Excalibur Charter School, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 2018

366 NLRB No. 49 (N.L.R.B. 2018)

366 NLRB No. 49
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.
Excalibur Charter School, Inc. and Nathaniel Wicke.
Case 28–CA–023039
March 29, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On January 26, 2011, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed cross-exceptions with supporting ar-
gument, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, 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 below.
The Respondent is a nonprofit corporation that was es-
tablished for the specific purpose of owning and operat-
ing a charter school under the laws of the State of Arizo-
na. The judge found that the Respondent is not a “politi-
cal subdivision” under Section 2(2) of the Act and, there-
fore, is subject to the Board’s jurisdiction. The judge
then found merit in many of the allegations contained in
the complaint.1
As discussed below, we agree with the judge that the
Respondent is not a “political subdivision.” In addition,
we agree with the judge that the Respondent violated
Section 8(a)(1) by terminating employee Nathaniel
Wicke.2 We also agree with the judge’s finding that the

1 In the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(1) by: (1) maintaining Non-
disclosure and Internet Usage Rules in its employee handbook; (2)
presenting its Solicitation Rule at new employee orientation without
including the caveat that the listed “impermissible forms of solicita-
tion” were only impermissible during working time; and (3) prohibiting
employees from discussing their terms and conditions of employment
in a December 18, 2009 email from the Respondent’s founder and
board member, Jeffery Parker.
2 In its cross-exceptions, the Respondent does not challenge the ap-
plicability of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983), to Wicke’s
discharge. The only argument advanced by the Respondent that ap-
pears to pertain to the substance of the allegation is that the Respondent
never told Wicke that it terminated him because he was trying to find
out other people’s salaries. But “an employer rarely admits that an
employee has been discharged because of activities protected by the
Respondent neither promulgated an unlawful rule nor
threatened Wicke with unspecified reprisals in a January
8, 2010 email from Dean of Students Eric Walt.3 The
remaining issues contested by exceptions involve allega-
tions that the Respondent violated Section 8(a)(1) by
maintaining two work rules. We shall sever and retain
those issues for future resolution.
In concluding that the Respondent is not a “political
subdivision,” the judge properly looked to the two-prong
test articulated in NLRB v. Natural Gas Utility District of
Hawkins County, 402 U.S. 600, 604–605 (1971). Under
that test, an entity may be considered a “political subdi-
vision” if it is either (1) created directly by the State so as
to constitute a department or administrative arm of the
government or (2) administered by individuals who are
responsible to public officials or to the general electorate.
The judge found that the first prong was not satisfied
because the Arizona State Legislature established a
framework and rules by which individuals could estab-
lish charter schools that were subject to approval by state
officials. Regarding the second prong, the judge found
that neither a public official nor the general electorate has
any input in the selection of the Respondent’s board
members or staff members. He further found that, alt-
hough the State has substantial regulatory authority over
the Respondent, including approving the selected board
members, that authority is not sufficient to satisfy the
second prong.
The judge’s decision in this case issued prior to the
Board’s decisions in Pennsylvania Virtual Charter
School, 364 NLRB No. 87 (2016), and Hyde Leadership
Charter School—Brooklyn, 364 NLRB No. 88 (2016), in
which the Board, applying Hawkins County, concluded
that the charter schools at issue were not “political sub-
divisions.” In those cases, the Board found that neither
Pennsylvania Charter nor Hyde Leadership was created
directly by the state, but instead by private individuals.
Pennsylvania Virtual, supra, slip op. at 6–7; Hyde Lead-
ership, supra, slip op. at 5. The Board further found that

Act,” NLRB v. E.I. DuPont de Nemours, 750 F.2d 524, 529 (6th Cir.
1984), enfg. in pert. part 263 NLRB 159 (1982); see also Michigan
Roads Maintenance Co., LLC, 344 NLRB 617, 625 (2005). We there-
fore find the Respondent’s lone argument to be without merit.
3 On January 7, Wicke, apparently inadvertently, sent an email to
Walt that criticized Walt’s work. In response, Walt instructed Wicke,
“Please don’t send me any insulting communications, as well as copies
of any such communications about me to others.” Based on the cir-
cumstances here, we agree with the judge that Walt’s reply does not
violate Sec. 8(a)(1). We specifically reject the General Counsel’s char-
acterization of Walt’s reply as an employer rule. See Flamingo Las
Vegas Operating Co., 359 NLRB 873, 874 (2013), affd. and incorpo-
rated by reference in 361 NLRB No. 130 (2014), enf. granted in part
and denied in part on other grounds 2016 WL 3887170 (D.C. Cir.
2016) (not reported in F.3d).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
neither charter school was administered by individuals
who are responsible to public officials or the general
electorate. Pennsylvania Virtual, supra, slip. op. at 7–8;
Hyde Leadership, supra, slip op. at 6-7. In doing so, the
Board explained that “the ‘relevant inquiry’ is whether a
majority of the individuals who administer the entity—
the governing board and executive officers—are appoint-
ed by and subject to removal by public officials.” Penn-
sylvania Virtual, supra, slip op. at 7. As part of this in-
quiry, “[t]he Board examines whether the composition,
selection, and removal of the members of an employer’s
governing board are determined by law, or solely by the
employer’s governing documents.” Id. Ultimately,
“[w]here the appointment and removal of a majority of
an entity’s governing board members is controlled by
private individuals—as opposed to public officials—the
entity is subject to the Board’s jurisdiction.” Id.
Applying Pennsylvania Virtual and Hyde Leadership,
we reach the same conclusion as did the judge here. We
agree with the judge that the Respondent was not created
directly by the state and thus does not satisfy the first
prong of Hawkins County. As in Pennsylvania Virtual,
the Respondent “was not created directly by any [State of
Arizona] government entity, special statute, legislation,
or public official, but instead by private individuals as a
nonprofit corporation.” 364 NLRB No. 87, slip op. at 6.
We also agree with the judge that the Respondent is not
administered by individuals responsible to public offi-
cials or the general electorate. The Respondent’s board
members are appointed and subject to removal only by
the other sitting members of its board, not by public offi-
cials. The method of selecting board members is dictated
by the Respondent’s charter and bylaws, and not by any
State or local law or regulation. See Pennsylvania Virtu-
al, supra, slip op. at 8; Hyde Leadership, supra, slip op.
at 6–7.4 As there is no evidence that the Respondent is
administered by individuals responsible to public offi-
cials or the general electorate, “our analysis properly
ends.”5 We thus conclude that the Respondent is not a

4 We observe that, in reaching his conclusion under the second
prong, the judge found that the Arizona State Board of Charter Schools
must approve the Respondent’s board members. Our review of the
record reveals that the Respondent’s charter application included a list
of its initial board members, that its charter requires it to notify the
State through the charter amendment notification process when it ap-
points new board members, and that its charter and governing docu-
ments impose a background and fingerprint check requirement on its
board members. As we found in Hyde Leadership, the foregoing is
insufficient to establish that the Respondent’s board members are ac-
countable to public officials or the general electorate. See 364 NLRB
No. 88, slip op. at 6-7.
