Ashley Furniture Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2008

18-CA-018737 (N.L.R.B. Sep. 17, 2008)

JD(SF)–37-08
Arcadia, Wisc.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
ASHLEY FURNITURE INDUSTRIES, INC.
and
VOCES DE LA FRONTERA
Case
(Formerly
18–CA–18737
30–CA–17857)
Joseph Bornong, Minneapolis, Minnesota, for the General
Counsel.
Thomas R. Trachsel of Felhaber, Larson, Fenlon & Vogt,
Minneapolis, Minnesota, and Justin H. Silcox of Kostner,
Koslo & Brovold, Arcadia, Wisconsin, for Respondent.
Jon M. Loomis and Mark A. Sweet, Milwaukee, Wisconsin,
for the Charging Party.
DECISION
Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge: This case was tried in Whitehall,
Wisconsin on June 17, 2008 1 based upon a complaint issued February 15, 2008 by the
Regional Director for Region 30 and amended by the Regional Director for Region 18 on
May 22, 2008, subsequent to the case being transferred to Region 18 by an order of the
General Counsel. The unfair labor practice charge was filed by Voces de la Frontera, on
October 2, 2007 2 and amended thereafter. The complaint as amended alleges that Ashley
Furniture Industries, Inc., (Respondent) committed certain violations of §8(a)(1) of the National

1 Respondent’s motion, made at the hearing and reiterated in its brief, to strike material
extraneous to the Charging Party’s name is hereby granted. Voces de la Frontera (“Voices from
the Border”) as described by counsel is a “community-based organization” whose offices are
located in Milwaukee. The parties are agreed that it is not a labor organization as defined in
§2(5) of the Act. Accordingly, Respondent’s motion to modify the caption by striking the
Charging Party’s addendum to its name (“On Behalf of employees of Ashley Furniture
Industries, Inc.”) is granted. Since it is not a labor organization, wording in a Board caption
should not suggest that its purpose is employee representation. It is a community-wide
assistance group targeting Hispanics in need, not an employee group.
2 All dates are 2007 unless stated otherwise.
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Labor Relations Act. Respondent denies that its conduct, essentially undisputed, violated the
Act and/or to the extent it may have, its conduct was permissible as a ‘legitimate and
substantial’ business reason.
Issues
The principal issue(s) is/are whether Respondent was privileged to tell its employees
that they were not to discuss certain matters with fellow employees, including their immediate
supervisors, instead limiting their communications to a single member of its Human Relations
Department, although an ad hoc exception may have been made for the affected employee’s
spouse. The issues which were not to be discussed were: 1. a warning for an assembly error;
2. Respondent’s receipt of ‘no-match’ letters from the Social Security Administration as it named
between 40 and 50 employees; and 3. telling an employee not to discuss the expiration of his
work permit.
Jurisdiction
Respondent admits it is a corporation operating in Wisconsin and other states and
having its headquarters and principal factory in Arcadia, Wisconsin where it manufactures
household furniture. It further admits that it annually sells and ships goods and materials to
customers outside Wisconsin valued in excess of $50,000. Accordingly, Respondent admits
that it is an employer engaged in commerce within the meaning of §2(2), (6) and (7) of the Act.
The Unfair Labor Practice Evidence
1. Background
In addition to the Arcadia plant involved here, Respondent has a smaller plant in nearby
Whitehall, Wisconsin, about 15 miles northeast. Both towns are in rural west central Wisconsin.
Arcadia is about 145 miles southeast of Minneapolis and 245 miles northeast of Milwaukee.
Testimony disclosed that Respondent also has plants in Colton, California; Ecru, Mississippi;
Ripley, Mississippi; and Leesport, Pennsylvania. It is a large company which employs 10,000
people in total; half, or about 5000, work in Arcadia. Respondent’s employee complement in
Arcadia is double the population of that town which has a census of only about 2500. In recent
years this area of Wisconsin has experienced an influx of immigrants and Respondent’s Arcadia
employee demography has changed markedly as well. At the time of the events here, the
summer of 2007, Respondent employed in Arcadia and Whitehall about 800 people of Hispanic
heritage, most of whom Respondent has recruited. In addition, it has recruited Hmong and
Somali immigrants as well. Both of the General Counsel’s witnesses testified with the
assistance of a translator.
