Long Island Association for AIDS Care, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 2016

364 NLRB No. 28 (N.L.R.B. 2016)

364 NLRB No. 28
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.
Long Island Association for AIDS Care, Inc. and
Marcus Acosta. Case 29–CA–149012
June 14, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On August 26, 2015, Administrative Law Judge Ken-
neth W. Chu issued the attached decision. The Respond-
ent filed exceptions with supporting argument. The
General Counsel filed limited exceptions with supporting
argument, and the Respondent 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 record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2 as
modified and to adopt the judge’s recommended Order as
modified and set forth in full below.3
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by promulgating and maintaining
a confidentiality statement that employees would reason-
ably construe to prohibit them from discussing wages or
other terms and conditions of employment with employ-
ees or nonemployees and the media.4 See Lutheran Her-
itage Village-Livonia, 343 NLRB 646, 646 (2004). We

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s conclusions of law to conform to the
violations found.
3 In accordance with our decision in Advoserv of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall
modify the judge’s recommended Order and substitute a new notice to
reflect this remedial change and to conform to the violations found and
the Board’s standard remedial language.
The General Counsel excepts to the judge’s refusal to order the Re-
spondent to reimburse Acosta for search-for-work and work-related
expenses regardless of whether he received interim earnings in excess
of these expenses, or at all, during any given quarter or during the over-
all backpay period. We deny the exception. As the judge noted,
awarding such expenses would require a change in Board law, and we
are not prepared at this time to deviate from our current remedial prac-
tice.
4 There are no exceptions to the judge’s finding that the Respondent
violated the Act by promulgating the confidentiality statement.
affirm the judge for the reasons explained in his deci-
sion.5
2. The judge also found that the Respondent violated
Section 8(a)(1) by threatening to discharge and then dis-
charging employee Marcus Acosta.6 We agree. As de-
tailed in the judge’s decision, in early March 2015, the
Respondent instructed Acosta to sign the confidentiality
statement. Acosta signed, but he also highlighted and
underlined the sections that he disagreed with and wrote
the words “under duress” three times next to his signa-
ture. On March 24, Robert Nicoletti, the Respondent’s
Director of Human Resources, summoned Acosta to a
meeting, gave him a clean copy of the confidentiality
statement, and demanded that he “sign or get fired.”
When Acosta again signed with the words “under du-
ress,” Nicoletti told him that he “just terminated his own
employment.” Because maintaining the confidentiality

5 In affirming the judge, we do not rely on his citation to Hyundai
America Shipping Agency, Inc., 357 NLRB 860, 871 (2011), enf. de-
nied in relevant part 805 F.3d 309 (D.C. Cir. 2015), or Brighton Retail,
Inc., 354 NLRB 441 (2009), which was issued by a two-member Board
and later invalidated by the Supreme Court. See New Process Steel v.
NLRB, 560 U.S. 674 (2010).
Member Miscimarra concurs in the finding that the Respondent vio-
lated Sec. 8(a)(1) by maintaining confidentiality requirements that
prohibited employees from disclosing “salaries, contents of employ-
ment contracts, [and] . . . staff addresses and phone numbers” and from
engaging in the “personal use of such information,” and that also pro-
hibited employees from disclosing to “any media source” information
“regarding [employees’] employment at LIAAC, the workings and
conditions of LIAAC, or any . . . staff member.” However, for the
reasons set forth in William Beaumont Hospital, 363 NLRB No. 162,
slip op. at 7–24 (2016) (Member Miscimarra, concurring in part and
dissenting in part), Member Miscimarra disagrees with the test applica-
ble to facially neutral work requirements that the Board adopted in
Lutheran Heritage Village-Livonia, 343 NLRB at 647 (finding that
facially neutral work rules are unlawful if “employees would reasona-
bly construe the language to prohibit Section 7 activity”). Member
Miscimarra would instead apply the balancing test he described in
William Beaumont Hospital, slip op. at 9, by considering both the ad-
verse impact of the requirements on Sec. 7 activity and any legitimate
justifications for maintaining those work requirements. Applying this
standard, Member Miscimarra believes the Respondent’s confidentiali-
ty requirements violate Sec. 8(a)(1) because they encompass disclo-
sures that are central to many types of Sec. 7 activity, and this adverse
impact outweighs any legitimate justifications. For example, even
though legitimate reasons exist to restrict the public disclosure of em-
ployee addresses and phone numbers, the Respondent’s confidentiality
requirements prohibit employees from engaging in the “personal use of
such information,” which could include a prohibition on employees
contacting one another to engage in protected concerted activity. In the
circumstances presented here, Member Miscimarra finds that the confi-
dentiality requirements are unsupported by reasonable justifications,
and their adverse impact on Sec. 7 activity warrants a finding that the
requirements violate Sec. 8(a)(1). Id.; see also Alternative Entertain-
ment, 363 NLRB No. 131, slip op. at 4 fn. 7 (2016) (Member
Miscimarra, concurring in part and dissenting in part).
6 There are no exceptions to the judge’s finding that the Respondent
violated the Act by threatening Acosta.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statement was unlawful, discharging Acosta for refusing
to agree to the unlawful confidentiality statement also
violated Section 8(a)(1). See Keiser University, 363
NLRB No. 73, slip op. at 1, 7 (2015) (unlawful to dis-
charge employee for refusing to sign unlawful arbitration
agreement); cf. Denson Electric Co., 133 NLRB 122,
129, 131 (1961) (unlawful to discharge employees for
refusing to accept unlawful condition of employment).