5 Pennsylvania Virtual, supra, slip op. at 9. Because the above
analysis yielded a “clear answer,” the consideration of other factors is
not necessary. Id.
“political subdivision” under the second prong of the
Hawkins County test.6
AMENDED REMEDY
In addition to the remedies recommended by the
judge, we shall order that backpay be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). Additionally, in accordance with our recent de-
cision in King Soopers, Inc., 364 NLRB No. 93 (2016),
we shall order the Respondent to compensate Wicke for
his search-for-work and interim employment expenses
regardless of whether those expenses exceed interim
earnings. Search-for-work and interim employment ex-
penses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra. We shall also order the
Respondent to compensate employee Nathaniel Wicke
for any adverse tax consequences of receiving a lump-
sum backpay award and to file a report with the Regional
Director for Region 28 allocating backpay to the appro-
priate calendar years. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).7
Further, to remedy the Respondent’s maintenance of
rules that we find unlawful in the absence of exceptions,
we shall order the Respondent to rescind or modify its
unlawful rules and to notify employees of these actions
in accordance with Guardsmark, LLC, 344 NLRB 809,
812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007).
We shall also modify the judge’s recommended Order
to conform to our findings and to the Board’s standard

6 Chairman Kaplan notes that even if statutory jurisdiction exists
under Sec. 2(2), the Board may nonetheless decline to exercise jurisdic-
tion over charter schools as a class or category of employers, consistent
with Sec. 14(c)(1) of the Act. However, the Respondent does not argue
that the Board should decline jurisdiction on this basis and, in any
event, the Board has expressly rejected declining jurisdiction over
charter schools as a class in Pennsylvania Virtual, supra, slip op. at 9–
10, and Hyde Leadership, supra, slip op. at 7–8. Chairman Kaplan
believes this precedent might warrant review by a full five-member
Board in a future case.
7 Regarding the remedy, the Respondent argues that Wicke’s em-
ployment contract was set to expire on June 30, 2010, and, therefore,
that he is not entitled to reinstatement and that the backpay period
should terminate as of that date. The Respondent will have the oppor-
tunity to demonstrate in compliance that it would have terminated
Wicke’s employment on June 30 and, thereby, limit its remedial obliga-
tions to him. Cf. Dawson Carbide Indus., 273 NLRB 382, 382 fn. 3
(1984), enfd. 782 F.2d 64 (6th Cir. 1986) (leaving to compliance em-
ployer’s contention that unlawfully laid off employees should not be
awarded backpay for certain periods because they would have been laid
off in any event for economic reasons).
EXCALIBUR CHARTER SCHOOL 3
remedial language and to provide for notice-posting in
accord with J. Picini Flooring, 356 NLRB 11 (2010).
Finally, we have substituted a new notice to conform
to the Order as modified and in accordance with Durham
School Services, 360 NLRB 694 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Excalibur Charter Schools, Inc., Apache
Junction, Arizona, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from
(a) Prohibiting employees from discussing their terms
and conditions of employment with other employees.
(b) Presenting the Solicitation Rule to employees
without including the caveat that the prohibition on “im-
permissible forms of solicitation” only applies during
working time.
(c) Maintaining a Non-Disclosure Rule that prohibits
employees from discussing employee contract terms,
compensation, and compensation data.
(d) Maintaining an Internet Usage Rule that prohibits
employees from using the internet to send or post confi-
dential information, which encompasses employee con-
tract terms and compensation.
(e) Discharging employees because they engage in
protected concerted activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the:
(i) Non-Disclosure Rule prohibiting employees from
discussing employee contract terms, compensation, and
compensation data.
(ii) Internet Usage Rule prohibiting employees from
using the internet to send or post confidential infor-
mation, which encompasses employee contract terms and
compensation.
(b) 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.
(c) Within 14 days from the date of this Order, offer
Nathaniel Wicke 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.
(d) Make Nathaniel Wicke 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 judge’s decision as amended in this deci-
sion.
(e) Compensate Nathaniel Wicke for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
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.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Nathaniel Wicke, and within 3 days thereafter, notify the
employee in writing that this has been done and that the
discharge will not be used against him in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place 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.
(h) Within 14 days after service by the Region, post at
its Apache Junction, Arizona, facility copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region
28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, 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 Respond-
ent 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 Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 14, 2009.

8 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 BOARD4
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that issues raised with respect
to the Respondent’s maintenance of a solicitation rule
that prohibits employees from distributing literature not
approved by the Respondent, and an Employee Conduct
and Work Rule that prohibits both “boisterous or disrup-
tive activity in the workplace” and “insubordinate or oth-
er disrespectful conduct,” are severed from this case and
retained for future resolution.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. March 29, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit you from discussing your terms
and conditions of employment with other employees.
WE WILL NOT present the Solicitation Rule to you
without including the caveat that the prohibition on “im-
permissible forms of solicitation” only applies during
working time.
WE WILL NOT maintain a Non-Disclosure Rule prohib-
iting you from discussing your contract terms, compensa-
tion, and compensation data.
WE WILL NOT maintain an Internet Usage Rule prohib-
iting you from using the internet to send or post “confi-
dential information,” which encompasses employee con-
tract terms and compensation.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
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 rescind:
the Non-Disclosure Rule prohibiting you from discuss-
ing your contract terms, compensation, and compensa-
tion data,
the Internet Usage Rule prohibiting you from using the
internet to send or post “confidential information,”
which encompasses employee contract terms and com-
pensation.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise you that the unlawful
provisions have been rescinded, or (2) provide lawfully
worded provisions on adhesive backing that will cover
the unlawful provisions; or WE WILL publish and distrib-
ute revised employee handbooks that (1) do not contain
the unlawful provisions, or (2) provide lawfully worded
provisions.
WE WILL, within 14 days from the date of the Board’s
Order, offer Nathaniel Wicke full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Nathaniel Wicke whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest, and WE WILL
also make Wicke whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Nathaniel Wicke 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 28, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
EXCALIBUR CHARTER SCHOOL 5
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Nathaniel Wicke, and WE WILL, within 3
days thereafter, notify Nathaniel Wicke in writing that
this has been done and that the discharge will not be used
against him in any way.
EXCALIBUR CHARTER SCHOOL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-023039 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Eva Herrera, Esq. and Paul Irving, Esq., for the General Coun-
sel.
Leonidas Condos, Esq. (The Condos Law Group), counsel for
the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on October 19, 2010, in Phoenix, Arizona.