The facts are in large part undisputed. During the spring of 2007 Respondent's human
resources department had become aware that the federal Department of Homeland Security
had determined to modify the rules concerning an employer's duty to enforce the provisions of
the Immigration Reform and Control Act of 1986 (IRCA). Although I will discuss below in
passing what the DHS was attempting to do, it suffices to note here that Respondent was
putting in place a procedure to handle the expected annual 'no-match' letters from the Social
Security Administration. For the past few years it had become accustomed to receiving such
letters as its complement of immigrant employees had expanded. The DHS rules had not
previously imposed enforcement duties upon employers concerning the employees' eligibility to
work in United States beyond requiring new hires to fill out an I-9 form and presenting the
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appropriate documentation. The new rules imposed additional responsibilities upon employers.
It was for that reason that Respondent's human resources department began modifying its
internal procedures.
Two of the allegations, however, do not deal with issues raised by the no-match letters.
The first deals with a statement made to an alien employee named Demetrio Martinez after he
had received some internal discipline. The other deals with another statement made to
Martinez after his work permit had expired. I shall deal with the Martinez issues first.
2. Statements to Martinez
Martinez is a sofa assembler. On July 3 Martinez had some trifling dispute with his
trainer, someone named Jeff concerning who was responsible for an error in assembling a
furniture item. As a result, he was called to an office where an HR employee asked him what
had happened. Martinez gave his side of the story and was told to go back to work. Shortly
thereafter he was recalled to the office where a superintendent was present. The HR employee
told Martinez he had been found guilty of an infraction and issued him a written warning. He
testified on direct without contradiction that the HR official told him, "[W]e have come to the
conclusion you are the guilty one with a majority of the votes" and "[W]e're going to give you a
warning" and "[D]on't say this to anyone." He did not waiver during cross-examination.
Respondent called no witness on the point. As a result, his direct examination stands
unrebutted.
On September 24, Martinez was again summoned to the HR office. The meeting was
conducted by Amy Neubauer. Neubauer is a human resource manager normally having
responsibility over office employees, not production employees. She was the one who had
been selected to handle the 'no-match' letters. Although the expiring work permits of production
employees was not her usual responsibility, given the no-match letters' close connection to the
work permit issue, it fell upon her to deal with Martinez's situation.
Martinez testified that she asked him if he had a current work permit or 'green card.' He
told her that his work permit was no longer current. Martinez says Neubauer responded to this
disclosure saying: "…she was going to give me 45 days to bring a current work permit. If I
wanted to continue working, that she was going to give me those 45 days, and if I didn't submit
that, then I was going to be fired — terminated, and not to say this to anybody."
Neubauer did testify concerning the 'no-match' letters but gave no testimony about her
meeting with Martinez concerning the expiration of his work permit. Accordingly, as above,
Martinez's testimony stands unrebutted.
In both cases a management official told Martinez that he was not to discuss what
transpired in those meetings with anyone. In each case the implication was that if he did
discuss those matters with other people, he was subject to some sort of discipline for failing to
follow the instruction. The General Counsel argues these words not only interfered with
Martinez's right to seek the mutual aid and protection of other employees, they also constituted
a threat – either way it violated §8(a)(1).
3. The Threats Prohibiting Revelation of the 'No-Match' Letters
The evidence concerning Respondent's statements to employees concerning their
receipt of 'no-match' letters comes not only from the General Counsel's employee witness,
Veronica Jimenez, it also comes from Respondent's witnesses Amy Neubauer and her superior,
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Executive Vice-President James Dotta. Indeed, it is in large part supported by a neutral third
party, a community translator named Joyce Stellick.
