides that maintenance of a fa-
cially neutral rule violates the Act if employees would

38 See William Beaumont, supra, slip op at 12-14 & fns. 22, 29
(Member Miscimarra, concurring in part and dissenting in part) (noting
that the Board and courts have approved “just cause” provisions, and
that “generalized provisions related to employment . . . have been
deemed acceptable throughout the Act’s history”).
reasonably construe it to prohibit Section 7 activity. 343
NLRB at 647. The “reasonably construe” standard de-
rives from the Board’s pronouncement in Lafayette Park
Hotel that work rules are unlawful if they “reasonably
tend to chill employees in the exercise of their Section 7
rights.”39 However, in Lafayette Park Hotel, the Board
found that “employees would not reasonably fear” that a
generally stated rule against “unlawful or improper con-
duct” would be used by the employer to “punish them for
engaging in protected activity.” 326 NLRB at 827. In
fact, the Board stated that ascribing such a meaning to a
generic prohibition on “unlawful or improper conduct”
would be, “quite simply, farfetched.” Id. Lutheran Her-
itage explicitly incorporated Lafayette Park’s approval of
general, commonsense rules, stating that the Board must
“give the rule a reasonable reading . . . refrain from read-
ing particular phrases in isolation . . . and not presume
improper interference with employee rights.” Lutheran
Heritage, 343 NLRB at 646. The Board also recognized
that “[w]ork rules are necessarily general” and assured
employers that it “will not require [them] to anticipate
and catalogue in their work rules every instance in which
[prohibited types of speech] might conceivably be pro-
tected by (or exempted from the protection of) Section
7.” Id. at 648.
I believe my colleagues contradict these principles in
their finding that Rule 12’s prohibition against disclosing
“information concerning customers” violates the Act. As
the judge found, “an employee reading these rules would

39 326 NLRB at 825. As I pointed out in my dissent in William
Beaumont—echoing former Member Hurtgen—the statement in Lafa-
yette Park Hotel that a rule violates Sec. 8(a)(1) if it “would reasonably
tend to chill employees in the exercise of their Section 7 rights” fails to
account for the fact that a rule may reasonably chill the exercise of Sec.
7 rights but still be justified by significant employer interests. As
Member Hurtgen pointed out, no-solicitation rules restrict the exercise
of Sec. 7 rights (by subjecting employees to discipline or discharge if
they engage in solicitation—including union solicitation—during work-
ing time), but these restrictions have been deemed lawful based on
Board precedent dating back more than 70 years establishing that
“[w]orking time is for work” and that the employer’s interest in produc-
tion outweighs the Sec. 7 right of employees to engage in solicitation
during working time. Peyton Packing Co., 49 NLRB 828, 843 (1943),
enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944).
See William Beaumont, 363 NLRB No. 162, slip op. at 12 fn. 19
(Member Miscimarra, concurring in part and dissenting in part). In
addition, employers may lawfully maintain a no-access rule that prohib-
its off-duty employees from accessing the interior of the employer’s
facility and outside work areas, even if off-duty employees desire ac-
cess to engage in protected picketing, handbilling or solicitation, see
Tri-County Medical Center, 222 NLRB 1089 (1976), and employers
may also lawfully maintain attendance rules under which employees
may be disciplined or discharged for failing to come to work, even
though employees have a Sec. 7 right to engage in protected strikes.
Each of these rules is lawful, notwithstanding it “would reasonably tend
to chill employees in the exercise of their Section 7 rights.”
SCHWAN’S HOME SERVICE 19
reasonably understand that the rules were designed to
protect and insulate the Respondent from situations
which would compromise its financial, trade secret,
brand name and other proprietary interests including the
‘good will’ associated with the Respondent’s brand name
and the acquiring and retention of customers . . .” (em-
phasis added).
Although my colleagues disagree—asserting that pro-
hibiting disclosure of “information concerning custom-
ers” “clearly would be understood by employees” to af-
fect protected activity—I believe their interpretation of
the phrase “information concerning customers” is unrea-
sonably broad. Their interpretive approach would result
in finding that virtually every legitimate non-disclosure
requirement limits NLRA-protected activity, even though
the subject has nothing to do with employment, whenev-
er a multi-step rationale can be devised linking the sub-
ject (in this case, sensitive customer information) to
NLRA-protected activity. For example, my colleagues
find employees would reasonably construe “information
concerning customers” to include information about em-
ployee compensation because (i) employee compensation
is based on commissions, (ii) commissions are based on
sales, and (iii) sales are made to customers. Respectful-
ly, I believe that this type of “six degrees to protected
concerted activity” interpretation would only be adopted
by labor lawyers and only if they focus exclusively on
the NLRA, which highlights one of the principal reasons
that I believe the Lutheran Heritage “reasonably con-
strue” test should be abandoned.40 However, even if one
applies the “reasonably construe” standard, I believe that
a reasonable employee would interpret this language as
protecting proprietary information concerning customers
that could be used by the Respondent’s competitors, such
as customer lists and orders, together with other confi-
dential information about customers that employees may
receive in the course of their employment. Moreover,
under my colleagues’ interpretation, the prohibition on
disclosing “information concerning customers” is effec-
tively a prohibition on the disclosure of information con-
cerning employees. However, this interpretation renders
superfluous Rule 12’s separate prohibition on disclosure
of “information concerning . . . employees,” which I
agree is unlawful.
For similar reasons, I disagree with my colleagues’
finding, applying Lutheran Heritage, that Respondent