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2(b).
“(b) Threatening to discharge and discharging Marcus
Acosta on March 24, 2015, for refusing to agree to its
overbroad and unlawful confidential policy statement
prohibiting employees from discussing their wages and
other terms and conditions of employment with employ-
ees or nonemployees and the media.”
ORDER
The National Labor Relations Board orders that the
Respondent, Long Island Association for AIDS Care,
Inc., Hauppauge, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Promulgating and/or maintaining a rule prohibiting
employees from discussing their wages and other terms
and conditions of their employment with employees or
nonemployees and the media.
(b) Threatening to discharge or discipline employees
for refusing to agree to an overbroad and unlawful confi-
dentiality policy statement prohibiting employees from
discussing their wages and other terms and conditions of
employment with employees or nonemployees and the
media.
(c) Discharging employees for refusing to agree to an
overbroad and unlawful confidentiality policy statement
prohibiting employees from discussing their wages and
other terms and conditions of employment with employ-
ees or nonemployees and the media.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind paragraphs 3 and 4 from the Confidenti-
ality Statement, or revise them to make clear that they do
not prohibit employees from discussing their wages and
other terms and conditions of their employment with
nonemployees and the media.
(b) Notify all current and former employees who were
required to sign acknowledgements regarding the Confi-
dentiality Statement that paragraphs 3 and 4 have been
rescinded or revised and, if revised, provide them a copy
of the revised policy.
(c) Within 14 days from the date of this Order, offer
Marcus Acosta 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 he previously enjoyed.
(d) Make Marcus Acosta 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.
(e) Compensate Marcus Acosta for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 29,
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
year(s).
(f) Within 14 days from the date of this Order, remove
from its files any references to the unlawful discharge of
Marcus Acosta, and, within 3 days thereafter, notify him
in writing that this has been done and that his unlawful
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
the Respondent’s facility at 60 Adams Avenue,
Hauppauge, New York, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representa-
tive, 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC. 3
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since March 1, 2015.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps the Respondent has taken to
comply.
Dated, Washington, D.C. June 14, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, 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 promulgate and/or maintain a rule pro-
hibiting employees from discussing their wages and oth-
er terms and conditions of their employment with em-
ployees or nonemployees and the media.
WE WILL NOT threaten to discharge or discipline em-
ployees for refusing to agree to an overbroad and unlaw-
ful confidentiality policy statement prohibiting employ-
ees from discussing their wages and other terms and
conditions of employment with employees or nonem-
ployees and the media.
WE WILL NOT discharge employees for refusing to
agree to an overbroad and unlawful confidentiality policy
statement prohibiting employees from discussing their
wages and other terms and conditions of employment
with employees or nonemployees and the media.
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 paragraphs 3 and 4 from the Confi-
dentiality Statement, or revise them to make clear that
they do not prohibit employees from discussing their
wages and other terms and conditions of their employ-
ment with nonemployees and the media.
WE WILL notify all current and former employees who
were required to sign acknowledgements regarding the
Confidentiality Statement that paragraphs 3 and 4 have
been rescinded or revised and, if revised, provide them a
copy of the revised policy.
WE WILL, within 14 days from the date of the Board’s
Order, offer Marcus Acosta full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges he previously enjoyed.
WE WILL make Marcus Acosta whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Marcus Acosta for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 29, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful discharge of Marcus Acosta, and WE WILL, within
3 days thereafter, notify him in writing that this has been
done and that his unlawful discharge will not be used
against him in any way.
LONG ISLAND ASSOCIATION FOR AIDS CARE,
INC.
The Board’s decision can be found at
www.nlrb.gov/case/29–CA–149012 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Brent Childerhose, Esq., for the General Counsel.
David Ehrlich, Esq. (Stagg, Terenzi, Confusione & Wabnik,
LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case
was tried in Brooklyn, New York, on July 27, 2015 pursuant to
a complaint issued by Region 29 of the National Labor Rela-
tions Board (NLRB) on May 26, 2015.1 The Long Island As-
sociation for AIDS Care, Inc. (Respondent) timely filed an
answer denying the material allegations in the complaint (GC
Exh. 1).2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a not-for-profit and non-union organiza-
tion, has been engaged in providing services for HIV/AIDS
prevention and care at its facility in Hauppauge, New York,
where it annually derive revenues valued in excess of $250,000
in the course and conduct of its operations and has purchased
and received goods and services at its facility valued in excess
of $250,000. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent promulgated and
maintained a confidentiality statement that required employees
to sign that restricts their rights to discuss wages and other
terms and conditions of employment in violation of Section
8(a)(1) of the National Labor Relations Act (Act). The com-
plaint states that the Respondent threatened employee Marcus
Acosta for refusing to agree with the terms of the confidentiali-
ty statement and discharged him on March 24 for asserting his

1 All dates are in 2015 unless otherwise indicated.
2 The exhibits for the General Counsel are identified as “GC Exh.”
and Respondent’s exhibits are identified as “R Exh.” The closing briefs
are identified as “GC Br.” and “R. Br.” for the General Counsel and the
Respondent, respectively. The hearing transcript is referenced as “Tr.”
rights under the Act. The General Counsel maintains that the
following portions of the confidentiality statement (GC Exh. 2
and 3) restrict the Section 7 rights of employees in violation of
the Act
Para 3: Employees must regard all non-public information in-
tended for internal purposes to be an agency trust. This in-
cludes, but is not limited to, administrative information such
as salaries, contents of employment contracts, identities of
agency contributors, staff addresses and phone numbers, in-
ternal budgets, and information discussed at internal meetings.
