Sprint/United Management Co.

National Labor Relations Board - Board Decisions

Aug 15, 2003

339 N.L.R.B. 1012 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
Sprint/United Management Company and Jeborah
Diebold. Case 17–CA–21603
August 15, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On September 30, 2002, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
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 the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative 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 The General Counsel relies on Tradewaste Incineration, 336
NLRB 902 (2001), as support for the proposition that Jeborah Die-
bold’s e-mail message to her coworkers about the suspected presence of
anthrax did not lose the protection of the Act. In Tradewaste, the
Board found that an employee did not lose the protection of the Act
despite posting notices containing incorrect perceptions regarding a
new hire’s pay rate. Tradewaste is distinguishable from this case be-
cause unlike here, the Board adopted the judge’s finding that the evi-
dence did not show that the information in the notice was deliberately
or maliciously false. Id. at 907. “In a labor relations context, the phrase
‘maliciously false’ refers, inter alia, to a statement uttered ‘with reck-
less disregard of whether it was true or false.’” See Linn v. Plant
Guards, 383 U.S. 53, 61 (1966).
In agreeing that Diebold’s e-mail did not constitute protected con-
certed activity, Chairman Battista does not pass on Tradewaste Incin-
eration. Chairman Battista agrees that the statements here were inten-
tionally false or made with reckless disregard for truth or falsity. Fur-
ther, even if they were simply false, Chairman Battista may well find
them unprotected. In this regard, he emphasizes the exceptional con-
text and potentially disruptive effect of Diebold’s statements regarding
anthrax contamination in the workplace. These statements were trans-
mitted to four of the Respondent’s employees at a time of national
alarm concerning such chemicals, in the aftermath of the September 11,
2001 terrorist attacks and subsequent anthrax-related deaths. The Re-
spondent’s adoption of a zero-tolerance policy for hoaxes or jokes
pertaining to anthrax alerted employees that they must act with a
heightened degree of responsibility regarding that subject.
Our concurring colleague asserts that this case involves a balancing
of the Respondent’s legitimate interest in preventing the spread of false
information and Diebold’s interest in communicating safety-related
information to fellow employees. We disagree. As the judge found,
Diebold spread information that was false and was uttered with reckless
disregard for truth or falsity. In our view, Diebold has no legitimate
interest or right to spread this information, and thus no balancing is
required or warranted.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

MEMBER LIEBMAN, concurring.
I agree that the Respondent acted lawfully in discharg-
ing Jeborah Diebold under its anthrax-related “zero toler-
ance” policy after she sent an e-mail message to four co-
workers stating that anthrax had been confirmed at the
Respondent’s Lenexa Warehouse. I do not, however,
endorse the judge’s analysis of this case, woven together
from various strands of law, not directly applicable to
this case.
The General Counsel has not challenged the legality of
the zero-tolerance policy itself. The issue for me, then, is
whether the policy’s application to Diebold’s e-mail
message unlawfully interfered with the exercise of her
Section 7 right to communicate with fellow workers
about a possible anthrax threat.1 In this case, I conclude
that the Respondent’s interest in preventing the spread of
false information and fear about anthrax contamination
outweighed Diebold’s interest in communicating what
was false information, based entirely on an overheard
conversation and her own embellishments, to coworkers
who did not even work at the warehouse in question.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
This is an unusual case. The timing and context of
these events cannot be ignored. Diebold’s e-mail was
sent on November 2, 2001, in the midst of widely publi-
cized anthrax deaths and contamination incidents. Pre-
dictably, her message led to a chain of internal e-mail
traffic across the country. Although the e-mail may not
have been intended to incite fear and confusion, sending
it likely would have the same effect as a deliberate hoax:
unnecessary fear, even panic. In this context, I cannot
say that the Respondent acted unlawfully in discharging
Diebold under its zero tolerance policy.

Stanley Williams, Esq., for the General Counsel.
Donald S. Prophete, Esq., of Overland Park, Kansas, for the
Respondent.
Steve Horak, Esq., of Overland Park, Kansas, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This
case was tried in Overland Park, Kansas, on August 13 and 14,
2002. At issue is whether Charging Party Jeborah Diebold, who
was discharged by Respondent Sprint/United Management
Company because she sent an e-mail to employees stating that
1 There were no exceptions to the judge’s finding that Diebold’s ac-
tions constituted concerted activity within the meaning of the Act.
339 NLRB No. 127
SPRINT/UNITED MANAGEMENT CO. 1013
anthrax had been found in Respondent’s Lenexa Warehouse,
lost the protection of the Act. All parties agree that Diebold’s
anthrax statement was in error. Respondent claims that Die-
bold’s action was reckless and opprobrious conduct, thus with-
out protection from the Act, while General Counsel and Charg-
ing Party claim that Diebold’s conduct was reasonable under
the circumstances, and not so egregious as to lose the protection
of the Act.1
On the entire record, including my observation of the de-
meanor of the witnesses,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a global communications company, headquar-
tered in Overland Park, Kansas. During the 12-month period
ending December 31, 2001, Respondent derived gross revenues
in excess of $500,000 and purchased and received goods valued
in excess of $5,000 directly from points outside the State of
Kansas. 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
A. Facts
Background
Respondent’s headquarters are located in Overland Park,
Kansas, which is just across the State line from Kansas City,
Missouri. Respondent has more than 80,000 employees world-
wide. In November, approximately 25,000 employees worked
in the Kansas City metropolitan area. These employees work in
various locations including a warehouse located at 11701 W.
85th Street, Lenexa, Kansas (the Lenexa Warehouse); Building
One of the main Sprint campus between 115th and 119th
Streets in Overland Park, Kansas, housing the consumer mar-
keting group; and the 5454 building at 5454 West 110th Street
in Overland Park, Kansas, where the materials management
group is located.
Sprint Policies Regarding Anthrax Hoaxes
Following the tragic events of September 11, Respondent
adopted and published through its internal electronic communi-
cation system, policies and bulletins intended to alert its em-
ployees to the dangers of biological agents and the processes to
follow when the presence of such agents was suspected. Those
publications were, “Play It Safe At Sprint! Handling Suspicious
Mail and Packages” dated October 22; “Spring Security Aware-
ness Alert” published on October 24, on the Sprint newswire;
“Anthrax Q & A Fact Sheet” dated October 25; and

