Texas Dental Assn.

National Labor Relations Board - Board Decisions

Jul 29, 2009

354 N.L.R.B. 398 (N.L.R.B. 2009)

354 NLRB No. 57
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Texas Dental Association and Nathan Clark and Bar-
bara Jean Lockerman and Patricia St. Germain.
Cases 16–CA–25349, 16–CA–25383, and 16–CA–
25840
July 29, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On April 10, 2008, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions, a supporting brief, an answering brief,
and a reply brief. The General Counsel filed cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 and to adopt the recommended
Order.4

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
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 In adopting the judge’s conclusion that the Respondent discharged
employee Nathan Clark for engaging in protected concerted activities,
we find it unnecessary to rely on the judge’s statement that disparate
enforcement of the Respondent’s electronic communications policy is
subsumed in that conclusion. Rather, we rely on the judge’s finding
that employees are permitted to use the Respondent’s email system to
send personal emails, and we further note that the employee petition
that Clark emailed to the board of directors did not fall within the
communications prohibited by the Respondent’s rule.
The judge’s discussion of Clark’s discharge included an analysis un-
der Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). To establish a violation
under Wright Line, the General Counsel bears the burden of showing
The Respondent excepts to the judge’s finding that it
violated Section 8(a)(1) by discharging Barbara Jean
Lockerman, who was the general manager of Texas Den-
tal Association Financial Services (TDAFS) and a statu-
tory supervisor. For the reasons set forth below, we
adopt the judge’s finding.
Following an email from Dr. Jay Baxley, related to a
supervisor’s discharge, some of the Respondent’s em-
ployees met at a local restaurant on two occasions.5 At
the first meeting, the employees complained about per-
ceived unfairness and management deficiencies at the
Respondent’s headquarters. Based on these complaints,

that union animus was a motivating or substantial factor for the adverse
employment action. The elements commonly required to support such
a showing are union or protected concerted activity by the employee,
employer knowledge of that activity, and union animus on the part of
the employer. See, e.g., Consolidated Bus Transit, 350 NLRB 1064,
1065 (2007); Desert Springs Hospital Center, 352 NLRB 112, 112 fn. 2
(2008). Member Schaumber notes that the Board and the circuit courts
of appeal have variously described the evidentiary elements of the
General Counsel’s initial burden of proof under Wright Line, some-
times adding as an independent fourth element the necessity for there to
be a causal nexus between the union animus and the adverse employ-
ment action. See, e.g., American Gardens Management Co., 338 NLRB
644, 645 (2002). As stated in Shearer’s Foods, 340 NLRB 1093, 1094
fn. 4 (2003), since Wright Line is a causation standard, Member
Schaumber agrees with this addition to the formulation. In this case, he
finds a causal nexus between the Respondent’s animus toward the
employees’ protected concerted activities and Clark’s discharge.
No party filed exceptions to the judge’s dismissal of the complaint
allegations concerning Patricia St. Germain.
4 The General Counsel excepts to the judge’s failure to order elec-
tronic posting of the notice. In the absence of a majority to grant that
remedy, we deny the General Counsel’s exception. The judge declined
to grant electronic notice posting on the basis that electronic communi-
cations are easily deleted. Member Schaumber does not agree with the
judge’s rationale but finds that electronic posting is not warranted in
this case because the General Counsel has not demonstrated that the
Respondent regularly communicates its employment policies to em-
ployees through electronic mail. See Windstream Corp., 352 NLRB
44, 44 fn. 3 (2008) (personal statement).
Chairman Liebman would grant the remedy, consistent with her dis-
senting position in Nordstrom, Inc., 347 NLRB 294, 294 fn. 5 (2006),
and in light of her view that the evidence here establishes that the Re-
spondent customarily communicates with its employees electronically.
Cf. Valley Hospital Medical Center, 351 NLRB 1250, 1250 fn. 1
(2007) (denying electronic posting, based on insufficient evidence that
respondent employer “customarily communicates with employees
electronically”). See also National Grid USA Service Co., 348 NLRB
1235, 1235 fn. 2 (2006) (personal statement).
The General Counsel also seeks compound interest computed on a
quarterly basis for any monetary amounts owing to the discriminatees.
Having duly considered the matter, we are not prepared at this time to
deviate from our current practice of assessing simple interest. See, e.g.,
Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp.,
344 NLRB 504 (2005).
5 Baxley was a member of the Respondent’s governing body, the
house of delegates, and chairman of its judicial and ethics committee.
Baxley disagreed with the Respondent’s decision to discharge Supervi-
sor Katherine Simms, who provided staff support to his committee,
while retaining another staff member involved in the same activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
employee Nathan Clark drafted a petition for the May
2006 annual session of the Respondent’s house of dele-
gates.6 The petition expressed the employees’ dissatis-
faction and requested an opportunity to “voice [their]
concerns to an impartial outside source, free from any
retaliation or repercussion.” At the second meeting, the
employees signed the petition, using aliases to avoid re-
prisal.
At Clark’s invitation, General Manager Lockerman at-
tended 35–40 minutes of the second employee meeting.7
Clark had mentioned the petition to Lockerman, who had
a history of listening to employees’ concerns. Before
attending the meeting, Lockerman consulted Dr. David
May, then president of TDAFS and president-elect of the
Respondent. May warned her, “Barbara, they’ll be
fired,” and added that there was a chance that she, too,
would lose her job.
Lockerman did not report to the Respondent either her
attendance at the meeting or the employees’ activities.
About a week after the meeting, Clark’s supervisor,
Laura Haufler, urged Lockerman to talk Clark “out of
these activities, because . . . he would be fired.”
Ultimately, Clark emailed the employee petition to
Baxley, who unsuccessfully attempted to present it and
an accompanying resolution to the house of delegates at
the May 2006 annual session. Clark subsequently
emailed the petition anonymously to members of the
Respondent’s board of directors. As the judge found, the
employees’ conduct regarding their complaints and the
petition constituted protected concerted activity under the
Act.
On May 17, following the foregoing events, Executive
Director Linn conducted a staff meeting at which she
stated that anyone who had participated in any way in the
recent “anonymous communications” must contact her as
a condition of employment. As employees left the meet-
ing, several made zipping motions across their mouths,
apparently signifying their intent to remain silent despite
Linn’s direction. Later that day, in an email to the staff,
Linn reiterated her instruction, stating in bold print:
“This is a requirement of your employment & this is a
matter we intend to resolve.” On May 19, the Respon-
dent hired a forensic computer scientist to examine the
hard drives of five staff members suspected by Linn,
including Lockerman and Clark.8

6 All dates are 2006, unless otherwise indicated.
7 The judge found that another unnamed supervisor, as well as about
seven employees, also attended the meeting.
8 The report of this investigation, received in early August, stated
that a fragment of the text of the petition appeared on Clark’s hard
drive. Clark testified that he prepared the petition on his home com-
puter but might have opened it at work. Clark was discharged on Au-
gust 17.
In late June, a rumor circulated that Director of Public
Affairs Jenny Young had said that Lockerman was the
ringleader concerning the incident at the annual session.
Lockerman approached Young and denied such in-
volvement. Young informed Linn of their conversation,
stating that Lockerman had said that she had urged the
employees to “take a different route.” Director of An-
nual Session and Meeting Services Sandy Blum reported
to Linn a similar conversation in which Lockerman had
denied involvement and asserted that she had discour-
aged some staff members from continuing their activity.
Linn instructed Blum to provide her statement in writing,
which she did on August 15.
On August 17, Linn discharged Lockerman. Linn told
Lockerman that, based on Lockerman’s conversations
with Young and Blum, Lockerman had information
about the employee meeting and petition but had failed
to discuss it with Linn. Although Linn offered other ex-
planations for the discharge, the judge properly found
that the sole reason for the Respondent’s action was her
failure to divulge to Linn what Lockerman knew of the
employees’ protected concerted activities.