Dotta explained that the Company was concerned about the impact any public revelation
the 'no-match' letters might have. He cited three things which concerned the corporation. They
were: confidentiality concerning the Social Security numbers themselves; the allegedly real
possibility that employees receiving 'no-match' letters would be subject to harassment or
retaliation; and the Company did not want misinformation or false rumors which might scare its
Hispanic work complement into leaving the area.
As a result, he consulted with legal counsel about the best way to approach to the
upcoming DHS rules. After consultation, he settled on a three stage procedure. In the first, the
Company would give the employee 30 days to contact the Social Security Administration to
rectify whatever problem Social Security had identified. This instruction was to be delivered to
the employee by a letter read to him or her by an HR officer. If, at the end of the first 30 days
the matter had not been cleared up, a second 30 day letter was to be issued. If that did not
resolve the issue, then the employee would be given an additional 3 days as a firm deadline. If
the deadline was not met, the employee was to be fired. Pattern letters were prepared to that
effect and readied for the expected arrival of the 'no-match' notifications.
Dotta believed that in order to obtain the confidentiality result he sought, he needed to
limit the number of HR officials handling the expected letters. In fact, Respondent at Arcadia
had approximately fourteen HR people, seven managers and seven generalists. Each of these
was assigned to a specific area of the plant or the headquarters. In keeping with his concept of
limiting knowledge of the issue to only the affected employee, Dotta decided to select an
experienced HR manager who did not normally work with production employees and who would
be seen as a neutral. To that end, he selected Neubauer who primarily worked with finance,
computer engineers, and purchasing department employees. He testified he gave her the
following instructions on July 19 concerning the confidential nature of her work:
[Witness DOTTA] I told her it was very, very important, the confidentiality was of utmost
concern to me, and that therefore she was supposed to talk to me if she had any issues with
the process.
***
A. And that she should give instruction when she talked to the employees that they're to
contact the Social Security Administration, that's the people that could help them, and if they
had any further concerns, they should contact her.
Whatever Dotta may have instructed Neubauer to do, Veronica Jimenez's testimony
describes what actually happened. She is a production employee who builds headboards. In
late July she was one of 40 or 50 employees who had become the subject of 'no-match' letters.
Neubauer summoned her to the office and advised her that her name and social security
number did not match. Using an interpreter from one of the Mississippi plants, she gave
Jimenez the newly-styled warning letter which the Company had created providing for the first
30 day period. As the discussion was ending and as Jimenez stood to leave, Jimenez testified,
Neubauer pointed at her and said, "This is confidential. You cannot talk about this to your
coworkers or your supervisor and, if possible, not even to your husband."
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As the first 30 day period began to end, the second round began. According to a
Company position statement, 3 about thirty employees' situations remained unresolved.
Jimenez testified that Neubauer, through a translator, told her that if she didn't get this issue
settled within another 30 days, she would be terminated. Indeed, the second letter, read by the
translator, explicitly says in reference to the final 3-day period, that if at the end of the 3-day final
deadline Respondent "cannot verify your work authorization and identity, your employment with
Ashley will be immediately terminated." Jimenez further testified, "I was told again that this
meeting was confidential, that I could not talk about it, neither with my supervisor nor my
coworkers." She also said that she was never given the letter; that it was never in her hands,
only read to her.
Shortly thereafter, she had a third meeting with Neubauer and another translator. At this
meeting the translator told her she could continue working, but gave no explanation for the
change of heart. The translator told her she could forget about what had been said in the
previous meetings.
Neubauer did give testimony regarding the procedure she followed in delivering the
letters, but gave virtually no evidence concerning what she told Jimenez. She did deny telling
Jimenez that she could not speak to her spouse about what was happening.
Finally, on September 28, a community translator named Joyce Stellick (under contract
with the county) was approached by one of Respondent's male employees who spoke only
Spanish. He had lost the business card of the person to whom he was supposed to report his
work eligibility status and his social security information. He asked Stellick if she could contact
Respondent on his behalf and find out who the individual was that he should be getting in touch
with. Unable to find the HR number in the phone directory (only the retail store's number was in
the book), Stellick went to the public library where the librarian had the number to hand and
dialed it for her.