The disclosure or personal use of such information or the re-
moval from the agency of documents containing this infor-
mation is strictly prohibited.
Para 4: No employee will agree to be interviewed by any me-
dia source, or answer any questions from any media source
regarding their employment at LIAAC, the workings and
conditions of LIAAC, or any client, volunteer or staff mem-
ber, either on or off the record, unless specifically requested to
do so by the President/CEO or any of the Vice Presidents. All
requests for interviews must be referred to the President/CEO
or any of the Vice Presidents.
Employees will be instructed in the following situations. Staff
shall not:
• Discuss the content of such documents or com-
puter data with any person unless that person has
authorized access and the need to know the in-
formation discussed…
Marcus Acosta (Acosta) was hired on February 24, 2014 as
an outreach specialist and was responsible, among other job
duties, for conducting surveys and speaking with people in
select communities regarding drug use and mental illness.
Shortly after being hired, Acosta was selected as a CDC pre-
vention specialist, and was responsible for outreaching to men
having sex with other men and high risk heterosexuals and drug
users. He conducted HIV testing, counseling and referral on
his job. Acosta’s supervisor was Sophia Noel and her supervi-
sor was Michelle Keogh (Tr. 11–13, 37, 38).
Acosta testified that when he was hired, the Respondent re-
quested that he read, agree, and abide by the confidentiality
statement with the portions noted above and to sign at the bot-
tom of the statement. Acosta signed the policy statement on
March 14, 2014 without protest.
During the course of his employment with the Respondent,
Acosta engaged in discussions with coworkers about their wag-
es and the conditions of employment. Acosta testified that a
newspaper article he noticed in the employees’ break room in
November 2014 perked his attention. Acosta stated that the
news article mentioned the findings of an investigation regard-
ing the misappropriation and financial improprieties of funds
and expenditures by the Respondent’s director (Gail Barouh).
Acosta testified that his coworkers were discussing the article
in the break room because the allegations of financial impropri-
eties by the organization have been on-going for years. Acosta
recalled discussing with one employee who mentioned to him
that the Respondent had misappropriated the cost-of-living
adjustment (COLA) benefits. Acosta said that when he re-
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC. 5
turned to his office, he noticed a letter from Barouh, which was
placed on the desks of all employees, explaining what had oc-
curred and that the Respondent had resolved all the issues men-
tioned in the news article. A fundraising packet was placed
alongside with the Barouh letter which Acosta understood was
his assigned task to raise money in the community for the or-
ganization. Based upon his reading of the news article, Acosta
said he was uncomfortable asking community people for mon-
ey when he was uncertain that the money would actually go
back to the community. Acosta approached his supervisor,
Noel, and told her that he was uncomfortable asking people for
money. Acosta had not fundraised for the Respondent prior to
this request. He also stated he wanted to make sure the money
raised would be used in the community. According to Acosta,
Noel told him not to worry about it. Acosta, dissatisfied with
this response, then approached Keogh with the same concern.
It is unclear from Acosta’s testimony as to what occurred when
he met with Keogh (Tr. 13–18). Acosta was not required to
fundraise and was never disciplined by the Respondent for his
discussion with Noel regarding his refusal to fundraise (Tr. 49,
50).
Acosta testified to a CDC group meeting in February or early
March 2015 with Noel and Keogh.3 At the end of the meeting,
Acosta approached the two supervisors and wanted to know
how wage increases are allocated by the Respondent and
whether employees are entitled to COLA benefits. According
to Acosta, the supervisors did not know the answers and di-
rected him to talk with Robert Nicoletti, the former director of
the human resources department (Tr. 18, 19). Acosta met with
Nicoletti and told him that other employees were concerned and
emotional about not receiving a pay raise for years and he
wanted to know how raises are allocated. Acosta testified that
the employees were reluctant to discuss their wages with man-
agement for fear of retaliation. Acosta was told by Nicoletti
that wage increases were based upon performance evaluations
by the supervisors and upon a change in job titles. Nicoletti
also told Acosta that he was a good employee and “he could go
far” if he did his work. Acosta was not informed by Nicoletti
as to how and when COLA benefits were allocated (Tr. 19–21;
49–51).
In March, the employer requested all employees to again
read, agree, abide and sign the confidentiality policy statement.
Acosta stated he was more cognizant this time of the contents
of the confidentiality statement prohibiting the disclosure of
wages after discussing wages and COLAs with other employ-
ees. Acosta did not object to the first paragraph of the state-
ment policy regarding the maintenance of confidential health
information but was upset with paragraphs three and four that
prohibited employees from discussing wages or speaking to the
media about wages. He stated he would not be silenced about
discussing salaries with other employees or being prohibited
from talking to the media. This time, Acosta signed the state-
ment, but highlighted and underlined the sections that he found

3 The transcript mistakenly identified the Centers for Disease Con-
trol (CDC) as CVC.
offensive and wrote the words “under duress” three times next
to his signature4 (Tr. 21–28).
On March 20, Acosta attended a regularly scheduled meeting
with supervisor Noel. During this meeting, Acosta mentioned
that other employees had requested and received raises. Acosta
inquired of Noel about getting a raise since the timing was at
his 1 year anniversary date of employment. According to
Acosta, Noel laughed and responded, “Oh now you’re asking
for a raise? It seems that everyone is asking for a raise.” Ac-
cording to Ascosta, Noel also said that his job performance was
a “big improvement since November” and she would look into
giving him a raise (Tr. 29, 30). On March 24, Acosta attended
another scheduled meeting with Noel to discuss his work plans.
