The Continental Group, Ltd.

National Labor Relations Board - Board Decisions

Aug 11, 2011

357 N.L.R.B. 409 (N.L.R.B. 2011)

CONTINENTAL GROUP, INC.
357 NLRB No. 39
409
The Continental Group, Inc. and Local 11, Service
Employees International Union

The Continental Group, Inc. and Sunset Harbour
South Condominium Association, Inc., Joint
Employers and Local 11, Service Employees In-
ternational Union

The Continental Group, Inc. and The Executive Con-
dominium Association, Inc., Joint Employers
and Local 11, Service Employees International
Union

Sunset Harbour South Condominium Association,
Inc. and Local 11, Service Employees Interna-
tional Union. Cases 12–CA–024045, 12–CA–
024196, 12–CA–024448, 12–CA–024070, 12–CA–
024097, 12–CA–024132, and 12–CA–024447
August 11, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On September 30, 2008, the two sitting members of
the Board issued a Decision and Order in this proceed-
ing, which is reported at 353 NLRB 348.1 Thereafter, the
Respondent, The Continental Group (Continental), filed
a petition for review in the United States Court of Ap-
peals for the District of Columbia Circuit, and the Gen-
eral Counsel filed a cross-application for enforcement.
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
this case for further proceedings consistent with the Su-
preme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

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 powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the remaining member who participated in the origi-
nal decision. Furthermore, under the Board’s standard procedures
applicable to all cases assigned to a panel, the Board Member not as-
signed to the panel had the opportunity to participate in the adjudication
of this case at any time up to the issuance of this decision.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and conclu-
sions, to modify his remedy, and to adopt the recom-
mended Order, as modified and set forth in full in the
prior decision, to the extent and for the reasons stated in
the decision reported at 353 NLRB 348 (2008), which we
incorporate herein by reference, except as modified be-
low.4
In his decision below, the judge concluded, inter alia,
that Respondents Continental and Sunset Harbour violat-
ed Section 8(a)(1) of the Act by promulgating and main-
taining an unlawfully overbroad no-access rule. In addi-
tion, relying on Double Eagle Hotel & Casino, 341
NLRB 112, 112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th
Cir. 2005), cert. denied 546 U.S. 1170 (2006), the judge
concluded that Respondent Continental violated Section
8(a)(1) when it issued a written warning to employee
Phillip Gonzalez for “frequenting the property” and “loi-
tering on the property” in violation of the unlawfully
overbroad no-access rule.5
For the reasons set forth in the decision reported at 353
NLRB 348, which we have incorporated by reference,
we adopt the judge’s conclusion that the Respondents
violated Section 8(a)(1) by promulgating and maintain-
ing the unlawfully overbroad no-access rule. However,
we reverse the judge’s further conclusion that the written
warning provided to employee Gonzalez pursuant to the
rule was unlawful. Contrary to the judge, and as we ex-
plain in greater detail below, we find that the principles
reflected in Double Eagle are not applicable to this pro-
ceeding.
I. THE FACTS
The facts are set forth in detail in our prior decision in
this case. 353 NLRB 348 (2008). For present purposes,
these facts are sufficient.
Continental maintained an employee manual for front-
desk employees at Sunset Harbor Condominium. The
manual contained the following rule:

3 For institutional reasons, Member Hayes joins his colleagues in af-
firming the judge’s finding that the Board’s assertion of jurisdiction
over a residential condominium association is appropriate.
4 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis. Also, we shall modify the judge’s recom-
mended Order to provide for the posting of the notice in accord with J.
Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his
dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice.
5 Specifically, management had received reports from residents that
Gonzalez had been sleeping in a common area of the building, living
out of his car, and “hanging around” the facility, both inside and out-
side the building.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410

Employees are only permitted to be on property
while on duty unless you are picking up a paycheck
or otherwise advised by the property manager or the
Front Desk Coordinator. If you are coming on prop-
erty while off duty, we expect that you will still fol-
low guidelines and dress neatly. Once again, re-
member you represent the building and the compa-
ny. Employees who violate this policy are subject to
disciplinary action.