A woman named Amy (presumably Neubauer) answered and the two had a
conversation. Stellick:
… I proceeded to explain to her that a gentleman had come to my office, supposedly had a
card with a name and a phone number, he had lost it, and I was just trying to assist him to
get that information for him. And at that point in time she said, "Who are you again?" which I
repeated again I was an interpreter. And she asked me, "With whom?" I told her what I did.
So it went back and forth, that conversation.
Q Okay. Keep going. Was there more of the conversation?
A Yes, there was. She also asked me how come this gentleman had come to me, and I said,
"Well, because I am an interpreter," of course, and all he wanted to know was who to
contact at Ashley and I was trying to assist him. She told me that it was her
understanding that the employees at Ashley were not supposed to go outside the
Company to talk to anyone. And at that point in time I repeated my question and I said,

3 This statement is in evidence as GCExh. 4. Although statements prepared by counsel are
admissible, I do not rely upon it except as general background. While counsel may have been
attempting to be entirely accurate when drafting it, letters of this sort are at least secondhand
and subject to imprecision, given that the attorney authoring the document is not percipient to
the event itself.
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"Well, is he supposed to come to see you or someone else?" And she said, "Me." And I
asked her again for her name. As she gave it to me, I wrote it down on a piece of paper in
front of me. [Bolding supplied]
Stellick gave the information to the gentleman and he, presumably, found it useful.
Under the circumstances, I find that it was Respondent's policy to insist that the
employees who had received a 'no-match' letter say nothing about it to anyone other than a
single HR representative — specifically Neubauer. Neubauer says that she did tell employees
who objected that they could speak about it with their spouse or an attorney. Assuming that is
so, it is clear that they were not to speak of the matter to coworkers, supervisors, managers or
to any outsiders. As evidenced by her discussion with Stellick, Neubauer well understood that
requirement. She was carrying out Dotta’s instructions to the letter.
Legal Analysis
Any analysis, of course, starts with §7 of the Act. That section states in pertinent part:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all such activities.” (Italics supplied.) This
section, therefore, protects employees and guarantees their right to engage in concerted activity
for their mutual aid and protection. Concerted activity, self-evidently, means employees can
communicate to one another about common problems they are having at the workplace and
such communications are protected by Federal law. Furthermore, the Board and the courts
have given it an expansive meaning, reaching beyond workers simply discussing workplace
matters among themselves. It is an unfair labor practice under §8(a)(1) to prohibit employees
from engaging in such activity.
Indeed, for it to be a violation of §8(a)(1), an employer's conduct does not even need to
rise to the level of a specific threat. The statute states: “It shall be an unfair labor practice for
an employer to—interfere with, restrain or coerce employees in the exercise of the rights
guaranteed in section 7.” Thus, prohibiting employees from speaking to one another about
common concerns in the workplace or speaking to outsiders about those concerns are both
interdicted by the statute. In a union context, an easy example is the ejection of a union official,
who has a contractual right to be there, from an employer's premises. The ejection of their
representative has the direct effect of inhibiting employees from speaking to their union about
workplace issues. See, for example, Frontier Hotel & Casino, 309 NLRB 761, 766 (1992), enfd.
71 F.3d 1434 (9th Cir. 1995). But it is congruently true in a nonunion context, as well. The
seminal case, of course, is NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), where the
Court found protected the walkout of employees who concertedly left work to protest extremely
cold conditions.
Then, in the context of finding activity ‘concerted’ within the meaning of §7, the Court in
Eastex, Inc v. NLRB, 437 U.S. 556 (1978) held that employees had the protection of §7 when
they sought to distribute literature in nonworking areas during nonwork time which, among other
things, urged a state legislature to oppose ‘right to work’ language in a constitutional revision.
Here the employees were making an appeal to the drafters of a modified constitution, people
clearly outside the workplace, but who had the power to affect conditions of labor as a whole.
