Food Services of America, Inc., a subsidiary of Services Group of America, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2012

28-CA-063052 (N.L.R.B. Mar. 27, 2012)

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Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FOOD SERVICES OF AMERICA, INC.,
a subsidiary of SERVICES GROUP
OF AMERICA, INC.
and Case No. 28-CA-63052
PAUL LOUIS CARRINGTON, An Individual
Johannes Lauterborn, Esq., Counsel for the General Counsel.
Richard Walker, Esq., Walker & Peskind, PLLC, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on January
24 through 27, 2012 in Phoenix, Arizona. The Complaint herein, which issued on October 31,
20111 and was based upon an unfair labor practice charge filed on August 22 by Paul Louis
Carrington, alleges that the Respondent has maintained overly broad and discriminatory rules of
confidentiality and non-disclosure that its employees are required to sign and which are also
contained in its Employee Handbook. The Complaint further alleges that Respondent, by Scott
Bixby, its senior vice president, interrogated its employees about their concerted activities, orally
promulgated an overly broad and discriminatory rule prohibiting its employees from talking to
other employees, threatened its employees with unspecified reprisals if they engaged in
concerted activities, and created an impression among its employees that their concerted
activities were under surveillance by the Respondent. At the conclusion of his case, Counsel for
the General Counsel moved to amend the Complaint to also allege that Respondent violated
Section 8(a)(1) of the Act by promulgating overly broad rules prohibiting employees from giving
personal references and prohibiting employees from disclosing personal telephone numbers.
Finally, the Complaint alleges that the Respondent further violated Section 8(a)(1) of the Act by
discharging Carrington (on March 7) and Elba Rubio (on March 4) because they engaged in, or
because Respondent believed that they engaged in, protected concerted activities.
I. Jurisdiction
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
II. Facts and Analysis
A. Confidentiality and Non-Disclosure Allegations
Upon beginning employment with the Respondent, employees must sign its
Confidentiality and Nondisclosure Agreement, which states, inter alia:

1 Unless indicated otherwise, all dates referred to herein relate to the year 2011.
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As a condition of Services Group of America granting you access to its
confidential information, the value of which you hereby acknowledge and in
addition to any other confidentiality agreements and obligations that govern
your conduct, you agree to the following requirements regarding your access
to the Company’s confidential information:
“Confidential information” means any and all information, whenever
accessed or received, related to Company or any affiliate, including but not
limited to, information relating to: financial matters, business plans,
strategies, customers, marketing, product or service promotions, purchasing,
vendors, discounts, rebates, earned marketing income (“EMl”), EMI tracking
methods, payroll or employee information (other than payroll or employee
information about Associate), business techniques, business tools·
(including, without limitation, Company’s B/I, EIS, payroll and infinium
systems), analysis, contractual terms, costs, margins, ownership structure,
financings or other information. Confidential Information does not include
information that is generally available to the public through no improper
action or inaction or breach of Associate.
Confidentiality; Ownership. Associate understands that Company and its
affiliates value highly their Confidential Information, which they have
developed at substantial cost and effort, and which are important Company
and affiliate assets. Associate agrees that he or she will strictly maintain the
confidentiality and proprietary nature of any and all Confidential Information.
Associate agrees not to use or disclose any Confidential Information, directly
or indirectly, except in furtherance of the Company’s business or as
consented to in writing in each instance by a Company officer, or, upon
reasonable prior notice to Company, as required by law. Associate agrees
not to access, read, forward, remove from Company premises, copy, or
otherwise obtain or retain any Confidential Information except as necessary
to perform his or her Job with the Company. This Agreement applies to
Confidential Information in any form or format, including without limitation
oral, visual, written, computer records, photographs and tape recordings,
and applies to Confidential Information accessed by Associate before, as
well as after, entering into this Agreement. This Agreement shall apply
throughout Associate’s employment with Company and after the termination
of such employment at any time and for any reason (with or without cause)
by Company or Associate. Associate acknowledges that Company and its
affiliates are the sole owners of the Confidential Information.
Associate disclaims any right, title or interest in or to the Confidential
Information, including without limitation any Confidential Information
developed by Associate. Upon termination of employment (for any reason)
Associate agrees to return to the Company all documents, discs or other
items containing Confidential Information.
Remedies. Associate agrees that Company shall be entitled to preliminary and
permanent injunctive relief, specific performance and other equitable relief, without the
necessity of posting any bond or other security, in aid of litigation, or arbitration, if any
arbitration agreement is applicable, to prevent any violation or threatened violation of this
Agreement, in addition to any and all other legal or equitable remedies that may be
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available to Company. The protections afforded by this Agreement are intended to be
and shall be in addition to any and all other protections afforded by law, equity, or
agreement.
In addition, Respondent’s Employee Handbook, distributed to all new employees, contains the
following rules, also alleged to be overly restrictive, and to violate Section 8(a)(1) of the Act:
SGA GUIDING PRINCIPLES
* * * *
Outside of our company, we remain quiet and safeguard our proprietary
knowledge.
* * * *
COMPENSATION
The Company views your salary as a confidential matter and encourages
you to discuss questions or concerns only with your Department Manager or
Branch President.
CONFIDENTIALITY
We are a privately-held company. While many of our competitors are free
with disclosing their proprietary information, we have a very strict policy in
that regard. No one outside the Company needs to know anything about our
Company unless the Chairman or President has identified a specific benefit
to the Company. This includes the press and news media in general and
trade journals and industry groups in particular. The latter includes vendors,
trade associations and competitors wherever we meet them (trade shows,
seminars, conventions or other social/business functions). “Disinterested”
third parties you meet at non-industry business functions or purely social
occasions also do not need to know anything about our Company.
Unauthorized disclosure of information about our Company, no matter how
harmless it may seem, can be grounds for discipline up to an including
termination.
