Ellison Media Co.

National Labor Relations Board - Board Decisions

Jul 20, 2005

344 N.L.R.B. 1112 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 136
1112
Ellison Media Company and Mary E. Christie. Case
28–CA–19026
July 20, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 29, 2004, Administrative Law Judge
Thomas M. Patton issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
the Respondent filed an answering brief, and the General
Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order and to adopt the recommended
Order as modified.2
The General Counsel excepts to the judge’s dismissal
of the allegations that the Respondent violated Section
8(a)(1) by promulgating an unlawfully broad no-
communication rule and by threatening employees with
discharge for violating that rule.3 In late July 2003,4 at

1 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by maintaining a rule in its employee
handbook that prohibits soliciting during working hours and/or in
working areas.
2 We shall modify the judge’s recommended Order to conform to our
findings and we shall substitute a new notice in accordance with the
Order as modified.
3 The General Counsel also excepts to the judge’s dismissal of the
allegation that Charging Party Mary Christie’s discharge violated Sec.
8(a)(1). The judge found that the General Counsel failed to establish
that protected concerted activity was a motivating factor in Christie’s
discharge because he did not show that the Respondent had knowledge
of that activity. For the reason stated by the judge, Chairman Battista
and Member Schaumber affirm the dismissal of this allegation.
Member Liebman concurs in the result. She assumes arguendo that
the General Counsel satisfied his initial burden under Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), of demonstrating that Christie’s protected
concerted activity was a motivating factor in the Respondent’s decision
to discharge her. Member Liebman concludes that the Respondent met
its burden under Wright Line of establishing that it would have dis-
charged Christie even absent her protected concerted activity. The
evidence shows that the Respondent restructured its media department
due to the loss of several major clients, which resulted in substantial
lost revenue. The evidence also shows that Christie was selected for
discharge in this restructuring because she limited herself to buying
radio time only, while all other media buyers bought both radio and
television time. On this basis, Member Liebman agrees with her col-
leagues that Christie’s discharge did not violate Sec. 8(a)(1).
As noted above, Chairman Battista and Member Schaumber con-
clude that the General Counsel did not meet his Wright Line burden.
Further, even if the General Counsel did so, Chairman Battista and
Member Schaumber agree with Member Liebman that the Respondent
satisfied its Wright Line rebuttal burden.
4 All dates refer to 2003 unless otherwise indicated.
the urging of employee Mary Christie, employee Daniel
Miller confronted Supervisor Joel Gable about a sexually
suggestive comment that Miller thought Gable had made.
Miller drafted an e-mail to Christie describing the con-
frontation, but he mistakenly sent the e-mail to Gable.
Holding up a copy of the e-mail, Gable told Miller that
“this needs to stop now” and that if he saw Miller and
Christie gossiping anymore, Miller would lose his job.
Subsequently, the same order was directed to Christie.
The judge found that the order was a lawful prohibition
of unprotected gossip, and therefore the threat of dis-
charge for violation of the order was similarly lawful.
For the reasons set forth below, we reverse and find that
the Respondent violated Section 8(a)(1) as alleged.
A. Background
The Respondent purchases radio and television time
for its clients, chiefly for infomercials and religious pro-
gramming. In the media department work area on the
morning of July 30, employee Miller thought he heard
Supervisor Gable make a remark about Vice President
Jay Griffin “running around Desert Ridge with his ba-
nana hanging out.” Gable actually said “banana ham-
mock,” meaning a Speedo swimsuit. Miller told Gable
that the remark offended him, but there was no further
discussion at that time.
Later that same day, while getting coffee in the
kitchen area on an upper floor, Miller told employee
Christie his understanding of what Gable had said.
Christie had previously complained to management on
multiple occasions about statements Gable had made to
her that she found objectionable, i.e., references to Grif-
fin as Christie’s “boyfriend” or “husband.”
Christie urged Miller to report the remark to Griffin or
to human resources. Looking out a window, Christie and
Miller saw Griffin entering the building, and Christie
told Miller that this was his opportunity. They rode the
elevator down together to the lobby. When the elevator
doors opened, Gable was standing there, and Miller testi-
fied that he then “exploded” at Gable about the remarks
Miller understood Gable to have made about Griffin.
Christie went back up the elevator.
After his confrontation with Gable, Miller drafted an e-
mail to Christie describing how it ended:
The elevator closed and Joel [Gable] was saying ‘what
you want to argue with me right here?’ and I said sure,
and Joel got pissed and I said ‘if I heard incorrectly . . .
then I said ok, I heard incorrectly but that’s what I
heard and we can ask Betty what you said’ Joel stalked
off and said ‘Where is my CBS avails three days late I
want those avails.’ This all said while he was stalking
toward the door to go back to his office.
ELLISON MEDIA CO. 1113
Miller then mistakenly sent the e-mail to Gable rather than
Christie. Gable responded to Miller’s e-mail, requesting
that Miller meet with him the next morning. Miller asked if
he could have another manager present. Gable agreed, and
Miller asked Human Resources Manager Rhonda Sports to
attend.
On July 31, Gable, Miller, and Sports met in Gable’s of-
fice. Gable held up a copy of Miller’s e-mail and said,
“This needs to stop now.” Gable stated that he was tired of
the gossiping, and that if he saw Miller and Christie gossip-
ing anymore, Miller would be fired.
After Miller left the meeting with Gable, Christie
asked Miller what happened. Miller told her that he
could not speak to her because if they were seen gossip-
ing together, they would be fired. Christie went to
Sports’ office where Sports told her that Gable said if he
saw Miller and Christie talking about “this situation,”
Christie would be fired. Both Miller and Christie wrote
memos to Sports regarding Gable’s “banana hammock”
comment. Gable received a written warning for violating
the Respondent’s sexual harassment policy, which pro-
hibits inappropriate conduct or comments even if such
comments or conduct might not be severe enough to con-
stitute sexual harassment under the law.
B. The Judge’s Decision
The judge concluded that the Respondent did not vio-
late Section 8(a)(1) when Gable held up the e-mail and
told Miller that “this needs to stop now,” nor when he
threatened to discharge Miller if he saw him gossiping
with Christie. The judge found that the initial conversa-
tion between Christie and Miller in the kitchen was pro-
tected concerted activity, but that Miller’s confrontation
with Gable outside the elevator was not. The judge fur-
ther found that Miller’s subsequent e-mail was neither
protected nor concerted. The judge reasoned that the e-
mail did not address Miller’s concern about the remark
he thought Gable made and did not look toward group
action, but was simply gossip about the unprotected ele-
vator incident. The judge concluded that, under the cir-
cumstances, a reasonable employee in Miller’s position
would not have understood Gable’s prohibition of further
gossip to prohibit concerted activity related to terms and
conditions of employment. Because the judge found
Gable’s order to be a lawful prohibition of malicious
gossip, he also found lawful the threat of discharge for
violating the order. Similarly, he found that Rhonda
Sports did not violate Section 8(a)(1) by repeating to
Christie the same prohibition against gossip.
C. Analysis
Under Section 8(a)(1), an employer may not “interfere
with, restrain, or coerce employees” in the exercise of
their Section 7 rights. “The test is whether the employer
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee
rights under the Act.” American Freightways Co., 124
NLRB 146, 147 (1959). “In determining whether an
employer’s statement violates Section 8(a)(1), the Board
considers the totality of the relevant circumstances.”
Saginaw Control & Engineering, Inc., 339 NLRB 541
(2003). Here, under all of the circumstances and con-
trary to the judge’s view, the statements at issue reasona-
bly would have been interpreted either as an order not to
engage in protected concerted activity or as a threat of
discharge for engaging in such activity.
1. Gable’s statement that “this needs to stop now,” ut-
tered while holding Miller’s e-mail, was unlawful be-
cause it reasonably tended to interfere with Miller’s free
exercise of his Section 7 right to discuss sexual harass-
ment complaints with other employees.
The judge erred in failing to consider Gable’s state-
ment in its full context, but instead viewing it as referring
solely to what the judge found was the unprotected gos-
siping reflected in Miller’s e-mail. We need not pass on
the judge’s finding with respect to whether the e-mail
itself was protected, to which the General Counsel has
excepted. The judge’s mistake, rather, was in construing
Gable’s order too narrowly. In view of the circum-
stances in which the e-mail was sent, a reasonable em-
ployee would have interpreted the order as referring not
only to the specific content of the e-mail (a discussion of
the elevator confrontation between Miller and Gable),
but also to what prompted that confrontation: the efforts
of Miller and Christie to speak about Gable’s allegedly
sexually suggestive comments.5
No exceptions were filed to the judge’s clearly correct
finding that the conversation between Miller and Christie
in the kitchen was protected concerted activity. In that
conversation, Miller revealed to Christie his understand-
ing of Gable’s sexually suggestive comment. Christie,
who had complained repeatedly in the past about com-
ments by Gable that she found offensive, urged Miller to
report Gable’s comment to management. The conversa-
tion was concerted under the Mushroom Transportation
line of cases.6 And it was protected because it was en-