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And, of course, the steps preliminary to actual concerted activity are also protected. See
Whittaker Corp., 289 NLRB 933 (1988). After all, if an employer acted swiftly enough to prevent
the initial steps leading to concerted activity which would become clearly protected by §7, it
could obviously prevent that activity entirely and never have to deal with its employees over
such issues. That result is clearly contrary to the Congressional intent found in §7’s wording.
Moreover, when an employer lumps employees together and treats them as a group the
employer is treating them collectively. Enterprise Products, 264 NLRB 946, 949 (1982). So,
whatever they may do within that group for mutual aid and protection may be regarded as §7
concerted conduct. What, then, of an employer’s gag rule intended to prevent a workplace
issue from gaining traction?
Clearly, insofar as a gag rule prohibiting the discussion of wages is concerned, it has
long been held that such rules impinge upon §7 rights and are unlawful. E.g., NLRB v. Main
Street Terrace Care Center, 218 F.3d 531, 537 (6th Cir. 2000), enfg. 327 NLRB 522 (1999);
Waco, Inc., 273 NLRB 746, 748 (1984) (rule explicitly prohibiting employees from discussing
wages among themselves is a clear restraint of §7 rights and violates §8(a)(1)); also Jeannette
Corp. 217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976).
The General Counsel has presented here three different gag rule or confidentiality
scenarios. I shall take them in the same order as discussed in the previous section.
First is the direction to Martinez concerning the discipline which had been levied upon
him as a result of the sofa assembling incident. After the warning was issued to him, he was
told he was not to say anything about it to anyone. As one can readily see from his testimony,
however, he believed the discipline to be unwarranted; the assembling mistake, in his view, had
been committed by another employee. Once he was told not to talk about it to anyone, he was
rendered to a position of no recourse. There was no one to whom he could go to try to set it
right. He couldn't discuss it with his fellow employees without running afoul of the instruction. If
he did breach the instruction he would have been committing an act of insubordination.
Respondent's imposition of this gag rule clearly interfered with his ability to ever discuss his
circumstances with a friendly confidante. This record does not reflect whether Respondent has
in place any appeal procedure, so it is unclear whether he could even have had gone to a
higher level HR official. Martinez, of course, had no understanding of Respondent’s hierarchy.
The General Counsel correctly cites Verizon Wireless, 349 NLRB No. 62, slip op. at 19-
20 (2007) for the proposition that prohibiting employee discussion of workplace concerns,
particularly if they relate to discipline or potential discipline, violates § 7. One caveat to this rule
is that an employer may be insulated from liability under the Act if it can demonstrate a
legitimate and substantial interest in the confidentiality outweighs the rights of employees under
§ 7. See generally, NLRB v. Great Dane Trailers, 388 U.S. 26 (1967); NLRB v. Fleetwood
Trailer Co., 389 U.S. 375 (1967); Caesar’s Palace, 336 NLRB 271, 272, n 6 (2001); Jeannette
Corp., supra; Waco, Inc., supra.
In this case, however, Respondent offers no defense whatsoever. Martinez's testimony
is unrebutted. Accordingly, I find that Respondent's instruction to him to the effect that he was
barred from speaking about the discipline which had been imposed is a violation of §8(a)(1).
Similarly, when Amy Neubauer told him he could not discuss with anyone the fact that
his work permit had expired, Respondent also violated §8(a)(1). Neubauer was certainly within
her rights to ask Martinez for a current work permit, even if only to assist him to obtain a
renewal. What she could not do was to tell him he couldn't talk about it with anyone. It is quite
common for Hispanic workers working in United States to be in close contact with community
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organizations who assist with immigration issues. Indeed work permits are a common subject
for such groups. Many have become quite expert in providing accurate and timely assistance to
employees in exactly Martinez's situation. While there is no evidence on the point, it is quite
likely that the Charging Party has such expertise, or if it does not, it knows how to find it. If
Martinez did not already know about assistance sources, speaking with a co-worker would be a
normal and routine way for him to start the process. Respondent's instruction prohibited him
from doing so, thereby depriving him of the ability to exercise his §7 right to obtain from his
fellow employees information relating to their mutual aid and protection.