SOLICITATION
* * * *
Solicitation discussions of a non-commercial nature, by Associates, are limited to the
non-working hours of the solicitor as well as the person being solicited and in non-work
areas. (Working hours do not include meal breaks or designated break periods.)
There is a very thin line between what information an employer may lawfully restrict
employees from sharing or transmitting, and when such restrictions unlawfully hinder
employees’ Section 7 rights. Many recent Board cases are helpful in making this determination,
but it remains a difficult one. Lafayette Park Hotel, 326 NLRB 824, 825 (1998) stated: “The
appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise
of their Section 7 rights. Where the rules are likely to have a chilling effect on Section 7 rights,
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the Board may conclude that their maintenance is an unfair labor practice even absent evidence
of enforcement.” In Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004), the Board
was more specific:
Our inquiry into whether the maintenance of a challenged rule is unlawful begins with the
issue of whether the rule explicitly restricts activities protected by Section 7. If it does, we
will find the rule unlawful.
If the rule does not explicitly restrict activity protected by Section 7, the violation is
dependent upon a showing of one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to restrict the exercise of
Section 7 rights.
The agreement executed by employees beginning their employment with the
Respondent defines “confidential information” as “any and all information…including but not
limited to, information relating to…payroll or employee information (other than payroll or
employee information about Associate)…” The agreement states further: “Associate agrees that
he or she will strictly maintain the confidentiality and proprietary nature of any and all
Confidential Information” and “Associate agrees not to access, read, forward, remove from
Company premises, copy or otherwise obtain or retain any Confidential Information except as
necessary to perform his or her job with the Company.” This rules excepts from the
confidentiality definition payroll “ information about Associate,” in other words payroll information
about the employee himself or herself; a reasonable reading of this provision is that each
employee could discuss his/her terms and conditions of employment with fellow employees, or
anybody else, without fear of discipline. However, the discussions of terms and conditions of
employment requires the participation of two or more employees. If one of those employees
refuses to permit the other employees to discuss his terms and conditions of employment,
pursuant to the Respondent’s rule, the discussion would be unduly restricted, or foreclosed
entirely, thereby limiting the employees’ protected concerted activities. I therefore find that this
restriction violates Section 8(a)(1) of the Act as alleged in Paragraph 4(a) of the Complaint.
Labinal, Inc., 340 NLRB 203, 210 (2003).
The Employee Handbook contains three statements regarding confidentiality. “SGA
Guiding Principal” at page 4, states: “Outside of our company, we remain quiet and safeguard
our proprietary knowledge,” while under “Compensation” at page 10, the Handbook states: “The
Company views your salary as a confidential matter and encourages you to discuss questions
or concerns only with your Department Manager or Branch President.” [emphasis supplied]
Finally, under “confidentiality” the Handbook states at page 18: “No one outside the Company
needs to know anything about our Company unless the Chairman or President has identified a
specific benefit to the Company.” Although the compensation provision set forth above only
“encourages” employees to discuss their salaries with the Department Manager or Branch
President, rather than stating that discussions of salary with others are grounds for discipline,
that sentence cannot be read in a vacuum. It says that the Respondent views salaries as a
confidential manner and should only be discussed with the Department Manager or Branch
President, with “only” underlined, and the confidentiality provision states that nobody outside the
company needs to know anything about the Respondent’s operation, and that unauthorized
disclosure of information about the company can be grounds for discipline. I find that an
employee reading these provisions together would reasonably feel that that his/her Section 7
rights are being restricted. I therefore find that these provisions in the Employee Handbook
violate Section 8(a)(1) of the Act.
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Finally, under “Solicitation,” at page 24, the Employee Handbook states:
Solicitation discussions of a non-commercial nature, by Associates, are limited to the
non-working hours of the solicitor as well as the person being solicited and in non-work
areas. (Working hours do not include meal breaks or designated break periods.)
In Barney’s Club, 227 NLRB 414, 416 (1976), the administrative law judge stated:
The right of employees to self-organization has often come into conflict with the right of
employers to maintain discipline in their establishments and to control the use of their
property. Over the years, the Board and the courts have attempted to reconcile these
conflicts through the formulation of rules of law which attempt to maximize the scope of
the rights of each to the extent that they do not unduly diminish the rights of the
other…In attempting to reconcile the legitimate interests of both employers and unions,
the Board has looked at the nature of the business. Thus, the rules which have evolved
relating to industrial establishments have not been applied to retail stores. [citations
omitted]
In the instant situation, limiting solicitation to non-working hours is clearly lawful, especially since
the rule specifies that meal or break periods are not included in working hours. Our Way, Inc.
268 NLRB 394 (1983). As the rule also limits solicitations to non-working areas, the issue is
whether this limitation is lawful. As it properly restricts solicitations to the time that employees
are working, and in working areas, while allowing other solicitation, I find that this provision is
lawful, and I therefore recommend that this allegation be dismissed. Stoddard-Quirk
Manufacturing Co., 138 NLRB 615 (1962); Golub Corporation, 338 NLRB 515 (2002).
B. Discharges of Rubio and Carrington and Related Section 8(a)(1) Allegations
Admittedly, the Respondent discharged Rubio on March 4 and Carrington on March 7.
The Complaint alleges that the Respondent discharged them because they engaged in, or
because the Respondent believed that they engaged in, protected concerted activities (allegedly
discussing the Respondent’s national origin and religious discrimination against its employees,
favoritism toward certain employees, insufficient training of employees and other issues), and
that it discharged Carrington because he violated Respondent’s rules involving confidentiality
and non-disclosure set forth above in Section A, and to discourage other employees from
engaging in these and other concerted activities. Respondent defends that Rubio was
discharged solely for harassing fellow employee Michelle Aparicio by falsely and maliciously
telling her that the Respondent was not happy with her work and planned to fire her.