Acosta testified that towards the end of their meeting, he was
summoned to meet with Nicoletti. Acosta was not informed as
to the purpose of the meeting. Acosta attended the second
meeting and, with trepidation, asked Nicoletti if everything was
alright and whether he was being terminated (Tr. 31). Accord-
ing to Acosta, Nicoletti responded “No, why would you get
fired?” (Tr. 31.). During this time, another official from human
resources and the chief program officer, Ray Ward (Ward),
joined the meeting with Acosta and Nicoletti.
According to Acosta, Nicoletti began the meeting by asking
Acosta, “Marcus, this is a yes or no conversation, there is no
room for discussion” (Tr. 31, 32). Acosta was then handed the
confidentiality statement by Nicoletti and was asked if there
was anything that Acosta did not understand about the state-
ment. Acosta testified
I said yes, I don’t understand why I have to sign a form that
says that I cannot speak about employee wages and executive
salaries or speak to the media when I believe that I have those
rights (Tr. 32).
Acosta testified that Nicoletti became upset and said “sign or
get fired, sign or get fired” (Tr. 32). Acosta said he signed the
form without any portions being highlighted or underlined as he
did earlier, but did hand-wrote “under duress” three times near
his signature (GC Exh. 2; Tr. 31). Acosta stated that Nicoletti
yelled “. . . you just terminated yourself!” after seeing the
words “under duress” on the confidentiality statement (Tr. 32).
Discussion and Analysis
a. Credibility
The credibility resolutions herein have been derived from a
review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witness-
es, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). A credibility determination may rely on a
variety of factors, including the context of the witness’ testimo-
ny, the witness’ demeanor, and the weight of the respective
evidence, established or admitted facts, inherent probabilities,
and reasonable inferences that may be drawn from the record as
a whole. Double D Construction Group, 339 NLRB 303, 305

4 Acosta testified that he requested a copy of his signed confidenti-
ality statement with the highlighted portion and his remark “under
duress” but was refused a copy by his supervisor. Neither the original
nor a copy was made available during the hearing.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). Credibil-
ity findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than
to believe some, but not all, of a witness’ testimony. Daikichi
Sushi, above.
Nicoletti did not testify at the hearing and the General Coun-
sel argues that an adverse inference should be drawn (GC Br. at
6).5 It is unnecessary to draw an adverse inference for his non-
appearance inasmuch as the credible testimony provided by
Acosta stands uncontradicted by the Respondent and I would
accept as to what had occurred consistent with that testimony
and the corroborating evidence of record. Ward testified on
behalf of the Respondent and supported the fact that Acosta
was discharged for writing the words “under duress” three
times near his signature. Ward stated that when Acosta wrote
“under duress” on the confidentiality statement, “. . . Robert
(Nicoletti) told him he just terminated his own employment”
(Tr. 88). Ward insisted that Acosta terminated his own em-
ployment (by writing the words “under duress” next to his sig-
nature) and was not discharged (Tr. 92, 93).
b. Applicable Legal Standard
An employer violates Section 8(a)(1) when it promulgates
and maintains a work rule that reasonably tends to chill em-
ployees in the exercise of their Section 7 rights. Lutheran Her-
itage Village-Livonia, 25 343 NLRB 646, 646–647 (2004);
Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Where the
rule is likely to have a chilling effect on Section 7 rights, the
maintenance of the rule is an unfair labor practice, even absent
evidence of enforcement. In determining whether a challenged
rule is unlawful, however, the rule must be given a reasonable
reading; particular phrases must not be read in isolation, and
improper interference with employee rights must not be pre-
sumed. The Board’s analytical framework for determining
whether the maintenance of a work rule violates Section 8(a)(1)
of the Act was set forth in Lutheran Heritage Village-Livonia
In determining whether a challenged rule is unlawful, the
Board must, however, give the rule a reasonable reading. It
must refrain from reading particular phrases in isolation, and
it must not presume improper interference with employee
rights. Consistent with the foregoing, our inquiry into wheth-
er 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 unlaw-
ful. 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 prom-
ulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.
The General Counsel argues that employees would reasona-
bly construe the language in the confidentiality statement to
prohibit Section 7 activity (GC Br. at 4, 5). The Respondent
argues that none of the policies explicitly restrict protected,

5 Nicoletti was no longer employed by the Respondent at the time of
the hearing.
concerted activities and could not be reasonably construed by
employees to restrict their rights to discuss wages and working
conditions (R. Br. at 13).
c. The Respondent’s Confidentiality Statement Violates
Section 8(a)(1) of the Act
Section 7 of the Act guarantees employees the right “to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection . . . .”
In turn, Section 8(a)(1) of the Act makes it unlawful for an
employer to “interfere with, restrain, or coerce employees in the
exercise of [those] rights.” See, Brighton Retail Inc., 354
NLRB 441, 447 (2009).
The test for evaluating if the employer’s rule violate Section
8(a)(1) is “whether the statements or conduct have a reasonable
tendency to interfere with, restrain or coerce union or protected
activates.” Hills & Dales General Hospital, 360 NLRB No. 70
at slip op. at 5. As with all alleged Section 8(a)(1) violations,
the judge’s task is to “determine how a reasonable employee
would interpret the action or statement of her employer…and
such a determination appropriately takes account of the sur-
rounding circumstances.” The Roomstore, 357 NLRB 1690,
1690 fn. 3 (2011).
