Butler Medical Transport, LLC

National Labor Relations Board - Board Decisions

Jul 27, 2017

365 NLRB No. 112 (N.L.R.B. 2017)

365 NLRB No. 112
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Butler Medical Transport, LLC and Michael Rice and
William Lewis Norvell. Cases 05–CA–094981,
05–CA–097810, and 05–CA–097854
July 27, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
This case arises from the Respondent’s discharge of
two employees, William Norvell and Michael Rice, for
posts they made on Facebook, based on the Respondent’s
concededly unlawful social media policy.1 We affirm the
judge’s conclusions that the Respondent violated Section
8(a)(1) of the Act by discharging Norvell because his
Facebook posts constituted protected concerted activity,
and that the Respondent’s discharge of Rice was lawful
because his Facebook post was unprotected under the

1 On September 4, 2013, Administrative Law Judge Arthur J. Am-
chan issued the attached decision. The Respondent filed exceptions, a
supporting brief, a reply brief, and an answering brief to the General
Counsel’s cross-exceptions. The General Counsel filed an answering
brief, cross-exceptions, a supporting brief, and a reply brief.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set forth in full be-
low.
In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall
modify the judge’s recommended Order to reflect this remedial change.
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we shall also order the Respondent to compen-
sate William Norvell for his search-for-work and interim employment
expenses regardless of whether those expenses exceed interim earnings.
Search-for-work and interim employment expenses shall be calculated
separately from taxable net backpay, with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). For
the reasons stated in his separate opinion in King Soopers, supra, slip
op. at 9–16, our dissenting colleague would adhere to the Board’s for-
mer approach, treating search-for-work and interim employment ex-
penses as an offset against interim earnings.
We shall modify the judge’s recommended Order in accordance with
our decision in Excel Container, Inc., 325 NLRB 17 (1997).
Last, we shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language, and we
shall substitute a new notice to conform to the Order as modified and in
accordance with Durham School Services, 360 NLRB 694 (2014).
The Respondent did not except to the judge’s conclusions that its so-
cial media policy and its rule on the unauthorized posting and distribu-
tion of papers violated Sec. 8(a)(1). As we will explain, the judge did
not examine whether the discharges of Norvell and Rice were unlawful
insofar as they were predicated on the unlawful social media policy.
Act.2 We also consider an alternative theory urged by
the General Counsel that the judge failed to consider:
whether the employees were discharged as a result of the
Respondent’s unlawfully overbroad social media policy.
Applying the analytical framework established by the
Board in Continental Group, Inc., 357 NLRB 409
(2011), which addresses discipline imposed pursuant to
an unlawfully overbroad rule, we find that the Respond-
ent violated Section 8(a)(1) by discharging Norvell pur-
suant to its unlawful social media policy because his Fa-
cebook posts were protected concerted activity, or alter-
natively, because they “touch[ed] the concerns animating
Section 7.” Id. at 412. By contrast, we find that that the
Respondent did not violate Section 8(a)(1) by discharg-
ing Rice pursuant to its unlawful social media policy.
We are not persuaded by our dissenting colleague’s view
that the discharge of Norvell should be upheld and that
Continental Group was wrongly decided (an argument
the Respondent does not advance).

2 The Respondent asserts in its Brief in Support of Its Exceptions to
Decision of the Administrative Law Judge that:
Moreover, the Board could not have properly delegated its authority to
issue complaint[s] to the Acting General Counsel [Lafe Solomon],
whose appointment is invalid under the Federal Vacancies Reform
Act. Hooks v. Kitsap, No. C13–5470, 2013 U.S. Dist. LEXIS 114320
(W.D. Wash. Aug. 13, 2013).
The Supreme Court held in NLRB v. SW General, Inc. d/b/a South-
west Ambulance, 580 U.S. ___, 2017 WL 1050977 (Mar. 21, 2017),
that, under the Federal Vacancies Reform Act of 1998, Solomon’s
authority to take action as Acting General Counsel ceased on January 5,
2011, after the President nominated him to be General Counsel. Id. at
__. However, we find that subsequent events have rendered moot the
Respondent’s argument that Solomon’s lack of authority after his nom-
ination precludes further litigation in this matter. Specifically, on May
25, 2016, General Counsel Richard F. Griffin, Jr., issued a Notice of
Ratification in this case that states, in relevant part,
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in viola-
tion of the FVRA. [SW General, Inc. v. NLRB, 796 F.3d 67, 78 (D.C.
Cir. 2015)] (citing 5 U.S.C. § 3348(e)(1)).
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
In view of the independent decision of General Counsel Griffin to
continue prosecution of this matter, we reject as moot any challenge to
the actions taken by Solomon as Acting General Counsel after his nom-
ination on January 5, 2011.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
I. THE DISCHARGE OF WILLIAM NORVELL
The Respondent provides ambulance transportation
services to hospitals, nursing homes, and other organiza-
tions. The Respondent employed Norvell as an EMT and
driver from May 2005 until his discharge on October 22,
2012.
Since at least November 2011, the Respondent distrib-
uted a sheet of bullet points to newly hired employees.
One of the bullet points states, “I will refrain from using
social networking sights [sic] which could discredit But-
ler Medical Transport or damages [sic] its image.” Mul-
tiple employees were disciplined or discharged for viola-
tions of this social media policy.
On October 10, 2012, former Butler employee Chelsea
Zalewski posted on Facebook about her termination. She
wrote, “Well no longer a butler employee . . . Gotta love
the fact a ‘professional’ company is going to go off what
a dementia pt [patient] says and hangs up on you when
you are in the middle of asking a question.” Former and
current Butler employees commented on her post. One
person asked Zalewski what the patient said. Zalewski
responded, “Yeah ur telling me! The pt said I told her
that they never fix anything on the units . . . Yeah I
[know] that pt I’m not dumb enough to tell her let alone
any pt how shitty those units are they see it all on their
own.”
Norvell commented on Zalewski’s post. He wrote,
“Sorry to hear that but if you want you may think about
getting a lawyer and taking them to court.” Norvell also
suggested, “[Y]ou could contact the labor board too.”
An anonymous source left screen shots of parts of this
conversation on the desk of Ellen Smith, the Respond-
ent’s director of human resources. Smith brought the
conversation to the attention of William Rosenberg, Re-
spondent’s chief operating officer. Smith and Rosenberg
determined that Norvell’s suggestion to Zalewski that
she get an attorney and sue the Respondent was a viola-
tion of the Company’s social media policy. They decid-
ed to terminate him.
On October 22, 2012, Smith and Rosenberg called
Norvell. They explained that he was being terminated
because his postings violated the social media policy.
Norvell was given no other reason for his termination.
A.
We affirm the judge’s conclusion that the Respondent
violated Section 8(a)(1) by discharging Norvell because
his Facebook posts were protected by Section 7 of the
Act.
First, we agree with the judge’s finding that Norvell’s
Facebook posts constituted concerted activity. Norvell
engaged in a conversation with fellow employees regard-
ing Zalewski’s recent discharge, and Norvell advised
Zalewski about potential avenues of redress. In Fresh &
Easy Neighborhood Market, 361 NLRB No. 12, slip op.
at 3 (2014), drawing on well-established precedent, the
Board held that an employee’s solicitation of her
coworkers in connection with her personal complaint of
sexual harassment was concerted activity because she
sought to enlist the help of other employees. Id. at 3–4.
Indeed, “the Board has long held that employee discus-
sions in which advice about future action is sought or
offered constitute concerted activity.” UniQue Personnel
Consultants, 364 NLRB No. 112, slip op. at 3 (2016)
(citing Jhirmack Enterprises, 283 NLRB 609, 614–615
(1987), and Cadbury Beverages, 324 NLRB 1213, 1220
(and cited cases) (1997), enfd. 160 F.3d 24 (D.C. Cir.
1998)).3 In UniQue, supra, the Board found that an em-
ployee engaged in concerted activity by seeking a
coworker’s advice about how to deal with perceived un-
fair discipline. The Board also found that an employee
engaged in concerted activity in Jhimark, supra, by re-
sponding to a coworker’s inquiry about complaints con-
cerning his job performance and advising him to take
corrective action. And in Cadbury, supra, the Board
found that an employee’s advice to a coworker not to
contact a specific union official for support in obtaining
an unpaid bonus constituted concerted activity. Similar
to the employees in the above-cited cases, Norvell en-
gaged in concerted activity when he offered advice to his
former coworker regarding future action.
Our dissenting colleague asserts that Norvell’s Face-
book posts constituted merely individual activity, citing
Mushroom Transportation Corp. v. NLRB, 330 F.2d 683
(3d Cir. 1964). We disagree. In Mushroom, the court
found that an employee did not engage in concerted ac-
tivity when he advised coworkers regarding their rights
because no future group action was contemplated. Simi-
larly, in Daly Park Nursing Home, 287 NLRB 710, 710
(1987), the Board found that a conversation following
the discharge of an employee in which other employees
discussed her discharge, with one coworker remarking
“that the discharge was ‘unfair’ and that it was a shame
[the employee] could not hire a lawyer to fight it” did not
constitute concerted activity. The Board explained that
as in Mushroom, there was “no evidence that [the
coworker] or any of the employees with whom she dis-
cussed [the] discharge contemplated doing anything
about the discharge.” Id. at 711. Further, there was not
“even the suggestion that the employees might attempt to

3 Accord: Hoodview Vending Co., 359 NLRB 355 (2012), reaf-
firmed and incorporated by reference at 362 NLRB No. 81 (2015)
(finding employees’ conversation about job security and possibility of
discharge to be inherently concerted).
BUTLER MEDICAL TRANSPORT , LLC 3
give mutual aid or protection to [the discharged employ-
ee] by encouraging her to institute legal action to chal-
lenge her termination.” Id. This case presents a clear
contrast. Here, the Facebook conversation involved both
Zalewski, the discharged employee, and Norvell, who
encouraged her to seek legal help and to contact the
Board. Thus, Norvell’s Facebook posts were clearly
concerted activity.
Second, we affirm the judge’s finding that Norvell’s
Facebook posts were made for the purpose of mutual aid
and protection.4 Norvell posted his comments as part of
an online conversation with fellow employees, triggered
by one employee’s complaint about what she believed
was her unjust discharge—a potential concern for all
employees, who have a common interest in job security
and protection against such a dismissal. As we observed
in Fresh & Easy, the “Board has found that an employee
who asks for help from coworkers in addressing an issue
with management does, indeed, act for the purpose of
mutual aid or protection, even where the issue appears to
concern only the soliciting employee, the soliciting em-
ployee would receive the most immediate benefit from a
favorable resolution of the issue, and the soliciting em-
ployee does not make explicit the employees’ mutuality
of interests.” 361 NLRB No. 12, slip op. at 5. By com-
plaining, Zalewski was at least implicitly soliciting sup-
port from her coworkers, and by advising Zalewski of
potential avenues of redress for her discharge, Norvell
was making common cause with her and with other em-
ployees privy to the conversation. Application of the
solidarity principle discussed in Fresh & Easy, is espe-
cially fitting here because Norvell was fired for helping
the fired Zalewski—creating precisely the occasion for
reciprocal help that the solidarity principle contem-
plates—“because next time it could be one of them that
is the victim.” Id. at 6. Thus, we reject the Respondent’s
contention that Norvell’s conduct was not for the purpose
of “mutual aid or protection.”5

4 The judge based his protected activity determination largely on
Zalewski’s conduct, rather than Norvell’s. The judge found that
Norvell’s Facebook posts were protected because he was responding to
Zalewski’s post in which she stated that she was terminated for alleged-
ly telling a patient about the poor condition of the Respondent’s units,
which the judge found was a matter of mutual concern to the employ-
ees. We find it unnecessary to pass on the judge’s reasoning in this
respect.
5 In arguing that Norvell’s Facebook posts were not for mutual aid
or protection, the Respondent relies on a decision overruled in relevant
part in Fresh & Easy, supra: Holling Press, 343 NLRB 301 (2004),
where a divided Board had found that an employee was not protected
when she sought a colleague’s assistance in connection with her sexual
harassment claim. In any event, this case is distinguishable from Hol-
ling Press. There, the Board majority found that the employee’s ac-
tions—albeit concerted, see id. at 302—were not protected because
Because we agree with the judge’s findings that
Norvell’s Facebook posts constituted protected concerted
activity, the Respondent knew of the concerted nature of
the posts, and Norvell’s discharge was motivated by the
posts, we affirm the judge’s conclusion that the Re-
spondent violated Section 8(a)(1).6
B.
The General Counsel alternatively contends that
Norvell’s discharge violated Section 8(a)(1) because it
was pursuant to an unlawfully overbroad rule. In Conti-
nental Group, supra, the Board held that discipline im-
posed pursuant to an unlawfully overbroad rule may vio-
late Section 8(a)(1) in two situations: if the employee
was disciplined for engaging either in protected concert-
ed activity or, for conduct that is not concerted, but
“touches the concerns animating Section 7.” 357 NLRB
at 412. The employer can avoid liability by demonstrat-
ing that the employee’s conduct actually interfered with
the employer’s operations and that the interference, ra-
ther than the violation of the overbroad rule, was the rea-
son for the discipline. Id. If the employer provided the
employee with the reason for the discipline, the employer
must also establish that it cited the interference, rather
than the violation of the overbroad rule. Id.
Although the judge did not apply Continental Group,
both the General Counsel and the Respondent urge the
Board to apply it here. Contrary to the dissent, we find
that Continental Group applies to this case and it leads to
the same result reached by the judge. We conclude that
Norvell’s posts were protected concerted activity or, al-
ternatively, that they touched the concerns animating
Section 7. The Respondent, in turn, has failed to estab-
lish a defense cognizable under Continental Group.
It is undisputed that the Respondent discharged
Norvell for violating its unlawful social media policy.
The social media policy, phrased in terms of a promise
required of its employees, stated in relevant part: “I will
refrain from using social networking sights [sic] which

“[t]he bare possibility that the second employee may one day suffer
similar [sexual harassment] treatment, and may herself seek help, is far
too speculative a basis on which to rest a finding of mutual aid or pro-
tection.” Id. at 304. The majority contrasted sexual harassment claims,
which it deemed to be relatively uncommon, with discipline in the
workplace, and found that it was much more likely that a fellow em-
ployee would one day need assistance on a disciplinary issue. Id.
Here, Norvell posted his comments to assist a fellow employee with a
disciplinary issue, her termination. Therefore, his activity was protect-
ed even under the Board majority’s rationale in Holling Press.
6 See Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub
nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985), supplemented Meyers Industries, 281 NLRB 882
(1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
could discredit Butler Medical Transport or damages
[sic] its image.”7
As explained above, we affirm the judge’s finding that
Norvell’s Facebook posts were protected concerted activ-
ity, and thus fall within the first category of protected
activity under Continental Group. However, even if
Norvell’s actions were deemed outside the scope of pro-
tected concerted activity, they would nevertheless
amount to what Continental Group described as “con-
duct that touches the concerns animating Section 7” or
“conduct that otherwise implicates the concerns underly-
ing Section 7.” Id. In response to Zalewski’s complaint
that she was fired unfairly, Norvell suggested avenues
for redress to address Zalewski’s discharge, including
pointing her to the Board. This communication clearly
implicated concerns underlying Section 7. Indeed, the
rights embodied in Section 7 are meaningless without
access to the agency that enforces them. “Preserving and
protecting access to the Board is a fundamental goal of
the Act, as reflected in Section 8(a)(4), which makes it
unlawful to discharge or discriminate against employees
for coming to the Board.” Solarcity Corp., 363 NLRB
No. 83, slip op. at 6 (2015).8 It would be anomalous to
hold that an employee could be fired for advising a
coworker that she could file unfair labor practice charg-
es—and, indeed, the Board has held that an employer
violated Section 8(a)(4) when it discharged employees
on the belief that they had supported or assisted a
coworker who filed an unfair labor practice charge with
the Board. National Surface Cleaning, Inc., 314 NLRB
549, 553 (1994), enfd. 54 F.3d 35 (1st Cir. 1995). Thus,
we agree with the General Counsel that even if Norvell’s
posts did not constitute protected concerted activity, his
discharge was still unlawful because his posts “touche[d]
the concerns animating Section 7.” Continental Group,
357 NLRB at 412.
Because Norvell was discharged for violating an un-
lawfully overbroad rule, and because his underlying con-