As the judge noted, even though supervisors are not
protected by the Act, a supervisor’s discharge violates
Section 8(a)(1) under certain limited circumstances, in-
cluding when it is based on the supervisor’s testimony in
a Board hearing or refusal to commit an unfair labor
practice. Parker-Robb Chevrolet, 262 NLRB 402
(1982), enfd. sub nom. Automobile Salesmen’s Union
Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983).9 In
such circumstances, a prohibition against discharging the
supervisor is necessary in order to vindicate employee
rights under the Act and does not unduly trench upon the
employer’s legitimate interests in selecting and trusting
its management team. Thus, the Board has held that an
employer may not terminate a supervisor for insuffi-
ciently advancing the employer’s plan to unlawfully pre-
vent unionization.10
In Howard Johnson Motor Lodge, 261 NLRB 866
(1982), enfd. 702 F.2d 1 (1st Cir. 1983), decided before
Parker-Robb, the Board found that a supervisor refused
to commit an unfair labor practice when she voluntarily
attended a union meeting and refused her employer’s
subsequent demand that she disclose the names of the
employees present. The Board reasoned that, even
though the employer’s demand occurred only after the
meeting, the supervisor “was discharged for, in essence,

9 See also Marshall Durbin Poultry Co., 310 NLRB 68 (1993), enfd.
in relevant part 39 F.3d 1312 (D.C. Cir. 1995); Belcher Towing Co.,
238 NLRB 446 (1978), enfd. 614 F.2d 88 (5th Cir. 1980).
10 Talladega Cotton Factory, 106 NLRB 295 (1953), enfd. 213 F.2d
209 (5th Cir. 1954).
TEXAS DENTAL ASSN. 3
refusing to engage in surveillance of employees’ union
activities for the [employer].” Id. at 866 fn. 2.
Finding the facts of this case analogous to those in
Howard Johnson, the judge concluded that the Respon-
dent’s discharge of Lockerman for refusing its after-the-
fact effort to compel her to disclose the information simi-
larly violated Section 8(a)(1). Because terminating
Lockerman for refusing an order to surreptitiously obtain
information about the employees’ protected activities
would have been unlawful, he found that it was equally
unlawful to coerce Lockerman in order to exact from her
the same information.
We agree with the judge that the Respondent unlaw-
fully discharged Lockerman for her refusal to engage in
an unfair labor practice. However, we need not decide
here whether Linn’s May 17 directive, insofar as it re-
quired Lockerman to divulge what she had learned by
her earlier attendance at the employees’ meeting,
amounted to unlawful surveillance, so that its firing of
Lockerman was equivalent to firing her for refusing to
engage in such surveillance. Rather, in the particular
circumstances of this case, we conclude that the Respon-
dent unlawfully discharged Lockerman for refusing to
participate in its reasonably evident quest to identify and
terminate employees involved in protected concerted
activity.
The Respondent effectively communicated to Locker-
man the validity of the employees’ fear that compromis-
ing the anonymity of their participation in protected con-
certed activity would result in retaliatory discharge.11
When Lockerman contacted May before attending the
employee meeting, May, a senior member of manage-
ment, cautioned that the employees would be fired and
warned that Lockerman’s job could be jeopardized. A
week later, Supervisor Haufler urged Lockerman to per-
suade Clark to cease his involvement in the activities
because otherwise he would be fired. Thus, by the time
Linn met with the staff and directed them to disclose
information about the recent anonymous communica-
tions, Lockerman had a reasonable belief that such in-
formation would lead to the unlawful firing of the em-
ployees involved. Furthermore, the Respondent’s own
retaliatory conduct supports the reasonableness of Lock-
erman’s belief. The Respondent sought to identify the
participants through a forensic examination of their com-

11 The employees took considerable measures to maintain their ano-
nymity with respect to their protected concerted activity. They met
away from the Respondent’s building, signed the petition with aliases,
did not state in the petition specific issues that could be identified with
particular employees, sent the emails to Baxley and the board of direc-
tors anonymously, and signaled to one another by a zipper motion their
intent not to comply with Linn’s instruction to reveal their involvement.
puter hard drives, and it terminated Clark unlawfully
when a fragment of the petition was discovered on his
computer.
An employer may not discharge a supervisor for refus-
ing to take part in the employer’s unlawful attempt to
terminate employees for engaging in protected activi-
ties.12 We find, based on (1) the warnings of May and
Haufler to Lockerman, (2) Linn’s demand that employ-
ees, as a condition of employment, report their participa-
tion in the anonymous activity, (3) the computer forensic
investigation, and (4) Clark’s termination after that in-
vestigation revealed evidence of his involvement, that the
Respondent had embarked on an effort to identify par-
ticipants in order to terminate them for exercising their
rights under the Act. We further find that Linn’s termi-
nation of Lockerman for failure to disclose her knowl-
edge of the employees’ protected concerted activities
was, in substance, a termination because Lockerman
failed to cooperate with the Respondent’s unlawful en-
deavor. In accordance with the cases cited above, we
conclude that the Respondent thereby violated Section
8(a)(1) by discharging Lockerman.
We find no merit to the Respondent’s contention that
Howard Johnson, supra, 261 NLRB 866, is distinguish-
able because Linn did not specifically question Locker-
man about the names of the employees involved. It is of
no consequence that, rather than making specific inquir-
ies of Lockerman, Linn issued a blanket directive for
information and terminated Lockerman upon learning
that she had failed to comply. Moreover, the Respon-
dent’s argument that Linn merely intended to speak with
employees about their complaints is belied by its deter-
mination to identify the employees, as shown by Linn’s
instruction to the staff and the investigation of the sus-
pected staff members’ computer hard drives. Under
these circumstances, it was reasonable for Lockerman to
believe that disclosing the employees’ activities would
have given rise to a demand for their identities and re-
sulted in their unlawful termination.
The Respondent also argues that it had a right to ex-
pect loyalty from its supervisors and that Lockerman was
discharged for disloyalty and insubordination because
she did not reveal her knowledge of the employees’ com-
plaints and their plan to bring those complaints to the

12 See, e.g., Greenwich Air Services, 323 NLRB 1162 (1997) (failure
to cooperate with employer’s plan to fire employee for perceived union
activity); Phoenix Newspapers, 294 NLRB 47 (1989) (failure to par-
ticipate or cooperate with effort to fabricate a justification for discharg-
ing employee because of protected concerted activity); Country Boy
Markets, 283 NLRB 122 (1987), enfd. sub nom. Delling v. NLRB, 869
F.2d 1397 (10th Cir. 1989) (refusal to complete slips providing pretex-
tual reasons for discharging employees who signed union authorization
cards).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
attention of the house of delegates. The Respondent,
emphasizing that Lockerman attended the employees’
meeting at Clark’s invitation, argues that a supervisor’s
report of employee protected activity does not constitute
an unfair labor practice when the information is inno-
cently obtained. See, e.g., J. W. Mays, Inc., 147 NLRB
942 (1964), enfd. as modified 356 F.2d 693 (2d Cir.
1966). Unlike in Mays, however, this case does not in-
volve a voluntary disclosure of information by a supervi-
sor, but rather the discharge of a supervisor for failing to
report employee activity in accordance with Linn’s man-
date. As the cases discussed above make clear, an em-
ployer’s legitimate expectation of loyalty from its super-
visors does not encompass their required cooperation in
an endeavor to violate employees’ statutory rights.
Nor do we agree with the Respondent that the General
Counsel failed to prove that its motive for discharging
Lockerman was her refusal to facilitate the commission
of an unfair labor practice or that it was incumbent upon
the General Counsel to prove that Respondent’s employ-
ees were aware of the basis for Lockerman’s termination.
With respect to the former, Linn testified that she fired
Lockerman for insubordination based on her failure to
reveal what she knew about the employees’ anonymous
activity, which we have found to be protected and con-
certed activity. The Respondent essentially concedes
that it fired Lockerman because she failed to provide
information about the protected concerted activities of its
employees, activities Lockerman reasonably believed
would result in the termination of employees if disclosed.
With the reason for the discharge undisputed, no analysis
of motive under Wright Line, supra, is required. Howard
Johnson Co. v. NLRB, supra, 702 F.2d at 4 fn. 2. Even
were such an analysis needed, we find that the General
Counsel has established a prima facie case that Locker-
man’s discharge was based on her failure to disclose the
information and that the Respondent did not show that it
would have taken the same action in the absence of that
conduct. Thus, the record supports the judge’s rejection
of the additional grounds asserted by the Respondent as
pretext, i.e., a history of undermining Linn, based on a
2005 incident, long since resolved, in which Linn be-
lieved that Lockerman undermined her authority, and
asserted “negativity” based on her exclusion from what
she viewed as Linn’s “old-girl network.”