As I noted before, it is the instruction alone which tends to interfere with or restrain an
employee from engaging in concerted activity and is sufficient to support such a violation. It
need not rise to a specific threat since interference and restraint is all the statute requires. Even
so, a threat is usually implied if such instructions are given. See Westside Community Mental
Health Center, 327 NLRB 661, 666 (1999), cited by the General Counsel. Westside also
supports the general proposition that gags of confidentiality are overbroad regardless of whether
the rule was enforced or discriminatorily motivated. See also Lutheran Heritage Village–Livonia,
343 NLRB 646 (2004) (If a company rule does not expressly restrict the §7 rights of employees,
it will still violate §8(a)(1) of the Act if employees would reasonably construe it to prohibit activity
protected by §7 or if it has been applied to prohibit protected conduct.) The gag order here is
unlawful for the same reason as the gag order concerning Company discipline failed to pass
muster
The more interesting legal question is the injunction given by Neubauer pursuant to
Dotta's plan, to each of the employees who had received a 'no-match' letter. Jimenez's
testimony, together with the admissions made by Neubauer and Dotta (and supported by
Stellick) clearly falls into the same general category as the other two. The principal distinction is
that the instruction was given concerning something the Social Security Administration had
triggered — to correct some irregularity perceived by that agency, rather than coming from
employee ranks. Nonetheless, rather clearly, Respondent had determined to treat as a group
all of those whose names were provided by the Social Security Administration. This was the
"lumping" which the Board perceived in Enterprise Products, supra. And, the observation I
made concerning Martinez's inability to obtain assistance applies equally to Jimenez and the
other persons named in the 'no-match' letters. The instruction allowed them no place to obtain
advice or assistance — not their fellow employees, not family, not an attorney and not even a
community assistance group such as the Charging Party.
In some respects this interdiction was worse than that imposed by the employer in
Eastex. There, the employees sought favorable treatment from the state legislature. Here, the
employees only would have sought the assistance of fellow employees, spouses, or a
community group, although legal assistance might have been sought as well. I think it is fair to
say that absent some legitimate defense, Respondent committed an 8(a)(1) violation closely
tracking those already found.
Respondent asserts that it had a substantial business justification for its instruction. As
noted above there were three components of that purported justification: 1. Maintaining the
privacy and security of the employees' social security numbers in order to prevent identity theft;
2. The possibility that employees who were the subject of 'no-match' letters would be subject to
harassment and/or retaliation by community members who harbored xenophobic tendencies;
3. To prevent false information and misinformation which might have the effect of scaring away
the Hispanic employees it had recruited.
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These reasons were all given by vice president for human relations Dotta. To prove that
there were harsh anti immigrant feelings in the community, Respondent offered in evidence a
number of newspaper articles (including some online reprints) published in the newspapers of
nearby cities.
I have no doubt that the appearance of these articles was in Dotta's mind as he cast
about for a way to efficiently address what seemed to be coming from the Department of
Homeland Security.
Both the Charging Party and Respondent have, in their briefs, supplied an informative
discussion about the impact of DHS’ proposed rule in 2007. Prior to 2007, employers, while
subject to both administrative and criminal sanctions for knowingly employing undocumented
workers, were not considered to be part of the enforcement procedures set forth in IRCA. In
general, an employer's obligation to comply with that statute simply required them to have an
employee fill out an I-9 form, reviewing certain listed documents which established both the
employee’s identity and his/her right to work in United States. The change proposed by DHS
related to the portion of the statute which criminalized an employer's behavior if he "knowingly"
employed individuals who did not have the right to work in the United States. In the past, the
DHS and its predecessor agency had had difficulty proving that such improper employment was
"knowing" where the employer had relied on spurious documentation presented by an
employee. The new rule removed that hurdle by declaring that 'no-match' letters from the Social
Security Administration were prima facie evidence that an employer knew the employee was
undocumented. It stated that ‘no-match’ letters created an evidentiary presumption that the
employer had knowingly hired undocumented employees and that such letters could be used to
find the hiring to be criminally unlawful. The proposed rule also set forth certain "safe harbor"
practices which would insulate an employer from that kind of prosecution. The rule was
scheduled to go into effect on September 14, 2007.