The confidentiality statement at issue prohibits employees
from making an unauthorized disclosure of
All non-public information intended for internal purposes to
be an agency trust. This includes, but is not limited to, admin-
istrative information such as salaries, contents of employment
contracts (emphasis added), identities of agency contributors,
staff addresses and phone numbers, internal budgets, and in-
formation discussed at internal meetings.
Disclosure of such information could subject an employee
with disciplinary action to include suspension and termination
for violating the confidentiality statement.
Upon my review, I find that the confidentiality statement is
facially invalid. The legitimate interest of an employer in pro-
tecting its confidential business, the privacy of its clients, and
health-related and customer information has long been recog-
nized under Board law. However, an employer unlawfully
intrudes into its employees’ Section 7 rights when it prohibits
employees, without justification, from discussing among them-
selves their wages and other terms and conditions of employ-
ment. See Hyundai America Shipping Agency Inc., 357 NLRB
860, 880 (2011) (employer violated Sec. 8(a)(1) by maintaining
a provision in its employee handbook stating that “any unau-
thorized disclosure of information from an employee’s person-
nel file is a ground for discipline, including discharge”); Blue
Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976) (em-
ployer violated Sec. 8(a)(1) of the Act by promulgating and
maintaining a rule forbidding employees from discussing their
wages at any time under penalty of dismissal); Jeannette Corp.
v. NLRB, 532 F.2d 916 (3d Cir. 1976) (employer violated Sec.
8(a)(1) by maintaining an unqualified rule prohibiting employ-
ees from discussing their wage rates); Highland Superstores,
301 NLRB 191 (1991) (“An employer violates Section 8(a)(1)
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC. 7
by forbidding employees to discuss wages with other employ-
ees”); Love Culture Inc., 362 NLRB No. 145 (2015).
While I find that the Respondent apparently sought to pre-
vent the disclosure of health-related, proprietary and financial
information, I also find that the Respondent went beyond to
include “salaries and contents of employment contracts,” which
would mean that disclosure of various kinds of information
about employees, such as wages, would also be prohibited. In
Flex Frac Logistics, 358 NLRB 1131 (2012), affd. in relevant
part, 746 F.3d 205 (5th Cir. 2014), the Board restated estab-
lished precedent that “. . . nondisclosure rules with very similar
language are unlawfully overbroad because employees would
reasonably believe that they are prohibited from discussing
wages or other terms and conditions of employment…an activi-
ty protected by Section 7 of the Act,” citing Hyundai America
Shipping Agency, Inc., 357 NLRB 860, 871 (2011); also Lily
Transportation Corp., 362 NLRB No. 54, slip op. at 6 (2015).
I also find no exceptions to the confidentiality statement
which would permit employees to discuss wages, compensation
or any other specific terms and conditions of employment. It
serves little comfort to the Respondent to argue that wages are
public information and the confidentiality statement only pro-
hibits the disclosure of non-public information. The second
sentence of that paragraph states “. . . but is not limited to, ad-
ministrative information such as salaries, contents of employ-
ment contracts..” The confidentiality statement therefore al-
lows employees to reasonably assume that it pertains to—
among other things—certain protected concerted activities,
such as communications about wages and contents of employ-
ment contracts that are critical of the Respondent’s treatment of
its employees. By including non-disclosure of “wages and
contents of employment contracts” in its confidential policy,
the Respondent leaves to the employees the task of determining
what is permissible and “. . . speculate what kind of information
disclose may trigger their discharge.” Flex Frac, above at slip
op. at 10.6
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act by promulgating and maintaining a rule pro-
hibiting employees to discuss wages among themselves and to
speak with the media that has a reasonable tendency to inhibit
employees’ protected activity.7
d. The Respondent Threatened and Discharged Acosta in
Violation of Section 8(a)(1) of the Act
Discipline imposed pursuant to an unlawfully overbroad
company policy violates the Act in those situations in which an
employee violated the policy by (1) engaging in protected con-
duct or (2) engaging in conduct that otherwise implicates the

6 “Board law is settled that ambiguous employer rules-rules that rea-
sonably could be read to have a coercive meaning-are construed against
the employer.” Flex Frac, above, at 2.
7 The Board has also consistently held that company rules prohibit-
ing employees from communicating with the media is also a violation
of the Act. HTH Corp. 356 NLRB 1397 at 1422, 1423 (2011); Double
Eagle, above at 115 (The Board held that a communication rule that
prohibits the dissemination of confidential information concerning the
company by any of its employees to non-employees without the re-
spondent’s approval violated the Act).
concerns underlying Section 7 of the Act. Continental Group,
Inc., 357 NLRB 409, 411–414 (2011); Double Eagle Hotel &
Casino, 341 NLRB 112 at fn. 3 (2004). The General Counsel
alleges that the Respondent violated Section 8(a)(1) threatening
Acosta and discharging him on March 24 because he asserted
his rights under the Act.
In March, Acosta was instructed to sign the confidentiality
statement. Acosta highlighted and underlined the sections of
the statement that he found offensive and signed with the re-
mark “under duress.” Apparently, the Respondent found this
inappropriate and Nicoletti summoned Acosta to a meeting on
March 24 to discuss the confidentiality statement. Nicoletti
told Acosta that this was a “yes or no conversation” and pro-
ceeded to ask Acosta what he did not understand about the
statement. After Acosta explained that the statement prohibited
him and other employees from discussing wages and benefits
among themselves and with the media, Nicoletti demanded at
least two times that Acosta “sign or get fired.”