1 The charge was filed by Diebold on March 21, 2002, and amended
on May 28, 2002. The complaint was issued on May 29, 2002. Unless
otherwise referenced, all dates are in 2001.
2 Credibility resolutions have been made based upon the entire re-
cord and all exhibits in this proceeding. Witness demeanor and inherent
probability of the testimony have been utilized to assess credibility.
Testimony contrary to my findings has been discredited on some occa-
sions because it was in conflict with credited testimony or documents
or because it was inherently incredible and unworthy of belief.
“Precautions for Biological Agents” undated. Sprint’s policy
was to discharge any employee engaging in a hoax or joke
about anthrax. One employee was discharged in late October
because he put coffee creamer in an envelope and left the enve-
lope in another employee’s mail slot.
Possible Anthrax Contamination of October 31
On Wednesday, October 31, Sprint LTD3 technicians per-
formed work on Postal Service PBX4 equipment at the Kansas
City, Missouri Stamp Fulfillment Services Center located in an
Industrial Park underground cave in eastern Jackson County,
Missouri. These Sprint technicians reported from Sprint’s
Lenexa Warehouse. The technicians took two PBX cards from
the Kansas City, Missouri Stamp Fulfillment Services Center
and delivered the PBX cards to the Lenexa Warehouse. The
Lenexa Warehouse ships and receives materials and equipment
for Sprint’s local, long distance, and cell phone divisions.
On Thursday, November 1, at about 1 a.m., the United States
Postal Service notified Steven Rumple, Sprint manager of op-
erations support, that the Sprint technicians might have been
exposed to anthrax contamination on Wednesday, October 31,
at the Kansas City, Missouri Stamp Fulfillment Services Cen-
ter. Further, the PBX cards brought back to the Lenexa Ware-
house might also be contaminated by anthrax. Four LTD tech-
nicians and one warehouse technician worked in the Lenexa
Warehouse. Rumple immediately contacted Sprint Corporate
Security. Corporate Security immediately sealed the Lenexa
Warehouse. Sprint also notified the authorities concerning the
potential anthrax contamination at the Lenexa Warehouse.
Eventually, in the early morning hours of Thursday, November
1, the Lenexa Police and Fire departments and the FBI were on
the scene. Samples were taken from the Lenexa Warehouse and
the two PBX cards were bagged.
The Lenexa Warehouse was temporarily closed to all per-
sonnel during the period Thursday, November 1 through Mon-
day, November 5. The Midwest Research Institute, an inde-
pendent testing laboratory, conducted tests for anthrax con-
tamination on samples and materials taken from the Lenexa
Warehouse. On Sunday, November 4, the Institute reported that
it found no evidence of anthrax bacteria on the materials that
were tested. Nevertheless, Lenexa Warehouse technicians were
seen at public health facilities and prescribed antibiotics as a
prophylactic measure. None of the Lenexa Warehouse techni-
cians were actually tested for anthrax exposure.
Danny Branson, national manager of field material opera-
tions for the business markets group, was present at the Lenexa
Warehouse in the early morning of November 1, to ensure that
no employees entered the building. The area manager who had
direct responsibility for the Lenexa Warehouse, Tania Kilburn,
was returning from a business trip on that date. Early on the
morning of Friday, November 2, Branson and Kilburn spoke in
Branson’s office at the 5454 Building. Kilburn also works in
that building. Branson informed Kilburn of the possibility that
anthrax contaminated equipment had been delivered to the
Lenexa Warehouse. At that time, the exact date of delivery of
3 LTD is an acronym for local telephone division.
4 PBX is an acronym for personal branch exchange.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
this equipment was thought to be October 31, but that date was
being verified. Kilburn, who was pregnant at the time, con-
cluded that if the equipment was delivered on October 31, she
had not been in the Lenexa Warehouse at a time when the po-
tentially contaminated equipment was present. Rather, she had
been out of town.
Consumer Marketing Learns of Lenexa Warehouse Situation
The consumer-marketing group was not directly affected by
the Lenexa Warehouse closure. No official notification regard-
ing the Lenexa Warehouse closure was sent to the consumer-
marketing group. However, on Friday, November 2, Project
