United Services Automobile Assn.

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 784 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
United Services Automobile Association and Loretta
Willams. Case 12–CA–21735
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On January 28, 2003, Administrative Law Judge Mar-
garet G. Brakebusch issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel 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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
We agree with the judge, for the reasons set forth in
her decision, that the Charging Party, Loretta Williams,
engaged in protected concerted activity by distributing
fliers anonymously throughout the Respondent’s facility.
We also agree with the judge, for the reasons set forth
below, that the Respondent unlawfully interrogated Wil-
liams and employee Andrew Snyder regarding employ-
ees’ protected concerted activity and unlawfully dis-
charged Williams for engaging in this activity. In addi-
tion, we find, in accordance with the judge, that the Re-
spondent promulgated unlawful no-solicitation/no-
distribution rules via e-mail and voice mail.
I. FACTUAL BACKGROUND3
On July 31, 2001,4 employee Loretta Williams, an in-
surance adjustor for the Respondent, distributed 1200 to
1300 fliers anonymously, requesting fellow employees to
wear a red ribbon in support of colleagues who had been
laid-off as a result of a reorganization plan implemented

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, 325 NLRB 17 (1997). In addition, we shall mod-
ify the recommended Order to provide that the Respondent rescind its
unlawful no-solicitation/no-distribution policy and notify its employees
that it has done so. We shall also issue a new notice to conform to the
Order.
3 The factual background is fully set forth in the judge’s decision.
4 Hereinafter all dates are in 2001 unless otherwise noted.
by the Respondent.5 Williams placed the fliers on em-
ployees’ individual desks, at the end of hallways, and in
mailboxes between the hours of 8 and 11 p.m. She de-
parted the Respondent’s premises at 11 p.m.
The following morning, several of the Respondent’s
managers began removing the fliers from employees’
desks. However, Respondent’s senior vice president and
general manager, General Thomas V. Draude, ordered
the managers to leave the fliers in place so that employ-
ees could “grieve” the loss of laid-off employees. That
same day, General Draude, in an e-mail to Respondent’s
managers, requested that they remind their supervisees
that distributing “‘non-USAA printed information’ in the
workplace violates [the] non-solicitation policy.”6 (Em-
phasis added.) After receiving Draude’s e-mail, Manager
David Huffman copied and sent the above-mentioned
portion of the e-mail to his supervisees. The following
week, General Draude left a message for all employees
on the Respondent’s common phone voice mail system,
known as the 5-NEWS line, stating that managers began
to collect the fliers because the “company’s non-
solicitation policy says you can’t distribute non-USAA
material in the building.” (Emphasis added.)
Approximately 1 week after the flier distribution, Wil-
liams’ supervisor, Eileen Hale, requested that Williams
accompany Hale to the Respondent’s personnel office.
Thereafter, Williams was introduced to Sheila Christy-
Martin, director of Respondent’s human resources advi-
sory team. Christy-Martin stated at the outset of the
meeting that she wanted to ask Williams questions re-
garding safety, overtime, and possible breach of security
with regard to the distribution of the fliers. Christy-
Martin told Williams that the security turnstiles had
clocked Williams leaving the building on July 31 at 11
p.m. Therefore, Christy-Martin wanted to know if Wil-
liams had been working up until that time. Williams
stated that she had been doing some work on her files, but
was not seeking overtime for that work. Christy-Martin
also asked Williams whether she had seen anything un-
usual in the building on the night that the fliers had been
distributed. At this point, Williams admittedly became
defensive and told Christy-Martin that she did not want to
answer any questions regarding the fliers. Christy-Martin
told Williams that the distribution of the fliers was against
the Company’s no-solicitation/no-distribution policy.
5 Portions of Williams’ flyer are set forth in sec. II.C.I. of the judge’s
decision.
6 The Respondent maintained the following no-solicitation/no-
distribution rule from March 2001 to November 2001 in its employee
handbook: “Advertising or distributing any non-USAA printed infor-
mation including fliers, business cards, brochures, or catalogs is not
permitted at any time in the work area and only during non-working
hours in non-work areas.”
340 NLRB No. 90
UNITED SERVICES AUTOMOBILE ASSN. 785
Williams stated that she had not seen anything unusual,
that she felt uncomfortable with the questions, and asked
whether she needed an attorney with her. Williams was
then told that the security cameras had a picture of her
entering the building on July 31 at 7 p.m. with a large
box; Christy-Martin wanted to know what was in the box.
Although Williams testified at the hearing that the fliers
were in the box, she only told Christy-Martin that she had
papers in the box. After an hour of questioning, Williams
was sent back to her office.
At the same time that Williams was being questioned,
the Respondent was also questioning employee Andrew
Snyder. Snyder had been working overtime at the Re-
spondent’s facility on the night that the fliers had been
distributed. Snyder was in no way involved in the flier
distribution. The Respondent questioned Snyder as to
whether he had seen anyone walking around the facility
or if he had seen the fliers before he left for the night.
The record does not reflect how Snyder responded to
these questions.
A few days after her questioning, Williams decided to
“confess” to General Draude that she was the one who
had passed out the fliers. After Williams admitted that
she distributed the fliers, General Draude accused Wil-
liams of lying at the interview with Christy-Martin, and
told Williams that she was fired because of this dishon-
esty. Williams attempted to explain that she had not lied,
but was deliberately evasive because she was afraid.
Despite her explanations, General Draude terminated
Williams.
In his complaint, the General Counsel alleged that the
Respondent: (1) maintained an unlawful written no-
solicitation/no-distribution policy; (2) promulgated unlaw-
ful no-solicitation/no-distribution policies via e-mail and
voice mail; (3) unlawfully interrogated employees Loretta
Williams and Andrew Snyder; and (4) unlawfully termi-
nated Williams for engaging in protected concerted activ-
ity and for violating the Respondent’s unlawful no-
solicitation/no-distribution rule.
While the judge did not address complaint allegation
(1), she found merit in complaint allegations (2), (3), and
(4). We agree with the judge’s findings of violation for
the following reasons.
II. DISCUSSION
A. Respondent’s Policies
1. No-solicitation/no-distribution policies
The judge found, and we agree, that General Draude
and Manager David Huffman’s explanations of the no-
solicitation/no-distribution rule were unlawful. No ex-
ceptions were filed to the judge’s failure to explicitly rule
on the legality of the written handbook policy, and, ac-
cordingly, that issue is not before us for consideration.
However, the Board has found that a rule prohibiting
solicitation or distribution during “working time” is pre-
sumptively valid and one prohibiting solicitation or dis-
tribution during “working hours” is presumptively inva-
lid. See, e.g., Our Way, Inc., 268 NLRB 394 (1983).
We note that the Respondent does not contend that the
written handbook policy was lawful, and in fact, in its
brief to the Board, the Respondent admitted that its writ-
ten rule “may have been overly broad.” The judge also
noted, in her decision, that the Respondent has since
modified its written policy. The complaint does not chal-
lenge the legality of the Respondent’s modified policy,
and we therefore express no view on that issue as well.
2. Unwritten no-access policy
The Respondent contends that it maintained a valid
unwritten policy prohibiting employees from remaining
in their work area after working hours, unless authorized
to do so, and, at any time, from entering work areas other
than their own without a business purpose. It further
argues that Williams lost the Act’s protection when, in
violation of this policy, she entered the building without
authorization after her regular work time. We find no
merit in Respondent’s argument.
As found by the judge, the Respondent failed to prove
the dissemination of a valid no-access policy at the time
Williams distributed the fliers. That is, there is no evi-
dence that the policy had been clearly disseminated to
employees and enforced by the Respondent. On the con-
trary, employees were indisputably allowed access to
certain nonwork areas of the building after their sched-
uled work hours, even for nonwork related purposes.
Under these circumstances, we find that the Respondent
failed to prove dissemination of a valid no-access policy
or rule. Accordingly, Williams’ entry into the building
offices after hours to distribute fliers constituted pro-
tected activity and Respondent was not permitted to in-
terrogate her about it. Further, and in any event, we find
for the reasons stated below that Williams was not inter-
rogated for violation of the alleged policy but rather to
determine whether she distributed the fliers which the
Respondent found objectionable.
B. Interrogations of Loretta Williams and
Andrew Snyder
We find that the Respondent coercively interrogated
employees Williams and Snyder about the employees’
protected concerted activities. We find unpersuasive the
Respondent’s argument that it lawfully interrogated Wil-
liams and Snyder to determine whether either employee
remained in the building after hours in violation of the
Respondent’s alleged unwritten no-access policy. We
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
find this conclusion inescapable because, from its own
security records, the Respondent already knew the em-
ployees who were in the building that evening. That the
Respondent was focused on determining who was en-
gaged in the protected activity, namely, the flier distribu-
tion, is clear from the questions that were asked each em-
ployee. Christy-Martin asked Williams what she was
doing in the building until 11 p.m., whether she had seen
anything unusual, and what was in the box Williams
brought into the building. Similarly, Snyder was asked
whether he had seen anyone walking around the facility
and if he had seen the fliers in the building before he left.
The proper test for determining whether an employer’s
interrogation of an employee violates Section 8(a)(1) is
whether, under the circumstances, the interrogation rea-
sonably tended to restrain or interfere with the employ-
ees’ exercise of the rights guaranteed them under the Act.
See Spartan Plastics, 269 NLRB 546, 552 (1984). We
find that it did. The employees would reasonably per-
ceive that the Respondent had only one objective in
questioning Williams and Snyder—to identify who had
been engaged in the flier distribution. We find such
questioning would reasonably tend to interfere with or
deter the exercise of employees’ Section 7 rights.7 See
Spartan Plastics, supra.
C. Termination of Loretta Williams
The Respondent contends that it did not terminate Wil-
liams for distributing the fliers, but because she lied dur-
ing her “lawful” questioning by Christy-Martin. We find
Respondent’s position without merit.
At the hearing, Williams conceded that she was “eva-
sive” during her questioning by Christy-Martin. She
emphasized that she did not feel comfortable being hon-
est about the contents of the box she had carried into the
building and the fliers she distributed, fearing that the
Respondent would retaliate against her. As a result, to
protect herself, she lied.
As mentioned above, we find that Respondent’s pur-
pose for questioning Williams and Snyder was to deter-
mine who had been engaged in the flier distribution—a
protected concerted activity. The questions did not serve
a dual purpose, one valid, the other invalid. Therefore,
we reject, as the judge did, the Respondent’s stated con-
cerns about a breach of security and overtime issues.
Given that the interrogation was unlawful, we find that
Williams was under no obligation to respond to the ques-
tions in any particular manner. See Spartan Plastics,
supra. Therefore, “it can be no defense to Respondent to
recite a wrong [by Williams] in responding to an action