The complaint herein, which issued on July 30, 2010, and was
amended on August 26, 2010, and September 20, 2010, was
based upon an unfair labor practice charge that was filed by
Nathaniel Wicke on May 14, 2010. The complaint alleges that
Excalibur Charter School, Inc., herein called the Respondent
and/or the school, has maintained overly broad and discrimina-
tory rules in its employee handbook regarding the non-
disclosure of “confidential” information, including certain in-
ternet usage, solicitations and employee conduct and work rules
and, through its handbook, has threatened its employees who
violate these rules with discipline or discharge. The complaint
further alleges that on about December 19, 2009, the Respond-
ent, by Jeffrey Parker, who incorporated the Respondent, is a
trustee and is on the Board of Directors, promulgated, main-
tained and enforced an overly broad and discriminatory rule
prohibiting employees from discussing their wages or terms of
conditions of employment with other employees, and Respond-
ent, by Eric Walt, Respondent’s dean of students, on about
January 8, 2010, promulgated and maintained an overly broad
and discriminatory rule prohibiting employees from communi-
cating with one another regarding their terms and conditions of
employment, and threatened employees who violate the rule
with unspecified reprisals. The complaint also alleges that since
about January 10, 2010, the Respondent, by Carol Parker, a
charter owner, has reaffirmed these unlawful rules. The com-
plaint further alleges that since about December 19, 2009,
Wicke and other employees of the Respondent have concerted-
ly complained to the Respondent about terms and conditions of
employment, among other things that the Respondent was not
providing teachers with technology and equipment that the
Respondent had received grants for, and that the teachers need
in order to properly perform their jobs, and that on about Janu-
ary 19, 2010, the Respondent discharged Wicke because he had
engaged in these protected concerted activities. These actions
by the Respondent are alleged to have violated Section 8(a)(1)
of the Act.
I. JURISDICTION
Respondent has been engaged in the operation of a charter
school for kindergarten through the 12th grade in the State of
Arizona since about 1999. While admitting that it operates a
charter school in the State of Arizona, and that during the
twelve month period ending May 14, 2010, it derived gross
revenues in excess of $1 million from various funding sources
and, during the same period, purchased and received at its facil-
ity goods valued in excess of $50,000 directly from points out-
side the State of Arizona, Respondent denies that it is subject to
the Board’s jurisdiction under Section 2(2) of the Act because
of the control exerted by the State of Arizona in the operation
of the school.
Parker is the individual who was primarily responsible for
incorporating the Respondent and is a trustee as well as being
on its board of directors. Carol Parker, Parker’s wife, was em-
ployed by the Respondent until August 2, 2010, primarily in
human resources as a district administrative assistant, and was
also a member of the school’s board of directors from 1999 to
August 2, 2010, when she resigned from the Board. Originally,
the Board of Directors was composed of interested parents of
students at the school, and others who were willing to partici-
pate; over the past 11 years the board members have changed.
The names of the board members are submitted to the State
Board for Charter Schools, herein called the State Board, for
approval. Parker was personally responsible for obtaining the
charter for the school from the State of Arizona. In the process
of obtaining the charter, and approval of the state, which took
over a year, he submitted the application, spoke to people who
were knowledgeable on the subject, prepared “. . . a good mis-
sion statement and all the necessary paperwork, and then sub-
mitted it to the State, and eventually they approved it.” As part
of the application to the State Board, he had to present a curric-
ulum, a business plan, a mission statement, and a three to five
year budget, all of which were subject to approval by the State
Board. He also had to notify the State Board of the location of
the school, together with the number of students who were
expected to attend. In addition, he provided the State Board
with the Articles of Incorporation and its bylaws, as well as the
names of the Respondent’s Board members. Amendments to its
charter, changes in board members or the location of the school
must be, and have been, submitted to the State Board for ap-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
proval. Further, the State Board may conduct site visits to the
school, announced or unannounced, and may take disciplinary
action against the school for failure to meet the academic needs
of the children, or what it perceives as threats to the health and
safety of the school children.
The school was originally sponsored by a local school dis-
trict which charged the Respondent $60,000 a year for the
sponsorship; they changed to the State Board, which does not
charge to be its sponsor. The school’s charter is for a fifteen
year period, although the State Board has the authority to re-
voke the charter prior to the time. At the conclusion of that
period, the school reapplies to the State Board for a new char-
ter. Parker and Ray Webb, the school principal, are responsible
for the hiring and firing of employees; the State Board has no
responsibility for that, or for the administration of the school.
The State Board enforces the regulations that must be met by
all charter schools within the State of Arizona, but it does not
oversee the day-to-day operation of the school. That is handled,
at the top, by Parker and Webb. At the present time there are
265 students and about 40 employees. Each teacher hired by the
school has to be approved by the State Board, which checks to
see that he/she has the necessary educational requirements,
although charter school teachers are not required to be certified
by the State of Arizona.
The school’s yearly gross revenue, presently approximately
$2.5 million, is dependent upon the number of students attend-
ing. Approximately $2.3 million of this was received from the
State of Arizona. The balance was from the federal govern-
ment, private contributions, and other sources.
The Supreme Court, in NLRB v. Natural Gas Utility District
of Hawkins County, Tennessee, 402 U.S. 600, 604 (1971), set
out a two part test for determining whether employers are ex-
empt as “political subdivisions” of the state under Section 2(2)
of the Act and are therefore exempt from the Act: (1) was the
entity created directly by the state so as to constitute depart-
ments or administrative arms of the state? or (2) is it adminis-
tered by individuals who are responsible to public officials or to
the general electorate? The Court also stated (at p. 604) that it is
the “actual operations and characteristics” of the employer that
determine whether it is a “political subdivision” within the
meaning of the Act. Also on point is Kentucky River Communi-
ty Care, Inc. v. NLRB, 193 F.3d 444 (6th Cir. 1999).
Clearly, the facts herein do not satisfy the first prong of the
test set out in Hawkins that the Respondent was created directly
by the state so as to constitute departments or administrative
arms of the state government. Rather the legislature established
a framework and rules by which individuals could establish
charter schools that were subject to approval by state officials.
The second prong of the test is whether the school is adminis-
tered by individuals who are responsible to public officials or to
the general electorate. I find that the Respondent fails this test
of Hawkins as well. The school was the idea of, and was incor-
porated by, Parker and Carol Parker in 1999. They solicited
individuals from the area, principally interested parents, to act
as members of the school’s board of directors. No public offi-
cial or member of “the general electorate” had any input in the
selection of board members, principals, administrators, teachers
or students. While the State Board has substantial regulatory
authority over charter schools, and must approve the board
members, the school’s charter, its location, mission, curricu-
lum, business plan, the number of students attending the school,
and budget, and checks to see that the teachers possess the nec-
essary educational requirements, that is not enough to exempt
the school pursuant to Section 2(2) of the Act. As the Court
stated in Kentucky River, supra:
To be sure, the Secretary of the Cabinet for Human Resources
exercises significant oversight of KRCC’s operations . . . but
it does not necessarily follow that such oversight means that
the individuals in charge of KRCC are responsible to public
officials. We find nothing in the oversight authority of the
Cabinet for Human Resources or in the internal structure of
the KRCC that makes the individuals in charge at KRCC re-
sponsible to the Cabinet for Human Resources.
Similarly, in the instant matter, although the State Board exer-
cises significant oversight over the operations of the Respond-
ent and all charter schools in the state, the day to day operation
of the school, including the hiring and firing of teachers and
other employees, is handled by Parker and Webb. I therefore
find that the Respondent is an employer within the meaning of
Section 2(2) of the Act.