40 The “six degrees of separation” theory is based on the proposition
that “everyone and everything is six or fewer steps away . . . from any
other person in the world.” See https://en.wikipedia.org/
wiki/Six_degrees_of_separation (theory that every person is six or
fewer acquaintances removed from every other person) (last visited
May 21, 2016).
violated Section 8(a)(1) by maintaining the “detrimental
conduct” provision in Rule 26. My colleagues reject the
judge’s reliance on other conflicts of interest recited in
Rule 26 that would inform how employees would rea-
sonably construe the prohibition against “[c]onduct on or
off duty which is detrimental to the best interests of the
company or its employees.” In my view, the Board ma-
jority improperly discounts those other conflict-of-
interest provisions. Read together with those provisions,
Rule 26’s “detrimental conduct” language would be rea-
sonably construed as referring to “activities that could
appear to influence their objective decisions relative to
their company responsibilities,” as Rule 26 itself states. I
disagree with the majority’s finding that the logical con-
nection between the “detrimental conduct” language and
the remainder of Rule 26 is too “attenuated” to affect any
employee’s interpretation of that language. The inclu-
sion of a general prohibition on “conduct . . . detrimental
to the best interests of the company” among more specif-
ic prohibitions of particular conflicts of interest clearly
indicates that “detrimental conduct” is intended to en-
compass similar conflict-of-interest situations not specif-
ically listed.41 As stated in Lutheran Heritage itself, 343
NLRB at 648, there is nothing inherently unlawful about
articulating generalized standards of conduct, and fault-
ing the Respondent for maintaining such rules, as the
majority does, improperly presumes “interference with
employee rights.” Id. at 646.
Nor does the record support the majority’s finding that
employees would reasonably read the “detrimental con-
duct” rule in conjunction with the Respondent’s stated
preference to remain nonunion. In contrast to the con-
flict-of-interest provisions that immediately surround the
“detrimental conduct” rule, Respondent’s preference is
stated in a completely different section of the handbook,
10 pages removed from Rule 26. Moreover, it is entirely
lawful for the Respondent to express a view in opposi-
tion to union representation, and my colleagues do not
suggest otherwise. There is a good reason for this: Sec-
tion 8(c) of the Act prohibits the Board from supporting
any unfair labor practice finding with this type of lawful
statement of opinion. Section 8(c) states that “[t]he ex-
pressing of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this
Act . . .” (emphasis added).42 See also NLRB v. Gissel

41 Under the principle of noscitur a sociis, the meaning of an unclear
word or phrase may be known from accompanying words. See
http://www.duhaime.org/LegalDictionary/N/Nosciturasociis.aspx.
42 Sec. 8(c) ends with a proviso: expressing any views, argument, or
opinion shall not constitute or be evidence of an unfair labor practice
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Packing Co., 395 U.S. 575, 618 (1969) (holding that “an
employer is free to communicate to his employees any of
his general views about unionism or any of his specific
views about a particular union, so long as the communi-
cations do not contain a ‘threat of reprisal or force or
promise of benefit.’”).
The rationale adopted by my colleagues here is also
nearly identical to the argument rejected by the Board in
Lafayette Park Hotel, supra. There, the employer main-
tained a rule prohibiting employees from “engaging in
conduct that does not support the Lafayette Park Hotel’s
goals and objectives,” and the General Counsel argued
that “employees could reasonably assume that a ‘goal’ of
the hotel is to remain nonunion.”43 Using reasoning that
has equal application to this case, the Board majority
rejected the General Counsel’s argument and upheld the
rule:
We conclude that the mere maintenance of this rule
would not reasonably tend to chill employees in the ex-
ercise of their Section 7 rights. In this regard, the rule,
in providing that it is unacceptable for employees to
engage in conduct that does not support the Respond-
ent’s “goals and objectives,” addresses legitimate
business concerns. . . . We find no ambiguity in this
rule as written. Rather, any arguable ambiguity arises
only through parsing the language of the rule, viewing
the phrase “goals and objectives” in isolation, and at-
tributing to the Respondent an intent to interfere with
employee rights. We are unwilling to place such a
strained construction on the language, and we find that
employees would not reasonably conclude that the rule
as written prohibits Section 7 activity.
Furthermore, the Respondent has not by other ac-
tions led employees reasonably to believe that the
rule prohibits Section 7 activity. Thus, the Respond-
ent has not enforced the rule against employees for
engaging in such activity, and there is no evidence
that the Respondent promulgated the rule in re-
sponse to union or protected concerted activity or
that those employees even engaged in any such ac-
tivity. Moreover, there is no evidence that the Re-
spondent exhibited antiunion animus. In these cir-
cumstances, to find the maintenance of this rule un-
lawful, as do our dissenting colleagues, effectively
precludes a common sense formulation by the Re-
spondent of its rule and obligates it to set forth an