5 See, e.g., Armstrong Machine Co., 343 NLRB No. 122, slip op. at
4 (2004) (employer’s ambiguous statements violated Sec. 8(a)(1) where
such statements would have the reasonable tendency to coerce employ-
ees in the exercise of their Sec. 7 rights).
6 Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964) (“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 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 employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
gaged in for the purpose of “mutual aid or protection”
within the meaning of Section 7 of the Act, i.e., the two
employees’ common interest in eliminating offensive
remarks from their workplace.7
2. We further find that the Respondent violated Sec-
tion 8(a)(1) when Gable threatened to discharge Miller
for gossiping with Christie. Just as Gable’s statement
“this needs to stop now” would reasonably be interpreted
to prohibit discussion of the suggestive comment, like-
wise Gable’s threat would reasonably be interpreted to
mean that Miller would be discharged if he continued to
exercise his protected right to discuss the comment with
Christie.
3. Last, the Respondent violated Section 8(a)(1) when
Sports repeated Gable’s order and threat to Christie.
Sports told Christie that she would be fired if Gable saw
them talking together about “this situation.” In this con-
text, an employee in Christie’s situation would reasona-
bly understand Sports’ ambiguous statement to prohibit
her from speaking to Miller about Gable’s comment,
which she had a protected right to do.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ellison
Media Company, Phoenix, Arizona, its officers, agents,

ees.”). Accord: Vought Corp., 273 NLRB 1290, 1294 (1984), enfd. 788
F.2d 1378 (8th Cir. 1986).
7 See Phoenix Transit System, 337 NLRB 510, 510 (2002) (Sec. 7
protects employees’ right to discuss their sexual harassment complaints
among themselves), enfd. mem. 63 Fed. Appx. 524 (D.C. Cir. 2003);
All American Gourmet, 292 NLRB 1111, 1130 (1989) (same).
In Holling Press, Inc., 343 NLRB No. 45 (2004), the Board recently
stated that sexual harassment at work “can be, and often is, of concern
to many persons in the workplace.” Slip op. at 3. In Holling Press, the
Board found employee Catherine Fabozzi’s efforts to enlist the help of
another employee in her individual sexual harassment claim, saying the
employee could be “hit” with a subpoena, were not for “mutual aid or
protection” because her efforts were made to benefit Fabozzi alone.
Fabozzi’s harassment claim had already been investigated by the em-
ployer and the union and found to be without merit. Fabozzi, however,
filed a sexual harassment claim with a State agency. She then ap-
proached employee Susan Garcia and asked her to appear as a witness
on Fabozzi’s behalf. When Garcia hesitated, Fabozzi threatened to
force Garcia to testify by “hitting” her with a subpoena. In finding that
Fabozzi’s actions were not for “mutual aid or protection,” the Board
emphasized that there was no evidence that any other employee had
similar problems, and that the employee whose aid was sought was
unconcerned with Fabozzi’s complaint and uninterested in supporting
it. Id., slip op. at 2. Here, by contrast, Christie herself had reported
Gable’s offensive remarks to management, and she supported Miller by
encouraging him to report Gable’s “banana” comment. Thus, Holling
Press is clearly distinguishable. Member Liebman agrees that Holling
Press is distinguishable, but she adheres to her dissent in that case.
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraphs 1(b) and (c) and
reletter the subsequent paragraphs accordingly.
“(b) Promulgating an overly broad no-communication
rule reasonably tending to interfere with, restrain, or co-
erce employees in the exercise of their Section 7 rights.
“(c) Threatening employees with discharge for violat-
ing an overly broad no-communication rule.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain the rule in our employee hand-
book that prohibits soliciting during working hours
and/or in working areas.
WE WILL NOT promulgate an overly broad no-
communication rule that reasonably tends to interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL NOT threaten you with discharge for violating
an overly broad no-communication rule.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL rescind the rule in our employee handbook
that prohibits soliciting during working hours and/or in
working areas.
ELLISON MEDIA COMPANY
ELLISON MEDIA CO. 1115
William Mabry III, Esq., for the General Counsel.
Caroline A. Pilch, Esq. (Yen, Pilch & Komadina, PC), of Phoe-
nix, Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. This case
was tried in Phoenix, Arizona, February 24–26, 2004.
The charge was filed by Mary E. Christie, an individual, on
September 30, 2003.1 The charge was amended on November
26. The complaint issued on November 28, and alleges viola-
tions of Section 8(a)(1) of the National Labor Relations Act
(the Act) by Ellison Media Company (the Employer or Re-
spondent). Respondent denies any violation of the Act.
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 following2
FINDINGS OF FACT
I. JURISDICTION
Ellison Media Company is an Arizona corporation, with an
office and place of business in Phoenix, Arizona, where the
alleged unfair labor practices occurred. Respondent admits and
I find that it meets the Board’s standards for asserting jurisdic-
tion based on its operations and that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The complaint alleges that in late April 2003, Mary E.
Christie and other employees of the Respondent engaged in
protected concerted activity by making concerted complaints to
the Employer about working conditions. The original complaint
alleges five violations of Section 8(a)(1) of the Act by threats
made and rules promulgated in April and July and that the Em-
ployer discharged Christie in violation of Section 8(a)(1) of the
Act on August 13. At the hearing the complaint was amended,
over the objection of the Employer, to add an allegation that a
no-solicitation rule contained in an employee manual violated
Section 8(a)(1).3
The answer denies any violation of the Act and denies that
Christie was discharged. The Employer contends that Christie
was terminated as a part of a restructuring and a work force
reduction of the media department where Christie worked, in
response to a loss of clients and a major decline in the work