Respondent defends that Carrington was fired three days later for coming into the office on
Saturday, March 5, a day that he was not scheduled to work, accessing Respondent’s email
system, and transmitting over three hundred emails, many of which contained Respondent’s
confidential trade secret and proprietary information, to Rubio’s personal email address, and to
his as well.
Respondent is a food service distributor operating from the State of Minnesota west to
Northern California and Alaska, selling everything from food to paper products and cleaning
supplies. It sells to institutions such as schools, universities, institutional food service providers,
and prisons, as well as cruise lines and independently owned small food stores, but not to large
grocery stores. In making these sales, the Respondent employs approximately four hundred fifty
sales representatives who visit these customers regularly, and negotiate the products’ price with
each of these customers. Further, the Respondent purchases these products from thousands of
different supplier (also called vendors), storing these products in its warehouses until they are
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sold, and delivered to the customers.
Rubio began her employment with the Respondent in May 2008 as a supplier
information specialist. Three months later she applied for and obtained a position of
transportation analyst for Gampac and worked there until June 2010, when she returned to the
Respondent in the position of supplier e commerce specialist. Her supervisor during the entire
period of her employment with the Respondent was Merissa Hamilton. Carrington began his
employment with the Respondent in September 2008 as a supplier information specialist. He
was laid off in August 2009 as part of a reduction in force by the Respondent and was rehired in
November 2009 in the same position, the only laid off employee who was rehired at that time.
His supervisor during the entire period of his employment with the Respondent was also
Hamilton.
The alleged protected concerted activity involving Rubio involved some unwanted
religious interaction between Hamilton and Rubio, who is an agnostic, that was initiated by
Hamilton. Rubio and Hamilton had been friends for some time, but this friendship ended when
Hamilton began proselytizing regarding her religious convictions. There were a series of emails,
initiated by Hamilton on November 7, 2010. The principal one from Hamilton to Rubio, states,
inter alia:
You need to listen more and stop assuming. I never said I was mad at you. I am a
Christian which means that I don’t hold hate or anger in my heart when someone does
me wrong. I know you think being a Christian means something else, but again that
would be an incorrect assumption…You seem to be offended by me…you get upset at
decisions I make at work…My sister…asked if you were on drugs. My mother was also
really concerned about your behavior.
I love you Elba and I want all your dreams to come true. I see so much greatness in you,
but lately you constantly seem lost. As a friend I don’t know what to do because you
seem to just keep pushing me away, constantly fighting me.
You might not agree with my beliefs, but I know what my Father has done in my life and
my husbands life. I know how he has changed me after I received him. ..My blessings
come from my repentance and acceptance of Christ. I don’t think someone can stop
being lost or accomplish their dreams in complete fullness without him. The fact that
every time I mention him you get offensive, turned off and push away tells me you know
he’s calling you, but your flesh refuses. He has so many great things planned for your
life. He wants you to live in victory and stop being so upset all the time. He wants you to
have peace and be happy. He loves you. For all this to occur you have to receive him.
You can completely disagree. You can hate me. You can keep pushing me away…
Rubio responded later that day, inter alia:
I have never been on drugs, did you ever care to think that maybe I’m distressed
because of my personal life and problems with my family I can’t control?...I don’t
disagree with your decisions at work…I’m not a religious person and I don’t think the fact
that you have accepted Jesus in your life means I need to follow suit. As long as I get
the work done and the project finished I think that should be your major concern, not if I
accepted Jesus into my life as my savior…
Hamilton responded, inter alia:
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There you go again being offended. I didn’t say you were on drugs. I didn’t think you
were on drugs. My family and friends asked if you were on drugs based on their
observations of you….
I am concerned about your well being and happiness because I am your friend. I care
about you as a friend way before an employee. You haven’t been happy for most of the
time I’ve known you. I didn’t say you had to accept Christ. I offered it as a suggestion
because of my satisfaction in life. Just like you make recommendations on things to me
that you like. Well, you said a few months ago you were dissatisfied. I wouldn’t be a
friend if I kept my faith a secret.
As your boss, I have been concerned because Jeff [presumably, Jeff Chester,
Respondent’s Director of Quality Assurance] asked if you were ok and seemed out of it
for the last couple of months. Your personal life greatly impacts your work. I have had
the same challenge. Becoming a stronger person emotionally and not being lost in life
will do wonders for your career. You won’t be stuck if you fix these things. You will be
highly promotable…
You don’t have to stay my friend. It’s up to you. But I am not going to stay in a friendship
with you being offended by me every other day or so. That’s not a healthy friendship.
Sometimes people grow apart and that’s ok…
If you just want to be co-workers, then that’s fine…There is so much greatness and
happiness waiting for you. But you will never achieve it being offended and tied up
emotionally by so many things…
Elba, this is about you loving yourself. You loving your life. You finding the true beauty of
you…
Rubio testified that prior to these emails, Hamilton told her about the church that she joined and
attended, and Rubio was “fine” with that because Hamilton was “sharing” that with her.
However, she took offense at the November emails because Hamilton was telling her that she
should be religious and that she would be promotable if she were. In January, Rubio
complained to Steve Manuszak, Respondent’s Senior Vice President of Associate Services, and
gave him these emails that she received from Hamilton and he told her that he would have Scott
Bixby, Respondent’s Senior Vice President, and Chester talk to Hamilton, and a few days later
she learned that Hamilton was spoken to about the incident. Carrington testified that he
discussed Hamilton’s emails and Rubio’s religious discrimination charge with her and, on
occasion, with employees Aparicio and Jeff Ambruster. Ambruster testified that Rubio told him
about the November emails that she received from Hamilton and then forwarded the emails to
him, saying, “Can you believe this?” Aparicio testified that in about January, Rubio told her that
she was going to “file a complaint” against Hamilton and she showed her the November 7
emails. Aparicio read the emails, but found them “normal” and “just a comment.”
