MCPc, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 2014

360 N.L.R.B. 216 (N.L.R.B. 2014)

216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 39
MCPC, Inc. and Jason Galanter. Case 06–CA–063690
February 6, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On June 7, 2012, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) by maintaining an overly broad con-
fidentiality rule in its employee handbook stating that
“dissemination of confidential information within [the
company], such as personal or financial information, etc.,
will subject the responsible employee to disciplinary
action or possible termination.” Employees would rea-
sonably construe this rule to prohibit discussion of wages
or other terms and conditions of employment with their
coworkers—activity protected by Section 7 of the Act.
See Hyundai America Shipping Agency, 357 NLRB 860,
860, 871 (2011); and Cintas Corp., 344 NLRB 943, 943
(2005), enfd. in relevant part 482 F.3d 463 (D.C. Cir.
2007).4

1 In light of our disposition of this case, we find it unnecessary to
pass on the General Counsel’s argument that the Respondent’s excep-
tions contravened Sec. 102.46(b)(1) of the Board’s Rules and Regula-
tions because they impermissibly contained legal argument, given that
the Respondent also filed a supporting brief.
2 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.
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, to require the Respondent to
compensate employee Jason Galanter 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 Galanter’s backpay award
to the appropriate calendar quarters. We have substituted a new notice
to conform to the Order as modified.
4 Member Miscimarra agrees that the Respondent’s confidentiality
rule violated Sec. 8(a)(1) because it would prohibit protected employee
discussions regarding compensation without other important justifica-
tions, and this aspect of the rule was a basis for the employer’s actions
in this case; but Member Miscimarra does not agree with the current
Board standard regarding alleged overly broad rules and policies, which
2. We also agree with the judge, for the reasons he
gives and those discussed below, that the Respondent
violated Section 8(a)(1) by discharging employee Jason
Galanter for his protected concerted activity. On Febru-
ary 24, 2011, Dominic Del Balso, the Respondent’s di-
rector of engineering, held a team building lunch meeting
with Galanter and several other employees. During the
meeting, the group discussed the employees’ heavy
workloads—a well-known employee complaint—and
Galanter urged the Respondent to hire additional engi-
neers to alleviate those workloads. In support of his
point, Galanter mentioned the recent hiring of a corporate
executive and stated that, for the $400,000 salary the
Respondent was paying to the executive, it could have
hired additional engineers. Two other employees present
at the meeting expressed their agreement with Galanter.
The Respondent later discharged Galanter based on his
comments at that meeting, in particular accusing him of
improperly accessing computer files to discover the ex-
ecutive’s salary in violation of the Respondent’s confi-
dentiality policy.
In agreement with the judge, we find that Galanter en-
gaged in concerted activity when discussing with other
employees their terms and conditions of employment—
staffing shortages resulting in heavy workloads—which
constituted protected concerted activity under Meyers
Industries, 281 NLRB 882 (1986), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988). See Worldmark by Wyndham, 356
NLRB 765, 767 (2011) (“[T]he Board has consistently
found activity concerted when, in front of their cowork-
ers, single employees protest changes to employment
terms common to all employees.”). The concerted nature
of Galanter’s actions also is evident in the fact that the
discussion about employee workloads occurred at a
group meeting characterized by Del Balso himself as
involving “team building,”5 and that two of Galanter’s

is set forth as the first prong of Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004) (finding rules and policies unlawful, even if
they do not explicitly restrict protected activity and are not applied
against or promulgated in response to such activity, where “employees
would reasonably construe the language to prohibit Section 7 activity”).
He advocates a reexamination of this standard in an appropriate future
case.
5 The Board has stated that “in a group-meeting context, a concerted
objective may be inferred from the circumstances.” Whittaker Corp.,
289 NLRB 933, 934 (1988). Here, however, no inference is necessary.
The several employees at the meeting were discussing with Del Balso
how busy they were, how many hours they were working, and the need
for the Respondent to hire more engineers. Thus, when Galanter con-
tributed to that discussion, it would have been apparent that he was
acting “with . . . other employees, and not solely by and on behalf of
. . . himself.” Meyers Industries, 268 NLRB 493, 497 (1984), remand-
ed sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied
MCPC, INC. 217
colleagues participated in the discussion by expressing
agreement with Galanter’s comments.6 Thus, the record
supports the judge’s finding that the Respondent dis-
charged Galanter for activity that was protected by the
Act.7
In so finding, we reject the Respondent’s argument
that its discharge of Galanter was lawful under NLRB v.
Burnup & Sims, 379 U.S. 21 (1964), because it was
based on a good-faith belief that Galanter obtained con-
fidential information about executive pay by improperly
accessing the Respondent’s computer records. Burnup &
Sims does not apply here. Under Burnup & Sims, an
employer does not violate Section 8(a)(1) when it dis-
charges an employee based on a good-faith belief that the
employee engaged in misconduct in the course of other-
wise protected activity, unless the General Counsel
shows that the employer’s belief was mistaken. See id.
at 23. Here, however, the Respondent does not contend
that Galanter engaged in misconduct in the course of his
protected concerted activity of voicing concerns about
the employees’ terms and conditions of employment at
the team-building meeting. It contends that he improper-
ly accessed confidential records sometime prior to his
protected concerted activity. But even assuming the ap-
plicability of Burnup & Sims, and further assuming that
the Respondent honestly believed Galanter improperly
accessed its computer records, we agree with the judge,
for the reasons he gives, that the General Counsel estab-
lished that this purported misconduct did not, in fact,
occur. The Respondent’s Burnup & Sims argument thus
fails in any event. See Accurate Wire Harness, 335
NLRB 1096, 1097 (2001), enfd. 86 Fed. Appx. 815 (6th
Cir. 2003) (rejecting employer’s Burnup & Sims argu-
ment where the General Counsel established that the em-
ployee’s alleged misconduct did not occur).8