Manager Trina Fry received a telephone call from her daughter-
in-law, Tania Kilburn, at around 9 a.m. When Fry received the
phone call from Kilburn, Jeborah Diebold, a coworker, was
working with Fry in Fry’s cubicle. Diebold overheard some of
Fry’s portion of the telephone conversation with Kilburn.
Fry testified that Kilburn called to let Fry know that although
there was a possibility of anthrax contamination at the Lenexa
Warehouse, Kilburn did not think that she was in any danger
because she had been out of town at the time. Kilburn told Fry
that she might be tested for anthrax. Kilburn told Fry that she
had learned of the possibility of anthrax contamination from
Danny Branson, Kilburn’s boss. Although Fry spoke to Kilburn
via the handset rather than by speakerphone, Fry repeated the
entire conversation to Diebold. Fry specifically recalled telling
Diebold that the Lenexa Warehouse was being tested. Fry re-
called that during the course of her conversation with Kilburn,
she questioned Kilburn about what could be done in the event
Kilburn had been exposed to anthrax, given the fact that Kil-
burn was pregnant. Both Fry and Kilburn denied that either of
them stated that anthrax was confirmed at the Lenexa Ware-
house. Diebold did not remain in Fry’s cubicle during the entire
Fry-Kilburn telephone conversation. When Fry finished her
conversation with Kilburn, Fry spoke briefly with her manager,
Kim McKnight, program manager IV, and also with Steve
Lohr, McNight’s boss. The thrust of these conversations was
concern for Kilburn due to her pregnancy. Fry did not recall
speaking to coworkers Denise Lamb or Ingrid Simms.
Fry testified that she was unaware of any activities per-
formed at the Lenexa Warehouse other than storage of materi-
als. Fry knew this because she knew that Kilburn went to the
Lenexa Warehouse in order to take inventory. Specifically, Fry
was unaware that the Lenexa Warehouse had anything to do
with pay phones, billing operations or printing, or mailing op-
erations. Fry denied that Kilburn ever stated that anthrax had
been confirmed at the Lenexa Warehouse. Fry denied that she
ever told Diebold that the Lenexa Warehouse tested positive for
anthrax. Fry was unaware that the Lenexa Warehouse might be
constructed as three facilities. Fry did not know that the possi-
ble contamination occurred on October 31, and she did not
know that any tests came back positive. For demeanor reasons,
I credit these assertions of Fry’s.
Diebold, a project manager, systems analyst, testified that
while she was present in Fry’s cubicle on the morning of No-
vember 2, Fry received a telephone call from her daughter-in-
law. Diebold recalled that she heard Fry say, “oh, my God, are
you sure it is Anthrax?” Diebold began tapping Fry on her
shoulder asking her, “Anthrax where?” Fry, who was still on
the phone with Kilburn, pointed down toward the floor. Die-
bold testified, “I took that as Sprint.” Diebold asked, “Sprint?”
and Fry said yes. Diebold asked if it was at their building and
Fry told her, “no, no, hold on, hold on.” Then Fry continued her
conversation with Kilburn. Diebold testified that she heard Fry
ask where and when. Fry also asked Kilburn, “What about the
baby? What can you do?” Then Fry asked Kilburn if she had
spoken to Mickey, Kilburn’s husband and Fry’s son.
Diebold testified, “So, I am nudging at [Fry] again, for more
details.” According to Diebold, Fry paused in her conversation
with Kilburn and addressed Diebold, “Anthrax was found on
Wednesday night, Halloween night, and that it was at the
Lenexa warehouse and that they closed the facility and they
were testing the employees and putting them on antibiotics for
Anthrax exposure.” Diebold immediately left Fry’s cubicle and
went into McKnight’s cubicle. Although McKnight was talking
on the telephone, Diebold nudged her on the shoulder.
McKnight told Diebold to “hold on a minute.” Diebold,
“grabbed a piece of paper . . . and jotted that Anthrax was
found at Sprint.” When McKnight concluded her telephone
conversation, she asked Diebold where she had heard this and
Diebold explained that she heard it from Fry who was speaking
with her daughter-in-law about the situation. At this point, ac-
cording to Diebold, Fry came into McNight’s cubicle.
According to Diebold, McKnight asked Fry what happened.
Fry responded, according to Diebold, that on Halloween, an-
thrax was found in the warehouse. Diebold testified that Fry
continued her comments to McKnight as follows:

They shut the facility down and . . . were testing the employ-
ees and offering them antibiotics and [Fry] was concerned for
[Kilburn] and the unborn baby about Anthrax exposure and
taking the antibiotic because they did not know, at that point,
what side effects would have to an unborn child.

Diebold recalled that Fry explained to her and McKnight that
Kilburn worked at the 5454 building in the material manage-
ment group. As part of her duties, Kilburn traveled to the
Lenexa Warehouse, where the anthrax was found. McKnight
recalled that Fry said there was a threat of anthrax and tests
were being performed. In any event, Diebold testified that she
asked what work was performed at the Lenexa Warehouse. Fry
responded that materials were stored there.
According to Diebold, in response to Fry’s comment that the
Lenexa Warehouse stores materials, McKnight added that bills
were printed there and pay phones were built there. According
to Diebold, McKnight drew a diagram of the facility and its
location and the three discussed items that were printed at the
Lenexa Warehouse including PCS5 bills and internal memo-
randa. McKnight disagreed with Diebold’s testimony.
McKnight recalled asking whether either Fry or Diebold knew
which Lenexa warehouse was impacted. They did not know.
McKnight told them that at one of the facilities local telephone
bills for the LTD are printed and distributed. McKnight did not
make any representation that this was the particular warehouse

5 PCS is an acronym for personal communications systems, com-
monly known as cell phones.
SPRINT/UNITED MANAGEMENT CO. 1015
closed due to possible anthrax contamination nor did she make
any representations about payphones in connection with any
warehouse.
McKnight testified with conviction that neither she nor Fry
ever told Diebold that anthrax had been confirmed in the ware-
house or at any Sprint facility. McKnight testified that she
never told Diebold that the place of possible contamination was
the location where bills were printed or where pay phones were
built. McKnight recalled describing to Diebold a warehouse in
Lenexa where bills are printed but it was merely a discussion of
general warehouse activity without any indication that this was
the particular warehouse impacted. I credit McKnight and Fry
and find that Fry actually said that a warehouse in Lenexa had
been closed due to a possible anthrax contamination. Neither
Fry nor McKnight claimed that bills were printed or pay phones
built in this warehouse. Neither Fry nor McKnight told Diebold
that anthrax was confirmed.
At this point, Fry left McKnight’s office but Diebold stayed.
While Diebold was in McKnight’s office, according to Diebold,
McKnight called both her mother and her husband to discuss
family matters and in the course of these conversations, she
reported to both of them that anthrax had been found at the
Lenexa Warehouse and it had been closed. McKnight did not
deny that she frequently calls home and it would be common
for Diebold to be in her cubicle when she did so. However,
McKnight did not recall discussing anthrax with her mother or
her husband.
Diebold testified that she overheard the conversation be-
tween McKnight and Branson. Diebold testified that Branson
told McKnight that anthrax had been found in the Lenexa
Warehouse in a trashcan and on one of the printing machines.
Diebold testified that she left McKnight’s cubicle after this
telephone conversation was completed. Neither McKnight nor
Branson corroborated this testimony. Rather, they disagreed
with it. I do not credit Diebold’s testimony in this regard. Ini-
tially, I note that McKnight and Branson were strong, credible
witnesses. Both confirmed that they did not speak on Novem-
ber 2, until after Diebold sent her e-mail. Second, I note that
Diebold could not possibly have heard Branson’s side of this
telephone conversation. Finally, I note that there is absolutely
nothing in the record that supports such assertions of anthrax
being confirmed on November 2, in a trashcan and on a print-
ing machine. There is, in fact, an absence of evidence regarding
the existence of any printing machine in the Lenexa Ware-
house.
Ingrid Simms works for Respondent in the technology ser-
vices department of the consumer-marketing group. Both Die-
bold and Fry work nearby. Simms recalled speaking to Fry on
or about November 2. Fry told Simms that her daughter-in-law
said there was Anthrax in a Lenexa building where she worked
and Fry was worried because her daughter-in-law was pregnant.
Other employees gathered at Fry’s cubicle including Denise
Lamb, Diana Jones Struthers, and Beth Hood. Simms recalled
that Fry said other employees were being tested but her daugh-
ter-in-law, “probably could not [be tested] because the antibod-
ies would affect the baby.”
Denise Lamb, project analyst II in consumer marketing test-
ing, worked in close proximity to Diebold and Fry. On Novem-
ber 2, Fry told her that her daughter-in-law had informed her
that, “they thought there was Anthrax and asked them all to
leave and go to the Doctor and [Fry] was concerned because
[Kilburn] told [Fry] that [Kilburn] could not take the antibiotic
because she was pregnant and [Fry] was concerned about her
daughter-in-law’s baby, if the baby was going to be affected.”
Lamb thought that Fry mentioned that Kilburn worked some-
where in Lenexa and that the particular facility where Kilburn
worked had been closed so everyone could go to a doctor.
However, Lamb was not sure if the facility that was impacted
was 5454 W. 110th Street in Overland Park or a facility in
Lenexa. She just knew it was where ever Kilburn worked.
Lamb did not recall a reference to tests coming back positive.
Lamb recalled that Fry said that Kilburn was off for the rest of
the day. Lamb recalled that Fry said that either the employees
or the facility was confirmed to be contaminated. Lamb also
recalled Fry saying something about bills but she could not
recall specifically what was said. When Fry made these state-
ments, according to Lamb, Diana Jones, Beth Hood, Jeanie
Ballinger, and Diebold were present.
Both Simms and Lamb testified as disinterested current em-
ployees of Respondent regarding their recollection of a conver-
sation or series of conversations, which occurred 10 months
prior to the hearing. Both sincerely believed that there testi-
mony reflected what they remembered hearing. Obviously, any
discussion of possible anthrax contamination at one’s place of
work is highly charged and somewhat sensational. I find that
both Simms’ and Lambs’ sincere recollections are suspect as to
nuances regarding whether anthrax was found or merely sus-
pected, whether employees were being tested, equipment was
being tested, or tests had been confirmed. Diebold’s recollec-
tions suffer the same deficiencies. By her own admission, Die-
bold interrupted Fry’s conversation with Kilburn in order to
obtain a few more pieces of information. Diebold’s description
of her actions with regard to Fry and McKnight in spreading the
word about anthrax indicates that she was excited and some-
what panicked. She was not attempting a dispassionate research
of events. Accordingly, I credit Diebold’s testimony to this
extent: I believe that she really thought she heard Fry state that
anthrax was confirmed at a warehouse in Lenexa. I do not find
that anyone told her this but I do find that she thought this is
what she had been told.
Diebold’s E-Mail
Shortly after overhearing Fry’s comments to her daughter-in-
law, and speaking with McKnight and other employees in the
area about the situation at the Lenexa Warehouse, Diebold
returned to her cubicle to prepare for a 10 a.m. conference call.
At 9:53 a.m., Diebold sent an e-mail message stating that an-
thrax had been confirmed at the Lenexa Warehouse. The e-mail
message was sent to four employees of Respondent: Mandy
Diebold, Patrick Marcus, John Martiny, and Megan E. Scheetz.
Diebold’s e-mail and the subsequent chain of e-mail messages
occurred between employees of Respondent. Diebold’s e-mail
stated,