On August 16, 2004, front-desk employee Phillip
Gonzalez was served with court papers seeking a re-
straining order against him in connection with an allega-
tion of domestic violence. Gonzalez showed the papers
to his supervisor and later discussed his situation with
one of the condominium residents. With the help of
management, Gonzalez was given time off for the re-
mainder of that day and through August 29. On August
17, Gonzalez came to the facility and informed his su-
pervisor that he had obtained an attorney to represent
him in the domestic violence matter and that he was
looking for a place to stay. Director of Front-Desk Ser-
vices David Miller, who was present, told Gonzalez that
he had been told that Gonzalez had been “hanging
around the facility” and “loitering” there. Miller further
stated that it had been reported that Gonzalez had been
sleeping in a common area of the condominium and liv-
ing out of his car. Miller informed Gonzalez that he
could not come to the condominium while on vacation
and that he could not loiter in the building when he was
not on duty. Miller also told Gonzalez that he should not
be discussing his personal affairs with condominium
residents.
When Gonzalez reported for work on August 30, Mil-
ler informed him that it had been reported that Gonzalez
had continued to discuss his personal problems with resi-
dents and that he had been loitering on the property.
Miller told Gonzalez that he was being removed from
Sunset Harbor and to report to Continental’s office the
next day.
When Gonzalez did so, he was issued two written
warnings. One of them stated that, despite being told to
keep his personal matters to himself and to refrain from
frequenting the property while off duty, Gonzalez had
been seen loitering on the property on August 21 and 22.
The other warning focused on Gonzalez’ giving false
information to residents and continuing to speak to them
about his personal problems.
After Gonzalez signed the warnings, Miller offered
him a position as a floater who would work at various
properties managed by Continental as needed. Gonzalez
rejected the offer, stating that he wanted to remain at
Sunset Harbor. Miller told Gonzalez that he could not,
and then asked him if he wanted to resign. Gonzalez did
so.
On those facts the judge found, inter alia, that the
handbook rule was unlawfully overbroad, as it infringed
on employee access rights under Tri-County Medical
Center, 222 NLRB 1089 (1976); that the written warning
issued to Gonzalez for “frequenting the property” and
“loitering on the property” was issued pursuant to that
rule; and therefore, citing Double Eagle, supra, that the
warning was also unlawful, because it was “[d]iscipline
imposed pursuant to an unlawful rule. . . .”
II. CLARIFICATION OF THE DOUBLE EAGLE RULE
The Board has long adhered to and applied the princi-
ple that discipline imposed pursuant to an unlawfully
overbroad rule is unlawful (the “Double Eagle rule”).
See, e.g., Double Eagle, 341 NLRB at 112 fn. 3; Saia
Motor Freight Line, 333 NLRB 784, 785 (2001); Opry-
land Hotel, 323 NLRB 723 (1997); A.T. & S.F. Memori-
al Hospitals, 234 NLRB 436 (1978); Miller’s Discount
Dept. Stores, 198 NLRB 281 (1972), enfd. 496 F.2d 484
(6th Cir. 1974). Notwithstanding the longevity of this
principle, however, and although the rule has often been
stated in absolute terms, the Board has never expressly
set forth a rationale for the rule nor a description of its
scope. After examining the purposes underlying the rule
and considering the interests it seeks to balance, we con-
clude that it is appropriate to set limits on its application.
For this reason, and because questions concerning the
scope of the rule are otherwise likely to persist, a clarifi-
cation of the Double Eagle rule is warranted.6