With respect to the Respondent’s assertion that the
General Counsel must show employee knowledge of the
basis for Lockerman’s discharge as an element of the
violation, that contention is incorrect.13 In Parker-Robb,
the Board explained:
When a supervisor is discharged for testifying at a
Board hearing or a contractual grievance proceeding,
for refusing to commit unfair labor practices, or for fail-
ing to prevent unionization, the impact of the discharge
itself on employees’ Section 7 rights, coupled with the
need to ensure that statutorily excluded individuals may
not be coerced into violating the law or discouraged
from participating in Board processes or grievance pro-
cedures compels that they be protected despite the gen-
eral statutory exclusion.
262 NLRB at 404. Thus, where, as in Lockerman’s case,
the supervisor’s discharge is based on a refusal to participate
in a violation of the law, the unlawfulness of the discharge
inheres in the discharge’s direct impact on employee rights,
and it is not necessary to also show a secondary effect on
employee rights, by way of their knowledge of the reason
for the discharge.14
Even if the Respondent were correct in its assertion
that the General Counsel must show employee knowl-
edge of the basis for Lockerman’s discharge, we find that
the record demonstrates such knowledge. Employees
were aware of the Respondent’s efforts to obtain supervi-
sors’ cooperation in its antiunion efforts, based on Linn’s
statement to staff supervisors and employees that they
were expected to come forward with information about
the recent protected concerted activity as a condition of
their employment. Similarly, based on Lockerman’s
presence at the restaurant meeting of employees, Linn’s
directive, and Lockerman’s firing on the same day that

13 Board precedent does not establish that employee knowledge is an
element of the General Counsel’s case. See, e.g., Greenwich Air Sys-
tems, supra (no mention of employee knowledge); Country Boy Mar-
kets, supra (same); and Phoenix Newspapers, supra (same).
14 The Respondent relies on two circuit court decisions, Russell
Stover Candies, Inc. v. NLRB, 551 F.2d 204 (8th Cir. 1977), and Gen-
eral Engineering, Inc. v. NLRB, 311 F.2d 570 (9th Cir. 1963), for the
proposition that employee knowledge of the reason for the discharge is
an essential element of the violation when a supervisor is discharged
for refusing to commit an unfair labor practice. That reliance is mis-
placed. Both of those cases antedated the Board’s determination in
Parker-Robb, supra, that the Act prohibits a supervisor’s discharge
when it directly interferes with employee rights, such as when it is
based on the supervisor’s refusal to commit an unfair labor practice, but
not when the discharge creates only the secondary effect of causing
employees to reconsider their participation in protected activities.
Employee knowledge of the reason for the discharge would be relevant
only in the latter category. Moreover, the courts in the cases relied on
by the Respondent based their decisions on more basic grounds. Rus-
sell Stover, supra (court considered only whether actual interference
with employee’s exercise of Sec. 7 rights must be shown for supervi-
sor’s discharge to be found unlawful); General Engineering, supra
(court found that substantial evidence did not support Board’s finding
concerning basis of supervisor’s discharge).
TEXAS DENTAL ASSN. 5
Clark was terminated for his protected concerted activi-
ties, we find that employees would reasonably compre-
hend the connection between the two actions and thus the
reason for Lockerman’s discharge.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Texas Dental Association,
Austin, Texas, it officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Dated, Washington, D.C. July 29, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Roberto Perez, Esq., for the General Counsel.
Lin Hughes, Brian T. Thompson, and William H. Bingham,
Esqs., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Austin, Texas, on February 11 and 12, 2008, pur-
suant to an amended consolidated complaint that issued on
February 1, 2008.1 The complaint alleges that the Respondent
discharged employee Nathan Clark in violation of Section
8(a)(1) of the National Labor Relations Act because he engaged
in protected concerted activity, discharged supervisor Barbara
Jean Lockerman in violation of Section 8(a)(1) of the Act be-
cause she refused to commit unfair labor practices, and inter-
fered with, restrained, and coerced employee Patricia St. Ger-
main with regard to her Section 7 rights in violation of Section
8(a)(1) Act. The Respondent’s answer denies any violation of
the Act. I find that the discharges of Clark and Lockerman vio-
lated the Act as alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Texas Dental Association (the Association), a Texas corpo-
ration, is a professional association that advocates on behalf of
the dental profession from its offices in Austin, Texas. It annu-

1 All dates are in 2006 unless otherwise indicated. The charge in
Case 16–CA–25349 was filed on December 12, the charge in Case 16–
CA–25383 was filed on January 8, 2007, and the charge in Case 16–
CA–25840 was filed on October 4, 2007.
ally derives gross revenues in excess of 1 million and purchases
and receives materials and services valued in excess of $50,000
directly from points located outside the State of Texas. The
Respondent admits, and I find and conclude, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Discharges
1. Overview
The Association has a membership of over 7,700 dentists in
the State of Texas. The executive director of the Association is
Mary Kay Linn, who reports to the board of directors. The
board of directors consists of 26 members elected in May of
each year at the Association’s yearly convention, referred to as
the annual session, by 119 voting delegates who represent vari-
ous dental councils and committees throughout the State. In
May 2006, the president was Dr. Richard Black. From May
2006 until May 2007, the president was Dr. Tommy Harrison.
The current president, who assumed office in May 2007, is Dr.
David May.
The Association, at its Austin, Texas office, employs ap-
proximately 30 individuals in various departments including
membership, finance, ethics, and communications. The super-
visors of the various departments are designated as Directors,
not to be confused with the board of directors. The Association
also has a Department of Financial Services, a for-profit entity
that endorses products. Director Barbara Lockerman was su-
pervisor of that department until her discharge.
Employees Nathan Clark and Patricia St. Germain worked in
the finance department and were supervised by Director of
Finance Laura Haufler.
The annual session in 2006 was held in San Antonio, Texas.
Dr. Jay Baxley, a delegate but not a member of the board of
directors, introduced a resolution calling for an investigation of
the management of the staff of the Association by an outside
source selected by the auditor of the Association. He also at-
tempted to present a petition signed with the aliases of 11 em-
ployees but was not permitted to do so. Within a day or two
after the convention, employee Nathan Clark, who had drafted
the petition, anonymously sent it to the board of directors. On
May 17, Executive Director Linn required that anyone with
knowledge of these “anonymous communications” meet with
her. None of the employees involved did so.
On August 17, following an investigation of computer hard
drives, Clark and Lockerman were fired for various stated rea-
sons including failure to comply with Linn’s May 17 directive.
2. Facts
Although employees of the Association had various com-
plaints, prior to 2006 those complaints had not resulted in any
protected concerted activity. On February 28, Katherine
Simms, director of ethics, a supervisor as defined in the Act,
was discharged by Executive Director Linn. Simms’ discharge
followed her breaking off a relationship with a coworker who
was also a supervisor. Simms took issue with the discharge
decision, hired an attorney, and spoke with Dr. Jay Baxley, who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
at that time was chairman of the Ethics and Judicial Committee
of the Association and had regularly dealt with Director of
Ethics Simms. Dr. Baxley raised his concerns that Simms had
been unfairly treated with the members of the Ethics and Judi-
cial Committee. The committee agreed. Dr. Baxley sought to
raise the matter with the board of directors but was informed
that “it was outside your committee’s scope of duty.” Dr Bax-
ley concluded that the board of directors and executive director
“were going to sweep this under the rug the best they could.” In
an effort “to bring up the issue,” Dr Baxley, on March 21, sent
an email to various members of the Association as well as to
staff employees of the Association to which he attached an
arrest record pertaining to the coworker with whom Simms had
broken off the relationship. The email, as confirmed by the
arrest record that was attached, stated that the coworker had
been “caught on TDA [Texas Dental Association] premises
using/possession [sic] of marijuana and other drug parapherna-
lia.” The email also stated that the coworker had recently “al-
legedly inappropriately touched another TDA employee.” The
email concludes by asking whether the Association “want[ed]
people like this represent us.”