474 U.S. 948 (1985). In finding that Galanter engaged in concerted
activity, Member Miscimarra relies solely on this rationale. He finds it
unnecessary to rely on Worldmark by Wyndham, supra.
6 See Worldmark by Wyndham, supra at 766–767 (finding that any
doubt about the concerted nature of one employee’s statements at a
group meeting was removed when a second employee joined them);
Neff-Perkins, 315 NLRB 1229, 1229 fn. 1 (1994) (finding that two
employees were engaged in concerted activity when they raised ques-
tions concerning working conditions at a group meeting).
7 Because we agree with the judge that the Respondent discharged
Galanter for his protected concerted activity at the February 24, 2011
team building meeting, we find it unnecessary to reach the judge’s
alternative rationale that Galanter’s discharge was unlawful under
Continental Group, 357 NLRB 409 (2011).
8 The Respondent also argued to the judge that its discharge of Ga-
lanter was lawful under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), but the
judge rejected that argument, finding that the Respondent’s proffered
reason for Galanter’s discharge was pretextual. The Respondent does
not except to this finding.
Accordingly, we affirm the judge’s finding that the
Respondent violated Section 8(a)(1) by discharging Ga-
lanter for his protected concerted activity.
ORDER
The National Labor Relations Board orders that the
Respondent, MCPc, Inc., Cleveland, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an overly broad confidentiality rule
stating that “dissemination of confidential information
within [the company], such as personal or financial in-
formation, etc., will subject the responsible employee to
disciplinary action or possible termination.”
(b) Discharging or otherwise discriminating against
employees because they engaged in protected concerted
activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the confidentiality rule maintained in its
employee handbook stating that “dissemination of confi-
dential information within [the company], such as per-
sonal or financial information, etc., will subject the re-
sponsible employee to disciplinary action or possible
termination.”
(b) Within 14 days from the date of this Order, offer
Jason Galanter full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(c) Make Jason Galanter 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.
(d) Compensate Jason Galanter for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to Jason Galanter’s
unlawful discharge, and within 3 days thereafter, notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
(f) 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Furnish employees with an insert for the current
employee handbook that (1) advises that the unlawful
confidentiality provision has been rescinded, or (2) pro-
vides a lawfully worded provision on adhesive backing
that will cover the unlawful provision; or publish and
distribute to employees revised employee handbooks that
(1) do not contain the unlawful provision, or (2) provide
a lawfully worded provision.
(h) Within 14 days after service by the Region, post at
its Pittsburgh, Pennsylvania facility copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent custom-
arily 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 cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since March 4, 2011.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO

9 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.”
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain an overly broad confidentiality
rule stating that “dissemination of confidential infor-
mation within [the company], such as personal or finan-
cial information, etc., will subject the responsible em-
ployee to disciplinary action or possible termination.”
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the overly broad confidentiality rule
maintained in our employee handbook.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jason Galanter 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 previously enjoyed.
WE WILL make Jason Galanter whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Jason Galanter for the adverse
tax consequences, if any, of receiving a lump sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Jason Galanter, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL furnish you with an insert for the current em-
ployee handbook that (1) advises that the unlawful provi-
sion has been rescinded, or (2) provides a lawfully word-
ed provision on adhesive backing that will cover the un-
lawful provision; or WE WILL publish and distribute re-
vised employee handbooks that (1) do not contain the
unlawful provision, or (2) provide a lawfully worded
provision.
MCPC, INC.
MCPC, INC. 219
Julie Stern, Esq., for the General Counsel.
Dean F. Falavolito, Esq. (Burns White, LLC), of Pittsburgh,
Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Pittsburgh, Pennsylvania, on March 20–21, 2012.
Jason Galanter filed the charge on August 30, 2011,1 and the
General Counsel issued the complaint on December 30. As
amended, the complaint alleged that MCPc, Inc. (the Company
or Respondent) violated Section 8(a)(1) of the National Labor
Relations Act (the Act)2 by: (1) discharging Galanter on about
March 4; and (2) maintaining an unlawfully broad confidential-
ity rule. The Company filed an amended answer denying the
material allegations in the complaint.
On the entire record3 and after considering the briefs filed by
the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, with an office and place
of business in Pittsburgh, Pennsylvania, has been engaged in
the business of providing technology products and services.
During the 12-month period ending July 31, 2011, the Compa-
ny, in conducting the aforementioned business operations, per-
formed services valued in excess of $50,000 in States other
than the Commonwealth of Pennsylvania. At all material
times, the Company has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.4
II. THE PARTIES
A. The Company
The Company’s headquarters are located in the Cleveland,
Ohio area. Field offices are located in Pittsburgh and Buffalo,
New York. It has several field offices, including two located in
Pittsburgh, Pennsylvania, and Buffalo, New York. The field
office at issue here is in Pittsburgh. The Pittsburgh office has
approximately 30 employees, including sales representatives,
computer solutions architects, and computer network engi-
neers.5
The Company’s managerial and supervisory staff includes:
Michael Trebilcock—chief executive officer and chairman;

1 All dates are in 2011, unless otherwise indicated.
2 29 U.S.C. §§ 151–169.
3 The General Counsel’s unopposed motion to correct the transcript,
dated April 25, 2012, is granted and received in evidence as GC Exh.
13.
4 The Company denied the legal conclusion that it was engaged in
interstate commerce but admitted the essential jurisdictional facts (“per-
formed services valued in excess of $50,000 in states other than the
Commonwealth of Pennsylvania” in the course of its business opera-
tions).
5 The office is actually located in the city of Strongsville, a suburb
of Cleveland. As the parties tended to refer to its operations there as the
Cleveland office, I refer to it as such. (Tr. 16–17.)
Theodore Hervol—regional president,6 Pittsburgh office; Beth
Stec—vice president of human resource and communication;
Domenic Del Balso—director of engineering; Jeff Kaiser—
information technology manager; and Dale Phillips—
supervisor.7 The following employees are or were employed in
the Pittsburgh office: Jason Galanter and Jeremy Farmer, as
solutions architects; and Daniel Tamburino and Brian Sawyers,
as network engineers. Nancy Damin and Greg Jurkowski are
sales representatives in the Buffalo office.
All employees are issued a copy of the Company’s employee
handbook (the handbook). In the absence of a written employ-
ment agreement, each employee signs an acknowledgement of
the following: receipt of the handbook; understanding that the
employment relationship is “at will;” and an understanding as
to the Company’s guidelines for the use of its computer and
telecommunications equipment and services.8 The handbook
contains the Company’s employee policies, including the fol-
lowing provision relating to the dissemination of confidential
information:
[The Company] is engaged in sales, service and distribution,
which requires that a strict code of confidentiality be main-
tained. No employee will store information outside of [the
Company] (either written or electronic form) about any matter
pertaining to the conduct of [the Company’s] business. No in-
formation regarding [the Company’s] purchase prices or pro-
cesses shall be given to anybody without permission of senior
management. Conversations regarding prices, service, prob-
lems, or other information specifically about one vendor or
customer to another are prohibited. Any employee who com-
promises information may be subject to disciplinary action or
possible dismissal. In addition, idle gossip or dissemination of
confidential information within [the Company], such as per-
sonal or financial information, etc. will subject the responsi-
ble employee todisciplinary action or possible termination.9
[Emphasis added.]
B. Jason Galanter
Galanter was hired in 2007 as a solutions architect in the
Company’s Pittsburgh office. During his employment by the
Company, Galanter was neither disciplined nor informed about