6 Our clarification of the Double Eagle rule will also distinguish
those situations in which an employer imposes discipline pursuant to an
unlawfully overbroad rule from situations in which an employer impos-
es discipline pursuant to a rule that is unlawful for reasons other than
overbreadth. Cf. Opryland Hotel, 323 NLRB 723, 728 (1997) (citing
decisions involving employer discipline of employees pursuant to no-
solicitation rules that had been either discriminatorily promulgated or
applied, in support of a conclusion that discipline imposed on employee
pursuant to an overbroad rule was unlawful).
A workplace rule—and any discipline imposed pursuant to that
rule—may violate the Act for a number of different reasons. For ex-
ample, a rule may be facially unlawful; it may have been promulgated
for discriminatory reasons or enforced in a discriminatory manner; or it
may be overbroad, i.e., it restricts or prohibits some protected, in addi-
tion to unprotected, activity. In recognition of the fact that different
considerations underlie the conclusion that each of the above-described
rules (and any attendant discipline) violates the Act, we emphasize that
our analysis here is expressly limited to cases involving discipline
imposed pursuant to an unlawfully overbroad rule. Similarly, we note
that our clarification of the Double Eagle rule has no bearing on, and
does not in any way alter, the principles reflected in decisions such as
St. John’s Community Services–New Jersey, 355 NLRB 414 (2010),
and Southern Mail, Inc., 345 NLRB 644 (2005), holding that discipline
resulting from an employer’s unilateral implementation of a stricter
interpretation of existing disciplinary policies violates the Act.
CONTINENTAL GROUP, INC. 411
In defining the proper scope of the Double Eagle rule,
we are guided by the policies underlying the rule. As an
initial matter, the Board and the courts have long held
that the existence of an overbroad rule violates the Act
based on its potential chilling effect on employees’ exer-
cise of their Section 7 rights. See, e.g., NLRB v. Bever-
age-Air Co., 402 F.2d 411, 419 (4th Cir. 1968); Cardinal
Home Products, 338 NLRB 1004, 1005–1006 (2003)
(citations omitted). Indeed, the mere maintenance of an
overbroad rule tends to inhibit employees who are con-
sidering engaging in legally protected activities by con-
vincing them to refrain from doing so rather than risk
discipline. See NLRB v. Beverage-Air Co., 402 F.2d at
419; J. C. Penney Co., 266 NLRB 1223, 1224 (1983);
see generally Note, The First Amendment Overbreadth
Doctrine, 83 Harv. L. Rev. 844, 853 (1970) (“By defini-
tion, an overbroad statute covers privileged activity, and
to the extent that the statutory burden operates as a disin-
centive to action the result is an in terrorem effect on
conduct within the protection of the first amendment.”).
Moreover, because the mere maintenance of an over-
broad rule creates a potential chilling effect on the exer-
cise of protected rights, it is reasonable to infer that the
enforcement of such a rule would have a similar, or per-
haps even greater, chilling effect on the exercise of pro-
tected rights, even if it is enforced against activity that
could have been proscribed by a properly drawn rule. As
the Tenth Circuit Court of Appeals explained in Double
Eagle, by analogy to the Federal judiciary’s endorsement
of constitutional overbreadth challenges to laws imping-
ing upon protected First Amendment activity:

An individual whose own speech or expressive conduct
may validly be prohibited or sanctioned is permitted to
challenge a statute on its face because it also threatens
others not before the court—those who desire to en-
gage in legally protected expression but who may re-
frain from doing so rather than risk prosecution or un-
dertake to have the law declared partially invalid.