7 The Respondent has effectively admitted that its social media poli-
cy was unlawful, by failing to except to the judge’s conclusion that the
policy violated Sec. 8(a)(1). See Sec. 102.46(b)(2) of the Board’s Rules
and Regulations. The Board has addressed similar policies. See, e.g.,
Novelis Corp., 364 NLRB No. 101, slip op. at 1–2, 39–40 (2016) (find-
ing unlawful employer’s social media policy providing that “[a]nything
that an employee posts online that potentially can tarnish the Compa-
ny’s image ultimately will be the employee’s responsibility” and “tak-
ing public positions online that are counter to the Company’s interest
might cause conflict and may be subject to disciplinary action”). See
generally Ariana R. Levinson, Solidarity on Social Media, 2016 Colum.
Bus. L. Rev. 303 (2016).
8 Sec. 8(a)(4) provides that it is an unfair labor practice for an em-
ployer “to discharge or discriminate against an employee because he
has filed charges or given testimony under th[e] Act.” 29 U.S.C.
§158(a)(4).
duct amounted either to protected concerted activity or to
conduct otherwise implicating the concerns animating
Section 7, his discharge was unlawful, unless the Re-
spondent “can establish that [he] actually interfered with
the employee’s own work or that of other employees or
otherwise actually interfered with the employer’s opera-
tions, and that the interference, rather than the violation
of the rule, was the reason for the discipline.” Id. We
find that the Respondent failed to establish this affirma-
tive defense. The Respondent did not introduce any evi-
dence that Norvell’s posts interfered with its operations.
Moreover, the Respondent cited Norvell’s violation of
the social media policy, rather than any such interfer-
ence, as the reason for his termination.
We therefore affirm the judge’s conclusion that the
Respondent violated Section 8(a)(1) by discharging
Norvell pursuant to its unlawful rule.
II. THE DISCHARGE OF MICHAEL RICE
The Respondent employed Rice from November 2011
until his discharge on January 14, 2013. On January 5,
2013, Rice posted the following message on Facebook:
“Hey everybody!!!!! IM FUCKIN BROKE DOWN IN
THE SAME SHIT I WAS BROKE IN LAST WEEK
BECAUSE THEY DON’T WANTA BUY NEW
SHIT!!!! CHA-CHINNNGGGGGG CHINNNG—at
Sheetz Convenience Store.” Two people clicked “like”
on Rice’s post, and two people commented on it. The
identity of these people and the content of their com-
ments are unknown.
Sometime after January 5, 2013, an anonymous source
left a printout of a screen shot of Rice’s post underneath
Smith’s door. Smith showed the post to Rosenberg, who
conducted an investigation. Rosenberg reviewed the
Company’s maintenance records to see whether Rice’s
vehicle had broken down on the day he wrote the post;
he found that it had not. Therefore, Rosenberg deter-
mined that Rice’s post was false.
On January 14, 2013, Rosenberg and Smith discharged
Rice because his post violated the Company’s social me-
dia policy. Rice’s Corrective Action Form reflects that
this violation was the reason for his termination.
Thereafter, Rice filed for unemployment benefits. At
his unemployment hearing, Rice testified that his post
was not about his work vehicle. Rather, Rice claimed
that he was referring to his girlfriend’s car. At the pre-
sent hearing, the Respondent called Rice as a witness.
Rice refused to testify, citing his Fifth Amendment
rights.
We affirm the judge’s finding that the Respondent did
not violate Section 8(a)(1) by discharging Rice because
BUTLER MEDICAL TRANSPORT , LLC 5
his Facebook post was not protected under the Act.9
Because Rice did not testify in this case, we cannot be
certain whether his post referred to his girlfriend’s car, as
he claimed at the unemployment hearing, or to the Re-
spondent’s ambulance, as the Respondent reasonably
believed. If Rice’s post referred to his girlfriend’s car,
then it was not made for the purpose of mutual aid or
protection. The condition of his girlfriend’s car was not
a matter of mutual concern to his coworkers, at least not
regarding their terms and conditions of employment.
On the other hand, if the post referred to the condition
of the Respondent’s ambulance, we agree with the
judge’s finding that it was maliciously false. Otherwise
protected communications “will lose the protection of the
Act if maliciously false, i.e., made with knowledge of
their falsity or with reckless disregard for their truth or
falsity.” TNT Logistics North America, Inc., 347 NLRB
568, 569 (2006), revd. on other grounds sub nom. Joliff
v. NLRB, 513 F.3d 600 (6th Cir. 2008). Rosenberg testi-
fied that he checked the maintenance records and deter-
mined that Rice’s vehicle did not break down on the day
of Rice’s post. The General Counsel has not provided
any contrary evidence. Therefore, assuming that Rice
was referring to the Respondent’s ambulance, we find
that he made the post with knowledge of its falsity be-
cause he was driving the vehicle and knew that it had not
broken down.10
Applying Continental Group, supra, we also find that
Rice’s discharge was lawful even though it was imposed
pursuant to an unlawfully overbroad rule. As explained,
Rice’s post was not protected under the Act. We find
that Rice’s post also did not “touch the concerns animat-
ing Section 7” because if the post referred to Rice’s girl-

9 The General Counsel contends that by announcing, “Hey every-
body,” Rice was attempting to initiate discussion regarding the condi-
tion of the Respondent’s units, and that the discussion had the potential
to grow into group action. See Meyers Industries (Meyers II), 281
NLRB 882, 887 (1986) (holding that concerted activity includes those
“circumstances where individual employees seek to initiate or induce or
to prepare for group action”), affd. sub nom. Prill v. NLRB, 835 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). We find it
unnecessary to decide whether this interpretation of Rice’s post was
correct because, in any event, his post was unprotected.
10 Compare Encino Hospital Medical Center, 360 NLRB 335, 335
(2014) (employee’s conduct lost protection under the Act because she
engaged in “deception that was neither an integral nor a necessary part
of her assistance of her former coworker”).
We reject the General Counsel’s alternate theory that the Respond-
ent discharged Rice because it believed that Rice engaged in protected
concerted activity, even if he did not. See JCR Hotel, Inc. v. NLRB,
342 F.3d 837, 840 (8th Cir. 2003); Service Industries, 314 NLRB 30,
31 (1994). Even if the Respondent believed that Rice’s post was con-
certed activity, Rosenberg had every reason to believe that the post
referred to the Respondent’s vehicle, and therefore that it was mali-
ciously false, which meant that it could not be protected activity.
friend’s car, it was not made for the purpose of mutual
aid or protection, and if it referred to the Respondent’s
vehicle, it was maliciously false.
For these reasons, we affirm the judge’s conclusion
that Respondent did not violate Section 8(a)(1) by termi-
nating Rice.11
III. RESPONSE TO THE DISSENT
Our dissenting colleague contends that Continental
Group is contrary to the Act, insofar as the decision per-
mits the Board to find a violation of Section 8(a)(1) when
an employee who has not engaged in protected concerted
activity is disciplined or discharged for violating an un-
lawfully overbroad employer rule.12 We have applied the
Board’s 2011 decision in Continental Group because it is
controlling precedent, traceable to a decision more than
40 years old.13 That no Federal court has rejected Board
doctrine in this area—and that two Federal Circuits have
upheld it14—confirms that we are relying on well-
established law. Indeed, the Respondent has argued that
the judge erred in failing to apply Continental Group
here (although, of course, the Respondent contends that
application of that decision should lead to a different
result with respect to Norvell’s discharge). The Board,
then, is not required to revisit Continental Group today.
Nevertheless, we address our colleague’s principal argu-
ments. All reflect a failure fully to come to terms with
the rationale of Continental Group: that, in some circum-
stances—but not all—the discipline or discharge of an
employee pursuant to an unlawful rule has a reasonable
tendency to chill the exercise of employees’ Section 7

11 See Flex Frac Logistics, LLC, 360 NLRB 1004 (2014) (finding no
violation under Continental Group); Food Services of America, Inc.,
360 NLRB 1012 (2014) (same).
12 Our colleague also reiterates his criticism of the Board’s well-
established approach to evaluating facial challenges to employer rules,
as reflected in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). The Board has rebutted our colleague’s arguments at length in
William Beaumont Hospital, 363 NLRB No. 162 (2016), and we reaf-
firm the Board’s position. There is no need here to reopen the debate,
not least because the Respondent concedes that its social media policy
was unlawful.
13 Miller’s Discount Dept. Stores, 198 NLRB 281 (1972), enfd. 496
F.2d 484 (6th Cir. 1974).
14 See NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475, 484
(1st Cir. 2011); Double Eagle Hotel & Casino, 414 F.3d 1249, 1258–
1259 (10th Cir. 2005), cert. denied 126 S.Ct. 1331 (2006). Contrary to
the dissent’s assertion, these decisions do indeed demonstrate that the
Double Eagle rule is well established. In Double Eagle, the Tenth
Circuit found “that the Board’s interpretation [was] reasonable,” ex-
plaining that “by adopting the rule that all disciplinary actions imposed
pursuant to an unlawful rule are unlawful, the Board reduces the
chilling effect that results from imposition of overbroad rules.” 414
F.3d at 1258. The employer’s appellate brief in Northeastern, mean-
while, shows that it did challenge the Double Eagle rule before the First
Circuit. And, as the dissent must concede, no court has rejected the
Board’s approach as contrary to the Act or otherwise flawed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
rights, in violation of Section 8(a)(1), even when the em-
ployee who violated the rule did not himself engage in
protected concerted activity.
A.
We briefly summarize the history of Board doctrine in
this area, culminating in Continental Group, which actu-
ally narrowed the scope of prior cases. As Continental
Group explained, the Board had “long adhered to and
applied the principle that discipline imposed pursuant to
an overbroad rule is unlawful,” often stating its rule “in
absolute terms,” but “never expressly set[ting] forth a
rationale for the rule nor a description of its scope.”15
The Board filled this doctrinal gap in Continental Group,
“set[ting] limits on [the rule’s] application.”16 (The Con-
tinental Group Board referred to the rule as the “Double
Eagle rule,” after a 2004 Board decision enforced by the
Tenth Circuit,17 but traced its origins to Miller’s Dis-
count, supra, a 1972 decision.)
Continental Group looked to the policies underlying
the Double Eagle rule, most significantly the need to
prevent a potential chilling effect on the exercise of em-
ployees’ Section 7 rights. This effect, the Board ex-
plained, is why an employer’s mere maintenance of
overbroad rules is held to violate Section 8(a)(1).18 In
turn, actual enforcement of such a rule against employees
has a “similar, or perhaps even greater, chilling effect.”19
This is obviously true where the employee had engaged
in protected concerted activity, the Board pointed out.
The Board then went on to examine two other situations.
First, where the unlawful rule was enforced against
conduct “wholly distinct from the activity that falls with-
in the ambit of Section 7,” the potential chilling effect is
“much less significant.”20 Accordingly, the Board reject-
ed the principle—suggested by earlier decisions—that
discipline or discharge pursuant to an overbroad rule is
always unlawful.
Second, the Board addressed cases where Section 7
was fairly implicated, even if the employee’s conduct did
not meet the test for protected concerted activity. In
those cases, the “much greater risk that employees would
be chilled in the exercise of their Section 7 rights”—in
comparison to cases involving conduct of no concern to

15 357 NLRB at 410.
16 Id.
17 Double Eagle Hotel & Casino, 341 NLRB 112 (2004), enfd. 414
F.3d 1249 (10th Cir. 2005), cert. denied 546 U.S. 1170 (2006). In
Double Eagle, the Board held that “where discipline is imposed pursu-
ant to an overbroad rule, that discipline is unlawful regardless of
whether the conduct could have been prohibited by a lawful rule.” 341
NLRB at 112, fn. 3.
18 357 NLRB at 411.
19 Id.
20 Id. at 412.
the Act—made it proper to apply the Double Eagle
rule.21 The Board did not precisely define the conduct
falling into this second category, but suggested that it
would include conduct that was not concerted, but was
for mutual aid or protection. It gave as an example “con-
duct that seeks higher wages,” as reflected in an earlier
Board decision where an employee who complained to
his employer’s client about an individual compensation
issue was discharged for violating an overbroad confi-
dentiality rule.22
Finally, Continental Group created a new affirmative
defense for employers, permitting them to avoid liability
for discipline imposed pursuant to an overbroad rule in
specified circumstances, as described earlier.23 In this
respect, too, Continental Group represents a careful nar-
rowing of the Double Eagle rule, which made no such
concession to an employer’s legitimate interests.
B.
Our dissenting colleague entirely rejects the clarifica-
tion set forth in Continental Group, despite an acknowl-
edgment that the Board’s decision went some way to-
ward addressing what dissenting Board members in ear-
lier cases had viewed as the flaws in the Double Eagle
rule. In our colleague’s view, the Act precludes the
Board from ever finding a violation of Section 8(a)(1)
when an employee who has not engaged in protected
concerted activity is disciplined or discharged for violat-
ing an unlawfully overbroad employer rule. The dissent
argues that the plain language of the Act—first, the text
of Section 7 and Section 8(a)(1); second, the text of Sec-
tion 10(c)—forecloses the approach taken in Continental
Group. The dissent also contends, as a matter of policy,
that the Board’s approach creates “too much uncertainty
because nobody can reasonably determine whether work
rules are unlawfully broad” under the standard estab-
lished in Lutheran Heritage Village, supra. We reject
both prongs of our colleague’s position. That position,
of course, leads him to an untenable result here: that an
employer should be free to fire an employee for—in vio-
lation of a concededly unlawful rule—informing a
coworker that she may file an unfair labor practice
charge with the Board to challenge her discharge.
1.
Contrary to our colleague, nothing in the text of the
Act precludes the Board from finding—in the circum-
stances delineated by Continental Group—that the disci-

21 Id.
22 Id., citing NLS Group, 352 NLRB 744 (2008), incorporated by
reference in 355 NLRB 1168 (2010), enfd. 645 F.3d 475 (1st Cir.
2011).
23 Id.
BUTLER MEDICAL TRANSPORT , LLC 7
pline or discharge of an employee who has not engaged
in protected concerted activity violates Section 8(a)(1).
Section 8(a)(1) makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in [S]ection
7.” In our colleague’s apparent view, this language can
only mean that where employees have not already exer-
cised their Section 7 rights, an employer’s actions, by
definition, can never “interfere with, restrain, or coerce
employees” in the “exercise of [those] rights.” That very
narrow interpretation of Section 8(a)(1) is not compelled
by the statutory language—far from it. It is obviously
possible for an employer to “restrain . . . employees in
the exercise of . . . rights” by creating a prior restraint on
that exercise. “[T]he Board has often held that an em-
ployer violates the Act when it acts to prevent future pro-
tected activity.”24
The dissent’s position would prevent the Board from
finding a violation when an employer has succeeded
completely in chilling Section 7 activity by implicitly or
explicitly threatening to punish it. This position has no
clear support in the case law, whether the Board’s deci-
sions or those of the Supreme Court.25 Indeed, our col-
league acknowledges (as the Board has long held) that an
employer’s mere maintenance of a rule that restricts pro-
tected concerted activity can be unlawful—regardless of
whether employees have ever exercised their Section 7
right to engage in that activity.26 At this point, the dis-
sent pivots to an argument that is based not on the statu-
tory text, but simply on a different, and debatable, judg-
ment about the chilling effect of an employer’s actions.
Our colleague asserts (1) that in the absence of protected
concerted activity, the chilling effect caused by discipline
or discharge based on an unlawful rule is identical to the
effect caused by the mere maintenance of the rule; and
(2) that this chilling effect is dispelled by ordering the
employer to rescind the rule and related remedies. We
disagree, essentially for the reasons suggested by the
Continental Group Board when it distinguished between

24 Parexel International, LLC, 356 NLRB 516, 519 (2011) (empha-
sis added; footnote collecting cases omitted). “To be sure,” the Board
has observed, “an employer may violate Section 8(a)(1) even where an
employee has not engaged in protected concerted activity. . . . ” World
Color (USA) Corp., 360 NLRB 227, 228 (2014) (citing cases), enf.
denied in part on other grounds 776 F.3d 717 (D.C. Cir. 2015).
25 If our colleague were correct, an employer would be free to fire an
employee it mistakenly suspected of engaging in Section 7 activity;
Board law, not surprisingly, holds otherwise. See, e.g., Monarch Water
Systems, Inc., 271 NLRB 558, 558 fn. 3 (1984).
26 E.g., Farah Mfg. Co., 187 NLRB 601, 602 (1970) (“As the mere
maintenance of the rule itself serves to inhibit the employees’ engaging
in otherwise protected organizational activity, the finding of a violation
is not precluded by the absence of specific evidence that the rule was
invoked as of any particular date against any particular employee.”).
cases where employees’ underlying conduct had no con-
nection to the Act and cases where the conduct, while not
deemed protected concerted activity, nevertheless impli-
cated the concerns of Section 7. When an employee sees
a coworker actually disciplined or discharged for conduct
that, in somewhat different circumstances, would be pro-
tected by the Act, the employee (not to mention the
coworker himself) is surely more likely to be chilled by
the enforcement of an unlawful rule than he would be by
the mere maintenance of the rule. The employer has
demonstrated that the rule is more than just words; it is a
basis for taking action against employees. It is therefore
appropriate to find the discipline or discharge unlawful
and to remedy it. Certainly nothing in the Act’s lan-
guage or legislative history compels the Board to take a
contrary approach. We believe that Continental Group
reflects not only a reasonable construction of the statute,
which the Board is entitled to adopt, but also the con-
struction that best furthers the Act’s goals.27
2.
The dissent also argues that Section 10(c), which pro-
hibits the Board from ordering reinstatement or backpay
to an employee “suspended or discharged for cause,”28
precludes the Continental Group approach. Here, too,
our colleague’s view is mistaken.
The dissent’s premise is that where an employee is
disciplined or discharged for violating an unlawful rule,
the discipline or discharge is “for cause” within the
meaning of Section 10(c) if the employee’s underlying
conduct was not protected concerted activity. The flaw
in this claim is clear. Under Continental Group, a disci-
pline or discharge can never be unlawful unless it is
predicated on an unlawful rule. That causal nexus be-
tween the violation of the unlawful rule and the disci-
pline or discharge establishes that the employer’s action
was not “for cause” in the statutory sense. As the Su-
preme Court has explained, the legislative history of Sec-
tion 10(c)
Indicates that it was designed to preclude the Board
from reinstating an individual who had been discharged
because of misconduct. There is no indication, howev-
er, that it was designed to curtail the Board’s power in
fashioning remedies when the loss of employment stems
directly from an unfair labor practice. . . .