On March 21, Dr. Herbert Wade, Chairman of the Internal
Affairs Committee of the Association, wrote Dr. Baxley direct-
ing that he cease any involvement in “these pending legal is-
sues.” Dr. Baxley ignored the directive.
Among the responses to his email, Dr. Baxley received
anonymous communications from staff members noting that
this “was typical,” that when issues came up that Executive
Director Linn did not like, she would “squelch” them either by
making the life of the complaining employees “difficult or by
terminating them.” The emails that Dr. Baxley received made
him aware of various complaints of staff members including
complaints relating to the facility, alleged financial improprie-
ties, and unfair treatment.
Following the receipt of Dr. Baxley’s March 21 email, staff
employees began speaking with each other regarding various
issues. There were two meetings at a local restaurant. The first
was after work in late March. It was attended by about seven
employees as well as two unidentified “directors,” i.e. supervi-
sors. Various concerns were discussed in addition to the termi-
nation of Director of Ethics Simms. The concerns included the
December 2005 termination of employee Victor Sanchez, a
Hispanic maintenance employee. Employee Clark spoke about
what he considered to be financial improprieties and problems
relating to the building at which the employees worked includ-
ing the pooling of water in the parking lot, suspected mold on a
wall, and a nonfunctioning light in the south stairwell, problems
that had been raised but which in March 2006 still existed.
Clark recalled that one employee complained that she had been
requested to take certain hours off of her timecard, and another
complained of alleged sexual harassment. Employee Patricia St.
Germain stated her opinion that the employees needed to “stand
as one.” Although she anticipated that this would involve meet-
ing with Executive Director Linn, other employees were
“frightened to go to her or didn’t trust going to her.” The idea
of a petition was discussed. The employees were uncertain
whether they could petition the board of directors, and it was
decided that a petition would be submitted to the House of
Delegates.
Following that meeting, Clark went home and drafted a peti-
tion on his personal computer. Thereafter, the employees again
met at the local restaurant. On this occasion, about five or six
employees and one director, Barbara Lockerman, were present.
Lockerman arrived after the meeting began and left before it
ended. The employees were concerned about retaliation, and, in
view of that concern, the employees used aliases when signify-
ing their support of the petition. St. Germain and employee
Teresa Kim gave up their anonymity at the hearing and identi-
fied their particular alias, thus confirming that the petition was
supported by more than one employee. Clark testified that all
11 aliases that appear on the petition are employees of the As-
sociation, and I credit that testimony.
Prior to going to the meeting, Lockerman called Dr. David
May, with whom she worked on a regular basis because he was,
at that time, President of TDA Financial Services. Dr. May is
currently president of the Association. Lockerman informed
May that she had no idea what was being discussed and ques-
tioned “whether a meeting could take place,” noting that she
wanted some guidance. She recalls that Dr. May told her, “Bar-
bara, they’ll be fired.” Although Dr. May did not recall saying
“all employees,” he did recall that he cautioned Lockerman
about becoming involved, stating that, if she did so, “there’s a
chance you could lose your job.” I credit Lockerman’s testi-
mony that Dr. May spontaneously stated, “Barbara, they’ll be
fired,” upon learning of the employee activity. Although Lock-
erman attended a portion of the meeting, she heeded the advice
of Dr. May and did not sign the petition. About a week after the
meeting, Director of Finance Laura Haufler, who is the direct
supervisor of both Clark and St. Germain, spoke with Locker-
man and asked her to talk Clark “out of these activities, because
. . . he would be fired.” Lockerman explained that she could not
do so, that “Nathan is his own person.”
Following the second meeting at the restaurant, Clark drafted
a resolution that called for an independent investigation of the
management of the staff of the Association. He sent the draft of
the resolution anonymously to Dr. Baxley, and stated that he
would be sending a petition in support of the resolution which
Clark understood Dr. Baxley would present at the Annual Ses-
sion. Shortly after receiving that letter, Dr. Baxley received the
petition bearing the 11 aliases.
The petition, titled, A Petition from Concerned Staff of the
Texas Dental Association, in pertinent part, states:
In order to better serve the membership of an organization for
which we have gained great respect and affection . . . [we] are
humbly requesting your assistance. In recent years, we have
watched and been saddened as poor management, a dwin-
dling morale, and a declining work ethic . . . has pervaded
your central office in Austin. Many of us have tried on nu-
merous attempts to correct these problems by bringing them
to the attention of current management through use of the
“proper channels.” Unfortunately, our concerns have gone
unanswered and we are now compelled to ask for your help
. . . .We seek not to point a finger at any individual member of
the staff, but to voice our concern to an impartial outside
TEXAS DENTAL ASSN. 7
source, free from any retaliation or repercussion. You will be
surprised when you begin to hear specific examples of poor
management, negligence, and unfair treatment that have oc-
curred. . . . We sign anonymously for fear of retaliation and
not because we do not truly believe in this cause. . . . Please
help us make your Texas Dental Association what it needs to
be—a better, fairer, and more ethical place to work,—so that
it can work better for you.
Dr. Baxley was a delegate at the Annual Session. Near the
end of the first day, when the floor was opened for new busi-
ness, he asked to read the employee petition. The speaker re-
quested to see the petition, and Dr. Baxley complied. Dr. Bax-
ley was told that he could not read the petition. He was allowed
to read his resolution calling for an independent investigation,
but, as soon as he finished reading it, he was informed that it
was “totally outside the scope of this meeting.” He called the
question, and the resolution was defeated.
Clark sent the petition, anonymously, to the board of direc-
tors. Within a few days, Dr. Baxley learned from staff members
that what was described as a “witch hunt” had begun in an ef-
fort “to find out exactly who these people were, how they were
in communication with me.”
The witch hunt to which Dr. Baxley referred began on
Wednesday, May 17, when Executive Director Linn held a staff
meeting in which she directed anyone who had participated in
any way in “these anonymous communications” to contact her
as a condition of their employment. Linn had learned that the
petition, which Dr. Baxley had not been allowed to read, had
been sent anonymously to the board of directors. As the em-
ployees were leaving the meeting, employee St. Germain noted
that several employees “were making zipper motions across
their mouth.” On the same date, Linn sent an email to the staff
stating:
Just to reiterate what I said at today’s staff meeting re-
garding the anonymous communications—
By now I am sure that each of you knows what took
place on the House Floor on Thursday with Dr. Baxley
and the reaction of the House of Delegates regarding the
anonymous communication. We have now had another
anonymous communication that was sent to the Board of
Directors.
In order to allow one more opportunity to discuss any
concerns within appropriate channels, I expect that anyone
who has participated in anyway [sic] in these anonymous
communications to call or e-mail me by the end of this
week to schedule an appointment with me on an individual
basis. I will be traveling over the next few days so call me
. . . or e-mail . . . me . . .
This is a requirement of your employment & this is a
matter we intend to resolve. [Emphasis in the original.]
On May 18, employee St. Germain, identifying herself as
“[a] concerned TDA staff member,” wrote the then current
president of the Association, Dr. Harrison, and the president
elect, Dr. May, expressing dismay that the Executive Director
had directed that all who had “participated in the petition”
make an appointment with her as a “condition of our employ-
ment.” The letter points out that the termination of Simms “was
only one among many issues.” In that regard, St. Germain
noted that the “best receptionist” that the Association ever had
resigned after “being given way too many duties.” The recep-
tionist had protested and employees “felt that a case was being
built against her that was not based in truth.” Although the
request in the petition for an independent investigation had not
been granted, St. Germain’s letter states that the staff looked
forward to “a day when we need not be in fear for our jobs” and
requests appointment of a personnel committee that “can re-
spond to directors and staff impartially.”
Executive Director Linn, after consulting with the board of
directors, hired Andrew Rosen, a forensic scientist who special-
izes in computer storage devices and file systems. On May 19,
legal counsel to the board of directors forwarded the petition to
Rosen. Linn identified five “suspects” whose computer hard
drives were examined. The five were employees Clark and St.