1 All dates are 2003 unless otherwise indicated.
2 In assessing credibility, testimony contrary to my findings has not
been credited, based upon a review of the entire record and considera-
tion of the probabilities and the demeanor of the witnesses. See NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
3 The record does not show that Christie was unaware of the provi-
sion during the investigation of the charge, but General Counsel repre-
sented that the manual provision was not known to the Government
prior to the Employer furnishing the manual to the General Counsel on
February 23, in response to a subpoena duces tecum.
available in her department. The Employer does not contend
that Christie was selected for layoff because of deficiencies in
her job performance.
B. Facts and Preliminary Conclusions
The Employer is engaged in providing media-related activi-
ties, including the purchase of radio and television time for its
clients. A major amount of the radio and television time is pur-
chased for infomercials and religious theme programming. A
subsidiary, Global Fulfillment & Duplication, handles fulfill-
ment of orders for goods offered in broadcasts and makes du-
plicates of recordings that are offered by Respondent’s clients
in their broadcasts. There are about 115 employees, a figure
that varies depending on the number of employees needed in
the fulfillment and duplication operation.
Michael Ellison is the founder and president of the Em-
ployer.4 Four persons employed by the Respondent are alleged
to have been supervisors within the meaning of Section 2(11)
of the Act, and agents within the meaning of Section 2(13) of
the Act. The supervisor and agent allegations regarding Media
Vice President Barbara Griesman and Media Manager Joel
Gable are admitted. The allegations regarding Human Re-
sources Manager Rhonda Sports and Marketing Vice President
Jay Griffin are admitted as to their 2(13) status and denied as
to their 2(11) status. During the course of the hearing it was
stipulated that Media Supervisor Marilee Gibson was a 2(11)
supervisor.
Sports testified that she evaluated the employees in the hu-
man resources department. Thus, the evidence is that there were
employees in Sports’ department and she was the manager of
that department. I accordingly conclude that Sports was a su-
pervisor as defined in Section 2(11) of the Act.
There was testimony that at the time of the hearing there
were employees in the media department who reported to Grif-
fin, but not at the times relevant to the alleged unfair labor prac-
tices. The record shows, and the Employer does not dispute,
that Griffin was a corporate officer and a member of manage-
ment. Corporate officers are not presumptively Section 2(11)
supervisors. See Upholsterers Local 61 (Minneapolis), 132
NLRB 40 (1961). It seems improbable that Griffin did not pos-
sess supervisory authority over any employee at the time of the
alleged violations, however, the record evidence does not estab-
lish that he had such authority. A different conclusion would
not affect my decision, since Griffin was a corporate officer and
an admitted agent at all relevant times.
Mary Christie worked in the Employer’s media department,
under the supervision of Media Manager Joel Gable. Christie
worked as a media buyer. Her job was to purchase radio time
for clients. The Employer hired her in February 2000, and ter-
minated her on August 13, 2003. Before going to work for the
Employer Christie had about 9 years of work experience in
marketing and media, including media buying. Christie re-
ceived uniformly favorable appraisals and regular wage in-
creases, including a merit raise.

4 Corporate Vice President Barbara Griesman testified that the Em-
ployer did not have a board of directors “per se,” suggesting that the
Employer is a closely held corporation. No details were provided.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
1. No-solicitation rule
An “Employee Handbook,” dated January 1, 2001, was in ef-
fect during the Section 10(b) limitations period and at the time
of the hearing. In the absence of contrary evidence, I infer that
it issued on January 1, 2001. Paragraph 2.7.1 is a list of “Unac-
ceptable Activities” that includes a prohibition on soliciting
during working hours and/or in working areas. Paragraph 2.7.1
is followed by provisions describing discipline that can be im-
posed on employees who engage in unacceptable behavior.
Thus, the handbook subjects employees who engage in any
soliciting during working hours and/or in working areas to dis-
cipline. There is no evidence that the rule was enforced against
any employee and soliciting is not involved in the other alleged
unfair labor practices.
The maintenance of the rule is facially unlawful because a
rule that restricts solicitation protected by Section 7 of the Act
during “working hours” connotes a prohibition from the begin-
ning of a shift to the end, and is presumptively invalid. See Our
Way, Inc., 268 NLRB 394 (1983). There is no evidence that the
Respondent communicated or applied the rule in such a way as
to convey an intent to clearly permit solicitation protected by
Section 7 during breaktimes or other nonwork periods. See
Ichikoh Mfg., 312 NLRB 1022 (1993).
The Employer points to language in Hughes Properties, Inc.
v. NLRB, 758 F.2d 1320 (9th Cir. 1985), where the court states,
in a general discussion of the law, “A ban on all solicitation
during working hours is presumptively valid, but a ban on all
solicitation during non-working hours is presumptively inva-
lid.” The court did not conclude that a rule like the one in the
present case was privileged and I do not read the decision in
Hughes Properties, Inc. as inconsistent with Our Way, Inc.,
supra. Assuming, without finding, that there is a current con-
flict between the Board and the Ninth Circuit regarding this
question, I am required to follow the Board’s precedent until
overruled by the Board or the Supreme Court. Insurance
Agents’ International Union, AFL–CIO, 119 NLRB 768, 773
(1957).
The maintenance of the rule is also facially unlawful because
it prohibits solicitation protected by Section 7 of the Act in
working areas. In the absence of special circumstances not
shown in this case, Respondent may not prohibit employees
from engaging in protected solicitation in working areas or
elsewhere on company property during nonworking time,
whether before or after work, or during lunch or rest periods. It
makes no difference that the employer may be paying the em-
ployees for nonworking time. McBride’s of Naylor Road, 229
NLRB 795 (1977); Kern’s Bakery, Inc., 154 NLRB 1582
(1965).
The rule was promulgated outside the limitations period in
Section 10(b) of the Act, but the rule was maintained within the
6-month limitations period from the filing of the original
charge. The Respondent’s maintenance of the unlawful restric-
tions on solicitation within the 10(b) period violated Section
8(a)(1), even without any enforcement of the rule. Varo Inc.,
172 NLRB 2062 fn.1 (1968).
2. April 25 rule and threat
The complaint alleges that on or about April 25, Griesman
“promulgated an overly-broad and discriminatory rule prohibit-
ing its employees from communicating conversations relating
to terms and conditions of employment between employees in
the Respondent’s media department and the Respondent to
other employees of the Respondent.” The complaint further
alleges that on the same date Griesman threatened employees
with discharge if they violated that prohibition.
Information regarding media buys by the Employer’s clients
is considered confidential by both the clients and the Employer.
It is a policy of the Employer to withhold this information from
personnel outside the media department. The record shows that
supervisors and managers outside the media department have
acquired confidential information they have not been author-
ized to receive from media department employees.
On April 25, in the course of a weekly media department
meeting attended by all department employees, Griesman made
the statement, “What goes on in media stays in media.” The
General Counsel contends that Griesman’s statement, by its
terms, prohibited media department employees from reporting
workplace violations to Government agencies, such as the
Board and the EEOC and prohibited employees from discuss-
ing their own terms and conditions of employment outside the
department. The Employer contends that the statement must be
read in the context of Griesman stressing the Employer’s confi-
dentiality policy.
Former employee Barbara Washington worked in the media
department and was at the meeting.5 Washington and Christie
shared an office. Washington assisted buyers, principally
Christie. Washington testified as follows regarding the April 25
meeting:
I remember [Griesman] being very upset about—whatever
was going on at the time, it got out of the media department
and other people in the office building, different departments,
heard what was going on, and she expressed that she did not
like that at all and that, quote, “what goes on in media stays in
media,” unquote. And she also was saying to us that if she
ever got word back that any one of us was saying whatever
was going on in media, good or bad, whatever, mainly bad, I
guess, any complaints, that if it got back to her from some-
body else in the building, that we would be fired.
Washington did not describe specifically what it was that “got
out of the media department.”
Christie testified as follows regarding the April 25 meeting:
[Griesman] had indicated that it had come to her attention that
some of the media department personnel was conversing and
talking with other departments in the company and that she
did not like that, she would not tolerate it, and what happened
in media stayed in media and if we did not like it, that there
was the door and it would not hurt her feelings if we looked
for employment elsewhere.

