Andronaco, Inc. d/b/a Andronaco Industries

National Labor Relations Board - Administrative Judge Opinions

Apr 20, 2016

07-CA-160286 (N.L.R.B. Apr. 20, 2016)

JD–36–16
Kentwood, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ANDRONACO, INC. d/b/a
ANDRONACO INDUSTRIES
Respondent
and Case No. 07–CA–160286
LINDSEY JOHNSTON1
an Individual
Colleen Carol, Esq.
for the General Counsel.
Timothy J. Ryan, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge. This case was tried before me
in Grand Rapids, Michigan on March 3, 2016. Charging Party Lindsey Johnston (Johnston) filed
the charge against Respondent Andronaco, Inc. d/b/a Andronaco Industries (Respondent) on
September 18, 20152 and the General Counsel issued the complaint on November 24.
Respondent filed a timely answer on December 7.
The complaint alleges that Respondent violated Section 8(a)(1) of the Act by maintaining
several overly broad handbook rules. These rules include disclosure of confidential company
information, solicitation and distribution, dress code, and an internet/email rule. Also alleged are
two violations of Section 8(a)(1): interrogating an employee about concerted activities; and
accusing an employee of disloyalty because of protected concerted activities. Lastly, the
complaint alleges that Respondent terminated Johnston because she engaged in protected
concerted activities. Respondent admits to maintaining the rules and terminating Johnston, but
denies any wrongful conduct.
I find that the handbook rules and accusation of disloyalty violate Section 8(a)(1). I do
not find that Respondent violated the Act by interrogating an employee. I ultimately find that
Johnston’s discharge also violated Section 8(a)(1).

1 Johnston was married on July 31, 2015 and many of the documents in the record reflect her previous
name, Lindsey Ball. For simplicity here, she will be referred to as Johnston.
2 All dates are in 2015 unless otherwise indicated.
JD–36–16
2
The parties were given a full opportunity to participate in the hearing, to introduce
relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire
record, including my observation of the demeanor of the witnesses, and after considering the
briefs filed by General Counsel and Respondent, I make the following5
FINDINGS OF FACT3
I. Jurisdiction
10
Respondent admits, and I find, that it has been a corporation with an office and facility in
Kentwood, Michigan and has been engaged in the manufacture and nonretail sale of specialty
systems for the pharmaceutical, chemical, steel, wastewater and energy markets. During the past
12 months, in conducting its business, Respondent purchased and received at its Kentwood
facility, goods valued in excess of $50,000 directly from points outside the State of Michigan. 15
II. Background
Respondent maintains manufacturing facilities in Kentwood, Michigan and in France.
Ron Andronaco is the owner and chief executive officer (CEO). Kaila Schweda,4 the executive 20
assistant, worked as the human resources person from March until mid-July. Cheryl Sarver took
over the human resources function in mid-July. Schweda reports to Scott Palmittier, the chief
financial officer (CFO), except when performing human resources work. When performing HR
work, Schweda reports to CEO Andronaco.
25
Also reporting to Andronaco are CFO Palmittier, Plant Manager Colin Cruttenden, and
the director of engineering. (Tr. 195).
30

3Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, evidence presented, and logical inferences. The credibility analysis may rely upon a variety of
factors, including, but not limited to, the context of the witness testimony, the weight of the respective
evidence, established or admitted facts, inherent probabilities and reasonable inferences that may be
drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 303–305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any witness are not
likely to be an all-or-nothing determination and I may believe that a witness testified credibly regarding
one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
When there is a witness who may reasonably be assumed to be favorably disposed to the party, an
adverse inference may be drawn regarding any factual question on which the witness is likely to have
knowledge. International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th
Cir. 1988). This is particularly true where the witness is the Respondent’s agent. Roosevelt Memorial
Medical Center, 348 NLRB 1016, 1022 (2006).
4 Schweda married after the events in this matter. All relevant documents are signed in her maiden
name instead of her married name.
JD–36–16
3
III. Handbook Rules
Respondent maintains a handbook for its employees. (GC Exh. 2). In Section IV,
Employee Conduct, Part A, Employee Conduct Subject to Discharge states that Respondent
retains the right to evaluate what employee conduct is disruptive. If Respondent determines the 5
conduct is unacceptable, it has the sole right to give disciplinary action, up to and including
termination. The rules at issue involve confidentiality, solicitation/distribution, dress code, and
internet and email usage.
A. Applicable Standard for Reviewing Rules10
“In determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is
whether the rule would reasonably tend to chill employees in the exercise of their Section 7
rights.” Hyundai America Shipping Agency, 357 NLRB 860 (2011). “Where the rules are likely
to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an 15
unfair labor practice, even absent evidence of enforcement.” Lafayette Park Hotel, 326 NLRB
824, 825 (1998) (footnote omitted), enfd. 203 F.3d 52 (D.C. Cir. 1999). “In determining whether
a challenged rule is unlawful, the Board must, however, give the rule a reasonable reading. It
must refrain from reading particular phrases in isolation.” Lutheran Heritage Village-Livonia,
343 NLRB 646 (2004).20
If the rule explicitly restricts Section 7 rights, it is unlawful. Id. at 646. 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 25
rights.” Id. at 647. Ambiguous rules are construed against the drafter of the rule. Flex Frac
Logistics, LLC, 358 NLRB 1131, slip op. at 2 (2012), remanded on other grounds, 360 NLRB
No. 120 (2014), enfd. 746 F.3d 205 (5th Cir. 2014).5
Here, none of the rules were promulgated in response to union activity or applied to 30
restrict Section 7 rights. In addition, Respondent presented no evidence regarding any rationale
for these rules. Therefore, all rules are examined to determine whether an employee could
reasonably construe the language to prohibit Section 7 activities. Lily Transportation Corp., 362
NLRB No. 54 (2015).
35
B. Confidentiality
In the handbook’s Section IV A., Employee Conduct Subject to Discharge (GC Exh. 2),
Respondent’s rule provides a non-exclusive list of employee offenses subject to termination.
One of the terminable offenses listed is: “Disclosure of confidential Company information . . . .”40