“if such expression contains no threat of reprisal or force or promise of
benefit.” There is no allegation that Respondent’s handbook statement
expressing a preference to remain nonunion contained any threat or
promise.
43 326 NLRB at 825.
exhaustively comprehensive rule anticipating any
and all circumstances in which the rule even theoret-
ically could apply. Such an approach is neither re-
flective of the realities of the workplace nor com-
pelled by Section 8(a)(1).44
When the Board decided Lutheran Heritage, it substantially
relied on Lafayette Park Hotel, which it cited for the propo-
sitions that, when “determining whether a challenged rule is
unlawful, the Board must . . . give the rule a reasonable
reading . . . [and] refrain from reading particular phrases in
isolation, and it must not presume improper interference
with employee rights.” Lutheran Heritage, supra, 343
NLRB at 646 (citing Lafayette Park Hotel, supra, 326
NLRB at 825, 827). I believe my colleagues disregard these
principles when, applying Lutheran Heritage, they find that
Respondent’s maintenance of Rule 26 violates the Act.
Conclusion
Accordingly, for the above reasons, I concur in part
with and dissent in part from my colleagues’ decision.
Dated, Washington, D.C. June 10, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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.
WE WILL NOT maintain a rule in our employee hand-
book, under the heading “Solicitation and Organizational
Work,” that prohibits solicitation during nonwork time in
work areas.

44 Id. at 825–826 (emphasis added).
SCHWAN’S HOME SERVICE 21
WE WILL NOT maintain a rule in our employee hand-
book, under the heading “Security of Company Infor-
mation,” that prohibits the disclosure of information con-
cerning employees, customers, or “Schwan’s business.”
WE WILL NOT maintain a rule in our employee hand-
book, under the heading “Use of the Company Name,”
that requires you to obtain company approval of any ma-
terial meant for publication in which the company’s
name is mentioned or indicated.
WE WILL NOT maintain a rule in our employee hand-
book, under the heading “Conflicts of Interest,” that pro-
hibits you from engaging in conduct that is “detrimental
to the best interests of the company or its employees.”
WE WILL NOT maintain a provision in our Employ-
ment, Confidentiality, Ownership & Noncompete
Agreement (ECONA) that prohibits you from disclosing
information about the wages, commissions, performance,
or identity of employees to anyone not employed by the
company.
WE WILL NOT maintain language in our standard sus-
pension notice that prohibits you from discussing your
status with anyone, inside or outside the company, during
periods of disciplinary suspension or when you are sus-
pended pending investigation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the rule in our employee handbook,
under the heading “Solicitation and Organizational
Work,” that prohibits solicitation during nonwork time in
work areas.
WE WILL rescind the rule in our employee handbook,
under the heading “Security of Company Information,”
that prohibits disclosure of information concerning em-
ployees, customers, or “Schwan’s business.”
WE WILL rescind the rule in our employee handbook,
under the heading “Use of the Company Name,” that
requires you to obtain company approval of any material
meant for publication in which the company’s name is
mentioned or indicated.
WE WILL rescind the rule in our employee handbook,
under the heading “Conflicts of Interest,” that prohibits
you from engaging in conduct that is “detrimental to the
best interests of the company or its employees.”
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful rules
above have been rescinded, or (2) provide the language
of lawful rules; or publish and distribute a revised em-
ployee handbook that (1) does not contain the unlawful
rules, or (2) provides the language of lawful rules.
WE WILL rescind the provision in our ECONA that
prohibits you from disclosing information about the
wages, commissions, performance, or identity of em-
ployees to anyone not employed by the company, and WE
WILL notify you in writing that this has been done and
that the provision is no longer in force.
WE WILL rescind the language in our standard suspen-
sion notice that prohibits you from discussing your status
with anyone, inside or outside the company, during peri-
ods of disciplinary suspension or when you are suspend-
ed pending investigation, and WE WILL notify you in
writing that this has been done and that the provision is
no longer in force.
SCHWAN’S HOME SERVICE, INC., A WHOLLY
OWNED SUBSIDIARY OF THE SCHWAN FOOD
COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/27–CA–-066674 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Todd D. Saveland, Esq. and Renee C. Barker, Esq., for the
General Counsel.
Amy J. Zdravecky, Esq. (Franczek Radelet), of Chicago, Illi-
nois, for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge: Pursuant
to a notice of hearing in this matter was held before me in Den-
ver, Colorado, on March 27, 2012. The charge in the captioned
matter was filed by Patrick K. Wardell, an individual, on Au-
gust 29, 2011,1 and an amended charge was filed by Wardell on
November 30, 2011. Thereafter, on December 30, 2011, the
Regional Director for Region 27 of the National Labor Rela-
tions Board (Board) issued a consolidated complaint and notice
of hearing alleging violations by Schwan’s Home Service, Inc.,
a wholly owned subsidiary of the Schwan Food Company (Re-
spondent) of Section 8(a)(1) of the National Labor Relations
Act (the Act).2 The Respondent, in its answer to the complaint,