27 “The Board . . . is given considerable authority to interpret the
provisions of the [National Labor Relations Act]. . . . If the Board
adopts a rule that is rational and consistent with the Act, . . . then the
rule is entitled to deference from the courts.” Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987). See, e.g., NLRB v.
Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1991).
28 29 U.S.C. §160(c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Fibreboard Paper Products v. NLRB, 379 U.S. 203, 217
(1964) (emphasis added; fn. omitted).29
In line with the Supreme Court’s Fibreboard decision,
the Board has held unlawful the discharge of an employ-
ee who violated an employer rule established unlawfully
in violation of the 8(a)(5) duty to bargain.30 Continental
Group is entirely consistent with the Board’s approach to
rule-based discipline and discharge under Section
8(a)(5). In neither situation is Section 10(c) an obstacle
to the Board’s approach.
Indeed, and notwithstanding the Supreme Court’s de-
cision in Fibreboard, insofar as Section 10(c) might be
interpreted to require the Board to consider whether dis-
cipline or discharge pursuant to an unlawful rule was
nevertheless “for cause,” the affirmative defense created
by Continental Group would satisfy such a requirement,
by recognizing that an employer’s legitimate interests
might outweigh the need to protect employees’ Section 7
rights in a particular case.31 Thus, just as the Supreme
Court has approved the Board’s Wright Line framework
in 8(a)(3) discrimination cases involving an employer’s

29 In Fibreboard, supra, the Court upheld a Board’s order reinstating
employees who had been terminated as the result of employer’s unilat-
eral subcontracting of work, in violation of the duty to bargain estab-
lished by Sec. 8(a)(5) of the Act. Our colleague’s view cannot be rec-
onciled with Fibreboard. In that case, the terminated employees had
not engaged in protected concerted activity and the employer’s decision
to engage in subcontracting was lawfully motivated: there was no pro-
hibited reason for terminating the employees. Rather, it was the deci-
sion to subcontract that was unlawful, because made unilaterally. The
dissent would seemingly have to conclude that while the subcontracting
might be remedied (like the unlawful rule in this case), the terminations
were “for cause” as the dissent interprets it—imposed in the absence of
a prohibited reason—and thus Sec. 10(c) prohibited a make-whole
remedy.
30 See, e.g., Consec Security, 328 NLRB 1201, 1201–1202 (1999);
Great Western Produce, Inc., 299 NLRB 1004 (1990). In Anheuser-
Busch, Inc., 351 NLRB 644, 650 (2007), cited by the dissent, a divided
Board overruled Great Western Produce, but only insofar as it was
inconsistent with the decision in that case, which held that Sec. 10(c)
precluded the Board from ordering a make-whole remedy for employ-
ees whose misconduct (in violation of an existing rule) had been dis-
covered by security cameras installed in violation of the 8(a)(5) duty to
bargain. The Anheuser-Busch Board, in turn, distinguished Consec
Security on its facts, because there it was “not clear . . . whether the
employees’ actions would have constituted ‘cause’ for discipline . . . if
the employer had not committed the unfair labor practices.” 351 NLRB
at 649. In short, the principle that discipline or discharge predicated on
a rule established in violation of Sec. 8(a)(5) is itself unlawful survived
Anheuser-Busch—as later cases confirm. See Total Security Manage-
ment Illinois 1, LLC, 364 NLRB No. 106, slip op. at 15 (2016), citing,
inter alia, Alta Vista Regional Hospital, 357 NLRB 326 (2011) (incor-
porating 355NRB 265, 267, 268 (2010)), enfd. 687 F.3d 1181 (D.C.
Cir. 2012).
31 There was no such showing here, as we have explained, nor does
Norvell’s conduct reflect anything close to the “misconduct” that con-
cerned Congress—yet our dissenting colleague would still hold that
Sec. 10(c) precludes finding a violation.
mixed motives—rejecting a challenge based in part on
Section 10(c)—so the Continental Group approach is
consistent with the Act, even as read by the dissent.32
3.
Our dissenting colleague’s final challenge to Continen-
tal Group is based on his disagreement with the Board’s
established test for addressing facial challenges to em-
ployer rules, as articulated 12 years ago in Lutheran Her-
itage Village, supra—and upheld by every federal court
of appeals to consider it.33 Here, our colleague renews
arguments that he first articulated in William Beaumont
Hospital, supra, and that were answered by the Board
there. In our colleague’s view, “[g]iven the unpredicta-
bility inherent in the Lutheran Heritage . . . standard, . . .
employers, when imposing discipline, have no reasona-
ble way of knowing whether they can or should rely on
the work rule that an employee has violated. . . .” But as
the Board pointed out in William Beaumont Hospital, the
challenge posed in determining the legality of employer
rules “is not a function of the Board’s legal standard,”
but rather is “inherent in the remarkable number, variety,
and detail of employer work rules. . ., drafted with differ-
ing degrees of skill and levels of sophistication.”34
Meanwhile, our colleague has proposed an alternative
standard for rules challenges “that would be harder to
apply” for reasons the Board has explained.35
We need not renew this debate here. It is enough to
point out that while Board cases involving facial chal-
lenges to employer rules are common, cases like this one,
involving discipline or discharge based on an allegedly
overbroad rule, are relatively rare. Indeed, the number of
hypothetical cases marshaled by the dissent to demon-
strate the supposedly absurd results that Continental
Group compels is roughly the same as the number of
reported Board decisions applying Continental Group
itself in the last 6 years—decisions that (like this one)

32 NLRB v. Transportation Management Corp., 462 U.S. 393 (1984),
approving Wright Line, 251 NLRB 1083 (1980), enfd., 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line,
if the General Counsel establishes that an employee’s protected con-
certed activity was a substantial or motivating factor in the employer’s
discipline or discharge, the employer may escape liability by establish-
ing, as an affirmative defense, that it would have taken adverse action
regardless of the employee’s protected conduct. The Transportation
Management Court observed that in enacting Sec. 10(c), Congress was
“not thinking of the mixed motive case,” but rather assumed “that dis-
charges were either ‘for cause’ or punishment for protected activity.”
462 U.S. at 401 fn. 6. Like a mixed-motive discharge, a discharge
predicated on an unlawful rule does not fit into the neat categories that
Congress contemplated.
33 See William Beaumont Hospital, supra, 363 NLRB No. 162, slip
op. at 3 & fn. 11 (collecting cases).
34 363 NLRB No.162, slip op. at 5 (fn. omitted).
35 Id., slip op. at 5–6.
BUTLER MEDICAL TRANSPORT , LLC 9
include the dismissal of allegations.36 Notably, both
Continental Group and Lutheran Heritage Village actu-
ally narrowed the relevant scope of Section 8(a)(1) in
their respective contexts.37 It is telling, then, that in the
more than four decades that the Double Eagle rule, in
some version, has been in effect, the ill effects hypothe-
sized by the dissent have not arisen.
. . .
For all of these reasons, then, we reject our colleague’s de-
mand that the Board revisit Continental Group. Rather, we
carefully apply that decision, as explained, to find one dis-
charge lawful and another, unlawful, reaching results that
should strike no one as absurd.
ORDER
The National Labor Relations Board orders that the
Respondent, Butler Medical Transport, LLC, Owings
Mills, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted activities.
(b) Discharging employees based on unlawful rules.
(c) Maintaining the social media policy and posting or
distribution of papers rules.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
William Norvell full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.

36 See fn. 16, supra (collecting cases). Contrary to the dissent, appli-
cation of Continental Group has not and will not lead to “absurd re-
sults.” And we simply note that in each of our dissenting colleague’s
hypothetical cases, he presumes that when discharging an employee for
unprotected and disruptive conduct, the employer would only cite the
employee’s violation of an overbroad rule and thus the employer would
not be able to assert an affirmative defense under Continental Group.
Contrary to the dissent, it is highly unlikely that the employer would
not also cite the employee’s conduct, Take for example one of the
dissent’s hypothetical cases: the discharge of an employee who banged
on trash can lids and shouted “I want a raise!” at 2 a.m. in a patient-care
area of a hospital. It is unlikely that the employer would only cite the
employee’s violation of its overbroad off-duty access rule. Rather, the
employer would likely also cite the employee’s interference with its
operation of the hospital, and thus, the employer could assert an affirm-
ative defense.
37 See William Beaumont Hospital, supra, 363 NLRB No. 162, slip
op. at 5 (explaining that Lutheran Heritage Village “gave greater
weight than prior decisions to employers’ interests,” citing dissent there
and academic commentary).
(b) Make William Norvell whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him in the manner set forth in the remedy
section of the decision.
(c) Compensate William Norvell for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 5,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify William Norvell in
writing that this has been done and that the discharge will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Rescind the social media policy and posting or dis-
tribution of papers rule.
(g) Furnish employees with inserts for the current em-
ployee handbook that (1) advise that the unlawful provi-
sions have been rescinded, or (2) provide lawfully word-
ed provisions on adhesive backing that will cover the
unlawful provisions; or publish and distribute to employ-
ees revised employee handbooks that (1) do not contain
the unlawful provisions, or (2) provide lawfully worded
provisions.
(h) Within 14 days after service by the Region, post at
all its facilities copies of the attached notice marked
“Appendix.”38 Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-

38 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 1, 2010.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 27, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, concurring in part and dissenting
in part.
This case involves two sets of established principles
involving the National Labor Relations Act (NLRA or
Act), and a pair of cases—Double Eagle Hotel & Casi-
no1 and Continental Group, Inc.2—that combine these
principles in a manner that, in my view, impermissibly
deviates from the Act’s express language.
The first set of principles involves the difference be-
tween “protected” and “unprotected” employee activities
under Section 7 of the Act.3 If an employee’s activities

1 341 NLRB 112 (2004), enfd. as modified 414 F.3d 1249 (10th Cir.
2005).
2 357 NLRB 409 (2011), incorporating in part 353 NLRB 348
(2008). The Board’s original decision in 2008 was rendered by a two-
member Board, which was found to be unconstitutional by the Supreme
Court based on the absence of a valid quorum, New Process Steel, L.P.
v. NLRB, 130 S.Ct. 2635 (2010), resulting in a remand to the Board by
the D.C. Circuit. See 357 NLRB at 409.
3 Sec. 7 of the Act states: “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 en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that such a
right may be affected by” a union-security agreement. The Board’s
standards for determining whether conduct is “concerted” are set forth
are protected, then discipline based on those actions vio-
lates Section 8(a)(1), which states it is unlawful for an
employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section 7.”4
If the employee’s activities are unprotected, then disci-
pline based on those activities does not violate Section
8(a)(1).
The second set of principles relates to whether “facial-
ly neutral” employment policies, handbook provisions or
work rules (collectively “rules”) impose restrictions that
are unlawfully broad.5 In a long line of cases, the Board
has found that facially neutral rules—rules that do not
expressly prohibit protected activity, have not been ap-
plied to restrict protected activity, and were not adopted
in response to protected activity—violate Section 8(a)(1)
if the Board believes employees would reasonably con-
strue them to prohibit some type of protected activity that
employees might wish to undertake in the future.6
The pair of decisions at issue here—Double Eagle and
Continental Group—produce incongruous outcomes

in the Meyers Industries cases. See Meyers Industries, 268 NLRB 493
(1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on remand Meyers
Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988). For a discussion of these standards and additionally the re-
quirement under Sec. 7 that, to be protected, concerted activity must be
“for the purpose” of “mutual aid or protection,” see Fresh & Easy
Neighborhood Market, Inc., 361 NLRB No. 12, slip op. at 11–19
(2014) (Member Miscimarra, concurring in part and dissenting in part).
4 Sec. 8(a)(1).
5 I use the term “facially neutral” to describe rules that do not ex-
pressly restrict Sec. 7 activity, were not adopted in response to Sec. 7
activity, and have not been applied to restrict Sec. 7 activity. Cf. Lu-
theran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004)
(Lutheran Heritage).
6 See Lutheran Heritage, 343 NLRB at 647. For reasons I ex-
plained at length in William Beaumont Hospital, 363 NLRB No. 162,
slip op. at 7–24 (2016) (Member Miscimarra, concurring in part and
dissenting in part), I disagree with the “reasonably construe” standard
established in Lutheran Heritage, supra. Rather, I believe a facially
neutral rule should be deemed unlawful only if the Board considers
both the potential adverse impact of the rule on protected activity and
the legitimate justifications associated with the rule and, having done
so, if the Board concludes that the justifications are outweighed by the
rule’s adverse impact on protected activity. Id., slip op. at 9.
Notwithstanding my disagreement with the Lutheran Heritage “rea-
sonably construe” standard, I believe Double Eagle and Continental
Group are contrary to the Act and should be overruled regardless of
whether one applies the “reasonably construe” test adopted in Lutheran
Heritage or the balancing test I advocated in William Beaumont Hospi-
tal. In addition, I note that there are no exceptions to the judge’s find-
ings that the Respondent’s facially neutral work rules—specifically, its
social media policy and its rule regarding the unauthorized posting and
distribution of papers—were unlawfully broad in violation of Sec.
8(a)(1). By failing to except, the Respondent has waived its right to
challenge these findings (see Sec. 102.46(b)(2) of the Board’s Rules
and Regulations), and I do not reach or pass on the legality of these
policies.
BUTLER MEDICAL TRANSPORT , LLC 11
where (i) an employee has engaged in unprotected activi-
ties, which means discipline based on the employee’s
actions would normally be lawful, and (ii) the employer,
when imposing discipline, relies on a facially neutral rule
that, according to the Board, is unlawfully broad. Again,
in this situation, the disciplined employee’s activities are
unprotected by Section 7, and the facially neutral rule is
not deemed unlawful for any reason that pertains to the
employee who has been disciplined. Rather, the rule
violates the Act because it may be reasonably construed
to restrict employees’ right to engage in protected activi-
ty in the future. When the Board applies Double Eagle
and Continental Group where the employee’s conduct is
unprotected, three outcomes are produced that I believe
are contrary to our statute. First, unprotected conduct is
treated like conduct that is protected by Section 7, even
though it is not. Second, lawful discipline imposed be-
cause of the employee’s unprotected conduct is deemed
unlawful. Thus, although Section 8(a)(1) only prohibits
interference with or restraint or coercion of “employees
in the exercise of [Section 7] rights,”7 the Board finds a
violation even though the employee did not exercise any
Section 7 right. Third, even if the employee was sus-
pended or discharged for “cause,” the Board orders
backpay and reinstatement, which is contrary to the
mandate in Section 10(c) of the Act that “[n]o order of
the Board shall require the reinstatement of any individu-
al as an employee who has been suspended or dis-
charged, or the payment to him of any backpay, if such
individual was suspended or discharged for cause.”8
The Board is constrained to apply the statute that Con-
gress enacted. If employee actions are unprotected by

7 Sec. 8(a)(1) (emphasis added).
8 In some circumstances, an employee may lawfully be subject to
discipline even though the discipline is based on activities that are (or
were initially) protected under the Act. For example, an employee may
be lawfully disciplined for engaging in union-related solicitation during
working time in violation of an employer’s lawful no-solicitation poli-
cy. See Peyton Packing, 49 NLRB 828, 843 (1943), enfd. 142 F.2d
1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944). An employee
also may be lawfully disciplined if the employee engages in misconduct
in the course of his protected activity that forfeits the Act’s protection.
See Atlantic Steel, 245 NLRB 814 (1979). And discipline is lawful
where the employee’s protected activity is a motivating factor in the
discipline, but the employer demonstrates that it would have imposed
the discipline even in the absence of the employee’s protected activi-
ties. See Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In the first situation,
Double Eagle and Continental Group do not apply because the rule the
employer applies is lawful. In the second and third situations, if the
employer applies an unlawfully broad rule when imposing discipline,
the discipline should nonetheless remain lawful, either because the
Act’s protection has been lost or the employee would have been disci-
plined anyway for lawful reasons. Accordingly, for purposes of my
discussion, I include the second and third situations in the category of
“unprotected” conduct, unless the context clearly indicates otherwise.
Section 7, an employer can lawfully impose discipline
based on such unprotected actions. Moreover, if the dis-
ciplined conduct is unprotected, it follows that the disci-
pline is for cause, since “[c]ause, in the context of Sec.
10(c), effectively means the absence of a prohibited rea-
son.”9 Accordingly, when an employee is suspended or
discharged for unprotected conduct, the suspension or
discharge is for “cause,” and Section 10(c) prohibits the
Board from ordering reinstatement or backpay, regard-
less of whether the employer invoked an unlawfully
broad rule when it suspended or discharged the employ-
ee. Moreover, the Board has appropriate remedies to
address the unlawful rule, including (i) a cease-and-desist
order prohibiting ongoing maintenance of the unlawfully
broad rule, (ii) an affirmative order requiring that the rule
be rescinded, and (iii) a further affirmative requirement
that the employer post a notice informing employees that
it will comply with the cease-and-desist and rescission
orders. But when an employer dealing with unprotected
conduct invokes or applies a facially neutral rule that the
Board finds to be unlawfully broad, it exceeds the
Board’s remedial authority to formulate additional penal-
ties that directly contradict the Act’s other provisions.10
Additionally, I believe the analysis required under Con-
tinental Group is too complicated to permit employees,
employers and unions to reasonably determine when
discipline for various infractions is permitted or prohibit-
ed.
For all these reasons, I believe Double Eagle and Con-
tinental Group were wrongly decided and should be
overruled. In my view, the Board’s treatment of em-
ployee activities and employer discipline should reflect
the straightforward application of the “protect-
ed/unprotected” distinction. If the Board determines that
an employer has maintained and invoked a rule that is
unlawfully broad, the Board should apply the standard
remedies for unlawfully broad rules. But it exceeds the