Germain and three directors, including Lockerman. The exami-
nation revealed a “fragment of the text” of the petition on
Clark’s computer. Clark, at the hearing herein, acknowledged
that, although he drafted the petition on his personal computer
at home, he may have opened it at the office.
On June 27, Director of TDA Financial Services Lockerman
heard rumors that Director of Public Affairs Jenny Young was
saying that she, Lockerman, was the “ringleader” regarding
what had happened at the Annual Session in San Antonio.
Lockerman confronted her and denied any involvement. Young
denied to Lockerman that she had made any statements relating
to Lockerman’s alleged involvement. On June 28, Young sent a
memorandum to Executive Director Linn reporting the conver-
sation and stating that Lockerman had said that she had tried to
advise the employees to “take a different route.” Young did not
testify.
In July, Director of Annual Session and Meeting Services
Sandy Blum reported to Linn that Lockerman, referring to
Young’s description of her as the “ringleader,” had denied any
involvement but acknowledged trying “to discourage some of
the other staff not to continue this activity.” Although directed
to reduce her statement to writing, Blum did not do so until
August 15. Blum did not testify.
Linn mentioned Lockerman’s conversations with Young and
Blum to Lockerman at the time of her termination. Lockerman
protested that she did not think it was fair, that they were not
present, thus she was in no position to defend herself regarding
what they had reported that she had said. Linn cut Lockerman
off stating, “This is no time for discussion.” As already noted,
Director of Finance Haufler had asked Lockerman to talk Clark
“out of these activities, because . . . he would be fired,” but
Lockerman pointed out that Clark “was his own person.” There
is no probative evidence that Lockerman had any involvement
in the activities of the employees following her attendance at
the second meeting at the restaurant. Linn admitted on cross
examination that she believed that Haufler “knows more than I
think she knows.” Nevertheless, Linn took no action against
Haufler, who did not testify, for withholding information. Al-
though Haufler is a director, i.e., supervisor, Linn’s inaction
with regard to Haufler confirms the perception of employees
stated in the petition relating to unfairness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Linn received the report of forensic scientist Rosen in early
August. Only Clark was implicated as a result of the search of
the computer hard drives. On August 17, Linn discharged Clark
and Lockerman. On the same day she informed St. Germain
that Clark had been discharged and spoke with her regarding a
conversation that St. Germain and Clark had with auditor Patti
Schmidt in late April or May following a settlement that the
Association made with Simms on April 19.
On August 17, Executive Director Linn called Clark to her
office. Director Haufler, his supervisor, was present. Linn read
from a prepared document and informed Clark that he was
being discharged for “participating in this anonymous email
scheme and ignoring my request” of May 17 to meet with her
on an individual basis. She stated that Clark has also inappro-
priately used “the Association’s computer and email system” in
violation of the Electronic Communications Policy and had
acted “outside the scope of his responsibilities” by making
“inappropriate enquiries into Katherine Simms’ settlement in a
discussion with the auditor.”
The discussion with auditor Schmidt occurred in a telephone
conversation following the settlement that the Association
made with Simms. Clark and St. Germain had questioned
Schmidt as to whether it was proper to code the legal settlement
with Simms as salary, which they had been told to do. Linn
admitted that it was not improper for them to call the auditor
regarding how to code something. She acknowledged that,
since Clark paid the bills, he would have known the amount of
the settlement but would “guess” that they were seeking “more
information regarding the settlement.” She cited no basis for
her “guess.” Schmidt did not testify. Although Linn claimed
that their conversation regarding the coding was “very inappro-
priate,” she spoke with neither of them at the time. She did not
inform St. Germain that the conversation was inappropriate
until after she had cited it when discharging Clark.
The Association has two policies relating to employee use of
equipment of the Association. The Information Technology
provision at page 18 of the Association’s Personnel Policy
Manual permits employees to use software and business equip-
ment for reasonable personal purposes so long as they reim-
burse the Association for such use including specifically long
distance calls and copies of documents. It cautions that such use
is “at their own risk,” including specifically “loss of privacy.”
In addition, the Association promulgated an Electronic Com-
munications Policy that states that electronic communications
are provided “as communications tools for conducting Associa-
tion business. No other use of Association electronic communi-
cations is authorized. In addition, the electronic communica-
tions tools provided by the TDA may not be used to solicit or
proselytize for commercial ventures, religious or political
causes, outside organizations, or other non-job-related solicita-
tions.”
Executive Director Linn, in her testimony, did not harmonize
the inherent contradictions between the Information Technol-
ogy and Electronic Communications Policy. Documentary evi-
dence, including multiple personal emails from and to various
employees and supervisors at the Austin office, the forwarding
of jokes, and solicitation for the sale of Girl Scout cookies,
establishes that the official use only requirement of the Elec-
tronic Communications Policy was not adhered to. Executive
Director Linn acknowledged that prior to the discharge of Clark
no employee had been disciplined for violation of that policy.
Following my receipt of several documents demonstrating the
absence of adherence to the new policy, Counsel for the Re-
spondent stated that there was no question that “we [the Asso-
ciation] allow personal emails from the employees,” the prac-
tice permitted by the Information Technology provision of the
Personnel Policy Manual. Counsel further stated that the Asso-
ciation did not allow “employees to take the membership list
and email addresses of the members of the Association and use
it for their personal business,” but Executive Director Linn
admitted that the Association publishes a membership directory
that can be purchased by members of the general public. Re-
garding email addresses, Linn testified that if an employee had
sent out an email to the delegates selling Girl Scout cookies that
“[t]hey would not have been fired,” that she would have “sat
down and talked to them and put something in their personnel
file.”
On September 14, when responding to the claim of Clark for
unemployment benefits, Linn stated that he was discharged for
insubordination, violation of the Electronic Communications
Policy, and acting outside the scope of his responsibilities.
When testifying pursuant to Section 611(c) of the Federal
Rules of Evidence, Linn confirmed to Counsel for the General
Counsel that the foregoing three reasons were the basis for
Clark’s discharge. When called by the Respondent, Linn agreed
with Counsel for the Respondent that part of the reason for
Clark’s discharge was bringing “confidential personnel issues
to the attention of people outside the board of directors.” The
confidential personnel issues were not delineated. The petition
reveals no confidential personnel issues. No individual, specifi-
cally Simms, is named. Insofar as the petition was not read, its
concerns were not brought to the attention of people outside the
board of directors. Clark sent the petition to the board of direc-
tors, not the delegates.
In the prepared statement that Linn read to Clark when dis-
charging him, she informed him that “one of the documents”
had been found on the hard drive of his computer. Clark was
not questioned nor given an opportunity to explain how this
might have occurred. Although Linn denied that she would
have “fired someone” who came forward pursuant to her direc-
tive and asserted that she would have “listened to them and
counseled them on how to appropriately go through the com-
plaint process,” the foregoing denial and assertion were not
given specifically with regard to Clark. Insofar as there being
any contention that the foregoing testimony related to Clark, I
do not credit it.
On August 17, Director Lockerman was also discharged.
Linn, citing her conversations with Young and Blum, stated
that it was evident that Lockerman “had information of events
leading up to the Annual Session petition and the anonymous
emails and failed to discuss your knowledge with me. This is
insubordination on two levels—as a manager and an em-
ployee.” Linn also cited Lockerman for “undermining my au-
thority,” a reference to an event in 2005 regarding a paid time
off policy. Lockerman had been counseled regarding that mat-
ter shortly after it had occurred. Linn also referred to “hosting
TEXAS DENTAL ASSN. 9
employee grievances in your office.” This alleged dereliction
that purportedly contributed to her discharge was the fact that
Lockerman “always was willing to listen to people and their
concerns.” Linn admitted that she discharged Lockerman
“mainly for not coming to me . . . as I requested” on May 17
regarding her knowledge relating to the petition submitted by
the employees.
3. Analysis and concluding findings
a. The discharge of Nathan Clark
Section 7 of the Act protects the right of employees “to en-
gage in . . . concerted activities for [their] . . . mutual aid or
protection, and Section 8(a)(1) of the Act prohibits employers
from interfering, restraining, or coercing employees in the ex-
ercise of that right. The complaint alleges that Clark was dis-
charged because he engaged in protected concerted activity.