1 This filing date appears as amended at the hearing.
2 The consolidated complaint contains an additional case number
(Case 27–CA–021969). On March 26, 2011, the Regional Director
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
duly filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the Acting General Counsel (the
General Counsel) and counsel for the Respondent. On the entire
record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Minnesota corporation with offices and
places of business throughout the United States, including a
facility in Loveland, Colorado. The Respondent is engaged in
the production, manufacturing, marketing, distribution, retail,
and nonretail sale of frozen food products. In the course and
conduct of its business operations the Respondent annually
derives gross revenues in excess of $500,000 and annually
receives and purchases at its Loveland, Colorado facility,
goods, materials, and services valued in excess of $5000 direct-
ly from points outside the State of Colorado. It is admitted and I
find that the Respondent is, and at all material times has been,
an employer within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has promulgated and maintained rules and policies in
various documents that restrict employee Section 7 rights in
violation of Section 8(a)(1) of the Act.
B. Background Facts and Analysis
The Respondent sells quality frozen food products to resi-
dential and business customers, door to door. It employs about
7000 employees, working out of approximately 400 facilities,
called depots or warehouses, located in the contiguous 48
states. Each depot has about 16 route sales representatives who
sell and deliver the products, using refrigerated vehicles fur-
nished by the Respondent. In addition, each depot has from two
to four warehouse employees who receive products from sup-
pliers and load up the route sales representatives’ trucks each
day.
The complaint alleges that certain employee handbook poli-
cies, and other company rules, contracts, and suspension and
termination notices contain facially unlawful provisions that
would reasonably tend to chill employees’ Section 7 rights to
engage in concerted protected activity and/or union activity.
Dave Bock, Respondent’s vice president and assistant gen-
eral counsel, is also the Respondent’s ethics officer and corpo-
rate affirmative action compliance officer. Bock testified as
follows regarding the daily routine of the route sales representa-
tives:
It’s a long day for what we call our RSRs, route sales repre-

severed that case from complaint and the allegations pertaining to that
case were rescinded.
sentatives. They come in the morning, anytime between 8:00
and 10:00. There’s usually a group meeting where they get
together and they’ll discuss their products. There’s a lot of
comradery. They all meet in one common area in the depot,
usually a square or round table in the middle. They’ll have
stools or chairs around this table. They get their orders ready,
any preorders they might have that day. They talk to each
other. Management is present sometime during those meet-
ings. They get in their trucks and they head out. And after a
long day, they come back to the same depot at night, handle
their records, their orders, make delivery to the local bank and
most depots to make their deposits for the day. So there’s—
the employees get together before each day’s shift, and they
get together each day after their shifts.
Bock testified that he has been present during many of these
group meetings and has listened to the employees’ discussions
about wages, hours, and working conditions, including com-
plaints about supervisors. Such discussions are routine, and are
not discouraged. All route sales representatives in a given geo-
graphic area are paid the same base salary, with commissions
based on all sales and with additional guarantees for showing
up to work and meeting time targets.
According to Bock, the earnings of each route sales repre-
sentative is
an open book. You walk into a depot. Each employee’s sales
goals and actual day-to-day sales are posted for everyone to
see. It’s a very competitive environment, generally, a very
friendly competitive environment. Employees are teasing
each other about outdoing each other or about a bad day they
might have had. But the numbers are posted for all to see and
are the subject of much discussion.
Such discussions are encouraged; no employee has ever been
disciplined for discussing sales goals or compensation numbers
with other employees and each employee knows, on a daily
basis, how much their coworkers are earning.
At all material times, the Respondent has maintained and is-
sued to all new hires, including warehouse workers and route
sales representatives, an employee handbook consisting of 29
pages, entitled the “Schwan Food Company Employee Hand-
book.” Four of the rules contained in the current Employee
Handbook are at issue in this matter. 3 The Respondent has
denied that any portions of the rules are unlawful.
(Rule 18): Solicitation and Organizational Work
With the exception of the annual United Way drive and other
charitable activities sponsored by the company, all employees
are strictly prohibited from soliciting other employees or be-
ing solicited by other employees or non-employees for any
purpose during working time in any work area of a plant or
other company facilities. Distribution and solicitation is
permitted during non-work time (such as free time, rest
breaks or lunch time) in non-work areas (break room) of
a plant or other company facilities).
(Rule 12): Security of Company Information