Hamilton testified that in January she was informed that Rubio had made a religious
harassment complaint against her with the Respondent. She was surprised at Rubio’s complaint
because up to a few months earlier they were very close friends and “talked about religion all
the time” throughout their friendship. She knew that Rubio and she did not share the same
religious beliefs, but Rubio never told her that she didn’t want to discuss religion with her. She
testified further that she did not resent Rubio’s complaint and “it didn’t impact my perspective of
her as an employee because I looked at our relationship at work and our relationship personally
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as separate things.” Bixby testified that he learned in January of Rubio’s religious complaint
against Hamilton and he and Manuszak “took action against that to make sure that whatever
had occurred stopped.” He believes that, within a week Chester, Hamilton’s direct supervisor,
met with her and told her that conversations about religion with an employee who reports to her,
were inappropriate in or outside of work and that it should stop. Manuszak testified that he
investigated Rubio’s complaint about Hamilton and found that Hamilton’s message was
“inappropriate” despite the fact that in the past they were close friends. As a result, he
“coached” Hamilton not to engage in those conversations with employees, but Hamilton did not
receive any written discipline for this conduct. He also testified that in his conversation with
Rubio about this complaint, she said that was only speaking for herself.
Rubio was discharged on March 4. Manuszak testified that the “immediate cause for her
termination” was an instant message that she sent to Aparicio on February 25. He also testified
that she was also discharged for harassing conduct toward Aparicio, where she misled and lied
to her about her standing at the company. Aparicio began working as a part time employee for
the Respondent in October 2010 (she was recommended for the job by Rubio) and later
became a full time employee; Hamilton was her supervisor. At one point in the instant message,
Rubio wrote, referring to Hamilton: “I want to try to see if the bitch says something racist again.
Do you remember when she scolded Monica for speaking Spanish with Celina at her desk? She
can’t say that to you. Let’s talk Spanish when she comes back several times and see if she can
get pissed off and say something stupid.” Aparicio responded that it could not involve her
because she can’t afford to be out of work. Rubio then wrote: “She’s super-mad with me
because it’s really difficult for you with this job. She’s pissed off that I recommended you without
knowing…And the only reason she hasn’t fired you is because she has to prove that you can’t
do the job and because she was scolded for the guy who quit.” She also wrote: “She didn’t let
me train you well in the beginning and she didn’t instruct me or Paul and she got mad and she
said that other people have understood it without problems and because much of her anger is
that I have personal issues with her but she thinks that because I helped you I screwed her over
more. That’s why she has been harassing you lately.” Rubio ended the instant message by
writing:
The truth is that I didn’t know that this was going to happen to you. I didn’t provoke her.
She has a lot of anger towards me and she wants to screw me over and screw you over
in the process. Either way, I only recommended you for one thing and she’s not
accustomed and doesn’t like to train people but she got really paranoid and started
screwing with me and messing with me because she hired you and for other stupidity
with her ego. If you don’t understand what she’s explaining to you, you are worth
nothing. If you don’t understand something, just play dumb and ask me or Paul through
IM. Everything is because of her ego. Nobody can tell or comment on anything…She’s
also bothered that you walk round the floor and that you pass the time and chat with
people when she does the same thing…
Aparicio testified that when she began working for the Respondent, she and Rubio were
friends, but “we slowly were not friends anymore” because Rubio was criticizing her work and
was telling her that she was going to be fired. She first told her in December that she was going
to be fired and repeated that threat every other day. Because of these threats, Aparicio began
looking for another job and Rubio assisted her by sending her links to websites for other jobs.
Aparicio also met with Hamilton and emailed her to ask if she was satisfied with her job
performance and Hamilton told her that her work was okay. She did not tell Hamilton about
Rubio’s statements to her until about late February. At that time, Hamilton asked her why she
was not performing as well as previously and why she was not communicating as she had been.
At that time, she told Hamilton that Rubio told her that Hamilton was looking for an excuse to fire
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her, and she gave Hamilton the February 25 instant message. They had it translated from
Spanish to English and on March 3, Hamilton forwarded it to Chester. His only comment was
“unbelievable.” A few minutes later, Hamilton sent an email to Chester, stating:
During the time Elba sent this is when she sent me the IM saying that she wanted to
strangle Michelle for not doing her work and that Paul felt the same way. No wonder the
poor girl was scared of losing her job and stopped talking. Every move she made she
was being told I wanted to fire her. I was actually encouraging her positive energy. She
must have been so confused. This has been going on since December!
There was also an instant message between Rubio and Hamilton dated December 29,
2010 in which Hamilton, referring to Aparicio, states: “Some of the stuff she did before didn’t get
done correctly so she needs to really learn what she has already been taught and not just do
stuff to get it done.” Hamilton was questioned by Counsel for the General Counsel about this
statement and testified, “That’s not saying that I had concerns about her job
performance…everyone makes mistakes.” What she was trying to convey to Rubio in this IM
was that Rubio was asking her to perform work that was outside the scope of her job: “She
didn’t do it correctly because it wasn’t her job.” Asked if Aparicio performed all her work
correctly, she testified, “I don’t think that Ms. Aparicio did everything perfectly, nor do I expect
that from my staff.” Hamilton also testified that she had no “input in the decision” to fire Rubio,
and only learned about it a few hours before it took place. Manuszak testified that there were
several reasons why Rubio was discharged. One was the “egregious” harassment of Aparicio,
by trying to intimidate her to quit, by lying to her by telling her that she wasn’t meeting the
company’s expectations. The other reason was “being manipulative and vindictive “to Hamilton
by trying to catch her doing something wrong.” The “vindictive” nature of her actions toward
Aparicio and Hamilton constituted gross misconduct. Rubio testified that Aparicio had a lot of
problems keeping up with the work in the department and would ask her the same questions
repeatedly. In addition, Hamilton berated her for recommending Aparicio for the job and said
that she should have known that she would have “issues” with the work. She testified further
that she did not recall telling Aparicio that Hamilton was looking for a way to get her fired, and
that she did not encourage her to look for jobs elsewhere. Carrington testified that he spent
about a week and some follow up time training Aparicio, which was more time than usual to
train a new employee. He felt that her performance seemed to be lacking compared to other
past and present employees in the department and in January and February he told Hamilton
that Aparicio was making mistakes, that she would repeatedly ask the same questions, and that
because her work was below par the department was behind in its work.