Anthrax has been confirmed in the Warehouse in Lenexa the
facility has been closed. All employees are being tested. This
is where bills are printed and sent as well payphones built,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016
there are 3 separate yet one facility. We are not clear which
one was actually tested positive. This happened Wednesday
evening and the test came back this morning. The material
management team at 5454 is being tested due to frequent trips
to the facility.
Retraction of Diebold’s E-Mail
Diebold was on a conference call after sending this e-mail.
Following the conference call, Diebold noted that she had re-
ceived some responses to her e-mail. She also received a voice
mail from someone in California asking about the e-mail. Die-
bold did not know the person in California and did not return
the call because she could not understand the telephone number
on the voice mail.
Meanwhile, in materials management, Diebold’s e-mail was
shown to Danny Branson. Branson, who had been working on
the anthrax situation since the late of evening of October 31,
was shocked when he read in the e-mail that anthrax had been
confirmed. He had left clear orders that he was to be notified of
any findings and he was unaware that any confirmation existed.
He immediately called corporate security and was told that
there was no such confirmation. Then he accessed Diebold’s
supervisor through a corporate directory. Branson told
McKnight to have a retraction sent by Diebold immediately.
At this point, McKnight had not seen the e-mail. Branson
read the e-mail to McKnight and told her the entire statement
was incorrect. McKnight assured Branson that a retraction
would be sent.
In any event, both Diebold and McKnight agree that shortly
after noon on November 2, McKnight told Diebold she had to
retract her earlier e-mail.6 Diebold testified that she protested,
stating that her e-mail was not false and was not a hoax. Ac-
cording to Diebold, McKnight responded that Diebold did not
have any choice. Diebold testified that McKnight told her she
would be fired if she did not retract the e-mail. Diebold testified
that she and McKnight went to Diebold’s cubicle accompanied
by Sue Deterding and Kathy Gaspard, managers in the con-
sumer-marketing group. Diebold testified that McKnight dic-
tated a retraction, which she typed verbatim. Diebold testified
that she protested that she was not sending such an e-mail be-
cause it was not true. According to Diebold, McKnight told
Diebold that her job was on the line. Then, according to Die-
bold, McKnight hit the “spell check” button and then the
“send” button.