5 The first Flex Frac decision was issued by a Board panel whose members included two persons
whose appointments to the Board were considered invalid. NLRB v. Noel Canning, 134 S.Ct. 2550
(2014). Before Noel Canning issued, the United States Court of Appeals for the Fifth Circuit enforced the
Board’s Order and no question exists regarding the validity of the court’s judgment. See Lily
Transportation Corp., 362 NLRB No. 54, slip op. at 1, fn. 2 (2015).
JD–36–16
4
This particular rule violates Section 8(a)(1) of the Act. An employer may legitimately
require confidentiality rules in appropriate circumstances. However, the employer must attempt
to minimize the impact of such a rule upon protected activity. Boeing Co., 362 NLRB No. 195,
slip op. at 1 (2015).
This rule does not define what confidentiality is. When the rule fails to present 5
“accompanying language that would tend to restrict its application,” employees reasonably could
assume that protected concerted activities, such as discussing wages, hours and terms and
conditions of employment, are included in the prohibition. Lily Transportation, 362 NLRB No.
54, slip op. at 1 and fn. 3. Nothing in this rule minimizes the impact upon employees’ Section 7
rights and therefore Respondent’s rule violates Section 8(a)(1). 10
C. Solicitation/Distribution Rule
Section IV, Part B, Solicitation and Distribution, states:
No employee solicitation of any kind is permitted in working areas of the 15
Company. In addition, the distribution of any and all non Company literature is
prohibited.
Solicitation and distribution are not the same in the legal sense. Traditionally “solicitation
and distribution of literature or different organizational techniques and their implementation 20
pose[d] different problems both for the employer and for employees.” Stoddard-Quirk Mfg. Co.,
138 NLRB 615, 619 (1962) (emphasis in original). Solicitation is viewed as an oral request;
distribution is considered handing out literature. Id. at 617–618. Because of the difference in
legal concepts, the solicitation sentence is analyzed separately from the distribution sentence.
25
An employee may solicit for Section 7 concerns outside of working hours. Cooper Tire
& Rubber Co. v. NLRB, 957 F.2d 1245, 1249, reh’g denied 968 F.2d 18 (5th Cir. 1992), cert.
denied 506 U.S. 985 (1992). Rules prohibiting solicitation during working time are
presumptively lawful because “. . . that term denotes periods when employees are performing
actual job duties, periods which do not include the employee’s own time such as lunch and break 30
periods.” Our Way, 268 NLRB 394, 394–395 (1983).
An employer may ban solicitation in working areas during working time; however, the
ban cannot be extended to working areas during nonworking time. UPS Supply Chain Solutions,
Inc., 357 NLRB 1295, 1296 (2011). A solicitation rule is presumptively invalid when
solicitation is prohibited during the employee’s own time. Our Way, 268 NLRB at 394.35
Respondent’s no-solicitation rule prohibits solicitation in the working areas of the
company, without regard to whether employees are taking breaks in the area. Because the rule
does not extend to nonworking time in work areas, the solicitation rule is overly broad and
violates Section 8(a)(1). UPS Supply Chain, supra.
40
The distribution portion of the rule also is overly broad. A rule that prohibits distribution
literature on employees’ own time and in nonworking areas is presumptively invalid. Id., citing
TeleTech Holdings, Inc., 333 NLRB 402, 403 (2001). In Trus Joist MacMillan, 341 NLRB 369,
372 (2004), a rule that prohibited distribution of literature in all working areas and all areas of
JD–36–16
5
plant property violated Section 8(a)(1). At this point, Respondent must show that the rule was
communicated or applied the rule to convey “a clear intent to permit distribution of literature in
nonworking areas during nonworking time.” Trus Joist MacMillan, 341 NLRB at 372, citing
Ichikoh Mfg., 312 NLRB 1022 (1993), enfd. 41 F.3d 1507 (6th Cir. 1994).
5
Respondent’s distribution rule prohibits distribution of any literature, at any time, at any
place, unless it is Respondent’s literature. It has no exception for distribution in break areas or
on the employees’ own time. As Respondent provided no evidence of any attempts to clarify
this rule or show it permitted distribution in nonworking areas during nonworking time,
employees could reasonably construe the language to prohibit all permissible distribution of 10
Section 7 materials.
D. Dress Code
Respondent’s Dress Code for Shop Employees, Section V, Part H, includes dress codes 15
separately for shop employees and non-shop employees. However, both dress codes include the
following language:
As per our policy, clothing with words, slogans and/or pictures that may be
offensive to other employees or guests of the company may not be worn. We are 20
all concerned about our team members’ personal comfort while working, but
understandably, we are all concerned about, and must give preference to, personal
safety.
The Dress Code restrictions are impermissibly broad. Under Section 7 of the Act, 25
employees have the right to wear and display union insignia while at work. Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 801–803 (1945). Insignia related to Section 7 rights are
necessarily included. “The test is whether the insignia prohibition reasonably tends to interfere
with the free exercise of employee rights under the Act.” Lily Transportation Corp., 362 NLRB
No. 54, slip op. at 6 (2014), quoting, inter alia, St. Luke’s Hospital, 314 NLRB 434 fn. 4 (1994). 30
When restricting employees’ dress, a rule that limits employees’ Section 7 rights must be
narrowly tailored to the circumstances. Boch Honda, 362 NLRB No. 83, slip op. at 2 (2015).
Respondent has the burden of proof to show that special circumstances permit the restrictions
and that the rule is narrowly tailored to those special circumstances. W San Diego, 348 NLRB 35
372 (2006) (special circumstances demonstrated to limit wearing union pins if in the hotel’s
public areas, but not while in private areas of the property). Circumstances that could justify
dress code restrictions include jeopardizing employee safety, potential damage to machinery or
products, exacerbation of employee conflicts, or unreasonably interfering with the Respondent’s
public image. Lily Transportation, 362 NLRB No. 54, slip op. at 6, and cases cited therein. 40
Although the two dress codes differentiate between office workers and line workers, both
apply the same restrictions on content. Respondent’s rule is directed towards the possibility of
offending someone. Although the rule cites safety concerns, none are apparent from the face of
the rule and Respondent presented no supportive evidence to show such concerns. Respondent45
also does not demonstrate that any conflicts existed between employees or any interference with
Respondent’s image. Respondent presents no information about employees in the public eye,
JD–36–16
6
where a restriction on message might be valid, versus those working in production, where a
restriction on message is likely invalid.
The dress code is not narrowly tailored and is broadly applied. An employee reasonably
would consider that the dress code prohibited messages about a union or other protected 5
concerted statements. The rule therefore is overly broad and violates Section 8(a)(1) of the Act.
Boch Honda, 362 NLRB No. 83, slip op. at 2.
E. Internet/Email Rule
10
Respondent’s internet and email use policy, in relevant part, states:
As the use of the internet and email becomes a great business tool for our
company it can also be a potential threat to the company. It can lead to system
viruses, legal liabilities, confidentiality breaches, lost productivity, and15
network congestion and could cause damage to our reputation. Because of this
we are instituting written corporate rules and guidelines on the use of the
organization’s email and internet systems.
1. Internet use is strictly limited to business during business hours. The20
company will allow you to use the internet when you are not on company time
(before or after work or on your lunch period). However, you are prohibited
from visiting sites which are offensive about race, gender, age, sexual
orientation, pornography, religious or political beliefs, national origin or
disability and downloading data or signing up on websites that would cause25
spam (solicitations) to be sent to our systems.
2. Email use is strictly limited to business use and should always be
written in a professional manner. The company will allow you personal use of
the email system for brief communications between work and your home or in30
the case of ·personal emergencies. You are strictly prohibited from creating or
distributing any offensive, or disruptive messages, including messages
containing offensive comments about race, gender, age, sexual orientation,
pornography, religious or political beliefs, national origin, disability or
copyright infringing material.35
3. Reporting. If you should receive any emails with any of the above
content you should report the matter to your supervisor immediately. You should
also write the alleged act immediately (within 24 hours) and give a copy to the
company President.40
By publishing these rules, Respondent has put in issue whether employees have access to
the internet and email. Respondent did not contend that employees do not have access to the
computer systems. Employee Johnston had access to her personal email during this time.
Johnston also had a company email address. 45
JD–36–16
7
1. Internet rule
Regarding internet access, the test is whether an employee would reasonably interpret the
rule to encompass protected activities. Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip
op. at 6 (2014). I find three particular areas in which employees could not reasonably discern 5
whether their Section 7 rights were undermined. However, the portion of the list addressing
limiting access to offensive sites, including political sites, appears lawful.
First, regarding the unlawful areas, the rule would be confusing to an employee because it
states that employee cannot use the internet on company time, then parenthetically defines non-10
company time as before or after work or during lunch. It says nothing about breaks. The rule
does not identify working time, which is lawful, instead of company time, which is unlawful.
Because an employee reasonably would not know when access to the internet would be
permissible, the rule is overly broad.
15
Secondly, the rule defines “spam” as solicitations. The reference to solicitations is
troublesome. One man’s spam is another man’s updates promoting employees’ Section 7 rights
and encouraging participation in those activities.
Because the term “solicitation” is not defined further, Section 7 information and activities 20
are included as spam. Respondent provided no evidence of special circumstances to support this
restriction. As employees are permitting internet access and Respondent provides no evidence of
special circumstances, the spam restriction and its definition as solicitation are overly broad.
UPMC, 362 NLRB No. 191, slip op. at 4–5 (2015).
25
Thirdly, the internet rule also limits usage by “copyright infringement.” In UPMC, 362
NLRB No. 191, slip op. at 2 fn. 5 and at 25, and cases cited there, provisions that prohibited
employees from using Respondent’s trademarks, or post copyrighted information in documents
containing its name, trademark, or logo, on any personal blogs or other online sites, were
overbroad. The restriction on copyright infringement also violates the Act. 30
The list of offensive sites is otherwise lawful. Respondent cites to Fiesta Hotel Corp.
d/b/a Palms Hotel & Casino, 344 NLRB 1363 (2005). The rule in that case banned employee
conduct that had the effect of being “injurious, offensive, threatening, intimidating, coercing or
interfering with team Members or patrons.” Id. at 1367–1368. That case further provided a 35
reminder not to read the rule without context. I concur. Because the term “offensive” is further
defined by a list that generally does not interfere with Section 7 rights, this particular portion of
the rule did not violate Section 8(a)(1).