Carrington became aware that Rubio was discharged on March 4 when he saw her
walking away from her desk toward the building exit, and shortly thereafter, Bixby called him into
his office. Carrington testified that Bixby said that Rubio had been discharged and that his
“name had come up as being connected with hers.” Bixby told me that he had played a
significant role in his being reinstated after his layoff in 2009 and said, “…that I could really have
a future with the company if I stopped talking to her and tried to move on and learn how to work
with Merissa.” He also told Carrington that he could “come in with a clean slate on Monday.”
Bixby testified that after Rubio was discharged on March 4, he met with employees on
Hamilton’s team, including Carrington and Aparicio. He told Carrington that his name was on the
recent instant message between Rubio and Aparicio and that “…he was sometimes mentioned
in the same context as Elba’s disruption,” referring to the IM between Rubio and Aparicio. Bixby
also testified that he initially told him that Rubio had been discharged and that he (Carrington)
had done very good work for the company and he had taken a personal interest in him including
rehiring him after he was laid off as a result of a reduction in force, and that he handled that
layoff in a professional manner. Since then he had received positive reports about his
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performance, “And I told him that I was going to give him a little bit of advice, and it was free
advice.” He told him, “I can’t tell you what to do inside of work, outside of work, how to spend
your time. But when you’re at work you have an opportunity to get involved in all the positive
things that we do or you can go in a different path, and that’s up to you. My advice to you is
Monday, as far as I’m concerned, this is behind us. We’ll start with a fresh clean slate. And there
are no implications around Rubio’s termination.”
Carrington testified that after Rubio’s discharge, he and Rubio discussed his obtaining
his work computer and accessing company records and forwarding these emails to Rubio and
to his personal email account. Rubio testified that she asked him if he felt comfortable
transferring the emails, and he said that he did. He testified that their purpose was: “To
highlight…the complaint she had made and the discrimination she felt she had endured, and to
show…a timeline of the events.” He was looking to transfer emails from Hamilton to Rubio about
converting her to Christianity, emails to show retaliation for her complaints, such as emails
about increased workload or increased work pressure, as well as emails showing favorable
treatment of Aparicio. In addition, he felt that the forwarded emails might be needed to protect
himself. He was concerned about his job security after his March 4 discussion with Bixby about
his connection to Rubio and he thought that emails praising his work performance would be
helpful to him in case his job status was affected. Carrington and Rubio went to the
Respondent’s facility at about 7 a.m., Saturday, March 5, not a regular work day for Carrington.
He swiped his security card provided by the Respondent in order to gain access to the building,
went into his office, took his computer home, and transferred the emails to Rubio and to his
personal email account. He testified that he previewed each of the emails that he transferred on
March 5 and 6 and that as far as he knows, all of the emails that he forwarded on those days
were emails that Rubio had already received. He did not believe that forwarding these emails
would be a problem until Monday, March 7, when he was discharged for sending these emails.
On cross examination, Carrington testified that in order to gain access to the Respondent’s
website, he first had to log in to his computer using his work password, and that some of these
emails contained vendor names, customer names, manufactures codes, brand names, prices
charged the Respondent by its vendors, rebates, and the names, addresses and other contact
information for employees of the Respondent’s vendors. The number of emails that he
forwarded exceeded three hundred.
Guy Babbitt, who is employed by the Respondent as Chief Solutions Architect, testified
that in early March, he became aware of some “unusual activity” taking place; Carrington had
forwarded in excess of three hundred emails to Rubio, as well as to his personal email account.
In looking at the subject lines of the emails, he saw a number that were “questionable,” among
them compensation information, bonus information and other subjects “…which I knew
instinctively was definitely confidential information. I wasn’t sure why it would be leaving the
company.” He reported his findings to Manuszak and sent him an Excel spread sheet listing all
the emails that were sent by Carrington. When asked how this transmission compared with
others that he has seen during his employment with the Respondent, he testified: “I have never
seen anything like this.” Babbitt also testified that the Respondent has confidentiality
agreements with some of its vendors and some of its customers, and there is information
available on the Respondent’s computer system that vendors and customers would consider
trade secret or proprietary information. He was asked, based upon his review of the information
that Carrington sent out on March 5 and 6, was there any such information in that material. He
answered: “Without a doubt.”
Bixby testified that he reviewed a large number of the emails that Carrington transferred
on March 5 and 6; they included costing information, item information and specifications, a
listing of the Respondent’s suppliers (vendors), and customers, as well as the volume and the
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products purchased from certain vendors, and the products sold to customers together with the
prices charged for these products. All of these subjects are confidential and proprietary for the
Respondent, and if any of it was obtained by a competitor of the Respondent, it could result in a
substantial loss of business. He looked at some of the emails and opened and reviewed the
complete attachments of from ten to fifty of them. His review of these emails revealed
information which might have violated the Respondent’s confidentiality agreements with some of
its vendors and customers. After seeing this list of emails, and reviewing some of them, he met
with Manuszak and Ernie Snyder and decided that Carrington had to be discharged. The
reason:
To me, it was just very simple. It was a clear and egregious exportation of an absolutely
unprecedented volume of proprietary and sensitive trade secrets to a terminated
employee and also to his home email address. I could not fathom why [sic] possible
business reason could justify such an act…but the other was, what was he doing that
day? Was he continuing that same process and exporting thousands more email? I had
no idea, so that crossed my mind, yes.