Ward was present at the March 24 meeting and testified that
the purpose of the meeting was to have Acosta signed the con-
fidentiality statement (Tr. 86). Ward said that the confidentiali-
ty statement was to protect the organization from employees
disclosing sensitive HIV information of patients and financial
information from donators and sponsors of the organization’s
programs (Tr. 87). According to Ward, Acosta insisted that he
would talk with whomever he wants to, but agreed to sign the
document (Tr. 87, 88). However, Acosta again signed the con-
fidentiality statement with the penned in remark “under du-
ress.” Ward said that Nicoletti then told Acosta that he “. . .
just terminated his own employment” (Tr. 88).
The Respondent argues that Acosta was not engaged in pro-
tected, concerted activity through his objection to the confiden-
tiality statement. The Respondent states that Acosta did not
speak to any other employee about the confidentiality statement
and no evidence was presented that other employees objected to
the confidentiality statement or even knew that Acosta had
objected to the statement. The Respondent relied on the
Board’s findings in Meyers I and II for the proposition that an
employee acting alone in complaining about safety issue, with-
out discussing the issue with, or enlisting the support of the
other employees did not engage in concerted activities (R. Br.
at 6–9) (Myers Indus. Inc., v. Prill [Myers I], 268 NLRB 493,
497 (1984); Myers II, 281 NLRB 883 (1986).
I find that Acosta had engaged in concerted activity, though
the General Counsel did not specifically argue this contention
in his brief. Contrary to the Respondent’s assertions, I credit
Acosta’s unrebutted testimony that he held a reasonable belief
that federal and local grants to the Respondent, a not-for-profit
organization, were being improperly diverted and misused by a
management official according to a news article he read in
November 2014. Acosta discussed the contents of the article
with coworkers and they also expressed the same concerns,
especially since their wages and cost-of-living increases are
dependent on the grants and the same money was allegedly
being used for excessive and improper expenditures. Acosta
brought their concerns to his supervisors, Noel, Keogh and
Nicoletti. Acosta specifically did not want to identify the em-
ployees regarding their wage complaints, but did act as their
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spokesperson. Acosta’s performance evaluation also noted that
Acosta often spoke about wages being unfair to the employees
and wanted to know how raises are doled out (R. Exh. 6). As
such, I find that Acosta by seeking to initiate or induce group
action with coworkers and by bringing group complaints to the
attention of management engaged in concerted activities con-
sistent with Meyers Industries, Inc., above.
Moreover, I also find that since the confidentiality statement
is facially invalid in prohibiting discussion amongst employees
about compensation, the comments made by Acosta to his su-
pervisors regarding his wages and a request for a raise are pro-
tected, even if not shown to be concerted. Double Eagle Hotel
& Casino, 341 NLRB 112 (2004). Since the aforesaid policy
was invalid on its face, it was not necessary for the General
Counsel to demonstrate that it was illegally motivated, discrim-
inatorily enforced, or even enforced at all. Congoleum Indus-
tries, 197 NLRB 534, 539 (1972); Lexington Metal Products
Co., 166 NLRB 878 (1967); Farah Manufacturing Co., 187
NLRB 601, 602 (1970). The Board has long adhered to and
applied the principle that discipline imposed pursuant to an
unlawfully overbroad rule is unlawful (the “Double Eagle
rule”). See, e.g., Double Eagle, 341 NLRB at 112 fn. 3; Saia
Motor Freight Line, 333 NLRB 784, 785 (2001); Opryland
Hotel, 323 NLRB 723 (1997); A.T. & S.F. Memorial Hospitals,
234 NLRB 436 (1978); Miller’s Discount Dept. Stores, 198
NLRB 281 (1972), enfd. 496 F.2d 484 (6th Cir. 1974). The
Board has made clear under the Double Eagle rule where an
employee is discharged for violating an unlawful rule, the con-
duct is protected, even if not concerted. As the Board stated in
Continental Group, above, slip op. at 4
Finally, there are situations in which an employer disciplines
an employee pursuant to an overbroad rule for conduct that
touches the concerns animating Section 7 (e.g., conduct that
seeks higher wages) but is not protected by the Act because it
is not concerted. In such situations, it cannot be said that the
employee’s conduct would be protected in the absence of a
lawful employer rule… However, in comparison to the situa-
tion involving employee conduct that is neither for mutual aid
and protection nor concerted (e.g., sleeping on the employer’s
premises while off duty), there is a much greater risk that em-
ployees would be chilled in the exercise of their Section 7
rights. That is, the “chilling effect” rationale for the Double
Eagle rule applies to a greater extent when an employee is
disciplined for conduct that is “protected” but not “concert-
ed.” For this reason, we are convinced that application of the
Double Eagle rule in such instances is appropriate and neces-
sary to fully effectuate the rights guaranteed by Section 7 of
the Act.
According to Ward, when Nicoletti saw that Acosta signed
the confidentiality statement with the penned in remark “under
duress,” Acosta was immediately discharged. Since I have
concluded that the confidentiality statement for which Acosta
was discharged was unlawful, it follows that his discharge was
also unlawful as alleged in the complaint.
An employer can nevertheless avoid liability for discipline
imposed pursuant to an overbroad rule if it can establish that
the employee’s conduct actually interfered with the employee’s
own work or that of other employees or otherwise actually
interfered with the employer’s operations, and that the interfer-
ence, rather than the violation of the rule, was the reason for the
discipline. The employer bears the burden of asserting this
affirmative defense and establishing that the employee’s inter-
ference with production was the actual reason for the discipline.