6 The General Counsel does not allege that Hervol was a statutory
supervisor or agent within the context of this case. He was not Ga-
lanter’s supervisor at the relevant time and his testimony was limited to
background information. (Tr. 145–156.)
7 The Company stipulated that Trebilcock, Del Balso, and Phillips
are supervisors within the meaning of Sec. 2(11) of the Act. It also
stipulated that Stec, Kaiser, Trebilcock, Del Balso, and Phillips are
agents within the meaning of Sec. 2(13) of the Act. (GC Exh. 2; Tr. 7–
8.)
8 Galanter acknowledged its receipt on October 10, 2007. (R. Exh.
1.)
9 The Company’s answer denied that the italicized portion of the
Handbook’s confidentiality provision, “in and of itself, represents a
controlling policy at [the Company].” (GC Exh. 1(h), p. 2.) Since the
undisputed testimony and evidence revealed that the provision re-
mained in effect, it appears that the Company was simply asserting that
the quoted portion, standing alone, was being taken out of context. (GC
Exh. 3(b), p. 2; GC Exh. 9, p. 5; Tr. 32–34, 111–113, 125.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
any concerns with his performance. His most recent perfor-
mance review, in 2009, was positive. There were several in-
stances in which clients requested that their projects be reas-
signed from Galanter to someone else. However, such requests
were neither unusual nor limited to Galanter’s accounts.10
Since December 2010, Galanter had two assignments––
assisting customers of the Buffalo office and designing the
Company’s call center. Due to a shortage of engineers, the call
center assignment also required Galanter to implement the sys-
tem by integrating it with the Company’s computer system. In
order to accomplish that objective, Galanter was granted special
access to the Company’s computer system by Information
Technology Manager Jeff Kaiser. In addition, Galanter was
working on installing certificates to encrypt traffic between
websites and employee email accounts.11
In connection with the call center project, Galanter had ac-
cess to certain files which enabled him to make changes to the
Company’s computer network. This access enabled Galanter to
connect email accounts to voice mail accounts. He had access
to human resource files, but did not attempt to access those
records.12 In or around February 2011, Galanter was notified
that the internet operations of all employees with authorized
access to the Company’s email system would be audited. No
problem was found with respect to Galanter’s accessing of the
Company’s computer network systems.13

10 In light of an employment history in which the Company never
gave Galanter a less than adequate performance evaluation or coun-
seled him about customer and employee relations, Hervol’s attempt to
portray a backdrop of adversity surrounding Galanter’s relationship
with customers and coworkers appeared exaggerated. He explained
that at least one customer asked that Galanter’s work on their account
be transferred to someone else after he accused the client of dishonesty.
Harvol also added that Galanter’s relationship with another employee
was, at times, confrontational. It is evident that Galanter was not guided
by the notion that the “customer is always right.” Nor is it difficult to
envision from his gruff demeanor on the witness stand how he might
have encountered difficulty interacting with a coworker. However,
Hervol conceded that customer requests for changes in assigned staff
were not unusual. More importantly, Galanter was never counseled or
disciplined for either situation. (Tr. 30–31, 36, 60, 65, 147, 150–151,
154–156; GC Exh. 7.)
11 GC Exh. 11; Tr. 18, 36, 165–166, 173.
12 The General Counsel cites McAllister Towing & Transportation
Co., 341 NLRB 394, 396 (2004), enfd. 156 Fed. Appx. 386 (2d Cir.
2005), in support of its contention that R. Exh. 2, a printout previously
produced in response to a subpoena duces tecum, not be afforded any
weight. The printout generated by Kaiser showing Galanter’s access to
the Company’s computer network systems was not the complete docu-
ment that Kaiser submitted to the human resources department. (Tr.
137–138.) The Company’s failure to account for the missing portion,
which would have supported Kaiser’s contention that Galanter had
access to human resource files, was somewhat suspicious. (Tr. 139–
140, 163–164.) Nevertheless, Galanter did not dispute that he had
access to those files as well. On the one hand, he denied Kaiser’s tes-
timony that he was not authorized to access certain files, including
those maintained by human resources. On the other hand, he seemed to
indicate that he had access to all human resources files. (Tr. 130–136,
165–173; GC Exh. 11–12.)
13 The audit corroborated Galanter’s contention that he did not en-
gage in any unauthorized access of company files. (Tr. 26–29.) It also
undermines the testimony of company witnesses who assumed that he
III. GALANTER COMPLAINS ABOUT EXECUTIVE COMPENSATION
Occasionally, supervisors and managers based in the Cleve-
land office visited the Pittsburgh office to check on the em-
ployees.14 On or about February 24, 2011, Del Balso, the
Company’s director of engineering, visited the Pittsburgh of-
fice. As was customary, he invited several employees to lunch
for an exercise in “team-building.” His range of invitees gener-
ally included anyone who was in the office during his visit.
Four employees accepted the invitation: two engineers, Dan
Tamburino and Brian Sawyers; and two solutions architects,
Galanter and Jeremy Farmer. During this lunch meeting, there
was discussion about the heavy workload. Galanter expressed
concern that he was working many hours per week and urged
that the Company hire additional engineers to alleviate employ-
ee workloads. Del Balso acknowledged the shortage of engi-
neers.15
In support of his point about employee workloads, Galanter
mentioned the Company’s recent hiring of an executive named
Peter DeMarco. He explained that the Company could have
hired several engineers for the $400,000 salary that it was pay-
ing DeMarco. Sawyers and Tamburino agreed.16 Del Balso
acknowledged the point but did not ask Galanter where he ac-
quired that information.17 In fact, Galanter’s statement was
based on a combination of employee rumors and an estimate
derived from internet research that he conducted several weeks
earlier after learning of the new executive’s hiring. In that
research, Galanter focused on the newly hired executive’s pre-
vious company and learned that a comparable pay salary for a
similar position in 2008 was $362,500.18
At some point after the February 24 lunch, Del Balso in-
formed Trebilcock of Galanter’s comments regarding executive
compensation. Trebilcock responded by directing Stec to re-
view Galanter’s access to the Company’s computer network.19