Hamilton testified that she reviewed all of the emails that Carrington transmitted on
March 5 and 6, and estimates that 80 to 90% of them contained confidential and proprietary
information, such as customer and vendor names, prices and product specifications; however
she did not participate in the decision to discharge Carrington and only learned of it after he had
been fired. Manuszak testified that when he was fully informed of the emails that Carrington
transmitted on March 5 and 6, he saw just from the subject line of the emails, that they included
information about their suppliers, customers, and products, and it was “the most egregious
violation of a confidentiality agreement that I’ve seen in twenty years. “ Because of that, he felt
that there was no need to meet with, and speak to, Carrington before terminating him. He also
testified that in his five years of employment with the Respondent, he knew of only one other
incident where an employee transmitted company proprietary material outside the company.
That employee was Mark Lambert, who was discharged when it was discovered that he sent
confidential information, that Respondent considered proprietary, to a former employee.
As stated, supra, at the close of his case, Counsel for the General Counsel amended the
Complaint to add two allegations: that the Respondent, by Manuszak, promulgated an overly
broad rule prohibiting employees from giving personal references, and that the Respondent
maintained an overly broad rule prohibiting employees from disclosing personal telephone
numbers. As to the former allegation, on March 7, Rubio sent an email to ten individuals stating:
It was a pleasure working with you over the past 3 years. I was laid off last Friday for
blowing the whistle on manager abuse in January, no further reasoning was provided. I
would like to request personal references from you, as I begin my job search. If you do
not feel you can provide a recommendation, I understand. Thank you.
One of the individuals that this was sent to, forwarded it to Sherry Donald, who had been
Rubio’s supervisor at Gampac, stating only “FYI”, and she forwarded it to Manuszak, stating,
“Thought you should know this is going around to our associates.” Manuszak then forwarded it
to Babbitt, asking: “Can we block incoming emails from Elba’s personal email address to any
SGA associate?” Babbitt responded: “Future emails will now be blocked,” and Manuszak
responded, “Thanks! I’d also like to get copies of all correspondence sent from and sent to
Elba’s personal email address the last 90 days.” Rubio testified that two of the recipients of her
email, Hilda Phillips and Robin Cook, and possibly a third, Rich Clesiak, may have been
supervisors; the others were rank and file employees. Three of the ten individuals responded to
Rubio that they would be happy to be a personal reference for her; Manuszak testified that none
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of them were disciplined for their response. Babbitt testified that Manuszak never asked him to
check the incoming or outgoing emails from any of the ten individuals named in Rubio’s email;
they were only looking for inbound emails from Rubio.
Manuszak testified that the Respondent has a policy forbidding only supervisors and
managerial employees from giving references to former employees, although it is not contained
in the Employees’ Handbook; it is covered in a training session. In the affidavit that he gave to
the Board, on this subject he stated: “The employer has a policy that any references go through
the Employer’s associate services department [generally referred to as Human Resources] and
the associate services department would confirm only the dates of employment to anyone who
called to inquire about a former employee of the Employer.” Manuszak, who has approximately
twenty years experience in human resources, testified that a rule such as this prohibiting
supervisory employees from giving references for former employees, on their own, is “extremely
common” because information given out by company representatives can be considered
libelous or slanderous. However, non-supervisory employees are not considered agents of the
employer for these purposes. When he received the email that Donald forwarded to him on
March 7, he wasn’t totally familiar with the duties performed by all ten recipients of the Rubio’s
email, but he knew that one of them, Cook, was a supervisory employee. He did not speak to
Cook at that time about violating the Respondent rule, because, “I had bigger matters to attend
to on March 7.” As regards the allegation that the Respondent has a rule prohibiting employees
from disclosing employees’ personal telephone numbers, he testified, “No, we don’t have a
policy regarding disclosure of personal cell phone numbers.”
The initial allegation involves Bixby’s discussion with Carrington on March 4, after Rubio
was fired. It is alleged that by this conversation the Respondent violated Section 8(a)(1) of the
Act, by interrogating Carrington about his concerted activities, orally promulgated an overly-
broad and discriminatory rule prohibiting its employees from talking to other employees,
threatened him with unspecified reprisals if he engaged in concerted activities, and created the
impression among its employees that their concerted activities were under surveillance by the
Respondent. Carrington testified that after Bixby told him that Rubio had been discharged and
that he (Bixby) played a significant role in his reinstatement after his layoff in 2009, he said that
Carrington could have a future with the company if he stopped talking to Rubio and try to move
on and learn how to work with Hamilton, and that he would come in with a “clean slate” on
Monday. Bixby testified that he told Carrington that his name was included in Rubio’s recent
instant messages to Aparicio and that he was mentioned in the “same context as Elba’s
disruption.” He complimented him on his work and offered him “a little bit of…free advice.” He
said, “I can’t tell you what to do inside of work, outside of work…But, when you’re at work, you
have an opportunity to get involved in all the positive things that we do or you can go in a
different path, and that’s up to you. My advice to you is Monday, as far as I’m concerned, this is
behind us. We’ll start with a fresh clean slate. And there are no implications around Rubio’s
termination.” This is a difficult credibility determination because neither Carrington nor Bixby
clearly lacked credibility. Although I found Carrington to be somewhat evasive in his testimony in
other areas, I found Bixby’s testimony about this conversation unconvincing. It sounded more
like something that was prepared for trial rather than a spontaneous discussion with Carrington
about his relationship with Rubio. I therefore credit Carrington’s version of this conversation.