7 In agreeing that the interrogations were unlawful, Member Walsh
also adopts the rationale set forth in the judge’s decision.
of Respondent which itself constituted a violation of
law.” Id. at 552. Consequently, under these circum-
stances, Williams’ dishonesty about her protected con-
certed activity did not constitute a lawful reason to dis-
charge her.
Accordingly, we find that the Respondent violated
Section 8(a)(1) of the Act by terminating employee
Loretta Williams for engaging in protected concerted
activity.8
ORDER
The Respondent, United Services Automobile Asso-
ciation, Tampa, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining an overly broad no-
solicitation/no-distribution rule that prohibits employees
from distributing printed and written material during
nonworking time in nonworking areas.
(b) Coercively interrogating employees about their
protected concerted activities.
(c) Terminating employees because they engage in
protected concerted activity.
(d) 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 unlawful no-solicitation/no-distribution
rule that prohibits employees from distributing printed or
written material during nonworking time in nonworking
areas, and notify employees that this has been done.
(b) Within 14 days from the date of this Order, offer
Loretta Williams full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(c) Make Loretta Williams whole for any loss of earn-
ings and other benefits suffered by reason of the dis-
crimination against her, in the manner set forth in the
remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Loretta Williams, and within 3 days thereafter notify
Williams in writing that this has been done and that the
discharge will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
8 Member Walsh also finds Williams’ discharge unlawful for the
reasons set forth in the judge’s decision.
UNITED SERVICES AUTOMOBILE ASSN. 787
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of back pay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Tampa, Florida, copies of the attached no-
tice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 12, 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. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 1, 2001.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT promulgate or maintain an overly
broad no-solicitation/no-distribution rule that prohibits
you from distributing literature in nonworking areas dur-
ing nonworking time.
WE WILL NOT coercively question you about your
protected concerted activity.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the no-solicitation/no-distribution
rule that prohibits you from distributing literature in
nonworking areas during nonworking time, and WE
WILL notify you that this has been done.
WE WILL, within 14 days from the date of the
Board’s Order, offer Loretta Williams full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Loretta Williams whole for any loss
of earnings and other benefits resulting from her dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Loretta Williams, and WE
WILL, within 3 days thereafter, notify her in writing that
we have done so and that we will not use the discharge
against her in any way.
UNITED SERVICES AUTOMOBILE
ASSOCIATION

Rafael Aybar, Esq., for the General Counsel.
Michael D. Malfitano, Esq., and Reid E. Meyers, Esq., for the
Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law
Judge. This case was tried in Tampa, Florida on December 18
and 19, 2002. The original charge was filed by Loretta Wil-
liams, an individual, (Williams) on August 15, 2001,1 and an
amended charge was later filed by Williams on November 15,
2001. Based upon the charges filed, complaint issued against
United Services Automobile Association (Respondent) on Au-
gust 28, 2002. The complaint alleges that Respondent termi-
nated Williams on or about August 15, 2001, because she vio-
lated Respondent’s no-solicitation/no-distribution policies and
because she engaged in protected concerted activities. The
complaint further alleges that Respondent further interfered
1 All dates are 2001 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
with employees’ Section 7 rights by its promulgation and main-
tenance of its no-solicitation/no-distribution policy from March
1, 2001, until November 16, 2001, and by its interrogating em-
ployees on August 9, 2001, about the protected concerted ac-
tivities of other employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an unincorporated association under the insur-
ance laws of the State of Texas, provides insurance and finan-
cial services to the military community at its facility in Tampa,
Florida, where it annually derives gross revenues in excess of
$500,000 and purchases and receives goods and materials val-
ued in excess of $50,000 at its Tampa facility directly from
points outside the State of Florida. Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The General Counsel maintains that from March 1, 2001, un-
til November 16, 2001, Respondent maintained an overly broad
no-solicitation/no-distribution rule at its Tampa, Florida facil-
ity. On or about July 31, 2001, Williams personally distributed
1200 to 1300 flyers to the work area of Respondent’s Tampa
workforce of approximately 1597 employees. General Counsel
submits that following Respondent’s interrogation of Williams
on August 9, 2001, Respondent terminated Williams because
she engaged in protected concerted activity.
Respondent asserts that after the distribution of the flyers on
July 31, 2001, it conducted an investigation to determine if
there had been a security breach within the facility. When
questioned, Williams denied any knowledge of the leaflet or the
distribution. Williams later admitted that she had been the
individual who had distributed the flyers. Respondent submits
that Williams was not fired because she violated the no-
solicitation/no-distribution policy, but because she had lied
about her involvement.
B. Background
1. Respondent’s no-solicitation /no-distribution policy
In November 2000, Respondent’s revised employee hand-
book included the following language:
WORKPLACE SOLICITATION
Your relationship with your coworkers is important to
teamwork. In some cases, solicitations from coworkers
can be embarrassing or create a hardship for coworkers
who do not wish to participate. To avoid these situations,
do not ask others to donate, buy, or sell merchandise or to
participate in fund-raising activities in work areas or dur-
ing work hours unless they are pre-approved by USAA.
There are many opportunities to support the commu-
nity through company-sponsored programs like the Season
of Sharing holiday program, Junior Achievement, United
Way, and other special programs approved by the CEO
and coordinated through the senior officer of Community
Affairs.
Advertising or distributing any non-USAA printed in-
formation including fliers, business cards, brochures, or
catalogs is not permitted at any time in the work area and
only during nonworking hours in non-work areas.
Distribution of non-USAA-business fliers is not per-
mitted on escalators, walls, railings, doors, newsletter
racks, or on bulletin board or other areas designated for
corporate communication. This policy includes adver-
tisements, solicitations, or brochures, as well as informa-
tion about birthday’s, retirements, or reunions.
In-box fliers sent directly to an employee’s interoffice
mailbox in support of official USAA policies, programs,
and services are the only fliers permitted for distribution
through USAA resources. Contact Employee Communi-
cations if you have a business need to deliver in-box fliers
to individuals outside the direct reporting units of the sen-
ior officer approving the flier.
GAMBLING and the solicitation to gamble in any
form (e.g. lottery pools or prizes, baseball or football
pools, etc.) are not permitted. This type of activity does
not reflect the professionalism expected by members, and,
in some cases, may be illegal or in violation of regulatory
requirements.