6 According to Diebold, McKnight also told Diebold to forward the
e-mail to her adding that she would then forward the e-mail to corpo-
rate security, “and other people will see this so you need to show some
kind of remorse about it.” Diebold forwarded the e-mail to McKnight
with the added comment, “I will never send e-mail or discuss any such
topics again. I will only get bitten once and I learn.” Apparently this
last portion was added in response to McKnight stating that Diebold
needed to show some kind of remorse about sending the original e-
mail. I do not find that McKnight’s direction to show some kind of
remorse, even if made, was a direction not to engage in any further
protected, concerted activity. Rather, it was reflective of the lack of
truth in the e-mail statements. Accordingly, par. 4(b), which alleges
that McKnight directed Diebold not to engage in any further protected,
concerted activity for employee mutual aid and protection, is dismissed.
According to McKnight, when she finished speaking with
Branson, she called over the cubicle wall to see if Diebold was
in her cubicle. Diebold responded that she was and McKnight
went around to Diebold’s cubicle. McKnight asked Diebold if
she sent an e-mail regarding anthrax and Diebold responded
affirmatively.7 McKnight told Diebold that “we need to get
something out, as soon as possible, saying that this information
[in the original e-mail] is false.” Diebold responded that she did
not know what to say. McKnight stood behind Diebold, who
was seated at her computer, and together they worded a retrac-
tion e-mail. According to McKnight, Diebold never said that
she did not want to send a retraction. McKnight testified that
neither she nor Diebold yelled or raised their voices. McKnight
testified that she did not tell Diebold that her job was on the
line or that she would lose her employment if she did not re-
scind the e-mail. McKnight testified that neither Sue Deterding
nor Kathy Gaspard was present during any part of this transac-
tion.8
Fry, who testified that she was present in Diebold’s cubicle
when the retraction was sent, did not hear McKnight make any
threats to Diebold or yell at Diebold. Fry did not hear either
Diebold or McKnight raise their voices. Fry did not recall Die-
bold objecting that her original e-mail was true. Fry recalled
only that there was some urgency in getting the retraction sent
and that McKnight was trying to help Diebold draft the e-mail.
I credit McKnight’s and Fry’s version of the retraction sce-
nario. I specifically find that McKnight did not threaten Die-
bold with discharge if Diebold did not send a retraction.9 I
credit McKnight’s version of the retraction scenario. I specifi-
cally find that McKnight did not threaten Diebold with dis-
charge if Diebold did not send a retraction. Accordingly, com-
plaint allegation 4(c), which alleged that McKnight threatened
discharge is a repudiation of the earlier e-mail was not sent, is
dismissed.
On Friday, November 2, 2001, at 12:37 p.m., an e-mail re-
tracting Diebold’s earlier e-mail was sent to the same four em-
ployees as the initial message was sent. The retraction stated,
“The information that was previously shared about a confirmed
case of anthrax contamination is false. Please forward this in-
formation on to anyone else that the original email was for-
warded to. This needs to done immediately.”
7 This question is alleged as unlawful interrogation about engaging
in the protected, concerted activity of alerting other employees to the
possibility of their being endangered by anthrax contamination at Re-
spondent’s operations in the State of Kansas. In the context of the
events surrounding this question, I do not find it interfered with em-
ployee Sec. 7 rights. The thrust of the question was not the concerted
nature of Diebold’s communication. Rather, it was the falsity of Die-
bold’s communication. Moreover, the e-mail was openly authored by
Diebold. Accordingly, par. 4(a) of the complaint is dismissed.
8 McKnight explained that Sue Deterding came into McKnight’s of-
fice while McKnight was speaking with Branson. Deterding had a copy
of Diebold’s e-mail in her hand and asked McKnight if she was aware
of the e-mail. McKnight interrupted her call and told Deterding that she
was taking care of the matter.
9 Accordingly, complaint para. 4(c), which alleges that McKnight
“threatened [an employee] with discharge if [she] did not disseminate
to other employees a repudiation of their earlier protected, concerted
statement to other employees,” is dismissed.
SPRINT/UNITED MANAGEMENT CO. 1017
McKnight then reported the matter up her chain of com-
mand, that is, to Steve Lohr, then Kathy McMiller, and then
Mary Turner. These meetings were one-on-one between
McKnight and the individuals named. Later on Friday, accord-
ing to McKnight, she informed Diebold that management was
taking her e-mail very seriously and was continuing to study
the matter. McKnight told Diebold that anything could happen
—from nothing at all to the potential for termination. The refer-
ence in the e-mail to, “we are not clear which one was actually
tested positive,” was completely unknown to McKnight.
McKnight denied that she ever discussed treatment of the man-
agement team at the 5454 building for possible anthrax con-
tamination.
Diebold testified that she was concerned and asked
McKnight several times if she was in trouble. McKnight told
Diebold, according to Diebold, that she was not in trouble be-
cause McKnight had confirmed with Danny Branson, Kilburn’s
superior, that “It was not a hoax.”
Discharge
On Tuesday, November 6, Diebold was discharged. The de-
cision to discharge her was made by human resources and by
vice president Mary Turner. Turner testified that she deter-
mined to discharge Diebold because Respondent has a zero
tolerance policy regarding anthrax hoaxes. She further testified,
“I believe that a reasonable person would have taken some
additional steps to try to verify the facts in the e-mail. She had a
Director. We have a Security Department.” McKnight and Dan
Gronniger, employee relations manager, met with Diebold.
Gronniger told Diebold that she was being discharged for viola-
tion of Respondent’s policy regarding anthrax hoaxes as well as
violation of Respondent’s business communications policy
which requires, in part, “clear and concise, truthful and accu-
rate” communications. Gronniger denied that Diebold was dis-
charged for attempting to warn her coworkers or for using
company e-mail.10
After being discharged, Diebold called the Department of
Health and spoke with someone named Denise. According to
Diebold, Denise verbally confirmed that anthrax had been
found at Sprint. Thereafter, Diebold saw her physician and was
given Ciprocal because there was a suspicious spot on her
lungs.
B. Analysis
The parties agree that many of the statements in Diebold’s e-
mail were not correct. However, the truth or falsity of a com-
munication is not the determinant of whether the activity is
protected. Professional Porter & Window Cleaning Co., 263
NLRB 136, 139 fn. 12 (1982). It is sufficient that a single em-
ployee, such as Diebold, seeks to initiate, induce, or prepare for