9 Anheuser-Busch, Inc., 351 NLRB 644, 647 (2007); Taracorp In-
dustries, 273 NLRB 221, 222 fn. 8 (1984).
10 Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940); Consolidat-
ed Edison Co. v. NLRB, 305 U. S. 197, 235–236 (1938). Although the
Board has broad remedial authority, it is well established that the Board
is limited to remedies appropriately tailored to the violation at issue,
and it is foreclosed from imposing broader punitive remedies. See
Republic Steel Corp. v. NLRB, 311 U.S. at 12 (the Board is not “free to
set up any system of penalties which it would deem adequate” to “have
the effect of deterring persons from violating the Act”); Consolidated
Edison Co. v. NLRB, 305 U. S. at 235–236 (Board’s authority to devise
remedies “does not go so far as to confer a punitive jurisdiction ena-
bling the Board to inflict upon the employer any penalty it may choose
because he is engaged in unfair labor practices, even though the Board
be of the opinion that the policies of the Act might be effectuated by
such an order”). Cf. HTH Corp. d/b/a Pacific Beach Hotel, 361 NLRB
No. 65, slip op. at 18–19 (2014) (Member Miscimarra, concurring in
part and dissenting in part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Board’s remedial authority to declare discipline based on
unprotected conduct a violation of Section 8(a)(1), since
(i) discipline based on unprotected conduct does not in-
terfere with, restrain, or coerce employees in the exercise
of their right to engage in protected activities, and (ii)
discipline based on unprotected conduct is for “cause,”
and when that discipline is suspension or discharge, Sec-
tion 10(c) prohibits the Board from ordering reinstate-
ment and/or backpay.
Accordingly, I respectfully dissent from my col-
leagues’ reliance on Continental Group. Regarding the
two discharges at issue here involving employees Wil-
liam Norvell and Michael Rice, I would find that both
Norvell and Rice were discharged for conduct that was
unprotected under Section 7, which warrants a finding
that their discharges were lawful. Thus, I concur with
my colleagues’ finding that Rice’s discharge did not vio-
late Section 8(a)(1) of the Act, and I dissent from my
colleagues’ finding that Norvell’s discharge violated Sec-
tion 8(a)(1).
Facts
The Respondent provides ambulance transportation to
patients at hospitals, nursing homes, and other facilities.
The Respondent employed William Norvell as an emer-
gency medical technician.
On October 10, 2012, an employee whom the Re-
spondent had recently discharged, Chelsea Zalewski,
posted the following message on her Facebook page:
“Well no longer a butler employee . . . Gotta love the fact
that a ‘professional’ company is going to go off what a
dementia pt says and hangs up on you when you are in
the middle of asking a question.” Zalewski had been
Norvell’s work partner.
Several people posted comments in response to Zalew-
ski’s post. In response to inquiries about what the patient
had reported to the Respondent, Zalewski wrote, “The pt
said I told her that they never fix anything on the units
. . . Yeah i no that pt I’m not dumb enough to tell her let
alone any pt how shitty those units are they see it all on
their own.”
In response to Zalewski’s statements, Norvell posted
the following comment: “Sorry to hear that but if you
want you may think about getting a lawyer and taking
them to court.” Another individual commented that
Zalewski should seek employment with an ambulance
company called Procare. Zalewski stated that she did not
have money for a lawyer and asked where Procare was
located. Norvell answered that it was located in Towson,
Maryland. He then added, “You could contact the labor
board too.” This concluded their exchange.
An anonymous source left printed screen shots of parts
of the Facebook conversation on the desk of the Re-
spondent’s human resources director, Ellen Smith.
Smith and the Respondent’s chief operating officer, Wil-
liam Rosenberg, determined that Norvell’s Facebook
posts violated the Respondent’s social media policy, and
they decided to terminate Norvell’s employment. On
October 22, Norvell admitted to Smith and Rosenberg
that he had posted on Zalewski’s Facebook page on Oc-
tober 10. Smith told Norvell that he had violated the
social media policy.11 The Respondent did not give
Norvell any reason for his termination other than his Oc-
tober 10 Facebook posts.
On January 14, 2013, employee Michael Rice posted
the following message on Facebook: “Hey every-
body!!!!! I’M FUCKIN BROKE DOWN IN THE
SAME SHIT I WAS BROKE IN LAST WEEK
BECAUSE THEY DON’T WANNA BUY NEW
SHIT!!!! CHA-CHINNNGGGGGG CHINNNG—at
Sheetz Convenience Store.” Two people clicked “like”
on Rice’s post, and two people commented on it.
An anonymous source left a printout of a screen shot
of Rice’s post underneath Smith’s door. Smith showed
the post to Rosenberg, who conducted an investigation.
Rosenberg determined that Rice’s vehicle had not broken
down on the day he wrote the post, and he concluded that
Rice’s post was false. The Respondent discharged Rice,
citing violation of the social media policy. At a subse-
quent unemployment benefits hearing, Rice testified that
he was referring to his girlfriend’s car, not one of the
Respondent’s vehicles. Although the Respondent sub-
poenaed Rice to testify as a witness in the instant unfair
labor practice case, Rice refused to testify, citing his
Fifth Amendment right not to incriminate himself.
Discussion
A. The Decisions in Double Eagle and Continental
Group Are Contrary to the Act and Should Be
Overruled0
In a line of cases culminating with Double Eagle Hotel
& Casino,12 the Board adopted the principle that, regard-
less of whether an employee’s actions are protected or
unprotected under Section 7, an employer violates Sec-
tion 8(a)(1) whenever it imposes discipline pursuant to a
facially neutral rule that is unlawfully broad.13 However,
several Board members have expressed disagreement
with this principle. In Double Eagle, then-Chairman

11 As stated above, there are no exceptions to the judge’s finding that
this policy is unlawful.
12 341 NLRB 112 (2004), enfd. as modified 414 F.3d 1249 (10th Cir.
2005).
13 See Saia Motor Freight Line, 333 NLRB 784, 785 (2001); Opry-
land Hotel, 323 NLRB 723 (1997); A.T. & S.F. Memorial Hospitals,
234 NLRB 436 (1978); Miller’s Discount Dept. Stores, 198 NLRB 281
(1972), enfd. 496 F.2d 484 (6th Cir. 1974).
BUTLER MEDICAL TRANSPORT , LLC 13
Battista stated: “[W]here the record clearly establishes
that the discipline imposed was for conduct that an em-
ployer lawfully can proscribe, and the employer makes
clear to the employees that their discipline is for this
conduct, I would not find that the discipline violates Sec-
tion 8(a)(3).”14 In Saia Motor Freight Line, then-
Member Hurtgen stated: “I do not agree that disciplinary
action which is imposed pursuant to an unlawful rule is
necessarily unlawful. For example, if an employer has a
rule that is unlawfully broad (e.g., solicitation is banned
at all times), that rule would not necessarily render un-
lawful the application of the rule to warn an employee to
stop soliciting during worktime.”15 In Miller’s Discount
Dept. Stores, the majority applied the same principle—
discipline imposed pursuant to an unlawfully broad rule
is unlawful—and then-Chairman Miller criticized the
majority’s decision for repeating “an error which seems
to underlie a number of Board decisions,” which he de-
scribed as “the mechanistic application of the syllogism
which runs: (a) the rule is bad; (b) the discipline was
pursuant to the rule; (c) therefore, the discipline is bad.”
Chairman Miller disagreed with the blanket invalidation
of all discipline imposed pursuant to an unlawfully broad
rule, with the following explanation:
In reflecting on this area of the law . . . , I have
concluded that in assessing the lawfulness or unlaw-
fulness of employer imposed discipline in any case,
we must focus upon: (1) whether, on the facts of the
case, the discipline interfered with the legitimate ex-
ercise of Section 7 rights and therefore violated Sec-
tion 8(a)(1); (2) whether the discipline discriminated
against an employee so as “to encourage or discour-
age membership in any labor organization”; and (3)
whether, under Section 10(c) of the Act, we are for-
bidden to order reinstatement because the individual
was “suspended or discharged for cause.”
Thus, if an employee is disciplined for engaging
in conduct which an employer may lawfully prohib-
it—i.e., utilizing worktime for engaging in nonpro-
ductive activity, whatever its nature, including the
use of such working time for union activity—it
would seem that there is no per se interference with
employee rights under Section 8(a)(1). Nor would
such discipline constitute 8(a)(3) discrimination un-
less it were shown that the employee who utilized
such working time for union activity was treated
more harshly than other employees apprehended

14 Double Eagle Hotel & Casino, 341 NLRB at 116––117 (Chairman
Battista, concurring in part and dissenting in part).
15 Saia Motor Freight Line, 333 NLRB at 785–786 (Member Hurt-
gen, concurring).
while engaging in a like, but not union-connected,
prohibited use of working time. Further, if there is
no such interference or discrimination shown and we
order an employee reinstated, I fear we have run
afoul of Section 10(c) in that we have ordered rein-
stated an employee who was discharged for conduct
which an employer may lawfully, and did, prohibit.
As to the too easy application of the syllogism
underlying some of our decisions, including that of
the majority here, its fallacy lies in failing to exam-
ine the nature of the conduct for which the discipline
was imposed and to limit our investigation only to
the rule. The rule, as here, may require modification
in order to conform to our statute, and we may so
order as a remedy for its unlawful maintenance in its
impermissible form. But the conduct may be such as
to justify discipline, whether or not the rule itself
might in some other instance have been applied so as
to have reached protected conduct for which we
would not allow discipline to be imposed.16
In Continental Group, the Board was forced to con-
front the fundamental problem to which Double Eagle
gives rise: invalidating all discipline imposed pursuant
to an unlawfully broad rule—even when the discipline
was obviously warranted—produces absurd outcomes. It
certainly would have in Continental Group itself. There,
employee Gonzalez worked as a front desk concierge for
a condominium association, he became homeless, and
residents reported that he had been sleeping in a common
area of the condominium building and living out of his
car in the condominium’s parking lot.17 The employer

16 Miller’s Discount Dept. Stores, 198 NLRB at 283 (Chairman Mil-
ler, dissenting) (emphasis added). Notwithstanding the cogent criti-
cisms levied against the Double Eagle rule by former Board members,
my colleagues characterize that rule as “well-established law,” citing in
particular NLRB v. Northeastern Land Services, Ltd., 645 F.3d 475 (1st
Cir. 2011), and Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249
(10th Cir. 2005). These two appellate decisions provide tepid support
at best for my colleagues’ position. In Northeastern Land Services, the
court’s decision on this issue appeared to be driven by the deferential
standard of review the court applied rather than the merits of the Dou-
ble Eagle rule itself, about which the court said nothing. Similarly, in
Double Eagle Hotel & Casino, the Tenth Circuit stated that it was
adopting the majority’s position “in large part on the amount of defer-
ence we are required to give the Board’s interpretation of the NLRA,”
notwithstanding that Chairman Battista’s separate opinion “ma[de] a
strong argument” against the Double Eagle rule. 414 F.3d at 1258.
Moreover, as my colleagues themselves acknowledge, the entire line of
cases applying the Double Eagle rule—spanning more than 30 years—
rested on no rationale whatsoever; and when the Board attempted to
furnish the missing rationale in Continental Group, it concluded that
the Double Eagle rule could not be justified as previously formulated
and had to be substantially revised. Thus, the Double Eagle rule may
have been of long duration, but it was hardly “well established.”
17 353 NLRB at 349–350.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
issued the employee a written warning for “frequenting
the property” and “loitering on the property” in violation
of an off-duty access rule. However, the employer’s off-
duty access rule was unlawfully broad because it failed
to satisfy specific requirements applicable to no-access
rules for off-duty employees that the Board adopted in
Tri-County Medical Center.18 Consequently, the Board
in Continental Group was presented with two options.
One option was to apply Double Eagle, even though do-
ing so would produce a ridiculous outcome: if the Board
found an unfair labor practice violation, it would effec-
tively be finding that the NLRA gives employees the
right to sleep in the workplace and to live out of their
cars in their employer’s parking lot. Consistent with the
criticisms levied by past Board members against the
Double Eagle principle, the second option presented in
Continental Group was for the Board to acknowledge
that the Double Eagle standard was fundamentally
flawed.
The Board circumvented both of these and discovered
yet a third option, issuing what it called a “clarification”
of the Double Eagle rule.19 Under Continental Group,
the Board would no longer categorically hold that all
discipline imposed pursuant to a facially neutral but un-
lawfully broad rule is unlawful. Rather, some discipline
pursuant to unlawfully broad rules would be deemed
permissible under the Act, while other discipline pursu-
ant to unlawfully broad rules would violate the Act. The
convoluted, multistage “clarification” set forth in Conti-
nental Group is not necessarily easy to grasp, but it fo-
cuses on four considerations.
First, the Board started from the same principles that
the Board applies in cases where it invalidates a facially
neutral rule that is found to be unlawfully broad: “the
existence of an overbroad rule violates the Act based on
its potential chilling effect on employees’ exercise of
their Section 7 rights,” and “the mere maintenance of an
overbroad rule tends to inhibit employees who are con-
sidering engaging in legally protected activities by con-

18 222 NLRB 1089 (1976). Under Tri-County, a no-access rule for
off-duty employees “is valid only if it (1) limits access solely with
respect to the interior of the plant and other working areas; (2) is clearly
disseminated to all employees; and (3) applies to off-duty employees
seeking access to the plant for any purpose and not just to those em-
ployees engaging in union activity.” 222 NLRB at 1089. In Continen-
tal Group, the off-duty no-access rule failed to comply with the first
Tri-County requirement. In relevant part, it provided (with certain
exceptions) that “[e]mployees are only permitted to be on property
while on duty.” 357 NLRB at 410. Thus, the rule did not limit access
for off-duty employees “solely with respect to the interior of the plant
and other working areas.” 222 NLRB at 1089.
19 357 NLRB at 410.
vincing them to refrain from doing so rather than risk
discipline.”20
Second, the Board asserted that “because the mere
maintenance of an overbroad rule creates a potential
chilling effect on the exercise of protected rights, it is
reasonable to infer that the enforcement of such a rule
would have a similar, or perhaps even greater, chilling
effect on the exercise of protected rights, even if it is en-
forced against activity that could have been proscribed
by a properly drawn rule.”21
Third, the Board focused on the protected nature of
certain employee activities (for example, union-related
solicitation), even though such activities could lawfully
be restricted by an employer pursuant to a valid rule (for
example, a no-solicitation policy that prohibits all solici-
tation during working time). The Board stated, however,
that “in the absence of a valid employer rule prohibiting
[protected] employee conduct . . . the conduct maintains
its protected status.”22
Finally, the Board in Continental Group articulated its
“clarification” of Double Eagle by addressing the appli-
cation of the Double Eagle principle in each of three dif-
ferent situations:23
(1) situations where the “conduct for which an employ-
ee is disciplined under an overbroad rule clearly falls
within the protection of Section 7,” in which case the
Double Eagle rule will apply (meaning that discipline
pursuant to the unlawfully broad rule will be unlawful),
unless the employer satisfies a new “affirmative de-
fense” (see explanation of the affirmative defense be-
low);24
(2) “situations in which the conduct for which an em-
ployee is disciplined is wholly distinct from activity that
falls within the ambit of Section 7 (e.g., sleeping on the
Employer’s premises when off duty),” in which case
the Double Eagle rule does not apply (meaning that
discipline pursuant to the unlawfully broad rule will be
lawful);25 and (3) “situations in which an employer
disciplines an employee pursuant to an overbroad rule
for conduct that touches the concerns animating Sec-
tion 7 (e.g., conduct that seeks higher wages) but is not
protected by the Act because it is not concerted,” in
which case the Double Eagle rule will apply (meaning
that discipline pursuant to the unlawfully broad rule
will be unlawful), unless the employer satisfies a new