Employee activity is concerted when it is “engaged in with or
on the authority of other employees,” and a respondent violates
the Act if, having knowledge of an employee’s concerted activ-
ity, it takes adverse employment action that is “motivated by
the employee’s protected concerted activity.” Meyers Industries
(Meyers I), 268 NLRB 493, 497 (1984). In this case, the com-
munications that were submitted in the course of the employ-
ees’ concerted activity were anonymous, but anonymous sub-
missions do not lose the protection of the Act. Chrysler Credit
Corp., 241 NLRB 1079 (1979). Although Dr. Baxley had been
directed not to involve himself in personnel matters, he at-
tempted to present the petition at the Annual Session, and Clark
thereafter sent it to the board of directors. Employee communi-
cations to third parties are protected. North Carolina License
Plate Agency #18, 346 NLRB 293 (2006).
Employee Clark was discharged as soon as the Respondent
had evidence of his involvement in the activities of the employ-
ees as established by the finding of a fragment of the petition
on the hard drive of his computer.
The Respondent argues that the activities of the employees
herein were not concerted because they related to the discharge
of Simms, a supervisor, and that there is no evidence that
Simms affected the terms and conditions of employment of
Clark, St. Germain, or Kim, the three statutory employees who
testified. I reject that contention. The petition does not mention
Simms. Although the treatment of Simms was the issue upon
which Dr. Baxley was focused, the record establishes, consis-
tent with statement in the May 18 letter from St. Germain in
which she identified herself as “[a] concerned TDA staff mem-
ber,” the termination of Simms “was only one among many
issues.” Although Kim was concerned about “fairness” with
regard to Simms, Clark was concerned about fairness with re-
gard to Hispanic employee Victor Sanchez, and St. Germain
was concerned regarding the treatment of the former reception-
ist as expressed in her email. Although arguing that the com-
plaints regarding the condition of the building were “not the
complaints of any employee but himself [Clark],” the Respon-
dent neglects to note that the photographs of pooled water in
the parking lot (GC Exh. 36), were taken by St. Germain who
described it as a “chronic problem . . . since our maintenance
man [Sanchez] had been fired.” Clark testified without contra-
diction that one employee was complaining about being re-
quested to take certain hours off of her timecard and another
about alleged sexual harassment.
Contrary to the argument in the brief of the Respondent, the
activity of the employees was not confined to the Simms situa-
tion. Although the Simms situation was the concern of Dr. Bax-
ley and employee Teresa Kim, Simms’ termination was simply
the catalyst for the protected concerted activity of the employ-
ees that encompassed multiple issues and concerns unrelated to
Simms. Any contention to the contrary is refuted by the fact
that the petition does not mention Simms. It refers to “poor
management, negligence, and unfair treatment “Allegations of
unfair treatment constitute protected concerted activity.
Winston-Salem Journal, 341 NLRB 124, 125 (2004). “The Act
is concerned with concerted activity, not concerted thought.
Any contention that a failure of all participants in a group activ-
ity to entertain identical reasons for engaging in that activity
renders the activity individual rather than concerted is plainly
without merit.” Advance Cleaning Service, 274 NLRB 942, 945
fn. 3 (1985). The result of the employee’s activity was the pro-
tected concerted submission of the petition that complained of
“poor management, negligence, and unfair treatment.” The
petition goes on to state that the employees seek “to voice our
concerns to an impartial outside source free from any retaliation
or repercussion” in order to have “a better, fairer, and more
ethical place to work.” The defeated resolution called for ap-
pointment of an impartial and outside source. Executive Direc-
tor Linn testified that she “understood it [the petition] to be
some very disgruntled employees who have some issues but
who are not being specific and who have not gone through the
specific channels to express their concerns.” The foregoing
testimony establishes her belief that the petition related to “is-
sues” and that it came from “disgruntled employees.” A re-
spondent’s belief that protected activity has occurred is control-
ling. Henning and Cheadle, 212 NLRB 776, 777 (1974). The
petition refers to unsuccessful attempts addressed to “current
management through use of the ‘proper channels.’” The attempt
of the “disgruntled employees” to have their claims of unfair-
ness and unresponsiveness by current management addressed
impartially constituted protected concerted activity relating to
their working conditions.
The Respondent, in its brief, argues that there is “no evi-
dence that Clark was discharged because he engaged in pro-
tected concerted activity (which he was not), rather than for
disobeying a direct order and attempting to obtain the details of
a confidential settlement.” There is no evidence that Clark at-
tempted to obtain the details of a confidential settlement. He
questioned the coding of the Simms settlement, the amount of
which he was aware because of his duties. Linn acknowledged
that speaking with the auditor regarding coding was appropriate
but that she would “guess” that Clark and St. Germain were
seeking “more information regarding the settlement.” She con-
sidered their conversation with auditor Schmidt regarding the
coding to be “very inappropriate.” There is no evidence that
Clark sought “more information.” If he had done so, Schmidt
would have confirmed that fact. Schmidt did not testify. The
fact that Linn did not seek to speak with either Clark or St.
Germain in late April or May, when she claims that she learned
of their inquiry regarding coding, establishes that this inquiry
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
by Clark was proper and that any contention that it was im-
proper is a pretext.
Clark’s disobedience of the direct order to report any in-
volvement regarding “anonymous communications,” i.e., the
petition and emails, was protected concerted activity. The Re-
spondent cites no precedent requiring employees to confess
their involvement in protected activity when requested to do so.
Coercive interrogations relating to employees’ protected rights
violate the Act. Indeed, employees are excused from failing to
tell the truth when interrogated regarding their protected activi-
ties insofar as their responses constitute “a continuation of . . .
[their] protected, concerted activities.” Earle Industries, 315
NLRB 310, 315 (1994). The employees’ concern about retalia-
tion stated in the petition and several employees “making zip-
per motions across their mouth” on May 17 confirm that their
failure to come forward was a continuation of their protected
concerted activity. Clark failed to submit to a meeting on “an
individual basis” regarding whether he “participated in anyway
[sic] in these anonymous communications.” By failing to re-
spond, Clark effectively untruthfully informed the Respondent
that he was not involved. After the examination of the hard
drive of Clark’s computer revealed fragments of the petition, he
was not questioned regarding how that might have occurred
relative to authorized or unauthorized use of the computer. He
was discharged for failure to respond to the directive relating to
participation in “anonymous communications.” Respondent’s
purpose in making that demand was “to determine who had
been engaged in . . . protected concerted activity,” the prepara-
tion of the petition and emails. United Service Automobile
Assn., 340 NLRB 784, 786 (2003). Employees are not required
to divulge their involvement in protected activity. Clark’s fail-
ure to respond to the Respondent’s directive “did not constitute
a lawful reason to discharge” him. Ibid; see also Alamo Rent-A-
Car, 336 NLRB 1155 (2001).
An analysis pursuant to Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981). cert. denied 455
U.S. 989 (1982), is appropriate in cases that turn upon the re-
spondent’s motivation, not in cases where there is no motiva-
tion issue. Phoenix Transit System, 337 NLRB 510 (2002).
There is no motivation issue in this case. Clark was discharged
when fragments of the petition were found on the hard drive of
his computer. The fragments established that Clark failed to
comply with the directive that any employee who “partici-
pated” in any way in the anonymous communications meet
individually with Linn. The petition and communications sent
by Clark anonymously constituted protected concerted activity,
and he was not obligated to respond to the directive that he
reveal his involvement. By discharging Clark for his protected
concerted activity, the Respondent violated Section 8(a)(1) of
the Act.
Even if this be viewed as a mixed motivation case, the Gen-
eral Counsel established that Clark engaged in protected con-
cerned activity and that the Respondent had knowledge of that
activity. The spontaneous remark of Dr. May that “they’ll be
fired,” and the undenied conversation in which Director Hau-
fler, Clark’s direct supervisor, asked Lockerman to talk him out
“these activities, because . . . he would be fired,” establish ani-
mus. Clark was told that he was discharged for “participating in
the anonymous email scheme and ignoring” the May 17 request
of Linn to meet with her on an individual basis. The Respon-
dent has not established that Clark would have been discharged
in the absence of those reasons. He was also told that he had
violated the Electronic Communications Policy and that he had
acted “outside the scope of his responsibilities” regarding the
Simms settlement. As already discussed, Clark’s inquiry re-
garding the coding of the settlement was proper, and this as-
serted reason that Linn did not mention to Clark until August
was a pretext.