10 Respondent’s evidence clearly proves that Diebold was not dis-
charged for using e-mail to communicate with her fellow employees.
Rather, she was discharged because she sent an untrue e-mail regarding
existence of anthrax at various Sprint facilities. Accordingly, I dismiss
complaint par. 4(d), which alleges that Gronniger told Diebold that she
was discharged because she engaged in protected, concerted activities
for employees’ mutual aid and protection.
group action regarding a term or condition of employment.
Meyers Industries, 281 NLRB 882, 887 (1986).
Respondent argues that Diebold was not seeking to initiate,
induce, or prepare for group action. Respondent notes that Die-
bold did not attempt to warn employees about a threat of per-
sonal exposure. I reject Respondent’s argument. The object of
inducing group action need not be expressed, See, e.g., Time-
keeping Systems, Inc., 323 NLRB 244, 247–248 (1997), enfd.
742 F.2d 1438 (2d Cir. 1983). Diebold was clearly engaged in
concerted activity regarding terms or condition of employment
when she alerted her coworkers to possible safety problems at
work.11 Further, it was not necessary that Diebold’s concerns
prove objectively reasonable. “Whether the protested working
condition was actually as objectionable as the employees be-
lieved it to be . . . is irrelevant to whether their concerted activ-
ity is protected by the Act.” Tamara Foods, Inc., 258 NLRB
1307, 1308 (1981), enfd. 692 F.2d 1171 (8th Cir. 1982), cert.
denied 461 U.S. 928 (1983).
Where, as here, the conduct for which Respondent claims to
have discharged an employee is the protected, concerted activ-
ity, which is alleged in the complaint, the Wright Line12 analy-
sis is inappropriate. Neff Perkins Co., 315 NLRB 1229 fn. 2
(1994); Mast Advertising & Publishing, 304 NLRB 819 (1991).
Respondent discharged Diebold for sending an e-mail to her
fellow employees about the presence of anthrax in Respon-
dent’s warehouse. This is the very activity, which General
Counsel claims is protected by the Act. Thus, there is no dual
motive to analyze. Accordingly, the analysis begins and ends
with a determination of whether Diebold’s actions lost the pro-
tection of the Act. See, e.g., Felix Industries, 331 NLRB 144,
146 (2000), enf. denied 251 F.3d 1051 (D.C. Cir. 2001).
Generally, in order to determine whether concerted activity
retains the protection of the Act, it is necessary to balance the
right of employees to engage in protected, concerted activities
with the right of an employer to maintain order and control.
See, e.g., New Process Gear, 249 NLRB 1102, 1109 (1980).
When the conduct which leads to possible loss of protection of
the Act involves a verbal outburst, the Board carefully balances
the factors in Atlantic Steel Co., 245 NLRB 814, 816–817
(1979), to determine whether the protection of the Act is lost.
The factors are (1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s out-
burst; and (4) whether the outburst was, in any way, provoked
by an employer’s unfair labor practice.
The Board has sometimes utilized the term “opprobrious,” in
conjunction with such terms as “malicious,” “defamatory,”
“profane,” “egregious,” or “offensive.” For example, protected
activity may become unprotected if the course of engaging in
such activity, one uses sufficiently “opprobrious, profane, de-
famatory, or malicious language.” American Hospital Assn.,
11 Respondent relies upon Electronic Data Systems Corp., 331
NLRB 343 (2000), in which employee Eaton sent two e-mails urging
employees to quit utilizing one of the company vendors. Had employ-
ees agreed, this would have led to a significant drop of service to a
main customer and would have created a partial work stoppage. I find
this case distinguishable from the facts herein.
12 Wright Line, 251 NLRB1083 (1980), enfd., 662 F.2d 899 (lst Cir.
1981), cert. denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
230 NLRB 54, 56 (1977). See also HCA/Health Services, 316
NLRB 919 (1995) (activity can lose protection of the Act when
it is “egregious, offensive, defamatory, or opprobrious”).
In the representation case area, campaign propaganda mate-
rial is accorded the protection of the Act unless the material is
maliciously false. See, e.g., Simplex Wire & Cable Co., 313
NLRB 1311, 1315 (1994). A similar standard has been utilized
in the unfair labor practice area. In Senior Citizens Coordinat-
ing Council, 330 NLRB 1100, 1105 fn. 17 (2000), the Board
noted that inaccuracy or lack of merit does not defeat the Act’s
protection absent “deliberate falsity or maliciousness,” citing
Guardian Industries Corp., 319 NLRB 542, 549 (1993), which,
in turn, relied upon Delta Health Center, 310 NLRB 43 (1993),
enfd. 5 F.3d 1494 (5th Cir. 1993), where the employer’s af-
firmative defense was that the statements were “maliciously
false.” The judge found, with Board approval, that the acts were
sincere and not made “with reckless disregard for the truth.”
Pursuant to this standard, an employee who expressed incorrect
perceptions in his memorandum regarding new hire pay rates
did not lose the protection of the Act because the information
was not maliciously false. Tradewaste Incineration, 336 NLRB
902, 910 (2001); see also, KBO, Inc., 315 NLRB 570 (1994),
enfd. 96 F.3d 1448 (6th Cir. 1996) (statement made with
knowledge that it is false or with reckless disregard of whether
it is true of false, loses protection of Act).
In KBO, Inc., supra, an employee told business agent Price
that he had an audiotape, which proved that Respondent’s, anti-
union campaign was being financed from employees’ profit
sharing accounts. Price repeated this statement to the main
employee organizer, Barnhart. Barnhart then relayed this in-
formation to two other employees who repeated the assertion to
management. The Board reversed the administrative law
judge’s holding that Price’s statement was made with reckless
disregard for the truth. The Board found that,

it is readily apparent that Barnhart . . . was simply relaying . . .
in good faith what he had been told by Price, and that he rea-
sonably believed the report to be true. Neither the fact that
Barnhart had not himself heard the tape nor that the informa-
tion may have been inaccurate removes Barnhart’s remark
from the Act’s protection.