20 357 NLRB at 411 (citations omitted).
21 Id. (emphasis added).
22 Id.
23 The Board’s opinion in Continental Group did not separately
number these categories.
24 Id. at 411–412 (emphasis added).
25 Id. at 412 (emphasis added).
BUTLER MEDICAL TRANSPORT , LLC 15
“affirmative defense” (see explanation of the affirma-
tive defense below).26
The affirmative defense created in Continental Group,
which relates to discipline based on conduct that falls
into categories 1 and 3 above, requires the employer to
clearly separate (i) the adverse impact of the employee’s
actions on “work” or the “employer’s operations” (in
which case the discipline might be permissible) from (ii)
the employee’s violation of the unlawfully broad rule.
The Board described the affirmative defense as follows:
[A]n employer will avoid liability for discipline im-
posed pursuant to an overbroad rule if it can establish
that the employee’s conduct actually interfered with the
employee’s own work or that of other employees or
otherwise actually interfered with the employer’s oper-
ations, and that the interference, rather than the viola-
tion of the rule, was the reason for the discipline. . . . It
is the employer’s burden, not only to assert this affirm-
ative defense, but also to establish that the employee’s
interference with production or operations was the ac-
tual reason for the discipline. In this regard, an em-
ployer’s mere citation of the overbroad rule as the basis
for discipline will not suffice to meet its burden. Ra-
ther, assuming that the employer provides the employ-
ee with a reason (either written or oral) for its imposi-
tion of discipline, the employer must demonstrate that it
cited the employee’s interference with production and
not simply the violation of the overbroad rule. . . .27
This affirmative defense reflects at least some recognition
that, even though a work rule may have been poorly drafted
or ambiguous, the Board should not always indiscriminately
invalidate discipline that may have been imposed for com-
pelling reasons. For example, employee misconduct may
constitute unlawful harassment, cause extensive interference
with production, or even cause the death of other employ-
ees. However, I believe this affirmative defense is beset
with several rather obvious problems.
(i) The distinction drawn by the affirmative defense is
difficult to square with common sense. If certain types
of misconduct interfere with “work” or the employer’s
“operations,” this explains why the employer adopted a
work rule prohibiting the misconduct, which means the
misconduct will violate the work rule and it will inter-
fere with “work” and/or “operations.” Therefore, in
nearly all cases it will be impossible for the employer
to prove that the “reason for the discipline” was the “in-

26 Id. (emphasis added).
27 Id. (emphasis added; citations omitted).
terference” with work or operations “rather than the
violation of the rule.”28
(ii) If an employee engages in misconduct that violates
a work rule in addition to adversely affecting “work”
and/or “operations,” the Board’s own cases compel the
employer to rely on the work rule violation when im-
posing discipline because the existence and application
of a preexisting work rule is often critical evidence that
the employee would have been disciplined for the mis-
conduct even in the absence of the employee’s protect-
ed activities, which the employer must prove under the
Board’s Wright Line test governing alleged mixed-
motive situations. Similarly, arbitration cases decided
under a contractual “just cause” standard emphasize the
need for an employer to have relied on a preexisting
work rule that placed the employee on notice that his or
her actions would result in discipline or discharge.29
(iii) Nobody can reliably predict in advance what con-
stitutes an unlawfully broad rule under current Board
case law.30 Therefore, at the time that an employer im-
poses discipline based on employee conduct that vio-
lates an existing rule in addition to interfering with
“work” or “operations,” many employers—even if they
parse the Board’s many cases dealing with overly
broad rules—have no reasonable way to know whether
or not the rule violated by the employee is lawful (in
which case the Double Eagle/Continental Group prin-
ciples would not apply) or is unlawfully broad (in
which case, under the Continental Group affirmative
defense, the employer must disclaim reliance on the
violated rule and instead emphasize that the employee
has adversely affected “work” and/or the employer’s
“operations”).

28 Id. at 412 (emphasis added).
29 See, e.g., Roger I. Abrams and Dennis R. Nolan, Toward a Theory
of “Just Cause”in Employee Discipline Cases, 1985 DUKE L.J. 594,
where the authors noted that the “most comprehensive” and oft-cited
description of “just cause” requires that the employer have given the
employee “forewarning or foreknowledge of the possible or probable
disciplinary consequences of the employee’s conduct,” which entails,
among other things, inquiry into whether the employer had “typed or
printed sheets or books of shop rules and of penalties for violation
therefore,” with “actual oral or written communication of the rules and
penalties to the employee,” although “certain offenses . . . are so serious
that any employee in the industrial society may properly be expected to
know already that such conduct is offensive and heavily punishable.”
Id. at 599–600 fn. 30 (citing Grief Bros. Cooperage Corp., 42 Lab.
Arb. (BNS) 555, 557–559 (Arb. Carroll R. Daugherty, 1964)).
30 This is a substantial reason (but certainly not the only reason) that
the Board’s current standard for determining whether mere mainte-
nance of a facially neutral work rule violates the Act should be aban-
doned by the Board, as I advocated in William Beaumont Hospital,
supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
For the following reasons, I believe Double Eagle and
the “clarification” adopted in Continental Group31 are
contrary to the Act and should be overruled by the Board
or repudiated by the courts.
(1) The Board’s decisions in Double Eagle and Conti-
nental Group are contrary to Section 7 and Section
8(a)(1) of the Act
If conduct is protected by Section 7—i.e., if it falls
within Continental Group category 1—then discipline
based on such conduct violates the Act based on a
straightforward application of Section 7’s protect-
ed/unprotected distinction, which means there is no need
in such cases for the duplicative analysis set forth in
Continental Group.32 Likewise, if conduct is unprotected

31 In the three-part “clarification” of Double Eagle that the Board
adopted in Continental Group, categories 1 and 2 mirror the “protect-
ed/unprotected” distinction embodied in Sec. 7. Thus, in category 1
situations, the Board will find it unlawful to impose discipline based on
conduct that “clearly falls within the protection of Section 7,” Conti-
nental Group, 357 NLRB at 411—but discipline for such conduct
would normally violate the Act regardless whether the employer relied
on an unlawfully broad rule. Conversely, in category 2 situations, the
Board will find it lawful to impose discipline based on conduct that “is
wholly distinct from activity that falls within the ambit of Section 7,”
id. at 41, but discipline in these circumstances would be lawful based
on the straightforward application of Sec. 7.
My criticisms of the “clarification” adopted in Continental Group
relate specifically to category 3, where the Board would find it unlaw-
ful to impose discipline even though the conduct is unprotected, and
even though “cause” exists for an employee’s suspension or discharge.
See Continental Group, 357 NLRB at 412 (finding discipline unlawful
where the employee’s conduct “touches the concerns animating Section
7 . . . but is not protected by the Act because it is not concerted”). In
this circumstance, Double Eagle and Continental Group treat the em-
ployee’s unprotected conduct as if it were protected, which is contrary
to Sec. 7, and if the employee was suspended or discharged, the Board
orders backpay and reinstatement, even though Sec. 10(c) of the Act
prohibits the Board from providing reinstatement or backpay when
employees are suspended or discharged for “cause.”
32 There is one exception where conduct that technically falls within
Continental Group category 1—conduct that is protected under Sec.
7—ends up being treated differently based on Double Eagle and Conti-
nental Group. Certain types of protected activity may nonetheless be
lawfully restricted. For example, employees have a protected right to
engage in union-related solicitation, but employers may lawfully pro-
hibit solicitation during working time. Peyton Packing, 49 NLRB at
843. Thus, although union-related solicitation is protected under Sec.
7, an employer may lawfully prohibit it during working time if the
employer has an appropriately worded rule. However, if the employer
has an unlawfully broad rule—for example, a rule prohibiting solicita-
tion during “working hours”—see Our Way, Inc., 268 NLRB 394, 394–
395 (1983); Essex International, 211 NLRB 749, 750 (1974)—Double
Eagle and Continental Group make it unlawful for the employer to
apply the unlawfully broad rule, even though the employee disciplined
under that rule could have been lawfully disciplined if the employer’s
no-solicitation rule had been limited to working time.
The Board in Continental Group defended this result by equating
cases involving an unlawfully broad rule with cases involving no rule.
In this regard, Continental Group relied on Trico Industries, 283 NLRB
848 (1987). See 357 NLRB at 411. In Trico Industries, the Board held
by Section 7 and “is wholly distinct from activity that
falls within the ambit of Section 7,” 357 NLRB at 412—
that is, if the conduct falls within Continental Group
category 2—then discipline would be lawful based,
again, on the straightforward application of Section 7’s
protected/unprotected distinction. Thus, in Continental
Group category 1 and 2 cases, there is no need for the
separate analysis set forth in Continental Group.
However, as noted previously, Double Eagle (in cate-
gory 2 and 3 cases) and Continental Group (in category 3
cases) treat unprotected conduct the same as activity pro-
tected under Section 7. As described above, in Continen-
tal Group category 3 cases, the Board finds that disci-
pline violates Section 8(a)(1) when it is based on conduct
that “touches the concerns animating Section 7 . . . but is
not protected by the Act because it is not concerted.”33
Nothing in the Act permits the Board to find that Section

that if the employer has no rule barring solicitation, then if employees
engage in union-related solicitation on working time, the employer
cannot lawfully discipline them unless the evidence shows that “the
employer . . . acted in response to an actual interference with, or dis-
ruption of work.” 283 NLRB at 852 (emphasis in original). I do not
pass on the soundness of Trico Industries, but the rationale for this “no
rule” holding does not translate to cases involving application of an
unlawfully broad rule. In Trico Industries, the Board reasoned that
when an employer has no rule restricting protected conduct that may be
lawfully restricted, an inference is warranted that discipline based on
such protected conduct stems from a desire to penalize the protected
aspect of the employee’s activities:
“A discharge based on work time . . . [activity] . . . in the
absence of a valid rule is suggestive that the employer was
reacting to the protected aspect of the employee's conduct,
rather than considerations of plant efficiency.” . . . In other
words, when there is no published rule regulating working
time, the assumption is that the employer tolerates incur-
sions until they reach disruptive levels.
Id. (quoting Greentree Electronics Corp., 176 NLRB 919 (1969),
enfd. 432 F.2d 1011 (9th Cir. 1970)) (alteration in original; emphasis
added).
Continental Group inappropriately extended the Trico rationale from
“no rule” cases to “unlawfully broad rule” cases. When an employer
disciplines an employee for engaging in protected activity that may be
lawfully restricted, such as union-related solicitation during working
time, even assuming one might infer improper employer motivation
from the absence of any no-solicitation rule (assuming no actual inter-
ference with work), it does not follow that one can infer improper mo-
tivation from the application of an unlawfully broad no-solicitation rule
(for example, a poorly worded rule barring solicitation during “working
hours” rather than “working time”). Although the absence of a rule
may warrant an inference that the employer was indifferent to work-
place solicitation until an employee engaged in union solicitation, an
overly broad rule does not reflect prior indifference regarding solicita-
tion. To the contrary, it demonstrates the opposite. After all, the em-
ployer maintains a rule that restricts solicitation. Thus, the Trico ra-
tionale for inferring an improper motivation where an employer has no
rule—namely, that the employer is indifferent to solicitation “until [it]
reach[es] disruptive levels,” 283 NLRB at 852—simply does not apply
where the employer does have a rule, albeit an unlawfully broad one.
33 Continental Group, 357 NLRB at 412.
BUTLER MEDICAL TRANSPORT , LLC 17
8(a)(1) has been violated when employee activities are
not “concerted” (which is a prerequisite to Sec. 7 protec-
tion), nor may the Board treat activity that is not concert-
ed as though it were protected under Section 7 on the
basis that the activity “touches the concerns” that, in the
Board’s opinion, “animat[e] Section 7.”34 The bottom
line, as the Board acknowledged in Continental Group, is
that if actions are not concerted, they are “not protected
by the Act.”35
Section 8(a)(1) makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section 7”
(emphasis added). Section 7, in relevant part, protects
the right of employees to engage in “concerted activities
for the purpose of . . . mutual aid or protection” (empha-
sis added). If an employee is disciplined or discharged
for activity that is not concerted, the discipline or dis-
charge does not “interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in section
7.”36 The disciplined conduct did not involve the exer-
cise of any Section 7 right, which precludes a finding
that the discipline or discharge violated Section 8(a)(1).
In my view, the fact that the employer may have relied
on a facially neutral rule that was unlawfully broad does
not permit the Board to rewrite the NLRA. As the Su-
preme Court stated in Packard Motor Car Co. v. NLRB,
330 U.S. 485, 490 (1947), “it is for Congress, not for us,
to create exceptions or qualifications as odds with [the
Act’s] plain terms.”
Moreover, the Board already has an extensive body of
law that separately addresses the legality of facially neu-
tral rules that are unlawfully broad. Regardless of
whether or not an employer has applied a facially neutral
rule to restrict protected activity, the Board finds that
mere maintenance of an unlawfully broad rule violates
Section 8(a)(1) based on the rule’s potential future appli-
cation to protected activity,37 and the Board orders vari-
ous remedies, including rescission of the offending
rule.38 The reason that the Board invalidates an unlaw-
fully broad rule is the risk that it “‘would reasonably tend
to chill employees in the exercise of their Section 7
rights.’”39 However, in Continental Group, the Board

34 Id.
35 Id.
36 Sec. 8(a)(1).
37 Lutheran Heritage Village, supra; William Beaumont Hospital,
supra.
38 See fn. 42, infra and accompanying text.
39 William Beaumont Hospital, 363 NLRB No. 162, slip op. at 4
(quoting Lutheran Heritage, 343 NLRB at 646, and Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999)).
Obviously, I recognize that an employer violates Sec. 8(a)(1) by main-
taining a rule that unjustifiably interferes with Sec. 7 rights that have
relies on the same justification—a “chilling effect on the
exercise of protected rights”40—to invalidate discipline
imposed on employees who have not engaged in protect-
ed activity, and whose misconduct may have been ex-
tremely serious, if the employer invokes an unlawfully
broad rule and the Board decides that the employee’s
conduct “touches the concerns animating Section 7.” Id.
at 412. In such circumstances, the employee’s conduct is
not protected, and separate from whatever “chilling ef-
fect” might arise from the maintenance of the rule itself, I
believe there is no separate or greater chilling effect on
protected activity caused by reliance on an overbroad
rule when disciplining an employee whose actions were
not protected by the Act. Again, to quote former Chair-
man Miller, the Double Eagle/Continental Group line of
cases rests on a “fallacy” that stems from “failing to ex-
amine the nature of the conduct for which the discipline
was imposed” and instead “limiting our investigation
only to the rule.”41
When an employer invokes an unlawfully broad rule,
the potential “chilling effect” stems from the rule itself,
which the Board dispels by declaring the rule unlawful,
requiring its rescission, and ordering the employer to
cease and desist from maintaining the unlawful rule and
to post a notice informing employees that it will rescind
the unlawful rule and not thereafter maintain it.42 I be-
lieve it exceeds the limits of our remedial authority43 to
devise additional remedies for an unlawfully broad rule
that effectively rewrite Section 7 by treating unprotected
conduct as if it were protected and ordering the rescis-
sion of discipline that an employer lawfully imposed on
unprotected conduct.

not yet been exercised. Just as obviously, my colleagues engage in
fiction when they attribute to me a contrary view. They then argue that
this view conflicts with cases that involve employers who mistakenly
suspect an employee of engaging in Sec. 7 activity. Since I do not
espouse this view, I need not respond.
40 Continental Group, 357 NLRB at 411 (“[B]ecause the mere
maintenance of an overbroad rule creates a potential chilling effect on
the exercise of protected rights, it is reasonable to infer that the en-
forcement of such a rule would have a similar, or perhaps even greater,
chilling effect on the exercise of protected rights, even if it is enforced
against activity that could have been proscribed by a properly drawn
rule.”); id. at 412 (reliance on an unlawfully broad rule when disciplin-
ing conduct that is not concerted and therefore not protected but that
“touches the concerns animating Section 7” creates “a much greater
risk that employees would be chilled in the exercise of their Section 7
rights”).
41 Miller’s Discount Dept. Stores, 198 NLRB at 283 (Chairman Mil-
ler, dissenting).
42 Lutheran Heritage, 343 NLRB at 649, 657–658; William Beau-
mont Hospital, 363 NLRB No. 162, slip op. at 6–7.
43 See fn. 10, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
(2) The Board’s decisions in Double Eagle and Continen-
tal Group are contrary to Section 10(c) of the Act
In addition to treating unprotected employee conduct
as though it were protected—contrary to Section 7 of the
Act—Double Eagle and Continental Group invalidate
discipline imposed for “cause.” Again, “cause” means
“the absence of a prohibited reason.”44 Discipline for
unprotected conduct is imposed in the absence of a pro-
hibited reason, and thus it is discipline imposed for
“cause.” And as explained above, under Double Eagle
(in category 2 and 3 cases) and Continental Group (in
category 3 cases), the Board finds discipline based on
unprotected conduct unlawful. In other words, discipline
imposed for Continental Group category 3 conduct—
activity that “touches the concerns animating Section 7 . .
. but is not protected by the Act because it is not concert-
ed,” 357 NLRB at 412—is deemed unlawful, even
though it is for “cause.”
When the Board finds that an employee has been un-
lawfully suspended, it orders the employer to furnish
backpay for the period of the suspension. When the
Board finds that an employee has been unlawfully dis-
charged, it orders the employer to offer reinstatement and
to furnish backpay. Thus, when an employer suspends or
discharges an employee for unprotected category 3 con-
duct under Continental Group, the Board orders backpay
(for a suspension) or reinstatement and backpay (for a
discharge). My colleagues order the latter remedies in
this case.45 However, Section 10(c) of the Act prohibits
the Board from awarding reinstatement or backpay in
any case where a suspension or discharge is for “cause.”
And all suspensions and discharges for category 3 con-
duct are for “cause.”
Section 10(c) states in relevant part: “No order of the
Board shall require the reinstatement of any individual as
an employee who has been suspended or discharged, or
the payment to him of any backpay, if such individual
was suspended or discharged for cause.” Regarding Sec-
tion 10(c)’s legislative history, I explained in Babcock &
Wilcox Construction Co.46 that