In November 2001, the no-solicitation/no-distribution policy
was modified to clarify working time, define solicitation, and
further explain restrictions on distribution of printed materials.
2. Respondent’s reorganization and layoffs
During the summer of 2001, Respondent underwent a reor-
ganization that resulted in the elimination of positions in cleri-
cal, administrative, and support positions and the layoff of ap-
proximately 20 individuals in the Tampa office. Respondent
not only issued notices to employees concerning the organiza-
tional restructuring, but also held briefings to explain why the
reorganization was required. In newsletters to managers dated
July 12, and July 30, 2001, Respondent’s President Butch Vic-
cellio, discussed the restructuring and the inevitable displace-
ment of some employees. Thomas V. Draude, senior vice
president and general manager for Respondent’s Southeast
Region testified that the content of the newsletters was commu-
nicated by the managers to the employees soon after the distri-
bution dates. Draude denied that any employees expressed
concerns to him about the Company’s restructuring and denied
any knowledge of employees expressing concerns to any of the
other managers.
C. Williams’ Termination
1. Background
Loretta Williams began working for Respondent in June
1991. At the time of her discharge in 2001, Williams was clas-
sified as an auto casualty claims adjustor or generally identified
as a bodily injury adjustor and supervised by Eileen Hale.
While Williams had been a salaried employee, her position was
converted to an hourly position at the end of 2000. Her hours
were generally 8 a.m. to 6 p.m. for 4 days a week. Supervisor
UNITED SERVICES AUTOMOBILE ASSN. 789
Hale allowed employees to have a flexible work schedule and
employees generally worked varying hours between 7:30 a.m.
to 6:30 p.m. Williams testified that if an employee needed
additional time to complete necessary work, the employee
could work overtime without specifically requesting it in ad-
vance from Hale. Hale confirmed that in some instances it
would not be possible for employees to get advance authoriza-
tion when they needed to work overtime. If employees needed
to work additional time, they could simply log it into the time-
sheet at the end of their day.
Williams testified that she had a general awareness of Re-
spondent’s no-solicitation/no-distribution policy. She under-
stood that it applied to strictly fund raising activities, requests
for money, outside businesses, and generally solicitation. She
recalled that even though there was a no-solicitation/no-
distribution policy in place, employees routinely collected for
various causes such as Secret Santa, birthday cakes, birthdays,
flowers, and retirements. Employees selling Avon products left
catalogs on other employees’ desks. Williams also recalled that
in June 2001, she and other employees gave an employee a
wedding shower in Respondent’s breakroom at the end of the
workday. Williams recalled that approximately 50 or 60 invita-
tions were distributed throughout the work and nonwork area.
Williams left a copy of the invitation on not only Hale’s desk,
but also Hale’s supervisor’s desk. Williams received no disci-
pline or comment from management for distributing the wed-
ding shower invitations. The shower lasted from approximately
5:30 p.m. to 7:30 or 8 p.m. Williams obtained no additional
authorization to remain in the building for the extended hours
for the shower. Williams testified that employees are generally
not required to obtain authorization to remain in the building
after regular work hours as they have badges that allow 24-hour
access to the building. Williams also testified that employees
have occasion to remain in the building after their regular
working hours to work out in the fitness center, use the internet,
study for insurance classes, or just to eat dinner in the break-
room to avoid fighting the traffic to go home. Williams re-
called that she often remained at work after her scheduled work
day to not only avoid traffic, but also to read resource materials
for career development, and reorganize her desk for the next
day. Williams also testified that on one occasion, she had
worked the entire night before leaving for a Thanksgiving vaca-
tion without obtaining prior authorization. She admitted how-
ever, that this had occurred while she was still in a salaried
position and not compensated as an hourly employee.
Williams testified that she understood the reason for Re-
spondent’s reorganization and layoffs earlier in 2001, however,
she had not agreed with the way in which the layoffs were be-
ing handled. She believed that Respondent was selecting the
oldest employees who were earning the most money. Williams
testified that it was her opinion that employees vulnerable to
the layoff could not voice their concerns because of the risk of
losing their jobs. By contrast, Williams did not fear layoff for
herself as Respondent had already confirmed that employees
who were dealing directly with customers were not in line for
layoff. Because of her concerns about the layoffs, Williams
created a flyer urging employees to wear a red ribbon in sup-
port of laid-off employees. The flyer entitled “Wear a red Rib-
bon in Support of Our Lost Colleagues” included the following:

Employees are people . . . . We have families, children, mort-
gage, bills. We are consumers of the products we make and
sell. We are not obsolete computers that are too expensive to
operate. We strongly urge you to view every employee as a
valuable human resource—an asset that should be cherished,
nurtured, & developed to maximize production at full poten-
tial. You have not eliminated positions—you have eliminated
people—the tasks & work they performed still exist. These
people were our friends, our mentors, and members of our
workplace family.

The flyer went on to challenge Respondent’s leaders to plan,
design, organize, and implement with foresight and care for the
people they direct. Williams contended:

Layoffs are not our failures as productive employees-they are
reactionary results from a lack of vision, innovation, and
sound judgment on the part of our leadership.

Williams urged all employees to wear the attached red rib-
bon for the next couple of weeks in support of missing col-
leagues and any time that layoffs are pending and employees
are waiting for the ax to fall. She also urged that employees
send the message to corporate officers and executives and to
employees in other regions and to “let the decision-makers
know how we feel.”
2. Williams’ distribution of the flyers
On July 31, 2001, Williams distributed approximately 1200
to 1300 of the flyers throughout five floors of Respondent’s
facility. Flyers were left in mailboxes, on desks, and on piles at
the end of the aisles. Williams recalled that while she may
have distributed some of the flyers during her break after 5:30
p.m., she primarily distributed all the flyers between 8 p.m. and
11 p.m. Williams received assistance from only one other em-
ployee during the evening. Because she did not have badge
access to the mailroom and security areas, she asked an em-
ployee in information technology to pass out approximately 30
or 40 flyers in those areas. Williams had not known the em-
ployees’ name.
When Williams arrived at work on August 1, she discovered
that District Manager Wiley Smith had begun taking the flyers
from employees’ desks. Williams testified:

And so I was looking for my own and I couldn’t find it, and
so I knew that—well, something, just their reaction to the
memos was so drastic, so overboard, that I knew I had crossed
some line. I don’t—you know, it was—I had done something
really, really eyebrow raising.