5 Washington was terminated on August 6. She testified, in sub-
stance, that she should have been kept on in preference to two part-time
employees.
ELLISON MEDIA CO. 1117
On cross-examination Christie was asked if Griesman did not
also say that “her directive meant: when other individuals
came and asked for media department information, including
client information, statistics, income, to please direct them to
Joel and herself so that not everyone in the department was
scattering information about and there was some control over
who was giving information?” Christie acknowledged that Gri-
esman had said that, but that she could not say whether it was
in the same meeting or not.
Daniel Miller was a media buyer who was present at the
meeting. According to Miller Griesman’s statement that what
goes on in media stays in was made in reference to client in-
formation that should not be revealed to persons outside the
department or to other clients. Miller testified that Griesman
said that employees should not give information to Marketing
Vice President Jay Griffin. Miller described how Griffin came
to the media department and asked Christie about information
kept in the department and Christie would provide him with
documents and explain them to Griffin. Miller specifically re-
called Griesman referring to the Employer’s nondisclosure
policy. The Employee Handbook list of unacceptable activities
includes the following:
Giving confidential or proprietary Ellison Media company in-
formation to . . . unauthorized Ellison Media company em-
ployees; . . .
Griesman testified that she told employees, in substance, that
“what goes on in media stays in media” in the context of her
expressing her concern that confidential business information
not be shared with employees outside the department.
Griesman had sent an e-mail to all media department em-
ployees on April 1. The General Counsel contends that this e-
mail supports the position of the General Counsel regarding the
message Griesman delivered at the April 25 meeting. At the
hearing the General Counsel stated that the April 1 memoran-
dum was also violative, however, the complaint was not so
amended. The e-mail states, in relevant part:
If you receive directives from anyone outside of this
department please do yourself and your fellow co-workers
a favor by asking that person to see either Joel or me, as is
appropriate.
You will save yourself a lot of unnecessary trouble,
not to mention time, if you simply say “you will need to
speak to Barbara or Joel about that.” End of discussion.
The General Counsel cites Double Eagle Hotel & Casino,
341 NLRB 112 (2004), and argues that the e-mail shows that
the purpose of Griesman’s remark on April 25, was to prohibit
employees from discussing their own terms and conditions of
employment, including their own experiences of sexual har-
assment in the workplace. This argument is unconvincing. A
fair reading of the e-mail is that it is consistent with Griesman’s
testimony that in the April 25 meeting she was addressing the
disclosure of confidential business information to persons out-
side the media department. The rule in the employee manual
regarding confidential or proprietary information is analogous
to a rule found privileged by the Board in Lafayette Park Hotel,
326 NLRB 824 (1998). That rule read, “Divulging Hotel-
private information to employees . . . not authorized to receive
that information.”
I credit the testimony of Griesman and Miller regarding the
April 25 meeting because it was more credibly offered and
more probable than the testimony of Washington and Christie.
The evidence does not show that Christie’s statement that
“what goes on in media stays in media,” when considered in the
context of Griesman’s remarks, prohibited employee speech
protected by Section 8(a)(1). Accordingly, I shall recommend
dismissal of the allegation that an unlawful rule was promul-
gated on April 25.
The issue of unauthorized release of confidential information
was of major concern to Griesman and she does not deny tell-
ing employees that “there was the door” if they did not want to
comply with the policy. Because the threat was not directed
toward protected concerted activity, it was not violative. Ac-
cordingly I shall recommend that the allegation regarding an
unlawful threat on April 25, be dismissed. Assuming, without
deciding, that the legality of the April 1 memorandum is before
me for decision, I conclude that it did not violate the Act.
3. July 31 rule and threat
The complaint alleges that on July 31, Gable “promulgated
an overly-broad and discriminatory rule prohibiting [Respon-
dent’s] employees from communicating conversations relating
to terms and conditions of employment between employees in
the Respondent’s Media Department and the Respondent to
other employees of the Respondent” and threatened its employ-
ees with discharge if they violated the rule. This assertedly
occurred in a meeting of Gable, Miller, and Sports.
The complaint further alleges that on July 31, Sports “prom-
ulgated an overly-broad and discriminatory rule prohibiting
[Respondent’s] employees from discussing with other employ-
ees wages, hours, and other terms and conditions of employ-
ment.” This assertedly occurred in a meeting of Christie and
Sports where Sports described the earlier meeting between
Gable, Miller, and Sports.
These alleged violations are related to a confrontation be-
tween Miller and Gable on July 30, and an e-mail Miller sent to
Gable on July 30.
On the morning of July 30, Media Buyer Daniel Miller, Me-
dia Manager Joel Gable, and several other employees were in
the media department work area. Miller heard Gable make a
remark about Vice President of Marketing Jay Griffin. Miller
understood Gable to have referred to “Jay running around De-
sert Ridge with his banana hanging out.” Gable had actually
referred to Griffin running around in a Speedo or a banana
hammock. Miller told Gable that his remark about Griffin of-
fended him, but there was no extended discussion at that time.
Gable was unaware that Miller had misunderstood what he had
said. Miller and Gable were the only persons present who testi-
fied about the remark.
Later that day Miller and Christie went to a kitchen area for a
cup of coffee. Both Miller and Christie testified regarding what
happened thereafter. I found Miller’s testimony to have been
more credibly offered and more probable. Miller shared with
Christie his understanding of what Gable had said. Christie was
a workplace friend of Griffin. Christie urged Miller to report
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1118
the remark to Griffin because he would not appreciate the way
he was being talked about. Christie opined that Griffin would
tell Ellison and ask him to fire Gable. Christie suggested that if
Miller did not feel comfortable talking to Griffin, he could
speak to Human Resources Manager Rhonda Sports. Miller
testified that Christie despised Gable and that on several prior
occasions she had told Miller that she would like to see Gable
fired.
The area where Miller and Christie went for their coffee
break was on an upper floor of the building. They looked out a
window and saw Griffin walking in from a parking lot. Christie
told Miller that this was his opportunity to report to Griffin
what Gable had said about him. Miller and Christie got on the
elevator and went down. When the elevator doors opened, both
Gable and Griffin were near the elevator. At that point Gable
remarked to Griffin that Miller had stood up for him that morn-
ing. Miller testified that he then “exploded.” Miller exited the
elevator and spoke to Gable loudly in an angry tone about the
remarks he understood Gable to have made about Griffin and
“his banana hanging out.” Gable explained to Miller that he had
said “banana hammock.” After some discussion Gable and
Miller then went on to discuss business issues.
Christie stayed on the elevator. Griffin did not join the dis-
cussion, but joined Christie on the elevator and they went up
without Miller and Gable. Griffin asked what was going on and
Christie related what Miller had told her about what Gable had
purportedly said about Griffin. Griffin said that the remark
Christie had described was sexually explicit and should be
brought to the attention of human resources. They were stand-
ing outside of Sports’ office. Christie testified that she then told
Sports that she might want to talk to Miller. The record does
not show that Sports knew what Christie was referring to or that
she did anything as a consequence of Christie’s remark. Thus,
at this point the Employer had no knowledge that the confronta-
tion between Miller and Gable (herein the elevator incident)
was the product of the discussion between Miller and Christie
that preceded it.
Following his conversation with Gable, Miller drafted an e-
mail to Christie describing the final part of the encounter with
Gable. Miller then mistakenly sent the e-mail to Gable. The e-
mail stated:
The elevator closed and Joel was saying ‘what you want to
argue with me right here?’ and I said sure, and Joel got pissed
and I said “if I heard incorrectly . . . then I said ok, I heard in-
correctly but that’s what I heard and we can ask Betty what
you said” Joel stalked off and said ‘Where is my CBS avails
three days late I want those avails.’ This all said while he was
stalking toward the door to go back to his office.
Gable responded to Miller’s e-mail the same day and asked
if Miller would meet with him the following morning. Miller
answered by e-mail and said he would feel more comfortable if
Griesman or Sports was present. Gable responded “that’s fine”
and Miller arranged for Sports to be present. They met the fol-
lowing morning in Gable’s office.
Gable, Sports, and Miller were at the meeting in Gable’s of-
fice the following day, July 31. Gable voiced his displeasure
with Miller regarding the elevator incident and what Gable said
he felt was insubordination and stating that Miller should have
come his office, rather than discussing the issue where he did.
Gable also raised work performance issues that have not been
shown to be unwarranted. During the conversation Gable held
up a copy of the e-mail Miller had mistakenly sent to him the
day before and said, “This needs to stop now.” Gable stated that
he was tired of the gossiping and that if he saw Miller and
Christie gossiping anymore Miller would be fired. Gable gave
Miller a “Disciplinary Warning Notice.” There is no contention
that the warning violated the Act. The warning stated:
Daniels’ overall performance as a media buyer is lag-
ging behind the average monthly results for July. Also,
Daniel’s disrespectful and argumentative behavior yester-
day borders on employee insubordination. Daniel has been
spoken to several times in the past about proper communi-
cation channels with his direct supervisor. Continuing, the
manner in which he communicates with his fellow em-
ployees must change to reflect a more positive approach
rather than one of gossip. Dan has also made it clear that
he does not particularly care for some of his duties includ-
ing Tri Vita radio and Visual Bible.
This disciplinary warning will serve as notice of a
thirty-day (30) probationary period. Daniel must prove his
value to the team within the time frame, improve [h]is
buying performance, and significantly work on office de-
meanor and communication through proper channels
Next step if Infraction is repeated: Termination
Supervisor Comments:
As we continue to grow as a department, I am looking
for team members to rally around each other and further
the message of our clients. Unfortunately, I do not feel that
Daniel has attempted to improve his communication with
his supervisor.
Miller left this meeting with Gable and he walked past a
copy machine where Christie was working. She asked him what
happened and Miller told her “I can’t talk to you right now,”
and he told Christie that if they were seen gossiping together
they would be fired. Christie then went to Griffin and spoke
with him. The record does not disclose the content of their con-
versation. Griffin then accompanied Christie to Sports’ office
and said that Christie had some things to talk to her about and
left. Christie described the conversation that she then had with
Sports:
Q. What was this meeting about?
A. I—I went up to Rhonda’s office and told her
that—what Daniel had told me, that if he—that Joel said
that if he saw him and I talking or going up for coffee or
seeing us together, that I would be fired, and I asked her if
it was true, and she said, “Well, that’s what he said but not
what he meant, what he meant was that if he saw you two
together, then he would assume that you were talking
about the Speedo incident” and that I would be fired.
Q. Did you have a response to this?
A. Yes. I told her it was wrong and—that it was
wrong and they can’t do that, we work together, we work
on the same account, we buy radio together, we have to—
we have to talk, and I said, “So even if we’re working and
ELLISON MEDIA CO. 1119
talking about business, if Joel sees us, then he could just
assume we’re talking about the Speedo incident and I
could be fired?” and she said, “Yes.”
Q. What happened next?
A. She asked me to write a letter relaying all of the
incidences that I have with Joel, she said that she had a
meeting scheduled with Michael Ellison and that she was
going to instruct Daniel to do the same thing.
In her testimony Christie left out her visit with Griffin and
his taking her to Sports’ office. Sports testified prior to Christie
as an adverse witness in only general terms about her meeting
with Christie on July 31. Sports was not recalled to deny
Christie’s version of what Sports had told her Gable had said to
Miller. The General Counsel urges that an adverse inference is
warranted from the failure of the Employer to call Sports to
testify further regarding this conversation. See Advanced Instal-
lations, 257 NLRB 845 (1981). This contention might be more
persuasive had Christie not memorialized the conversation in a
memorandum to Sports.
Christie submitted a memorandum to Sports on August 1.
The memorandum indicates a copy to Ellison, who was then on
vacation. The heading of the memorandum identifies its subject
as “harassment.” Regarding her meeting with Sports on that
day, Christie wrote:
Your did clarify that Joel said that if he sees Daniel and I talk-
ing about this situation then that is when I would be termi-
nated. Well, with all do respect, if Joel only assumed that the
e-mail was meant for me then what guarantees do I have
about him not assuming that Daniel and I are talking about
this situation and fires me when in fact Daniel and I could
have been talking about work issues.
Thus, the memorandum describes a significantly different
version of Sports’ description of what Gable had said. Christie
did not explain the two materially different versions of what
Sports had said. Of the two versions, the confirming memoran-
dum is the more reliable and probable. I was not favorably
impressed with Christie’s testimony regarding the events that
day. My impression of her testimony generally was that her
accounts were selective and embellished. Thus, I do not believe
that she simply overlooked describing in her testimony the fact
that she talked with Griffin and he took her to report her con-
cerns to human resources. While Gable did not actually tell
Miller that Christie would also be fired, it was not unreasonable
for Miller to have understood that the threat would also apply to
Christie.
Christie’s memorandum to Sports also addressed several
other issues involving Gable. It describes multiple occasions
when Gable asked Christie where her “husband” or her “boy-
friend” was. The person Gable was referring to was Griffin.
Christie and Griffin did not have a relationship outside the of-
fice. In the past Christie had reported these remarks to both
Griffin and Griesman and objected to them. Griesman spoke to
Gable about his making these remarks to Christie and he dis-
continued the practice. The memorandum next addresses a
meeting of media department employees on February 12, when
Gable said someone had complained about his language. Prior
to this meeting Miller had complained to Griesman about of-
fensive language by Gable. Griesman had spoken to Gable
about not using offensive language, apparently in response to
Miller’s complaint. Christie went on to describe a discussion
with Gable on April 25, when he told her “that he was tired of
me strutting around the office like a cocky rooster, that I did not
own the radio department, nor was I queen of the universe, and
that I needed to change how people perceived me or the next
time I was called into his office HR would be there and I would
be terminated.” Christie also described her version of her con-
versations with Miller preceding the confrontation between
Miller and Gable at the elevator on July 30.
The discussion by Christie and Miller in the kitchen area that
preceded the elevator incident was protected concerted activity.
The General Counsel argues that the e-mail Miller mistakenly
sent to Gable was itself also protected concerted activity. I do
not agree. The General Counsel does not contend, and the evi-
dence does not show, that Miller’s outburst at Gable in the
lobby was protected. In this regard, the General Counsel does
not claim that the written warning Gable gave to Miller for his
conduct after he got off the elevator and which addressed
Miller’s gossip was violative. The e-mail obviously provoked
Gable to issue the warning at that time. The e-mail was no more
than gossip about the unprotected elevator incident. The e-mail
did not address Miller’s concern about the remark he thought
Gable had made about Griffin nor did it look to any concerted
activity by employees. For communications between employ-
ees to be found to be protected concerted activity, they must
look toward group action. The e-mail does not meet that stan-
dard. See Mushroom Transportation Co. v. NLRB, 330 F.2d
683 (3d Cir. 1964); Alex R. Thomas & Co., 333 NLRB 153
(2001). The e-mail also had a malicious aspect. Despite Gable
having told Miller that he had misunderstood what Gable had
said, Miller did not mention Gable’s explanation in the e-mail
or inquire of other employees what they had heard Gable say.
Instead, Miller recounted the incident in a manner that would
feed the enmity Miller knew Christie had for Gable.
The General Counsel contends that the term “gossiping” is
ambiguous and might reasonably be understood by an em-
ployee to be a reference to an effort to initiate group action
about terms and conditions of employment. The General Coun-
sel argues that Gable’s statement that Miller would be fired if
he saw Miller and Christie gossiping amounted to a prohibition
on Miller and Christie talking to one another at work at all,
including protected discussions relating to wages, hours, and
other terms and conditions of employment. The General Coun-
sel asserts that a generalized prohibition on “gossiping and
complaining” violates the Act, citing Aroostook County Re-
gional Ophthalmology Center, 317 NLRB 218 (1995).
The Respondent’s Employee Manual includes in a list of un-
acceptable activities the “Spreading of malicious gossip . . . . ”
The legality of that prohibition is not challenged. Gable did not
promulgate a new employee rule of general application. Rather,
Gable addressed Miller’s gossip with Christie and not protected
speech. In Aroostook and other decisions that address limits on
employee gossip the Board has considered the lawfulness of
restrictions on gossip in the context when the restrictions are
imposed. In Aroostook the restriction on gossip clearly referred
to employees’ protected concerted activity. The test of whether
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
a statement or conduct would reasonably tend to coerce is an
objective one, requiring an assessment of all the surrounding
circumstances in which the statement is made or the conduct
occurs. Electrical Workers Local 6 (San Francisco Electrical
Contractors), 318 NLRB 109 (1995).
Gable was addressing unprotected malicious gossip like that
in Miller’s e-mail and not protected concerted activity. The
written warning issued to Miller, the legality of which is not
challenged, states “the manner in which he communicates with
his fellow employees must change to reflect a more positive
approach rather than one of gossip.” An employer is privileged
to prohibit and to threaten employees with discipline for mali-
cious gossip. Sams Club, 342 NLRB No. 57 (2004); Southern
Maryland Hospital, 293 NLRB 1209 (1989). Gable’s statement
that he would fire Miller if he was seen gossiping with Christie,
considered in context, would not be reasonably understood by
an employee in Miller’s position to be a prohibition of discus-
sions related to concerted activity about terms and conditions of
employment.6 I shall accordingly recommend the dismissal of
the allegation that Gable promulgated a rule and threatened
employees with discharge for violating the rule in violation of
Section 8(a)(1).
Gable’s motive for the action he took against Miller is not
relevant to the issue of whether he promulgated an unlawful
rule or made an unlawful threat. It has potential relevance,
however, to the allegation that Christie was discharged in re-
taliation for her protected concerted activity with Miller imme-
diately before the elevator incident. Gable did not know, at the
time he threatened to fire Miller, that Miller and Christie had
conferred and agreed just prior to the elevator incident to report
Gable to Griffin. Based on a conversation immediately after the
incident, Griffin knew that Miller had told Christie about Ga-
ble’s asserted remark, but Griffin was not told that Miller and
Christie had concertedly agreed to complain that Gable had
made an offensive sexual remark. Moreover, the fact that Gable
had his discussion immediately after the confrontation is objec-
tive proof that he had no knowledge of what Christie told Grif-
fin as they rode up on the elevator or of what Christie testified
she told Sports after getting off the elevator. In addition, the
conclusory testimony by Christie that she told Sports on July 30
that she might want to talk to Miller did not put Sports on no-
tice of Christie’s protected concerted activity on July 30. I con-
clude that the evidence does not show that Gable’s motive for
the action he took against Miller on July 31, was the protected
concerted activity by Christie and Miller that preceded the con-
frontation on July 30.
Sports did not promulgate a new rule on July 31. She re-
peated to Christie the substance of her understanding of Gable’s
warning to Miller about gossip. On July 30, Miller had told
Christie about the misdirected e-mail and had talked with her
again on July 31, after Christie’s conversation with Sports. I