did because of his access. (Tr. 115–116, 127–136, 165–173; R. Exh. 2,
12.)
14 It appears that Del Balso and Phillips were the two most frequent
visitors from the main office to the Pittsburgh office. (Tr. 18–20, 41–
42, 74–75, 100, 148.)
15 I did not credit Del Balso’s testimony regarding the meeting. He
had spotty recollection as to what Galanter and others discussed at this
“team-building” lunch. Del Balso vaguely recalled a statement about
the need to hire more engineers, but does not recall who made it or
what else was discussed. (Tr. 99–108.) On the other hand, attendees
Daniel Tamborino (Tr. 70–74) and Jeffrey Farmer (Tr. 84–91) corrobo-
rated Galanter’s testimony that the subjects of heavy workloads, a
shortage of engineers, and newly hired and high paid executives came
up during the lunch. (Tr. 19–22, 44–45, 49–53.)
16 Galanter testified that he mentioned Andy Jones as the executive
who was paid $400,000 (Tr. 21, 44–45), Farmer, however, testified that
Galanter referred to Peter DeMarco as the executive who was recently
hired at a salary of $400,000. I found the spontaneity and detail of
Farmer’s testimony more credible. (Tr. 84–86, 89–90.)
17 I based this finding on the collective, but credible testimony, of
Galanter, Farmer, and Tamburino that the issue of executive compensa-
tion came up at the meeting. (Tr. 21–25, 44–45, 51, 63, 71–76, 86–88.)
18 Galanter’s testimony on this point was credible and unrefuted. (Tr.
39–40, 45–48, 63; GC Exh. 6.)
19 I did not credit Trebilcock’s testimony that Doug Campbell, an
engineer, was the sole source of his information about the information
MCPC, INC. 221
Stec, in turn, asked Kaiser, the Company’s IT manager, to re-
port on Galanter’s access to the Company’s electronic network
systems. After researching the Company’s systems, Kaiser
informed Stec that Galanter had full access (admin rights) to all
network systems and email due to his work on the call center
project.20
IV. GALANTER’S DISCHARGE
About a week after the lunch meeting, Phillips directed Ga-
lanter to attend a meeting at the Cleveland office. Galanter
complied, traveled to the Cleveland office on March 4 and was
met by Trebilcock and Stec. At the outset, Trebilcock asked
Galanter to tell him about the February 24 lunch meeting. Ga-
lanter explained to Trebilcock that he and the other employees
complained to Del Balso about the high salary being paid to a
newly hired executive at a time when they needed more engi-
neers. Trebilcock asked Galanter where he obtained the salary
information that he mentioned at the meeting. Galanter denied
that anyone told him and alternated between several vague
possibilities—that the information was available on the internet
and was the topic of discussion among many employees (water
cooler talk). Trebilcock responded that he heard that Galanter
mentioned the salary amount at the February 24 lunch.21 Ga-
lanter relented and suggested he may have heard it from Damin
and Jurkowski in the Buffalo office. Trebilcock left the room
and spoke to Damin by telephone. She denied any knowledge
of the salary at issue, much less spreading information about it.
Trebilcock returned to the meeting with Galanter, informed him
of Damin’s denial and showed him a printout. Trebilcock said
the printout indicated that Galanter had unusual access to the
Company’s computer system and accused Galanter of disclos-
ing the amount of Peter DeMarco’s compensation. Galanter
admitted mentioning that salary amount, but insisted he was
referring to a different executive, Andy Jones.22 Galanter ad-
mitted that he mentioned a salary in the $400,000 range, but
insisted that all of his access was authorized in accordance with

being circulated by Galanter about the level of executive compensation.
(Tr. 114–115, 125–126.) I find it extremely likely that Del Balso, one
of the Company’s high level individuals who periodically visited the
Pittsburgh office, informed Trebilcock about Galanter’s remarks at the
February 24 lunch.
20 Trebilcock’s vague explanation regarding his subsequent actions,
as well as the information he obtained from the purported investigation
that followed, was not credible. (Tr. 115–116.) According to Kaiser,
Stec, who did not testify, specifically directed Kaiser to review and
report on Galanter’s IT access. She did not direct Kaiser to review
anyone else’s access. (Tr. 130, 132–133.)
21 Trebilcock essentially corroborated Galanter’s testimony that the
former knew about the February 24 lunch meeting: “You know, my
memory is that he denied having any involvement with it. I think I
shared with him that, you know, the people at lunch weren’t making it
up.” (Tr. 26–28, 116–117.)
22 I do not credit Galanter’s testimony that he mentioned Andy
Jones, rather than Peter DeMarco, at the February 24 lunch. (Tr. 21–23,
49, 58.) As noted at fn. 16, infra, Farmer, whom I found more credible,
testified that Galanter specifically mentioned DeMarco at that meeting.
(Tr. 86.) Consistent with Galanter’s defensive posture on March 4,
however, I find it more likely that he only invoked Jones’ name when
confronted by Trebilcock at that time. (Tr. 34–35, 120–121.)
his assigned project. Trebilcock responded that he had a “gut
feeling” that Galanter “didn’t do anything wrong here, but the
damage is done.” He concluded with a remark that he was very
embarrassed about the information “getting out,” said the Com-
pany and Galanter needed to “divorce” and left the room.23
After an audit by Kaiser of his personal computer, Galanter
was escorted from the facility.24 Galanter was not provided
with a written explanation for his termination.25 However, the
facts and circumstances indicate that he was terminated because
he disclosed DeMarco’s salary information in violation of the
Company’s confidentiality policy.26
Legal Analysis
The General Counsel alleges that the Company violated Sec-
tion 8(a)(1) of the Act by (1) maintaining an overly broad con-
fidentiality policy; (2) discharging Galanter because he engaged
in protected concerted activity; and (3) discharging Galanter
because he violated the Company’s unlawfully overbroad con-
fidentiality rule. The Company denies that its controlling con-
fidentiality policy violates the Act and contends that Galanter’s
activity was neither concerted nor protected under the Act.
Finally, the Company claims that, regardless of any protected
activity, it would have still discharged Galanter for improperly
obtaining and/or disclosing another employee’s confidential
salary information.
I. THE CONFIDENTIALITY POLICY
The General Counsel contends that the Company’s confiden-
tiality rule violates Section 8(a)(1) of the Act. The Company’s
handbook contains a provision that begins by requiring its em-
ployees to maintain the confidentiality of information regarding
“the conduct of [the Company’s] business . . . purchase prices
or processes . . . prices, service, problems, or other information
specifically about one vendor or customer.” There appears to