3. Respondent’s response to the flyer
In an e-mail message to managers on August 1, 2001,
Draude explained that he had asked managers to leave the fly-
ers in place. Draude further explained that if employees wanted
to wear the red ribbons, that was up to the employee. Draude
acknowledged: “We must recognize that there is a lot of sad-
ness associated with the restructuring, and if this helps people
deal with it, that’s fine.” Draude urged managers to increase
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
face-to face time with employees and acknowledged that Re-
spondent could not “over communicate” about the tough deci-
sions that had been made or the challenges there were ahead.
Draude also included:

Please remind your employees that if they have a personal
message, the proper vehicle for that is “Speak Up” which they
can access on the Intranet. Remember that distributing ‘non-
USAA printed information’ in the workplace violates our
non-solicitation policy, which is why managers picked up
some of the fliers.

Approximately an hour after receiving Draude’s e-mail mes-
sage, claims subrogation manager, David Huffman, sent an e-
mail message to the employees in his department, setting out
the substance of Draude’s earlier message. Huffman included
the reminder that distributing “non-USAA printed information”
in the workplace violates the no-solicitation policy.
During the week of August 6, 2001, Draude addressed the
flyer during his recorded phone message to employees. Draude
explained that the message of the flyer had less to do with sup-
porting former employees and more to do with chastising man-
agement for hiring too many people in the first place. He main-
tained however, that the reason for the managers having picked
up the flyers had been based upon the company’s no-
solicitation policy. Draude stated: “They picked up the flier
because the company’s no-solicitation policy says you can’t
distribute non-USAA material in the building.”
During the week following the distribution of the flyers, Re-
spondent began an investigation to determine who was respon-
sible for the distribution of the flyers. Security and facility
access records revealed that Loretta Williams and Andrew
Snyder were the only two employees who appeared to be work-
ing as late as 11 p.m. on July 31. Supervisor Don Pisoni and
executive director of human resources met with Andrew Snyder
prior to 8:30 a.m.2 on August 9. Respondent’s notes from the
meeting reflect that Snyder was questioned about whether he
had seen anyone walking around on July 31 or if he had seen
anything unusual. He was also asked what he was working on
that evening, whether he had made any telephone calls, whether
he had seen the security guard, and if he had seen the fliers
when he left the building that evening. Respondent also deter-
mined that Snyder had prior authorization to work overtime that
evening. A security photograph for July 31 showed Williams
entering the building with a large box around 7:26 p.m. Based
upon the circumstances known to Respondent, Draude con-
firmed that Williams was the logical person to have distributed
the flyers.
4. Respondent’s alleged interrogation of Williams
Williams testified that for the next 10 days after she distrib-
uted the flyers, things seemed to settle down and employees
were not talking about the flyers as much as before. On August
9, Supervisor Hale asked Williams to come with her to person-
nel. Williams contends that she asked Hale if she needed to
bring anything or if she was in trouble. Williams also asked if

2 Respondent’s record of the meeting shows that it was written at
8:36 a.m. on August 9, 2001.
she was going to be fired. Hale assured her that she was not
and that “they” just wanted to talk with her. Williams accom-
panied Hale to personnel where she met with Hale and Sheila
Christy-Martin, director for the human resources advisory team.
Christy-Martin’s notes of the meeting reflect that she told Wil-
liams that Respondent had knowledge that Williams worked
until 11 p.m. on July 31. Christy-Martin explained that the
company was concerned about her having done so for three
reasons; safety, working with or without approval from her
manager for overtime, and because of the flyers that were dis-
tributed and whether she had seen anything.3 During the course
of the meeting, Christy-Martin asked her specifically what she
had been working on that evening and if she had made any
telephone calls or spoken to anyone. Williams explained that
she had been there with implicit permission because she was
making up time that she had missed earlier in the week because
of an emergency dental appointment. She contended that she
had earlier arranged with Hale to make up the lost time. Wil-
liams denied that she had seen anything out of the ordinary and
contended that she had been working on diaries, mail, and her
files. Williams contended that Hale and Christy-Martin contin-
ued to try to pin her down on the hours that she had worked on
July 31. Williams asserted that she told them that she couldn’t
say with certainty because she didn’t have any documentation
in front of her. Williams testified that she continued to ask if it
was necessary for her to have an attorney present and she was
assured that she did not need an attorney. Christy-Martin also
testified that when Williams had asked for an attorney during
the meeting, Christy-Martin had told her that she did not need
one. Williams recalled that she told them:

You are obviously trying to find out who passed out those
flyers, and I have no trouble with the message in those flyers,
with them being passed out, you know, and I really, really
don’t feel that these questions are valid.

Christy-Martin’s notes reflect that Williams denied having
seen the flyers when she left the building. Christy-Martin’s
notes also included the following:

She stated she does not feel comfortable answering these
questions. She feels like she will [be] retaliated against if
she saw someone, and it could have been more than one
person distributing the fliers or it could be a committee of
people. I reminded her our concern is if it is her, if she
helped someone or saw who did pass them out in the work
area, the employee needs to follow policies and procedures.
I advised her we are not focusing on the content but viola-
tion of the solicitation policy—distributing this information
in the work area. I reminded her of the appropriate chan-
nels?? Speak Up if someone wanted to submit their concern
anonymously, they can do so.

Williams contends that she told them that she was not going
to answer any questions without an attorney present and that
she continued to refuse to answer their questions. Christy-
Martin told her that if she were in the building working until 11
3 Respondent’s notes from the Williams and Snyder meetings reflect
that this same introduction was used in both meetings.
UNITED SERVICES AUTOMOBILE ASSN. 791
p.m., she needed to be paid for that time. Williams testified
that she told Hale and Christy-Martin that she wasn’t working
on USAA matters and that she was not claiming overtime for
hours worked that evening. Christy-Martin told Williams that
Respondent had a security photo of her carrying a large box
into the building. Williams initially responded by saying “A lot
of people were taking boxes in and out of this building in the
last few weeks.” Williams then admitted to Christy-Martin that
she had brought a box into the building, but contended that it
contained work papers. Williams recalled that the meeting
ended with Hale’s suggesting to Williams that she think about
and document the hours that she worked on July 31. Williams
testified that she continued to insist that she was not owed any
additional compensation for her work on July 31. Williams
testified that she at no time ever claimed that she was working
during the time that she was passing out the flyers.
Christy-Martin admitted that at no time did she ever directly
ask Williams if she had distributed the flyers. Christy-Martin
recalled only that she had told Williams that the flyers had been
distributed and Respondent was trying to determine if she had
seen the flyers or anyone in the area while she was working that
evening. Draude further admitted that based upon Christy-
Martin’s notes, Williams never specifically denied that she had
been the one to distribute the flyers.
5. Events prior to Williams’ discharge
The day following her meeting with Christy-Martin and
Hale, Williams called in sick and the following Monday was
her scheduled day off. She consulted an attorney who advised
her to take her flyer to the National Labor Relations Board,
which she did. She was advised that she could file a charge
with the agency and the matter would be investigated if she
were disciplined or terminated in relation to the flyer. After
talking with her attorney again, she decided that she needed to
tell Respondent that she had been the one responsible for the
flyer. She contacted Draude’s secretary on August 14 and re-
quested an appointment to speak with Draude. Williams admit-
ted to his secretary that she was responsible for distributing the
flyers and that they could “stop the witch hunt.” Later that
same day, Williams called Hale and admitted that she was re-
sponsible for distributing the flyers and confirmed that she had
an appointment with Draude on August 15th.
Williams testified that when she went in to talk with Draude
on the 15th, she was feeling “pretty good” about the fact that he
cared enough to meet with her. She believed that Draude was
meeting with her because he wanted to hear about how the
employees felt and what had been the impetus behind the flyer.
Williams recalled that she told him that she had been concerned
about the way in which employees had been selected for layoff.
She told him that no one had been speaking for the employees
and they were without a voice and without empowerment. She
further explained that she had initially wanted to be anonymous
in the distribution of the flyers because of what she termed the
“Santa Claus” effect. She explained that she had wanted em-
ployees to feel that somebody was looking out for them and
that it was more than just her.4 She testified that if she had
come forward and let the employees know that she had written
the flyer, it would be like finding out that Santa doesn’t exist
and it is really one’s mother putting the presents underneath the
tree.
Draude then explained to Williams that the bottom line was
the fact that she had lied. He went on to explain that she told
investigators that she was working when she had really been
passing out the flyers and that they could not have liars working
for USAA. Draude told her that she was fired. Draude’s meet-
ing notes indicate that Williams admitted that she had been
purposely vague and had failed to answer questions during her
meeting with Christy-Martin, but she had denied that she had
lied. When Williams left Draude’s office, Respondent’s direc-
tor of personnel was waiting for her with her termination pa-
perwork.
6. Respondent’s evidence on Williams’ termination
Draude testified that the sole reason for Williams’ discharge
was the fact that she lied during the investigation of the distri-
bution of the flyers on August 9, 20001.
Draude admitted that he had viewed the distribution of the
flyer as disruptive as the flyer was a nonbusiness related, non-
USAA document that had been placed on desks and in the work
area. Draude directed an investigation to determine who was
responsible because he wanted to know who was in the build-
ing at an unauthorized time. When asked why he had wanted to
know who distributed the flyers, Draude responded:

I was concerned about the safety and security, first of all, of
the workplace, and the possibility that an employee who was
in there without permission, or without the knowledge of oth-
ers, could, in fact, become a casualty, become sick, become
incapacitated and without our knowledge. So the main con-
cern was the security of the building, which we certainly don’t
want trespassers or anyone else to be there because of the na-
ture of our business, and also along with it, the safety of our
employees. Obviously, someone had been in the building
without our knowledge, and the indication of that was the
presence of the flyers.

Draude asserted that the flyers had triggered the realization on
the part of the company that someone had been in the building
that should not have been. He contended that the investigation
had been prompted because of their concern for the security of
the building, the safety of the employees, and well as a concern
that the company may not have been honoring the overtime
requirement. He explained that if an employee was working
overtime and had the permission of the manager, the company
would have been required to pay overtime. He explained: “So
there is that part of it also to ensure that we were doing right for
the employees.”
Draude testified that he first learned that Williams had dis-
tributed the flyers when she contacted his secretary for an ap-
pointment. He contacted human resources and the corporate
headquarters in San Antonio. He testified that at that point, he

4 Draude’s notes from the meeting reflect that Williams had spoken
of wanting to be Santa Claus in distributing the flyers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
had decided that if she admitted to him that she had lied, he
would terminate her.
Draude recalls that when he confronted Williams in their
meeting on August 15, Williams repeatedly denied that she had
lied during the investigation. Draude pointed out that during
her interview with Christy-Martin, she had denied knowing
anything about the flyers and she had lied about the contents of
the box. Draude told Williams that she had the opportunity to
tell the truth and she had chosen not to. He recalled telling
Williams: “To me that constitutes lying.”
III. FACTUAL AND LEGAL CONCLUSIONS
A. Whether Williams’ Conduct was Protected
General Counsel alleges that Williams was terminated be-
cause she engaged in protected concerted activity. In Meyers
Industries, 268 NLRB 493 (1984), remanded sub. nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985), Meyers Industries, 281
NLRB 882 (1986), the Board determined that for an em-
ployee’s activity to be concerted within the meaning of Section
7 of the Act, the activity must be engaged in with or on the
authority of other employees and not solely by and on behalf of
the employee himself. Once it has been determined that the
activity is concerted, a violation of Section 8(a)(1) will be
found if the employer knew of the concerted nature of the activ-
ity, the concerted activity is protected under the Act, and the
adverse employment action was motivated by the employee’s
protected concerted activity.
In Meyers II, the Board emphasized that its definition of
concerted activity included individual activity where “individ-
ual employees seek to initiate or to induce or to prepare for
group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers
Industries, 281 NLRB 882, 887 (1986). The Board explained
that the activity of a single employee in enlisting the support of
his fellow employees for their mutual aid and protection is as
much “concerted activity” as is ordinary group activity. Thus,
it appears that an employee, acting on behalf of fellow employ-
ees to address a concern with management fits clearly within
the parameters of Meyers II. In the instant case, Williams was
acting solely for the benefit of her fellow employees. She had
been assured by management that as an employee who deals
directly with the client, she was not targeted for layoff. Despite
the fact that this was not her cause, she nevertheless took it
upon herself to address what she viewed as management’s mis-
handling of the layoffs and voice what she felt to be the con-
cerns of other employees. Clearly, in her attempt to be the
spokesperson for those who were affected by the reorganiza-
tion, she engaged in concerted activity.
Respondent contends that even if Williams was engaged in
concerted activity, it was not protected. Respondent cites a
recent Board decision as a basis for finding that an employer’s
restrictions or prohibition of access may be justified. Nynex
Corp., 338 NLRB 659 (2002). Respondent urges that the
Board’s decision in Nynex supports the premise that employees
do not have an unfettered right to engage in concerted activity
at any location they choose. Respondent contends that Wil-
liams did not have authorization to go into other work areas to
distribute the flyers and thus was not protected in this concerted
activity. I find the circumstances of Nynex however, distin-
guishable from those of the present case. In Nynex, the em-
ployer maintained an Absence Benefit Center staffed by li-
censed nurses to process and evaluate employee absences.
Although the union represented the employees whose absences
were processed, it did not represent any employees who actu-
ally worked in the center. Dissatisfied with grievance process-
ing concerning its represented employees, the union executive
board entered the center, unannounced, and demanded to
schedule appointments to discuss grievances. There was no
evidence that anyone in the center played any role in the proc-
essing of grievances under the parties’ collective bargaining
agreement. The Board found that the manner in which the
union employees and representatives acted was unprotected and
the employer’s suspension of these employees was a lawful
reaction to this conduct. In finding this conduct to be unpro-
tected, the Board considered the fact that the individuals caused
a 2-hour disruption of work and persistently refused the em-
ployer’s demands to leave. The Board noted “These union
representatives entered the working area of the Center during
the nurses’ working time, loudly confronted nurse case manag-
ers at their cubicles, refused to meet with McDonnell-Foley in a
conference room in a public area, and wandered the work area
of the Center recording the nurses’ names and cubicle loca-
tions.” The Board thus found that based upon the totality of the
circumstances, and with particular emphasis on the disruption
of the nurses’ work and the representatives’ refusal to leave at
the employer’s repeated requests, the employer did not violate
8(a)(1) by calling the police, suspending the employees, and
suing the Union for trespass. I do not find Williams’ conduct
comparable to the unprotected conduct in issue in Nynex.
Respondent further contends that its prohibition against off-
duty employees entering work areas complies with the Board’s
standard for determining whether a company’s restrictions on
access to work areas are proper. Respondent maintains that if
an employer has only limited access to the interior working
areas of a facility, has clearly disseminated this policy to em-
ployees, and the policy applies to all off-duty employees, and
not just those engaged in union or other concerted activity, the
employer may lawfully prohibit off-duty employees from enter-
ing its working areas.5 Respondent asserts that it has met these
guidelines and thus lawfully restricted Williams’ access to the
other working areas of the facility. I do not find that the record
supports this finding. Hale testified that people were expected
to leave their work area when their shift was finished and that
employees were not authorized to be in other people’s work
areas or to “wander the building into other employees’ work
areas late into the evening.” Christy-Martin testified that if
Williams did not have a business need, she was not supposed to
have access to the work areas of the other floors. Despite such
assertions however, Respondent concedes that it has no written
rule setting forth those restrictions. In its brief, Respondent
urges that even though it was not written, supervisors met with
and notified employees about their access to the facilities.