44 Anheuser-Busch, 351 NLRB at 647; Taracorp Industries, 273
NLRB at 222 fn. 8.
45 When an employer relied on a rule deemed by the Board to be un-
lawfully broad, the Board’s Double Eagle decision permitted no con-
sideration whatsoever of the seriousness of the employee’s misconduct.
Although Continental Group permits the Board to uphold discipline in
certain circumstances pursuant to a multiple stage “affirmative de-
fense,” I believe the requirements and qualifications associated with the
affirmative defense make it illusory and render it unavailable in most
situations. See text accompanying fns. 27–30, supra.
46 361 NLRB No. 132, slip op. at 14–24 (2014) (Member Miscimar-
ra, concurring in part and dissenting in part).
[t]he “cause” language in Section 10(c) was added as
part of the Labor Management Relations Act (LMRA)
amendments to the NLRA that were adopted in 1947.
During the Senate debates on the LMRA, Senator
Taft—the legislation’s principal sponsor in the Sen-
ate—commented on the “cause” language set forth in
Section 10(c) and stated: “If a man is discharged for
cause, he cannot be reinstated. . . .”47
Similar to the Board’s substantial curtailment of deferral to
arbitration in Babcock, the Board’s decisions in Double
Eagle and Continental Group reflect “an intention to find
suspensions and discharges unlawful—even if supported by
‘cause’—based on what the majority believes must be more
stringent scrutiny of ‘statutory’ or ‘unfair labor practice’
issues. This is precisely what Section 10(c) prohibits be-
cause it expressly requires the Board to treat ‘cause’ as the
statutory standard.” 48
(3) Double Eagle and Continental Group Create Too
Much Uncertainty Because Nobody Can Reasonably
Determine Whether Work Rules Are Unlawfully Broad.
Double Eagle and Continental Group are inextricably
intertwined with the Lutheran Heritage “reasonably con-
strue” standard, which governs whether facially neutral
rules are unlawfully broad. Putting aside particular areas
where more specific standards govern the legality of

47 Id., slip op. at 17 (Member Miscimarra, concurring in part and dis-
senting in part).
48 Id., slip op. at 20 (Member Miscimarra, concurring in part and dis-
senting in part). There is no merit in the majority’s assertion that my
position regarding Sec. 10(c) is contrary to Fibreboard Paper Products
v. NLRB, 379 U.S. 203 (1964). Fibreboard involved unilateral subcon-
tracting in violation of Sec. 8(a)(5), and the Court, in its discussion of
the Board’s remedial authority under Sec. 10(c), was not remotely
sanctioning the Double Eagle/Continental Group framework my col-
leagues reaffirm today. Under that framework, employees discharged
for category 3 conduct (defined in the text) are reinstated with backpay,
even though (i) category 3 conduct is unprotected, (ii) an employee
discharged for category 3 conduct has been discharged for “cause,” and
(iii) Sec. 10(c) precludes the Board from awarding reinstatement and
backpay to employees discharged for “cause.” Nothing in the Court’s
Fibreboard decision countenances such an arrangement. I also disa-
gree with my colleagues’ suggestion that Continental Group is “entire-
ly consistent” with (a)(5) cases involving rule-based discipline. Again,
the salient point here is that under Continental Group, employees dis-
charged for “cause” are reinstated with backpay, contrary to Sec. 10(c).
The 8(a)(5) cases cited by my colleagues do not address—let alone
endorse—this clear transgression of the Board’s statutorily imposed
remedial limits. Finally, my colleagues suggest that the affirmative
defense created in Continental Group cures any Sec. 10(c) problem
created by Double Eagle/Continental Group. I have two responses.
One, as explained above, the Continental Group affirmative defense is
largely illusory. Two, it would be unnecessary to repair the breach of
Sec. 10(c) created by Double Eagle and Continental Group if those
decisions were overruled and there was no breach to repair in the first
place.
BUTLER MEDICAL TRANSPORT , LLC 19
rules—for example, those governing solicitation,49 distri-
bution,50 and off-duty access51—the Board evaluates fa-
cially neutral rules using the standard set forth in Luther-
an Heritage. Under Lutheran Heritage, a facially neutral
rule is unlawful if the Board determines that an employee
“would reasonably construe the language to prohibit Sec-
tion 7 activity.” 343 NLRB at 647.
I have criticized the Lutheran Heritage standard, in
part, because it “has defied all reasonable efforts to make
it yield predictable results.” William Beaumont Hospital,
supra, 363 NLRB No. 162, slip op. at 9 (Member Misci-
marra, concurring in part and dissenting in part). This
means that application of Double Eagle and Continental
Group is inseparable from the “immense uncertainty”
that afflicts the Lutheran Heritage “reasonably construe”
standard. As I explained in William Beaumont, it is vir-
tually impossible to square with one another the various
results that have been reached applying the “reasonably
construe” standard. For example, rules prohibiting “ver-
bal abuse,” “abusive or profane language,” “harassment,”
and “abusive or threatening language to anyone on com-
pany premises” have been found lawful,52 while substan-
tially identical rules prohibiting “loud, abusive or foul
language” and “false, vicious, profane or malicious
statements toward or concerning the . . . [employer] or
any of its employees” have been found unlawful.53
Moreover, in applying the “reasonably construe” stand-
ard, the Board in many cases invalidates facially neutral
rules solely because they are ambiguous, invoking the
principle that ambiguity is construed against the employ-
er as the drafter of the rule—even though, in Lutheran
Heritage itself, the Board recognized that work rules “are
necessarily general in nature.”54
Given the unpredictability inherent in the Lutheran
Heritage “reasonably construe” standard, I believe em-
ployers, when imposing discipline, have no reasonable
way of knowing whether they can or should rely on the
work rule that an employee has violated (even though, as

49 See Peyton Packing, supra, 49 NLRB at 828; Essex International,
supra, 211 NLRB at 749; Our Way, supra, 268 NLRB at 394.
50 See Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).
51 See Tri-County Medical Center, supra, 222 NLRB at 1089.
52 Lutheran Heritage, supra, 343 NLRB at 647; Adtranz ABB Daim-
ler-Benz Transportation, Inc. v. NLRB, 253 F.3d 19, 27 (D.C. Cir.
2001).
53 Flamingo Hilton-Laughlin, 330 NLRB 287, 295 (1999); Lafayette
Park Hotel, 326 NLRB 824, 828 (1998). For further examples of virtu-
ally identical rules found lawful in one case and unlawful in another,
see William Beaumont, 363 NLRB No. 162, slip op. at 15–18 (Member
Miscimarra, concurring in part and dissenting in part).
54 343 NLRB at 648. The Board went on to promise that it “[would]
not require employers to anticipate and catalogue in their work rules
every instance in which [prohibited types of speech] might conceivably
be protected by (or exempted from the protection of) Section 7.” Id.
noted above, reliance on a rule is frequently important in
Board cases applying the Wright Line mixed-motive
standard and in arbitration cases applying the “just
cause” standard), or whether they must disclaim reliance
on the work rule violation. The uncertainty in this area is
bad enough when a dispute is limited to whether or not a
particular work rule is unlawfully broad. However, it is
considerably worse when, under Double Eagle and Con-
tinental Group, the lawfulness or unlawfulness of the
rule is determinative of the legality of discipline, even
though the disciplined conduct is unprotected by Section
7 and therefore the discipline does not interfere with,
restrain or coerce employees in the exercise of protected
rights.55 In these respects, Double Eagle and Continental
Group fail the test of “certainty beforehand” that the Su-
preme Court emphasized in First National Maintenance
Corp. v. NLRB, 452 U.S. 666, 678–679 (1981), where the
Court indicated that employers must have the ability to
“reach decisions without fear of later evaluations labeling
. . . conduct an unfair labor practice.”56
(4) Double Eagle and Continental Group promote absurd
outcomes that cannot be reconciled with Section 8(a)(1)
and Section 7
As noted previously, the language of Section 8(a)(1)
and Section 7 is unambiguous. Section 8(a)(1) makes it
unlawful for an employer to interfere with, restrain or
coerce employees “in the exercise of the rights guaran-
teed in section 7.”57 Section 7, in turn, states that
“[e]mployees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection.” 58
The Board’s decisions in Double Eagle and Continen-
tal Group create distinctions that have no basis in our
statute. Under both decisions, the Board deems unlawful
under Section 8(a)(1) employer actions that do not con-
stitute interference with, or restraint or coercion of, activ-
ities protected under Section 7. Continental Group does
exempt one category of cases—category 2 cases, where
“the conduct for which an employee is disciplined is

55 Sec. 8(a)(1).
56 The Supreme Court stressed the importance of providing “certain-
ty beforehand” to unions and employers alike—for the employer, so
that it can “reach decisions without fear of later evaluations labeling . . .
conduct an unfair labor practice,” and for the union, so that it may
discern “the limits of its prerogatives, whether and when it could use its
economic powers . . . , or whether, in doing so, it would trigger sanc-
tions from the Board.” First National Maintenance, 452 U.S. at 678–
679, 684–686.
57 Sec. 8(a)(1).
58 Sec. 7 (emphasis added). See also fn. 3, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
wholly distinct from activity that falls within the ambit of
Section 7,” 357 NLRB at 412—from application of the
Double Eagle principle that discipline pursuant to an
unlawfully broad rule is unlawful. However, using a
phrase that appears nowhere in the Act, the Board in
Continental Group held that unprotected employee con-
duct is given the same treatment afforded to protected
conduct if the Board concludes the unprotected conduct
“touches the concerns animating Section 7.”59 I respect-
fully disagree with this attempted modification of the
Act. The NLRA does not state that particular “concerns”
are “animating” Section 7. Rather, Section 7 is a statuto-
ry provision we are duty-bound to apply using conven-
tional principles of statutory construction. Section 7 con-
tains prerequisites—i.e., “words of limitation”60—that
must be satisfied before an employee’s action can be
deemed protected. If the employee’s actions are unpro-
tected by Section 7, this precludes a finding that employ-
er discipline based on those actions violates Section
8(a)(1). Thus, I believe Congress intended that an em-
ployer, when imposing discipline on an employee, would
violate Section 8(a)(1)—which prohibits interference
with or restraint or coercion of employees “in the exer-
cise of the rights guaranteed in section 7”61—only if the
General Counsel proves that the conduct for which the
discipline was imposed involved the “exercise of [a]
right[] guaranteed in section 7.”
The key contradiction underlying Continental Group is
its holding that conduct unprotected under Section 7 is
nonetheless protected if it “touches the concerns animat-
ing Section 7.”62 Thus, unless the employer can establish
the affirmative defense the Board outlined in Continental
Group (and I have explained why that defense is largely
illusory), whenever an individual employee is disciplined
or discharged based on activity that is not concerted (and
therefore not protected by Sec. 7), the employee is still
protected from discipline or discharge if (i) the employer
cites a rule that the Board deems unlawfully broad, and
(ii) the employee’s activity involves a subject the Board
believes should concern other employees. In this regard,
the protection afforded category 3 conduct under Conti-
nental Group is reminiscent of the standard the Board
applied in Alleluia Cushion, 221 NLRB 999 (1975), and
its progeny, which were overruled in Meyers I and which
the Board in Meyers I aptly criticized as applying a
standard under which “the Board determines what ought

59 Continental Group, 357 NLRB at 412 (emphasis added).
60 Cf. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. at 220
(Stewart. J., concurring).
61 Sec. 8 (a)(1).
62 Continental Group, 357 NLRB at 412 (emphasis added).
to be of group concern and then artificially presumes that
it is of group concern.” 268 NLRB at 496.
Moreover, although Continental Group disposed of
one category of cases where applying the Double Eagle
principle produces absurd results, similarly absurd results
may follow from the protection Continental Group af-
fords to an individual employee who engages in “uncon-
certed” activity that “touches the concerns animating
Section 7.”63 For instance, the following examples in-
volve employee conduct unprotected by Section 7 that
Continental Group would protect:
 Hospital Employee Trash-Can Banging Protest at
2 a.m. An off-duty hospital employee enters a pa-
tient-care area at 2:00 a.m., banging together two
trash can lids and shouting “I want a raise! I want a
raise!” The employee’s conduct is unprotected,
and the hospital discharges him, citing an invalid
off-duty access rule. Result: Hospital is required,
under Double Eagle/Continental Group, to re-
scind the discharge and reinstate the employee
with backpay.64
 Bus Driver “Working Conditions” Speech to
Locked-In Passengers. A bus driver stops his
crowded bus in the middle of a busy downtown
street, causing a major traffic jam. The driver re-
fuses to open the doors and lectures the passengers
for 30 minutes about the transit company’s inade-
quate wages, long hours, and abusive supervisors.
The driver’s conduct is unprotected, and the em-
ployer discharges him, citing a work rule prohibit-
ing any “discourteous or inappropriate attitude or
behavior to passengers, other employees, or mem-
bers of the public.” Result: Employer is required,
under Double Eagle/Continental Group, to re-

63 Id. (emphasis added).
64 The employee’s solitary demonstration is not concerted activity.
However, the Board would surely find that the “I want a raise” chant
“touches the concerns animating Section 7.” Continental Group, 357
NLRB at 412. And the employer invoked an off-duty access rule that
did not “limit[] access solely with respect to the interior of the [facility]
and other working areas.” Tri-County Medical Center, 222 NLRB at
1089. Assuming the employer merely cited the off-duty access rule as
the basis for the discharge without specifically referencing the employ-
ee’s disruption of patient-care areas at 2:00 a.m., the employer could
not successfully assert the Continental Group affirmative defense—
which provides that an employee may be lawfully disciplined pursuant
to an unlawfully broad rule if he or she “actually interfered with the
employee’s own work or that of other employees or otherwise actually
interfered with the employer’s operations, and that the interference,
rather than the violation of the rule, was the reason for the discipline,”
357 NLRB at 412—since “an employer’s mere citation of the over-
broad rule as the basis for discipline will not suffice” to satisfy the
employer’s affirmative defense. Id.
BUTLER MEDICAL TRANSPORT , LLC 21
scind the discharge and reinstate the employee
with backpay.65
 Public Shaming of Restaurant Customer by
Waiter. A restaurant waiter becomes upset
after learning that a regular customer, Arnold
Rich, earns $500,000 annually. The waiter
posts this message on Facebook: “Arnold
Rich is cheap. He earns half-a-million dollars
a year, and all I ever get from him is a lousy
$1.00 tip.” The waiter makes the same state-
ment on a website he creates with the domain
name, “Arnold_Rich_Is_Cheap.” The em-
ployee’s conduct is unprotected, and the res-
taurant discharges him, citing a work rule
against disclosing “information concerning
customers.” Result: Employer is required,
under Double Eagle/Continental Group, to
rescind the discharge and reinstate the em-
ployee with backpay.66
 Angry Sex-Based Profanity During Working
Time Solicitation. A union organizing cam-
paign is underway at the employer’s work-
place, and the employer maintains a policy
prohibiting solicitation during working time.
Two employees are working on a production
line. One employee, John, attempts to get a
second employee, Mary, to sign a union au-
thorization card. Mary refuses to sign the
card, and John shouts that “Mary is a whore”
who is “f___ing the boss to get ahead.” Mary
files a sex harassment complaint with the em-
ployer, and the employer discharges John.
John’s conduct violated the employer’s lawful
no-solicitation policy. However, the employ-

65 The single employee’s protest regarding his wages and working
conditions is unprotected. However, the Board would surely find that it
“touches the concerns animating Section 7.” Continental Group, 357
NLRB at 412. And the rule applied to discharge the employee has been
found unlawfully broad. See First Transit, Inc., 360 NLRB 619, 620–
621 (2014). As indicated in fn. 64 supra, if the employer merely cited
the work rule violated by the employee, it cannot successfully invoke
the Continental Group affirmative defense, since “an employer’s mere
citation of the overbroad rule as the basis for discipline will not suffice”
to satisfy the affirmative defense. 357 NLRB at 412.
66 Here as well, the single employee’s protest regarding his wages
and working conditions is unprotected. But the Board has found un-
lawfully broad a work rule prohibiting the disclosure of “information
concerning customers.” See Boch Honda, 362 NLRB No. 83, slip op.
at 1 fn. 4 (2015); Schwan’s Home Service, 364 NLRB No. 20, slip op.
at 3 fn. 8 (2016). Once again, if the employer only cited the violation
of its unlawfully broad rule as the basis for the discharge, it cannot
avail itself of the Continental Group affirmative defense, since “an
employer’s mere citation of the overbroad rule as the basis for disci-
pline will not suffice” to satisfy that defense. 357 NLRB at 412.
er fires John in reliance on a different rule that
prohibits “loud, abusive, or foul language.”
Result: Employer is required, under Double
Eagle/Continental Group, to rescind the dis-
charge and reinstate John with backpay.67
(5) Summary: Double Eagle and Continental Group
should be overruled by the Board or repudiated by the
courts
It is difficult enough for employers merely to do what
our statute requires: determine whether or not an em-
ployee’s conduct is protected or unprotected by Section
7.68 I believe the Board oversteps its authority when we
disregard this fundamental statutory distinction and base
unfair labor practice findings on a purported “clarifica-
tion” of the law69 that has no basis in the Act. See Amer-
ican Ship Building Co. v. NLRB, 380 U.S. 300, 316
(1965) (the Board lacks “general authority to define na-
tional labor policy by balancing the competing interests
of labor and management”); Republic Steel Corp. v.
NLRB, 311 U.S. 7, 12 (1940) (the Board is not “free to
set up any system of penalties which it would deem ade-
quate” to “have the effect of deterring persons from vio-
lating the Act”); Consolidated Edison Co. v. NLRB, 305