23 Galanter’s testimony revealed that he was purposely vague and
evasive in his explanation to Trebilcock as to where he obtained the
salary information: “At which point, I said no one told me the number.
This is something that it was available on the internet. It’s available
from water cooler talk.” (Tr. 27.) On cross-examination, he expanded
on his answer to include other possible sources: “[A]nd I said I might
have heard it from Greg. I might have heard it from Nancy, and I also
said I got information from the internet, so there were a lot of people
discussing this.” (Tr. 55–58.) Notwithstanding Galanter’s inconsisten-
cies as to his statements at the meeting, Trebilcock conceded that he
made the “gut feeling” remark (Tr. 28, 120–121.) and followed up on
Galanter’s references to Damin and Jurkowski. (Tr. 117–119.)
24 The clear inference from Kaiser’s audit of Galanter’s personal
computer is that there was no confidential company information on it.
(Tr. 28, 133.) I did not, however, attribute weight to Galanter’s testi-
mony that he spoke with Phillips the following day and the latter ex-
pressed surprise at his discharge, did not believe that Galanter divulged
confidential information and apologized. There was insufficient evi-
dence showing that Phillips was privy to the decisionmaking process
that led to Galanter’s discharge. (Tr. 29–32.)
25 While it is possible that he may, in fact, have received a termina-
tion letter, Galanter did not mention that and Stec did not testify. In
any event, there is no documentation that he was actually terminated for
violating the Company’s confidentiality provision.
26 The parties concur that that Galanter was terminated because he
violated the Company’s confidentiality policy. (GC Exh. 5.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
be no dispute over the validity of this portion of the rule since it
is “designed to protect the confidentiality of [the Company’s]
proprietary business information.” See Mediaone of Greater
Florida, 340 NLRB 277, 279 (2003) (upholding a confidentiali-
ty rule that employees “would reasonably understand” not “to
prohibit discussion of employee wages” and that was not en-
forced “against employees for engaging in [Section 7] activi-
ty”); Super K-Mart, 330 NLRB 263 (1999) (affirming the em-
ployer’s “legitimate interest in maintaining the confidentiality
of its private business information” by prohibiting the disclo-
sure of “company business and documents” without “prohib-
it[ing] employees from discussing their terms and conditions of
employment”).
However, the General Counsel challenges the final part of
the Company’s confidentiality rule, which prohibits “idle gos-
sip or dissemination of confidential information within [the
Company], such as personal or financial information,” as un-
lawfully overbroad. The Company argues that its policy (1)
does not violate the Act, (2) has been taken out of context, and
(3) is justified by its legitimate business interests. The Board
has established that to determine “whether the mere mainte-
nance of rules . . . violates Section 8(a)(1), the appropriate in-
quiry is whether the rules would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights.” See Lafayette
Park Hotel, 326 NLRB 824, 825 (1998) (holding that maintain-
ing rules that are likely to chill Sec. 7 rights “is an unfair labor
practice, even absent evidence of enforcement”).
The first prong in this inquiry is whether the maintenance of
the challenged rule “explicitly restricts activities protected by
Section 7.” See Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004) (instructing that the rule must be given “a reasona-
ble reading” and advising against “reading particular phrases in
isolation [or] . . . presum[ing] improper interference with em-
ployee rights”). A rule is facially invalid if it functionally ren-
ders employees “incapable of organizing a union or exercising
their other statutory rights under the [the Act].” See Adtranz
ABB Daimler-Benz Transportation. v. NLRB, 253 F.3d 19, 25–
26 (D.C. Cir. 2001) (dismissing a rule’s “unrealized potential to
chill the exercise of protected activity”). Here, the Company’s
confidentiality rule survives this initial test because protected
concerted activities cannot be considered “idle,” and its scope
is otherwise limited to the “dissemination of confidential in-
formation” within the Company. Cf. Compuware v. NLRB, 134
F.3d 1285, 1290 (6th Cir. 1998) (finding a rule against com-
plaining about working conditions to third parties to be facially
invalid because it did not “strike any sort of balance between
employee rights and the legitimate concerns” of the employer).
The Company’s rule is facially neutral in that it does not con-
demn conduct that is “inherently entwined with Section 7 activ-
ity.” See Fiesta Hotel Corp., 344 NLRB 1363, 1368 (2005)
(explaining that the “principle [of construing ambiguities
against the drafter] has generally been applied to rules limiting
solicitation or distribution of literature”). Moreover, the Com-
pany’s failure to clearly define the term “confidential infor-
mation” is not determinative. See Lafayette Park Hotel, 326
NLRB at 827 (finding that “[d]espite [an] undefined term, the
rule [was] not ambiguous”).
Nonetheless, the policy is still unlawfully overbroad if “(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.” Lutheran Heritage Village-
Livonia, 343 NLRB at 646; Lafayette Park Hotel, 326 NLRB at
828 (explaining that “any ambiguity in the rule must be con-
strued against the Company as the promulgator of the rule”).
The Board has established that “discussion of wages is part of
organizational activity and employers may not prohibit em-
ployees from discussing their own wages or attempting to de-
termine what other employees are paid.” Mediaone, 340 NLRB
at 279; NLS Group, 352 NLRB 744, 745 (2008) (striking down
a confidentiality policy as unlawfully overbroad because
“[e]mployees would reasonably understand [its] language as
prohibiting discussions of their compensation with union repre-
sentatives”); Northfield Urgent Care, 358 NLRB 70, 92 (2012)
(prohibiting rules “against discussions among employees re-
garding their pay”). Furthermore, an employer policy violates
the Act if it “proscribes statements and conduct that consist of
complaints about management’s conduct or other working con-
ditions.” See Salon/Spa at Boro, 356 NLRB 444, 557 (2010)
(declaring a policy overbroad because it “chill[ed] the employ-
ees’ exercise of their Section 7 right[s]”); KSL Claremont Re-
sort, 344 NLRB 832 (2005) (invalidating a rule that “would
reasonably be construed by employees to bar them from dis-
cussing with their coworkers complaints about their managers
that affect working conditions”).
The Company’s confidentiality rule specifically identifies
“personal or financial information” as confidential information
that cannot be disclosed. Employees could reasonably interpret
this language as prohibiting activities protected under the Act.
For example, in Cintas Corp., the Board held that an analogous
confidentiality rule covering personal and financial information
was unlawfully overbroad because it “could be reasonably con-
strued by employees to restrict discussion of wages and other
terms and conditions of employment with their fellow employ-
ees and with the Union.” 344 NLRB 943 (2005); see also IRIS
U.S.A., 336 NLRB 1013, 1018 (2001) (invalidating a rule that
prohibited “disclosure of employee information to fellow em-
ployees”). The Company’s confidentiality rule, as reasonably
construed, is unlawfully overbroad in violation of the Act be-
cause it might reasonably deter employees from engaging in
legally protected activities such as discussing the terms and
conditions of their employment or raising complaints about
their working conditions. Cf. IBM, 265 NLRB 638 (1982)
(upholding an employer’s policy “not to inform employees
what it pays others and . . . [to treat] as confidential the infor-
mation it has compiled for its internal use” where it also did
“not itself bar employees from compiling or determining wage
information on their own”).
It is therefore unnecessary to reach the Company’s argument
that its confidentiality policy is not “controlling” because it is
not enforced in a manner that restricts the exercise of activities
protected by the Act. In the alternative, the argument is still
unavailing. First, this very case demonstrates that the Compa-
ny’s rule applies to inhibit employees from engaging in protect-
ed concerted activities. Second, the Company’s more limited
MCPC, INC. 223
enforcement of the rule in other situations does not undercut its
unlawfulness in this case, but rather evidences disparate treat-
ment supporting the inference that its “asserted reasons for
discharging [Galanter] were pretextual.” American Industries
Container Corp., 324 NLRB 391 (1997).
The Company also claims that it “established substantial and
legitimate business justifications for its policy” prohibiting the
disclosure of employee salaries. See IBM, 265 NLRB at 638
(recognizing that, as a general rule, employees’ “distribution of
wage data . . . constitute[s] protected concerted activity”).
Indeed, an otherwise overbroad rule “can nonetheless be lawful
if [it] is justified by significant employer interests.” Lafayette
Park Hotel, 326 NLRB at 825 fn. 5. But the Company has
failed to demonstrate that it has legitimate business and proprie-
tary interests in the type of wage information at issue here,
which its confidentiality policy is meant to protect. Cf. IBM,
265 NLRB at 639 fn. 5 (Jenkins dissenting) (describing how the
respondent showed its “closed” pay system was necessary “to
attract, motivate, and retain employees by allowing managers to
reward employees on performance alone without . . . creating
dissatisfaction among other employees” as well as to prevent
competitors from “stealing employees” and to minimize “re-
sistance to transfers”). Nor can the Company defend its policy
as narrowly tailored to be reasonably understood as only cover-
ing its “proprietary business information” and not workers’
“terms and conditions of employment.” Cf. Fiesta Hotel Corp.,
344 NLRB at 1388–1389 (upholding a rule protecting the con-
fidentiality of employer “policies and practices” based on its
particular language and because the employer “itself pub-
lishe[d] information” about employee wages and benefits and
never “enforced [it] to prohibit employees from discussing their
terms and conditions of employment”).
Under the circumstances, the Company maintained an overly
broad confidentiality policy in violation of Section 8(a)(1) of
the Act.
II. GALANTER’S DISCHARGE
A. Protected Concerted Activity
The General Counsel also alleges that the Company violated
Section 8(a)(1) because it discharged Galanter for engaging in
protected concerted conduct. Under Section 8(a)(1) of the Act,
it is an unfair labor practice for an employer to “interfere with,
restrain or coerce employees in the exercise of the rights guar-
anteed in Section 7.” In order for a conversation to constitute
concerted activity, “it must appear . . . that it was engaged in
with the object of . . . . [promoting] group action or that it had
some relation to group action in the interest of the employees.”
Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964). The Board has directed that this standard be applied
to new factual circumstances by determining “(1) whether the
comments involved [and the issue was framed as] a common
concern regarding conditions of employment . . . and (2) the
context under which the alleged concerted activity occurred.”
Air Contact Transport, Inc., 340 NLRB 688, 695 (2003). Here,
the first consideration is clearly satisfied because Galanter “act-
ed with the purpose of furthering group goals” regarding staff-
ing shortages. See Compuware, 134 F.3d at 1288 (clarifying
that “[s]pecific authorization [by other employees] is not need-
ed to show ‘concerted activity’”); cf. Mushroom Transporta-
tion, 330 F.2d at 685 (distinguishing concerted activity from
“mere talk” by a single employee that is only intended “to pro-
tect or improve his own status”).
The question then becomes whether Galanter’s conduct was
“looking toward group action.” Id. The Company contends that
Galanter’s activity was not concerted because there was no (1)
prior group activity, (2) future group action planned, (3) evi-
dence that he was speaking on behalf of a group of employees,
or (4) actual complaint raised at the lunch. I am not convinced.
First, employees need not meticulously organize their conduct
beforehand for a specific purpose, but may act “concertedly by
raising impromptu complaints.” See Worldmark by Wyndham,
356 NLRB 765, 767 (2011) (finding it irrelevant to the “con-
certed” inquiry that employees do “not agree in advance to
protest together” and refusing to require “evidence of a previ-
ous plan to act in concert”); Walls Mfg. Co., 128 NLRB 487,
491 (1960) (proclaiming that “[g]roup action is not deemed a
prerequisite to concerted activity” since “a single person’s ac-
tion may be the preliminary step to acting in concert”). Second,
conduct may be concerted without any actual or planned future
group action if it is “the type of preliminary groundwork neces-
sary to initiate group activity.” See Salon/Spa at Boro, 356
NLRB 444, 453–454, fn. 31 (involving complaints that “did not
produce . . . group protest to management” but “did produce
some group activity [by causing] other employees to voice
support for [the] complaints”); Timekeeping Systems, 323
NLRB 244, 247 (1977) (reaffirming that “the object of induc-
ing group action need not be express”). Third, “in a group
meeting context, a concerted objective may be inferred from
the circumstances,” even in the absence of explicit authoriza-
tion from other employees. Air Contact Transport, 340 NLRB
at 695; Worldmark by Wyndham, 356 NLRB 765, 766 (declar-
ing that “an employee who protests publicly in a group meeting
is engaged in initiating group action . . . even when the employ-
ee had not solicited coworkers’ views beforehand”). Fourth, a
complaint need not concern a matter of which the employer is
unaware or “present a specific demand upon [the] employer to
remedy a[n objectionable] condition” to be protected as a con-
certed activity under the Act. See NLRB v. Washington Alumi-
num, 370 U.S. 9, 14, 16 (1962) (rejecting the relevance of
“[t]he fact that the company was already making every effort to
repair” the conditions at issue because the objective reasona-
bleness of a “concerted activity is irrelevant”).
Galanter engaged in concerted conduct because group con-
cerns were implicated in the course of a group activity.27 First,
the content of Galanter’s comments expressed concern over
matters that were a “logical outgrowth” of shared concerns