II. THE FACTS
All employees are given a copy of the Respondent’s Em-
ployee handbook and they are told that it is their responsibility
to read and understand it. Carol Parker testified that at orienta-
tion sessions for new employees in about September and Janu-
ary, the handbooks were distributed to the employees and she
conducted a Power Point presentation to make it more palata-
ble. These orientations last a couple of hours and cover the
policies discussed in the handbook along with other policies
and procedures. One of the subjects discussed was that the
school felt that it was “inappropriate” for personnel to discuss
wages with each other. During these sessions, she stated:
We felt that it was inappropriate for personnel to be discuss-
ing wages with each other . . . it just wasn’t appropriate or eth-
ical . . . or professional to be discussing with each other wag-
es. We are there to teach kids and do our job, and whatever
your job description is, that is what you were to be held ac-
countable for and paid for, and just to take care of school
business.
Parker was also questioned about this subject and after being
shown the affidavit that he gave to the Board, he eventually
testified that in their annual staff meetings, he and Carol Parker
told the employees not to discuss their wages with other em-
ployees because it could cause a problem among the employ-
ees: “If people hear other’s wages . . . there may be hard feel-
ings.” Webb testified that in about March 2010, he told his
receptionist, Angie Baca, that she should not discuss her wages
with other people, and he did so at the request of Carol Parker.
Wicke testified that after he was hired he attended an orienta-
tion session conducted by Carol Parker, who discussed the
policies and programs at the school. The handbook was distrib-
uted to all those present and he testified that he remembers
Carol Parker saying: “Please do not discuss your pay, your
EXCALIBUR CHARTER SCHOOL 7
salary, your jobs or title with others.” However, he also testified
that he was never told, at that time or at any time, that if he
continued to compare salaries at the school, that he would be
terminated.
There are a number subjects covered by the Employee
Handbook that are alleged to violate the Act.
Non-Disclosure:
The protection of confidential business information and trade
secrets is vital to the interests and the success of Excalibur
Charter Schools, Inc. Lists of students, parents and staff are
confidential and for the purpose of conducting school busi-
ness only. They may not be sold, lent, given or used for any
other purpose, including solicitation of business. All employ-
ee contracts are individually negotiated. Therefore, discussing
specific employee contract terms and compensation is prohib-
ited and subject to disciplinary action, including but not lim-
ited to termination.
Confidential information includes, but is not limited to, the
following examples:
Compensation data
Internet Usage:
The following behaviors are examples of previously stated or
additional actions and activities that are prohibited and can re-
sult in disciplinary action:
Sending or posting confidential material, trade secrets
or proprietary information outside the organization.
Sending or posting messages or material that could
damage the organization’s image or reputation.
Sending or posting chain letters, solicitations, or ad-
vertisements not related to business purposes or activities.
Solicitation
Excalibur Charter Schools, Inc. recognizes that employees
may have interest in events and organizations outside the
workplace. However, employees may not solicit or distribute
literature concerning these activities during working time.
(Working time does not include lunch periods, work breaks or
other periods in which employees are not on duty.)
Examples of impermissible forms of solicitation include:
The circulation of petitions.
The distribution of literature not approved by the em-
ployer.
The solicitation of memberships, fees, or dues.
Employee Conduct and Work Rules
To ensure orderly operations and provide the best possible
work environment, Excalibur Charter Schools, Inc. expects
employees to follow rules of conduct that will protect the in-
terest and safety of all employees and the organization. It is
not possible to list all the forms of behavior that are consid-
ered unacceptable in the workplace.
The following are examples of infractions of rules of conduct
that may result in disciplinary action, up to and including ter-
mination of employment:
Boisterous or disruptive activity in the workplace.
Insubordination or other disrespectful conduct.
Wicke was hired by Parker in July 2009 on a full time basis
as the school’s Title I Coordinator at an hourly wage rate of
$15. The parties signed an Employment Agreement effective
from July 1, 2009, to June 30, 2010, specifically stating that it
is “At-Will Employment” that is terminable by either party with
or without cause. Title I funds are given by the Federal Gov-
ernment to assist schools that are servicing underprivileged
children to advance reading, mathematics and other subjects.
Wicke’s job, basically, was to keep track of the Title I funds
that the school received and to see that they were spent proper-
ly. Parker testified that the school usually receives approxi-
mately $200,000 annually in Title I funds, and testified that
Wicke’s job as Title I Coordinator was to review the grants and
to ensure that the funds from these grants was spent appropri-
ately.
The Respondent conducted monthly Administrative Team
Meetings to discuss outstanding issues at the school. The meet-
ings were chaired by Parker and Carol Parker, and were attend-
ed by the school principals, and the people in charge of Special
Education, Transportation, and Title I (Wicke). Parker testified
that Wicke never raised any issues or made any comments at
these meetings, or on other occasions, about teachers or staff
not receiving certain technology as required by the Title I
grants received by the school. Parker was asked if he ever had
conversations with Wicke regarding his concerns that the
school was not in compliance with its Title I grants; he an-
swered: “Not that I can remember.” On January 8, 2010, Wicke
sent a lengthy e-mail entitled: “2010-ARRA Title I Grant” to
Parker, Carol Parker, Webb, Walt and others stating, inter alia,
that the school was not in compliance with a certain grant, and
recommending certain action that would bring it into compli-
ance. Parker was asked if he had ever received any e-mails
from Wicke regarding the lack of compliance with Title I
grants, and he said that he couldn’t remember. He testified that
he received the January 8, 2010 email, but he did not speak to
Wicke about this subject after receiving the e-mail. He also
testified that Title I grants can be amended and modified, and
the Title I grant that Wicke was referring to in his e-mail had
not been finalized at the time.
Carol Parker testified that Wicke attended the monthly dis-
trict team meetings at the school, and at one of these meetings
he stated that he thought that the teachers did not have the tech-
nology that they should have received. At that point he was
“corrected” by Webb, Parker, the IT Director, Mark Sheen, or
the Business Manager, Ted Polzin, who told him that “he didn’t
have his facts right.” In addition, sometime in the Fall of 2009,
at a meeting with Carol Parker and Webb, Wicke brought up
the subject of computers and Title I and she said that the com-
puters had been purchased with the Title I funding: “He thought
that he knew how it all worked, but he was not correct.” Other
than on these two occasions Wicke never spoke to her about his
allegation that the school was not in compliance with Title I
funding. She received his January 8, 2010 email, but did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
pay much heed to it because she was not his supervisor, nor
was she involved in technology issues at the school. Another
reason she did not get involved in this issue: “It wasn’t factual.
The teachers had their computers. We had the computers in the
lab, so . . . it wasn’t an issue. I don’t know why he kept bring-
ing that up, because it wasn’t an issue.”
Webb testified that as principal, it was his obligation to be
certain that the school was in compliance with Title I require-
ments, so he spoke about it to Wicke a couple of times a week.