67 In this example, the employee, John, is engaged in protected activ-
ity—union-related solicitation—although the activity is lawfully pro-
hibited by the employer’s rule against solicitation during working time.
See, e.g., Peyton Packing, 49 NLRB at 843. Although the Board might
conclude that the employee’s profane, sex-based tirade lost the protec-
tion of the Act, the employer invoked its rule against “loud, abusive, or
foul language,” which the Board has found to be unlawfully broad. See
Flamingo Hilton-Laughlin, 330 NLRB 287 at 295. Again, the Conti-
nental Group affirmative defense would be unavailable, since “an
employer’s mere citation of the overbroad rule as the basis for disci-
pline will not suffice” to satisfy that defense. 357 NLRB at 412.
My colleagues seek to minimize the risk of such results by saying
that cases applying Continental Group are “relatively rare,” and be-
sides, employers would be “unlikely” to cite the overbroad rule only
and not also the misconduct, and thus the Continental Group affirma-
tive defense would be available. This is like arguing that, even though
a life-threatening virus that could be easily eradicated poses the risk of
human infection, it should be kept alive because it infects people only
rarely, and when people are infected, they might be able to use medi-
cine to combat the disease. No risk of infection is better than a small
risk. Likewise, the Board should eliminate the risk of absurd results
flowing from Continental Group, even if the risk is small. (Here, I also
disagree that the risk of absurd results under Continental Group is
small, given the ongoing proliferation of cases in which the Board
invalidates work rules based on the Lutheran Heritage “reasonably
construe” standard .) Putting aside the risk of absurd results, the more
compelling reason to overrule Continental Group and Double Eagle, as
explained in the text, is the fact that these cases are contrary to our
statute.
68 See, e.g., Fresh & Easy Neighborhood Market, Inc., 361 NLRB
No. 12 (2014) (full-Board case where three members found that em-
ployee engaged in protected activity, and two members found that the
employee’s activity was unprotected).
69 Continental Group, 357 NLRB at 410.
-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
U. S. 197, 235–236 (1938) (Board’s authority to devise
remedies “does not go so far as to confer a punitive ju-
risdiction enabling the Board to inflict upon the employer
any penalty it may choose . . . even though the Board be
of the opinion that the policies of the Act might be effec-
tuated by such an order”).
As illustrated in above examples, Continental Group
wields a sledge hammer when Congress, in Section 7,
mandated that the Board utilize a scalpel. Worse, Conti-
nental Group requires the reinstatement of employees
with backpay when any reasonable fact-finder would
conclude that the employee has been discharged “for
cause,” in which case Section 10(c) of the Act plainly
prohibits Board-ordered reinstatement or backpay.
For all of the reasons set forth above, I believe Double
Eagle and Continental Group are contrary to the Act. In
cases where an employer maintains or applies an unlaw-
fully broad employment policy, work rule or handbook
provision, the Board should find that the offending poli-
cy, rule or provision violates Section 8(a)(1) and impose
the standard remedies for such a violation, including re-
scission, the posting of a notice, and a cease and desist
order. But whether discipline violates Section 8(a)(1)
should be governed by the language of the Act. Did the
employer, by imposing discipline, interfere with, restrain
or coerce employees in the exercise of any Section 7
right? If so, the discipline is unlawful unless otherwise
permitted by a more specific aspect of Board law. But if
the employee’s activities were not protected under Sec-
tion 7, then the Board must conclude that the discipline
does not violate Section 8(a)(1).
B. Employee Rice Did Not Engage in Protected Activity,
and For That Reason, I Agree that Rice’s Discharge Did
Not Violate Section 8(a)(1)
As to employee Rice, the judge focused—correctly, in
my view—on the fact that Rice did not engage in con-
duct protected by Section 7. Specifically, the judge
found that Rice’s statement in his Facebook post was
maliciously false and therefore unprotected by the Act.70
My colleagues agree with the judge’s conclusion that
Rice’s discharge did not violate the Act. However, they
substitute a two-stage analysis for the judge’s reasoning.
They note the judge’s finding that the Respondent’s so-
cial media policy was unlawfully broad,71 and they apply

70 See TNT Logistics North America, Inc., 347 NLRB 568, 569
(2006) (even assuming statements otherwise constitute protected con-
certed activity, they lose the Act’s protection if they are maliciously
false, i.e., made with knowledge of their falsity or with reckless disre-
gard for their truth or falsity), revd. on other grounds sub nom. Joliff v.
NLRB, 513 F.3d 600 (6th Cir. 2008).
71 Again, the Respondent did not except to this finding, which means
it must be accepted for purposes of our decision.
Continental Group. Doing so, my colleagues find that
Rice’s Facebook post constituted activity that fell within
Continental Group category 2—i.e., conduct that is
“wholly distinct from activity that falls within the ambit
of Section 7,” meaning it was neither “concerted” nor did
it “touch[] the concerns animating Section 7.”72 To reach
this finding, my colleagues address two potential inter-
pretations of Rice’s Facebook posting. As noted previ-
ously, the posting by Rice stated: “Hey everybody!!!!!
I’m fuckin broke down in the same shit I was broke in
last week because they don’t wanna buy new shit!!!!
Cha-Chinnngggggg Chinnng—at Sheetz Convenience
Store,”73 and Rice was discharged after the Respondent
determined that his work vehicle did not break down.
Subsequently, at his unemployment compensation hear-
ing, Rice claimed that the comment referred to his girl-
friend’s car. My colleagues reason that if Rice’s Face-
book comment referred to his girlfriend’s car, it was not
for the purpose of “mutual aid or protection,” which is a
prerequisite to Section 7 protection.74 However, if Rice
was referring to his work vehicle, my colleagues reason
that the Facebook post was maliciously false and unpro-
tected for that reason.75
Either way, under my colleagues’ analysis the fact that
Rice’s actions were unprotected by Section 7 does not
immediately warrant a conclusion that Rice’s discharge
was lawful. Rather, under Continental Group, because
the Respondent applied an unlawfully broad rule when it
discharged Rice, the Board must treat Rice’s unprotected
actions as if they were protected—making his discharge
unlawful—unless, in addition to being unprotected by
Section 7, Rice’s conduct was “wholly distinct from ac-
tivity that falls within the ambit of Section 7.”76 Alt-
hough my colleagues do not spell out their analysis with
this level of detail, they effectively find that under either
interpretation of Rice’s Facebook posting, (i) the posting
was “wholly distinct from activity that falls within the
ambit of Section 7”;77 (ii) Rice’s conduct thereby fell
within Continental Group category 2; (iii) the Double
Eagle principle does not apply to Continental Group
category 2 conduct; and therefore (iv) Rice’s discharge
was lawful, notwithstanding the Respondent’s reliance
on an unlawfully broad social media policy.
I concur with my colleagues’ conclusion that Rice was
lawfully discharged. However, I do not rely on Double

72 Continental Group, 357 NLRB at 412.
73 Capitalization modified.
74 To come within the protection of Sec. 7, activity must satisfy two
requirements: it must be “concerted,” and the concerted activity must
have “mutual aid or protection” as its purpose.
75 See TNT Logistics North America, supra.
76 Continental Group, 357 NLRB at 412.
77 Id.
BUTLER MEDICAL TRANSPORT , LLC 23
Eagle and Continental Group because for the reasons
stated above, I believe those decisions should be over-
ruled. Rather, the record supports a finding that Rice’s
Facebook posting referred to his work vehicle, and the
uncontroverted testimony of Chief Operating Officer
Rosenberg—Rice refused to testify at the unfair labor
practice hearing—established that Rice’s work vehicle
had not broken down on the day he posted the message at
issue. Therefore, Rice’s Facebook posting was mali-
ciously false—i.e., made with knowledge of its falsity—
which means it was unprotected under Section 7, which
renders lawful Rice’s discharge. See TNT Logistics
North America, 347 NLRB at 569 (citing Sprint/United
Management Co., 339 NLRB 1012, 1018 (2003)).78
C. Employee Norvell Did Not Engage in Protected Activ-
ity, and For That Reason, Norvell’s Discharge Did Not
Violate Section 8(a)(1)
As to employee Norvell, my colleagues find, in
agreement with the judge, that Norvell’s Facebook com-
ments—stating to Zalewski “you may think about getting
a lawyer and taking them to court” and “[y]ou could con-
tact the labor board too”—were protected concerted ac-
tivity. Although unnecessary to their analysis—since a
discharge based on protected concerted activity violates
Section 8(a)(1)—my colleagues apply Continental
Group (because, again, the Respondent relied on its un-
lawfully broad social media policy when it discharged
Norvell) and conclude that Norvell’s discharge violated
Section 8(a)(1) because Norvell’s Facebook posting
came within Continental Group category 1: conduct that
“clearly falls within the protection of Section 7.”79
As explained above, I believe the appropriate treat-
ment of Norvell’s discharge turns on whether his Face-
book postings were protected under Section 7. In other
words, did Norvell engage in “concerted” activity, and if
so, did he engage in that activity for the “purpose” of

78 Alternatively, if Rice was referring to his girlfriend’s vehicle as he
claimed at his unemployment benefits hearing, his statement still would
have been unprotected under Sec. 7. As my colleagues find, even as-
suming Rice’s Facebook post constituted concerted activity, it was not
for the purpose of mutual aid or protection: the condition of Rice’s
girlfriend’s vehicle had nothing to do with Rice’s and his coworkers’
terms and conditions of employment. I also agree with my colleagues
that the General Counsel’s alternate theory—that the Respondent dis-
charged Rice because it believed he engaged in protected concerted
activity, even if he did not—is without merit. Rosenberg believed that
Rice’s Facebook post referred to the Respondent’s vehicle, which Ros-
enberg knew had not broken down. Therefore, Rosenberg believed that
Rice had posted a malicious falsehood, which means he did not believe
Rice had engaged in protected activity.
79 Continental Group, 357 NLRB at 411.
“mutual aid or protection”?80 Although this presents a
close question, I believe that Norvell’s actions did not
constitute “concerted” activity.81
To determine whether an activity is “concerted,” the
Board applies the standards set forth in its decisions in
Meyers Industries.82 In Meyers II, the Board addressed
whether conduct that “‘in its inception involves only a
speaker and a listener’” is concerted. Meyers II, 281
NLRB at 887 (quoting Root-Carlin, Inc., 92 NLRB 1313,
1314 (1951)). Regarding this issue, the Board in Meyers
II “embrac[ed] the view of concertedness exemplified by
the Mushroom Transportation line of cases.” Id. In
Mushroom Transportation Corp. v. NLRB, 330 F.2d 683
(3d Cir. 1964), the Third Circuit denied enforcement of a
Board order finding a violation where the employer dis-
charged employee Charles Keeler, who had advised other
employees of their rights regarding holiday pay, vaca-
tions, and the company’s practice of assigning trips to
drivers of other companies. The court found that
Keeler’s activities were not concerted, explaining as fol-
lows:
It is not questioned that a conversation may constitute a
concerted activity although it involves only a speaker
and a listener, but to qualify as such, it must appear at
the very least that it was engaged in with the object of
initiating or inducing or preparing for group action or
that it had some relation to group action in the interest
of the employees.83
The court further explained:
Activity which consists of mere talk must, in order to
be protected, be talk looking toward group action. If its
only purpose is to advise an individual as to what he
could or should do without involving fellow workers or
union representation to protect or improve his own sta-
tus or working position, it is an individual, not a con-
certed, activity. . . .84
The Third Circuit’s reasoning, adopted by the Board in
Meyers II, is directly applicable to Norvell’s Facebook
posts. Norvell suggested that Zalewski might “think
about getting a lawyer” and take the company “to court,”
and Norvell further suggested that Zalewski could con-

80 Sec. 7. See also Fresh & Easy Neighborhood Market, 361 NLRB
No. 12, slip op. at 13–17 (Member Miscimarra, concurring in part and
dissenting in part).
81 I do not reach whether Norvell’s postings would have been for the
purpose of mutual aid or protection if they had constituted concerted
activity.
82 Meyers I, 268 NLRB at 493; Meyers II, 281 NLRB at 882.
83 330 F.2d at 685 (emphasis added).
84 Id. (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
tact “the labor board too.” Thus, Norvell advised Zalew-
ski “as to what [she] could or should do without involv-
ing fellow workers or union representation to protect or
improve [her] own status or working position.”85 Even
though Norvell’s advice was intended to be helpful, it
constituted an “an individual, not a concerted, activity.”86
It is not inherently “concerted” for an employee to advise
others that they might consult an attorney or go to court
or the NLRB, nor does the record suggest that Norvell’s
advice otherwise “had some relation to group action in
the interest of employees.”87 Thus, in my view, the Gen-
eral Counsel has failed to satisfy his burden to prove that
Norvell’s conduct was “concerted” within the meaning
of Section 7. Accordingly, because I believe Norvell’s
conduct was not “concerted,” I would find that Norvell’s
conduct was not protected under Section 7, and Norvell’s
discharge cannot appropriately be found violative of Sec-
tion 8(a)(1), which only prohibits interference with or
restraint or coercion of employees “in the exercise of the
rights guaranteed in section 7.”88
Conclusion
For the reasons stated above, I disagree with Double
Eagle and Continental Group, and I believe the Board
should overrule these decisions or they should be repudi-
ated by the courts. Regarding the merits, I concur with
my colleagues’ finding that Rice’s discharge did not vio-

85 Mushroom Transportation, 330 F.2d at 685.
86 Id.
87 Id.; Meyers II, 281 NLRB at 887.
88 Sec. 8(a)(1). I agree that former employees, such as Zalewski, are
employees under the Act. See, e.g., Briggs Mfg. Co., 75 NLRB 569,
571 (1947). I also agree that job security is frequently a matter of mu-
tual concern to employees. However, to the extent my colleagues find
Norvell’s conduct inherently concerted because of the subject matter of
his Facebook posts, I believe such a finding impermissibly deviates
from Sec. 7 and relevant Board and court cases interpreting Sec. 7. See
Hoodview Vending Co., 362 NLRB No. 81, slip op. at 4–7 (2015)
(Member Miscimarra, dissenting); Alternative Energy Applications,
Inc., 361 NLRB No. 139, slip op. at 8 (2014) (Member Miscimarra,
dissenting in part). Here, there is no escaping the fact that Norvell’s
conduct is squarely governed by the Third Circuit’s holding—adopted
by the Board in Meyers II, supra—regarding “[a]ctivity which consists
of mere talk,” which constitutes “concerted” activity for purposes of
Sec. 7 only if it “look[s] toward group action.” Mushroom Transporta-
tion, 330 F.2d at 685. There is no evidence that Norvell’s advice to
Zalewski satisfies this requirement.
To find Norvell’s statements concerted, my colleagues rely on
UniQue Personnel Consultants, 364 NLRB No. 112 (2016), Cadbury
Beverages, 324 NLRB 1213 (1997), enfd. 160 F.3d 24 (D.C. Cir.
1998), and Jhirmack Enterprises, 283 NLRB 609 (1987). To the extent
those decisions hold that an employee engages in concerted activity
when he or she merely advises another employee “as to what he could
or should do without involving fellow workers or union representation
to protect or improve his own status or working position,” I believe
they are contrary to the just-quoted standard set forth in Mushroom
Transportation, 330 F.2d at 685, which was adopted by the Board in
Meyers II. I would follow the latter cases.
late Section 8(a)(1), but this conclusion stems from the
fact that Rice did not engage in conduct that was protect-
ed under Section 7. Unlike my colleagues, I believe the
Board should similarly find that Norvell’s discharge did
not violate Section 8(a)(1) because, in my view,
Norvell’s actions were not concerted and therefore not
protected under Section 7. Accordingly, I respectfully
concur in part with and dissent in part from my col-
leagues’ decision.
Dated, Washington, D.C. July 27, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT discharge or discipline you because you
violate our unlawful rules.
WE WILL NOT maintain the social media policy and
posting or distribution of papers rules.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of this Order,
offer William Norvell full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make William Norvell whole for any loss of
earnings and other benefits resulting from his discharge,
BUTLER MEDICAL TRANSPORT , LLC 25
less any net interim earnings, plus interest, plus reasona-
ble search-for-work and interim employment expenses.
WE WILL compensate William Norvell for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 5, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of William Norvell, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the discharge will not be used against him in any
way.
WE WILL rescind our unlawful social media policy and
posting or distribution of papers rule.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful provi-
sions have been rescinded, or (2) provide lawfully word-
ed provisions on adhesive backing that will cover the
unlawful provisions; or WE WILL publish and distribute to
employees revised employee handbooks that (1) do not
contain the unlawful provisions, or (2) provide lawfully
worded provisions.
BUTLER MEDICAL TRANSPORT, LLC
(
The Board’s decision can be found at
www.nlrb.gov/case/05–CA–094981 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half St., S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
Matthew J. Turner and Andrew Andela, Esqs., for the General
Counsel.
Gil Abramson and Louis J. Cannon, Esqs. (Jackson Lewis,
LLP), of Baltimore, Maryland, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Baltimore, Maryland, on July 2, 2013. William
Norvell filed charges on December 14, 2012, and February 6,
2013. Michael Rice filed a charge on February 6, 2013. The
General Counsel issued a consolidated complaint on March 20,
2013. The General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act in discharging Norvell on about Oc-
tober 22, 2012, and in discharging Rice on about January 14,
2013. He also alleges that Respondent has violated Section
8(a)(1) in maintaining rules requiring employees to refrain from
discrediting it on social networking sites and prohibiting the
unauthorized posting or distribution of papers.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, provides ambulance transport to
patients at hospitals, nursing homes, etc. It has an office in
Owings Mills, Maryland, and other locations in Maryland, the
District of Columbia and York, Pennsylvania. It derives gross
revenues in excess of $500,000 from its operations and receives
materials valued in excess of $5000 from points outside of
Maryland. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Discharge of William Norvell
William Norvell worked as an emergency medical technician
for Respondent starting in 2005. He last worked on July 21,
2012, and has been on workers compensation since that date.
On October 10, 2012, Norvell accessed the Facebook page of
Chelsea Zalewski on his personal computer at his home.
Zalewski, who had been Norvell’s partner at work, posted a
note on this page indicating that Respondent had terminated her
employment. Zalewski’s post was as follows:
Well no longer a butler employee . . . Gotta love the fact a
“professional” company is going to go off what a dementia pt
says and hangs up on you when you are in the middle of ask-
ing a question.
[GC Exh. 13.]
Several people, including another employee, Jake Hiepler,
posted comments in response to Zalewski’s post.
Zalewski responded to inquiries about what the patient re-
ported to Respondent in the following post:
Yeah ur telling me! The pt said I told her that they never fix
anything on the units…Yeah i no that pt I’m not dumb
enough to tell her let alone any pt how shitty those units are
they see it all on their own
Then Norvell posted the following comment:
Sorry to hear that but if you want you may think about getting
a lawyer and taking them to court.
Another person posted a suggestion that Zalewski seek em-
ployment with Procare, another ambulance company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
Zalewski asked where Procare was located. Norvell re-
sponded that Procare was in Towson, Maryland. Then he add-
ed, “You could contact the labor board too.”
[GC Exh. 13.]
A printed version of these Facebook posts was delivered to
Ellen Smith, Respondent’s human resource director. Smith
consulted with Respondent’s chief operating officer, William
Rosenberg. They decided to terminate Norvell’s employment.
On October 22, 2012, Smith, with Rosenberg on a speaker
phone, called Norvell. Smith asked Norvell whether he made
the October 10 posts on Zalewski’s Facebook page. Norvell
responded that he had made those posts. Smith told Norvell
that he violated the prohibition in General Counsel’s Exhibit 4,
a bullet point list of Respondent’s rules, which includes a prom-
ise to refrain from using social networking sights which could
discredit Butler Medical Transport or damages it image (Tr.
82–83). Smith then informed Norvell that Respondent was
terminating his employment. Neither Smith nor Rosenberg
gave Norvell any reason for his termination other than his Oc-
tober 10 Facebook posts.
I discredit the testimony of Rosenberg and Smith that Re-
spondent had not decided to terminate Norvell when they called
him on October 22. One of my reasons for this finding is that
on January 10, 2013, Smith gave an affidavit to the Board stat-
ing that she and Rosenberg decided to terminate Norvell and
then called him. I also discredit Rosenberg’s testimony that
Respondent terminated Norvell for spewing profanity during
his conversation with Rosenberg and Smith. I also discredit his
testimony that Norvell spewed profanity after he was told that
he was being terminated. Norvell concedes that he was very
upset and that his conversation with Rosenberg and Smith con-
tinued after he was informed of his termination. However, this
record in no way supports a finding that Norvell’s termination
was justified by anything he said after Respondent told him he
was fired.1
One reason I discredit this testimony is that there is no men-
tion of Norvell’s profanity in either of the affidavits Smith gave
to the Board, GeneralCounsel Exhibits 12 and 13. In an affida-
vit given to the Board on March 4, 2013, Smith discussed Mi-
chael Rice’s use of profanity at length, but did not raise this
issue with regard to Norvell, although she discussed the reasons
for his termination in that second affidavit.