KBO, Inc., supra, 315 at 571. Thus, actual malice may be
shown by knowledge of the falsity of the statement or reckless
disregard for the truth or falsity of the statement. Beverly
Health & Rehabilitation Services, 331 NLRB 960, 962 (2000)
(in context of Bill Johnson’s Restaurants v. NLRB, 461 U.S.
731 (1983), defamation suit).
In reviewing these authorities, it would appear that adjectives
such as “opprobrious,” “egregious,” “offensive,” and “profane”
are normally utilized in the Atlantic Steel verbal outburst area
while the descriptives “malicious,” “defamatory,” “knowingly
false,” and “with reckless disregard for truth or falsity” inform
the test for written material disseminated to coworkers about
terms and conditions of employment. Thus when the Board
referred in footnote 17 of Senior Citizens Coordinating Coun-
cil, supra, 330 NLRB at 1105, to “deliberate falsity or mali-
ciousness” of written disseminated materials, this standard
includes “knowingly false” statements, statements made “with
reckless disregard for their truth or falsity,” “malicious” state-
ments, and “defamatory” statements.
Applying this standard to the facts herein, it appears that
Diebold overheard parts of conversations and based her e-mail
on these bits and pieces of conversation without bothering to
corroborate essential details. For instance, Diebold testified that
Fry told her that anthrax was found in the Lenexa Warehouse
on Halloween night; the warehouse was closed; employees and
equipment are being tested. Diebold further testified that Fry
told her that her daughter-in-law Kilburn worked at the 5454
building and traveled to the Lenexa Warehouse, where materi-
als were stored, to take inventory. I credit this portion of Die-
bold’s testimony to the extent that I believe this is what she
thought she heard. I note that there were five witnesses who
testified about these conversations. McKnight and Fry clearly
recalled speaking and hearing only of a possibility of anthrax
and that employees were being given antibiotics.” Simms re-
called Fry stating that there was anthrax in a Lenexa building.
Lamb recalled that Fry told her, “they thought there was an-
thrax.” Later Lamb testified that she thought Fry said either the
employees or the facility was confirmed to be contaminated.
Given the hearsay upon hearsay nature of these conversations,
it is little wonder that the facts were distorted as the story
passed from one teller to the next.
In any event, I conclude that Diebold had a mistaken basis
for believing that (1) anthrax was found in the Lenexa Ware-
house, (2) the Lenexa Warehouse was closed, and (3) employ-
ees and equipment were being tested. I do not necessarily con-
sider her belief a reasonable belief, because she did nothing to
independently verify the bits and pieces of information forming
the basis of this belief. Nevertheless, I do not find that Diebold
made these statements knowing that they were false or with
reckless disregard for their truth or falsity.
Accordingly, the first three statements in the e-mail have
some basis in what Diebold thought she heard: “Anthrax has
been confirmed in the Warehouse in Lenexa.” “The facility has
been closed.” “All employees are being tested.”
The remainder of the e-mail lacks any factual basis. “This is
where the bills are printed and sent as well payphones built,
there are 3 separate yet one facility.” The only thing Diebold
could base this on was McKnight’s description of a facility that
printed bills—which might have been the Lenexa Warehouse or
it might not have been the Lenexa Warehouse. There is no tes-
timony to support Diebold’s assertion that payphones are built
in the Lenexa Warehouse. There is no testimony to support
Diebold’s e-mail assertion that the Lenexa Warehouse consti-
tutes 3 separate yet one facility. Diebold again attributes this to
McKnight. However, I credit McKnight’s testimony that she
described a warehouse she was familiar with—not necessary
the Lenexa Warehouse. Accordingly, I find with regard to these
three assertions, Diebold acted with reckless disregard for the
truth or falsity of the assertions.
Diebold and Fry spoke with McKnight who told them that
she did not know what the Lenexa Warehouse specifically did.
Fry explained that she only knew that materials were stored
there. I credit McKnight’s testimony that she referenced a
warehouse facility of which she was aware that also printed
bills and distributed mail. I discredit Diebold’s testimony that
SPRINT/UNITED MANAGEMENT CO. 1019
McKnight told her that the Lenexa Warehouse was the location
where bills were printed and mail distributed.
The e-mail concludes, “This happened Wednesday evening
and the test came back this morning. The material management
at 5454 is being tested due to frequent trips to the facility. Die-
bold was unable to produce any testimony to verify this portion
of the e-mail. I conclude that Diebold fabricated these asser-
tions. There is no testimony to support these assertions.
Thus, I conclude that Diebold’s e-mail was sent with knowl-
edge that some assertions were not true. This constitutes delib-
erate falsity. Regarding other assertions, I find that Diebold sent
the e-mail without regard for the truth or falsity of these other
assertions.13 Accordingly, Diebold’s actions were removed
from the protection of the Act.

13 Although Diebold’s assertions related to terms and conditions of
employment, they were, nevertheless, unsubstantiated assertions that
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The complaint is dismissed.

could have ruined numerous longstanding business relationships had
the e-mail escaped to the public.
14 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.