Wicke first brought up the subject in October or November
2009:
He was concerned . . . that there were computers that were
written into the grant, and he was concerned . . . that they
weren’t furnished by the grant, and there was a time before-
hand where teachers had donated monies and bought comput-
ers. Those computers were given to the teachers, and then
there was a group of computers that were bought by grant
monies, and that were put into a computer lab.
In response to Wicke’s concern, Webb told him that the teach-
ers donated money for the computers that they received, and
that the computers from the grant money were in the computer
lab. As to how many times Wicke discussed this subject with
him, he testified, “He was fixated on it for quite a long time.”
He testified that he always believed that the school was in com-
pliance with all the Title I requirements because he saw the
Title I funded computers in the computer lab and the high
school.
Wicke testified that his initial discussion with someone from
the school about computers was with Webb in about August
2009; Webb told him that the teachers were upset because they
were told that they had to turn back half of their government
grant money so that they could purchase computers for their
classroom use. Over the next few months he had occasional
discussions with Webb about the subject, and discussed the
subject with two teachers at the school in about December. In
addition, at an administrative team meeting in December he
stated his concern that they were not spending the Title I money
in an appropriate fashion. He testified that there was “tension”
but no response from those present. In December 2009, Wicke
met with Webb and Carol Parker, and he told them that the
Drop-Out Prevention grant guidelines, under Title I, were not
being met by Walt; Carol Parker responded, “This isn’t about
him.” He then spoke about the Title I grants for the computers
and that he felt that they were not in compliance with the re-
quirement of Title I. At the conclusion of this testimony, Wicke
testified that this meeting was not in December 2009, but was
on January 15, 2010, a few days prior to his termination.
On January 7, 2010, Wicke sent a two page e-mail entitled:
“Dropout prevention Title I compliance monitoring” to Walt,
Webb, Parker, Carol Parker and Janette Benziger, who writes
Title I grants for the school. The e-mail states, inter alia:
This is Nathan Wicke, your friendly district Title I director. I
am monitoring this Dropout prevention program based off the
2010—AIMS Intervention & Dropout Prevention Program
grant. Please read all below, which comes directly from the
grant, paying specific attention to the wording in color. As
you will read in the grant narrative below, I am monitoring
this as the Title I director because we are using this program
to meet Title I goals . . . Please respond to me with remarks
regarding all the questions I ask you as you read this. I sent
out an email yesterday explaining what the state informed us
we could use as plans. Please review that email for clarifica-
tion. I appreciate your cooperation in having all of us make
sure this program is in Title I compliance. Thanks and have a
great day.
The “at risk” population target for service included students
from Avalon Elementary and Excalibur High School. Both of
these schools failed to make AYP for the 2008 school year
and Excalibur High School was identified as Underperform-
ing for the 2009 school year. The schools are in economically
depressed areas and both schools qualify for the free and re-
duced lunch plan.
The e-mail then lists five “priorities”, involving students who
failed standardized tests, students behind in their credits, stu-
dents who are pregnant or parenting, disabled or handicapped,
and students with discipline problems. The e-mail then asks
Walt for the names of all students and their plans and portfoli-
os, stating:
I need to see them and make sure they meet compliance
standards, so when the state comes to visit and monitor…we
will have all our compliance “ducks” in a row.
The final portion of the e-mail relates to the seventh and eighth
grades:
The priorities for 7th–8th grade inclusion are getting students to
grade level academic proficiency prior to secondary school,
facilitating long term goals for students to motivate them
through graduation, and to give students basic career research
and employment skills. Mr. Webb, who is doing this at your
school and what paper evidence can you give me showing
students’ progress which I can put in the title I folders?
-
An hour and a half later, Walt responded to Wicke’s e-mail,
with a one page e-mail, stating, inter alia, that the AIM program
is defunct, and will not be returning, and that Wicke should
contact Benziger, who wrote the grants, for her assistance on
some of his concerns. Later that afternoon, Wicke meant to
send an e-mail to Jeff and Carol Parker, but inadvertently sent it
to Walt:
This is what Eric sent me regarding reporting for the dropout
prevention program which I understood from you, Jeff, is the
main way that you are paying Eric his salary. As you can read
in this e-mail, he says that the district did not get the money
for this grant and program and that it is dead. I need your
council and direction regarding what he said in this email, not
only about the dropout prevention program, but all grants and
me following them to make sure we are in compliance. I was
not given any training from you how to do Title I compliance
and this is what I have figured out how to do: to follow grants
wording. I have learned to do this compliance this way from
Jill and the state. So when Eric, whose own admission by say-
ing I should talk with Jill, has limited knowledge about Title I
and suggests that I should not use grants as a basis for measur-
ing compliance, I am a little more than leary of his lack of ex-
EXCALIBUR CHARTER SCHOOL 9
perimental knowledge advice. My question to you is what do
you want me to do? Who do you want me to listen to and how
do you want me to do my job? I feel you have confidence in
me and feel you are and have been happy with the way I have
been doing my job. Please let me know.
The following morning, Walt sent an e-mail to Wicke: “Please
don’t send me any insulting communications, as well as copies
of any such communications about me to others.”
Wicke testified that he sent this e-mail because he was re-
viewing the grants that the school had received, in particular,
the 2010 AIMS Intervention Drop Out Prevention grant, which
is part of the Title I documentation that has to be submitted to
the state, and he wanted to notify Parker and the others that he
was not getting cooperation from Walt.
Wicke had a meeting with Carol Parker and Webb on Janu-
ary 15, 2010; she said that she wanted to become more in-
volved in the Title I programs. He told her of his concerns with
the grants and she told him that he should bring them up at the
school’s monthly administrative team meetings. On the follow-
ing Monday, January 19, 2010, he was terminated.
Wicke testified that his initial discussion about pay at the
school was with Webb in about August or September 2009. At
that time Webb said that he was upset that Walt was making
more money than he was. Wicke testified that he was not upset
about it because he did not have Walt’s experience or creden-
tial. Rather he told Webb that Walt was not properly complying
with the Title I requirements in performing his job. In addition,
in about December, he was talking to the reading specialist at
the school and asked her how she liked her job, and she told
him what her salary was. In December he met with Parker and
Carol Parker shortly after he received his degree in a Masters
Program. He gave Parker a list of his responsibilities at the
school, and asked for an increase in pay based upon his job
performance. Wicke mentioned an employee whose salary he
learned from Webb, and also mentioned the reading specialist
at the school who told him of her salary. Parker said that he
would look at the budget, discuss it with others, and would let
him know. About a week later, Wicke received an e-mail re-
sponse from Parker dated December 18, 2009, stating, inter
alia:
I have talked with Ted, Carol and Mr. Webb. It appears that
we have way to [sic] many hands in the pot…If you have ex-
pressed a desire to move after this year, I can’t make that in-
vestment now for there just isn’t any money or haven’t you
heard? When talking with Ted, we may be able to give some
kind of bonus at the end of the year, depending on our wind-
fall, if any. Mr. Webb says that your work is good and that
you are very diligent, and I already knew that. But coming
from others helps. The fact is, that with the demise of 301
monies down to less than 50% and the state looking for more
cuts, it comes down to a wait and see. You are a valuable as-
set, I’ve said that to Carol many times. Yet, when you took
the job, we agreed on an amount and that should be good until
we reassess the situation. One last thought, please in the fu-
ture, don’t discuss your pay or your plans with others when it
comes to things like this. It stirs the pot too much. I am the
one to bring it to. Sometimes things don’t happen as fast as
we wish, be patient. When you want to move on, I am com-
pletely for that…I will do what I can, but I have 49 other em-
ployees who have been with us far longer. You are worth it,
let’s see how it rolls out after Christmas vacation. We love
you, Jeff and Carol.