On August 31, the ACLU Immigrant's Rights Project obtained a nationwide temporary
restraining order against DHS prohibiting enforcement of that new rule from the United States
District Court for the Northern District of California. That temporary restraining order was
converted to a preliminary injunction on October 10. The August 31 TRO was the reason that
Respondent ceased its efforts to require the employees to clear up whatever issues they had
with the Social Security Administration and for that reason employees such as Jimenez were
relieved of any further obligation, at least until the court made its final ruling.
I have reviewed the newspaper accounts and while I agree that there had been some
level of public discussion in 2006 about the arrival of immigrants in the Arcadia-Whitehall area
(some had also been hired by a large chicken processor also located in Arcadia), much of the
vituperation seems to have come from the then mayor of Arcadia. He had proposed certain anti
immigrant city ordinances and there had been vigorous pro and con discussions at city council
meetings. Eventually the mayor withdrew his proposals.
Dotta also mentioned, in support of his third reason, that the Company wished to reduce
negative rumors about its employment of immigrants, two different incidents which seem to
have occurred. The first involved a rumor that Immigration and Customs Enforcement (ICE),
the investigative branch of DHS that enforces the Immigration and Nationality Act, had made
some sort of appearance in nearby Winona, Minnesota (25 miles southwest) and was poised to
make a raid on employers in Arcadia. The second was a rumor that Respondent was not
deducting payroll taxes from its employees' pay, allegedly because it thought it could get away
with not paying taxes because its employees were illegal aliens. Respondent took immediate
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steps to counter both of these issues, but nevertheless remained on the lookout for additional
incidents. Essentially, Dotta feared that information concerning the 'no-match' letters would lead
to more of the same.
While I think there is some validity to Respondent's anxiety, I think the concerns about
privacy and the protection of social security numbers is overblown. Respondent is not the
guardian of such matters, except to the extent they are maintained in its own files. In a real
sense this is nothing more than unnecessary paternalism. The employees are well aware of the
need to keep these numbers confidential. Silencing them for that purpose is a clear overreach.
Moreover, such an instruction would not resolve the problem of identity theft which is more likely
to come from repositories of such numbers, not from individuals. I do not find this reason, even
if taken in good faith, to warrant the deprivation of rights guaranteed to employees by § 7.
The next reason, the possibility that the employees would be subject to xenophobic
misbehavior by the general public might actually be valid had there been any violent incident to
deal with. Nothing that kind had occurred in 2006 and the entire matter had begun to cool by
the summer of 2007. In this sense I think Respondent's speculation about what might happen
was premature. It had successfully defended two other rumors, one of which actually focused
on the question of special treatment of illegal aliens, the false claim by uninformed people in the
community that Respondent was not withholding payroll taxes on the aliens working for it.
Respondent is the principal employer in the community and must be considered a large
employer wherever it might be located. It is, no doubt, subject to the same scrutiny that other
large employers routinely face. Large companies with big payrolls are unlikely to be routinely
cheating the tax authorities, particularly in the numbers employed here, around 5400 in this area
of Wisconsin. A rumor as far-fetched as this one is unlikely to have much traction, particularly
when it is promptly scotched. Besides, coworkers often discuss their paychecks with one
another and sometimes show their pay stubs to each other. Ordinary revelation of that
information would put to rest any such concerns from the Hispanic employees’ coworkers. 4
Likewise the rumor about an immigration raid by ICE turned out to be unfounded. In
fact, this kind of rumor occurs in all areas of the country where there are large numbers of
immigrant employees. West central Wisconsin is not unique in this regard and Dotta’s fears are
not exceptional. Employees come and go for all sorts of reasons. Fear of ICE is not likely high
on the list. Again, I do not see the factual validity of this assessment. In my opinion an ICE raid
is so unlikely that Dotta’s fears are not well-founded. Even if a raid were to occur, Respondent
would not be the cause and employees would know that, for it is not in Respondent’s interest to
report itself to ICE. It is certainly not a reason for employees with valid work permits to flee from
Wisconsin. 5 There is no reason to think that Respondent could not have dealt with no-match
letter misinformation in an equally effective manner.