Prior to the discharge of Clark, no employee had been disci-
plined for an alleged violation of the Electronic Communica-
tions Policy. Linn told Clark that he had inappropriately used
“the Association’s computer and email system” in violation of
that policy, but employees are permitted to send personal
emails pursuant to the Information Technology provision in the
Personnel Policy Manual. At the hearing, Linn agreed with
Counsel for the Respondent that part of the reason for Clark’s
discharge was bringing “confidential personnel issues to the
attention of people outside the board of directors,” but the peti-
tion reveals no confidential personnel issues, and Clark sent the
petition to the board of directors, not the delegates. There is no
probative evidence that Clark’s use of the email addresses of
the board of directors would have resulted in discharge absent
his protected concerted activity. Any doubt in that regard is
erased by Linn’s admission that if an employee had sent out an
email to the delegates selling Girl Scout cookies “[t]hey would
not have been fired.” The Respondent has not established that
Clark would have been discharged in the absence of his pro-
tected concerted activities.
Following the decision by the Board in Register Guard, 351
NLRB 1110 (2007), the complaint was amended to delete an
allegation that the Electronic Communications Policy violated
Section 8(a)(1) of the Act. The complaint now alleges disparate
enforcement of the policy with regard to Clark. Insofar as Clark
would not have been discharged absent his protected activity,
the disparate enforcement of that policy is subsumed in my
finding that the Respondent discharged Clark for engaging in
protected concerted activity.
b. The discharge of Barbara Jean Lockerman
The complaint alleges that Lockerman was discharged for re-
fusal to engage in unfair labor practices. Lockerman was dis-
charged because she “had knowledge of events leading up to
the Annual Session petition and the anonymous emails and
failed to discuss” her knowledge with Linn which was insubor-
dination on two levels, “as a manager and an employee.” Linn
also cited Lockerman for “undermining my authority,” a refer-
ence to an event in 2005 regarding a paid time off policy about
which Lockerman had been counseled at the time and “hosting
employee grievances in your office,” referring to the fact that
Lockerman “always was willing to listen to people and their
concerns.”
I reject any contention that the incident regarding the paid
time off policy in 2005, or “hosting grievances” played any part
in the discharge determination. They are pretextual. Linn coun-
seled Lockerman in 2005 when the incident occurred. Linn
admitted that “hosting grievances” meant that Lockerman “al-
TEXAS DENTAL ASSN. 11
ways was willing to listen to people and their concerns,” hardly
a reason for termination.
I find that the sole reason for the discharge of Lockerman
was her failure to come forward with her knowledge relating to
the petition, the protected concerted activity of the employees,
after Linn directed all employees and supervisors to do so on
May 17.
Board precedent, consistent with the exclusion of supervisors
from the protection of Act, interprets that exclusion strictly. In
Parker Robb Chevrolet, 262 NLRB 402 (1982), the Board re-
jected prior cases that suggested that the discharge of a supervi-
sor as an “integral part” of an employer’s antiunion campaign
or as a “pattern of conduct” consistent with coercing employees
in the exercise of their Section 7 rights violated the Act. The
Board held that discrimination against a supervisor will be
found to violate the Act only when the discriminatory action
impinges directly upon employee Section 7 rights stating:
As noted above, the Board has found that, when a supervisor
is discharged for testifying at a Board hearing or a contractual
grievance proceeding, for refusing to commit unfair labor
practices, or for failing to prevent unionization, the impact of
the discharge itself on employees’ Section 7 rights, coupled
with the need to ensure that even statutorily excluded indi-
viduals may not be coerced into violating the law or discour-
aged from participating in Board processes or grievance pro-
cedures, compels that they be protected despite the general
statutory exclusion. In contrast, although we recognize that
the discharge of a supervisor for engaging in union or con-
certed activity almost invariably has a secondary or incidental
effect on employees, . . . this incidental or secondary effect on
the employees is insufficient to warrant an exception to the
general statutory provision excluding supervisors from the
protection of the Act. . . . The discharge of supervisors is
unlawful when it interferes with the right of employees to ex-
ercise their rights under Section 7 of the Act, as when they
give testimony adverse to their employers’ interest or when
they refuse to commit unfair labor practices. Id at 404 [fns.
omitted].
Although an employer may obtain knowledge of employees’
protected Section 7 activity as a result of information volun-
teered by those employees, an employer may not interfere with,
restrain, or coerce employees in the exercise of their Section 7
rights by engaging in surveillance or coercively interrogating
employees in order to obtain information regarding their pro-
tected activities. The employees feared retaliation. They sought
to protect their anonymity, and they therefore submitted the
petition anonymously.
The Respondent, in its brief, points out that Lockerman was
not directed to engage in surveillance, but contends that “it
would not have been unlawful for Lockerman to have voluntar-
ily reported her innocently-acquired knowledge of the employ-
ees’ activity; in fact, it would have been loyal to TDA’s [the
Association’s] interest had she alerted Ms. Linn to the em-
ployee plans,” and that she should have done so. The issue here
is not, however, what the Respondent believes that Lockerman
should have done. The issue is whether the Respondent could
require that she divulge the information that she obtained as a
result of her voluntary attendance at a portion of the second
meeting where she learned of the existence of the petition and
the identities of the employees in attendance. Board precedent
establishes that the Respondent was not entitled to that informa-
tion and that Lockerman was entitled to withhold it.
In Howard Johnson Motor Lodge, 261 NLRB 866 (1982),
the Board held that the discharge of a supervisor who had vol-
untarily attended a union meeting and thereafter refused to
report upon the employees involved in that protected activity
constituted refusal to commit an unfair labor practice and vio-
lated the Act. Id. at fn. 2. Although that case was decided prior
to Parker Robb Chevrolet, the finding meets the criterion that a
supervisory discharge violates the Act when the supervisor
refuses “to commit unfair labor practices.” I need not attempt to
paraphrase the following applicable analysis stated by Adminis-
trative Law Judge Stanley Ohlbaum in Howard Johnson Motor
Lodge:
[C]ontending that it had the absolute right to require Paquin
[the supervisor] to disclose the identities of other employees
she had observed at the union meetings, Respondent’s posi-
tion is bottomed on her being a supervisor and therefore re-
quired to demonstrate total “loyalty” to her employer. While I
agree that an employer has the right to total loyalty from its
supervisors, . . . I cannot agree that loyalty encompasses re-
quiring a supervisor to engage or participate in violation of the
Act, or entitlement by the employer to share in the forbidden
fruits of what would have been its own violation of the Act if
directed by it. . . . The fact that Paquin had not attended the
union meetings at the behest of her employer did not give her
employer the right to insist upon information to which it was
not entitled and which it would clearly have been unlawful for
it to direct Paquin to obtain. . . . To sanction requiring a su-
pervisor to divulge the identities of other employees observed
by him at such a union meeting would directly interfere with,
restrain, and coerce other employees in the exercise of their
Section 7 rights, since it would thereby permit the employer to
acquire confidential organizational information, concerning
its employees’ protected concerted activities, to which the
employer is not entitled. Under the circumstances, I find that,
by requiring Paquin to disclose the names as indicated and by
discharging her because she declined to divulge them, Re-
spondent violated Section 8(a)(1), . . . of the Act, as alleged in
the complaint. Id at 871 [Emphasis added, fns. omitted.]
Although counseled by Dr. May not to get involved, Lock-
erman attended a portion of the meeting at the restaurant but
left before it concluded and engaged in no further activity with
the employees involved. The only information she possessed
shown on this record is information that she gained from her
attendance at that meeting. The Respondent was not entitled to
that information relating to protected concerted employee activ-
ity. If Lockerman been directed to obtain that information and
discharged for a refusal to do so, her discharge for refusing to
engage in that unlawful act would have violated the Act. Con-
sistent with the holding in Howard Johnson Motor Lodge, I
find that the Respondent, by discharging Lockerman for failing
to divulge information relating to protected concerted activities,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
information that if she had been directed to obtain would have
violated the Act, the Respondent violated the Act.