27 The Company’s reliance on Asheville School is misplaced. There,
the Board explicitly refused to “pass on whether [the employee’s] con-
versations with other employees were concerted under Sec. 7.” See
347 NLRB 877 fn. 2 (2006) (finding that the “disclosure of confidential
wage and salary information was not protected” because the employee
“possessed special custody” of the records and “was aware that her
established job duties . . . required that she maintain the confidentiality
of this information”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD224
related to the Company’s staffing shortage. See Amelio’s, 301
NLRB 182 fn. 4 (1991) (concluding that the worker was “act-
ing on the authority of other employees”). It does not matter
whether support among other employees for Galanter’s senti-
ments failed to resemble or approach unanimity. Tex-Togs,
Inc., 112 NLRB 968, 973 (1955). Second, Galanter’s concerns
were “raised at a group meeting called by [his] employer.”
Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994); Frank Briscoe,
Inc. v. NLRB, 637 F.2d 946, 949 (3d Cir. 1981) (explaining that
an employer demonstrates its concerted view of interactions
with employees when it has “lumped [the employees] . . . to-
gether” by assembling them as a group). In the context of a
group meeting, “whether initiated by the employees or by [the
Company],” Galanter’s complaints became concerted. See ILD
Corp., 2001 NLRB LEXIS 249, at *63–64 (Apr. 18, 2001)
(clarifying that concertedness “exists whenever an employer
assembles its employees as a group”); Whittaker Corp., 289
NLRB 933, 934 (1988) (describing how, in a group meeting, an
individual employee “implicitly elicit[s] support from [his or
her] fellow employees” by raising group concerns). To be sure,
the Board has long held that concerted activities include “indi-
vidual employees bringing truly group complaints to the atten-
tion of management.” Meyers Industries, 281 NLRB 882, 887
(1986).
The Company also contends that Galanter’s complaints are
not protected under the Act because “the amount of [a Compa-
ny] executive’s salary had nothing to do with [the Company’s]
ability to find and hire engineers.” (R. Br. at 6 (emphasis omit-
ted)). But it is well established that concerted activities may be
entitled to protection even when they seem “unnecessary and
unwise.” Washington Aluminum, 370 U.S. at 16. Here, Ga-
lanter’s comments were made for the purpose of “mutual aid or
protection” because they were motivated by shared staffing
concerns, a matter concerning the terms and conditions of em-
ployment. See id. at 17 (characterizing “concerted activities by
employees for the purpose of trying to protect themselves from
[uncomfortable] working conditions” as “unquestionably activi-
ties” that the Act protects). It was entirely legitimate for Ga-
lanter to voice concerted grievances in such a manner. See id. at
14 (ruling that concerted activity lacking a specific demand was
protected because the workers, “who were wholly unorganized
. . . had to speak for themselves as best they could”). While “at
some point the relationship [between concerted activity and
employees’ interests as employees] becomes so attenuated that
an activity cannot fairly be deemed to come within the ‘mutual
aid or protection’ clause,” there is no doubt about the issue in
this case. See Eastex v. NLRB, 437 U.S. 556, 567–568 fn. 18
(1978) (criticizing “[t]he argument that the employer’s lack of
interest or control affords a legitimate basis for holding that a
subject does not come within ‘mutual aid or protection’”); cf.
NLRB v. Motorola, 991 F.2d 278, 285 (5th Cir. 1993) (holding
that “[e]mployees acting as members of outside political organ-
izations” are not covered by the Act); Timekeeping Systems,
323 NLRB at 248 (refusing to protect activities intended “mere-
ly to belittle management”).
B. Galanter’s Discharge for Violating the
Confidentiality Policy
The General Counsel further claims that the Company’s dis-
charge of Galanter for violating its overly broad confidentiality
rule violates the Act. “The Board has long adhered to and ap-
plied the principle that discipline imposed pursuant to an un-
lawfully overbroad rule is unlawful.” See Continental Group,
357 NLRB 409, 410–411 (2011) (justifying the doctrine as
based on the “potential chilling effect on employees’ exercise
of the Section 7 rights”). This is true “even if [the overbroad
rule] is enforced against activity that could havebeen proscribed
by a properly drawn rule.” Id.28 However, the Board has rec-
ognized that “it is not unlawful for an employer to discipline an
employee pursuant to an overbroad rule, in situations in which
the employee’s conduct is not similar to conduct protected by
the Act.” Continental Group, 357 NLRB 409 at 412.
In determining whether certain employee activity is protect-
ed under the Act, the Board generally attempts to balance the
Section 7 interest of employees with the business interests of
the employer.” Cook County College Teachers Union, 331
NLRB 118, 120 (2000). As previously discussed, the Company
did not have a valid proprietary interest in maintaining its con-
fidentiality policy. Moreover, it is evident that the salary in-
formation mentioned by Galanter on February 24 was already
known to several employees and comparable to other salaries in
the industry. See id. at 121–122 (analyzing “the confidentiality
or privacy interests” of employers); see also IBM, 265 NLRB at
642 (describing Board precedent holding that an employer may
not demand its wage rates be kept confidential once it “incorpo-
rate[s] other companies’ wage scales into its own”). The ab-
sence of any malicious dimension to Galanter’s conduct is cru-
cial to the determination that his particular communications fell
within the protection of the Act. See id. at 638 (holding that the
method of distributing information known to the employee to
be considered confidential and prohibited from dissemination
was not innocent, placing his activities “outside the protection
of Sec. 7”); Compuware, 134 F.3d at 1291 (explaining that
communications concerning working conditions must “not be
so disloyal or maliciously false to remove the employees from
the protection of the Act”).
The Company’s arguments to the contrary are unavailing. It
cites Clinton Corn Processing for the proposition that, despite