2. Email rule40
Email systems usage is not treated as just solicitation or distribution due to their unique
features. It may defy classification as a work or non-work area. Employees who have “rightful”
access to their employer’s email system for work purposes also have the right to use that system
for Section 7 communications during nonworking time. Purple Communications, 361 NLRB 45
No. 126, slip op. at 14 (2014).
JD–36–16
8
To rebut the presumption that employees have a right to access the employer’s email
system during nonworking time, an employer justifies restricting these rights by demonstrating
that special circumstances are necessary to maintain production or discipline. The employer’s
restrictions should be based upon the nature of its business. The restrictions also should be
narrowly tailored to meet the employer’s special circumstances and still balance with employees’5
Section 7 rights. Further, the restriction must be uniform and consistently enforced. Purple
Communications, supra.
Respondent’s limitations upon email usage are overly broad. The limitations give
personal use only for emergencies. An employee would not reasonably know that he could use 10
email during non-working times for Section 7 communications. Respondent presents no special
circumstances to limit use to personal emergencies only. Therefore, the email rule violates
Section 8(a)(1).

3. Reporting requirement15
Because the email and internet sections are unlawful, the reporting requirement also is
unlawful. UPMC, 362 NLRB No. 191, slip op. at 5. In UPMC, the reporting requirement was
even more narrow—limited to solicitation from an email. Because the rules already could
reasonably be interpreted to limit Section 7 activities, requiring employees to report such activity 20
also infringes upon their Section 7 rights and violates Section 8(a)(1). Id.6
IV. Johnston’s Termination and Alleged Section 8(a)(1) Statements
Johnston, an administrative assistant and receptionist, was terminated on August 14. She 25
was supervised by Schweda, the executive assistant who also completed accounts payable and
sometimes filled in as human resources director. Johnston began working for Respondent in
December 2012. Johnston’s duties included sitting at the reception desk, greeting people as they
arrived, answering the telephone and entering data for bills and accounts receivable. She also
maintained a stock of office supplies. 30
A. Johnston in the Middle Between Respondent and Former Employee Nate Barrett
During the spring and summer of 2015, Johnston planned her wedding. She asked
another employee, Nate Barrett, to assist her with the invitations. Barrett worked for Respondent 35
from October 2011 until his resignation, effective May 29. (Tr. 28). At the time he left
employment there, he worked in graphic design and information technology (IT). He was
supervised by Rick Vining. (Tr. 28).
Johnston testified without contradiction that, after Barrett left employment, Vining asked40
her several times if she was still in touch with Barrett. Johnston learned that Barrett had not
received his last paycheck. At some point, Vining told Johnston to text Barrett about the

6 If Respondent promulgates a lawful policy, the reporting requirement would then be lawful.
UMPC, supra, slip op. at 5 fn. 14.
JD–36–16
9
paycheck. Johnston could not recall exactly when Vining told her to text Barrett about his final
check.
Barrett testified without contradiction that Vining repeatedly contacted him in June and
July. The problems with the last paycheck arose because of events on Barrett’s next to last day 5
of work. Barrett maintained that, in 2014, another IT employee told him the salaries and wages
of other employees, including CEO Andronaco and Schweda. On May 24, Barrett told another
employee, Scott Cascaden, about wage information he said he received from another IT
employee in the previous year. The information included Cascaden’s own wages, but Barrett
denied having any documentation.7 Cascaden immediately reported the conversation to his 10
supervisor, who then told Andronaco. That same day, Andronaco called Barrett into his office.
With Vining, Schweda and Plant Manager Colin Cruttenden present, Andronaco questioned him
about whether he had access to the administrative password to obtain such confidential
information. (Tr. 179–180). Barrett denied having any other information, including the
password. Andronaco demanded that he sign an affidavit saying so, but Barrett declined. (Tr. 15
182). When Barrett was no longer employed by Respondent, Vining telephoned him again and
again about the other discussions of wages and asking for an affidavit. Barrett declined to do so.
On July 21, almost 2 months after he left Respondent’s employ, Barrett, by email,
contacted Schweda and Johnston about trying to make arrangements to receive his final 20
paycheck. He requested that the paycheck be mailed to him due to his work schedule. An email
exchange ensued between Schweda and Barrett, but excluded Johnston. Schweda, by email, said
that he needed to come in to the office to sign a release. Barrett replied to Schweda that he
contacted the Michigan Department of Labor, which informed him that he was not required to
sign any documents to receive his final paycheck. Schweda advised Barrett that he violated 25
Respondent’s confidentiality agreement and Respondent had the right to pursue legal action
against him. Schweda again insisted that Barrett needed to come to the office to obtain his check
and Respondent would be flexible in scheduling with him. (GC Exh. 4). Instead of continuing
the discussion with Schweda, on July 21, Barrett filed a final paycheck recovery charge against
Respondent with Michigan’s Labor department, Wage and Hour division. (GC Exh. 5).8 30
On about August 7, Respondent filed a lawsuit and demanded injunctive relief against
Barrett. (GC Exh. 7). The suit maintained that Barrett violated Respondent’s confidentiality
agreement and specified Barrett had wage information for Respondent’s employees.9 Notably,
the suit maintained irreparable harm would come from release of wage information “when 35
disclosed to other employees.” Barrett testified he was served after August 7, but probably no

7 Respondent, using Barrett’s words, says the discussion with Cascaden was “water cooler talk.”
However, Barrett’s terminology does not bind me to that legal conclusion.
8 On July 22, Barrett also filed an unfair labor practice charge, alleging Respondent maintained and
enforced rules that prohibited employees from discussing wages.
9 Barrett filed a second unfair labor practice charge, alleging Respondent’s action was filed in
retaliation for discussing wages. Both charges were withdrawn when the lawsuit was settled and Barrett
signed an affidavit.
JD–36–16
10
later than August 13. He further testified that he “probably” told two people about the suit:
Johnston and another employee, Robert Zurida. 10
B. Johnston Returns from Her Honeymoon and Learns Respondent is Suing Barrett
5
Johnston was married on Friday, July 31. Andronaco and the CFO granted her request to
take off three additional days after her wedding and she returned to work the following
Thursday.
After Johnston returned from her honeymoon and returned to work, Barrett sent Johnston 10
a text message, stating that Respondent was suing him. Respondent’s documentation shows that
on Friday, August 7, Johnston approached Vining, Barrett’s former supervisor, and asked him if
he knew what was happening with Barrett. According to Schweda’s subsequent email, Johnston
apparently told Vining she was upset about the suit, was thinking about quitting, and said she
would call Barrett that night to find out what was happening. (GC Exh. 11). 15
According to Johnston, on about August 12, Vining asked Johnston, while she was
working at the front desk, if she spoke with Barrett. She said she had. According to Johnston,
Vining asked if she knew what was going on with Barrett and Respondent. She said Barrett told
her something and it was above her head. Vining said ok and walked into Andronaco’s office. 20
Johnston also admitted, during cross-examination, that she asked Vining whether she could take
Barrett’s check to him. At some point, Johnston said she thought Barrett was in trouble for
discussing wages. (Tr. 109).
According to Schweda, Vining told her that Johnston was “gossiping.” Schweda’s email25
notes, dated August 18, state:
Vining approached [Johnston] on Monday, August 10th to find out how she was
in contact with Nate. [Johnston] said Nate asked her to meet up with him for
drinks. She was with her mother at the time [on] the phone and her mother 30
advised her NOT to meet up with Nate. Lindsey was no longer mad at Andronaco
Industries and changed her mind about her desire to quit.
(GC Exh. 11).
35
C. Respondent Decides to Terminate Johnston
On August 12 or 13, Schweda and Human Resources Manager Sarver spoke with
Andronaco about reasons to terminate Johnston. In his testimony, Andronaco said that gossiping
was one of the reasons Schweda and Sarver gave him to justify terminating Johnston. 40
Andronaco said other reasons included working on personal items at work, not showing up on