5 Respondent relies upon Nashville Plastics, 313 NLRB 462, 463
(1993), citing Tri-County Medical Center, Inc., 222 NLRB 1089
(1976).
UNITED SERVICES AUTOMOBILE ASSN. 793
When Hale was asked on direct examination if it was well
known to employees that they were not permitted to wander the
building into other employees’ work area late into the evening,
she simply answered that they were. She gave no additional
information as to how or when this restriction had been dis-
seminated to employees. By contrast, when asked if Williams
knew to record her overtime in the timesheet book before leav-
ing the office, Hale explained that she did because she had
explained this to Williams upon her entering the unit. Although
Respondent maintains that employees knew that they were
restricted from other employees’ work areas, no Respondent
witness provided any specifics of how or when this restriction
had been disseminated to employees. By contrast, Williams
testified extensively about having distributed wedding shower
invitations to employees in other work areas and even provid-
ing an invitation to Hale and Hale’s supervisor at their desk.
Hale did not dispute Williams’ having done so. She testified
only that she did not remember seeing the invitation. Both
Williams and employee Valerie Toloday testified that there was
a practice of employees selling candy for fundraisers and sell-
ing Avon products from their work desk. Toloday confirmed
that on occasion employees went to other desks and left non-
work related items and that employees made no attempt to hide
the fact that they were doing so. Based upon their total record
testimony, I found Williams and Toloday to be more credible
witnesses. Toloday was especially believable as she testified
that not only was her husband hospitalized, but pursuant to
subpoena, she had been called away from her job and required
to attend the hearing. Accordingly, I do not find that prior to
Williams’ distribution of the flyers that there was a valid re-
striction for employees to other work areas or that such restric-
tion had been clearly disseminated to employees.
Respondent also argues that there were restrictions on access
to work areas because of the sensitive information contained on
every adjustor’s desk. It is undisputed that adjustors worked
with confidential medical records and other sensitive personal
information. Respondent contends that Williams’ actions were
unreasonable and unprotected because she went to every desk
in the building to leave the flyers. Williams testified, without
dispute, that her work area was located in the midst of ap-
proximately 24 other nonsupervisory employees.6 There is no
evidence that employees worked in locked areas or in cubicles
that prevented access to any other employee. Williams’ access
to the other floors of the building was no different than her
access to other adjustors’ desks containing confidential files
and materials that were in her immediate work area. I don’t
find her distribution of flyers on July 31 to be any different than
her previous distribution of wedding shower invitations or other
employees’ distribution of merchandise catalogs.
Relying upon Peck, Inc., 226 NLRB 1174, 1175 (1976), Re-
spondent further asserts that the Board has held that an em-
ployee who remains in the building after he or she is scheduled
to leave may be engaged in unprotected activity. In Peck, Inc.,
however, the Board found that employees who staged a sit-in as

6 Williams provided a written diagram of where her desk was located
in relation to the other employees working in her department at the time
of her discharge.
a punishment against their supervisor for imposing upon them
valid conditions which they disliked and which they wanted
modified was not protected activity. The employer was found
to have a clear immediate interest in attempting to secure its
property, which did not unduly interfere with or restrict the
statutory rights of these employees who were refusing to leave
the premises. I find that case factually distinguishable from the
circumstances of the present case. Based upon the total record
evidence, I do not find that Williams lost the protection of the
Act in her distribution of the flyers.
B. Respondent’s Unlawful Interrogation
Respondent takes the position that Williams was not termi-
nated because she distributed the flyers on July 31, 2001, but
because she lied during her meeting with Christy-Martin and
Hale. General Counsel alleges that this meeting was unlawful
interrogation, and thus, the derivative discharge is also violative
of the Act. In analyzing whether interrogation of employees
concerning protected concerted activity violates Section 8(a)(1)
of the Act, the Board has considered the totality of the circum-
stances. See Rossmore House, 269 NLRB 1176 (1984). In
Medcare Associates, Inc., 330 NLRB 935 (2000), the Board
held that consideration is to be given to “the Bourne factors” in
determining the lawfulness of alleged interrogations under
Rossmore House. The Bourne factors, which were first set out
by the Board in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964), include the following:

(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g. did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there
an atmosphere of unnatural formality?
(5) Truthfulness of the reply.

In this case, the questioners were Williams’ immediate super-
visor and the director for the human resources advisory team.
Admittedly, Christy-Martin gave no assurances that no action
would be taken against Williams if she refused to answer or that
she did not have to answer any of the questions. Christy-Martin
continued to ask questions even though Williams voiced her
concern that she might need an attorney present. Williams testi-
fied that she had never met Christy-Martin prior to that meeting
and was unfamiliar with the office where the meeting was held.
In Bourne, the Court noted that the employee’s responses during
the interrogation were truthful and ultimately concluded that
there was no evidence that the interrogation in issue actually
inspired fear. In this case, it is undisputed that Williams was not
forthcoming in her responses and was admittedly evasive.
Christy-Martin’s own notes reflect that Williams told her that
she didn’t agree with being questioned and that she felt that she
needed her attorney present. Based upon the total circumstances
of the interrogation. I find that Respondent unlawfully interro-
gated Williams on August 9, 2001, in violation of Section
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
8(a)(1) of the Act. I also find that based upon Respondent’s
notes of the meeting held with Snyder, Respondent’s interroga-
tion of Snyder was also violative of the Act. Snyder was told
that the meeting was based in part upon the distribution of the
flyers and Respondent’s desire to know if he had seen anything.
He was questioned about whether he had talked with anyone or
made any phone calls during the evening. He was also ques-
tioned about whether he had seen anyone walking around or if
he had seen the flyers before he left. While Snyder had no in-
volvement in the distribution of the flyers, his questioning about
the flyers was nonetheless coercive and unlawful.
In a recent case, an employee was terminated after appearing
and testifying in a Board hearing. See Alamo Rent-a-Car, 336
NLRB 1155 (2001). The employer contended that while the
employee testified at the hearing in detail about the occurrences
of the alleged unfair labor practice, he had previously denied
any knowledge of the events giving rise to the charges in a
sworn declaration sought by the employer. Knowing that he
was being untruthful, the employee had nevertheless signed a
sworn statement that he did not know anything about the com-
plaint allegations. The employer contended that it terminated
the employee because of his having lied during its investigation
of the matter. The Board found that the circumstances in which
the earlier statement had been given were inherently coercive.
The Board noted that in this context, the employee’s reluctance
to volunteer information to the employer was completely un-
derstandable. The Board further explained:

While we obviously do not condone employee dishonesty, we
find here that Elvena’s disclaimer of knowledge, recorded in
an employer-solicited declaration in conjunction with these
unfair labor practice proceedings, was given out of reasonable
fear for his job security.