B. Case 16–CA–25840
1. Facts
The allegations in the complaint arising from this charge re-
late to events in 2007, over a year after the discharges of Clark
and Lockerman and shortly before the scheduled October 15,
2007, hearing regarding those discharges. Counsel for the As-
sociation was unfamiliar with the requirements of Johnnie’s
Poultry Co., 146 NLRB 770 (1964), that employees be given
assurances against reprisals and voluntarily consent to being
questioned in connection with trial preparation. Critical to my
findings are the fact that no interview ever took place and that
counsel was fully aware of his obligations once other counsel
became involved.
In late September 2007, Executive Director Linn “in a very
casual tone” informed employee Patricia St. Germain and Di-
rector Laura Haufler that she wanted them “to go talk to their
[the Association’s] legal counsel” with regard to the upcoming
hearing. On October 2, 2007, counsel for the Association called
St. Germain and asked her to come to his office that afternoon.
St. Germain replied that she could not “comply right now, be-
cause I want to seek my own legal counsel.” Counsel repeated
his desire that St. Germain come that afternoon, and St. Ger-
main responded that she would prefer to make any statement to
the personnel committee of the board of directors. St. Germain
became upset with counsel who repeated that he “wanted to
hear what she had to say.” The conversation ended with counsel
telling St. Germain to have the attorney she was going to seek
to “call me by tomorrow.”
St. Germain spoke with an attorney who, consistent with
Johnnie’s Poultry Co., supra, informed her that, prior to any
questioning by the Respondent’s counsel, she must be given
assurances against retaliation and that she had the right to re-
fuse to cooperate.
At 12:15 p.m. on October 3, 2007, Linn sent St. Germain an
email directing her to contact counsel for the Association. At
1:21 p.m., St. Germain replied by email stating that she would
“not be able to comply,” that she had consulted an attorney and
been informed that she was entitled to assurances against re-
taliation and, even if given assurances, that she could not be
“required to talk to TDA legal counsel or to anyone at TDA”
regarding the upcoming hearing. At 4:23 p.m., an email sent
“on behalf of” Association’s counsel to St. Germain states that
he “knows of no procedure like the one you refer to,” but he
makes no demand that she speak with him. It requests that St.
Germain have her attorney contact counsel for the Association
or provide her attorney’s name and telephone so that counsel
for the Association could contact her attorney.
There were no further communications. On October 4, 2007,
St. Germain filed the charge in Case 16–CA–25840, and the
hearing on October 15, 2007, was postponed.
2. Analysis and concluding findings
The complaint alleges in paragraph 21 that Linn, in late Sep-
tember 2007, directed and/or demanded that an employee sub-
mit to questioning by Respondent’s attorneys regarding the
concerted activities of the employees relating to the upcoming
hearing. Paragraph 22 alleges that, on October 2, 2007, the
Respondent’s attorney directed and/or demanded that an em-
ployee submit to questioning and interrogated the employee.
Paragraph 23 alleges that, on October 3, 2007, Linn directed
and/or demanded that an employee submit to questioning by
Respondent’s attorneys and “threatened and/or impliedly
threatened the employment of an employee if the employee did
not submit to questioning by Respondent’s attorneys.” Para-
graph 24 alleges that, on October 3, 2007, the Respondent’s
attorney directed and/or demanded that an employee submit to
questioning and “threatened and/or impliedly threatened the
employment of an employee if the employee did not submit to
questioning.”
It is undisputed that no meeting or interrogation took place.
Although counsel for the Association, on October 2, 2007,
asked St. Germain to come to his office and, after she refused,
repeated his desire to speak with her, that he “wanted to hear
what she had to say,” the conversation ended with the request
that St. Germain have the legal counsel that she had stated she
wanted to seek to call him. The October 3, 2007, email sent “on
behalf of” counsel makes no demand that St. Germain speak
with counsel regarding the upcoming unfair labor practice hear-
ing and contains no threat. It requests that St. Germain have her
attorney contact counsel or that St. Germain advise counsel of
her attorney’s name and number so that counsel could contact
her attorney.
The Respondent citing Auto Glass & Upholstery Co., 264,
NLRB 149, 153 (1982), argues that there can be no violation of
the Act because the obligation to give assurances pursuant to
Johnnie’s Poultry arises at the point that the interrogation is to
commence.
The General Counsel argues that the holding in that case is
not dispositive in view of the finding in Palagonia Bakery Co.,
339 NLRB 515 (2003), that assurances given at the point of the
interview by the respondent’s attorney were insufficient insofar
as the employees had been told by the respondent’s president
that they had to testify without any qualifications or assurances
and that he then brought them into the office to meet with the
attorney. In those circumstances, the administrative law judge
found that the employees “could not have felt free . . . or that
. . . their participation was voluntary.” Id. at 527.
No party has cited a case, and I have found no case, in which
a violation has been predicated upon an interrogation that never
took place. Although no assurances were given when Linn
informed St. Germain that she wanted her to “go talk” to the
Association’s counsel, there was no demand that she testify.
When counsel called her, St. Germain refused to meet. On Oc-
tober 3, 2007, having learned of St. Germain’s refusal, Linn
directed her “to meet . . . to assist the firm in representation” of
the Association. No threat was made. St. Germain did not com-
ply. No action was taken against her. The only demand made
thereafter was the request of counsel that St. Germain’s attor-
ney be in contact with him.
In Wire Products Mfg. Corp., 326 NLRB 625, 628 (1998),
the respondent was found to have violated the Act when em-
ployees who submitted to an interview were asked questions
that “pried into other union matters” which were not the subject
TEXAS DENTAL ASSN. 13
of the unfair labor practice proceeding. No violation was found
“notwithstanding the fact that they were directed to go to the
interview room before any assurances were given” because, at
the interview, “if an employee declined to execute the waiver
and voluntarily submit to questioning, the meeting was
promptly terminated.” Id. at 644.
St. Germain insisted upon her rights. The Respondent took
no action against her. Counsel, although ignorant of those
rights, did not attempt to interview her. He requested that St.
Germain have the attorney with whom she had consulted con-
tact him.
I shall recommend that paragraphs 21 through 24 of the
complaint be dismissed.
CONCLUSIONS OF LAW
1. By discharging Nathan Clark because he engaged in pro-
tected concerted activities, the Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Barbara Jean Lockerman because she re-
fused to engage in an unfair labor practice, the Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having unlawfully discharged Nathan Clark
and Barbara Lockerman, it must offer them reinstatement and
must make them whole for any loss of earnings and other bene-
fits. Backpay shall be computed on a quarterly basis from Au-
gust 17, 2006, to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). In view of the deci-
sion in National Fabco Mfg., 352 NLRB No. 37 fn. 4 (2008)
(not published in Board volumes), I need not address the re-
quest of the General Counsel regarding compound interest.
The Respondent will also be ordered to post an appropriate
notice. I deny the request for an electronic posting. Electronic
communications are subject to immediate deletion. The formal-
ity of the 60 day posting of a Board notice will appropriately
inform the employees of their rights and of the remedial actions
that the Respondent has been ordered to take.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Texas Dental Association, Austin, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from

2 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.
(a) Discharging employees for engaging in protected con-
certed activities.
(b) Discharging supervisors for refusing to engage in unfair
labor practices.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Nathan
Clark and Barbara Jean Lockerman full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Nathan Clark and Barbara Jean Lockerman whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Nathan
Clark and Barbara Jean Lockerman and within 3 days thereafter
notify the employees in writing that this has been done and that
the discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Austin, Texas, copies of the attached notice marked
“Appendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 17,
2006.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. April 10, 2008
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge any of you for engaging in protected
concerted activities.
WE WILL NOT discharge any supervisor for refusing to engage
in unfair labor practices.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer Nathan
Clark and Barbara Jean Lockerman full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Nathan Clark and Barbara Jean Lockerman
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges,
and within 3 days thereafter notify Nathan Clark and Barbara
Jean Lockerman in writing that this has been done and that the
discharges will not be used against them in any way.
TEXAS DENTAL ASSOCIATION