10 General Counsel contends that Respondent’s treatment of Barrett as well as another employee,
Zurida, also shows animus. Zurida is a long-time friend of Barrett who also worked for Respondent until
the same week as Johnston. Zurida testified he was fired for talking about Barrett’s lawsuit, which
Respondent disputes. Without deciding whether Respondent terminated Zurida, I agree with General
Counsel that Respondent’s discussions with Zurida show Respondent was intensely concerned whether
Barrett released information about pay and whether other employees learned of the suit.
JD–36–16
11
time, and absenteeism, although he said these may have not been all the reasons. (Tr. 194).
Schweda’s testimony did not mention that she discussed the termination with Andronaco and
Human Resources Manager Sarver was not called to testify.
Although Sarver and Schweda intended to terminate Johnston at the end of the work day 5
on August 14, other circumstances intervened. Johnston, who was aware she had attendance
issues, asked Sarver if she could leave early because her grandfather was dying. Sarver said she
would check with Schweda because Schweda was her supervisor. Johnston returned to her post
at the front desk. Sarver and Schweda then decided to terminate Johnston earlier in the day so
she could leave. 10
Johnston testified that Sarver called Johnston back to her office. Schweda was present.
According to Johnston, Schweda said that they knew she was talking with Nate Barrett and
“[W]e can’t trust your loyalty with the Company. We’re going to have to let you go.” (Tr. 87).
Schweda stated she “maybe” said something about loyalty and then denied it. Johnston protested 15
that she told Vining that she did not know anything about it and did not want to talk about it at
work.
Sarver then said, “Well, there may be performance-based issues leading up to this as
well.” Johnston denied the problems and pointed out she had just added her husband to her 20
benefits. Neither Schweda nor Sarver said anything. Johnston said, “What do I do now?”
Sarver said she would take her back to the front desk to collect her belongings and walk her to
the time clock.
Schweda testified that, after Johnston came to the office, Schweda started the 25
conversation. Schweda told her that they intended to terminate her at the end of the day, but
because Johnston needed to be with her family, they were terminating her at that time. Schweda
said, “I understand you’ve been gossiping about a lawsuit. That’s not ok. You know, we can’t
trust you. We’ve had trust issues in the past. This just is kind of one more thing.” Johnston
started crying. Schweda said Johnston then asked if it was because of what she said to Rick 30
Vining or because she was friends with Barrett. Sarver said she was not terminated because she
was friends with Nate, but because of consistently bad performance. Schweda testified, because
Johnston was crying, she never reached the performance issues, including that Johnston was
working on personal work during working time. Schweda also testified that she maybe used a
term like “disloyal” but then denied it. (Tr. 154). However, her email report of the termination, 35
dated August 18, reported that, because of Johnston’s involvement with Barrett’s suit:
[S]he lost our trust and we didn’t feel that she was loyal to the company. We felt
that she was acting as an advocate for Nate and attempting to get information out
of Rick Vining to pass along to Nate. Lindsey should have contacted a supervisor 40
and/or Ron Andronaco when Nate contacted her regarding this issue, rather than
trying to get information from Rick Vining.
(GC Exh. 11).
45
JD–36–16
12
D. Respondent Contends Johnston Was Terminated Due to Performance Issues
Schweda testified that she had been trying to get Johnston fired for a year due to
attendance and performance issues. 5
Johnston had attendance problems in 2014 and 2015. For example, Johnston did not
come to work because, post-tornado, she had to clean up the flooded basement and caved-in roof
of the house where she lived and the following day could not go to work because the cars were
blocked. On July 8, 2014, Schweda, by email, documented that she discussed the attendance 10
issue with Johnston. Schweda concluded: “This meeting was not to tell Lindsey it was her last
straw. It was to reiterate how important her position is and to ask that she makes being at work
more of a priority.” (R. Exh. 1).
In January 2015, Schweda started a list of brief anecdotal notes on Johnston’s conduct. 15
The first anecdotal note reflects that Johnston did not punch out on January 6. Johnston received
no discipline.
The attendance and performance concerns were noted in Johnston’s performance
reviews. For her last performance appraisal, dated February 19, Schweda marked Johnson as 20
“poor” on willingness to take more responsibility as well as reliability. The reliability marks
were due to attendance problems. Schweda rated Johnston as average in skill in planning and
organizing, related to personal work, communication and adeptness at analyzing facts and
problem-solving. She received “exceeded” rating for possessing the knowledge and skill to
perform work, which included a comment about “great personality.” She also had “exceeded”25
ratings for keeping work area clean and “consistently produces product that meets the company’s
high quality standards.” None of the categories were marked at the highest level, outstanding.
At the conclusion of the appraisal, Schweda noted that Johnston needed to improve her
attendance and “no personal matters on business time.” (R. Exh. 5).
30
In late winter or early spring of 2015, Respondent permitted Johnston to use leave for
family issues without any consequences to her attendance requirements. On May 1, the anecdotal
notes reflect that Schweda gave Johnston an email “friendly reminder” about forgetting to clock
in and out.
35
In May, Andronaco gave Johnston an additional raise. Andronaco called Johnston into
his office after discovering her resume on the internet. He asked what the company could do to
keep her there. She replied that she had no further responsibilities coming to her and she thought
she had hit a plateau. Andronaco told her to let him know what he could do. After lunch,
Johnston returned to Andronaco’s office and asked for a raise, which she received. Her pay went 40
from $13.00 to $14.50 per hour. (Tr. 77–78; GC Exh. 10).
Schweda testified that she told Andronaco she did not agree with the pay raise. She
further testified that Andronaco said he gave the raise because, if Johnston left, Schweda would
need to perform additional duties. 45
JD–36–16
13
After she received her raise in May, Johnston also received discussions about her
conduct. On June 5, she received a warning for failing to clock in. (R. Exh. 2). On another
occasion, Johnston parked her car by the front entrance, ran in and clocked in, and then parked
her car. Plant Manager Cruttenden observed Johnston and discussed her conduct with her. Had
Johnston parked in the first place where she should have before she clocked in, she would have 5
been tardy. Schweda made an anecdotal note of the incident.
Within two weeks before her wedding, Johnston had two visitors at her reception area.
The first visitor, on July 17, was a former employee who Johnston hired to be her wedding
videographer. Plant Manager Cruttendon recognized the former employee at Johnston’s 10
reception desk and estimated he was present for 20 to 30 minutes. On the same day, Cruttendon
told Johnston that she needed to limit her non-work business and get back to work. Schweda
entered a note to her anecdotal list.
On July 23, Cruttendon and Schweda saw that Johnston had another guest at her 15
reception desk for approximately 30 minutes. Johnston said the visitor was her sister-in-law, who
was trying to sell cleaning services.
On July 28, Schweda spoke with Johnston about have more than one personal visitor per
week and clocking in early. Regarding clocking in early, Johnston received 30 minutes of 20
unapproved overtime. (R. Exh. 3).11 However, Schweda did not discipline Johnston.
Respondent also contends that Johnston’s conduct of August 12 was the proverbial straw
that broke the camel’s back. On August 12, Johnston worked on a single-spaced document on
her computer screen in the computer program Word. The letter, to a bridal dress company, 25
discussed Johnston’s problems with receiving her wedding dresses and inconveniences to herself
and the bridesmaids. Johnston contended that she wrote the letter on about August 11, emailed
the letter to her mother on August 11 or during her lunch hour on August 12. Her mother
supposedly emailed back the letter with a few changes. Johnston said she saved her letter to the
work computer on August 12. 30
Walking by Johnston’s work area several times during the day to deal with invoices and
paperwork related to her position, Schweda saw a long document on Johnston’s computer screen.
Although Schweda could not precisely discern what the document was, she noticed that Johnston
was working on the letter instead of her assignment, matching purchase orders to a stack of 35
invoices. Schweda spoke with Cheryl Sarver, who was new to the organization. They agreed
that the proper course of action was to terminate Johnston on August 13. Schweda testified that
the letter, which she did not see until after Johnston was terminated, was the “last straw.”
On the day of hearing, Respondent instructed Vining to search Johnston’s Word and 40
email files. Vining then presented at hearing documents that reflect that Johnston’s mother did
not send an email to her that day. It also reflects that, on August 12, the bridal dress company
sent Johnston an email asking for a recommendation. (R. Exh. 11).