Continental Group, above slip op. at 4.
The Respondent asserts two affirmative defenses in its an-
swer for Acosta’s discharge, to wit: 1) Acosta resigned his em-
ployment and was not discharged; and 2) Acosta would have
been otherwise discharged due to his erratic conduct prior to
and during the alleged incident of March 24, including his irra-
tional call to the police (see, answer pars.16 and 17). The Re-
spondent also argues that Acosta was discharged when he in-
sisted on signing the confidentiality statement with the remark
“under duress” (R. Br. at 12).
The Respondent’s first defense is without merit. The record
shows and the Respondent conceded and I find that Acosta was
discharged (see, R. Br. at 5). The Respondent next argues that
Acosta had performance problems and that his constant “prick-
ing” of management was degrading the morale of the work-
place (Tr. 34, 35, 68). Ward testified that Acosta stated that he
was being hampered in his work because the Respondent re-
fused to provide him with more information regarding a recent-
ly reported financial audit of the organization (R. Exh. 7).
Ward said that the contents of the audit did not affect Acosta’s
ability to perform because he was already having performance
problems prior to the issuance of the audit report. The record
shows that Acosta had time management issues in completing
his assigned tasks and for not submitting his work reports. His
performance evaluations also noted an incident of insubordina-
tion for refusing an assignment (R. Exhs. 1–6). Ward said that
he noticed “negativity” in Acosta’s performance since Novem-
ber 2014 and that Acosta was very difficult to supervise, but it
was not his place to recommend Acosta’s dismissal (Tr. 84–
86). Ward further testified that Acosta acted erratic and irra-
tional in calling 911 after he had asked for his job back and
Nicoletti refused to rescind his termination. When the 911
operator answered if the call was an emergency, Acosta re-
sponded “no” and terminated the call (Tr. 33, 67, 88, 89).
In my opinion, Ward’s testimony regarding Acosta’s poor
performance and negative attitude towards his job is incon-
sistent with the record. Noel suggested that Acosta focus on his
work and told him to try and “. . . weed out negativity that he is
absorbing amongst certain peers” (R Exh. 6 at 2). Noel did not
state in her evaluation of Acosta that his insistence on discuss-
ing wages, COLA benefits and raises was disruptive to the
organization’s operations. Rather, Noel believed that it was
Acosta’s work performance that has been adversely affected
from the negativity of his coworkers. Obviously, this statement
by Noel is inconsistent with Ward’s assertion that Acosta was
the employee who had the negative attitude. Ward’s belief that
Acosta was disruptive and negative is also inconsistent with
Acosta’s credible testimony that Noel thought his work perfor-
mance had improved by late February and that Noel would
consider him for a raise (Tr. 31).
Additionally, the timing of Acosta’s discharge immediately
after Nicoletti saw the signed confidentiality statement with the
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC. 9
remark “under duress” is strong circumstantial evidence that
Acosta was discharged for not abiding with an unlawful policy,
as well as a discriminatory motive on the part of Nicoletti. See,
e.g., Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C.
Cir. 1999); Hall v. NLRB, 941 F.2d 684, 688 (8th Cir. 1991).
The fact that Acosta’s insistence on signing the confidentiality
statement with the remark “under duress” annoyed management
officials or coworkers does not render his action unprotected.
Ryder Transportation Services, 341 NLRB 761 (2004).
I find that the Respondent’s vague and pretextual explana-
tion that Acosta was negative and lowering the morale of
coworkers is inconsistent with Noel’s assessment that Acosta’s
job performance had improved by March and it was the nega-
tivity of his coworkers that adversely affected his performance
provides even stronger evidence of discriminatory motivation.
See All Pro Vending, 350 NLRB 503, 508 (2007); Rood Truck-
ing Co., 342 NLRB 895, 897 (2004); Laro Maintenance Corp.
v. NLRB, 56 F.3d 224, 230 (D.C. Cir.1995) (pretextual explana-
tion warrants inference that employer desires to conceal an
unlawful motive) (quoting Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966)). Although the Re-
spondent supervisors gave Acosta some indication that they
were unsatisfied with his work in late February, they did not
recommend his discipline or discharge. On March 24, Acosta
was informed of his improved job performance at his supervi-
sory meeting with Noel, but discharged moments later at his
meeting with Nicoletti, further illuminating the fact that the
proffered reason for discharge as pretextual and actually at-
tributable to Acosta’s complaints regarding compensation.8
For all these reasons, I find and conclude that the Respond-
ent’s discharge of Acosta violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has violated Section 8(a)(1) by:
(a) Since March 2015, promulgating and maintaining an
overbroad confidential policy statement prohibiting employees
from discussing wages or other terms and conditions of em-
ployment with employees or non-employees and the media.
(b) Threatened and discharged Marcus Acosta on March 24,
2015, for violating its overbroad and unlawful confidential
policy statement prohibiting employees from discussing their
wages and other terms and conditions of employment with
employees or non-employees and the media.
(c) By the conducted described in paragraphs (a) and (b), the
Respondent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7
of the Act in violation of Section 8(a)(1) of the Act.
3. The Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

8 With regard to the alleged erratic call to 911, I find Acosta’s action
not unreasonable under the circumstances. I would credit Acosta’s
testimony that he was extremely upset with his discharge and acted on
impulse. Acosta then realized calling 911 was against his better judg-
ment and informed the 911 operator that it was not an emergency and
ended the call (Tr. 66, 67).