Carol Parker testified that the first time that she saw Parker’s
December 18, 2009 email to Wicke was when she gave her
affidavit to the Board agent in this matter. However, she was
present at the latter part of the meeting that Parker had with
Wicke in December. The only thing that she could recollect
about that meeting was Wicke stating that he thought that the
school’s grant writer, Jill Gaitens was unqualified for the job,
which Carol Parker disagreed with. At the January 15, 2010
meeting that she had with Wicke and Webb, Wicke attempted
to bring up Walt’s wages, but she stopped him and said that she
wasn’t there to discuss Walt’s wages because Walt had a dif-
ferent job: “I wasn’t even going to go down that avenue with
him.” Webb testified that in about late November or December
2009, he and Carol Parker met with Wicke in his office. At this
meeting, Wicke asked them why Walt was earning more money
than he was, and Carol Parker told him that was between man-
agement and Walt. Wicke only responded that as the Title I
Director he felt that he deserved to be paid more. Webb also
testified that in about December, after Wicke obtained his Mas-
ters Degree, he noticed a change in Wicke: “It was more of an
arrogance. . . now that. . . he had received that degree, he was
worth. . . more and more money.”
Wicke was terminated on January 19, 2010. That day was a
holiday, and there was a voice mail on his phone stating that his
services were no longer needed; no reason was given. Parker
was questioned by counsel for the General Counsel about his
reason for terminating Wicke. Because his testimony is so dif-
ficult to follow (and, often, to believe) it is best to start with the
affidavit that he gave to the Board agent investigating this mat-
ter. In that affidavit he stated:
Nathan Wicke was terminated on 1/19/2010. I made the deci-
sion to terminate him, and I was the only one involved in
making that decision. The reason I terminated Wicke was dis-
ruption of the school atmosphere and going outside the
boundaries of his job description by looking into other peo-
ples’ salaries, comparative to his own. This was none of his
business. With respect to disrupting the school atmosphere,
Wicke personally questioned me regarding how I paid people.
This suggested a loyalty problem with him. I cannot remem-
ber exactly what he said to me that made me feel this way, but
this was it.
His affidavit also states:
Our IT guy [Sheen] was another person that I learned that
Wicke had gone to and asked what his salary was, and they
had been discussing what they were worth as employees, and
Wicke came to me and used that information to ask for a pay
increase.
When questioned about these portions of his affidavit, Parker
testified: “I am sure that it is accurate.”
Parker was asked by Counsel for the General Counsel:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Q And the reason you terminated him was disrupting the
school atmosphere and going outside the boundaries of his job
description by looking into other people’s salaries; is that cor-
rect?
A No to the last part and yes to the first part of the question.
In answer to no particular question, Parker testified:
And, so, he had his choices, and with all the other stuff that
. . . that bothered him that I saw…and with his comments to
people, and e-mails and so forth, it was obvious that he wasn’t
happy there, and he wasn’t happy with $15.00 an hour, so he
had choices.
He testified that although “there were some good things being
done,” Wicke “. . . was not focused on his work, he is focused
on some other agenda . . . his only agenda was himself, in my
opinion.” He also testified that it was not until after Wicke was
fired that he learned about his conversations with other em-
ployees about their salaries, although he never spoke to him
about his termination.
Carol Parker was involved in discussions with Parker and
Walt regarding the decision to terminate Wicke, but the final
decision was Parker’s. Their discussions entailed:
Just the problems, insubordination, the difficulty of working
with him. He was very abrasive. He just caused a lot of prob-
lems on campus. I didn’t appreciate being accused of things
that weren’t true . . . His accusations of misappropriation of
funds which were absolutely not true, He is definitely not a
team player. I felt very much on the defensive with him. He
was doing his very best to find everything wrong that he
could possibly find.
She testified further that the work that he was directed to per-
form- school-wide plans and Title I grants- was not being taken
care of. He was interested in financial matters and was upset
that he was not included in those decisions. She received com-
plaints from Sheen, Webb, Walt, Benziger, and Gaitens who
were offended by his approach to them and by his emails, and
they said that they found him unprofessional, but she never met
with Wicke to tell him of these concerns. Gaitens sent Parker
and Carol Parker an e-mail dated October 12, 2009, stating that
she felt uncomfortable talking to Wicke, that he feels that he is
being “left out of the loop,” and that he intends to leave the
school at the end of the year to earn more money. In addition,
Wicke told her that he didn’t believe that Walt was properly
performing his job. In a series of e-mails on January 6, 2010, to
Parker, Carol Parker, Webb, Walt, and others, Wicke referred
to a conversation that he had with someone from the Arizona
Department of Education. He referred to Title I programs and
stated: “So if anyone in the future does not like me telling them
their specific program is not in compliance in some way, spe-
cifically how it relates to Title I, which our schools are, do not
take it out on me, I am merely the messenger; delivering what
the state tells me to do after visiting and talking with them.”
Carol Parker responded that, in the future, he should discuss
these issues with people from the school prior to having discus-
sions with representatives of the state: “I would rather have
stronger ‘horizontal’ communications within our district than
the ‘vertical’ communication you don’t hesitate to engage in
with the state.” When Wicke responded that he did not feel that
people were listening to him when he communicated “horizon-
tally,” Carol Parker sent him two emails, the last one (on Janu-
ary 6, 2010) ending: “Thank you for what you do. I truly be-
lieve we are much more compliant with our Title I program
than we have been in the past due to your efforts. You are mov-
ing us forward leaps and bounds.”
Webb testified that he was not involved in the decision to
terminate Wicke and he learned of the decision first from Par-
ker and, later, from Carol Parker. Neither one told him why
Wicke was terminated, and he did not ask about it. “It is my
understanding that he was terminated because of lack of per-
formance.” Although he is sure that somebody told him that, he
cannot specifically recall somebody saying that, although it
probably was discussed at an administrative team meeting.