3 The alleged unlawful provisions of the rules are in bold type.
SCHWAN’S HOME SERVICE 23
You are not permitted to reveal information in company rec-
ords to unauthorized persons or to deliver or transmit compa-
ny records to unauthorized persons. Trade secret information
including, but not limited to, information on devices, inven-
tions, processes and compilations of information, records,
specifications, and information concerning customers, ven-
dors or employees shall not be disclosed, directly or indirect-
ly, or used in any way, either during the term of employment
or at any time thereafter, except as required in the course of
employment with Schwan. Employees will abide by
Schwan’s policies and practices as established from time to
time for the protection of its trade secret information.
Schwan’s business shall not be discussed with anyone who
does not work for Schwan or with anyone who does not
have a direct association with the transaction.
(Rule 17): Use of the Company Name
You are not permitted to purchase any material as a charge to
the company without authorized management approval. Any
articles, speeches, records of operation, pictures or other
material for publication, in which the company name is
mentioned or indicated, must be submitted, through your
supervisor, for approval or disapproval by the Corporate
Communications and Law Departments prior to release.
You are not permitted to negotiate or sign any lease, purchase
agreement, bill of sale, contract or other legal document as a
representative of the company, unless authorized to do so by
management nor are you permitted to express or imply to any
vendor the intention of the company to purchase, rent or lease
any tangible property, equipment, material, space or services.
(Rule 26): Conflicts of Interests
Employees shall avoid activities that could appear to influ-
ence their objective decisions relative to their company re-
sponsibilities.
Continued employment with the company is dependent
upon strict avoidance of:
a. Conflicts of interest or the appearance of such conflicts.
b. Conduct on or off duty which is detrimental to the best
interests of the company or its employees.
c. Employees shall avoid activities that might appear to result
in fraud or waste.
d. Employees may not engage in any activity, on or off com-
pany premises, or be employed in any capacity at Schwan
which creates a actual or perceived conflict of interest (e.g. an
employee may not supervise an immediate family member or
a person with whom they have an intimate relationship; an
employee may not have a financial interest in a supplier or
competitor). Please contact your local Human Resource rep-
resentative for specifics on how the employment of relatives
is handled in your facility.
The General Counsel maintains that Rule 18 is unlawful be-
cause it specifically permits distribution and solicitation during
nonwork time in nonwork areas and, accordingly, would be
reasonably understood by employees to prohibit such activity in
work areas during employees’ nonwork time; therefore, this
restriction constitutes an impermissible infringement on em-
ployees’ solicitation and distribution rights under the Act as set
forth in Republic Aviation, Corp. v. NLRB, 324 U.S. 793, 803
fn. 10 (1945).
In UPS Supply Chain, 357 NLRB 596 (2011), the Board
stated:
We find, contrary to the judge, that the Respondent’s no-
solicitation rule violates Section 8(a)(1). Employers may ban
solicitation in working areas during working time but may not
extend such bans to working areas during nonworking time.
See, e.g., Restaurant Corp. of America v. NLRB, 827 F.2d
799, 806 (D.C. Cir. 1987) (“[A]n employer may not generally
prohibit union solicitation . . . during nonworking times or in
nonworking areas.”) (citing NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 112–113 (1956); Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 797–798 (1945)). In discussing the Re-
spondent’s no-solicitation rule, the judge focused solely on
the restrictions placed on employees’ work time. However,
the Respondent’s rule also prohibits solicitation in work areas,
and does so without qualification. Fairly read, an employee
would reasonably understand the rule to ban solicitation in
work areas even during nonwork time. The rule is therefore
impermissibly overbroad and violates Section 8(a)(1).
Bock testified that the Respondent has a “very open culture”
with regard to employee discussions of wages, hours, and
working conditions that permits such discussions on working
time in working areas. Further, this policy has been extended
to situations in which the employees, prior to impending union
elections at two depots, one in Round Rock, Texas about 18
months ago, and another in Denver during an unspecified time
period, were encouraged by Bock and other corporate repre-
sentatives to discuss union representation “pro and con” during
working time and in working areas, “not only in our presence,
but then we left and said continue your discussion, both sides .
. . in the interest of making a full and fair informed decision.”
Bock testified that in this manner the Respondent’s “solicitation
policy” not only has not been used to preclude union activity
but rather has been used to encourage such discussion.4
Employees’ discussions of wages and related matters among
themselves in a spirit of competitive camaraderie seem clearly
designed as a company policy to promote sales production;
however, mere “discussions” are not tantamount to either “so-
licitation” or “distribution,” and therefore employees would not
reasonably interpret this interactive competitiveness as an invi-
tation to discuss, solicit for, and distribute materials on behalf
of unions during worktime and in work areas.5 Further, I find