Double Eagle Hotel & Casino v. NLRB, 414 F.3d at 1258
(quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
503 (1985)).
A second justification for the Board’s Double Eagle
rule is the principle that, in the absence of a valid em-
ployer rule prohibiting the employee conduct at issue, the
conduct maintains its protected status. This rationale
begins with the premise that the Act grants to employees
a statutory right to self-organization, including the right
to engage in (or refrain from) solicitation and discussion
of terms and conditions of employment. These rights,
however, are not absolute, as they must be balanced
against an employer’s right to maintain production and
discipline. In recognition of those competing rights, the
Supreme Court has held that an employer lawfully may
implement rules that place limited restrictions on em-
ployee Section 7 rights in the workplace and during
worktime for the purpose of maintaining production or
discipline. See Republic Aviation Corp. v. NLRB, 324
U.S. 793, 803 (1945).7 Notwithstanding the existence of
authority lawfully to restrict employees’ Section 7 activi-
ty, however, if an employer fails to exercise that authori-
ty—either by failing to promulgate any rule, or by prom-
ulgating an invalid rule—the employee activity that
could otherwise be prohibited retains its protected char-
acter. See Trico Industries, 283 NLRB 848, 848 fn. 1,
851–852 (1987) (holding that employee’s brief conversa-
tions with union president during worktime did not lose
the protection of the Act, where the conversations did not
violate any published rule or interfere with production);
accord: Greentree Electronics Corp., 176 NLRB 919,
919 (1969) (stating that “discharge based on worktime
distribution of cards in the absence of a valid rule is sug-
gestive that the employer was reacting to the protected
aspect of the employee’s conduct, rather than considera-
tions of plant efficiency”), enfd. 432 F.2d 1011 (9th Cir.
1970).8
The above-described purposes and rationale underly-
ing the Double Eagle rule necessarily inform our delinea-
tion of the scope of the rule and guide us in its interpreta-
tion and application. To begin, in situations in which the
conduct for which an employee is disciplined under an
overbroad rule clearly falls within the protection of Sec-
tion 7 of the Act (e.g., concerted solicitation, distribution,
or discussion of terms and conditions of employment)—
and even though the employer lawfully would be entitled
to place restrictions on that conduct via a narrowly tai-
lored rule—both of the above-described justifications for

7 Of course, the Board has developed a series of presumptions to as-
sist in its analysis (and provide guidance to employers and employees)
as to whether restrictions on employee statutory rights in a given case
are justified by employer concerns of productivity or discipline. See
Peyton Packing Co., 49 NLRB 828, 843–844 (1943) (holding that a
rule prohibiting union solicitation during working hours is presumptive-
ly valid, and a rule prohibiting solicitation by employees outside of
working hours is presumptively invalid as an unreasonable impediment
to self-organization), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied
323 U.S. 730 (1944); see also Tri-County Medical Center, 222 NLRB
1089 (1976) (holding that a rule that denies off-duty employees entry to
parking lots, gates, and other outside nonworking areas will be found
invalid unless justified by business reasons).
8 Nevertheless, as discussed more fully below, under the reformulat-
ed Double Eagle rule, an employer that failed to promulgate a valid
rule still would have the opportunity to demonstrate that it was justified
in disciplining an employee based on conduct that actually interfered
with the employer’s operations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
the Double Eagle rule apply.9 Accordingly, in such situ-
ations, the Board will apply the rule and find that the
discipline violates the Act (unless the employer is able to
establish the available affirmative defense outlined be-
low).
Conversely, in situations in which the conduct for
which an employee is disciplined is wholly distinct from
activity that falls within the ambit of Section 7 (e.g.,
sleeping on the Employer’s premises when off duty), the
second justification for the Double Eagle rule—that em-
ployee conduct maintains its protected character in the
absence of a valid employer rule—is simply inapplicable.
Moreover, notwithstanding the fact that an employer’s
discipline of an employee for such conduct in reliance on
an overbroad rule might produce some chilling effect
merely by invoking the overbroad rule, the chilling effect
is much less significant than it would be if the employ-
ee’s conduct were not wholly unprotected. Based on the
justifications underlying the Double Eagle rule, we are of
the view that its application in such situations would ex-
pand the rule beyond its appropriate boundaries. Ac-
cordingly, we conclude that the rule does not apply, and
it is not unlawful for an employer to discipline an em-
ployee pursuant to an overbroad rule, in situations in
which the employee’s conduct is not similar to conduct
protected by the Act in the manner we proceed to ex-
plain.
Finally, there are situations in which an employer dis-
ciplines an employee pursuant to an overbroad rule for
conduct that touches the concerns animating Section 7
(e.g., conduct that seeks higher wages) but is not protect-
ed by the Act because it is not concerted.10 In such situa-
tions, it cannot be said that the employee’s conduct
would be protected in the absence of a lawful employer
rule; accordingly, the second rationale for the Double
Eagle rule discussed above does not apply. However, in
comparison to the situation involving employee conduct
that is neither for mutual aid and protection nor concert-
ed (e.g., sleeping on the employer’s premises while off
duty), there is a much greater risk that employees would