6 Miller’s individual understanding that he expressed to Christie is
irrelevant. Electrical Workers Local 6, 318 NLRB 109 (1995). More-
over, it is probable that the written warning by Gable that Miller would
be terminated if his work performance did not improve significantly
influenced his interpretation of the gossiping restriction when he spoke
with Christie following his meeting with Gable.
infer that Miller related to Christie the details of his meeting
with Gable on July 31, and shared with her the written warning
he had received. Based upon the rationale for my conclusions
regarding Gable’s meeting with Miller on July 31, I shall rec-
ommend the dismissal of the allegation that Sports promulgated
a rule in violation of Section 8(a)(1). There is no allegation that
Sports unlawfully threatened Christie on July 31, and the evi-
dence does not establish such a threat.
4. August 13 termination of Christie
On August 13, Christie was summoned to Sports’ office.
Sports, Griesman, and Gable were present. Sports told Christie
that she was being let go due to a restructuring of the media
department. Griesman stated that the decision was not related to
Christie’s performance and explained that a buyer for both
radio and television was needed. Christie said that she could
buy both radio and television time. Griesman observed that she
had asked Christie to buy television time in the past and
Christie had declined, saying that she preferred buying radio
time. Christie asserted that that happened 2 years earlier.7 Gable
said that the decision would not be changed and he and Gries-
man left the office. Christie was given severance pay.
After Gable and Griesman left the office, Christie asked
Sports if her termination was in retaliation for the August 1
letter she had given to Sports. Sports replied that she did not
know, that she was just informed, about 30 minutes before she
called Christie to her office. Sports said she is usually the one
that goes to payroll and creates all the documents for letting
personnel go. This testimony is not controverted. Sports state-
ment is not inconsistent with her testimony, discussed later, that
she did not share the August 1 memorandum with anyone prior
to Christie’s termination. The memorandum shows a copy to
Michael Ellison and Sports had no reason at that time to assume
that Ellison was not aware of the content of the memo.
Supervisor Marilee Gibson, who had worked for the Em-
ployer for 25 years, assumed Christie’s accounts. Washington
had provided support services for buyers, such as determining
what media time was available and the costs. Griesman credi-
bly described how buyers were able to do the tasks formerly
performed by Washington by using new software that had been
acquired and made available on each buyer’s desk and that
Washington was displaced by the new technology.
At the time of Christie’s termination there were five buyers.
They were Christie, Miller, Aubrey Winfrey, Shannon Witte,
and Kristy Vavak. Following Christie’s termination no addi-
tional buyers were hired until Andrea Eiler began work on Feb-
ruary 2, 2004, as an entry-level junior media buyer, at a sub-
stantially lower salary than Christie had been paid and with less
responsibility.
Vavak was hired on July 17, and began work on August 4.
Asked to explain why Vavak was hired and retained in prefer-
ence to Christie, Griesman testified that she had been hired to
handle buying for a specific account, Visual Bible, which in-
cluded radio, television, and print. Griesman testified that
Christie had done only radio. The same reason was offered to