4 It appears, therefore, that Bock would equate employees’ merely
expressing their pro-union views during such discussions as “solicita-
tion.” Bock did not testify that employees at these meetings were also
encouraged to engage in “solicitation” of union authorization cards or
“distribution” of union materials.
5 This is particularly true given the Respondent’s handbook policy
entitled “Company Philosophy Towards Labor Unions,” including the
following: “The company is opposed to the unionization of Schwan
because the needs of our employees are best served by retaining the
ability to converse one-on-one with management, avoiding third party
intervention and rewarding employees based on each employee’s indi-
vidual merit…By remaining union free, the working atmosphere be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
that Bock’s anecdotal evidence in this regard—involving two
of 400 depots nationwide, and perhaps fewer than 40 employ-
ees—is insufficient to put all 7000 of the Respondent’s em-
ployees on notice that they may ignore the plain meaning of the
language in Handbook Rule 18 which implicitly, but clearly,
prohibits solicitation and distribution in work areas. Indeed, to
the extent other employees at other depots may be aware of the
discussions that occurred in Round Rock, Texas, and Denver, it
appears they would reasonably conclude that specific permis-
sion by management is needed before such union-related dis-
cussions during worktime in work areas may take place. Ac-
cordingly, I find that by maintaining the rule in its handbook
the Respondent has violated and is violating Section 8(a)(1) of
the Act as alleged.
Regarding Handbook Rule 12, Security of Company Infor-
mation, Handbook Rule 17, Use of the Company Name, and
Handbook Rule 26, Conflicts of Interests, I conclude that an
employee reading these rules would reasonably understand that
the rules were designed to protect and insulate the Respondent
from situations which would compromise its financial, trade
secret, brand name, and other proprietary interests including the
“good will” associated with the Respondent’s brand name and
the acquiring and retention of customers which could be ad-
versely affected by inappropriate employee conduct “on or off
duty.” I do not believe the rules, singly or collectively, even
though they prohibit disclosure of information regarding em-
ployees and also prohibit certain employee conduct, would
reasonably cause this Respondent’s employees to refrain from
protected activity under the Act. I shall dismiss these allega-
tions of the complaint. See Lafayette Park Hotel, 326 NLRB
824 (1998); Super Kmart, 330 NLRB 263 (1999); Mediaone of
Greater Florida, 340 NLRB 277 (2003).
The complaint alleges that certain language contained in Re-
spondent’s “Employment, Confidentiality, Ownership &
Noncompete Agreement” (Agreement) is unlawful. The
Agreement is a lengthy, single-spaced, small font, difficult-to-
read, two-page, double-sided, standardized document. All Re-
spondent’s employees are required to execute the Agreement at
the time of hire and again sign the then-current Agreement
when they are promoted or change jobs within the Company.
Under the heading “Confidential and Proprietary Information;
Ownership and Assignment of Rights,” the following paragraph
appears:
Stipulation. Employer and Employee agree that during the
course of Employee’s employment, Employee will have ac-
cess to Confidential and Proprietary Information as defined
below. Such information has been developed by Employer at
great expense over many years of substantial effort, and were
competitors of Employer to obtain such information there
would result a substantial and irreparable adverse effect upon
the business of Employer. Employee agrees that the Employer
owns all such Confidential and Proprietary Information. (Un-
derlining supplied.)
Under the heading “Scope” the Agreement goes on to state,

tween employees and between employees and management will remain
open and honest.”
“Confidential and Proprietary information shall include any
information pertaining in any way but not limited to . . .,” and
then sets forth an extensive catalogue of what is considered to
be encompassed within the definition of confidential and pro-
prietary information. Toward the end of this litany of matters,
items and concepts that the Respondent deems to be confiden-
tial and proprietary, is included the following: “any information
pertaining to the wages, commissions, performance, or identity
of employees of Employer.”
The complaint alleges and the General Counsel maintains
that as the Agreement restricts employees from disclosing to
“any person not in the employ of the Employer” any “Confi-
dential or Proprietary” information, and as confidential and
proprietary information includes the above-quoted language
pertaining to the “wages, commissions, performance or identity
of employees,” such a restriction precludes employees from
sharing such information with a union and is therefore violative
of Section 8(a)(1) of the Act.
I conclude that employees entering into the Agreement, who
make the effort to read through it, would reasonably understand
that the Respondent in this portion of the Agreement is con-
cerned with, and is attempting to prohibit the route sales repre-
sentatives from disclosing, “confidential and proprietary” in-
formation to the Respondent’s “competitors,” and that this is
the thrust, import and intent of this section of the Agreement.
The Respondent has legitimate concerns that its route sales
representatives could be more easily recruited away from the
Respondent by competitors if competitors became aware of the
identity, performance skills, and earnings of particular route
sales representatives. Accordingly, I find that employees would
not reasonably read this rule as prohibiting Section 7 activity. I
shall dismiss this allegation of the complaint. See Mediaone of
Greater Florida, supra, at page 279.
The complaint alleges that certain language contained in Re-
spondent’s termination letters is unlawful. The Respondent, in a
prehearing document headed: “Joint Stipulation and Joint Ex-
hibits” stipulated that
At times material to this proceeding, the Respondent issued
termination letters at various times and to various employees
nationwide, which stated:
In addition, the intent of this letter is to inform you that
you are prohibited by the terms of the employment agree-
ment you signed with Schwan’s from contacting your
former customers and former co-workers.
In support of this stipulation a termination letter dated April 22,
2011, containing the above language was introduced in evi-
dence by the General Counsel
However, despite this stipulated language, the Respondent,
prior to the hearing herein engaged in an extensive, random
investigation of termination letters, which demonstrated that
not one of the hundreds of termination letters issued over an
extended period of time contained language prohibiting termi-
nated employees from contacting “former co-workers.”6 Ra-