11 Johnston hedged on whether Schweda spoke with her on July 28. Johnston then testified she was
never told that overtime needed to be pre-approved and she did not think a half-hour of overtime would
be an issue because of her attendance problems. (Tr. 115–116). I credit Schweda and the email.
JD–36–16
14
E. Analysis
In examining the situation here, I will first discuss the credibility of witnesses, the alleged 5
Section 8(a)(1) violations, and then Johnston’s termination itself.
1. Credibility of the witnesses
Johnston denied that Schweda was her supervisor. Regarding the four-page letter, 10
Johnston testified it came from her mother, almost completed, and she worked very little on it
over the two days. However, the documents Respondent provided showed Johnston received the
letter from the bridal company and not from her mother. The computer history of documents
also showed that Johnston made some changes in the letter, but the search does not show what
changes were made. 15
On the other hand, Schweda testified credibly about the termination interview in which
she first said Johnston was “gossiping.” Schweda’s notes in GC Exh. 11 all turn upon Johnston’s
interest in Respondent’s suit against Barrett as well as Respondent’s interest in what Johnston
knew.20
I also credit that Schweda sincerely wanted to terminate Johnston all year. Her tone of
voice was consistent with her frustration with Johnston’s conduct. Respondent did not ask
Vining any questions about his role in reporting his conversations with Johnston to Andronaco
and I must assume that his testimony would not support Respondent’s cause. 25
General Counsel points out that Schweda’s documentation regarding the August 7
conversation between Vining and Johnston is not likely as the suit was not filed until August 7
and Barrett received service sometime thereafter. In addition, no one testified about that
conversation and that, as a result, the conversation likely did not take place. (GC Br. at 8, fn. 5). 30
Vining, who was called to discuss other issues, was not asked anything about speaking with
Barrett or Johnston. I agree that the conversation was unlikely, yet the documentation
demonstrates animus, as discussed below.

Andronaco testified that he was concerned that Barrett had access to confidential 35
information but unconcerned about the wage information. Andronaco’s voice became a little
steely when he denied that the lawsuit was related to discussion of wages. Andronaco’s denial is
also undermined by the contents of the pleadings in Respondent’s suit, which discussed for about
a page that the confidential information allegedly accessed included wages, salaries and bonuses.
40
I cannot credit Andronaco regarding the discussion with Schweda and the list of reasons
for terminating Johnston. First, Schweda intimated that she and Sarver were solely responsible
for deciding to terminate Johnston, but Andronaco himself said they presented reasons for
termination. As Vining did not testify regarding his conversations with Johnston, he did not deny
that immediately after questioning Johnston, he went to Andronaco’s office. Further, despite 45
Schweda’s protest about Johnston’s performance problems, Andronaco gave Johnston a raise
only 3 months before her termination. However, when the lawsuit coincidentally was at issue, he
JD–36–16
15
agreed to terminate Johnston. In contradiction to the testimony provided by Schweda and
Andronaco, Schweda’s email notes, dated August 18, also only discuss what was relevant to
Johnston’s involvement with Barrett’s suit and nothing about her performance issues.
2. Analysis of alleged Section 8(a)(1) violations: interrogation and disloyalty5
Respondent contends that the alleged interrogation was not included in the charge and
therefore not a matter of the hearing. General Counsel contends that the statement is included in
the facts leading up to Johnston’s termination, making the statement closely related to the
termination and therefore properly included. 10
a. Section 8(a)(1) allegations are properly included in the complaint
Respondent contends the Section 8(a)(1) allegations are not properly included in the
complaint because they were not included in the charge. Respondent relies upon Nickles Bakery 15
of Indiana, 296 NLRB 927 (1989). To be properly litigated, the complaint allegation should “be
related to and arise out of the same situation as the conduct alleged to be unlawful in the
underlying charge, although it need not be limited to the specific violations alleged in the
charge.” Id. To be considered if not specifically in the charge, Section 8(a)(1) complaint
allegations must be closely related to the allegations or subject matter in the underlying charge. 20
Id. at 929.
The facts here are closely related to the allegations and subject matter of Johnston’s
termination. The alleged interrogation led up to Johnston’s termination; the statement of
disloyalty occurred during the termination itself. Both are closely related and part of the subject 25
matter of the termination. Therefore, I will determine whether these allegations violated Section
8(a)(1).
b. Interrogation
30
Respondent’s own documentation (GC Exh. 11) shows Vining’s alleged conversation for
August 10 with Johnston. Johnston reported a somewhat similar conversation on August 12. I
rely upon Respondent’s presentations of Vining’s August 10 questioning of Johnston, rather than
Johnston’s version. Johnston’s version was somewhat vague.
35
Questioning an employee turns into a Section 8(a)(1) interrogation violation when “under
all of the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with”
Section 7 rights. Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom. HERE Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Among the factors that may be considered are the
background of the questioning, the position of the questioner within the employer’s hierarchy, 40
the place and method of questioning, the nature of the information sought, and the truthfulness of
the employee’s reply. See Holiday Inn-JFK Airport, 348 NLRB 1, 4 (2006). Other factors
include whether the employer gives assurances against reprisal or provides a reason for
questioning the employee. Id. See generally Bourne Co. v. NLRB, 332 F.2d 47, 48 (2nd Cir.
1964) (setting forth relevant factors for determining if questioning is coercive). Respondent 45
contends that Johnston did not find the conversation coercive and therefore the questioning was
lawful. However, the standard is not subjective but objective.
JD–36–16
16
The background of this particular questioning is part of a series in which Vining
questioned Johnston about whether she was still in touch with Barrett throughout the summer of
2015. Vining was not Johnston’s own supervisor. Vining, as usual, questioned Johnston at her
work station. The information Vining sought was about “how” Johnston was keeping in touch 5
with Barrett. Johnston replied honestly, particularly regarding whether she intended to meet
Barrett for drinks. Vining apparently gave no reasons for his questioning and gave no assurances
against reprisal. Although Respondent’s failure to give reasons or assurances support finding
coercive interrogation, the remainder of the factors support a finding that it was not coercive. I
therefore recommend dismissal of the allegation of interrogation. 10
c. The accusation of disloyalty in Johnston’s termination meeting
I find that the accusation of disloyalty violated Section 8(a)(1). Schweda vascillated on
whether she called Johnston “disloyal” during the termination meeting. I do not credit Schweda’s 15
ultimate denial.
Statements equating protected activity with disloyalty are generally evaluated with an
employer’s unlawful interference and coercion related to protected rights. Carrier Corp., 336
NLRB 1141, 1148 (2001) and cases cited therein; Ferguson-Williams, Inc., 322 NLRB 695, 699
(1996). As discussed in more detail below, I find that Johnston was engaged in protected 20
concerted activities, or perceived to be so, and stated that someone is disloyal for doing so
violates the Act.
3. Analysis of Johnston’s termination
a. Parties’ positions25
General Counsel contends that Respondent terminated Johnston as a pre-emptive strike,
consistent with Parexel Int’l, LLC, 356 NLRB 516 (2011). Respondent knew about Johnston’s
relationship with Barrett and used her as a pawn to retaliate against Barrett and remove “a
potential source of future protected concerted activity.” (GC Br. at 15, citing Amptech, Inc., 341 30
NLRB 1131, 1133 (2004), Dawson Carbide Industries, 273 NLRB 382, 389 (1984), and
Parexel, supra).
Respondent contends that Barrett was not engaged in protected activities and instead was
sued for possible conversion of confidential materials; his activities with Johnston therefore were 35
not protected. Respondent characterizes the relationships as a game of leap frog because Barrett
was not involved in protected concerted activity and Respondent’s focus was that he had
JD–36–16
17
unauthorized access to the computer system, not because Barrett told Cascaden he knew about
wages.12
Regarding Respondent’s concerns that a confidential employee possibly released
confidential information, which was not concerted activity, Respondent cites Joseph Schlitz 5
Brewing Co., 211 NLRB 799 (1974). It also references Flex Frac Logistics, LLC, 360 NLRB
No. 120 (2014). Respondent further maintains that Johnston historically was a poor worker and
she was ultimately terminated due to her activities of August 12—working on a personal letter.
b. Applicable law10
Terminating an employee for protected concerted activity is unlawful. Citizens
Investment Services Corp. v. NLRB, 430 F.3d 1195, 1197 (D.C. Cir. 2005), enfg. 342 NLRB 316
(2004). Where arguably more than one motive exists for discharge, the mixed motive analysis is
applied. The analysis is set forth in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 15
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel must first demonstrate, by a preponderance of the evidence, that the worker’s protected
conduct was a motivating factor in the adverse action. The General Counsel satisfies this initial
burden by showing: (1) the individual’s protected activity; (2) employer knowledge of such20
activity; and (3) animus. If the General Counsel meets his initial burden, the burden shifts to the
employer to prove that it would have taken the adverse action, even absent the protected activity.
See, e.g., Mesker Door, 357 NLRB 591, 592 (2011). The employer cannot meet its burden,
however, merely by showing that it had a legitimate reason for its action; rather, it must
demonstrate that it would have taken the same action in the absence of the protected conduct. 25
Bruce Packing Co., 357 NLRB 1084, 1086–1087 (2011); JCR Hotel, Inc. v. NLRB, 342 F.3d
837, 841 (8th Cir. 2003).
If the employer’s proffered reasons are pretextual (i.e., either false or not actually relied
on), the employer fails to show that it would have taken the same action for those reasons 30
regardless of the protected conduct. Metropolitan Transportation Services, 351 NLRB 657, 659
(2007). An employer fails to meet its rebuttal burden when the evidence shows that it tolerated
an employee’s shortcomings until the employee engaged in protected activity. Global Recruiters
of Winfield, 363 NLRB No. 68 (2015) (Hirozawa, concurrence), citing Diversified Bank
Installations, 324 NLRB 457, 476 (1997).35
c. Prima facie case of termination for protected concerted activity
I find that Johnston was engaged in protected concerted activity and even if she was not,
Respondent perceived that she was engaged in protected concerted activity. When an employer 40