1 Since I conclude that Norvell’s Facebook posts constituted pro-
tected concerted activity, as discussed below, I further conclude that
Respondent’s termination of Norvell cannot be justified under the test
enunciated in Atlantic Steel Co., 245 NLRB 814 (1979). First of all,
the record does not adequately describe the nature of Norvell’s out-
burst; secondly, the place, time and nature of the discussion, plus the
provocation for any outburst leads me to conclude that Respondent had
not established that Norvell lost the protections of the Act.
I note further that an employer seeking to be excused from its obli-
gation to reinstate or pay backpay to a discriminatee for misconduct
which was not a factor in the discriminatory action, has a heavier bur-
den than when it is merely seeking to justify the original determination.
Such an employer must prove the misconduct was “so flagrant as to
render the employee unfit for further service, or a threat to efficiency in
the plant,” Hawaii Tribune –Herald, 356 NLRB 661 (2011) [sometimes
cited as Stephens Media, LLC].
Analysis with regard to William Norvell’s termination
The only issue with regard to William Norvell’s termination
is whether or not his Facebook posts of October 10 constitute
protected concerted activity within the meaning of the Act.
There is no question that he would not have been terminated
but for these Facebook posts. If these posts were protected, his
discharge violates Section 8(a)(1), Phoenix Transit System, 337
NLRB 510 (2002).2
Norvell’s Facebook posts must be considered in the context
in which they were made. He was advising Zalewski, a fellow
employee, to obtain an attorney/and or contact the Labor
Board.2 What I find particularly important is that Norvell was
responding to a post in which Zalewski stated she had been
terminated for commenting to a patient about the condition of
Respondent’s vehicles.3 The condition of Respondent’s vehi-
cles was a matter of mutual concern to Respondent’s employ-
ees. Indeed, Zalewski had been disciplined previously for
commenting on the Facebook page of Leah Fornier, another
employee, about the condition of Butler ambulances (GC Exhs.
6 and. 12, p. 3).4
By advising Zalewski to obtain legal counsel or contact the
Labor Board, I find that Norvell was making common cause
with Zalewski regarding a matter of concern to more than one
employee. Thus, I find his post to be protected.5
It is not a defense to the unfair labor practice allegation that
Norvell’s posts were accessible to customers or others outside
of Butler Medical Transport. In this regard, The relevant legal

2 An analysis under the Wright Line (251 NLRB 1083 (1980)), doc-
trine is inappropriate in this case. If the Facebook posts were protected
there is no issue as to whether Respondent had a nondiscriminatory
reason for discharging Norvell which must be analyzed under Wright
Line.
I do not credit Rosenberg and Smith that they had no idea that
Norvell was referring to the NLRB. I also conclude it does not matter
whether they thought he was talking about another State or Federal
agency. As discussed herein, I find Norvell was making common cause
with Zalewski, who was fired because Respondent believed she had
made comments about a matter of mutual concern to employees, i.e.,
the condition of Respondent’s vehicles.
3 Respondent argues that Norvell’s post was not protected in part
because he did not know why Zalewski had been terminated (R. Br. at
p. 10. However, Zalewski’s posts, made prior to Norvell’s posts, make
clear what Zalewski was told was the reason for her discharge, i.e.,
Respondent’s belief that Zalewski had complained to a patient about
the condition of her ambulance.
4 The fact the Zalewski had already been terminated when Norvell
made his posts is irrelevant. She was still an employee entitled to the
protection of the Act, Little Rock Crate & Basket Co., 227 NLRB 1406
(1977). Thus, Norvell was making common cause with Zalewski by
encouraging her to seek vindication of what he thought might be her
Section 7 rights.
5 Zalewski denied making the comment which led to her termina-
tion. However, I conclude this is irrelevant since Respondent believed
she had commented to a patient about the condition of its vehicles, a
matter about which at least she and Fournier were concerned. An em-
ployer violates the Act when retaliating against an employee for pro-
tected activity in which it mistakenly believed the employee was en-
gaged, NLRB v. Link-Belt Co., 311 U.S. 584, 589–590 (1941); San Juan
Lumber, 144 NLRB 108 (1963); JCR Hotel, Inc. v. NLRB, 342 F.3d
837 (8th Cir. 2003).
BUTLER MEDICAL TRANSPORT , LLC 27
framework for analyzing this case was set forth in great detail
in Valley Hospital Medical Center, 351 NLRB 1250, 1252
(2007):
Section 7 of the Act provides, in pertinent part,
that“[e]mployees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collective-
ly through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection . . . .” The protec-
tion afforded by Section 7 extends to employee efforts to im-
prove terms and conditions of employment or otherwise im-
prove their lot as employees through channels outside the
immediate employee-employer relationship. See Eastex, Inc.
v. NLRB, 437 U.S. 556, 565 (1978). Thus, Section 7 protects
employee communications to the public that are part of and
related to an ongoing labor dispute. See, e.g., Allied Aviation
Service Co. of New Jersey, Inc., 248 NLRB 229, 231 (1980),
enfd. mem. 636 F.2d 1210 (3d Cir. 1980).
. . .
But finding that employees’ communications are related to a
labor dispute or terms and conditions of employment does not
end the inquiry. Otherwise protected communications with
third parties may be “so disloyal, reckless, or maliciously un-
true [as] to lose the Act’s protection.” Emarco, Inc., 284
NLRB 832, 833 (1987); accord: Mountain Shadows Golf Re-
sort, 330 NLRB 1238, 1240 (2000). Statements have been
found to be unprotected as disloyal where they are made “at a
critical time in the initiation of the company’s” business and
where they constitute “a sharp, public, disparaging attack up-
on the quality of the company’s product and its business poli-
cies, in a manner reasonably calculated to harm the compa-
ny’s reputation and reduce its income.” NLRB v. Electrical
Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 472
(1953); accord: Endicott Interconnect Technologies, Inc. v.
NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006), denying enforce-
ment of 345 NLRB 448 (2005). The Board is careful, howev-
er, “to distinguish between disparagement of an employer’s
product and the airing of what may be highly sensitive is-
sues.” Professional Porter & Window Cleaning Co., supra at
139. To lose the Act’s protection as an act of disloyalty, an
employee’s public criticism of an employer must evidence “a
malicious motive.” Richboro Community Mental Health
Council, 242 NLRB 1267, 1268 (1979).
Statements are also unprotected if they are maliciously untrue,
i.e., if they are made with knowledge of their falsity or with
reckless disregard for their truth or falsity. See, e.g., TNT Lo-
gistics North America, Inc., 347 NLRB 568, 569 (2006). The
mere fact that statements are false, misleading or inaccurate is
insufficient to demonstrate that they are maliciously untrue.
The Board most recently addressed this issue in Mastec Ad-
vanced Technologies, 357 NLRB 103 (2011). Numerous Board
cases establish that virtually any form of protected activity can
be subjectively considered disloyal, including forming, joining
or assisting a labor organization, e.g., RTP Co., 334 NLRB 466,
467, 476 (2001), enfd. 315 F. 3d 951 (8th Cir. 2003). Moreo-
ver, protected activity will often adversely impact an employ-
er’s reputation and revenue. Indeed, Justice Frankfurter in his
Jefferson Standard dissent observed that “Many of the legally
recognized tactics and weapons of labor would readily be con-
demned for “disloyalty” were they employed between man and
man in friendly personal relations,” 346 U.S 464 at 479–480.
There is no question that if employees posted or handed out
flyers asking the public not to patronize their employer because
their equipment was substandard such conduct would be pro-
tected, Kitty Clover, Inc., 103 NLRB 1665, 1687–1688 (1953);
Arlington Electric, 332 NLRB 845, 846 (2000). Appeals to
customers that may adversely affect the employer’s revenue
have been found to be protected by Section 7 in many cases.
For example, in Allied Aviation Service of New Jersey, Inc.,
248 NLRB 229 (1980), enfd. 636 F.2d 1210 (3d Cir. 1980), the
Board found that the letters of a union steward to his employ-
er’s customers were protected. The steward in that case
claimed that his employer’s practices relating to the servicing
and maintenance of ground vehicles created a safety hazard to
customers and resulted in inferior service.
Pursuant to longstanding Board precedent, I conclude that
the fact that Norvell’s Facebook posts may have adversely af-
fected Respondent’s business is not a valid defense to the com-
plaint allegations. I thus conclude that his conduct in making
these posts was protected and that Respondent violated the Act
in terminating him for making these posts.
Allegations with Regard to the Termination of Michael Rice
Respondent terminated Michael Rice on January 14, 2013
for making the following Facebook posting: “Hey every-
body!!!!! Im fuckin broke down in the same shit I was broke in
last week because they don’t wantna buy new shit!!!! Cha-
Chinnngggggg chinnng-at Sheetz Convenience Store,” (GC
Exh. 10).
Respondent’s chief operating officer, William Rosenberg,
testified without contradiction that he reviewed Respondent’s
maintenance records and determined that Rice’s vehicle had not
broken down when he made this post (Tr. 46). He further testi-
fied that the assertion made in Rice’s post was false.
At an unemployment insurance hearing, Rice contended that
his post referred to a private vehicle, not one of Respondent’s
ambulances. At the instant hearing, Rice was not called as a
witness by the General Counsel. He was subpoenaed by Re-
spondent and then refused to testify citing his rights under the
Fifth Amendment of the United States Constitution. As a result
I conclude on the basis of Respondent’s uncontradicted testi-
mony that the allegations made in his Facebook post were ma-
liciously untrue and made with the knowledge that they were
false. Thus I dismiss the complaint allegation regarding Rice’s
termination, TNT Logistics North America, Inc., 347 NLRB
568, 569 (2006).
Complaint paragraphs 4 and 5; illegal rules
Since at least October 1, 2010, Respondent’s employee
handbook has prohibited “unauthorized posting or distribution
of papers” (GC Exh. 3). Since at least November 17, 2011,
Respondent has also distributed to all newly hired employees
and discussed with them, a sheet of bullet points. Among the
bullet points is the following promise by the employee, “I will
refrain from using social networking sights which could dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
credit Butler Medical Transport or damages its image” (GC
Exhs. 4 and 5). The General Counsel alleges that these rules
violate Section 8(a)((1) of the Act.
Respondent argues at pages 34 and 35 of its brief that the list
of a bullet points is not a “policy.” This is a distinction without
a difference. The bullet point regarding social networking sites
was relied upon by Ellen Smith in terminating William Norvell.
New employees were required to acknowledge receipt of these
bullet points (see, e.g., GC Exh. 5), and would reasonably un-
derstand they were subject to discipline up to and including
termination if their conduct did not conform to the bullet points.
Both the handbook provision and bullet point policies cited
above violate Section 8(a)(1). They are unlawful because em-
ployees would reasonably construe their language to prohibit
Section 7 activity. The rule on its face is broad enough to pro-
hibit posting and distribution of papers regarding wages, hours,
and other working conditions. It can reasonably be read to
apply to nonwork time and nonwork areas. There is no evi-
dence that Respondent effectively communicated a narrowed
interpretation of its rules that would have clarified its scope and
limited its application to non-protected distribution or posting
of literature. Moreover, any rule that requires employees to
secure permission from their employer before engaging in pro-
tected concerted or union activity at an appropriate time and
place is unlawful, Tele Tech Holdings, Inc., 333 NLRB 402,
403 (2001).
The bullet point regarding social networking sights is also il-
legal because it has been applied to restrict the Section 7 rights
of Norvell and Zalewski, Lutheran Heritage Village-Livonia,
343 NLRB 646, 647 (2004); Mastec Advanced Technologies,
357 NLRB 103, 103 fn. 1, 115–116 (2011).
SUMMARY OF CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act in dis-
charging William Norvell.
2. Respondent did not violate the Act in discharging Michael
Rice.
3. Respondent is violating Section 8(a)(1) in maintaining a
provision in its employee handbook that prohibits “unauthor-
ized posting or distribution of papers.”
4. Respondent is violating Section 8(a)(1) in maintaining a
policy that prohibits use of social networking sites which could
discredit Butler Medical Transport or damages its image.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily discharged William
Norvell, must offer him reinstatement and make him whole for
any loss of earnings and other benefits. Backpay shall be com-
puted 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 file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatee
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Latino Express, Inc., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Butler Medical Transport, LLC, Owings
Mills, Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in protected, concerted activity, including
the posting or distribution of papers and the use of social net-
working sites.
(b) Maintaining rules, policies, and/or provisions that prohib-
it the “unauthorized posting or distribution of papers” and/or
which require employees to promise to refrain from using so-
cial networking sites which could discredit Butler Medical
Transport or damages its image.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
William Norvell full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make William Norvell whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify William Norvell in writing that
this has been done and that the discharge will not be used
against him anyway.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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.
(e) Within 14 days after service by the Region, post at all its
facilities copies of the attached notice marked “Appendix.”7

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
BUTLER MEDICAL TRANSPORT , LLC 29
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 5, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. 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 the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 1, 2012.
(f) 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.
Dated, Washington, D.C. September 4, 2013.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
any employee for engaging in protected concerted activity,
including the posting or distribution of papers and the use of
social networking cites which pertain to wages, hours or other
terms or conditions of employment.
WE WILL NOT maintain rules, policies and/or provisions that
prohibit “the “unauthorized posting or distribution of papers”
and/or which require employees to promise to refrain from
using social networking sites which could discredit Butler Med-
ical Transport or damages its image.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
William Norvell full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make William Norvell whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Wil-
liam Norvell, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not
be used against him in any way.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate William Norvell for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year.
BUTLER MEDICAL TRANSPORT, LLC