6 Obviously, the Respondent’s random investigation did not uncover
the letter introduced into evidence by the General Counsel in support of
the stipulation.
SCHWAN’S HOME SERVICE 25
ther, all of the termination letters, introduced into evidence,
randomly compiled due to the fact that there were simply too
many terminations to perform an exhaustive survey,7 contained
the following language:8
This letter will also serve as a reminder that at the time of hire,
you executed an Employment, Confidentiality and Non-
compete agreement, which includes, but is not limited to an
agreement that you will not contact Home Service Customers
you previously serviced during your employment.
The General Counsel maintains that the language in either
termination letter, whether prohibiting terminated employees
from contacting former customers, or from contacting both
former coworkers and customers, is similarly violative of the
Act.
I credit the testimony of Bock and find that he personally
caused the survey to be conducted by subordinates in a valid
and unbiased manner that was not manipulated to arrive at a
preconceived result. Accordingly, I find that the standard form
for termination letters contains the immediately foregoing lan-
guage, and not the language set forth in the stipulation. Thus,
while the stipulation states that termination letters “at various
times and to various employees nationwide” contained the stip-
ulated language, the evidence shows, and I find, that such let-
ters do not reflect the Respondent’s standard and customary
practice.
Bock testified that the relationship between the route sales
representatives and customers is commonly a very close rela-
tionship that could be compromised in the event of termination.
The route sales representatives deliver products to customer’s
homes and businesses on a regular basis, sometimes receive
gifts from customers for good service, have the credit card
numbers of customers, and often have access to the customers’
homes when they are away so that frozen food products may be
placed in the customers’ freezers. For obvious reasons the Re-
spondent simply does not want the customers to become en-
meshed in termination matters: not only could this cause the
customers to refrain from buying products from the Respond-
ent, but also terminated employees could attempt to solicit
business for competitors of the Respondent.
The termination letters refer to the “employment agreement”
or “Employment, Confidentiality and Non-compete” agreement
as the underlying document restricting contact between termi-
nated employees and customers or former co-workers. Accord-
ingly, the termination letters alone are inherently incomplete,
and the termination letters and Agreement to which the letters
refer must be read together.
The portion of the Agreement pertaining to contacting cus-
tomers is as follows:
Employee agrees that during the term of Employee’s em-
ployment and for twelve (12) months after the termination of
such employment, Employee will not…contact or solicit

7 Bock testified that the Respondent’s voluntary and involuntary
termination rate at the current time “is about 60 percent a year right
now…so you’re talking about 4,000 plus terminations.”
8 A few of the letters contained no language whatsoever prohibiting
the contacting of either customers or former co-workers.
competing business from anyone who had been a customer of
Employer in the geographic or job function areas assigned to
Employee.
The portion of the Agreement pertaining to contacting for-
mer co-workers is as follows:
Employee agrees that during the term of Employee’s em-
ployment and for twelve (12) months after the termination of
such employment, Employee will not induce or attempt to in-
duce any person who is an employee of Employer to leave the
employ of Employer and engage in any business which com-
petes with Employer.
I find that a reasonable reading of either termination letter
together with the Agreement would cause a terminated employ-
ee to understand that the restrictions regarding contacting either
current employees or customers is not designed to curtail activi-
ty protected by Section 7 of the Act, but rather is designed to
preclude terminated employees from enmeshing customers in
termination matters and from recruiting either customers or
current employees for competitors of the Respondent. Accord-
ingly, the Respondent has overriding legitimate business con-
siderations for imposing such restrictions. I shall dismiss this
allegation of the complaint.
The complaint alleges that certain language contained in the
Respondent’s “Employee Suspension Notice” is unlawful.
Insofar as the record evidence shows, the Employee Suspension
Notice is a one-page pre-printed document issued to employees
who are being placed on an unpaid suspension either for disci-
plinary reasons or pending the outcome of an internal investiga-
tion. The notice contains a space for specifying the reason(s)
for the suspension, and advises the employee of certain re-
quirements and prohibitions to which the employee must ad-
here during the suspension/investigation.
The parties stipulated that:
At times material to this proceeding, the Respondent issued
suspension notices at various times and to various employees
nationwide, which stated:
You are prohibited from contacting customers or em-
ployees and from discussing your status with anyone in-
side or outside the company.
In addition, the single suspension notice introduced into evi-
dence in this proceeding, dated July 27, 2011, contains further
prohibitions:
You are prohibited from entering any property owned or
leased by The Schwan Food Company, unless requested by
your manager or the investigator.
You are prohibited from accessing any company information
during this suspension. Not limited to, but including any e-
mails or voicemails.
A blanket rule prohibiting employees under investigation for
rule or policy infractions from contacting and discussing the
matter with other employees during the course of the investiga-
tion is per se unlawful. The Board, in Hyundai America Ship-
ping Agency, Inc., 357 NLRB 860 (2011), adopted the conclu-
sion of the administrative law judge on this issue, who stated, at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
slip op. p 15, as follows:
In light of the Phoenix Transit and [Caesar’s] Palace cases,9
it seems obvious that the Board is attempting to strike a bal-
ance between the employees’ Section 7 right to discuss
among themselves their terms and conditions of employment,
and the right of an employer, under certain circumstances, to
demand confidentiality. The burden is clearly with an em-
ployer to demonstrate that a legitimate and substantial justifi-
cation 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 Re-
spondent’s managers and human resource supervisors routine-
ly instruct employees involved in investigations not to talk
with other employees about the substance of those investiga-
tions. Such admonitions are apparently given in every case,
without any individual review to determine whether such con-
fidentiality is truly necessary. Under the Board’s balancing
test, it is the Respondent’s responsibility to first determine
whether in any given investigation witnesses need protection,
evidence is in danger of being destroyed, testimony is in dan-
ger of being fabricated, and there is a need to prevent a cover
up. Only if the Respondent determines that such a corruption
of its investigation would likely occur without confidentiality
is the Respondent then free to prohibit its employees from
discussing these matters among themselves.
There is no evidence that the Respondent conducts any such
preliminary analysis. To the contrary, it seems that the Re-
spondent 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.
The Respondent maintains that the evidence introduced by
the General Counsel does not show that the Respondent’s pro-
hibition applies in all suspension situations. Thus, the afore-
mentioned stipulation merely concedes that the Respondent
issued such suspension notices “at various times and to various
employees nationwide.”
Unlike the similar stipulated language pertaining to the ter-
mination notices, supra, however, regarding which the Re-
spondent initiated an extensive investigation and survey and
introduced abundant evidence that the single termination notice
placed in evidence by the General Counsel appeared to be an
anomaly or at least not a standard and customary practice, the
Respondent has not demonstrated that the suspension notices,
nationwide, as a general practice, do not contain the aforemen-
tioned unlawful language. Nor did Bock so testify.