In Williams’ written description of the August 9 meeting,
she documented that Christy-Martin asked if she had seen any-
one passing out the flyers. Christy-Martin’s own notes reflect
that she asked Williams if she had talked to anyone that eve-
ning and whether she had seen anyone walking around. In the
Board’s 1989 decision in Alpha School Bus Co.,7 the em-
ployer’s general manager interrogated an employee driver as to
whether she had passed out any literature or papers during the
course of her duties. The Board affirmed the administrative
law judge, finding that even though the employee was an open
and active union supporter, the interrogation was coercive un-
der the Rossmore House standards. The manager’s questions
required her to identify other employees who may have shared
her prounion sentiments and the employee was threatened with
termination if she lied. Both the interrogation and the later
suspension was found to be violative of the Act. In this case,
such interrogation about other employees who may have been
involved in the distribution of the flyers would be even more
coercive when the employee had not openly and admittedly
declared herself to be responsible for the concerted action.
Respondent contends that an employer is permitted to question
an employee who has engaged in unprotected activity without
violating the employee’s rights, citing HCA/Portsmouth Regional

7 293 NLRB 284 (1989).
Hospital, 316 NLRB 919 (1995). In HCA/Portsmouth, however,
the employer lawfully interrogated an employee about having
maliciously and recklessly spread false and professionally dam-
aging rumors about a supervisor. Despite Respondent’s conten-
tion that it could not tolerate the continued employment of an
employee who lied, I find that Williams’ conduct did not lose the
protection of the Act because she was evasive and less than can-
did when questioned about her involvement in distributing the
flyers.
Respondent contends that interrogations into an employee’s
job performance or the company’s business purposes8 is permit-
ted. Respondent asserts that at the beginning of the interroga-
tion, Christy-Martin told Williams that she wanted to speak with
her because it concerned safety, unauthorized overtime, and a
potential breach of the facility’s security. Respondent further
argues that the questions posed to Williams concerned her over-
time work and a potential entitlement to additional compensa-
tion. Additionally, Respondent argues that the questions were
asked to evaluate a potential security breach. Despite Respon-
dent’s attempt to categorize the interrogation as an inquiry into
safety or an overtime compensation obligation, the interrogation
was initiated because of the distribution of the flyers and the
protected concerted activity. Christy-Martin’s questions were
elicited to find out who was distributing the flyers and how Wil-
liams was spending her time in the building during the time
when the flyers were distributed. Draude admitted that Williams
was the prime suspect as the distributor of the flyers. Her un-
truth did not relate to the performance of her job or Respon-
dent’s business, but to a protected right guaranteed by the Act,
which she was not obligated to disclose. See St. Louis Car Co.,
108 NLRB 1523, 1525–1526 (1954). The fact that Williams
admits that she was evasive during the interrogation makes the
questioning no less coercive. The coercive nature of the interro-
gation is made even more apparent by the fact that Williams was
fearful of fully acknowledging her protected activity to Christy-
Martin. Clearly, Respondent’s interrogation of Williams was
unlawful and the Board has found that a discharge cannot be
lawful when it is based on an employee’s failure to fully respond
to an unlawful interrogation. See Hertz Corp., 316 NLRB 672,
692 (1995).
C. Williams’ Discharge for Engaging in Protected Concerted
Activity
Section 8(a)(1) of the Act specifically prohibits an em-
ployee’s discharge because of their protected concerted activ-
ity. Even if Respondent did not engage in the unlawful interro-
gation of Williams, General Counsel would nevertheless main-
tain that Williams was terminated because of her protected
concerted activity in distributing the flyers on July 31, 2001.
Respondent however, contends that the distribution of the hand-
bills was not a basis for Williams’ discharge. In order to estab-
lish that Williams was discriminated against because of her
protected concerted activity, the General Counsel must show
that she engaged in concerted activity; Respondent knew that
she engaged in concerted activity, the concerted activity was
8 Respondent cites an administrative law judge’s decision and the
Board’s decision in Meyers Waste System, Inc., 322 NLRB 244 (1996).
UNITED SERVICES AUTOMOBILE ASSN. 795
protected by the Act, and the discharge was motivated by her
protected concerted activity. Meyers II, 281 NLRB 882 (1986);
Meyers I, 268 NLRB 493, (1984). Although Respondent con-
tends that the actual distribution of the flyers had nothing to do
with the decision to fire Williams, I do not find such contention
supported by the record evidence.
Respondent asserted that Williams was questioned on August
9, because of its concern that there may have been a security
breach in the building and a concern that Williams may have
worked without receiving the appropriate overtime pay. Draude
went into great detail in his testimony to explain how Respondent
had a duty to protect the confidentiality of its members (custom-
ers). Certainly, this would be a logical concern for any employer
who maintains confidential medical and other personal records
for its customers. The logic of this argument however, is under-
mined by the fact that only two individuals were shown to have
been in the building for extended hours on July 31 and both of
them were employees. It is undisputed that Respondent’s facility
is gated with 24-hour security. Employees have ID badges that
must be used to enter and exit the building at all times. Any
visitors to Respondent’s facility must show photo identification
at the gate and sign in upon entering the building. There was no
evidence presented that there was ever any real suspicion that
someone had broken in from the outside or had in any way tam-
pered with or obtained access to confidential files. Certainly, the
very content of the flyer demonstrated that the responsible indi-
vidual was an employee. The language of the flyer boldly states
“As employees of an ‘employment-at-will’ company (especially
in ‘Right to Work’ states), we understand we have no labor rights
that legally protect us from the consequences of poor corporate
decision-making.” At a later point in the flyer, Williams states
“As members of the USAA workforce, we challenge our leaders
to look beyond the textbook cliches of labor cost formulas and
organizational downsizing.”
Respondent’s alleged additional concern about its duty to
pay Williams appropriate overtime is equally lacking in credi-
bility. There is no evidence that Williams claimed overtime for
the time that she distributed the flyers. Christy-Martin’s notes
reflect that when the issue of overtime was raised with Wil-
liams, she stated that she did not want to be paid overtime and
she felt that she had been adequately compensated. While the
Federal Labor Standards Act may require an employee to com-
pensate an employee for overtime, there is no expectation that
an employer is required to interrogate and force an employee to
claim overtime when the employee resists doing so. Respon-
dent’s assertion that it was merely trying to make sure that Wil-
liams was adequately compensated for overtime work simply
belies the credibility of Respondent’s asserted basis for Wil-
liams’ termination.
I do not find Draude credible in his testimony that concerns
about security and overtime prompted the investigation and
questioning of Williams on August 9. As discussed above,
Draude’s rationale for Respondent’s questioning Williams is
simply not believable. It is more reasonable that Respondent
simply wanted to find out the identity of the employee who had
prepared and distributed the flyer. Christy-Martin admitted that
she had told Williams in the interview that Respondent wanted
to know who had distributed the flyers because Respondent felt
that the distribution of the flyers violated the no-solicitation
policy. In her testimony at trial, Williams was not always re-
sponsive to questions asked by either General Counsel or Re-
spondent. Although she repeatedly responded in both direct
and cross-examination with unrequested information and opin-
ion rather than fact, she nevertheless appeared as a credible
witness. Even during the course of the trial, she continued to
assert the rights of employees and wage her campaign to dem-
onstrate the inequity of Respondent’s treatment of its employ-
ees. Interestingly, it was in discussing what had happened to
other employees rather than her own discharge, that she became
tearful and demonstrably emotional. Based upon the overall
testimony of Draude, Christy-Martin, and Williams, I find Wil-
liams to be the more credible witness. The evidence supports a
finding that Respondent’s termination of Williams was moti-
vated by her protected concerted activity in distributing the
flyer and because she violated Respondent’s no-solicitation/no-
distribution policy.
The Board has long held that an employer may lawfully pro-
hibit employees from distributing literature in work areas in
order to prevent the hazard to production that can be created by
littering the premises. Stoddard Quirk Mfg. Co., 138 NLRB 615
(1962). In a later case, the Board considered whether the distri-
bution is pertinent to a matter encompassed by Section 7 of the
Act in evaluating an employer’s restraint of employee efforts to
distribute literature on the employer’s premises. McDonnell
Douglas Corp., 210 NLRB 280 (1974). In the instant case,
Respondent’s printed solicitation policy that was in effect on
July 31, 2001, prohibited the distribution of non-USAA printed
information at any time in the work area and only during non-
working hours in nonwork areas. Draude’s e-mail to managers
and Manager Huffman’s e-mail to employees on August 1,
2001, stated that employees must be reminded that distributing
“non-USAA printed information” in the workplace violates the
no-solicitation policy. In Draude’s telephone message to em-
ployees during the week of August 6, 2001, Draude explained
that Respondent’s no-solicitation policy prohibits distribution of
non-USAA material in the building. Thus by Draude’s explana-
tion, Respondent’s no-solicitation/no-distribution rule at the
time of Williams’ protected concerted activity prohibited distri-
bution in both work and nonwork areas and during nonworking
time. The Board has previously determined that such an overly
broad no distribution policy, prohibiting distribution in nonwork
areas is violative of the Act. See United Parcel Service, Inc.,
331 NLRB 338 (2000). See also TeleTech Holdings, Inc., 333
NLRB 402 (2001), where the Board reiterated that “a rule pro-
hibiting distribution of literature on employees’ own time and in
nonworking areas is presumptively invalid.” In analyzing disci-
plinary action taken pursuant to an unlawful no-distribution rule,
the Board has viewed the circumstances as analogous to the
“fruit-of-the poisonous tree” metaphor often used in criminal
law. See Opryland Hotel, 323 NLRB 723, 728 (1997), citing
NLRB v. McCullough Environmental Services, 5 F.3d 923, 931
fn. 9 (5th Cir. 1993). Accordingly, inasmuch as Respondent’s
existing no-solicitation/no-distribution policy was unlawful,
Williams’ discharge for having violated that policy would like-
wise also violate the Act. Elston Electronics Corp., 292 NLRB
510, 511 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
Respondent denies however, that Williams’ discharge was
based on her protected concerted activity or upon her violation of
the unlawful no-solicitation/no-distribution policy. Respondent
asserts that the discharge was based solely upon her lying during
the August 9 interview and that its discharge of Williams is con-
sistent with having discharged other employees for lying. Gen-
eral Counsel submits that since Williams was discharged for an
alleged act of misconduct in the course of engaging in protected
concerted activities and she was not in fact guilty of that miscon-
duct, it necessarily follows that her discharge violated Section
8(a)(1) of the Act and Respondent’s motivation plays no part in
the decision.9 General Counsel cites the Board’s decision in
Earle Industries, 315 NLRB 310, 315 fn. 19 (1994), where the
Board found it unnecessary to analyze a case under the Board’s
Wright Line framework, which is applied in “mixed motive”
cases where a legitimate, nondiscriminatory reason for adverse
employment action has been advanced. The analysis was unnec-
essary because the only reason advanced by the employer for the
employee’s discharge involved activities which were found to be
protected concerted activities under the Act. I find merit in the
General Counsel’s argument. Admittedly, Williams was evasive
and did not disclose to Christy-Martin that part of her time in the
building on July 31 was spent in distributing the flyers. Respon-
dent contends in its brief that Williams’ evasiveness and attempts
to deceive Christy-Martin during the interview “qualifies as ly-
ing.” It is apparent however; that Williams’ failure to disclose
and her less than truthful responses to Respondent were intri-
cately linked with her concerted activity and thus cannot be
viewed as anything other than a part of her protected concerted
activity. Thus, inasmuch as she was discharged for conduct
which constituted protected concerted activity, a determination of
Respondent’s motivation and a Wright Line analysis would not
be applicable. See Saia Motor Freight Line, Inc., 333 NLRB 784
(2001), Felix Industries, 331 NLRB 144, 146 (2000), enfd. 151
F.3d 1050 (D.C. Cir. 2001).
I have in the alternative however, also considered the total
record to determine if Respondent has met its burden under the
Wright Line analysis. Under the Wright Line analysis,10 the
General Counsel must establish a prima facie case sufficient to
support the inference that protected conduct was a “motivating
factor” in the employer’s decision. Assuming that General
Counsel is able to establish such a prima facie case, the burden
then shifts to the employer to show that the same action would
have taken place even in the absence of the protected conduct.
Having found that General Counsel has met its burden, Re-
spondent bears the burden of showing that it would have termi-
nated Williams in the absence of her protected conduct. Wright
Line, Inc., supra at 1098, Manno Electric321 NLRB 278, 279–
280 fn. 12 (1996). KNTV, Inc., 319 NLRB 447, 452 (1995).
Respondent cannot simply present a legitimate reason for its
actions but must persuade by a preponderance of the evidence