28 However, this doctrine does not apply if the employer “can estab-
lish that the employee’s conduct actually interfered with the employ-
ee’s own work or that of other employees or . . . with the employer’s
operations, and that the interference, rather than the violation of the
rule, was the reason for the discipline.” See id. (noting that “[i]t is the
employer’s burden . . . to [assert and] establish that the employee’s
interference . . . was the actual reason for the discipline”). This is not
the case here. See Washington Aluminum, 370 U.S. at 17 (identifying
“normal categories of unprotected concerted activities such as those
that are unlawful, violent or in breach of contract . . . [or] ‘indefensi-
ble’ because they… show a[n unnecessary] disloyalty to the workers’
employer”); Timekeeping System, 323 NLRB at 248–249 (finding
communications that “render the employee unfit for further service,”
“concerted behavior [that] has been truly insubordinate or disruptive of
the work process,” and “public disparagement of the company product”
to be unprotected).
MCPC, INC. 225
the presence of protected concerted activity, employers may
still legitimately discharge employees “for the sole reason that
[they] disclosed confidential information.” 253 NLRB 622, 625
(1980). But in that case, the discharged employee actually
“testified that she assumed that the payroll information she
worked with [and disclosed] was also confidential.” Id. at 624.
Moreover, the cases cited by the Board in Clinton Corn are
even more problematic. See Farlow Rubber Supply, 193 NLRB
570, 575 (1971) (involving an employee’s “effort to obtain
confidential company records” from another employee against
her will, which caused his supervisors “to conclude that they
could not trust him”); Vitronic, 183 NLRB 1067, 1081 (1970)
(involving an employee’s admitted “secret theft of company
property in the form of valuable company customer data for the
purpose of . . . conducting a boycott against Respondent for an
unlawful purpose”); Clearwater Finishing, 100 NLRB 1473,
1474–1475 (1952) (distinguishing the lawful discharge of an
employee for disclosures that were “clearly inconsistent with
the performance of his duties” and were not for the purpose of
“engaging in concerted activities” with the unlawful discharge
of the employee who procured the disclosures because the latter
employee was unaware that the information was considered
confidential and “was, in fact, discharged for engaging in activ-
ity designed to aid the Union”).
The Company’s references to the Board’s decisions in Cook
County and Asheville School are also inapposite. First, neither
case involved disclosing information for the purpose of other-
wise protected concerted activity. See Asheville School, 347
NLRB 877, 881 (2006) (determining that there was “no agenda
for group action” underlying the employee’s disclosure); Cook
County, 331 NLRB at 118–119 (finding that the employee was
not “engaged in protected activity” when she disclosed personal
information of individuals who did not have “anything to do
with bargaining or labor relations”). Second, both cases in-
volved the disclosure of confidential information by employees
who were specifically responsible for properly keeping that
information on behalf of their employers. See Asheville School,
347 NLRB at 881 (describing that the discharged employee
divulged confidential information “of which she was aware by
virtue of her [special] position as accountant”); Cook County,
331 NLRB at 118 (stating that the disciplined employee “ha[d]
custody of the official” information that was disclosed). Third,
both cases involved employees who “breach[ed their employ-
er’s] trust” by engaging in prohibited conduct despite under-
standing the impropriety of “disclosing confidential infor-
mation.” See Asheville School, 347 NLRB at 881–882 (describ-
ing the employee’s “aware[ness] that divulging information
. . . was not proper”); Cook County, 331 NLRB at 119 (detail-
ing the employee’s improper use of confidential information
“after being warned not to do so”).
C. Allegations of Misconduct
Finally, the Company maintains that it discharged Galanter
based on its good-faith belief that he improperly obtained con-
fidential information and later lied about his actions, and that,
therefore, it would have taken the same action regardless of
Galanter’s protected activities. However, the Supreme Court
has established that Ҥ 8(a)(1) is violated if an employee is
discharged for misconduct arising out of a protected activity,
despite the employer’s good faith, when it is shown that the
misconduct never occurred.” See NLRB v. Burnup & Sims, 379
U.S. 21, 23 (1964) (covering terminations based on “an alleged
act of misconduct in the course of [protected] activity”);29 Ru-
bin Brothers Footwear, 99 NLRB 610, 611 (1952) (explaining
that the burden of proof is initially on employers to establish
their “honest belief” that misconduct occurred, and “unless it
affirmatively appears that such misconduct did not in fact oc-
cur,” the General Counsel must then produce “evidence to
prove that the employees did not, in fact, engage in such mis-
conduct”). The Act is violated “whatever the employer’s mo-
tive” for discharging an employee so that there is no “deterrent
effect on other employees.” Burnup & Sims, 379 U.S. at 23 fn.
2 (rejecting any requirement to show an employer’s “anti-union
bias”).
Admittedly, “Board precedent establishes a relatively low
threshold for showing” an honest belief of misconduct. See
Roadway Express, Inc., 355 NLRB 197, 215 (2010) (requiring
only that “some specific record evidence linking particular
employees to particular allegations of misconduct” support the
allegation, which “may be based on hearsay” without “inter-
view[ing] the employee before taking disciplinary action”). But
even assuming, arguendo, the Company honestly believed Ga-
lanter engaged in the alleged misconduct despite its failure to
produce the complete record of Galanter’s access to its comput-
er network systems, the argument fails for several reasons.
First, the Company has failed to show that its confidentiality
policy was not the reason for discharging Galanter. Cf. Ashe-
ville School, 347 NLRB at 877 fn. 2 (affirming the discharge of
an employee as valid despite the employer’s maintenance of an
unlawful confidentiality policy because “the record fail[ed] to
demonstrate a nexus between [the disclosure] prohibition and