12 Respondent contends that because the complaint did not specify General Counsel’s theory about
Johnston’s protected concerted activity, particularly her relationship with Barrett, it cannot be litigated.
Respondent primarily relies upon two cases: George Banta v. NLRB, 686 F.2d 10, 17 (D.C. Cir. 1982),
cert. denied 460 U.S. 1082 (1983); and, United Parcel Service Inc. v. NLRB, 706 F.2d 972 (3rd Cir.
1983). The standard is stated in Banta: The Board is precluded from making findings and orders if the
alleged violations are not in the complaint “or litigat[ed] in the subsequent hearing.” Id. at 17 (internal
quotes and citations omitted). The “Barrett connection” was fully litigated in the hearing.
JD–36–16
18
takes an adverse action based upon its belief, even a mistaken belief, that an employee was
engaged in protected concerted activity, it also violates Section 8(a)(1). Parexel Int’l, 356
NLRB 516, 519 (2011) and cases cited; also see NLRB v. RELCO Locomotives, Inc., 734 F.3d
764 (8th Cir. 2013).
Employee activity is protected under Section 7 of the Act when it is both concerted and 5
for the purpose of mutual aid or protection. Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op. at 3 (2014); Holling Press, Inc., 343 NLRB 301, 302 (2004). Although these
elements are closely related, they are analytically distinct. Fresh & Easy Neighborhood Market,
supra.
i. Concerted activity10
The Act protects discussions between two or more employees concerning their terms and
conditions of employment. A conversation constitutes concerted activity when “engaged in with
the object of initiating or inducing or preparing for group action or [when] it [has] some relation
to group action in the interest of the employees.” Meyers Industries (Meyers II), 281 NLRB 882,
887 (1986) (quoting Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3rd Cir. 1964)), 15
enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
The question of whether an employee has engaged in concerted activity is a factual one
based on the totality of the circumstances. National Specialties Installations, 344 NLRB 191,
196 (2005). Also see, e.g., Ewing v. NLRB, 861 F.2d 353 (2d Cir. 1988). Concertedness is
analyzed under an objective standard. Fresh & Easy Neighborhood Market, 361 NLRB No. 12, 20
slip op. at 4. An employee’s subjective motivation for taking action is not relevant to whether
that action was concerted. Id. Employees act in a concerted fashion for a variety of reasons,
some altruistic and some selfish. Id., citing Circle K Corp., 305 NLRB 932, 933 (1991), enfd.
mem. 989 F.2d 498 (6th Cir. 1993). Solicited employees do not have to share an interest in the
matter raised by the soliciting employee for the activity to be concerted. Id. at 6, citing 25
Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964), Circle K Corp., 305
NLRB at 933; Whittaker Corp., 289 NLRB 933, 934 (1988); and El Gran Combo, 284 NLRB
1115, 1117 (1987) enfd. 853 F.2d 996 (1st Cir. 1988). Further, the concerted nature of an
employee’s complaint is not dependent on the merit of the complaint. Id., citing Spinoza, Inc.,
199 NLRB 525, 525 (1972), enfd. 478 F.2d 1401 (5th Cir. 1973).30
Contemplation of group action is not required in all circumstances. For example, it need
not be part of the conversation to invoke the Act’s protection when the discussion is about
wages. See, e.g., Trayco of S.C., Inc., 297 NLRB 630, 634–635 (1990), enf. denied mem. 927
F.2d 597 (4th Cir. 1991). Indeed, the Board stated that wage discussions are “inherently
concerted.” See Automatic Screw Products Co., 306 NLRB 1072, 1072 (1992), enfd. mem. 977 35
F.2d 582 (6th Cir. 1992). Because wages are a “vital term and condition of employment” and the
“grist on which concerted activity feeds,” discussions of wages are often preliminary to
organizing or other action for mutual aid or protection. Aroostook County Regional Ophalmology
Center, 317 NLRB 218, 220 (1995), enf. denied in part on other grounds, 81 F.3d 209, 214 (D.C.
Cir. 1996); see also Triana Industries, 245 NLRB 1258, 1258 (1979) (discussion of wages “is 40
clearly concerted activity”).
JD–36–16
19
The activity between Barrett and Johnston was concerted. As noted in Fresh and Easy
Neighborhood Market, 361 NLRB No. 12, slip op at 6:
“[M]ak[ing] common cause with a fellow workman over his separate grievance”
is a hallmark of such solidarity, even if “only one of them . . . . has any immediate
stake in the outcome.” NLRB v. Peter Callier Kohler Swiss Chocolates, Co., 130 5
F.2d 503, 505 (2nd Cir. 1942). By soliciting assistance from coworkers to raise
his issues to management an employee is requesting that his coworkers exercise
vigilance against the employer’s perceived unjust practices. See El Gran Combo
de Puerto Rico v. NLRB, 853 F.2d 996, 1005 fn. 4 (1st Cir. 1988), quoting J.
Weingerten, 420 U.S. at 260–261. The solicited employees have an interest in 10
helping the aggrieved individual—even if the individual alone has an immediate
stake in the outcome—because “next time it could be one of them that is the
victim.” Id. “An injury to one is an injury to all” is one of the oldest maxims in
the American labor lexicon.
15
A former employee, such as Barrett, is still considered an employee under Section 2(3) of
the Act and retains the full protection of the Act. Redwood Empire, Inc., 296 NLRB 369, 391
(1989); Little Rock Crate Co., 227 NLRB 1406 (1977). Section 2(3) of the Act defines an
employee as “any employee, and shall not be limited to the employees of a particular employer,
unless this Act explicitly states otherwise, and shall any individual whose work has ceased as a 20
consequence of, or in connection with, any current labor dispute or because of any unfair labor
practice, and who has not obtained any other regular and substantially equivalent employment . .
. .”
An employee is a member of the working class generally, which includes former
employees of an employer. Thomas Steel Co., 281 NLRB 389, 392 (1986), citing Little Rock 25
Crate Co., supra. Employees are not protected merely for activity within the scope of their
employment relationship, but may engage in other activities for mutual aid or protection. Eastex,
Inc. v. NLRB, 437 U.S. 556 (1978). Although Barrett was employed at the time Respondent filed
suit against him, the language of the Section 2(3) does not exclude Barrett from the definition.
Because Barrett and Johnston both fall within the definition of employee, their discussions about 30
the suit were concerted.
ii. Protected activity
The concerted activity was protected, or at least perceived so by Respondent. The
terminating offense is Johnston’s involvement with Respondent’s lawsuit against Barrett.
Mohave Elec. Co-op., Inc. v. NLRB, 206 F.3d 1183 (D.C. Cir. 2000), enfg. 327 NLRB 13 (1998), 35
is persuasive. Employees filed against their employer a civil suit regarding safety concerns. The
employer contended the employees were disloyal by filing suit. The court, affirming the Board,
found the employees were engaged in protected concerted activity in filing a civil action.
Mohave, 206 F.3d at 1189–1190.
40
Although the suit here was filed by Respondent, Respondent believed Johnston was
assisting Barrett in defending his suit. However, Respondent states its focus on Barrett was due
to “the potential that he had unauthorized access to confidential data.” (R. Br. at 14).
Respondent’s claim that Barrett was not involved with a protected issue rings hollow when the
JD–36–16
20
lawsuit maintains he potentially had information about wages and Barrett already denied any
personal access to such information. As previously noted, discussions about wages are
inherently concerted. Ironically, Respondent was able to pull information from its computers on
the day of hearing about Johnston’s activities, but never presented any information about
Barrett’s alleged access. 5
The actions were also concerted as Respondent might similarly target Johnston or another
employee in a suit. See generally Fresh and Easy Neighborhood Market, supra.13 Surely
employees can join together “for mutual aid and protection” to defend against an employer’s suit
against an employee regarding terms and conditions of employment, such as allegedly discussing 10
wages, as much as filing suit against an employer.
Respondent specifically cited two cases to support its position. In examining Schlitz, 211
NLRB 799, the case is differentiated on its facts. The individual who was allegedly terminated
under Section 8(a)(3) and (1) was a secretary-receptionist. The Board agreed with the employer 15
that the individual was unsuitable for the position because she screened phone calls and
questioned whether she tried to obtain confidential information about labor relations matters. Id.
In comparison, Johnston did not screen any calls and only had conversation with Vining, who
apparently answered no questions but questioned her. Respondent’s notes show that it believed
Johnston was trying to find out more information from Vining about Barrett’s suit. However, 20
Respondent’s evidence does not show how Johnston attempted to obtain information to pass
along to Barrett. The notes do not reflect any access to confidential information. (GC Exh. 11).
Schweda characterized Johnston’s involvement with the lawsuit against Barrett as “gossiping,”
but said nothing about trying to obtain confidential information.
25
To support its position that Johnston was correctly terminated, Respondent also cited
Flex Frac Logistics, LLC, 360 NLRB No 120 (2014). Pursuant to an analysis of the employee’s
actions, the administrative law judge found and the Board affirmed that the employee’s
termination did not violate the Act. However, the analysis was based upon whether the
discipline was issued for a violation of an unlawfully overbroad rule. Id., citing Contintenal 30
Group, 357 NLRB 409 (2011). The terminated employee disclosed confidential information
about client rates. However, Johnston did not release any confidential information; discussing
Respondent’s suit against Barrett was not apparently confidential as it was filed openly in a state
court and Vining brought up the issue at least once.
35
iii. Knowledge and animus
The facts also demonstrate that Respondent had both knowledge and animus towards the
protected concerted activities. Respondent knew much about Johnston’s relationship, and
particularly about her involvement with the lawsuit. Vining repeatedly asked Johnston about 40
trying to get in touch with Barrett to give an affidavit. When Johnston told Vining she had
talked with Barrett about Respondent’s suit against him and asked him questions, Respondent
assumed that Johnston was acting as Barrett’s advocate within the company.