9 General Counsel cites NLRB v. Burnup & Sims, 379 U.S. 21, 23
(1964), where the Supreme Court held that the Act is violated where “it
is shown that the discharged employee was at the time engaged in a
protected activity, that the employer knew it was such, that the basis for
the discharge was an alleged act of misconduct in the course of that
activity, and the employee was not in fact guilty of that misconduct.”
10 Wright Line, 251 NLRB 1083 (1980).
that the same action would have taken place even in the ab-
sence of the protected conduct. See GSX Corp. v. NLRB, 918
F.2d 1351, 1357 (8th Cir. 1990).
In its brief, Respondent argues that it has previously dis-
charged employees for lying, misrepresenting, or obstructing an
investigation. Respondent cites the previous discharge of four
employees who falsified or misrepresented pay or attendance
records. Respondent further cites the discharge of an individual
who was involved in multiple incidents of petty theft. Respon-
dent also references the discharge of employee Bruce Bain,
who Respondent contends was discharged for lying to Draude
regarding his missing a meeting with some senior officials in
San Antonio. As a rebuttal witness for General Counsel, Bain
not only denied that he lied to Draude, but he also denied that
that he was ever told that his forced resignation was based upon
lying to Draude. Bain testified that prior to his resignation, he
had been placed on administrative leave following a series of
irreconcilable differences between himself and Respondent.
Bain testified that there had been a 1985 incident involving his
wife and misconduct by a manager in the company. A lawsuit
was filed later by another employee involving this same man-
ager. Bain contended that following his having given a state-
ment in the later lawsuit, he became the target of harassment
and retaliation.
While Respondent may have previously terminated employ-
ees for falsification of time and attendance records or for petty
theft, I do not find these incidents comparable to the instant
case. Respondent admits that Williams was never specifically
asked if she had distributed the flyers. Williams’ failure to
volunteer her involvement during an unlawful interrogation is
not comparable to the dishonesty involved in the discharges
cited by Respondent. Additionally, while Bain was admittedly
very angry toward Respondent for what he perceived to be past
harassment and retaliation, I find his testimony to be credible
with respect to whether he lied to Draude. Based upon the total
evidence presented, the termination of Bain appears to have
involved more than simply whether he lied to Draude about
leaving a meeting early. Accordingly, I do not find that Re-
spondent has met its burden in demonstrating that Williams
would have been terminated even in the absence of her pro-
tected concerted activity. The asserted basis for her discharge
appears to distinctly lack value and appears to be pretextual.
Accordingly, I find that the total record demonstrates that
Loretta Williams was terminated on or about August 15, 2001,
because of her protected concerted activity and because of vio-
lating the invalid no-solicitation/no-distribution policy and such
termination is violative of 8(a)(1) of the Act. Additionally, I
find Respondent’s interrogation of Williams and Snyder on
August 9, 2001, to be further violative of the Act as well as the
maintenance of the overly broad no distribution policy that
existed at the time of Williams’ discharge.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
engaging in the following conduct.
UNITED SERVICES AUTOMOBILE ASSN. 797
(a) Maintaining and giving effect to an overly broad no-
solicitation/no-distribution rule that prohibits employees from
distributing written or printed literature in nonworking areas
during nonworking time.
(b) Interrogating employees about their protected concerted
activity.
(c) Terminating employees for their protected concerted ac-
tivity.
3. The aforesaid unfair labor practices described above are
unfair labor practices within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Loretta
Williams, it must offer her reinstatement and make her whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest, as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The remedy should also include a cease-and-desist order, and
the posting of an appropriate notice.
[Recommended Order omitted from publication.]