29 Contrary to the Company’s suggestion, the Wright Line test ap-
plies only “when an employer has discharged (or disciplined) an em-
ployee for a reason assertedly unconnected to protected activity.” See
Shamrock Foods v. NLRB, 346 F.3d 1130, 1135–1137 (D.C. Cir. 2003)
(explaining how “Wright Line is inapplicable to cases . . . in which the
employer has discharged the employee because of alleged misconduct
‘in the course of’ protected activity”); G & H Towing Co., 2008 NLRB
LEXIS 162 (June 2, 2008) (applying Burnup & Sims analysis to allega-
tions of lying). The Company’s only contention that could qualify for
Wright Line analysis is its allegation that Galanter’s “discharge was
caused by unrelated job performance.” NLRB v. Tri-County Mfg., 76
Fed. Appx. 1, 6 (6th Cir. 2003); Wright Line, 251 NLRB 1083, 1089
(1980) (ruling that in cases “turning on employer motivation,” the
General Counsel must show “that protected conduct was a ‘motivating
factor’ in the employer’s decision,” and then “the burden will shift to
the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct”); cf. Yuker Con-
struction. Co., 335 NLRB 1072, 1073 (2001) (describing how dis-
charges for conduct “intertwined with any protected activity” have a
“potential deterrent effect on the exercise of Section 7 rights”). Howev-
er, as noted by the General Counsel, this argument represents a “shift-
ing defense” that supports a finding that Respondent’s proffered rea-
sons are pretextual. See Sound One Corp., 317 NLRB 854, 858 (1995);
Wright Line, 251 NLRB at 1089 fn. 14 (instructing that when “the
employer [is] unable to carry its burden,” it will suffice that the “pro-
tected activities are causally related to the employer action”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD226
[the employee’s] disclosure of confidential information within
her special custody”). Second, the Company’s sparse investi-
gation, explanation to Galanter, and shifting defenses indicate
that its claim that Galanter engaged in misconduct is merely a
pretext designed to “manufacture [his] termination” for unlaw-
ful motives. See Pratt Towers, Inc., 338 NLRB 61, 96–98
(2002) (describing an employer’s effort “to find anything that
would be of significance to prove that [its] striking employees
committed acts of misconduct”). Third, and most importantly,
the Company’s contention that Galanter actually engaged in the
alleged misconduct has been refuted “by a preponderance of the
evidence.” Alta Bates Summit Medical Center, 357 NLRB 259,
260 (2011); Shamrock Foods, 346 F.3d at 1136, 34 (announc-
ing that “the only question is whether the alleged misconduct
actually occurred” since “the employer’s good faith is simply
not relevant if the misconduct did not occur”). Galanter’s own
“direct testimony” that he did not engage in the alleged mis-
conduct, which “was corroborated in important part,” is suffi-
cient to overcome the Company’s speculative accusations of
misconduct. See id. at 1135 (suggesting that evidence beyond
mere “disbelief in the testimony of one party’s witnesses” is
sufficient to satisfy the General Counsel’s burden of proof).
Under the circumstances, the Company violated Section
8(a)(1) of the Act by discharging Galanter because he engaged
in protected concerted activity and violated the Company’s
unlawfully overbroad confidentiality rule.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Company engaged in unfair labor practices by: (1)
maintaining an overly broad confidentiality policy; (2) dis-
charging Galanter on March 4, 2011, because he engaged in
protected concerted activity; and (3) discharging Galanter be-
cause he violated the Company’s unlawfully overbroad confi-
dentiality rule.
3. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily discharged an em-
ployee, must offer him reinstatement and make him whole for
any loss of earnings and other benefits. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
[Recommended Order omitted from publication.]