7 The date when Christie was offered television work was not estab-
lished.
ELLISON MEDIA CO. 1121
explain why Christie was laid off, rather than one of the other
buyers.
Griesman testified that when she evaluated who to lay off
she concluded that Christie objectively was no better than the
other buyers, but the other buyers were more versatile because
they bought both radio and television time. Griesman credibly
described how she had twice asked Christie if she would like to
buy television, but that Christie had declined. Griesman testi-
fied that on one occasion when she asked Christie about buying
television Christie had said that she did not want to buy televi-
sion and that “radio is my baby.” Washington confirmed that
Christie used that expression. Marilee Gibson credibly testified
that on numerous occasions she had heard Christie call herself
the “queen of radio,” state that she never wanted to do TV and
that she just wanted to do radio. Christie acknowledged that
Gable told her that he would like to see her buy a market for
television, but she made no effort in that regard.
Washington and Christie testified about Christie being very
upset when a new employee, Jen Bradley, had been assigned to
buy television.8 This asserted event occurred before Christie
and Washington began sharing an office, about 8 months before
Washington was laid off. Christie and Washington’s hearsay
accounts were not credibly offered and are improbable. Christie
acknowledged on cross-examination that Griesman had called
her into her office before Bradley was hired and asked Christie
if she wanted to buy television and that she answered that she
would rather buy radio. Moreover, Marilee Gibson credibly
testified that Christie had told her that she never wanted to do
television. There were meetings to address conflicts between
Christie and Bradley where they were present, as were Gibson,
Sports, and Griesman, but Christie’s claim at the hearing that
she was denied a television assignment that was given to Brad-
ley was not mentioned by Christie at those meetings. Even if
Christie and Washington’s accounts of Christie’s complaint
about Bradley were credited, they would have little probative
value. The Employer had no knowledge of the complaint. For
the reasons discussed in detail infra, the Employer is not pre-
sumed to be aware of the claimed conversation between
Christie and Washington based on a “small plant” theory. Ac-
cordingly, the claimed conversation between Christie and
Washington is not inconsistent with the Employer’s evidence
that Christie had demonstrated no interest in television work.
The evidence shows that Christie’s job performance was
good and that the Employer had recognized the quality of her
work. There is evidence that in the area of bonuses (negotiating
free media time) Christie had higher figures than other buyers,
although it is not entirely clear how comparable her bonuses
were to those of other employees, since she did only radio
work. In any case, a preponderance of the evidence does not
show that her job performance was superior to that of other
buyers.
The uncontroverted testimony of Griesman and Ellison was
that the Employer was notified during the first and second quar-
ters of 2003 that several clients gave notice that they would
cease using the Employer to buy broadcast time. The clients
were identified by Griesman as Life Changers International,