As Bixby did all the talking, and he never questioned Carrington about his concerted
activities, or those of other employees including Rubio, I recommend that the allegation that
Bixby interrogated Carrington (Paragraph 4(g)(1) be dismissed. As there is also no evidence to
support the allegation that Bixby, in this conversation, created an impression among its
employees (actually, in this situation, Carrington) that their concerted activities were under
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surveillance by the Respondent, I also recommend that this allegation (Paragraph 4(g)(4)) be
dismissed as well. The remaining two allegations, paragraphs 4(g)(2) and 4(g)(3), are more
difficult. It could be argued that Bixby’s statement that Carrington could really have a future with
the company if he stopped talking to Rubio and try to move on and learn how to work with
Hamilton, could be a discriminatory rule prohibiting employees from talking to other employees,
as well as an implied threat to Carrington if he engaged in concerted activities. On the other
hand, it could be argued that Rubio had already been discharged and was no longer an
employee due to her harassment of Aparicio, as set forth in the instant message referred to
above, as well as her attempt to “bait” Hamilton to make a mistake, and that Carrington, to some
degree, participated in the plans set forth in this instant message, so Bixby’s statement to him
was not a threat or an unlawful prohibition, but was meant as a helpful suggestion on how to
maintain his excellent work performance. Communications with a discharged employee can,
under certain circumstances, constitute concerted activities. In Buck Brown Contracting Co.,
Inc., 283 NLRB 488, 489 (1987), employee Kelly had been fired by the employer and fellow
employee Bridges spoke to the employer and asked if he could be rehired. Bridges was fired
and the Board found that Bridges’ attempt to assist Kelly with procuring employment with the
employer was protected concerted activity. The instant matter is distinguishable. There is no
evidence that Carrington and Rubio were at that time preparing to take any lawful group action
against the Respondent, nor did Bixby’s statement directly address any group action. Rather, I
find that the words that Bixby used were meant to convince Carrington not to repeat the
unprotected conduct that they engaged in with the instant message to Aparicio, and I therefore
recommend that this allegation, and paragraph 4(g) of the Complaint be dismissed in its
entirety.
Paragraph 4(c) of the Complaint alleges that since about February 22 the Respondent
has maintained an overly broad and discriminatory rule prohibiting employees from disclosing
employee cell phone numbers although, at the hearing, Counsel for the General Counsel stated
that this amendment referred to disclosing “personal telephone numbers.” Manuszak testified
that the Respondent does not have a policy regarding the disclosure of personal cell phone
numbers. As there was no other evidence supporting this allegation, I recommend that it be
dismissed.
Paragraph 4(h) alleges that on or about March 7 the Respondent, by Manuszak,
promulgated an overly broad and discriminatory rule prohibiting employees from providing
personal references to other employees. The sole support for this allegation is the emails that
were sent by Rubio on March 7 to ten individuals employed either by the Respondent or another
subsidiary of Service Group of America, Inc. Either one or two of these ten individuals was a
supervisor; the rest were rank and file employees. The email stated that she was “laid off” on
March 4, and “I would like to request personal references from you, as I begin my job search.”
This email was forwarded to Donald, who forwarded it to Manuszak stating: “Thought you
should know this is going around to our associates” and Manuszak forwarded it to Babbitt,
asking: “Can we block incoming mails from Elba’s personal email address to SGA Associates?”
Six minutes later Babbitt responded: “Future emails will now be blocked.” Three of the ten
individuals responded to Rubio that they would be happy to be a personal reference for her and
these employees were not disciplined. Manuszak’s uncontradicted testimony establishes that
Respondent did not have a policy forbidding employees from providing references to other
employees; only supervisors were prohibited from giving references, and Manuszak’s
explanation for the rule was certainly a reasonable one. The only evidence supporting a rule
prohibiting employees from giving personal references is the fact that the Respondent blocked
her incoming emails after it became aware of her March 7 emails. However, that could also be
explained by the fact that she had been fired, that Carrington had transferred over three
hundred emails to her, and they could see no valid reason for her to communicate with the
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employees. More importantly, there was no testimony that any employee was aware of any
such restriction, and none of the employees who agreed to give a reference to Rubio were
disciplined. I therefore recommend that this allegation (Paragraph 4(h)) be dismissed.
The final allegations are that the discharges of Rubio on March 4, and Carrington on
March 7 violate Section 8(a)(1) of the Act. The Complaint alleges that they were discharged
because they engaged in, or because the Respondent believed that they engaged in, protected
concerted activities by discussing with each other and complaining to the Respondent about
Respondent’s national origin and religious discrimination against its employees, favoritism of
certain employees, insufficient training of employees and by sending and forwarding emails to
each other concerning the wages, hours and working conditions of the Respondent’s
employees.2 As regards credibility, as between Aparicio, Carrington, Rubio and Hamilton, I
found Aparicio clearly the most credible. Although she was still employed by the Respondent,
and had been harassed at work by Rubio, it appeared to me that she was attempting to testify in
an open and truthful manner. In addition, her testimony was supported by the February instant
message. On the other hand, I found Rubio to be the least credible of the group whose
testimony was often evasive on cross examination. Hamilton and Carrington were, at times,
evasive in their testimony, but, at times were also fairly credible. Under Wright Line, 251 NLRB
1083, 1089 (1980), in Section 8(a)(3) cases or violations of Section 8(a)(1) turning on employer
motivation, the General Counsel must first make a prima facie showing sufficient to support the
inference that protected conduct was a “motivating factor” in the employer’s decision. If that is
established, the burden shifts to the employer to demonstrate that the same action would have
been taken even in the absence of the protected conduct. I find that Counsel for the General
Counsel has not satisfied his initial burden herein. The only credible evidence concerning
possible concerted activities herein is Rubio’s complaint to the Respondent about Hamilton’s
inappropriate November email regarding their disparate religious beliefs. One can certainly
understand Rubio’s discomfort upon receiving this email, but the undisputed evidence
establishes that Hamilton was spoken to about it shortly after Rubio reported it, and was told
that it was not appropriate either at work or outside of work to communicate with employees in
that manner, and no similar emails followed. In addition, there is no credible evidence that the
Respondent harbored animus toward Rubio as a result of her complaint about the religious
email and there is no evidence of any connection between the complaint that she made and her
discharge two months later. Rather, the evidence establishes that the February 25 instant
message between Rubio and Aparicio resulted in her discharge a week later. I therefore
recommend that this allegation be dismissed.