9 An example of this situation is an employer who disciplines an
employee for soliciting support for a union during working hours, in
reliance on a rule that prohibits all solicitation on the employer’s prem-
ises.
10 NLS Group, 352 NLRB 744 (2008), incorporated by reference in
355 NLRB 1168 (2010), enfd. 645 F.3d 475 (1st Cir. 2011), serves as a
prime illustration of such a situation. In NLS Group, the Board found
that an employer confidentiality rule prohibiting employees from dis-
closing terms of employment, including compensation, to “other par-
ties” was unlawfully overbroad, in violation of the Act. In addition,
relying on Double Eagle, the Board concluded that the employer’s
discharge of an employee for violating the overbroad confidentiality
rule by complaining to a client about an individual compensation issue
violated the Act.
be chilled in the exercise of their Section 7 rights. That
is, the “chilling effect” rationale for the Double Eagle
rule applies to a greater extent when an employee is dis-
ciplined for conduct that is “protected” but not “concert-
ed.”11 For this reason, we are convinced that application
of the Double Eagle rule in such instances is appropriate
and necessary to fully effectuate the rights guaranteed by
Section 7 of the Act.
In sum, as outlined above, the Double Eagle rule pro-
vides that discipline imposed pursuant to an unlawfully
overbroad rule violates the Act in those situations in
which an employee violated the rule by (1) engaging in
protected conduct or (2) engaging in conduct that other-
wise implicates the concerns underlying Section 7 of the
Act. Nevertheless, an employer will avoid liability for
discipline imposed pursuant to an overbroad rule if it can
establish that the employee’s conduct actually interfered
with the employee’s own work or that of other employ-
ees or otherwise actually interfered with the employer’s
operations, and that the interference, rather than the vio-
lation of the rule, was the reason for the discipline. Mil-
ler’s Discount Dept. Stores, 198 NLRB 281 (1972), enfd.
on other grounds sub nom. NLRB v. Daylin, Inc., 496
F.2d 484 (6th Cir. 1974); see also Switchcraft, Inc., 241
NLRB 985 (1979), enfd. 631 F.2d 734 (7th Cir. 1980);
Wayne Home Equipment Co., 229 NLRB 654 (1977);
Singer Co., 220 NLRB 1179 (1975). It is the employer’s
burden, not only to assert this affirmative defense, but
also to establish that the employee’s interference with
production or operations was the actual reason for the
discipline. In this regard, an employer’s mere citation of
the overbroad rule as the basis for discipline will not suf-
fice to meet its burden. Rather, assuming that the em-
ployer provides the employee with a reason (either writ-
ten or oral) for its imposition of discipline, the employer
must demonstrate that it cited the employee’s interfer-
ence with production and not simply the violation of the
overbroad rule. See, e.g., Gerry’s I.G.A., 238 NLRB
1141, 1151 (1978) (“It is impossible, of course, for the
employer . . . to establish [that the employee was dis-
charged based on interference with production] when
interference with work is not the reason given in the dis-
charge letter and the discharge letter instead is in the lit-
eral language of the overly broad rule.”), enfd. 602 F.2d
1021 (1st Cir. 1979).
This formulation of the Double Eagle rule, including
our allocation of the burdens of proof, reflects a deliber-