III. ANALYSIS
It is alleged that since about November 14, 2009, the Re-
spondent has maintained the following overly broad and dis-
criminatory rules in its Employee Handbook: Non-Disclosure,
Internet Usage, Solicitation, and Employee Conduct and Work
Rules, as reinforced by Carol Parker in her Power Point presen-
tations to employees, and since on about November 14, 2009,
the Respondent threatened employees who violated these rules
with discipline or discharge. The Complaint further alleges that
on about December 19, 2009, Respondent, by Parker promul-
gated, maintained and enforced an overly broad and discrimina-
tory rule prohibiting employees from discussing their wages or
terms of conditions of employment with other employees, and
on about January 8, 2010, Respondent, by Walt in an e-mail,
promulgated and has maintained an overly broad and discrimi-
natory rule prohibiting employees from communicating with
other employees regarding their terms and conditions of em-
ployment, and threatened employees who violate the rule with
unspecified reprisals. It is further alleged that since on about
January 10, 2010, Respondent, by Carol Parker reaffirmed
these rules and that on about January 19, 2010, the Respondent
discharged Wicke because he violated these rules and because
he concertedly complained to the Respondent about the Re-
spondent’s employees’ wages and conditions of employment,
by complaining that, among other things, the Respondent was
not providing teachers with the technology and equipment that
the Respondent had received grants for, and which the teachers
needed to properly instruct their students. It is alleged that by
these actions the Respondent violated Section 8(a)(1) of the
Act.
Credibility obviously plays an important part in this case
and, stated briefly, Parker was one of the least credible witness-
es I have ever experienced, and I say that reluctantly because of
his admirable deed in establishing the school. However, when it
came to answering a question from Counsel for the General
Counsel, he was totally incapable of answering in a direct and
believable manner. On the other hand, Wicke, Carol Parker,
and Webb appeared to be credible witnesses attempting to testi-
fy in an honest and truthful manner.
In Lafayette Park Hotel, 326 NLRB 824, 825 (1998), in de-
termining the legality of certain portions of the employer’s
EXCALIBUR CHARTER SCHOOL 11
employee handbook, the Board stated:
In determining whether the mere maintenance of rules such as
those at issue here violates Section 8(a)(1), the appropriate in-
quiry is whether the rules would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights. Where the
rules are likely to have a chilling effect on Section 7 rights,
the Board may conclude that their maintenance is an unfair
labor practice, even absent evidence of enforcement.
Further, in determining that one of the employer’s standards of
conduct prohibiting “unlawful or improper conduct” off its
premises was not unlawful, the Board’s majority stated at p.
827:
. . . we do not believe that this rule can reasonably be read as
encompassing Section 7 activity. In our view, employees
would not reasonably fear that the Respondent would use this
rule to punish them for engaging in protected activity that the
Respondent may deem to be “improper.” To ascribe such a
meaning to these words is, quite simply, farfetched. Employ-
ees reasonably would believe that this rule was intended to
reach serious misconduct, not conduct protected by the Act.
In Flamingo Hilton-Laughlin, 330 NLRB 287, 289 (1999), the
Board had to determine the legality of a rule prohibiting “off-
duty misconduct.” Citing Lafayette Park, supra, the Board
found that this rule could not reasonably be read as encompass-
ing Section 7 rights, or that the employer would use it to punish
its employees for engaging in protected activities, and it there-
fore did not violate the Act. In NLS Group, 352 NLRB 744, 745
(2008), the Board summarized these findings as follows:
If the rule explicitly restricts Section 7 activity, it is unlawful.
If the rule does not explicitly restrict Section 7 activity, it is
nonetheless unlawful if (1) employees would reasonably con-
strue the language of the rule to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; (3) the
rule has been applied to restrict the exercise of Section 7
rights.
The Non-Disclosure provision herein includes some clearly
lawful provisions, such as restrictions on the dissemination of
information regarding students and parents. However, it also
states: “All employee contracts are individually negotiated.
Therefore, discussing specific employee contract terms and
compensation is prohibited and subject to disciplinary action,
including but not limited to termination.” As this rule explicitly
restricts Section 7 activity of discussing wages and other terms
of employment, it, together with the Power Point presentation
discussing it, clearly violates Section 8(a)(1) of the Act, as does
the following provision that confidential information includes
“Compensation data.”
The Internet Usage provision states, inter alia:
The following behaviors are examples of previously stated or
additional activities that are prohibited and can result in disci-
plinary action:
Sending or posting confidential material, trade secrets, or pro-
prietary information outside of the organization.
Because the Non-Disclosure rule discussed above equates em-
ployee contract terms and compensation with confidential in-
formation, employees reading the Internet Usage restrictions
could reasonably interpret it as encompassing their terms and
conditions of employment, i.e, Section 7 activity. I therefore
find that this provision, together with the Power Point presenta-
tion enforcing it, violates Section 8(a)(1) of the Act. The Solici-
tation provision in the Employee handbook states that employ-
ees
. . . may have interests in events and organizations outside the
workplace. However, employees may not solicit or distribute
literature concerning these activities during working time.
(Working time does not include lunch periods, work breaks,
or any other period in which employees are not on duty.)
Examples of impermissible forms of solicitation include:
The circulation of petitions.
The distribution of literature not approved by the employer.
The solicitation of memberships, fees, or dues.
The restrictions in the Employee Handbook clearly curtail em-
ployees’ Section 7 rights, except for the caveat that it does not
apply during lunch periods, work breaks or any other period in
which the employees are not on duty. As it only applies during
employees’ working time, it is a lawful restriction on their ac-
tivities. Our Way, Inc., 268 NLRB 394 (1983). As Carol Par-
ker’s Power Point presentation does not include the “working
time” caveat, I find that it violates Section 8(a)(1) of the Act.
The final provision of the Employee handbook being chal-
lenged is entitled “Employee Conduct and Work Rules.” The
prohibited conduct therein is boisterous or disruptive behavior
in the workplace and insubordination or other disrespectful
conduct. As the Board stated in Lafayette Park, supra, I do not
believe that this provision can reasonably be read as restricting
Section 7 activity, and therefore recommend that this allegation
be dismissed.
It is next alleged that on about December 19, 2009, Re-
spondent, by Parker, promulgated, maintained and enforced an
overly broad and discriminatory rule prohibiting the school’s
employees from discussing their wages or terms and conditions
of employment with other employees, and on about January 8,
2010, Respondent, by Walt, by e-mail, promulgated and main-
tained an overly broad and discriminatory rule prohibiting its
employee from communicating with other employees regarding
their terms and conditions of employment and threatened em-
ployees who violated the rule with unspecified reprisals. The
initial allegation is established in the December 18, 2009 email
that Parker sent to Wicke stating, inter alia: “. . . please, in the
future, don’t discuss your pay or your plans with others when it
comes to things like this. It stirs the pot too much. I am the one
to bring it to.” This email clearly violates Section 8(a)(1) of the
Act as an invalid restriction on his Section 7 rights. As the
Board stated in Mediaone of Greater Florida, Inc., 340 NLRB
277, 281 (2003):
It is well established that discussion of wages, benefits, and
working conditions is an important part of organizational and
other concerted activity. Although employers may have a sub-
stantial and legitimate interest in limiting or prohibiting dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
cussion about some aspects of their affairs, they may not pro-
hibit employees from discussing their own wages and work-
ing conditions or attempting to ascertain the wages of other
employees.