8 Bradley and Christie did not get along and Bradley quit.
Jerald Mann Ministries, Trinity Church of Amarillo, Texas, and
Casey Treat (apparently religious broadcasters). There were
existing contracts for time that had already been purchased for
these clients, which could be cancelled, typically with 4 weeks
notice. The contracts were for television time and possibly
radio time. Some of the lost clients sought cancellation of their
existing contracts. Griesman and Ellison testified that Christie
was terminated in response to a loss of revenue of approxi-
mately $50,000 per month because of the loss of clients.9
Evidence in the form of business records was not offered to
corroborate the testimony of Griesman and Ellison regarding
the lost business and the record does not show when the effects
of the loss of clients would be reflected in lost revenue.10 If the
General Counsel is found to have made an initial prima facie
showing of discrimination against Christie, an absence of cor-
roborating business records could be relevant at the second step
of an analysis under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). See Davey Roofing, Inc., 341
NLRB 222, 223 (2004), citing Reeves Rubber, Inc., 252 NLRB
134, 143 (1980). A countervailing consideration in the present
case would be that when Christie’s position was eliminated the
number of the Employer’s media buyers was reduced from five
to four for a substantial period of time, which is consistent with
a reduction in the media department work force for business
considerations.
Griesman and Ellison testified that the lost revenue was ad-
dressed by reorganizing the media department and terminating
Washington on August 6, and Christie on August 12. The ter-
mination of Christie and Washington and the reassignment of
Christie’s accounts to Gibson were recommended by Griesman
and approved by Ellison in a telephone conversation. Both
Griesman and Ellison testified that the decision was not the
subject of memoranda or otherwise memorialized and that this
sort of informal decisionmaking was normal.
Ellison was on vacation beginning July 30. He returned to
the office briefly on August 18. He learned at that time that a
letter had been received from Christie’s private attorney dated
August 15, addressing asserted Title VII issues relating to
Christie’s discharge. 11 He returned to the office full time on
August 20, and met with Griesman, Sports, and Gable. He testi-
fied that he was unaware of the matters addressed in Christie’s
August 1 memorandum before he returned from vacation.
Christie had given a copy of the memorandum to Ellison’s
assistant, Judy Plumb. Ellison spoke with Plumb about every 3
or 4 days by satellite telephone while he was on vacation. He
acknowledged that he spoke with Sports about Christie’s im-
pending termination while he was on vacation. That testimony
is consistent with Sports’ testimony that she called Ellison to

9 In a letter to Christie’s attorney on September 3, the Employer’s at-
torney stated that the loss of billings was approximately $400,000 per
month, causing a loss of about $50,000 per month in commissions.
10 Contrary to the suggestion of the General Counsel on brief, there
was no showing that the Employer failed to comply with any Govern-
ment subpoena duces tecum relating to such business records.
11 Christie had told Miller on July 31, that she would make a written
submission to Sports based on advice from her attorney.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1122
check with him after Griesman notified her that Christie would
be terminated. Ellison described his conversation with Sports as
follows:
A. Rhonda said, “Are you aware,” okay, “that we are
going to terminate Mary,” and I said, “Yes.” . . . Rhonda
said, “Well, there may be problems with Mary in that she
will be unhappy,” I kind of cut Rhonda off to say, “Well,
Rhonda, I understand why Mary would be unhappy,”
okay, “that is an unfortunate thing, when people are laid
off, we have to make this adjustment, and I’m going to
support Barbara.”
Q. Did Rhonda Sports tell you that Mary Christie had
filed a written complaint with her, dated August 1st, 2003?
A. No.
Sports description of the conversation was consistent with
that of Ellison. Sports testified she called Ellison because of the
matters Christie had raised in the August 1 memorandum after
Griesman left her office on August 13. She related that she told
Ellison that she needed to speak with him regarding Mary
Christie because Griesman had said that the Employer needed
to lay her off and that she had some issues that she needed to
discuss with him that needed to be looked into inside the com-
pany. Sports testified that Ellison told her that he had spoken
with Griesman and the issues raised by Christie were not dis-
cussed.
Sports testified that she did not discuss the August 1 memo-
randum to Griesman or discuss with him Christie’s concerns
expressed to her on July 31. She explained that she had asked
Christie on July 31, if she had spoken to Griesman about her
concerns and had been told by Christie that she had. The evi-
dence is that Sports only participated administratively in the
discharge of Christie. She was not involved in the decision to
terminate Christie and did not have the authority to overrule the
decision.
Thus, the testimony of Ellison, Griesman, and Sports is that
Ellison and Griesman had no knowledge of Christie’s July 31
meeting with Sports or the August 1 memorandum until after
Christie was terminated. A manager’s or supervisor’s knowl-
edge of an employee’s protected concerted activities may be
imputed to the employer, but if such knowledge is denied, and
the denial is credible in the context of all of the circumstances
of the case, knowledge of protected activity will not be imputed
to the employer. Dr. Philip Megdal, D.D.S., Inc., 267 NLRB
82 (1983).
My review of the testimony and the other evidence in this
case convinces me that Sports did not disclose her July 31 con-
versation with Christie or the August 1 memorandum until
Ellison returned from vacation, after Christie’s discharge.
Sports’ testimony was offered in an especially convincing
manner. She candidly acknowledged calling Ellison to discuss
the August 1 memo. By calling Ellison she was essentially
questioning a decision made by Griesman, a corporate vice
president whom Ellison testified he trusted implicitly. If Ellison
responded to Sports’ concern by saying that he had discussed
the decision with Griesman, it is not improbable that Sports
would refrain from pressing the matter. In this regard, Ellison’s
testimony was that of a confident and assertive person who
Sports may not have been inclined to question. A further con-
sideration is that the record shows that tension existed between
Vice President Griesman and Vice President Griffin. Griffin
took Christie forthwith to Sports to register her complaints
about Gable. If Sports had pressed the matter with Ellison, she
would have risked being drawn into an office dispute between
corporate officers. Ellison and Griesman testified in a credible
manner regarding their lack of knowledge of Christie’s reports
to Sports before Christie was terminated. I have considered the
fact that Christie was discharged less than 2 weeks after she
engaged in protected concerted activity. This close timing is
suspect, considering Christie’s tenure and work record. Never-
theless, evidence is insufficient to show that there is more than
a coincidental correlation. In view of the foregoing, I decline to
impute Sports knowledge to other members of management at
the time of Christie’s termination.
The General Counsel contends that the Employer terminated
Christie because she engaged in concerted activity, in violation
of Section 8(a)(1) of the Act. The standards for assessing al-
leged 8(a)(1) discrimination were stated in Diva, Ltd., 325
NLRB 822, 830 (1998), and again in Alex R. Thomas & Co.,
333 NLRB 153, 164 (2001)12
In Meyers Industries, 268 NLRB 493 (1984), remanded sub
nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied
106 S.Ct. 313, 352 (1985), reaffd. 281 NLRB 882 (1986), enfd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), the
Board established the test for determining whether an employee
has been discharged for protected concerted activity under Sec-
tion 8(a)(1) of the Act. In order to be found ‘‘concerted,’’ an
employee’s activity must be engaged in with or on the authority
of other employees, and not solely on behalf of the employee
himself. Once the activity is found to be concerted, an 8(a)(1)
violation will be found if, in addition, the employer knew of the
concerted nature of the employee’s activity, the concerted ac-
tivity was protected by the Act, and the discharge was moti-
vated by the employee’s protected concerted activity. Id. at
497. In the second Meyers decision, the Board explained, in
response to the court’s remand, that individual activity could
still be found to be concerted under the new test if there is some
demonstrable linkage to group action. The Board reiterated its
position that an individual employee’s actions seeking to initi-
ate, or to induce or to prepare for group action, as well as an
individual employee’s bringing truly group complaints to the
attention of management, will be found concerted. The question
of whether an employee has engaged in concerted activity is a
factual one based on the totality of record evidence. Id. at 886–
887. See also Ewing v. NLRB, 861 F.2d 353 (2d Cir. 1988).
Since Meyers, the Board has found an individual employee’s
activities to be concerted when they grew out of prior group
activity Every Woman’s Place, 282 NLRB 413 (1986); when
the employee acts, formally or informally, on behalf of the
group. Oakes Machine Corp., 288 NLRB 456 (1988); or when
an individual employee solicits other employees to engage in
group action, even where such solicitations are rejected, El
Gran Combo de Puerto Rico, 284 NLRB 1115 (1987), enfd.
853 F.2d 966 (1st Cir. 1988); Circle K Corp., 305 NLRB 932