13 Also see Wynn Las Vegas, LLC, 358 NLRB 674, 679–680 (2012) (employees joining together to
pay for litigation costs of another employee was protected concerted activity).
JD–36–16
21
Animus specifically directed towards Johnston is apparent. Respondent provided specific
reasons for terminating Johnston: Schweda told Johnston her loyalty was in question for talking
with Barrett; and Schweda’s August 18 email, which described only Respondent’s reasons for
terminating Schweda as possibly advocating for Barrett.
5
Timing also supports finding animus. Respondent tolerated alleged poor performance for
well over a year. However, when it learned of Johnston’s involvement with Barrett about the
lawsuit, Respondent decided to terminate her within five days. Alternative Entertainment, 363
NLRB No. 131, slip op. at 10 (2016); Nu Dawn Homes, 289 NLRB 554, 558 (1988).
10
Shifting defenses or reasons for an employer’s adverse employment action are persuasive
evidence of discriminatory motive; it also serves as evidence of pretext. Lucky Cab Co., 360
NLRB No. 43, slip op. at 4 (2014); Naomi Knitting Plant, A Division of Andrex Industries Corp.,
328 NLRB 1279, 1283 (1999), citing York Products, Inc. d/b/a Mastercraft Casket Co., 289
NLRB 1414, 1420 (1988), enfd. 881 F.2d 542 (8th Cir. 1989). The reasons for termination15
offered at trial differed from what was set forth in the discharge conversation with Johnston and
what Schweda set forth in her August 18 email. City Stationery, Inc., 340 NLRB 523, 524
(2003). This shift in explanation is evidence of an unlawful motivation.
General Counsel has sustained the burden of showing that protected concerted activity 20
was a motivating factor in Respondent’s decision to terminate Johnston. The burden now shifts
to Respondent to show, by a preponderance of evidence, it would have terminated Johnston in
the absence of her protected concerted activity. Alternative Entertainment, 363 NLRB No. 131,
slip op. at 9–10.
25
iv. Analysis of Respondent’s reasons for terminating Johnston
I find that Respondent’s explanations for terminating Johnston are pretextual. Three
areas point to this conclusion: Respondent’s summary of events leading to the termination,
which serves as an admission and a shifting defense; minimal discipline for Johnston’s long-term 30
performance issues; and lastly, Respondent’s ultimate failure to conduct a meaningful
investigation, which includes failure to talk with Johnston, about the letter.
Respondent’s own reports about Johnston’s termination refer only to her relationship to
Barrett and nothing about her alleged performance issues. (GC Exh. 18). As previously noted, 35
Schweda’s August 18 email report of Johnston’s termination says nothing about terminating
Johnston for working on a long document at her desk or her history of performance issues.
Although Sarver mentioned Johnston’s performance during the termination discussion, it was
lost to Schweda’s subsequent documentation, which also demonstrated its lack of importance. In
addition, the August 18 email discusses events preceding August 12, the date Respondent 40
contends that Johnston started working on the bridal letter. I therefore find that Respondent’s
true reason was stated in the August 18 email report, which makes no mention of performance
issues. Baker Elec., 317 NLRB 335, 339 (1995), enfd. 105 F.3d 647 (1997), cert. denied 522
U.S. 1046 (1998). As previously noted with animus, the shift in Respondent’s reasons also show
pretext. 45
JD–36–16
22
Respondent also points to Johnston’s historically poor performance, culminating with the
August 12 letter, as the reason for termination. The record reflects that Respondent talked to
Johnston about her troublesome behaviors but gave little discipline for it. Instead it gave her a
$1.50 per hour raise in May, about 3 months before termination. Respondent’s minimal
treatment of her alleged misconduct and the raise demonstrate Respondent did not find the 5
behaviors as troublesome as it claims; instead, Respondent had a high tolerance for Johnston’s
attendance and performance issues. Phillips Petroleum Co., 339 NLRB 916, 919 (2003).
Respondent failed to conduct a meaningful investigation and to give Johnston an
opportunity to explain, both of which demonstrate discriminatory intent. Ozburn-Hessey 10
Logistics, LLC v. NLRB, 609 Fed. Appx. 656, 658 (D.C. Cir. 2015), enfg. 357 NLRB 1632
(2011); K&M Electronics, 283 NLRB 279, 291 fn. 45 (1987). Regarding the alleged conduct on
August 12, Respondent conducted a late investigation into what Johnston was doing at her desk.
First, Schweda did not actually see the document in question until after Johnston was terminated.
In addition, Respondent obtained the letter’s document and email history on the day of hearing. 15
Respondent’s investigation demonstrates that Johnston was likely working on the letter during
working time. However, the computer “forensics” presented at hearing instead demonstrate that,
on August 12 and 13, Respondent was not sure of what Johnston was doing on her computer. It
also shows Respondent did not perform much of an investigation, if any, into the letter blamed as
Respondent’s last straw with Johnston. Respondent provided no explanation for waiting 7 20
months to make an investigation of Johnston’s document history. Neither Schweda nor Sarver
asked Johnston what she was doing or redirected her to perform her work. Respondent’s reliance
upon the August 12 bridal dress letter became an afterthought for Respondent’s termination,
rather than the true reason. Signature Flight Support, 333 NLRB 1250, 1250–1251 (2001), affd.
31 Fed.Appx. 931 (11th Cir. 2002). 25
Because of these pretexts, Respondent does not prove that it would have terminated
Johnston regardless of her protected concerted activities.
d. Conclusion regarding Johnston’s termination30
I find that Johnston was terminated for her protected concerted activity. The protected
concerted activity is her involvement with former employee Barrett and discussions regarding
Respondent’s lawsuit, involving potential disclosure of wages. Respondent believed Johnston
was acting as Barrett’s advocate and found this conduct “disloyal.” Respondent’s stated reason 35
for termination, Johnston’s poor performance, is pretextual: Respondent shifted from the
discussions with Barrett as the sole reason mentioned for termination to performance;
Respondent failed to conduct a timely investigation into the last action of alleged poor
performance and gave little discipline for the performance issues it identified. Therefore,
Johnston’s termination violated Section 8(a)(1) of the Act.40
CONCLUSIONS OF LAW
1. Respondent Andronaco, Inc. d/b/a Andronaco Industries, is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.45
2. Respondent admits, and I find, that the following persons are supervisors within the
JD–36–16
23
meaning of Section 2(11) and/or agents within the meaning of Section 2(13):
Ron Andronaco CEO and President
Scott Palmettier Chief Financial Officer
Colin Cruttenden Plant Manager5
Cheryl Sarver Human Resources Director
Kaila Schweda Executive Assistant
Rick Vining I/T Supervisor
3. Respondent violated Section 8(a)(1) by maintaining the following overly broad rules in 10
its handbook:
a. Confidentiality;
b. Solicitation/Distribution;
c. Dress Code; and,15
d. Internet/Email and Reporting requirements.
4. Respondent violated Section 8(a)(1) when it told Lindsey Ball Johnston that she was
disloyal for her protected concerted activities or its perception that she engaged in protected
concerted activities.20
5. Respondent violated Section 8(a)(1) by terminating Lindsey Ball Johnston for protected
concerted activities and its perception that she was engaged in protected concerted activities.
6. Respondent did not violate the Act in any other manner alleged in the complaint. 25
REMEDY
Pursuant to Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in relevant part 475
F.3d 369 (D.C. Cir. 2007), Respondent may comply with the Order by rescinding the unlawful 30
provision and republishing its employee handbook without it. However, republishing the
handbook could be costly. Accordingly, the Respondent may supply the employees either with a
handbook insert stating that the unlawful rule has been rescinded, or with a new and lawfully
worded rule on adhesive backing that will cover the unlawfully broad rule, until it republishes