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. In particular, I shall order the Respondent
to offer Marcus Acosta 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 em-
ployee emoluments, rights or privileges previously enjoyed,
and to make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). In addition, the Respondent must compensate Acosta
for the adverse tax consequences, if any, of receiving a lump-
sum backpay award and to file a report with the Social Security
Administration allocating the backpay award to appropriate
calendar quarters. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014).9
I also shall order the Respondent to remove from its files any
references to the unlawful discharge of Acosta and to notify
him in writing that this has been done and that the unlawful
discharge will not be used against him in any way.

9 The General Counsel’s brief argues that Acosta be reimbursed for
search-for-work and work-related expenses regardless of whether he
received interim earnings in excess of these expenses, or at all, during
any given quarter, or during the overall backpay period. The General
Counsel makes a strong argument that reimbursement is appropriate
under the Act for such search-for-work and work related expenses. I
would note that all remedial relief flows from the simple premise that a
victim of discrimination should be as nearly as possible be placed in the
position he or she would have been in but for the prohibited discrimina-
tion. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). Compensa-
tory damages consist of a wide variety of relief including pecuniary and
nonpecuniary damages. Pecuniary damages are intended compensation
for out-of-pocket expenses incurred as a result of the employer’s un-
lawful action and may include job-hunting, stationary and postage,
telephone expenses, resume services, fees referral, costs of transporta-
tion interviewing for jobs and other job search fees. The 1991 Civil
Rights Act made available compensatory damages in employment
discrimination cases and such damages are intended to compensate a
victim of discrimination for losses or suffering caused by the discrimi-
natory act. Carey v. Piphus, 435 U.S. 247, 254 (1978). Compensation
for similar out-of-pocket work related expenses for victims of unfair
labor practices under the Act would not be unreasonable, and I would
note that the backpay remedy under Title VII of the Civil Rights Act of
1964 was in fact modeled on the backpay provisions of the NLRB Act
and its backpay remedy is a “make whole” remedy. Albemarle at 419,
above. Nevertheless, such a change must come from the Board. In
Katch Kan, 362 NLRB No. 162 (2015) at fn. 2, the Board stated “. . .
because the relief sought (out-of-pocket work related expenses) would
involve a change in Board law, we believe that the appropriateness of
this proposed remedy should be resolved after a full briefing by the
affected parties, and there has been no such briefing in this case. Ac-
cordingly, we decline to order this relief at this time. See, e.g., Ishika-
wa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d
534 (6th Cir. 2004), and cases cited therein.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Long Island Associating for AIDS Care,
Inc., Hauppauge, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining any rule prohibiting em-
ployees from discussing their wages and other terms and condi-
tions of their employment with employees or non-employees
and the media.
(b) Threaten discharge or discipline employees due to a vio-
lation of an overbroad and unlawful confidentiality policy
statement prohibiting employees from discussing their wages
and other terms and conditions of employment with employees
or non-employees and the media.
(c) Discharge employees due to a violation of an overbroad
and unlawful confidentiality policy statement prohibiting em-
ployees from discussing their wages and other terms and condi-
tions of employment with employees or non-employees and the
media.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind paragraphs 3 and 4 from the Respondent’s Con-
fidentiality Statement prohibiting employees from discussing
their wages and other terms and conditions of their employment
with non-employees and the media.
(b) Remove from its files and records all references to the
Confidentiality Statement prohibiting employees from discuss-
ing wages and other terms of employment with non-employees
and the media and notify employees that this had been done and
that the prohibition in discussing wages and other terms and
conditions of their employment with non-employees and the
media is no longer in force.
(c) Within 14 days from the date of this Order, offer Marcus
Acosta 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 employee emoluments,
rights or privileges he previously enjoyed.
(d) Make Marcus Acosta whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of this deci-
sion.
(e) Compensate Marcus Acosta for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
(f) Within 14 days from the date of this Order, remove from
its files any references to the unlawful discharge of Marcus

10 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.
Acosta, and, within 3 days thereafter, notify him in writing that
this had been done and that his unlawful discharge will not be
used against him in any way.
(g) Within 14 days after service by the Region, post at Re-
spondent’s facility at 60 Adams Avenue, Hauppauge, New
York, copies of the attached notice marked “Appendix.”11 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 days in conspicuous places including all
places were 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 intra-
net or internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by
any other material. 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 Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent in the position employed by the Re-
spondent at any time since March 1, 20115.
(h) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Regional Director
attesting to the steps the Respondent has taken to comply.
Dated: Washington, D.C. August 26, 2015
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 promulgate and maintain a Confidentiality
Statement that prohibits you from discussing their wages and
other terms and conditions of employment with employees or
non-employees and the media.

11 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.”
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC. 11
WE WILL NOT require and coerce you to sign a Confidentiali-
ty Statement as described above.
WE WILL NOT threaten to discipline or discharge or otherwise
discriminate against you because you engage in protected con-
certed activities or to discourage you from engaging in these or
other concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, rescind
paragraphs 3 and 4 from our Confidentiality Statement.
WE WILL, within 14 days from the date of this Order, offer
Marcus Acosta 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 employee emol-
uments, rights or privileges he previously enjoyed.
WE WILL make Marcus Acosta whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him.
WE WILL compensate Marcus Acosta for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order, remove
from our files any references to the unlawful discharge of Mar-
cus Acosta, and WE WILL, within 3 days thereafter, notify him in
writing that this had been done and that his discharge will not
be used against him in any way.
LONG ISLAND ASSOCIATION FOR AIDS CARE, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–149012 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.