9 Phoenix Transit Systems, 337 NLRB 510 (2002); Caesar’s Palace,
336 NLRB271 (2001).
In the instant case it is clear that the Respondent’s pro forma
suspension notices limiting employees Section 7 right to dis-
cuss matters for which they are being investigated, or for which
they are receiving a disciplinary suspension,10 is unlawful. As
noted above, an employer may not impose such restrictions
absent a substantial justification for doing so in each given
situation. Hyundai America Shipping Agency, Inc., supra. Ac-
cordingly, by such conduct, I find the Respondent has violated
and is violating Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
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) of the Act as
found herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(1) of the Act, I recommend that the Respond-
ent be required to cease and desist from promulgating and
maintaining in effect the employee handbook provision and the
standard suspension notice that preclude and interfere with the
Section 7 rights of employees to engage in union and protected
concerted activity. I further recommend that the Respondent be
required to cease and desist from in any other like or related
manner interfering with, restraining, or coercing its employees
in the exercise of their rights under Section 7 of the Act. Final-
ly, I shall recommend the posting of an appropriate notice,
attached hereto as “Appendix.”
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Schwan’s Home Service, Inc., a Wholly
Owned Subsidiary of The Schwan Food Company, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining in effect the employee
handbook provision and the standard suspension notice that
preclude and interfere with the Section 7 rights of employees to
engage in union and protected concerted activity.
(b) 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, which is necessary
to effectuate the purposes of the Act:
(a) Modify the employee handbook provision and the stand-
ard suspension notice found to interfere with the rights of em-

10 It would seem to make no difference whether the investigation is
taking place while the employee remains on the job, whether the sus-
pension is a disciplinary suspension, or whether the employee is sus-
pended pending investigation. In each of these instances the employee
is entitled to exercise his or her Section 7 rights.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
SCHWAN’S HOME SERVICE 27
ployees to engage in union and protected concerted activities
under Section 7 of the Act, and advise its employees, nation-
wide, by appropriate means, that the handbook provision and
the standard suspension notice have been revised.
(b) Within 14 days after service by the Region, post at its fa-
cilities nationwide copies of the attached notice marked “Ap-
pendix.”20 Copies of the notice, on forms provided by the Re-
gional Director for Region 27, after being duly signed by Re-
spondent’s representative(s), shall be posted immediately upon
receipt thereof, and shall remain posted by Respondent for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. Further, when the handbook provision and standard
suspension notice have been modified, notify its employees
nationwide, by appropriate means, of the new modified hand-
book and standard suspension notice provisions.
(c) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 27 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to comply.
Dated at Washington, D.C. June 6, 2012
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

20 If this Order is enforced by a judgment of the United States Court
of Appeals, the wording 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.”
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above
WE WILL modify our employee handbook provision that lim-
its your right to engage in the above activities during nonwork
time in work areas of our facilities.
WE WILL modify our standard suspension notice form that
limits the right of suspended employees from engaging in the
above activities during periods of disciplinary suspension or
when they are suspended pending investigation.
SCHWAN’S HOME SERVICE, INC. A WHOLLY OWNED
SUBSIDIARY OF THE SCHWAN FOOD COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/27-CA-066674 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.