12 Some citations have been moved from footnotes to the text.
ELLISON MEDIA CO. 1123
(1991). However, the Board has long held that, for conversa-
tions between employees to be found protected concerted activ-
ity, they must look toward group action and that mere “griping”
is not protected. See Mushroom Transportation Co. v. NLRB,
330 F.2d 683 (3d Cir. 1964), and its progeny.
In summary, to prove that the Employer has retaliated
against Christie for exercising her right to engage in protected
concerted activity, the General Counsel must establish: (1)
Christie engaged in concerted activity; (2) the Employer knew
of the concerted nature of the activity; (3) the concerted activity
was protected by the Act; and (4) the adverse action taken
against Christie was motivated by the activity. Triangle Electric
Co., 335 NLRB 1037, 1038 (2001).
On July 30, Christie and Miller discussed Gable’s remark
that day about Griffin that preceded the confrontation between
Miller and Gable. Christie and Miller discussed what should be
done and Christie urged Miller to bring the matter to the atten-
tion of management. At Christie’s urging, Miller set out to
report the incident to Griffin. The object of Miller’s and
Christie’s concern, the perceived offensive language by Gable
of a sexual nature, was a legitimate employee concern and their
activity preceding the elevator incident was classic protected
concerted activity. The same conclusion is warranted regarding
Christie’s describing to Griffin the remark Miller had related to
her. Christie’s statement to Sports that she might want to talk to
Miller was also in furtherance of her concerted activity with
Miller. The activity did not lose its protection because Miller
misunderstood what Gable said. Moreover, Gable’s actual re-
marks describing men’s swimwear as a “banana hammock”
might well be considered offensive and a proper subject of a
concerted complaint.
The evidence does not show that Christie’s other activity was
concerted. The record shows that Christie spoke at work with
other employees concerning her displeasure with a number of
workplace issues. She spoke about these matters principally
with Miller and Washington. The subjects discussed in those
conversations included the meeting where Gables referred to
her as a “cocky rooster”; Gable repeatedly referring to Griffin
as Christie’s husband and boyfriend; Gable using inappropriate
language; and Griesman’s “what goes on in media stays in
media” directive. Those conversations and others with fellow
employees were not shown to be more than Christie voicing her
apparently numerous personal complaints that did not look
toward group action.13
Assuming, without deciding, that the conversations Christie
had with Miller and Washington were concerted activity, the
evidence does not show employer knowledge. Most of the con-
versations that Christie had with Washington regarding terms
and conditions of employment were in the two-person office
they shared. No one else was shown to be present or to have
likely learned of the content of their discussions. One claimed
conversation that did not occur in their office was a discussion

13 The record suggests that Christie’s concern with the “what goes on
in media stays in media” directive may have been related to her asso-
ciation with Griffin. Griffin was a manager from outside the media
department who had obtained media department information from
Christie.
of a new buyer, Jen Bradley. That discussion occurred before
Washington and Christie began sharing an office, at least 8
months before Christie was terminated. The evidence does not
show that anyone was in the area and in a position to overhear
that single conversation. The conversations that Christie had
with Miller appear to have been one-on-one discussions and the
evidence does not show that others were in a position to have
overheard their discussions. In particular, the evidence does not
show that the conversations occurred in the open work area
where others were likely to overhear their discussions. The
evidence affirmatively points to Christie having private conver-
sations with Miller and Washington.
The General Counsel contends that the Employer should be
found to have knowledge of the content of Christie’s conversa-
tions with other employees based on the “small plant doctrine.”
See Wiese Plow Welding Co., 123 NLRB 616 (1959). In its
decision in Hadley Mfg., 108 NLRB 1641, 1650 (1954), the
Board stated:
The mere fact that Respondent’s plant is of a small size, does
not permit a finding that Respondent had knowledge of the
union activities of specific employees, absent supporting evi-
dence that the union activities were carried on in such a man-
ner, or at times that in the normal course of events, Respon-
dent must have noticed them.
The evidence does not show that Christie’s conversations
with Washington and Miller were conducted in such a manner
that the Employer would become aware of the content of the
conversations. The evidence is more consistent with Christie
having conversations that were intended to be personal. Other
than a portion of her conversation with Miller that Christie
disclosed to Griffin in the elevator on July 30, I find that the
General Counsel has not proven Employer knowledge of the
conversations Christie had with other employees regarding
terms and conditions of employment.
Other than describing some of Christie’s involvement in re-
porting Gable’s remark regarding Griffin, the August 1 memo-
randum from Christie to Sports and Ellison does not allude to
concerted activity. On brief the General Counsel contends that
Christie engaged in protected concerted activity by addressing
the other matters in the August 1 memo, because the memoran-
dum addressed concerns that other employees shared. The Gen-
eral Counsel cites Diagnostic Center Hospital Corp. of Texas,
228 NLRB 1215, 1217 (1977), which relied on Alleluia Cush-
ion Co., 221 NLRB 999 (1975). Diagnostic Center Hospital
Corp. of Texas was overruled by Meyers Industries, 268 NLRB
493 (1984). See Spartan Plastics, 269 NLRB 546 fn. 3 (1984).
The issue presented is whether the Employer was motivated
by Christie’s protected concerted activity on July 30, her meet-
ing with Sports on July 31, or her August 1 memo. In Golden
State Foods Corp., 340 NLRB 382, 385 (2003), the Board
stated:
In cases like this one, involving 8(a)(3) violations that turn on
the employer’s motivation, we apply the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under that analysis, the General Counsel must make
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1124
an initial showing that (1) the employee was engaged in pro-
tected activity; (2) the employer was aware of the activity; and
(3) the activity was a substantial or motivating reason for the
employer’s action. Once the General Counsel makes this ini-
tial showing, the burden of persuasion then shifts to the Re-
spondent to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged
in protected activity. Manno Electric, 321 NLRB 278, 283 fn.
12 (1996). However, if the evidence establishes that the rea-
sons given for the Respondent’s action are pretextual—that is,
either false or not in fact relied upon—the Respondent fails by
definition to show that it would have taken the same action for
those reasons, absent the protected conduct, and thus there is
no need to perform the second part of the Wright Line analy-
sis. Limestone Apparel Corp., 255 NLRB 722 (1981).
The same test is applicable to alleged 8(a)(1) discrimination
violations that turn on employer motivation. The General
Counsel has established that Christie engaged in protected ac-
tivity, but the Employer has not been shown to have knowledge
of protected concerted activity by Christie at the time of her
discharge. Since the Employer did not have knowledge of the
protected activity, the activity could not have been a substantial
or motivating reason for the Employer’s action. Accordingly,
the General Counsel has not satisfied the first step of the Wright
Line analysis. I therefore shall recommend dismissal of the
allegation that Christie was discharged in violation of Section
8(a)(1).
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
maintaining the rule in its Employee Handbook that prohibits
soliciting during working hours and/or in working areas.
3. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended order.14

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
ORDER
The Respondent Ellison Media Company, Phoenix, Arizona,
its officers, agents, successors, and assigns, at the plant shall
1. Cease and desist from
(a) Maintaining the rule in its Employee Handbook that pro-
hibits soliciting during working hours and/or in working areas.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the rule in its Employee Handbook that prohibits
soliciting during working hours and/or in working areas.
(b) Within 14 days after service by the Region, post at its
Phoenix, Arizona place of business the attached notice marked
“Appendix.” 15 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that while these proceedings are pending the Respon-
dent 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 its
Phoenix, Arizona place of business at any time since March 30,
2003.
(c) 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.

mend Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
15 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted By Order Of The
National Labor Relations Board” shall read “Posted Pursuant To A
Judgment of The United States Court of Appeals Enforcing An Order
of The National Labor Relations Board.”