However, I find that Walt’s January 8, 2010 email to Wicke
was a not unreasonable response to Wicke’s sarcastic and mis-
directed January 7, 2010 email, and that alleging it as a Section
8(a)(1) violation is a substantial overreach.
The final allegation is that by terminating Wicke on about
January 19, 2010, the Respondent violated Section 8(a)(1) of
the Act. Counsel for the General Counsel alleges three theories
supporting this allegation: that Wicke was terminated for dis-
cussing wages with other employees, for complaining about the
manner in which the school spent its Title I funds, and for vio-
lating the school’s unlawful rule restricting the discussion of
employees’ wages.
Under Wright Line, 251 NLRB 1083 (1980), it is the General
Counsel’s initial burden to establish that the employee’s pro-
tected activities were a motivating factor in the employer’s
decision. Once that is established, it is the employer’s burden to
establish that it would have taken the same adverse action even
absent the employee’s protected conduct. Counsel for the Gen-
eral Counsel’s burden is established through the testimony and
e-mails of Parker. In December 2009, Wicke met with Parker
and Carol Parker, compared his salary with two other employ-
ees, and asked for an increase in pay. In an email dated Decem-
ber 18, 2009, denying this request, Parker stated, inter alia:
“One last thought, please in the future, don’t discuss your pay
or your plans with others when it comes to things like this. It
stirs the pot too much. I am the one to bring it to.” In addition,
in the same e-mail, Parker commented on Wicke’s work per-
formance: “Mr. Webb says that your work is good and that you
are very diligent, and I already knew that. But coming from
others helps . . . You are a valuable asset.”
As to the reason for Wicke’s discharge, Parker’s affidavit giv-
en to the Board states:
The reason I terminated Wicke was disruption of the school
atmosphere and going outside the boundaries of his job de-
scription by looking into other peoples’ salaries, comparative
to his own. This was none of his business . . . Wicke personal-
ly questioned me regarding how I paid people. This suggested
a loyalty problem with him.
Parker testified that he is sure that this portion of his affidavit
was accurate. While Carol Parker testified that Wicke was dif-
ficult to work with, was not a “team player,” made accusations
that were not true and did his best “to find everything wrong
that he could possibly find,” two weeks before he was dis-
charged she sent him an e-mail ending: “Thank you for what
you do. I truly believe we are more compliant with our Title I
program than we have been in the past due to your efforts. You
are moving us forward leaps and bounds.” Also relevant in
establishing General Counsel’s burden is that Wicke was given
no warning, or reason, for his discharge. He was terminated by
a voice mail left on his phone simply stating that his services
were no longer needed. Even without factoring in Wicke’s
numerous complaints about the expenditure of Title I funds
(whether warranted or not) I find that the evidence clearly sus-
tains General Counsel’s initial burden that his protected con-
duct was a motivating factor in the Respondent’s decision to
terminate him. The final question then is whether the Respond-
ent satisfied its burden that it would have fired him even absent
his protected conduct. I find that it has not done so. As stated
above, within a month of his discharge, Wicke was sent e-mails
from both Parker and Carol Parker complimenting him on the
quality of his work. Although some of his e-mails were sarcas-
tic and abrasive, and as Webb testified Wicke could be arro-
gant, there was no evidence that his work was ever criticized or
that he was ever warned about the quality of his work. Finally,
that he was fired abruptly on January 19, 2010, without warn-
ing or a reason, further establishes that his discharge resulted
from his protected conduct. I therefore find that by terminating
Wicke on January 19, 2010, the Respondent violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
maintaining some rules in its Employee handbook, and in the
Power Point presentation made to its employees, which restrict
employee Section 7 rights and by telling Wicke that he was not
to discuss his pay with other employees.
3. The Respondent violated Section 8(a)(1) of the Act by
discharging Wicke on about January 19, 2010.
4. The Respondent did not violate the Act as otherwise al-
leged.
THE REMEDY
Having found that the Respondent unlawfully discharged
Wicke, I recommend that Respondent be ordered to offer him
immediate reinstatement to his former position of employment
or, if that position no longer exists, to a substantially equivalent
position, and to make him whole for all loss of earnings and
other benefits as set forth in F.W. Woolworth Co., 90 NLRB
289 (1950), along with interest as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). I have also found that
certain portions of the Respondent’s Employee handbook and
Power Point presentation violate Section 8(a)(1) of the Act
because they overly restrict employee Section 7 rights. I there-
fore recommend that Respondent be ordered to delete from the
Non-Disclosure provision of the handbook the sentences: “All
employee contracts are individually negotiated. Therefore,
discussing specific employee contract terms and compensation
is prohibited and subject to disciplinary action including, but
not limited to termination” as well as the words “Compensation
Data.” As I have found that the term “confidential material” in
the Internet Usage provision could unlawfully restrict employee
Section 7 rights, that term should be deleted from the Internet
Usage provision. Finally, the Power Point presentation explain-
ing the terms of the Employee handbook did not contain the
working time caveat contained in the handbook, in violation of
Section 8(a)(1) of the Act. I recommend that Respondent be
ordered to either delete that provision from the Power Point
presentation, or add the working time caveat to it.
EXCALIBUR CHARTER SCHOOL 13
ORDER1
The Respondent, Excalibur Charter School, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Warning employees not to discuss their wages with other
employees.
(b) Maintaining rules in its Employee handbook and in a
Power Point presentation made to its employees that restricts or
prohibits employees’ Section 7 rights.
(c) Discharging, or otherwise discriminating against its em-
ployees for engaging in protected concerted activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Delete from its Employee handbook and Power Point
presentation the provisions found to be unlawful in the Non-
Disclosure, Internet Usage and Solicitation sections as de-
scribed above.
(b) Within 14 days from the date of this Order offer Wicke
full reinstatement to his former position, or if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights and privileges
previously enjoyed, and make him whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against him, in the manner set forth above in the remedy sec-
tion of this Decision.
(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 the employee in writing that this
has been done and that the discharge will not be used against
him in any way.
(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 its fa-
cility in Apache Junction, Arizona, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees

1 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.
2 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.”
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, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since November
14, 2009.
(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.
IT IS FURTHER ORDERED that the Complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. January 26, 2011.
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
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 prohibit you from discussing your wages or
other terms of conditions of employment with other employees
and WE WILL NOT in our Employee handbook, or in Power Point
presentations, restrict you from engaging in the rights guaran-
teed by Section 7 of the Act.
WE WILL NOT discharge, or otherwise discriminate against
you because you engaged in protected concerted activities.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL delete from our Employee handbook and from our
Power Point presentation explaining it, the provisions that re-
stricts you in the exercise of your rights under the Act.
WE WILL offer Nathaniel Wicke immediate and full rein-
statement to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority or any other rights or privileges previously enjoyed, and
WE WILL make him whole for any loss of earnings and other
benefits resulting from his discharge, less any interim earnings,
plus interest.
WE WILL, within 14 days from the date of this Order, remove
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
from our files any reference to the unlawful discharge of Na-
thaniel Wicke, 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.
EXCALIBUR CHARTERSCHOOL, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-023039 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.