11 Employees, we recognize, might have difficulty appreciating the
distinction between a discharge based on the discussion of an individual
wage dispute with a client, and a discharge based on the discussion of
(and appeal for support regarding) a unit-wide compensation grievance
with a client.
CONTINENTAL GROUP, INC. 413
ate balancing of employees’ Section 7 rights and em-
ployers’ legitimate interest in establishing work rules for
the purpose maintaining discipline and production.
Moreover, in our judgment, the available affirmative
defense described above properly acknowledges the em-
ployer’s legitimate interests, yet simultaneously discour-
ages post-hoc rationalization of disciplinary decisions,
and minimizes the likelihood of a chilling effect on em-
ployees’ Section 7 rights.
III. THE DOUBLE EAGLE RULE DOES NOT APPLY TO
THE WARNING ISSUED TO GONZALEZ
Having clarified the scope of the Board’s Double Ea-
gle rule, we now consider its applicability in the context
of this case. As set forth above, Continental maintained
at Sunset Harbour an unlawfully overbroad employee
rule prohibiting off-duty employees from coming on to
the property except to collect their paychecks or when
“otherwise advised by” designated managers. At a time
when the rule was in force, Continental received reports
that employee Phillip Gonzalez had been sleeping in a
common area of the building, living out of his car, and
“hanging around” the facility, both inside and outside the
building; Gonzalez did not deny those reports. As a re-
sult, Continental issued a written warning to Gonzales
for “frequenting the property” while off duty and “loiter-
ing on the property” on his vacation days.
Notwithstanding the fact that Continental disciplined
Gonzalez pursuant to an unlawfully overbroad rule re-
stricting off-duty employees’ access to the Respondent’s
property, we conclude, contrary to the judge, that the
Double Eagle rule is not implicated. The conduct for
which Gonzalez was disciplined—sleeping on the Re-
spondent’s premises and living out of his car in the Re-
spondent’s parking lot—was not protected concerted
activity; indeed, his conduct was wholly distinct from
activity that falls within the ambit of Section 7. As we
have explained above, application of the Double Eagle
rule to conduct of this sort does not materially advance
the policies on which the rule is premised. Accordingly,
we conclude that the rule is simply inapplicable to such
conduct.
Therefore, we reverse the judge’s conclusion that Con-
tinental violated Section 8(a)(1) by disciplining Gonzalez
pursuant to the unlawfully overbroad no-access rule, and
we dismiss the allegation. Because Continental did not
violate the Act in this regard, we also dismiss the allega-
tion as to Sunset Harbour.
AMENDED REMEDY
The Respondent, The Continental Group, having un-
lawfully discharged employees for engaging in union
activities or protected concerted activities, must offer
those employees reinstatement and make them whole for
any loss of earnings and other benefits they may have
suffered as a result of the Respondent’s unlawful con-
duct, computed on a quarterly basis from the date of the
discharges to the date of a proper reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as mod-
ified in 353 NLRB 348 and as further modified below,
and orders that
A. The Respondent, Sunset Harbour South Condomin-
ium Association, Inc., Miami Beach, Florida, its officers,
agents, successors, and assigns shall take the action set
forth in the recommended Order as modified.
Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its Miami Beach, Florida facility, in English and Spanish,
copies of the attached notice marked ‘Appendix A.’9
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall by posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 1,
2004.”
B. The Respondent, The Continental Group, Inc., Hol-
lywood, Florida, its officers, agents, successors, and as-
signs, shall take the action set forth in the recommended
Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Make Marvin White and Leydis Borrero whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the amended remedy section of this decision.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
2. Substitute the following for paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
its offices in Hollywood, Florida, and at the Executive
Condominium, Sunset Harbour South Condominium,
and Sands Pointe Condominium, all of which are located
in Miami Beach, Florida, in English and Spanish, copies
of the attached notice marked ‘Appendix B.’10 Copies of
the notice, on forms provided by the Regional Director
for Region 12, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 1, 2004.”

MEMBER HAYES, concurring in part.
I agree with my colleagues’ conclusion that Respond-
ent Continental did not violate Section 8(a)(1) of the Act
when it issued a written warning to employee Phillip
Gonzalez for violating an unlawfully overbroad no-
access rule. I further agree that the Double Eagle rule
should not apply in these circumstances, where the disci-
pline is imposed for employee conduct that is clearly
unprotected. I find no need in this case to consider the
validity of the Double Eagle rule’s application in other
circumstances or the allocation of evidentiary burdens
under the rule.