The final allegation relates to Carrington’s discharge on Monday, March 7. The
Complaint alleges that he was fired because he and Rubio engaged in protected concerted
activities, and because he violated Respondent’s Confidentiality and Non-Disclosure Rules.
Carrington and Rubio discussed this transfer of emails after Rubio was fired and he told her that
he felt comfortable doing so. He testified that he did it to “highlight” Rubio’s complaint about the
discrimination that she had endured and to show “a timeline of the events,” and that he
attempted to transfer emails regarding Hamilton’s attempt to convert her to Christianity, as well

2 Because I found that these allegations are clearly without merit, there are a number of
issues that need not be discussed herein: whether Hamilton improperly revealed the results of
Ambruster’s drug test to Rubio and Carrington; whether Rubio went into the Respondent’s
facility on March 5 with Carrington; whether Rubio got mad and slammed a chair and a
keyboard at work, as testified to by Bixby; whether Carrington “signed” a Confidentiality
Agreement for the Respondent electronically; and whether Carrington complied with the
Respondent’s subpoena to provide all the the emails that he sent on March 5 and 6; he didn’t.
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as emails relating to increased work pressure or favoritism toward Aparicio. In addition, after his
March 4 conversation with Bixby, he was concerned about his job security and attempted to
transfer emails that praised his work performance. If this was his true purpose, he certainly
accomplished it in the wrong way. Since he obtained his computer early Saturday morning, he
probably had two days to collect the relevant and appropriate emails before the Respondent
became aware of it and, possibly, cut off his email access. If he had done so, and had only
forwarded emails relating to Rubio’s and his work performance and work related issues,
Counsel for the General Counsel could then reasonably argue that he was engaged in protected
concerted activities. However, instead of accessing and copying appropriate emails relating to
their work and their complaints, he indiscriminately copied emails related to the operation of the
company’s business, having no relation to their terms and conditions of employment. This
accessed information included the names of vendors and customers, prices charged by its
vendors, the products sold to its customers together with the prices for these products, the
manufactures codes and brand names, as well as other information. By whatever name,
whether proprietary or confidential, this is information that any company would not want out of
its possession. More importantly, in this situation, accessing this information does not constitute
protected concerted activities. I therefore find that Counsel for the General Counsel has not
sustained his initial burden under Wright Line, supra, and recommend that this allegation be
dismissed.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The provisions relating to Compensation and Confidentiality contained in the
Respondent’s Handbook and the restriction on discussing payroll or employee information about
other employees, as contained in Respondent’s Confidentiality and Non-Disclosure Agreement,
could chill employees in the exercise of their Section 7 rights, and therefore violate Section
8(1)(1) of the Act.
3. The Respondent did not further violate the Act as alleged in the Amended Complaint.
The Remedy
Having found that the Compensation provision contained in its Employee Handbook, and
the restriction on discussing payroll or employee information regarding other employees violate
the Act, I recommend that the Respondent be ordered to rescind these provisions and to notify
all of its employees electronically that these provisions has been rescinded from the Employee
Handbook and the Confidentiality and Non-Disclosure Agreement. Respondent is also ordered
to post the Board notice at the facility involved herein.
Upon the foregoing findings of fact, conclusions of law, and on the entire record, I hereby
issue the following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended 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.
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ORDER
The Respondent, Food Services of America, Inc., a subsidiary of Services Group of
America, Inc., its officers, agents, successors and assigns, shall
1. Cease and desist from:
(a) Enforcing the Compensation provision contained in its Employee Handbook, as
further explained by the Confidentiality provision contained therein.
(b) Enforcing the restriction on discussing payroll or employee information regarding
other employees as set forth in the Confidentiality and Non-Disclosure Agreement.
(c) In any like or related manner interfere with, restrain or coerce 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) Notify all of its employees electronically that these provisions will no longer be
enforced.
(b) Within 14 days after service by the Region, post at its facility in Scottsdale, Arizona,
copies of the attached notice marked “Appendix.”4 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 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, 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 employees employed by the Respondent at any time since
February 22, 2011.
(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.
IT IS FURTHER ORDERED that the remaining allegations contained in the Amended
Complaint be dismissed.
Dated, Washington, D.C. March 27, 2012
_________________________________
Joel P. Biblowitz
Administrative Law Judge

4 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT enforce the Compensation and Confidentiality provision contained in our
Employee Handbook, WE WILL NOT enforce the restriction on discussing payroll and
employee information regarding other employees as contained in our Confidentiality and Non-
Disclosure Agreement, and WE WILL NOT prohibit you from discussing your wages or terms
and conditions of employment with others.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of your rights as guaranteed you by Section 7 of the Act.
WE WILL rescind the Compensation and Confidentiality provisions contained in our Employee
Handbook and the restriction on discussing payroll or employee information regarding other
employees as contained in our Confidentiality and Non-Disclosure Agreement and will notify all
of our employees electronically that we have done so.
FOOD SERVICES OF AMERICA, INC.,
a subsidiary of SERVICES GROUP OF AMERICA,
Dated_________________ By________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.