the handbook either without the unlawful provision or with a lawfully-worded rule in its stead. 35
Any copies of the handbook that are printed with the unlawful rule must include the insert before
being distributed to employees. See 2 Sisters Food Group, 357 NLRB 1816, slip op. at 8 fn. 32
(2011); Guardsmark, 344 NLRB at 812 fn. 8.
Respondent shall make whole Lindsey Ball Johnston for any losses, earnings, and other 40
benefits that she suffered as a result of the unlawful termination. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Respondent shall compensate Johnston for any adverse tax
consequences of receiving a lump-sum backpay award. Don Chavas, LLC d/b/a Tortillas Don 45
Chavas, 361 NLRB No. 10 (2014).
JD–36–16
24
Additionally, in accordance with the Board’s decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), Respondent shall be ordered, within 21 days of the dates the
amounts of backpay are fixed, either by agreement or Board order, to submit and file the
appropriate documentation allocating the backpay awards to the appropriate calendar quarters or
periods (reports allocating backpay) with the Regional Director. Respondent will be required5
to allocate backpay to the appropriate calendar years only. The Regional Director then will
assume responsibility for transmission of the reports to the Social Security Administration at
appropriate times and in the appropriate manner.
General Counsel also seeks an order requiring that the Respondent reimburse Johnston 10
for out-of-pocket expenses she may have incurred while searching for work regardless of
whether she received interim earnings for a particular quarter. Discriminatees are entitled to
reimbursement for expenses incurred in their search for interim employment. However, at
present, Board law considers such expenses as an offset to a discriminatee’s interim earnings,
rather than calculating them separately. West Texas Utilities Co., 109 NLRB 936, 939 fn. 3 15
(1954). I am obligated to follow existing Board precedent in resolving the issues present in this
case. Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749
fn. 14 (1984). Accordingly, I shall deny General Counsel’s request for this additional remedy of
expenses incurred while searching for work.
20
ORDER
Respondent Andronaco, Inc. d/b/a Andronaco Industries, its officers, agents, successors,
and assigns shall:
25
1. Cease and desist from:
a. Maintaining a confidentiality agreement that prohibits or may reasonably be read
to prohibit employees from disclosing information regarding wages, hours, or other terms and
conditions of employment.30
b. Maintaining an overly broad no-solicitation rule prohibiting employees from
engaging in protected solicitation during non-work time in work areas.
c. Maintaining an overly broad no-distribution rule prohibiting employees from 35
engaging in protected distribution during nonworking time and in nonworking areas and
permitting only distribution of Respondent’s literature.
d. Maintaining an overly broad dress code policy prohibiting employees from
wearing clothes or insignia that display a protected message.40
e. Maintaining an overly broad internet rule that has no restrictions regarding place
and time, “copyright infringement,” and defines “spam” as solicitation;
f. Maintaining an overly broad email rule;45
g. Maintaining an unlawful reporting requirement for internet and email use;
JD–36–16
25
h. Threatening employees that they are disloyal for participating in protected
concerted activities;
i. Terminating employees for protected concerted activities; and,5
j. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:10
a. Within 14 days of the Board’s Order, revise or rescind the following policies:
i. Confidentiality;
ii. Solicitation/distribution;15
iii. Dress code, to the extent that it limits “offensive” messages; and,
iv. Email/Internet and its reporting requirements.
b. Furnish all current employees with inserts for the current employee handbook that
(1) advise that the unlawful rule has been rescinded, or (2) provide the language of a lawful rule; 20
or publish and distribute revised handbooks that (1) do not contain the unlawful rule, or (2)
provide the language of a lawful rule.
c. Within 14 days from the date of this Order, offer Lindsey Ball Johnston full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent 25
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
d. Make Lindsey Ball Johnston whole for any loss of earnings and other benefits
resulting from her discharge, less any net interim earnings, plus interest, pursuant to the methods
in the Remedy section of this decision.30
e. Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharge of Lindsey Ball Johnston and within 3 days thereafter notify Johnston in
writing that this has been done and that the discharge will not be used against her in any way.
35
f. Compensate Lindsey Ball Johnston for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director for Region 7, within
21 days of the dates the amounts of backpay are fixed, either by agreement or Board order,
reports allocating the backpay awards to the appropriate calendar year(s).
40
g. 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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.45
h. Within 14 days after service by the Region, post at its facility in
Michigan, copies of the attached notice marked
provided by the Regional Director for Region
representative, shall be posted by Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notic5
notice will also be posted in English and any other languages that the Regional Director finds
appropriate. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means if Respondent regularly communicates with employees through those means
steps shall be taken by Respondent to ensure that the notices are not altered, def10
by any other material. In the event that, during the pendency of these proceedings, Respondent
has gone out of business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy o
employees employed by Respondent at any time since
15
i. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a respons
to the steps that Respondent has taken to comply.
Dated Washington D.C., April 220
25
26
“Appendix.” Copies of the notice, on forms
7, after being signed by Respondent
es to employees are customarily posted. The
f the notice to all current employees and former
August 13, 2015.
ible official on a form provided by the Regional Director attesting
0, 2016
Sharon Levinson Steckler
Administrative Law Judge
JD–36–16
Kentwood,
’s authorized
. Reasonable
aced or covered
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 abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain or coerce our employees in the exercise of
these rights, guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT tell you that you are disloyal to the company because you engaged in
protected concerted activities.
WE WILL NOT maintain unlawful rules regarding confidentiality, solicitation,
distribution, dress code, internet and email access and reporting violations of the internet and
email access policies.
WE WILL NOT discharge you because you engaged in protected concerted activities.
WE WILL NOT, in any like or other related manner interfere with, restrain, or coerce
you in the exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL pay Lindsey Ball Johnston for the wages and other benefits she lost, with
interest, because of our unlawful termination of her.
WE WILL offer Lindsey Ball Johnston immediate and 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 and privileges she previously enjoyed.
WE WILL remove from our files all references to the discharge of Lindsey Ball
Johnston and WE WILL notify her in writing that this has been done and that the discharge
will not be used against her in any way.
WE WILL compensate Lindsey Ball Johnston for the adverse tax consequences, if
any of receiving on or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL revise or rescind our unlawful rules regarding solicitation/distribution,
confidentiality, dress code, internet use, email, and reporting violations of the internet and
email policy and WE WILL notify you in writing that we have done so.
Andronaco, Inc. d/b/a Andronaco Industries
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-160286 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.