Therefore, I do not find Respondent's second and third justifications for imposing the
confidentiality requirement on the issue of an employee's name appearing in a Social Security
Administration 'no-match' letter to have persuasive weight. They simply do not rise to a level
where they can be regarded as legitimate and substantial reasons for depriving employees of

4 If an employer is in such financial straits that it decides to stop paying its quarterly payroll
taxes, it will likely be a problem common to all employees, not just immigrants.
5 I make no brief here one way or the other for undocumented families of legal immigrants
who may share quarters with their breadwinner who holds a valid work permit.
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their statutory rights under the National Labor Relations Act. The connections are simply too
tenuous. Respondent’s legitimate and substantial business justification defense fails as
inadequately supported.
Accordingly, I conclude that in each of the instances alleged by the General Counsel,
Respondent interfered with and restrained its employees in the exercise of their § 7 rights and
therefore violated §8(a)(1) as alleged.
The Remedy
Having found Respondent to have engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Additionally, it shall be directed to post a notice to employees
advising them of their rights and describing the steps it will take to remedy the unfair labor
practices which have been found.
Based upon the foregoing findings of fact, legal analysis, and the record as a whole I
hereby make the following
Conclusions of Law
1. Respondent is an employer engaged in commerce and in an industry affecting commerce
within the meaning of § 2(2), (6) and (7) of the Act.
2. On July 3, and various dates in July and August 2007, Respondent violated §8(a)(1) of the
Act when it prohibited its employees from speaking to any other person about matters
affecting their employment, including disciplinary proceedings, instructions concerning
Social Security no-match letters and connected employment eligibility issues, and the
updating of work permits.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 6
ORDER
Respondent, Ashley Furniture Industries, Inc., Arcadia, Wisconsin, its officers, agents,
and representatives, shall
1. Cease and desist from:
a. Prohibiting its employees from speaking to any other person about matters affecting
their employment, including disciplinary proceedings, instructions concerning Social
Security no-match letters and connected employment eligibility issues, and the
updating of work permits.
b. In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by §7 of the Act.

6 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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2. Take the following affirmative action necessary to effectuate the policies of the Act:
a. Within 14 days after service by the Region, post at its plant in Arcadia, Wisconsin,
copies of the attached notice marked “Appendix.” 7 Copies of the notice, on forms
provided by the Regional Director for Region 18 after being signed by Respondent's
authorized representative, shall be posted, in English, Spanish and any other foreign
language the Regional Director deems appropriate, by Respondent immediately upon
receipt 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 Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in
these proceedings, it shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by it at any time
since August 31, 2007.
b. Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
____________________________________
James M. Kennedy
Administrative Law Judge
Dated, Washington, DC: September 17, 2008.

7 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
Appendix
Notice to Employees
Posted By Order of the
National Labor Relations Board
An Agency Of The United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
♦ Form, join or assist a union
♦ Choose representatives to bargain with us on your behalf
♦ Act together with other employees for your benefit and protection
♦ Choose not to engage in any of these protected activities.
WE WILL NOT prohibit you from speaking to any other person about matters affecting your
employment, including disciplinary proceedings, instructions concerning Social Security
Administration no-match letters and related employment eligibility issues, or the updating
of work permits.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the above rights guaranteed you by Federal law/
ASHLEY FURNITURE INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
330 South Second Avenue, Suite 790, Minneapolis, Minnesota 55401–2221
Telephone 612–348–1757 Hours: 8 a.m. – 4:30 p.m.
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, 612–348–1770.